Test Valley becomes third Hampshire council to recognise 'rights of rivers'

The motion, passed last month (23 July), confers rights on to local rivers, including the right to flow "unimpeded, seasonal and natural", the right to perform "essential functions within the ecosystem", and the right to be free from pollution and contamination.

It also introduces the right to "feed and be fed by sustainable aquifers and other freshwater sources", the right to native biodiversity and restoration of ecological integrity, and the right to regeneration and restoration from environmental harm.

However, despite some news reports suggesting the contrary, the motion does not amount to granting legal personhood to the area's rivers, but aims to reaffirm the protections already available under environmental law, the council has confirmed.

A council spokesperson told Local Government Lawyer: "While the concept of rivers having intrinsic rights has attracted some attention, at the heart of this decision is our commitment to protect some of our most valuable resources and treasured assets. Which is why we, and other councils across Hampshire and beyond, are taking steps to reaffirm and bolster our support."

The council has emphasised that this does not create any new legal status for the river.

A Test Valley spokesperson said: "The river is of course not a natural legal person with the ability and right to engage in legal proceedings in and of itself.

"What the motion does reflect and recognise is the package of environmental and other legislation and provisions which exist to protect rivers, their ecosystems and wider environment. In that context, creating notional 'rights' – i.e. things that can reasonably be expected to be done for the benefit or protection of the rivers."

The River Test is one of only 200 chalk streams globally, making it a "rare and vulnerable asset", the council said, adding: "We already undertake extensive work alongside local community groups as well as statutory bodies and organisations to do just that."

According to Emma Rowland, a pupil barrister at Francis Taylor Building (FTB), the motion does not change the legal status of the river, but could influence how the council approaches planning and environmental decisions.

She told Local Government Lawyer: "Test Valley Borough Council is not the first council to adopt a motion or take action in relation to the so-called' rights of rivers'. The council cannot, however, grant a river legal personhood merely by passing a motion.

"Thus, it is not correct to suggest that by passing the motion, the river can 'sue' private individuals or companies."

Rowland, who is set to join FTB as a tenant in October, added: "The effect of the motion at present is most likely to be felt in the council's own decision-making.

"Under point 3 of the motion, the council resolves to 'embed river rights principles into council policies, particularly those concerning planning, development, land use, water management and biodiversity'.

"This is not to say that the 'rights' of the relevant river will necessarily trump other concerns – the council cannot fetter its own discretion. Rather, it means that in those areas of decision-making which may impact the 'rights' of a river as recognised in the motion, consideration of those rights may be a material consideration."

Test Valley's motion came a week after Southampton City Council voted through its own motion recognising the rights of rivers in its area.

Another council in the county, Basingstoke & Deane Borough Council, meanwhile passed a similar motion in May of this year.

All three Hampshire councils drew inspiration from the 'Universal Declaration of the Rights of Rivers', which outlines key rights such as the right to flow freely, the right to be free from pollution, and the right to regenerate.

Lorna Selby, Policy & Advocacy Officer at Hampshire & Isle of Wight Wildlife Trust, described Basingstoke & Deane Borough Council's motion as "historic", adding that it is "inspiring to see this momentum continue across the country".

Selby said: "The passing of river rights motions in both Southampton and Test Valley reflects a growing recognition that our rivers, and particularly our rare chalk streams, deserve stringent legal recognition and protection.

Adam Carey

Disclaimer: The comments in this article by Emma Rowland are intended for general purposes only and should not be viewed as a comprehensive summary of the subject matters covered. The comments do not constitute legal or other professional advice and no warranty is given nor liability accepted for the contents. Emma Rowland and Francis Taylor Building will not accept responsibility for any loss suffered as a consequence of reliance on information contained in the article. Specific legal advice should be sought where necessary.