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||Neutral Citation Number:  EWHC 84 (Admin)
||Case No: CO/2943/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEATSON
MR JUSTICE NICOL
|| CHRISTOPHER AKERMAN
||- and -
||LONDON BOROUGH OF RICHMOND
Nathaniel Wade (instructed by Hodge, Jones and Allen) for the Appellant
Adam Heppinstall (instructed by London Borough of Richmond) for the Respondent
Hearing date: 19 January 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Beatson :
- The issue in this appeal by way of case stated pursuant to section 111 of the Magistrates Court Act 1980 is the validity of byelaws made under section 235 of the Local Government Act 1972 ("the 1972 Act") by the London Borough of Richmond making it a criminal offence to moor a boat against specified land for longer than the maximum period specified. The appellant, Christopher Akerman, the owner of the Longwood Lady, was convicted by District Judge (Magistrates Court) Barbara Barnes on 1 February 2016 of four breaches of the byelaws. The respondent is the London Borough of Richmond.
- The respondent alleged that on 13 March, 11 and 29 May, and 4 June 2015 the appellant moored or permitted the Longwood Lady, to be moored to land owned by it at Ham Lands, Ham, Richmond for longer than the maximum permitted period which, in the case of that location, was 1 hour in any 24 consecutive hours. Byelaw 4 makes it a criminal offence to so moor a boat against that land without the prior written consent of the respondent except "in cases of an emergency or other unavoidable cause". The appellant contended before the District Judge and contends in this court that byelaw 4 is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the byelaws was anti-social behaviour but the byelaws did not address such behaviour and were such an excessive response to the evidence of that behaviour that they were ultra vires at common law. It was also submitted that making the byelaws was a disproportionate infringement of the rights under article 8 of the European Convention on Human Rights ("the ECHR") and breached the appellant's rights.
II. The Legislative framework:
- Section 235 of the Local Government Act 1972 empowers the respondent to make byelaws "for good rule and government and suppression of nuisances". It states:
"(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."
- Following a process of advertising and consultation in accordance with sections 236(4) - (6) of the 1972 Act, on 16 December 2014 the respondent applied to the Secretary of State for Communities and Local Government for the approval of "byelaws relating to mooring". On 13 February 2015 a Minister in the department confirmed the byelaws. They came into force 1 month later, 1 minute after midnight on 13 March 2015. Byelaw 4 provides:
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."
- Byelaw 5(a) permits a boat to be moored for a maximum period of 24 hours on the land designated in Schedule 1 in the case of an emergency or other unavoidable cause for the purpose of remedying the emergency by making repairs or to arrange and wait for removal of the boat from the land. Byelaw 6 deals with the land designated in Schedule 2 and prohibits any boat to be moored or be permitted to be moored for longer than a maximum period of 24 consecutive hours in any period of 48 hours without the prior written consent of the Council.
- Byelaw 9 contains transitional provisions which make it clear that, in the case of boats already moored on land designated on the date the byelaws come into operation, the time at which the boat is deemed to be first moored on the land for the purposes of calculating time periods will be 01.00 hours on the date the byelaws come into operation.
- Byelaw 10 provides that any person offending against the byelaws is liable on summary conviction to a fine not exceeding level 2 of the standard scale.
- In order to provide some context, I also summarise section 79 of the Thames Conservancy Act 1932 ("the 1932 Act"). Section 79(1) grants a public right of navigation on "any and every part of the Thames through which Thames water flows". By section 79(2), the right of navigation includes "a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by by-laws determine …". Section 79(2) contains a proviso that nothing in the statute or any byelaw made under it was to be construed as depriving any riparian owner of any legal rights which he may "now" possess in the soil or bed of the Thames or of any legal remedies which he may "now" possess "for the prevention of anchoring mooring loitering or delay of any vessel" or give any riparian owner any right as against the public which he did not possess before 17 August 1894 "to exclude any person from entering or navigating any backwater creek channel bay inlet or other water". It was common ground at the hearing that the use of the word "now" did not restrict the rights of riparian owners including the respondent and that, for the purposes of this appeal, it was not necessary to go into the distinction between mooring in the river and being moored to the river bank.
III. The factual background and the evidence:
- Since most of the evidence was not in dispute (case stated, ) I can summarise it briefly. The appellant moored the Longwood Lady on land belonging to the respondent at Ham Lands near Teddington Lock for longer than the permitted 1 hour on each of the four days which are the subject of the charges. He accepted (case stated ) that there was neither a case of emergency nor any other unavoidable cause for overstaying. He stated (case stated ) that he had lived in the boat for 9 years and could not move the boat because the engine was broken and he could not afford to fix it.
- There was no challenge to the procedures followed by the Council for making the byelaws. Evidence was given on behalf of the respondent by Mr Noviss, its solicitor, its Enforcement Officers Messrs Sigamoney and Copley, and Mr Allister the respondent's Head of Parks. Mr Noviss was cross-examined about the purpose of the byelaws. Paragraphs  and  of the case stated summarise the evidence as follows:
"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 … "
- The judge's findings of fact are at paragraph  of the case stated:
"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."
- Although not relevant to the issue before this court, I add that, at the beginning of his submissions, Mr Heppinstall on behalf of the respondent informed us of developments since the decision below. They are not relevant for the disposition of this appeal, but I record that the court was told that the Environment Agency instituted civil proceedings against the appellant; that on 22 February 2016 the Kingston County Court ordered him to repair the boat and leave the mooring at Ham Lands within three months; and that he has done so.
IV. The District Judge's conclusions on the issue of law
- After setting out the contentions of the parties and listing the authorities relied on at  -  of the case stated, the judge turned to her conclusion. She stated:
"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:
- The questions the judge stated for this court are:
"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?"
(i) The appellant's case:
- It is axiomatic that the application of the established common law public law principles may result in a subordinate legislative instrument such as the byelaws in this case being ultra vires or an abuse of power: see for example the discussion in Wade and Forsyth, Administrative Law 11th ed., 2014 p 737-742, 743-746. The challenge may be direct or collateral, as where, as in this case, the invalidity of a byelaw is raised as a defence to criminal or civil proceedings: Boddington v British Transport Police  2 AC 143, 163 and 173. In this case the byelaws are not said to be ultra vires because they are on their face outwith the enabling power in section 235 of the 1972 Act or because their meaning cannot be ascertained with reasonable certainty. The common law challenge before the judge below and in this appeal is based on impropriety of purpose, failure to take account of a relevant consideration and Wednesbury unreasonableness or irrationality.
- Mr Wade submitted that analysing these byelaws in the light of the principles of public law demonstrated them to be irrational and prejudicial and therefore unlawful and a nullity. He argued that they were made for the illegitimate purpose of "eviction of boat dwellers from the borough". The enforcement of the byelaws would strip boat owners including the appellant of their property and their homes, and this was known to the respondent because it was the effect of the enforcement of similar provisions in other local authority areas. If this byelaw is valid in Richmond, similar byelaws will be valid in other parts of the United Kingdom, and the result would be to render it impossible to live on boats and to have what Mr Wade described as "a boater's way of life".
- Mr Wade also submitted that there is no rational connection between what he described as the stated purpose of reducing anti-social behaviour in the responses to the consultation and the reports to committees and the natural consequences of enforcement. He argued that, in that sense, the byelaws were not the rational outcome of the consultation. He also submitted that the evidence did not support the contention that physical access to the river bank in the respondent borough is sufficiently restricted to justify a measure criminalising permanent mooring, and that the aesthetics of moored boats do not constitute a ground for the byelaws.
- In his written submissions, Mr Wade argued that the respondent failed to consider any less drastic alternatives and that in the absence of evidence of any anti-social behaviour by the appellant there can be no evidence that the removal of his boat will reduce nuisance. During the hearing he accepted that evidence as to whether the appellant had engaged in anti-social behaviour could only be relevant as a component of the general evidential support for the challenge to the vires of the byelaws. He accepted that, if the byelaws are valid, before deciding to prosecute an individual for overstaying, the respondent did not have to investigate whether that individual had engaged in anti-social behaviour. I observe that, if the byelaws are valid, it would be open to an individual who is prosecuted to raise the proportionality of the decision to prosecute by arguing that, in the particular circumstances of the case, including his or her rights under ECHR article 8, to do so was an abuse of process. That submission was not made to the judge in the present case.
- The next limb of Mr Wade's challenge is that, before making the byelaws, the respondent failed to consider the housing implications and article 8 rights of boat dwellers, or any less drastic alternative to the time restrictions imposed on mooring such as the deployment of litter bins. He submitted that the distinction made by the judge between the right to reside and the right to moor is irrational in the case of a boat which has no means of propulsion. Paragraphs (v) and (vi) of the grounds of appeal and paragraph 18(b) of his skeleton argument maintain that the appellant's article 8 rights were plainly engaged in the consideration of the making of these byelaws and in deciding to prosecute him, and that the impact on these rights was not justified as proportionate in the light of their objective. Mr Wade submitted that the decisions in Manchester City Council v Pinnock  UKSC 45,  UKSC 6,  2 AC 104 and Couper and others v Albion Properties and others  EWHC 265 (Ch.) are not of assistance because the first case concerned the duties of a local authority in relation to the distribution and management of its housing stock, and the second case is a private law chancery case. Underneath this part of the submissions on behalf of the appellant is the argument that the byelaw has impacted on his ability and the ability of others to maintain a lifestyle as river boat residents.
- Although his primary case was as to the legality of the byelaw, Mr Wade also submitted that the conviction of the appellant was a decision that no rational tribunal could have reached. In his written submissions he did not develop this beyond arguing that the respondent ought not to be able to determine the appellant's right to moor permanently in Richmond "indirectly through the creation of a criminal offence", an argument which relates to the vires of the byelaws rather than the conclusion of the tribunal.
(ii) Improper Purpose:
- It was submitted on behalf of the appellant that the byelaws are "un-philosophical" in their formation and that "their inevitable effect is prejudicial with illegitimate purpose breaching protected rights". It is true that the effect of the byelaws will make it difficult if not impossible to live on a boat within the areas designated in schedules 1 and 2 to the byelaws, but that effect does not assist in determining the purpose for which the byelaws were made.
- When applying to the Secretary of State for the approval of the byelaw, the respondent stated "[t]he purpose of the byelaw is to prevent and suppress nuisance to others arising from vessels moored on land owned or managed by the Council and to protect the river bank and ensure others can access and use the river". Paragraph  of the case states that the evidence of Mr Noviss, the respondent's solicitor, was that the byelaws were not directed at housing issues but to prevent boats being moored to the council's land without permission. While he said that the byelaws "related" to anti-social behaviour connected with such moored vessels, he also said that the nuisance caused was preventing access to the river and banks for other river users and pedestrians. Section 235 of the 1972 Act empowers byelaws for the prevention and suppression of nuisances and the judge expressly found (see case stated [12(a)]) that "the purpose of the byelaws was to prevent and suppress nuisances. (The phrase "prevent the suppression of nuisances" at [12(a)] is clearly a typographical error). The nuisance was "the permanent mooring of the boats at Ham Land which obstructed the proper use by other persons of the amenities of the river and the bank" because "access to the river was blocked to others and passage along the … river banks was also impeded by the permanent presence of the boats". The judge found that "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". Their purpose was to balance "the interests and the needs of all river and river bank users in and visiting the borough".
- Although there was also evidence of anti-social behaviour and that the byelaws "related" to such behaviour, in my judgment the judge did not err in concluding that the byelaws were not made for an improper purpose. While concern about anti-social behaviour was voiced by some of the objectors and (see case stated at ) the evidence of the Head of Parks outlined the nuisance and anti-social behaviour occurring and reported at the river bank at Ham Lands, the judge was entitled to conclude on the basis of the respondent's solicitor's evidence that the dominant or primary purpose was preventing the tow path being blocked or otherwise being interfered with and the impeding of access to the river and its banks.
- Absent impropriety of purpose, the question becomes whether, in view of all the material before the respondent when it decided to apply to the Secretary of State to confirm and make the byelaws and before the Secretary of State when he did so, the decision to make them was irrational.
- Mr Wade submitted that there was no rational connection between the stated purpose of reducing anti-social behaviour and the consequence of the byelaw which prevented mooring for longer than the specified 1 hour period whether or not there was any anti-social behaviour. He argued that there is no need for a byelaw to stop anti-social behaviour because anyone acting anti-socially or criminally could be prosecuted without the need for a byelaw. In my judgment, this submission is misconceived and assumes, contrary to the evidence accepted by the judge, that preventing anti-social behaviour was the dominant or the sole purpose of the byelaw.
- The reliance in the written submissions on the fact that there was no evidence that the appellant had caused any nuisance also proceeds on the same assumption. These submissions in my judgment appears to merge the challenge to the byelaw, albeit raised collaterally as a defence to a prosecution, with the contention that the appellant did not engage in the prohibited conduct. But the conduct prohibited by byelaws 4 and 5 was not causing a nuisance. It was mooring beyond the permitted time limits, and the appellant admitted that he had so moored. The suggestion that evidence of anti-social behaviour by the appellant was necessary for a prosecution under the byelaw is utterly unarguable. It not only proceeds on the mistaken assumption that the sole or main objective of the byelaw was to suppress anti-social behaviour but also has no basis in the language of the byelaws. At the hearing Mr Wade accepted that evidence of whether the appellant had engaged in anti-social conduct could only be relevant in the very qualified way I have described at  above.
- The way both the improper purpose and the irrationality points were advanced sought to proceed without addressing the fact that there is no right for the owner of a house boat to moor wherever or whenever he or she chooses. There is a public right of navigation on the River Thames, and those exercising their right of navigation are entitled to moor vessels to the river bed temporarily from time to time: see section 79 of the 1932 Act and Couper and others v Albion Properties Ltd, Port of London Authority and Hutchison Whampoa Properties (Europe) Ltd  EWHC 2993 (Ch) at ) and . But such persons are not entitled to obstruct the river. In Attorney General v Terry (1874) 9 Ch. App 243 at 431 Lord Cairns said that, while an encroachment may be so trifling that the court would not interfere, a subtraction of 3ft from 60ft is a tangible and substantial interference with the navigation which ought to be challenged and restrained by the court. Potentially, permanent mooring of boats such as the appellant's which obstruct free access from the riparian land to the river constitutes both a private and a public nuisance: see Couper's case at  ff. Similarly, in Moor v. British Waterways Board  EWCA Civ 73,  Ch 488 it was held that even a riparian owner who was not the owner of a navigable river bed, did not at common law have a positive right to moor a vessel alongside his land permanently.
- It is submitted on behalf of the appellant that Couper's case is not of assistance in the present context as it is a private law case relating to property and navigation rights. It is said that the present case is not about the existence and assertion of a "right" to moor but the vires of the byelaws and the soundness in the law of the decisions of the judge below. I reject the submission that Couper's case is not of assistance. The nature of the rights of riparian owners and others to moor boats is a relevant consideration when considering the rationality and legality of public law acts such as these byelaws, which regulate and restrict a person's ability to moor a boat without committing an offence. In my judgment it was legitimate for the respondent to regulate the way in which the appellant and others occupy the river bank, land held for the benefit of the whole community, to the detriment of other uses of the land and river bank.
(iv) Failure to take account of a relevant consideration:
- I turn to the submission that byelaws are not valid because the respondent failed to consider the housing implications and the article 8 rights of boat dwellers or less drastic alternatives to the time restrictions imposed on mooring. The submission to the Secretary of State stated that "most of the boats effectively use the riverbanks as permanent or semi-permanent moorings" and referred to reports that some of the boats were being advertised as rental accommodation. I deal with the article 8 point at  ff. below.
- Mr Wade relied on guidance to local authorities dated March 2016 about what became section 124(1) of the Housing and Planning Act 2016. That provision amended section 8 of the Housing Act 1985 by the introduction of a new section 8(3) requiring the periodic review of housing needs in a local authority's district now to include "places on inland waterways where houseboats can be moored". Neither the guidance nor section 8(3) were in force at any time relevant to the present appeal. The challenged byelaws came into force on 13 March 2015. The charges in these proceedings and the date on which the appellant was convicted preceded the guidance, and the new statutory provision which only came into force on 12 July 2016, some five months after the conviction. At all the material times, therefore, leaving aside article 8, housing was not a relevant consideration. Accordingly, the judge below did not err in finding that the question was "not a question of housing" but "a question of land as a public amenity regulated by the borough and ensuring all members of the public can share a right to enjoy it": see case stated, 12(a) set out at  above.
(v) Wednesbury unreasonableness:
- In so far as the appellant's submission is that his conviction is one that no rational tribunal could have reached is separate from the challenged impropriety of purpose and irrationality it is in my judgment unsustainable. The suggestion is that, if the respondent intended to determine the appellant's right to moor permanently in Richmond, it ought not to have achieved this indirectly through the creation of a criminal offence. This submission, however, is simply another way of characterising the challenge to the vires of the byelaws.
(vi) Article 8 of the European Convention of Human Rights:
- Three issues arise when considering article 8. The first is whether article 8 is engaged in the circumstances of this case. The second is the approach of a court when article 8 is a ground for challenging the validity of a legislative instrument such as the byelaws in this case as opposed to challenging an individual decision under that legislative instrument. The third arises, if article 8 is engaged. It is the proportionality of the byelaws. The question is whether the decision or conduct relied on which is alleged to interfere with the exercise of the right under article 8, here the making of the byelaws, is proportionate and justified.
- The first question is whether article 8 was engaged in this case. Was the judge correct to conclude (case stated, [12(b)]) that "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…". It appears that she accepted the respondent's submission that, while article 8 rights to respect for a home may be interfered with where necessary and if proportionate, in this case the river bank was not the appellant's home. Although the appellant could choose to live in a boat and move that boat along navigable waters, he could not claim that land beside the river belonging to another where he wished to moor was part of his home.
- The judge's conclusion that article 8 is not engaged in this case because the byelaws do not prevent the Appellant from living on his houseboat but only from living on it when moored at particular locations is supported by the second of the Couper decisions. In Couper and others v Albion Properties and others  EWHC 265 (Ch.) Arnold J stated at  - [ 34] that the article 8 rights of Mrs Couper were not engaged where an order was made for the possession of land beneath a river boat because "the effect of the order is in essence to require the claimants to move the boats to a different location" and she could "continue to reside in all of the five barges which she says in her witness statement she regards as being part of her home".
- In the present case (see case stated at ) the appellant's evidence was that he had lived in the boat for 9 years. It is, however, not stated whether his evidence was that his boat had been moored in the same place for 9 years. In paragraph 3 of her judgment the judge stated that the Appellant admitted he was moored by Teddington Lock, and at paragraph 5 that the evidence of Ms Anderson from the Environment Agency was that the Appellant had been registered as the owner of the Longwood Lady since 2009; that is for 7 years. The position was not clarified at the hearing.
- In the circumstances of this case, for the reasons I give below, it is not necessary to determine how long the appellant had been moored at the same place on the material dates. I would only observe that the fact that he has lived on the boat for 9 years and has owned it for some 7 years means that, in my judgment, it is not possible simply to say article 8 is not engaged because he can move the boat and because he is a trespasser and his trespassing conduct precludes the engagement of article 8. This is so particularly if the boat has been moored in the same place for all or a substantial part of that time and it is not moveable because it has no working engine.
- It is clear that article 8 is not only engaged in respect of a home where that home is lawfully established: see Buckley v United Kingdom (1996) 23 EHRR 101 at ; Connors v United Kingdom (2005) 40 EHRR 9 at  -  and R (N) v Lewisham LBC  UKSC 62, 2015 AC 1259. In Connors it was accepted by the parties that the claimant's eviction from a caravan site disclosed an interference with his rights under article 8.1 and in N's case Lord Hodge stated (at ) that the concept of "home" in article 8 "is concerned with occupation in fact, and is not limited to premises which are lawfully occupied or have been lawfully established". Buckley's case and Chapman v United Kingdom (2001) 33 EHRR 18 concerned applications by gypsies for planning permission to keep caravans on land that belonged to them. Unlike the appellant in this case, they were therefore not trespassing on the land and the issue was the use of their own land. But the recognition that it is not only a lawfully established home that engages article 8 means that I do not consider that it can be said that, as a matter of principle, in a properly particularised case on facts such as those of the present case article 8 is not engaged.
- I turn to the second issue: the approach to an article 8 challenge to a legislative instrument, or a quasi-legislative instrument. This was considered by the Supreme Court in R (Ali and Bibi) v Secretary of State for the Home Department  UKSC 68 where the claimants challenged the requirement in the Immigration Rules that, in order to qualify for a "spouse visa", foreign national spouses or partners of British citizens and persons settled in the United Kingdom produce a test certificate of knowledge of the English language to a prescribed standard. The challenge was to the general effect of the Rule and was not based on the particular position of the claimants in that case. Lady Hale stated (at ) that the claimants had set themselves a difficult task because, while it may be possible to show that the operation of the rule in an individual case is a disproportionate infringement of an individual's article 8 rights, it is much harder to show that the Rule itself is "inevitably unlawful" on article 8 grounds because (see ) "there will be some cases in which the interference is not too great". Lord Hodge (at ) stated that "[t]he court would not be entitled to strike down the Rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases". In the earlier decision of the Supreme Court in R (Quila) v Secretary of State for the Home Department  UKSC 45 Lord Wilson stated at  that "decisions founded on human rights are essentially individual" although in both cases the court recognised that it is possible that in an extreme case it can be shown that a rule is incapable of applying consistently with the ECHR in any individual case and is therefore invalid.
- For the reasons I have given at  –  above, I have rejected the common law challenges based on impropriety of purpose, irrationality, and failure to take into account a relevant consideration. Mr Wade stated that he was not suggesting that byelaws restricting mooring in the way that these byelaws do were ones that "could not be made". He thus accepted that these byelaws were capable of being lawful. In view of this, and since any infringement of article 8 in a particular case could be addressed by reading down the byelaws in accordance with the court's interpretative obligation under section 3 of the Human Rights Act 1998, it is difficult to see how the appellant could meet the high threshold needed to challenge the byelaws on article 8 grounds.
- I turn to the third issue; whether, on the assumption that article 8 is engaged, the interference with the position of boat users who, like the appellant, wished to moor for longer than 1 hour in 24 hours was proportionate. As emphasised by the Strasbourg Court in Chapman v United Kingdom at  in considering whether an interference is proportionate, "[t]he task of the court is to examine the application of specific measures or policies to the facts of each individual case" rather than examining the legislation and policy in the abstract. See also the statement of Lord Wilson in Quila's case to which I referred at  above that decisions founded on human rights are essentially individual. In the context of rights under the ECHR, moreover, it has been held that the court is concerned with whether human rights have in fact been infringed, not whether the decision-maker properly took them into account: see Belfast City Council v Miss Behavin' Ltd  UKHL 19,  1 WLR 1420 at 13] and , although cf Chapman v United Kingdom (2001) 33 EHRR 399 at  and R (Laporte) v Chief Constable of Gloucestershire Constabulary  UKHL 55 at ,  and .
- In the circumstances of this case, the fundamentally important point is that it is clear from the authorities that only in very exceptional cases can a person succeed in raising an arguable case that an interference with a right under article 8 is disproportionate where the individual has no right under domestic law to remain in possession of property: see Lord Hodge in R(N) v Lewisham LBC at  and the cases he cited, in particular Manchester City Council v Pinnock  UKSC 45.
- I do not consider that Pinnock's case can be distinguished on the ground that it related to the duties of a local authority in relation to the distribution and management of housing stock. The similarities and differences between the circumstances were identified in the second Couper case. Arnold J ( EWHC 265 (Ch.) at ) compared the position of a landowner such as the Port of London Authority in that case and the respondent in this case, and that of a local authority in relation to the management of its housing stock. He stated that the similarity was that in both cases the public authority seeking to remove a person or a person's boat was seeking to vindicate its rights as a landowner under article 1 of the First Protocol to the ECHR. He stated that the difference was that the Port of London Authority does not utilise its land to provide housing, but owns land and exercises its powers for the purposes of regulating navigation for the benefit of all users of the river. But he held that, in that case, the Port of London Authority was exercising a statutory regulatory responsibility in furtherance of a legitimate aim in the public interest, and (at ) that, had article 8 been engaged, any interference with the rights of Mrs Couper and her daughter was not disproportionate. In view of my conclusion on the irrationally and impropriety of purpose challenge the same can be said of the respondent in the present case.
- The authorities show that a trespasser will only be able to trump the rights of an owner or property by invoking article 8 in an exceptional case: see Manchester City Council v Pinnock,  UKSC 45,  2 AC 6, and London Borough of Hounslow v Powell  UKSC 8,  2 AC 186 and the summary by Etherton LJ, as he then was, in Thurrock BC v West  EWCA Civ 1435 at  – . This is particularly so where the owner is a public authority which holds the land for the general public good such as the respondent in this case. It follows that in my judgment an interference with article 8 rights such as that by the byelaws restricting the mooring of boats in certain places was not, in the circumstances of this case, disproportionate where the boats subject to the restriction were homes. There was no evidence that the effect of the byelaw would preclude the appellant from living on a boat in the borough. The judge found (case stated at [12(b)] that other permanent moorings were available in the borough and on the river. Moreover, in the present case the article 8 defence cannot be said to have been pleaded in a sufficiently particularised way to meet the high threshold required to make it seriously arguable: London Borough of Hounslow v Powell at  and  per Lord Hope. Accordingly, while it may be possible to envisage a situation in which byelaws concerning waterways are so restrictive that it becomes impossible to live on a houseboat in the local authority's area, that is not the position in the circumstances of these byelaws and this local authority.
- I would therefore answer the questions posed for this court in the following way:
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".
- For these reasons it follows that in my judgment this appeal must be dismissed.
Mr Justice Nicol:
- I agree.
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