Non-tidal Inland Waters: Canoe Access, Use and Navigation
The Angling Trust, as the national governing body representing all forms of angling, accepts the need for all river users to operate within the law and to share our natural resources in a spirit of cooperation and respect.
It is settled law that there is no general public right of navigation on non-tidal rivers in England and Wales. Where navigation is allowed this is through Acts of Parliament (and other instruments) that are specific to a river or section of a river, or other water body.
In Britain, there are 4,700 miles of inland waters where navigation is allowed. Paddling on the canal network and rivers under the control of a navigation authority is, for example, permitted although it normally requires registration or a licence. The payment of fees to a navigation authority funds maintenance of the waterway for navigation and regulation of paddling activity.
Inevitably, some activities such as fishing are not compatible with other activities on the water. This is why it remains important to have in place a system of Voluntary Access Agreements under which riparian owners are able to grant access to non-navigable stretches of inland waters for activities such as canoeing or paddle boarding without impacting unduly on the rights and enjoyment of other long-standing users such as anglers.
Unfortunately, the approach of British Canoeing, the national governing body for paddle sports in the UK, has been to reject voluntary access agreements, which allow the peaceful and non-confrontational shared use of rivers, in favour of an aggressive Clear Access, Clear Waters campaign for universal access (at all times and to all rivers) irrespective of the impact on wildlife and other water users.
There have been several organised trespass events, resulting in conflicts with other lawful river users, and, on occasion, the involvement of the police. Both the law and government policy are clear.
Successive governments have been clear, canoeists and their representative bodies should abide by the law and pursue access through voluntary agreements with riparian owners and other water users that respect local requirements. British Canoeing continue to oppose such voluntary agreement stating they will “not [support such agreements] on the basis of needing permission to paddle”. Given the nature of the ownership of rivers and water bodies, it is not possible to have an agreement that does not include “permission” to access and navigate. Anglers need permission. There is no case for paddlers to be considered an exception.
Why Does It Matter?
On larger designated navigable rivers and canals paddling can be accommodated. The water is deeper, the fish are used to the regular presence of boat traffic, and anglers and paddlers can usually enjoy their respective pastimes without unduly impacting upon one another. There are times when the boat traffic becomes very intensive when fishing can become difficult or impossible. Anglers tend to stay off the water during those peak paddling times, but in most instances boaters and anglers co-exist on navigable waterways.
This is not the case on the smaller rivers and shallower streams where the unexpected arrival of even one or two canoes sends the fish fleeing for cover and ruins any prospect of sport for paying anglers for several hours, if not the rest of the day. In smaller streams fishing is often carried out by wading and attempting to stalk the fish. Concealment and stealth are key skills as wild fish in clear water are extremely cautious creatures who will stop feeding, or hide under banks, for many hours if they are disturbed. A sudden flotilla of canoes coming down river is not only a danger to wading anglers, and accidents have occurred, it can also render fishing impossible.
The angler will have paid up to £82 to the Environment Agency or Natural Resources Wales for a rod licence (12-month, salmon and sea trout) and in many cases a considerable sum to the riparian owner via a day ticket or club membership in order to secure permission to fish that stretch of river. By contrast many canoeists pay nothing and increasingly expect to be able to paddle wherever they like and when they like without regard for the rights and enjoyment of other river users or the water environment.
Such unfettered and unmanaged access could dramatically reduce the economic value of the affected fisheries and the many jobs that they support. Many stretches of river are owned by angling clubs who take out loans to buy them based on future income from members. This money is invested in the upkeep and improvement of the water environment for the benefit of wildlife and people’s enjoyment of nature. Many clubs would struggle to keep up repayments if regular canoe traffic deterred members from paying subscriptions or non-members from buying day tickets.
Many clubs have enjoyed peaceful fishing for hundreds of years and are now feeling threatened by the invasion of canoeists, who can be aggressive when told that they are trespassing.
Angling remains one of the most popular participant sports in the UK and makes a significant contribution to employment, tourism and the economy. It is enjoyed by over two million people, delivers £3.5 billion in economic benefit and creates employment for around 40,000 people.
Fishing is limited with seasonal closures and many by-laws in place to restrict the activity in order to protect fish stocks. Under Section 2(4) of the Salmon and Freshwater Fisheries Act (1975) “any person who […] wilfully disturbs any spawn or spawning fish, or any bed, bank or shallow on which any spawn or spawning fish may be, shall be guilty of an offence”, but many trespassing canoeists paddle through and disembark in spawning areas in rivers and their head waters on a regular basis. Even if they don’t always disturb the redds themselves, they can disturb the fish at the point of spawning, which could have an impact on spawning success and hence populations. Closed seasons for fishing reflect the timings of spawning.
The Act also says (s17) that “Any person who […] scares or disturbs any salmon or trout […] at any place above or below any dam or any obstruction, whether artificial or natural, which hinders or retards the passage of salmon or trout, being within 50 yards above or 100 yards below the dam or obstruction […] shall be guilty of an offence.” Canoeists will often spend time around weirs and other features in the river, this risks deterring the migration of fish which can be critical in stopping them completing their lifecycle. Some access agreements contain conditions that seek to protect and minimise disturbance of fish, such as restricting paddling when the river level falls below a certain height or at certain times of the year.
The Law
It is settled law that there is no general public right of navigation on non-tidal rivers in England and Wales (see appendix one). This is confirmed by the advice provided by David Hart QC in response to claims made by the Reverend Dr Douglas Caffyn (who is not a lawyer) in 2004 that there is a general public right of navigation, based only on the conclusions of his Masters’ thesis (see further reading, below).
This was confirmed by Defra in 2013 who stated:
“Defra’s policy remains that all 2,000 miles of navigable canals and rivers entrusted to the Canal & River Trust are open to recreational users such as canoeists and that those wishing to use other waterways can work with the landowner to agree access.”
Further confirmation on the lack of a public right to navigation and the importance of VAAs was given by no fewer than four separate Environment Ministers including: Barry Gardner (2007) who stated:
“Our view is that increased access to water, for activities such as canoeing, can most effectively be achieved via the voluntary approach, which involves landowners and water users coming to a formal, written agreement about access to a particular stretch of water which takes into account the needs of all interested parties.”
This was followed in 2010 – by Huw Irranca-Davis and, following a change of government, by Richard Benyon in December 2012 who said:
“While we want more people to get out and enjoy activities in the countryside they must be complimentary. There are plenty of places to canoe where it is appropriate and others where it is not. There will be no change to our policy of supporting voluntary access agreements as the only way forward. Anglers and fishery owners spend a lot of time and money caring for our rivers and streams and their rights deserve to be respected.”
Most recently, in December 2020, the current Environment Secretary – George Eustice stated:
“The Government’s policy for unregulated waterways, … is that access to rivers should be arranged through voluntary agreements between the riparian landowners, anglers, canoeists and those wishing to use the water for other recreational purposes. Tailored to local situations, this allows for the needs of recreational users to be balanced with those of industry and conservation, as well as the property rights of landowners.
I am also aware that there are issues surrounding recreational access to some of our unregulated waterways, but the Government has no statutory role in enforcing voluntary access agreements and we have no plans to legislate on this matter.”
The Position of British Canoeing
British Canoeing seek to undermine this clear and settled legal position and government policy through the dissemination of misleading comments and misinformation, for example their GoPaddling website, continues to provide information on access and navigation of rivers where there is no public right of navigation. This is not conducive to establishing a good working relationship and to seeking to find a productive way to accommodate the needs of different user groups on our rivers.
The Way Forward
Way Forward
The Angling Trust is concerned that the governing bodies of canoeing continue to support their members to act in ways that contravene the law. Angling clubs and riparian owners seeking to engage paddlers with the aim of increasing use are often met with objections on ideological grounds, and with misleading information, either directly from British Canoeing or indirectly, through advice they have given to canoeists and canoeing clubs. This makes the commissioning of voluntary access agreements more challenging and actually reduces opportunities for increased access for paddling.
To find a way forward, based on respect for the law, we request that British Canoeing cease in its continued dispute regarding the public right to navigation and desist from continue to publish and promote misleading information in this regard. We remain ready to seek to resolve this matter on that basis.
On waters where the public right to navigation does not exist, the Angling Trust confirms its support for the Government’s position (restated by the Secretary of State for the Environment, Food and Rural Affairs as recently as December 2020), that the way forward, for increased access for other water users, is through the creation of local voluntary access agreements on all suitable rivers.
In setting up access agreements, it is important to draw attention to the difference between permission to gain access across land to a river (for launching etc) and permission to navigate. Both are needed to allow access agreements to work well in practice.
The Angling Trust recognises that it is not always appropriate that either angling or paddle sport takes place on every day throughout the year or where it would have a detrimental effect on the characteristics of the river.
We particularly support the drawing up of agreements between local riparian owners, angling clubs, local paddlers, and outdoor centres as the most effective way to manage shared use of the water.
Where statutorily protected areas such as Special Areas of Conservation, Sites of Special Scientific Interest or similar are likely to be affected, Natural England, Natural Resources Wales or any National Park authorities should be consulted. The Angling Trust would also expect the Environment Agency in England and Natural Resources Wales in Wales to advise on fishery protection aspects of any proposed agreements.
As well as contributing approximately £3.5 billion to the UK economy each year, all freshwater anglers in England and Wales are obliged to purchase a rod licence. The £25 million revenue from anglers’ rod licences contributes to the fisheries work of the Environment Agency in England and the work of Natural Resources Wales in Wales, enabling them to pursue their statutory duty to maintain, improve and develop fisheries, as well as other functions in relation to pollution control and conservation. Anglers pay to fish any waters, whether that is through purchasing or leasing fishing rights, buying a day ticket or through membership of a club who in turn pays for their fishing rights. This is in addition to buying a licence.
Fish Legal can provide information to members on the law of navigation, liability for trespassers, signage and steps that riparian owners and angling clubs can take to protect their fisheries.
Updated: July 2021