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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Moore v British Waterways Board  EWHC 182 (Ch) (10 February 2012)
Cite as:  EWHC 182 (Ch),  1 WLR 3289
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Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| NIGEL PETER MOORE
|- and -
|BRITISH WATERWAYS BOARD
Mr Christopher Stoner QC (instructed by Shoosmiths) for the Defendant
Hearing dates: 1, 2, 3, 4, 7 November 2011
Crown Copyright ©
|(1) An overview of the issues||1-5|
|(2) The Preliminary Issues already decided||6-8|
|(3) Scope of this Trial||9-19|
|(4) The part of the GUC in question||20-25|
|(5) The basis of Public Rights of Navigation||26-30|
|(6) The geography of the alleged mooring area||31-37|
|(7) More detail as to the relevant vessels and their location when notices were served||38-50|
|(8) The form of the notices served||51-53|
|(9) The proper classification of the vessels||54-60|
|(10) Section 43 of the 1793 Act and its interpretation and effect||61-68|
|(11) PRN and the riparian rights asserted||69-70|
|(12) Whether there are any other provisions of the 1793 Act that assist the Claimant||81-87|
|(13) An alternative case advanced by the Claimant in relation to the Thames Conservancy Act, 1857||88-92|
|(14) Claimant's case based on limitation of BWB's statutory authority||93-94|
|(15) The principles of statutory construction urged by the Defendants||95|
|(16) Relevant parts of the legislation chronologically discussed||98-131|
|(17) The Claimant's construction of these provisions||132-139|
|(18) BWB's construction and my conclusions||140-167|
|(19) Whether BWB had a collateral purpose||168-185|
|(20) Whether the Claimant had legitimate expectations that were ignored or overridden||186-204|
|(21) Human Rights||205-215|
|(22) BWB's breaches of undertakings||216-230|
Mr. Justice Hildyard :
The Preliminary Issues already adjudicated
i) Preliminary Issue (1): whether the rights concerning the waterway between Bax's Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793 ("the 1793 Act") remain in force and unaffected by the provisions of the Transport Act 1968 ("the 1968 Act"); to which Mr Mann QC answered (though doubting that an answer was necessary in light of his other conclusions) that the private right of navigation, which he described as having been granted by section 43 of the 1793 Act, was repealed by the 1968 Act.
ii) Preliminary Issue (2): whether the GUC extends down stream to the mouth of the River Brent into the mouth of the River Thames; to which Mr Mann QC answered: Yes.
iii) Preliminary Issue (3): whether the BWB is the relevant statutory navigation authority for that element of the GUC which now or formerly comprised tidal waters of the River Brent; to which Mr Mann QC answered: Yes.
iv) Preliminary Issue (4): whether a public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation; to which Mr Mann QC answered: No.
The scope of this Trial
i) BWB does not rely upon any common law right of ownership to justify the serving of the section 8 Notices; and
ii) The Claimant does not assert or rely upon a claim to ownership of the bed of the River Brent/GUC as entitling him to moor any vessels.
The factual context: the area of the GUC in question
The tidal nature of the relevant stretch of the GUC and public rights of navigation
The relevant geography
The factual context: the location of the vessels the subject of the disputed notices
The form of the Section 8 Notices as served
"NOTICE PURSUANT TO SECTION 8(2) BRITISH WATERWAYS ACT 1983 SUNK, STRANDED ABANDONED OR UNAUTHORISED CRAFT"
"The Board hearby [sic] give you notice that you are required to remove the craft [the words (from its present location) are then deleted] (from the board's property) by the 18 Aug 07 (date). If you fail to do so the Board will remove it and section 8, British Waterways Act 1983, which is printed overleaf and forms part of this notice will apply.
If you have any query regarding this notice please contact the following person quoting reference "
Classification of the vessels the subject of the disputed notices
"It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway (whether or not the houseboat shall have been so moored or placed before the passing of this Act) unless a certificate, in this Act referred to as a "houseboat certificate", in relation to it is then in force…"
Section 43 of the 1793 Act: rights reserved and the questions it raises
"And it be further enacted, that, (1) in making, forming and continuing the line of the said intended canal, in, along, or near the said River of Brent, or any part thereof, no embankment shall be made, or other thing done, whereby, or by means whereof, the free navigation of the River of Brent, as heretobefore anciently used and enjoyed, may or shall be prevented, impeded, or hindered, or the houses, warehouses, wharfs, lands tenements, and grounds, on the banks, or near adjoining to, the said River of Brent, shall be injured; but that (2) it shall and may be lawful, to and for the owner, proprietors, possessors, and occupiers, of the several houses, warehouses, wharfs, lands, tenements, and grounds, on, along, or near adjoining to, the said River of Brent, to have the full free and uninterrupted use and enjoyment thereof, and the Navigation of the said canal, and also of the said River of Brent, as heretobefore used, and enjoyed, by them and their predecessors; and that (3) nothing in this Act contained shall extend, or be construed to extend, to charge or make the said owners, proprietors, possessors, and occupiers, of such houses, warehouses, wharfs, lands, tenements, and grounds, liable to the payment of any tolls, rates, or duties, whatsoever, upon account of, and for any goods, wares, and merchandises whatsoever, carried upon the said canal, or upon the said River Brent, or upon account of any barges, or other vessels navigating the said canal, or the said River Brent, in such part of the said river and line of the said proposed canal, as lie within the parishes of Hanwell, Isleworth and Ealing, between the mill in the occupation of Richard Bax and company, and the junction of the said canal and river with the river of Thames, or to the payment of the toll or duty of One halfpenny per ton, hereinafter made payable for goods and other things passing into or from the River Thames, provided such goods and other things shall not be navigated upon any part of the said canal, between the said mill, in the occupation of Richard Bax and company and Braunston aforesaid: And that (4) the said company of proprietors shall not, in the making, forming and continuing, of the said intended canal, or embankment, of the said River of Brent, cause the waters thereof to be so much raised, as to overflow, injure, or in any way damage the houses, warehouses, wharfs, lands, tenements, or grounds, lying near to the said River of Brent"
"The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the pubic; and the plaintiffs can claim nothing which is not clearly given to them by the Act."
i) it (by its first limb) prohibited any prevention, impeding or hindrance of (a) PRN or (b) injury to the properties along or near the River Brent during the making, forming and continuing of the line of the canal;
ii) (by its second limb) confirmed and ratified rights which, before the construction of the canal, owners, proprietors, possessors and owners of houses, warehouses, wharfs, land tenements and grounds already did enjoy, including full, free and uninterrupted use and enjoyment of (a) PRN and (b) any other rights they had or appurtenant to their land on, along or near adjoining to the River Brent (which I interpolate would most relevantly include riparian rights);
iii) clarified that nothing in the Act should be taken to allow any tolls, rates or duties for the carriage of goods, wares and merchandise, or "upon account of any barges or vessels navigating the said canal, or the said River Brent " within the relevant stretch of water; and
iv) prohibited the making, forming or continuing of the canal or embankment in such a way as to cause damage of any kind to houses, wharehouses, wharfs, lands tenements or grounds lying near the River of Brent;
v) read as a whole, conferred nothing that was not already enjoyed by the persons affected, but confirmed rights previously enjoyed and protected them from encroachment and interruption.
i) What is comprised within the right of PRN or "free navigation"?
ii) What is comprised within the right to have "the full, free and uninterrupted use and enjoyment of their several houses etc., as hereto before used…" and in particular whether the rights include any right to moor?
iii) Whether the preservation and confirmation of free use of these rights makes it lawful to enjoy and use such rights without a license;
iv) Whether subsequent legislation has eroded or altered any of the above.
Whether there are any other provisions of the 1793 Act that assist the Claimant
"the ground and soil of every port, haven and arm of the sea, creek, pool and navigable river thereof, into which the sea ebbed and flowed…belonged to Her Majesty, and Her Majesty had a right of empire or government over the navigable rivers of this Kingdom, and that Her Majesty and her predecessors, time out of mind, was and has been seised, in right of the Crown of England, of the port and haven of the river Thames (the same being an arm of the sea, into which the sea has always flowed and re-flowed), and that the same river was also, and from time immemorial had been, an ancient royal and navigable river and King's highway for all persons with their ships, vessels, and baits and crafts to pass, re-pass, and navigate at their free will and pleasure, and to moor their vessels in convenient parts of the river, not impeding the navigation." [My underlining]
The Claimant's case based on the limitation on BWB's statutory authority in tidal stretches of the GUC
BWB's statutory powers: the legislation from which they are derived
(1) by section 16(2) the BTC was empowered to make
"byelaws regulating the use of the canal and the conduct of all persons…who shall be on the canal for all or any of the following purposes:…
(c) for regulating the loading, discharging and mooring of vessels using the canal…"
(2) "Canal" was defined as meaning
"any canal or inland navigation belonging to or under the control of the BTC…"
This definition, and the uncertainty of the words of extension, has bedevilled analysis and precise identification of the true scope of the relevant regulatory powers, and had later to be clarified in the British Waterways Act 1975 (as will be seen later).
(3) Section 16(6) stipulated that any byelaws made by the BTC should not come into operation until confirmed by the Minister. Suffice it to say that there is no byelaw relevant to the adjudication of this dispute, although it is right to note that new Bye-Laws pursuant to section 16 of the 1954 Act are proposed which are intended to empower BWB to prohibit and control mooring in a waterway it controls or manages. It is also right to note the Claimant's contention in this regard that the perceived necessity and the explanation of the need for such new Bye-Laws demonstrates BWB's understanding of its lack of power at present; and the explanation offered by BWB, that "Compliance with notices controlling mooring is currently enforced through licence conditions" is further relied on by the Claimant as confirming his point.
"It shall be the duty of the [BWB] in the exercise of their powers under this Act to provide to such extent as they may think expedient –
(a) services and facilities on the inland waterways owned or managed by them, and
(b) port facilities at any harbour owned or managed by them, and to have due regard to efficiency, economy and safety of the operation as respects the services and facilities provided by them."
"(1) Subject to this Act,-
(a) All charges schemes under Part V of the Transport Act, 1947, shall cease to have effect, and
(b) No local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them-
(i) for the carriage of passengers or goods,
(ii) for the use of any railway, or of any inland waterway by any ship or boat,
(iii) for services and facilities connected with the carriage of passengers or goods, or with the use of any railway, or of any inland waterway by any ship or boat, or
(iv) for services and facilities in or connected with a harbour,
(whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the Boards.
(2) Paragraph (b) of the foregoing subsection shall not be read as exempting the Boards from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge.
(3) Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the British Waterways Board shall have power to demand, take and recover or waive such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit
"(8) The services and facilities referred to in subsection (3) of this section include, in the case of [BWB], the use of any inland waterway owned or managed by them by any ship or boat. ["Ship" is defined in the same Act as including "every description of vessel used in navigation".]"
"There are no public law provisions concerning moorings along [BWB's] canals. That is entirely a matter for management by [BWB] as property owners."
"All rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the Act of 1793 to which you refer) were abolished by section 105 of the Transport Act 1968. Section 115 of that Act defines the "right of navigation" that is abolished as including "any right to use or keep any vessel or craft on the waterway or canal.
Accordingly any vessel used or kept on a BW waterway must be licensed and lawfully moored in accordance with the provisions of the British Waterways Act 1995."
i) Section 5(1) states that "It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway unless a certificate, in this Act referred to as a "pleasure boat certificate", in relation to the pleasure boat is then in force or unless there is then in force in relation to it a licence issued by the [BWB] allowing the use of all inland waterways without further payment".
ii) Section 5(2) provides for breach to be an offence and for a fine to apply.
iii) "River waterway" is defined in section 4(1): it is the "main navigable channel" of each of the inland waterways specified in Schedule 1 to the 1971 Act.
iv) Section 6(1) provides for the registration of any pleasure boat upon payment of a prescribed charge and for a certificate of registration bearing a designated number, and for such certificate to be subject to "compliance by the applicant with the terms of any enactment relating to a river waterway".
v) Section 13(1) provides that "It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway (whether or not the houseboat shall have been so moored or placed before the passing of this Act) unless a certificate, in this Act referred to as a "houseboat certificate" in relation to it is then in force. The subsection contains a proviso that nothing in it is to prejudice or affect any obligation to obtain local authority consent(s).
vi) Section 13(2) provides for the BWB, in the event of a breach of section 13(1), to give notices requiring the person having control of the houseboat "to remove or demolish it and to clear and restore the surface of that part of the inland waterway from or on which the houseboat has been removed or demolished or to comply with the condition imposed."
vii) Section 13(3) imposes a fine for failure to comply with a notice.
viii) Section 13(3)(c) provides for costs and expenses incurred by the BWB in connection with removal or demolition and clearance and restoration to be recoverable.
ix) Sections 14 and 15 and 16 provide respectively for (a) the registration of houseboats and the issue of numbered certificates, (b) for charges for such certificates and (c) for persons having control of a houseboat to produce a houseboat certificate on demand, with a fine for contravention.
"8.—(l) In this section—
"owner" in relation to any relevant craft means the owner of the relevant craft at the time of sinking, stranding or abandonment and includes a person letting a vessel for hire, whether or not that person owns the vessel; "relevant craft" means any vessel which is sunk, stranded or abandoned in any inland -waterway or in any reservoir owned or managed by the Board or which is left or moored therein without lawful authority and includes any part of such vessel.
(2) The Board may remove any relevant craft after giving not less than 28 days' notice to the owner of the relevant craft, stating the effect of this section.
(3) All expenses incurred by the Board in—
(a) the removal, storage or destruction of the relevant craft;
(b) the removal or storage of any furniture, tackle and apparel of the relevant craft, or any cargo, goods, chattels and effects on board the relevant craft; or
(c) marking, watching, buoying or otherwise controlling the relevant craft; may be recovered by the Board from the owner of the relevant craft.
(4) If within six weeks of its removal by the Board any relevant craft cannot be proved to the reasonable satisfaction of the Board to belong to any claimant, it shall, together with any furniture, tackle and apparel and any cargo, goods, chattels and effects on board, vest in the Board: Provided that, if within twelve months of its removal a claim to the relevant craft is made by a person who subsequently proves that he is the owner thereof, the Board shall, if the relevant craft is unsold, permit the owner to retake it with any furniture, tackle, apparel, cargo, goods, chattels and effects on board upon payment of the expenses referred to in subsection (3) of this section or, if the relevant craft and the furniture, tackle and apparel and any cargo, goods, chattels and effects on board have been sold, the Board shall pay to such owner the amount of the proceeds of such sale after deducting the said expenses, and in case such proceeds shall be insufficient to reimburse the Board such expenses the deficiency may be recovered by the Board.
(5) Notwithstanding the provisions of this section the Board may at any time move without notice a relevant craft if it be an obstruction or a source of danger."
"(1) No person shall moor or otherwise leave a vessel on an inland waterway so as to cause obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside the inland waterway."
"moored or lying in such a position as is likely to interfere with any dredging, repairs, maintenance works, or any other works or operation of the Board, or any works or operations proposed to be carried out by any other authority or body in pursuance of any statutory functions, the [BWB] may serve on the owner of such vessel a notice requiring him within 28 days…to remove such vessel for such time as BWB or such other authority or body may reasonably require for the completion of such works or operations."
"For the purposes of this section a vessel shall not be deemed to be unlawfully moored solely by virtue of its being moored or allowed to remain in contravention of a notice served under subsection (1) above."
The Claimant's construction of these provisions
BWB's approach to and construction of the legislation
"In so far as [the Claimant] does not have an entitlement to moor a vessel alongside the canal bank in which he is in possession, [BWB] relies upon the aforementioned regulatory regime as having entitled it to serve notice pursuant to s.8 of the 1983 Act requiring 'Gilgie' (and the other relevant vessels) to be removed from waters owned or managed by it. This is because absent any reliance on a 'right' protected by s43 [of the 1793 Act], in circumstances where 'Gilgie' is plainly not exercising a public right of navigation the vessel is subject to [BWB's] regulatory powers without qualification or question.
In so far as [the Claimant] can, contrary to the submissions previously identified, establish a 'right' which at first blush was protected by s43 of the 1793 Act, it is [BWB's] stance that the effect of s.43 has been implicitly repealed by and to the extent of the various regulatory provisions identified in the various Acts as the provisions in those Acts, which plainly apply to 'inland waterways' without savings are plainly inconsistent with the provisions of the subsequent British Waterways Acts: see Bennion on Statutory Interpretation (5th Ed. 2008) at pages 304-307."
""Left or moored therein without lawful authority" can only be interpreted as moored against the law, and where there is no law there is no offence. Other than the two Bye-Laws, a boat can now [since the 1995 Act] be considered "unlawfully" moored only if creating an obstruction or danger to navigation." [My interpolation]
Had BWB an improper collateral purpose?
"In July 2007 it was decided that as none of the boats had moved for a period of over 4 months it was necessary to commence enforcement action against them…"
"I think (subject to resources) that we start enforcement action against this boat [as I understand it, the vessel 'Kalzar']. If I had the resources now I would section 8 it and snatch it'. [My interpolation.]
Breach of the Claimant's legitimate expectations?
i) BWB's stated practice (also evidenced by the standard letters exhibited by Mr Johnson) were such as to generate a legitimate expectation of prior warning, at least in the case of 'live-aboards';
ii) it is sufficient that BWB had in fact adopted such a practice; the legitimate expectation in issue is procedural, rather than substantive; in such a context, no reliance on a representation need be shown; but in this case, I would accept the Claimant's evidence that in fact he knew of, and with such knowledge would legitimately have expected compliance with, BWB's published standard practices;
iii) it is not a sufficient answer for BWB to say that in the event there has been time for consultation; I consider that the relevant time to assess BWB's conduct, and its compliance with its own procedures, falls to be tested before and at the time that the notices were served. BWB cannot rely on the Claimant's challenge to justify or rescue it from its own failure to abide by its own prescribed procedures;
iv) in proceeding without warning, and therefore without affording the Claimant the opportunity to make clear his status before BWB committed themselves to section 8 notices, BWB took the risk that they may have misunderstood the position, and cannot complain if the risk eventuated and they found themselves in breach of their own procedures.
Infringement of Human Rights?
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
"It is the fact that I have every respect for the scope of Mr Johnson's knowledge that underlies my accusation that he knowingly abused his position in attempting to steam-roller us off the system and render us homeless.
Under the circumstances I believe that Mr Johnson and his legal and enforcement teams pursued this attempt in the full knowledge that they had no Statutory powers to do so and were in violation of the human rights of all concerned to their homes, property and quality of life."
Breach of Undertakings by BWB
"not to interfere with or remove the boats name [sic] as 'Platypus', 'Gilgie', 'Kamelya', 'Ere-Comes-Trouble', 'Kalzar' and 'Saifti' from their current locations on the River Brent/Grand Union Canal at Brentford until such time as…"
(the time specified being until agreement between the parties, failing which adjudication by the court of BWB's relevant statutory powers). The Claimant withdrew his application to Court for injunctive relief on the faith of that undertaking.
"on the basis that (1) it had moved from its previous location….and (2) he did not appreciate that the undertaking continued to apply…since the vessel had moved away from its original location."
"The breach of the court undertaking was unintentional but notwithstanding that I apologise unreservedly to both the Claimant and the Court for the breach."
i) no licence is legally required for a vessel bona fide used for navigation exclusively on tidal stretches of the GUC which have not been designated as river waterways specified in or further to the 1971 Act: the PRN recognised by the 1793 Act still applies: and the relevant stretch of the GUC for the purposes of this action has been agreed to be tidal;
ii) it is unlawful to moor, place, keep or maintain a vessel which is not bona fide used for navigation on the GUC (including tidal stretches) or any inland waterway unless a houseboat certificate is in force and displayed in accordance with section 13 of the 1971 Act;
iii) unless 'Gilgie' or the other vessels concerned were not and are not used bona fide for navigation, so that they fall to be classified as 'houseboats', and if they were only used in tidal stretches of the GUC, they did not require and thus did not lack at the relevant time (when the section 8 notices were served and re-served) any 'relevant consent' for the purposes of section 17 of the 1995 Act; and BWB has not sought to serve or justify the section 8 notices on the basis that the vessels were houseboats lacking a houseboat certificate (though they may do so in the future);
iv) if a vessel is to be kept or used for navigation on any part of the GUC other than its tidal stretches then it must be registered and certificated as a pleasure boat (unless certificated as a houseboat or licensed by BWB to use all inland waterways), and its name and number must be conspicuously displayed, and its certificate produced on demand: otherwise its keeping or use is unlawful;
v) it having already been decided that PRN do not confer any right to moor, except temporarily, the Claimant has not demonstrated any other right to moor permanently, whether in right of riparian ownership, possession of a riverbank or wharf, or under the 1793 Act, or otherwise;
vi) 'Gilgie' and other vessels in the care of the Claimant permanently moored without a right to do so were and remain subject to the navigational authority of BWB, and in particular, to section 8 of the 1983 Act;
vii) The Claimant has not provided sufficient evidence to support the conclusion he urged that BWB was using its powers under section 8 for an improper collateral purpose, namely to further its collaboration with a developer;
viii) However, in serving section 8 notices BWB failed to abide by its own procedures, and was in breach of legitimate expectations held by the Claimant that in exercising a power admitted by BWB to be draconian and to be used only as a last resort BWB would abide by such procedures;
ix) 'Gilgie', being presently the Claimant's home, my provisional view is that his Article 8 rights have been infringed;
x) I will, however, permit further argument as to that provisional conclusion and as to the appropriate relief (if any) in respect of (ix) and (x) at the hearing for delivery of this judgment;
xi) BW was in breach of the undertaking it gave to the Court; but this was inadvertent and has now been explained, and no further action is required.