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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Akerman v London Borough of Richmond [2017] EWHC 84 (Admin) (27 January 2017) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2017/84.html Cite as: [2017] WLR(D) 68, [2017] PTSR 351, [2017] EWHC 84 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE NICOL
and
____________________
CHRISTOPHER AKERMAN |
Appellant |
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- and - |
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LONDON BOROUGH OF RICHMOND |
Respondent |
____________________
Adam
Heppinstall
(instructed by London Borough of Richmond) for the Respondent
Hearing date: 19 January 2017
____________________
Crown Copyright ©
Lord Justice Beatson :
I. Introduction:
II. The Legislative framework:
"(1) The Council of a district… and a Council of a London Borough may make byelaws for the good rule and government of the whole or any part of the district… or borough, as the case may be, and for the prevention and suppression of nuisances therein.
(2) The confirming authority in relation to byelaws made under this section shall be the Secretary of State.
(3) Byelaws shall not be made under this section for any purpose as respects any area if provision for that purpose as respects that area is made by, or is or may be made under, any other enactment."
"Mooring
4. (a) Except in cases of an emergency or other unavoidable cause, no person shall on any land designated in Schedule 1 and shown delineated in red on the attached Mooring Byelaws Borough-wide Plan and Mooring Byelaws Detailed Plans 1 to 37 moor any boat or permit any boat to be moored for longer than a maximum period of 1 hour in any period of 24 consecutive hours (beginning with the time at which the boat first moored on the land) without the prior written consent of the Council.
(b) If a boat continues to be moored after the expiry of 1 hour in breach of the byelaw 4(a), further offences will be committed after the expiry of the first hour in every subsequent 24hour period (such 24 hour periods to be calculated with reference to the time at which the boat first moored on the land) until the boat ceases to be moored to the land."
III. The factual background and the evidence:
"5. The evidence from Mr Noviss, solicitor for R was not challenged as to the correctness of the procedures for making the byelaws. Mr Noviss in his evidence said that the byelaws were not directed at housing issues but were to prevent boats being moored at the council's land without permission. He said they related to anti-social behaviour connected with such moored vessels. The presence of the boats caused a nuisance in preventing access to the river and the bank for other river users such as anglers, yachtsmen, canoeists and pedestrians on the bank. He said the objective of the byelaws was to free up the banks for everyone and keep small boats moving on the river. He denied there was any right for boat owners to moor on someone else's riverbank property and said that the right to public navigation was only a right of movement on the river. He denied the byelaw would result in boat owners becoming homeless as the byelaw did not deprive them of their boat which was the home.
6. Other unchallenged evidence came from the Enforcement Officers…. who produced evidence of the boat being moored in excess of the permitted time;….. and…. the Head of Parks for the borough who outlined the nuisance and anti-social behaviour occurring and reported at the river bank at Ham Lands. He said that there were no facilities or infrastructure in place to accommodate people living in the vessels moored there and that a balance had to be struck so that the river and the banks were accessible to all users … "
"I found that A was the owner of the boat and on the 4 dates specified he had moored the boat for longer than the permitted time of 1 hour. He did not have prior written consent of the Council and there was no emergency or any other unavoidable cause for mooring for over an hour."
IV. The District Judge's conclusions on the issue of law
"12. I was of the opinion that
a) The byelaws were "good" law because they were made for the purpose of good rule and government in the borough and were to prevent the suppression of nuisances. I base this conclusion on the evidence of Mr Noviss and the other evidence from the council. That nuisance was the permanent mooring of the boats at Ham Lands which obstructed the proper use by other persons of the amenities of the river and the bank there. Access to the river was blocked to others and passage along the river and river banks was also impeded by the permanent presence of the boats. The purpose of the byelaws was not to make the boat owners homeless but to prevent them from treating that particular site as a permanent mooring with all the attendant impact on the area. The byelaws were not irrational as they were for the purpose of balancing the interests and needs of all river and river bank users in or visiting the borough.
b) The byelaws did not have the main or consequential effect of making the boat owners homeless. The byelaws restricted where the vessels could be moored in the borough and for how long but did not deprive them of a home, as their boats, which by their essence are moveable, were always retained by them. Other permanent moorings were available in the borough and on the river. Article 8 rights were not engaged by the act of mooring a boat to property belonging to another on the river bank even if it was land in public ownership through the council as the council has a right to regulate such land for the benefit of all members of the public. Even were Article 8 rights engaged by such unilateral action the byelaws are a necessary and proportionate interference with those rights for the purpose of ensuring good rule and government in the area to suppress nuisances and to balance the interests and rights of all public users of the river and riverbank. I was of the opinion the byelaws were not illegal and being in breach of Article 8.
c) There was no need for evidence of any anti-social behaviour by A individually in order to make the byelaws or prosecute him under them. There was no challenge to the procedural propriety of the byelaws by A so it was accepted full and proper consultation and approval had been secured for them. Lack of any evidence of anti-social behaviour by him personally did not make the byelaws irrational or illegal as they were not aimed at him individually but were for the purpose of suppressing nuisance caused by illegal mooring generally in the area."
V. The questions:
"1. Did I err or was I irrational in deciding that the byelaws were "good" law and were neither irrational nor illegal?
2. Did I err in finding that Article 8 rights to respect for the home were not engaged or that if they were the byelaws were a proportionate and necessary step for the council to take to ensure good rule and government and the suppression of nuisance in the borough?
3. Did I err in not requiring evidence of individual anti-social behaviour by the appellant in reaching my conclusion that the byelaws were "good" law and that the prosecution case against Mr Akerman was properly brought?
4. Was my decision "Wednesbury unreasonable" being one that on the evidence and proper application of the law no reasonable tribunal could have reached?"
V. Discussion:
(i) The appellant's case:
(ii) Improper Purpose:
(iii) Irrationality
(iv) Failure to take account of a relevant consideration:
(v) Wednesbury unreasonableness:
(vi) Article 8 of the European Convention of Human Rights:
V. Conclusion:
Question 1: The District Judge neither erred nor was irrational in deciding that the byelaws were "good" law and were neither irrational or illegal. By "good" I take it that she meant "valid" since we are concerned with legal validity rather than the issue of whether the byelaws are good or desirable in any other sense.
Question 2: I incline to the view that: (a) the District Judge erred in finding that a right under article 8 of the ECHR to respect for the home was not engaged in the circumstances of this case; but (b) the judge did not err on concluding that, if they were, the byelaws were a proportionate and necessary step for the respondent to take to ensure "good rule and government and the suppression of nuisance in the borough".
Question 3: The District Judge did not err in stating that evidence was not required of individual anti-social behaviour by the Appellant in order to conclude that the byelaws were "good", i.e. "valid" law and that the prosecution against the Appellant was properly brought.
Question 4: It follows from my answers to questions 1-3 that the District Judge's decision was not "Wednesbury unreasonable".
Mr Justice Nicol: