Please note this is a general guide for information only. Every situation will be different and you will need to consult with a legal specialist.
Rights to swim in England, Wales and Northern Ireland
There is no general right to swim in the non-tidal rivers and lakes of England and Wales. This is also the case in Northern Ireland, but rights of access to land and water are now very different in Scotland (see below).
The legal position for swimmers in inland waters in England and Wales is complicated and uncertain, as it is for other water users, but we understand that, in certain places, people can claim a right to swim has been established through historic use, and may swim in rivers where there are public navigation rights1. But public navigation rights apply to only about three per cent of rivers in England and Wales. Apart from these rare exceptions, whether you can swim in a lake or river depends upon the willingness of the riparian land owner or occupier of the site. In the case of rivers land owners own half the river bed, giving them certain rights over the use of water, which usually include the exclusive right to fish and the right to prohibit people from using their waters. The owner of the land adjacent to a pond or lake has similar rights. Some lakes may be registered as common land, but this does not necessarily imply a right to swim in them; the ‘rights of common’ may relate to fishing but not swimming. Unless landowners have indicated their willingness to allow swimming in their waters, swimmers could be trespassing. It makes no difference whether the river or lake is publicly owned or privately owned. The public have no right to swim within a country park owned by a local authority, for example, unless the local authority allows them to do so.
Similarly people do not have a general right to swim in waters within ‘access’ lands. The so-called ‘right to roam’ legislation that extended public access to areas of uncultivated land in England and Wales (but not Northern Ireland), specifically excluded people from bathing in, or using a boat or sail board on, any non-tidal waters in the access lands.2.
How far the public have a right to use the navigable rivers of England and Wales is, however, a matter of dispute. In his meticulous research into the history of rights to use navigable rivers Douglas Caffyn concluded that there had long been a common law right to take a boat along the navigable rivers of England and Wales but that this right was misinterpreted in an influential nineteenth century legal text.3. His argument that this common law right still exists is currently being tested in the courts, and the canoeing lobby, in its ‘river access for all’ campaign which presses for canoeists, swimmers and others to be able to enjoy our rivers, also argues there has always been a public right of navigation on rivers in England and Wales subject only to the physical constraints of the river and the size and nature of the craft using them. The matter remains unresolved, as Secretary of State for the Department of Environment, Food and Rural Affairs confirmed in 2016, ‘the law regarding the right of navigation on unregulated watercourses is unclear.4. Even if a right of navigation on navigable rivers were to be established, or re-established, and even if it were deemed to include swimmers, that would do nothing to remove ‘no-swimming’ notices from non-navigable rivers and lakes.
Whether, in practice, swimming in lakes or rivers is tolerated by the landowner or occupier of the land may depend on whether their waters are leased out for fishing or some other income-generating use. It is also influenced by the occupier’s duty of care to those who may come on to the land or water, and their fears of litigation that might follow from any neglect of such duties.
The duty of care under civil law in England, Wales and Northern Ireland
Occupiers of land in England and Wales have a ‘duty of care’ to take reasonable precautions to ensure the safety of their visitors under the Occupiers’ Liability Acts of 1957 and 1984, and those in Northern Ireland have similar duties under the Occupiers’ Liability Act (Northern Ireland) 1957 and the Occupiers’ Liability (Northern Ireland) Order 1987.
The Occupiers’ Liability Act 1957 sets out the duty of care in relation to anyone coming onto the land or premises with an occupier’s permission. Section 2 (2) requires the occupier to take such care as ‘is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there’. The occupier must warn visitors of any danger and this warning must be sufficient for them to be reasonably safe (section 2 (4)). However, this duty does not extend to risks willingly accepted by the visitor (Section 2 (5)). The act leaves open to interpretation the degree of care that must be taken. An occupier would not be liable for an injury resulting from a risk willingly undertaken by an adult visitor, but this might not be the case with young children.
The Occupiers’ Liability Act 1984 extended the duty of care to trespassers, people who have not been invited or given permission to come onto the land or water, where the occupier is both aware of the dangers and also aware that people may come onto the land. This duty may be discharged by, for example, providing warning signs of a danger, but only where it is reasonable and practicable for the occupier to offer such protection.
Case law in England
Two land mark decisions indicate that the duty of care has been interpreted to restrict, unreasonably, swimming in lakes in England.
The National Trust appealed successfully against the damages awarded to a woman whose husband had drowned while swimming in a lake which it owned. Swimming had been forbidden in the lake, but there were no systematic attempts to stop people from doing so. The Court of Appeal ruled that there was no need to display warning signs next to the lake, as it did not present any unusual risk. Lord Justice May pointed out that, had the appeal been dismissed, warning notices would have to be put up beside every beach in the country. (Darby v. National Trust 2001).
In another case, a young man was injured in the lake at Brereton Heath Country Park. Swimming in the lake was forbidden, warning notices were in place and work was in progress to block access to the lake and destroy the beach. Before this work was completed, however, a young man dived in to shallow water, hit his head on the sandy bottom and suffered injuries that left him disabled. The Court Appeal awarded the injured man partial damages but this ruling was overturned by the House of Lords. Lord Hobhouse stressed: ‘the law does not require disproportionate and unreasonable responses’, and Lord Hoffmann said: ‘it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in activities they freely choose to undertake on the land’. (Tomlinson v. Congleton Borough Council 2003)
The legal situation in Scotland is now very different for people wishing to swim in Scotland’s inland waters. One of the first pieces of legislation enacted by the Scottish Parliament, the Land Reform (Scotland) Act 2003, which came into effect in 2005, gave the public a public right to be present in, and to move freely over, bodies of inland water, whether flowing or still, at any time of the day or night. This new right must be exercised responsibly – people must respect the privacy of others, help land managers to work safely and effectively, take care of the environment, keep their dogs under control, and take extra care when organizing an event or running a business. Provided they do so, they are free to walk along bridges and banks, enter the water whether to paddle or swim, and take non-powered craft like rowing boats and canoes, in all lochs and rivers, canals and reservoirs, streams, estuaries as well as along the coast.
Duty of care in Scotland
The occupiers of land in Scotland also have obligations towards the people who come on to their property, similar to those in England, Wales and Northern Ireland, under the Occupiers Liability (Scotland) Act 1960. The occupier must consider whether injury or damage might result from dangers due to the condition of the property, or from anything done or omitted to be done by the occupier.
The Scottish Outdoor Access Code, which accompanies the Land Reform (Scotland) 2003 Act, provides formal guidance on responsibilities associated with the access rights. One of the three central principles of the Scottish Outdoor Access Code is to ‘Take responsibility for your own actions’, and the code provides substantial information about what this means in practice. The provisions of the code are a material consideration when assessing issues of care and liability relating to the exercise of access rights.
A person drowned in a reservoir at night, and it was argued that the reservoir should have been fenced at a point where the wall bounding the reservoir was low. The road alongside the reservoir was heavily used during the day, and was also used at night, but no one else had sustained an accident, no other complaints about safety had been made, and the deceased lived locally and must have been familiar with the topography of the site. The court held an occupier must fence off sites that present special or unfamiliar hazards, such as industrial machinery or poisonous plants, but that it would be going too far to suggest there was a duty to provide safety fencing to permanent, ordinary and familiar features of the landscape such as that involved in this case. The case was dismissed. (Graham v East of Scotland Water, 2002)
The Health and Safety at Work (HSAW) Act 1974, which relates to premises and sites where people are employed in the UK, also has implications for country parks and other managed sites where people might swim. If people are employed to manage a recreation site, then the activities on that site are considered to be ‘work-related’ under the act. Employers not only have a duty to ensure the safety of their employees, but they (and self-employed people working on the premises) also have a duty of care to visitors to the site. Section 3 (1) states that ‘It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment … not exposed to risks to their health or safety’. Contravention of this section is a criminal offence.
1. J. H. Bates 1990 Water and Drainage Law. Vol. 1
2. Countryside Recreation and Rights of Way Act 2000, Schedule 2, 1 (b) and (i)
3. Douglas Caffyn 2004 The Right of Navigation on Non-tidal Rivers and the Common Law.
4. Andrea Leadsom, Secretary of State for the Environment, Food and Rural Affairs, in a letter to Ken Clarke, MP, 29 October 2016 published on the River Access for All website (River Access for all Article).