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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brown, R (on the application of) v Canal River Trust [2012] EWHC 3133 (Admin) (16 November 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/3133.html Cite as: [2012] EWHC 3133 (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 :
____________________
THE QUEEN on the application of NICK BROWN |
Claimant |
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- and - |
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CANAL RIVER TRUST |
Defendant |
____________________
Iain Steele (instructed by Bates, Wells & Braithwaite, Solicitors) for the Defendant
Hearing dates: 18 October 2012
____________________
Crown Copyright ©
Mrs Justice Cox :
The Legal Framework
"(3) Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection the 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 shall think fit.
…
(8) The services and facilities referred to in subsection (3) of this section include, in the case of [the Board], the use of any inland waterway owned or managed by them by any ship or boat."
The term "ship" is defined in s.92 as including every description of vessel used in navigation. The term "boat" is not defined.
"(5) …; and any local enactment passed with respect to any such inland waterway, so far as that enactment –
(a) confers any public right of navigation over the waterway; or;
(b) imposes any duty to maintain that waterway for the purpose of navigation (including any duty to support, or maintain a supply of, water for the waterway for that purpose)
shall cease to have effect."
This provision needs to be read together with s.115(1), providing:
"(1) In sections 105 and 112 of this Act –
(a) references to any right of navigation over a waterway or canal include references to any right to use or keep any vessel or craft on the waterway or canal …"
"(1) It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway … unless a certificate, in this Act referred to as a 'houseboat certificate', in relation to it is then in force …"
If no certificate is in force, the Board has the power to serve a notice requiring the remedy of an unlicensed vessel being on the inland waterway belonging to or under the control of CRT. Provision was made for registration of houseboats in s.14 and, in s.15, for payment for registration and renewal of any houseboat certificate.
"(1) Notwithstanding anything in the Act of 1971 or the Act of 1974 or in any other enactment relating to the Board or their inland waterways, the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine …"
"Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless –
(a) the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;
(b) an insurance policy is in force in respect of the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and
(c) either –
(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or
(ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances."
Subsection (7) was simply a transitional provision that, for a specified period, restricted the Board's powers to refuse or withdraw a relevant consent held by certain boats prior to the passing of the 1995 Act.
"You must cruise in accordance with the British Waterways Act 1995. The Guidance for Boats without a home mooring is contained in Schedule 2 and this Guidance sets out what is required to comply with the British Waterways Act 1995."
The Present Claim
(i) The 2011 Guidance misstates the correct legal interpretation of s.17(3)(c)(ii) of the 1995 Act and the decision to publish it was therefore unlawful;
(ii) S.43(3) of the 1962 Act does not permit the Defendant to impose terms and conditions which go beyond the requirements of s.17(3);
(iii) The Defendant may at some point in the future be acting in breach of the Claimant's rights under Article 8 of the European Convention on Human Rights because the Guidance has a dramatic and direct impact on his private and family life;
(iv) In publishing the 2011 Guidance the Defendant acted in breach of the Equality Act 2010.
"1.3 … the final version of the revised form of the BW policy document entitled 'Guidance for Boaters Without a Home Mooring' dated September 2011 and published by BW on 14th September 2011 ('the 2011 Guidance')."
The response from the Defendant, dated 10 October 2011, stated at paragraph 21,
"[I]t is wholly accepted that the decision was made to publish the 2011 Guidance in early September 2011 and that is the decision you are challenging."
However, the Claimant did not in fact issue his claim until 11 January 2012 which is almost four months later. His claim is, therefore, considerably out of time.
(i) The Lawfulness of the 2011 Guidance
"This Guidance does not have the force of law but seeks to interpret the law as set out in s.17 British Waterways Act 1995. The language of the Act is generic and, as with all statutes, requires interpretation. The Guidance is based on professional legal advice, including from Leading Counsel, and is believed by BW to reflect the correct legal interpretation of the Statute. The Guidelines issued in 2008 were considered by the court in the case of British Waterways v Davies in the Bristol County Court. The Judge expressly found that Mr Davies' movement of his vessel every 14 days (whilst remaining on the same approximate 10 mile stretch of canal between Bath and Bradford on Avon) was not bona fide use of the vessel for navigation. These Guidelines have been updated and refined in the light of that judgment."
"It seems to me a question of fact and circumstance whether anchoring is an episode or incident in the course of navigation or whether it marks the termination of a passage or voyage and the ship cannot any longer be held to be in course of navigation or being navigated. …
In my opinion the basic concept of the word 'navigation' is of passage or transit through navigable waters whether they be tidal or non-tidal … As Mr Weir put it, in the concept of the word 'navigation' is the essential notion or idea of passage, of movement in, and communication, by sea or, I would add, in all navigable waters. By the Oxford Dictionary 'navigation' is defined as 'the action of navigating: the action or practice of passing on water in ships or other vessels.' The underlying concept is clearly one of movement as opposed to rest."
"Importantly, short trips within the same neighbourhood, and shuttling backwards and forwards along a small part of the network, do NOT meet the legal requirement for navigation throughout the period of the licence."
Reference is made in the footnote to that section of the Guidance to the Judge's finding in the Davies case that moving a vessel every 14 days on a 10 mile stretch of canal between Bath and Bradford on Avon was not use of the vessel bona fide for navigation.
"'Place' in this context means a neighbourhood or locality, NOT simply a particular mooring site or position …
What constitutes a 'neighbourhood' will vary from area to area – on a rural waterway a village or hamlet may be a neighbourhood and on an urban waterway a suburb or district within a town or city may be a neighbourhood. A sensible and pragmatic judgement needs to be made.
It is not possible (nor appropriate) to specify distances that need to be travelled, since in densely populated areas different neighbourhoods will adjoin each other and in sparsely populated areas they may be far apart (in which case uninhabited areas between neighbourhoods will in themselves usually be a locality and also a 'place').
Exact precision is not required or expected – what is required is that the boat is used for a genuine cruise."
"Circumstances where it is reasonable to stay in one neighbourhood or locality for longer than 14 days are where further movement is prevented by causes outside the reasonable control of the boater.
Examples include temporary mechanical breakdown preventing cruising until repairs are complete, emergency navigation stoppage, impassable ice or serious illness (for which medical evidence may be required)."
"I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear."
S.43(3)
Article 8
"Enforcement of the legal requirements will be based on observations by BW. If initial observations indicated insufficient movement to meet the legal requirements, the boater(s) will be advised why the observed movement is considered insufficient and be asked to keep adequate evidence of future movements. Failure then to meet the movement requirements, or to provide evidence of sufficient movement when requested by BW, can be treated as a failure to comply with s.17 of the 1995 Act. After fair warning the boat licence may then be terminated (or renewal refused). Unlicensed boats must be removed from BW waters, failing which BW has power to remove them at the owners cost."
Equality Act 2010
Costs