British Canoeing believes that there is a strong case to demonstrate an existing public right of navigation (PRN) on all navigable rivers.
Until such time that the law is clarified, either in court, or through legislation being enacted, British Canoeing will campaign on behalf of the public, for fair, shared, sustainable open access on water.
Waterway access and the law
Of the 42,700 miles of inland waterways in England, only 1,400 miles can be paddled uncontested - that is a mere 4% of what is available. Paddlers are subject to challenge or dispute over their right to be on the water.
The 4% of waterways is largely made up of canals and 'managed navigations' (such as the Wye and the Severn).
British Canoeing receives reports of individuals encountering conflict on the water, often having been threatened with litigation. Paddlers are frequently told that they have no night of access on water and that navigation down waterways is by permission only.
British Canoeing believes, based on a wealth of historical evidence, that there is, at common law, a public right of navigation on all rivers which are physically capable of navigation. It is acknowledged that this position is firmly rejected by others.
British Canoeing believes that everyone has a right to fair, shared, sustainable open* access to water. We are asking Government to introduce new, or change existing legislation to confirm the right of everyone to enjoy fair, shared, sustainable open access.
To read more about our 'Clear Access, Clear Waters' campaign, click here.
Open Access to waterways means securing existing rights and creating additional rights where needed. This would ensure that everyone has a right of access on and along all waterways in England, for any reasonable purpose. The right of open access should be complimented by a statutory code of conduct, ensuring respect and consideration for others and the environment.
Open access for all would enable more people to have access to England's network of waterways for enjoyment, health, learning and vitally to care for
Tidal waters and the coast
In nearly all cases there is a Public Right of Navigation (PRN) on tidal waters. This includes the seas, estuaries and tidal rivers – up to their historic Normal Tidal Limit (NTL). Where a river’s tidal limit has by altered by the building of weirs, sluices or other structures the historic (or natural, unrestricted) NTL is the relevant limit. The right to navigate tidal waters may be subject to a payment of harbour dues and restrictions due to exclusion zones or use by the Ministry of Defence.
In England and Wales there are differing opinions regarding Public Rights of Navigation (PRN) along non-tidal waters. The bed and banks of all rivers and canals are privately owned, and many believe this gives the landowner the right to control navigation. British Canoeing believes recent legal research has cast significant doubt upon this interpretation of the law. Some waterways do have a widely recognised Public Right of Navigation, such as the Upper Severn and the Wye. Many other waterways find their status disputed despite clear evidence of both Statutory and Common Law rights.
Canals and River Navigations
All canals and rivers actively maintained as navigations have public access, subject to a payment for a license/registration where required. Where navigations have been abandoned it can be unclear if there is still a Public Right of Navigation (PRN). You can find more details of the canals and rivers actively managed for navigation on our licences page.
The situation in Scotland is very different to that in Wales and England. The Scottish Land Reform Act 2003 provides the public with statutory access rights to land and inland water in Scotland and therefore under the 2003 Act (with the associated Outdoor Access Code):
1. There is a right to be on land and to cross land;
2. There is a right to exercise access rights for recreational, educational and commercial reasons;
3. Rights of access to land include inland waters, canals and foreshore.
All three points above are underpinned by the phrase ‘responsible use’ by both the public and landowners
The Scottish Canoe Association (SCA) has been proactive in working with the organisations responsible for delivering the Land Reform Act which include Scottish Natural Heritage (SNH), local authorities, landowners and fisheries interests.
The access provisions in Part 1 of the Land Reform Act are an extremely important milestone in Scottish history.
Further information can be found via the Scottish Canoe Association.
The law of Trespass is an extremely complicated subject.
If you are paddling on a river, lake or other waters where there is a disputed public right of navigation, then it could be alleged you may be trespassing.[i] Usually trespass is a civil, not a criminal, offence (see the information on Aggravated Trespass below). Damages can be awarded against the trespasser and an injunction can be issued to prevent repetition of trespass or to restrain threatened trespass. As civil offence trespass is not a police matter unless a criminal offence is also committed. This would only be the case if wilful or malicious damage was done, there was a conspiracy to commit trespass, there was behaviour likely to cause a breach of the peace or it was a case of Aggravated Trespass.
Responding to Trespass Allegations
If you are challenged whilst paddling, always:
- Be courteous, calm and polite, and attempt to defuse the situation through positive dialogue.
- Seek to find positive ways of working with other water users, for example passing by anglers with minimal disruption (following our Code of Conduct[ii]).
- Avoid anything that could be interpreted as Aggravated Trespass, such as a breach of the peace, or conspiracy to trespass as these are criminal offences.
- Do not to admit trespass under any circumstances, or give your name or contact details unless a Police Officer asks for them (see below).
- If necessary complete the British Canoeing Incident Report[iii]
Ordinarily you are not under any obligation to give any personal details (such as your name or address) to any person other than a Police Officer. In the case of a Police Officer having been summoned, the officer should be informed, in a positive manner, of the circumstances and that it is a civil matter and the police has no jurisdiction. However, always be aware of the need to cooperate with any requests a Police Officer makes, in a polite and open manner. If the Police have been called to an incident, it would be beneficial for British Canoeing to be notified of this, along with any relevant details such as the Police Officer’s details.
An Environment Agency water bailiff, on production of a warrant, has the powers of a Police Officer, but only in relation to specific angling and fisheries related issues/laws[iv], such as poaching, fishing without a license or damage to spawning beds. You are not under any obligation to provide any personal details to an Environment Agency bailiff, as they are not empowered to engage in issues relating to navigation. Where there is a real risk of disturbance to spawning grounds an Environment Agency bailiff may ask you to leave the water. Although there is no legal power for this to be enforced we would strongly recommend working with the bailiff to do this (or find a suitable way of continuing your journey) in order to help prevent any environmental damage.[v]
Bailiffs, gamekeepers or other representatives of either landowners or angling clubs are not authorised to demand personal details or to enforce any aspect of navigation or access legislation. However, we would remind all paddlers of the need to always be polite and courteous.
Should canoeists experience threatening or disorderly behaviour intended to harass, alarm or distress paddlers the incident should be reported to the Police and a Crime Number gained. British Canoeing should also be informed.
The Criminal Justice Act 1994 introduced the criminal offence of Aggravated Trespass. This should not be confused with Civil Trespass, which is a civil offence. To commit Aggravated Trespass you must first be trespassing; whilst trespassing you must also have the intention of obstructing or disrupting a lawful activity (such as hunting, shooting or fishing) or intimidating those engaged in such lawful activities[vi]. Canoeists should not fall foul of this law if they canoe in a peaceful and considerate manner. We have no indication as to how the Police, the Crown Prosecution Service and the Courts will interpret the act where paddlers might be involved.
Trespass Cover within British Canoeing’s Public Liability Insurance
British Canoeing’s members are protected against Civil Trespass claims as part of the third party liability insurance. Please notify us[vii] as soon as possible if there is the prospect of such a claim being made against you.
The cover only provides protection against Civil Trespass claims – not the criminal offence of Aggravated Trespass or any other criminal charges that could be levelled. We would draw attention again for paddlers to be aware of their behaviour on/by the water and to respond to all other users, land owners and others on our rivers in an open, polite and cooperative manner. This will reduce the possibility of Civil Trespass being escalated into other charges. Attention should be drawn to the criteria shown above for Aggravated Trespass, particularly that relating to intentional disruption or obstruction of a lawful activity.
The insurance cover simply allows for members to be covered against claims made against them. The method and process for settling the claim would be at the discretion of the insurers.
[i] For more information regarding British Canoeing’s policy and position regarding Public rights of navigation please see our accompanying Position Statement on Shared Use
[iv] For example the Salmon and Freshwater Fisheries Act
[v] For more information see Guidance for Environment Agency Fisheries Bailiffs – Canoeing and Fisheries (2007)