Mrs Justice Asplin :
- This is a dispute between Mr Leigh Ravenscroft, the owner of a boat named "The Three Wise Monkeys" and the Canal & River Trust (the "CRT"). On 27 January 2015, the CRT removed the "Three Wise Monkeys" from its mooring on the River Trent at Farndon Ferry, Newark, Nottinghamshire and put it in storage in Chester. It was returned to Mr Ravenscroft on 6 May 2015 on payment of £8,176.
- Mr Ravenscroft contends that CRT had no power to remove "The Three Wise Monkeys" from the River Trent because it was moored in a part of the river which did not constitute the "main navigable channel". He says therefore, that the powers in section 8 British Waterways Act 1983 (the "1983 Act") did not apply. Mr Ravenscroft seeks various declarations in that regard to the effect that the seizure of the vessel was unlawful, the term "main navigable channel" having the same meaning as it does in the British Waterways Act 1971 (the "1971 Act") and the Transport Act 1968 (the "1968 Act"). He also seeks a refund of the sum of £8,176 and compensation.
- If he is wrong about the ambit of the "main navigable channel", Mr Ravenscroft says that the removal of his vessel from the River Trent was a step which was disproportionate, unnecessary and contrary to Article 1 of Protocol 1 of Human Rights Act 1998. He seeks a declaration to that effect, together with such relief or remedy under that Act as the Court thinks fit.
- Further, and in any event, Mr Ravenscroft contends that the CRT took the "Three Wise Monkeys" and used it unlawfully to distrain for licence fees. He seeks a declaration to that effect, a refund of the removal and storage charges of £6,490.80 and "subsequent costs" together with such compensation as the Court considers just and appropriate
- At paragraph 17 of the Amended Particulars of Claim, under the heading "Damages", Mr Ravenscroft refers to having "lost an agreed sale" as a result of the seizure of his boat and having "been unable to find a buyer since storing it on a nearby farm at a continuing cost." No particulars of loss are provided. There is reference in Mr Ravenscroft's witness statement, however, to having agreed to sell the boat on 30 December 2014 for £28,000, subject only to an out of water survey. Further, at paragraph 18 reference is made to having paid "4 years of pleasure boat registration, totaling £1,685.20 even for years I did not own the boat" and at paragraph 20, having had to borrow money in order to "retrieve my boat and pursue this claim". No particulars are provided of the alleged loss as a result of borrowing money, nor are details set out in Mr Ravenscroft's witness statement. However, in his witness statement, Mr Ravenscroft refers to having had to sell the boat at a loss to repay funds borrowed in order to secure its return. He makes no reference, however, to not having been the owner of the boat during the relevant four year period.
- Although it is not pleaded, in his witness statement, Mr Ravenscroft also refers to the front and rear canopies of the boat having been ripped off. However, in cross examination, Mr Ravenscroft accepted that no damage was caused to the vessel when it was taken from the water, other than peripheral scratches to the paintwork and forcing of studs on the canopy which was easily remedied. There is no evidence before the Court as to any loss in that regard.
- CRT is the statutory successor to the British Waterways Board (the "BWB") and pursuant to the British Waterways Board (Transfer of Functions) Order 2012 (SI 2012/1659) all references to the BWB in the legislation with which this matter is concerned are to be construed as references to the CRT. The CRT is a charitable body and the navigation authority for certain inland waterways in England and Wales. It is not in dispute that that stretch of the River Trent upon which the "Three Wise Monkeys" was moored is such an inland waterway by virtue of section 4 and Schedule 1 to the 1971 Act as amended. The reference in the schedule to the 1971 Act is to "The Trent Navigation from the tail of Meadow Lane Lock, Nottingham to Gainsborough Bridge." The extent of the River Trent to which section 4 of the 1971 Act applies was extended by virtue of section 36(2) British Waterways Act 1974 to include:
"The Trent Navigation from Shardlow to the tail of Meadow Land Lock, Nottingham, by way of the Beeston Canal and part of the Nottingham Canal and including the branch to the river Soar and the length of the river Trent from its junction with the Nottingham Canal to Beeston Weir."
- When known as the 'Grandma Molly', the "Three Wise Monkeys" had a "pleasure boat" certificate issued by the BWB. That certificate expired on 30th June 2011. It is not in dispute that the vessel has not had a pleasure boat certificate or other form of 'relevant consent' since. CRT's evidence (which is disputed) is that prior to its removal from the River Trent, various notices were served both on the vessel itself and on Mr Ravenscroft at his last known address but that no response was received.
- Mr Ravenscroft is a litigant in person. By an order of Chief Master Marsh dated 14 September 2016, Mr Ravenscroft was granted permission to have the assistance of Mr Nigel Moore as a McKenzie Friend and Mr Moore was granted rights of audience. Mr Moore is a person who appears to have extensive knowledge about the regulation of the inland waterways and to have an interest in pursuing issues on behalf of boaters. At the beginning of the hearing before me I asked Mr Ravenscroft if he wanted Mr Moore to continue to speak on his behalf and if so, why. He explained that he is dyslexic and could not carry out the task himself. I therefore, did not consider it necessary to vary the order of Chief Master Marsh.
- The CRT was represented by Mr Stoner QC.
- The evidence was contained in witness statements of: Mr Ravenscroft dated 12 January 2017; Mr Stuart Garner, an enforcement officer on behalf of the CRT, dated 10 January 2017; Mr Michael Grimes, Head of Boating at the CRT but who has since left that employment and whose evidence was adopted by Mr Thomas Deards, the CRT Head of "Legal" in his first witness statement of 22 March 2017 and Mr Deards' second witness statement of 8 May 2017.
- The majority of Mr Ravenscroft's witness statement is concerned with the events which occurred at the Farndon Ferry Marina on 27 January 2015 when the "Three Wise Monkeys" was removed from the water and he, his father and a number of others confronted Mr Garner, the CRT Enforcement Officer. In that regard, I was also shown extracts from a video which was taken by someone at the scene. Mr Ravenscroft also deals with the sequence of events after the vessel was seized.
- Mr Moore also provided me with a number of Google Earth images. They were: an aerial view of the Trent Navigation at Farndon Ferry and its environs; a close up aerial view of the Farndon Ferry area itself; a stretch of the River Trent showing a pontoon stretching out some distance almost to a dotted line imposed down the centre of the river; an aerial view showing boats moored in a river close to the bank; and an aerial view of a stretch of the River Thames showing boats moored in the centre of the river in the lee of an island, also in the centre of the river.
- Mr Garner's evidence relates for the most part to the notices served in relation to the "Three Wise Monkeys" and the events at the Marina on 27 January 2015. Mr Grimes' evidence which was adopted by Mr Deards, contains general information about the management of waterways by the CRT.
- Mr Garner says that on 1 June 2012, the BWB sent a letter to the owner of the land at Farndon Ferry, requesting details of the owner of the vessel. No response was received. He goes on to say that on 17 July 2012, a patrol notice was served on the boat stating the owner should apply within 14 days for a licence and requested that the owner contact the relevant Enforcement Officer. Further, on 9 August 2012 notice was served pursuant to section 8(2) British Waterways Act 1983 requiring the boat to be removed. Mr Garner states that the notice was served both on the boat itself and at Mr Ravenscroft's last known address. Thereafter, a further patrol notice was served on the boat and by post at Mr Ravenscroft's address on 17 October 2012.
- On 14 February 2014, Mr Garner wrote a letter to Mr Ravenscroft referring to a patrol notice dated 17 July 2012. He stated:
"We have still not received your completed application within the time specified and I have therefore today served notice under section 8 of the British Waterways Act 1983 (copy enclosed) which requires you to remove your boat from inland waterways owned or managed by British Waterways within 28 days. If you fail to do this we will immediately being the process of removing your boat at your expense.
You have 28 days to obtain your licence and you need to allow 14 days for us to process your application, so you must submit your application within the next 2 weeks in order to avoid your boat being removed."
The notice itself is headed "Notice Pursuant to section 8(2) British Waterways Act 1983 Sunk, Stranded, Abandoned or Unauthorised Craft". It makes no mention of arrears of licence fees.
- Thereafter, on 1 July 2014, Mr Garner says that he served a further patrol notice on the boat in which it was stated that the boat was on a waterway without permission and was not displaying a licence. It also stated that a licence should be applied for within 14 days. On 15 July 2014, a further section 8 notice was served on the boat and by recorded delivery at Mr Ravenscroft's last known address. The notice included the reference to the boat's new name, the "Three Wise Monkeys". The notice served by post was returned marked "not called for". A final patrol notice in the same form as before, was served on the boat on 3 September 2014.
- Copies of all the relevant notices and correspondence are exhibited to Mr Garner's evidence together with photographs of the vessel with notices attached to it dated 9 August 2012, 14 February 2014 and 15 July 2014 and a photograph of the interior of the vessel dated 27 January 2015 which shows a bundle of unidentified papers on a surface in the cabin.
- No response having been received from Mr Ravenscroft in relation to any of the notices, on 27 January 2015, the "Three Wise Monkeys" was removed from the water at the Marina, as I have already mentioned. It is not disputed that during heated scenes at the Marina, at which the police were present, Mr Ravenscroft's father offered to pay any arrears of licence fees and that Mr Garner quoted a ball park figure of £8 - 9,000 odd which was inclusive of removal and haulage charges together with arrears of licence fees.
- Thereafter, on 10 February 2015, Mr Ravenscroft applied to the Nottingham County Court for an injunction to prevent CRT from selling or disposing of the boat. Those proceedings were withdrawn and Mr Ravenscroft was ordered to pay CRT's costs in the sum of £4,500 odd.
- On 16 February 2015 in an email from Helen Underhill on behalf of CRT to Mr Ravenscroft's then litigation assistant, Ms Tracy Thomas, CRT set out removal and storage fees of £6,078 and four years of licence fees and quoted a total amount outstanding of £7,763.20. Thereafter, by a letter dated 10 March 2015, from Shoosmiths, solicitors acting on behalf of CRT to Ms Thomas on behalf of Mr Ravenscroft, CRT stated:
". . .
In early March 2015 and at your request, CRT provided you with details of the removal and storage charges incurred by them, which are payable by Mr Ravenscroft under section 8(3) of the Act. We again attach details of the same for your records. Removal and storage charges total £6,630.00 as of Today's [sic] date. Storage charges will continue to accrue at a rate of £45 + VAT per week until such a date that said expenses have been paid in full, upon which CRT will release to Boat [sic] to Mr Ravenscroft in accordance with section 8(4) of the Act.
In addition, Mr Ravenscroft owes CRT £1,685.20 in respect of Licence Fees payable from 1 July 2011 to 30 June 2015, as outlined previously to you and in the attached. Therefore, the total amount outstanding is £8,315.20. . ."
- However, in a subsequent email of 19 March 2015, from Lucy Gray of Shoosmiths to Ms Thomas on behalf of Mr Ravenscoft it was stated that arrangements would be made to deliver the vessel to Mr Ravenscroft on payment of £12,676 which was itemised below. The figure included both removal and storage costs and arrears of licence fees. An email in similar form also quoting the figure of £12,676 was sent on 2 April 2015. Thereafter, on 12 April 2015, Mr Ravenscroft emailed Lucy Gray stating that he would pay the £12,676 figure less the costs of the injunction proceedings being £4,500. He stated therefore, that he proposed to pay £8,176, albeit under protest and that he did not accept that the CRT was entitled to hold the vessel as a lien in respect of arrears of licence fees. The money was paid and the vessel returned to an address of Mr Ravenscroft's choosing on 6 May 2015, before the action was commenced.
- In the circumstances of this case, and the nature of the relevant issues to which I refer below, to further the overriding objective, only limited cross examination took place. Nevertheless, I asked for a list of matters contained in evidence which are challenged albeit not addressed in cross examination. Those lists are appended to this judgment.
- In cross examination, Mr Ravenscroft accepted that his postal address remained the same as that which he had given for the purposes of obtaining a pleasure boat licence prior to 2011 and which had been used in relation to all notices other than the patrol notices served on the vessel itself. He said that he had either lived at the address at all material times, or when it was rented out he had used it as his postal address and asked tenants to pass his mail on. However, he denied receiving any of the notices sent to his address. It seems to me that on the balance of probabilities and in the light of the fact that only one of the notices was returned by the Post Office, that it is more likely than not that the remainder of the correspondence sent to Mr Ravenscroft's address was received by him and I am unable to accept his evidence in this regard.
- Mr Ravenscroft also accepted that he was on the vessel most days in 2014 whilst he was painting and refurbishing it. He stated that he saw patrol boats but that they never pulled over to the "Three Wise Monkeys". He was shown the photograph of the notice attached to the window of the vessel which is dated 14 February 2014 but denied receiving it. He did, however, admit that he had received one of the patrol notices when other people also involved in the refurbishment of the vessel had given it to him and explained that he did not have to do anything until the refurbishment was complete and the vessel was ready for sale. He asserted that he did not need a licence because he was not using the vessel to go up and down the river at that stage. He described it as being a like a car in the garage rather than on the road. In this regard, in my judgment on the balance of probabilities, given that Mr Ravenscroft accepted that he had been on the boat most days in 2014, he must have seen and received the patrol notices served during that year, which were affixed to the boat, a number of which appear in the relevant photographs. I am unable to accept his evidence, therefore, that he only received one such notice and that despite the content of those notices he considered that he did not need to contact CRT to obtain a licence.
- In relation to the purported sale of the vessel in 2011, Mr Ravenscroft said that he had an invoice and an email about it but accepted that they were not before the court. He also accepted that he had not informed CRT of a change of ownership in 2011 or in relation to his alleged re-purchase of the vessel in or around 2014. He later suggested that he had sold the vessel very quickly in December 2014 on Ebay. Once again there was no documentary evidence of this before the court. In the absence of such evidence and in the light of Mr Ravenscroft's shifting oral evidence on the subject, the fact that he did not inform CRT of a change of ownership in 2011 and his re-purchase thereafter and the fact that he did not mention the transfer of ownership when four years arrears of licence fees were demanded, I am unable to accept his evidence in that regard. In the absence of any documentary evidence, I am also unable to accept his evidence in relation to the alleged contract for sale of the vessel in December 2014. In any event, no particulars of loss have been provided, nor were submissions made in relation to any loss.
- In relation to the letter of 10 March 2015 from Shoosmiths, solicitors on behalf of CRT, setting out charges of £6,630 to be paid before the return of the vessel plus licence fees of £1,685, Mr Ravenscroft retorted that at the time, he would not have paid a shilling to get the vessel back.
- Mr Garner was cross examined by Mr Moore. Mr Garner maintained that there was no intention on the part of the CRT to hold the vessel as a lien for arrears of licence fees and that his reference to them in the Marina on 27 January 2015 when confronted by Mr Ravenscroft, his father and associates had been in response to a specific enquiry as to arrears. He accepted the total figure that he had quoted orally on that occasion to enable Mr Ravenscroft to recover his vessel had included such arrears.
- Mr Deards confirmed in cross examination that section 8 is used as a remedy to ensure that unlicensed vessels are removed from the river, that he was not aware of the CRT having sought to have any prosecutions brought under the 1971 and/or 1983 Acts and that it is correct that licences can be withheld under section 17 of the British Waterways Act 1995 (the "1995 Act") unless the criteria set out at sub-sub-sections (a) – (c) of that section are met. In his second witness statement he also clarified that CRT does not contend that the public right of navigation in relation to the River Trent was repealed by the Transport Act 1968.
- The main issue which is at the heart of this matter is the true construction of the phrase "main navigable channel" in section 4 of the 1971 Act as amended. If, as Mr Ravenscroft contends it does not extend from bank to bank but is equivalent to the "fairway" or "thoroughfare" of the River Trent, the "Three Wise Monkeys" was not moored within it and there was no power to remove his boat in the first place, to levy either the removal and storage charges or the sum in respect of arrears of licence fee. If the "main navigable channel" extends to the full width of the main river and only excludes tributaries, streams and backwaters, as CRT contends, although Mr Ravenscroft accepts that the "Three Wise Monkeys" should have had a pleasure boat certificate, he says that the steps which were taken were disproportionate, unnecessary and contrary to Article 1 of Protocol 1 of Human Rights Act 1998. Further, and in any event, Mr Ravenscroft contends that the CRT took the "Three Wise Monkeys" and used it unlawfully to distrain for licence fees.
(i) "Main navigable channel"
Principles of statutory construction
- The first issue is the proper construction of the phrase "main navigable channel" in section 4 of the 1971 Act. Neither Mr Moore nor Mr Stoner took me to the principles of statutory construction in their oral submissions, although Mr Stoner did refer to the principle in Pepper v Hart. Since the hearing, they have both indicated that they have no objection to me adopting the approach outlined by Arden LJ in 9 Cornwall Crescent London Ltd v Mayor & Burgesses of the Royal Borough of Kensington & Chelsea  1 WLR 1186 at  and , where she stated:
"50 Where the true meaning of a statute is in doubt, and in dispute between the parties, it is the court's function to decide that meaning. In modern theory, the court primarily finds the interpretation of a phrase by examining the words used by Parliament in their particular context. Courts have moved away from a purely literal approach to statutory interpretation. As Lord Steyn held in R (Quintavalle) v Secretary of State for Health  2 AC 687 , 700:
"The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Comrs v Adamson (1877) 2 App Cas 743 , 763. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, eg social welfare legislation and tax statutes may have to be approached somewhat differently."
52 By "context", I mean the legislative context, and the policy context, as shown by any admissible material, such as Law Commission reports, explanatory notes accompanying legislation, travaux préparatoires and (in certain cases) Hansard. Courts will not speculate as to Parliament's purpose, though they may infer it from (for example) the indications provided in the legislation itself. In this particular case, we have not been taken to any material outside the 1993 Act."
- The principle in Pepper v Hart  AC 593 is well known. It is that reference to Parliamentary materials as an aid to construction is permissible only where three conditions are met, as set out by Lord Browne-Wilkinson at p.640B-C:
"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."
Legislative background and relevant provisions
- By way of background, I was taken to Transport Act 1962 which created four public authorities including CRT's predecessor, the BWB. Section 10 provides that it is the duty of the BWB in the exercise of its powers under the 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 to have due regard to efficiency, economy and safety of operation as respects the services and facilities provided by them." Further, by section 43(3), the CRT and the BWB before it, was empowered to "demand, take and recover . . . 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." Section 43(8) provides that:
"The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board, the use of any inland waterway owned or manages by them by any ship or boat."
- Mr Moore on behalf of Mr Ravenscroft also took me to the British Waterways Board General Canal Bye-Laws of 1965 which were made pursuant to the powers contained in the British Transport Commission Act 1954. The first bye-law makes it clear that the Byelaws applied to every inland navigation in England and Wales belonging or under the control of the BWB, save for some named exceptions. It is not in dispute that they applied to the River Trent at the point where the "Three Wise Monkeys" was moored. The phrase "main navigable channel" is used in Bye-law 19 which, where relevant, is as follows:
"(1) A pleasure boat when meeting, overtaking or being overtaken by a power-driven vessel other than a pleasure boat shall as far as possible keep out of the main navigable channel."
In his written submissions, Mr Stoner QC also referred to byelaw 3 of the 1975 Byelaws and of the 1976 Byelaws. They both refer to the need for a "pleasure boat" to display a licence. They are both concerned with canals and make no distinction as to the part of the canal in which the requirement is intended to operate. I did not find them of assistance.
- To return to the legislation in chronological order, by section 104 Transport Act 1968, (the "1968 Act") for the purposes of section 105-111 of that Act, inland waterways were divided into "commercial waterways", "cruising waterways" and the "remainder." The commercial waterways were those listed in Part 1 of Schedule 12 to the 1968 Act. The Schedule contains a list of numerous waterways and is headed: "The main navigable channels of the following waterways: -" and includes "The Trent Navigation from the tail of Meadow Lane Lock, Nottingham, to Gainsborough Bridge". The list of "cruising waterways" is also headed in the same way. Both lists include both canals and navigations. Amongst other things, section 105 contained a duty upon the BWB and thereafter, the CRT to:
"(a) to maintain the commercial waterways in a suitable condition for use by commercial freight –carrying vessels;"
and section 105(2) prescribed the dimensions and kind of vessel to which the duty to in section 105(1) (a) and (b) related. Furthermore, the obligations in section 10 of the 1962 Act were restricted to commercial waterways and cruising waterways by section 107 of the 1968 Act. There was no longer an obligation to maintain the "remainder". It is also important to note that section 115 provides that for the purposes of section 105, references to any right of navigation over a waterway includes references to any right to use or keep a vessel or craft on that waterway.
- The preamble to the 1971 Act itself, describes it as "An Act to make provision for regulating the use of pleasure boats and houseboats on certain of the inland waterways of the British Waterways Board and for making charges therefor; to confer further powers on the Board and for other purposes." Section 3 contains definitions for the purposes of the Act including:
"inland waterway" means any canal or inland navigation belonging to or under the control of the Board . . . .
"pleasure boat" means a yacht, launch, randan, wherry, tender, skiff, gig, dinghy, shallop, punt, canoe, float or other ship, boat, vessel, or craft (including amphibious craft) but does not include a vessel being used solely as a tug or for the carriage of goods or a houseboat or a mooring stage or a pontoon."
"prescribed charge" in relation to any pleasure boat or houseboat means a charge for the registration of that boat, or for the renewal …"
- Part II of the 1971 Act is headed "Pleasure Boats" and contains the following relevant provisions:
"4. (1) This Part of this Act applies to the main navigable channel of each of the inland waterways specified in Schedule 1 to this Act which channel so specified is in this Act referred to as a "river waterway".
(2) The description of any waterway contained in the said schedule shall be read subject to any order made by the Secretary of State for further defining the waterway by reference to a map.
5. (1) 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 Board allowing the use of all inland waterways without further payment.
(2) Any person who contravenes subsection (1) of this section shall, for each offence, be liable to a fine not exceeding twenty pounds and a daily fine of two pounds."
"River waterways" are set out in Schedule 1. It includes reference to "the Trent Navigation form the tail of Meadow Lane Lock, Nottingham to Gainsborough Bridge." Section 6 of the 1971 Act contains provisions concerning the registration of pleasure boats and section 7 is concerned with the charges for a pleasure boat certificate. Section 7(1) provides that:
"There shall be paid to the Board for the registration of every pleasure boat to be used on a river waterway and for every renewal of the pleasure boat certificate such charge as the Board may from time to time determine ..."
That section is subject to section 4 of the British Waterways Act 1983 (the "1983 Act"). There is no dispute that the "Three Wise Monkeys" is a 'pleasure boat' for the purposes of Part II of the 1971 Act which includes sections 4 -7.
- In fact, conditions as to certificates and licences are contained in the 1995 Act at section 17. It is relevant for these purposes to note that by section 17 a "relevant consent" which is defined to include a pleasure boat licence may be refused in respect of vessels unless three conditions are met. They are: (a) that the vessel complies with the applicable standards; (b) the vessel is insured and evidence of the policy is produced; and (c) that there is a mooring where the vessel can be lawfully kept or the vessel will be used bona fide for navigation and will not remain continuously in one place for more than 14 days or such longer period as is reasonable in the circumstances.
- The power to remove a boat from an inland waterway is contained in section 8 of the 1983 Act which is as follows:
"(1) 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 a 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 owners of the relevant craft. …"
- Mr Moore also took me to the Trent Navigation Act 1906 and to section 46(5) which contained an obligation on "the Company" to dredge the River Trent between specific points "so as to provide and maintain a channel of a minimum depth of five feet and of a minimum width of sixty feet at the bottom" and to 'keep such channel clear and free from obstruction . . . which might interfere with or obstruct the navigation." In fact, by section 34 of the Trent Navigation Act 1858, the "Company" defined as the "Company of Proprietors of the River Trent Navigation", the "Navigation" being defined as "the River Trent from Wilden Ferry in the Counties of Derby and Leicester, . . . to Gainsborough … and includes the Canal and Side Cuts constructed …", was required to:
"cleanse, scour, deepen, enlarge, straighten, contract, improve and in a good and navigable State and Condition keep, preserve, and maintain by all necessary and proper works, Ways and Means, the Navigation, so as to enable Vessels usually navigating thereon to carry a Burthen of Forty Tons at least in all Seasons ..."
- In his skeleton argument, Mr Moore also referred to extracts from a debate in relation to the Bill which became the 1971 Act, recorded in Hansard and to extracts from Select Committee Minutes. He did not take me to them during his oral submissions. He stated that it was clear that the intent of the 1971 Act was to impose the requirement of registration only on boats utilising the main navigable channel which as a result, benefited from the work done to maintain navigability. In his skeleton, he set out a passage in which a Mr Jupp QC for British Waterways explained to the Chairman of the Select Committee:
"The licence which a boat owner takes out and pays for makes him free of the artificial canal system, including the locks, and gives him the free use of the locks on the river navigations of the Board. On the rivers the situation is different. The Board are able to, and do, charge for the use of locks and people who have not got a canal licence because they do not keep their boats on the canals pay when they go through locks. Commercial traffic of course pay tolls on the goods carried by them on the river navigations so that the Board thereby has a means of collecting revenue from the commercial traffic and also from the pleasure traffic which uses locks. On the other hand, the river navigation involves not only locks. You can keep a boat on the river and by taking quite large stretches which there are where there are no locks you need never go through a lock and therefore need never pay."
- He also set out an extract from Hansard in which Mr John Wells MP in presenting the Bill to Parliament stated:
"Until tonight the rivers the Bill will create charges upon have, in the jargon of the Inland Waterways community, been called free rivers ..."
One of the main points of the river authorities is that they consider that the charges are fiscal in character and must fetter the public right of navigation and offer no tangible benefits in return for registration. I think I have already dealt with the tangible benefits, which, I freely admit, are not very great, but neither are the charges very great, nor is the revenue going to be very great, and if there is to be speed control and patrolling, then registration must come about and there must be some charge."
He also quoted a passage, described as being a statement of a "Mr Downey (Representative of the Minister of Transport)" as follows:
"... in considering this formal application the Minister had to consider two things: the acceptability or otherwise of the proposals to be contained in the Bill and whether legislation was the right means of dealing with these proposals. In considering that the Minister had to take into account the fact that on the rivers in question there are very ancient public rights of navigation, as the Committee is already aware, and having regard to that rather emotive matter it was felt - and the Treasury Solicitor was consulted before that decision was reached that it would not have been proper for the Board to have attempted to achieve its aims by means of byelaws, that it was necessary that legislation should be introduced for this purpose."
- Mr Moore also set out a passage which he described as a comment by Mr Wells MP as follows:
"The board considers that the increase of leisure activity resulting in the use of pleasure craft on these navigable free rivers such as the Severn and Trent whose navigation it controls necessitates making greater the possibilities, far from those who use them, of contributions to the works and services which the board provides on its rivers, and to achieve this the board wants to introduce a registration scheme for pleasure craft navigating on such rivers. It has taken as the essence of its scheme schemes already in existence under the Thames Conservancy since the Act of 1966 and on the Norfolk Broads since the Great Yarmouth Port and Haven Act, 1963."
He quoted a further passage from the speech of Mr Wells MP:
"It is reasonable to point out that there must be increased patrolling, increased sanitary facilities, increased water facilities—fresh drinking-water facilities, I mean—and increased lock facilities. I mean not that there will be more locks but that the locks should be open for longer hours. These are extra services for which people will be asked to pay, and it seems to us—to me, anyway—that this is not unreasonable.
The proposed scheme is also of importance to the Board in that it will enable the board to achieve a measure of control and management of craft using its waterways, as the craft will then be identifiable."
- Mr Moore on behalf of Mr Ravenscroft submits that it is important to consider the meaning of "main navigable channel" in the context of the common law right of navigation and the fact that all the relevant legislation is a derogation from that principle. He reminded me that Mr Deards, who is Head of "Legal" at CRT accepted that the public right of navigation had not been abolished in relation to inland waterways other than canals when the 1968 Act was passed. He submits therefore, that as long as a vessel is not moored in the main navigable channel, even though it may not have a licence or certificate, it is not "left or moored . .. without lawful authority" for the purposes of the definition of "relevant craft" in section 8(1) of the 1983 Act and therefore, the CRT have no power to remove it under section 8(2).
- Mr Moore also says that it is important to look to the use of the term "main navigable channel" before the enactment of the 1971 Act and, in particular, in the 1968 Act and the 1965 Byelaws, as a guide to its meaning. He relies upon the use of the term in Byelaw 19 of the 1965 Byelaws which is accepted by CRT to mean the "thoroughfare" in the context in which it appears. He also says that it is obvious that the term refers to the same channel which the CRT and the BWB before it, had an obligation to maintain under section 105 of the 1968 Act to enable navigation. He notes that the vocabulary used in relation to the maintenance obligation is the same as that in relation to the registration obligations in sections 6 and 7 of the 1971 Act.
- Further, he points out that it is not suggested that the maintenance obligation extended from bank to bank of either a river or a canal. In this regard, he referred me to extracts from the Fraenkel Report entitled "A Study of Operation and Maintenance Cost" which was commissioned by the Department of the Environment and was produced in 1973. At paragraph 10.5.4, the Report contained an expression of opinion in relation to the meaning of "main navigable channel". It stated:
"In our view the words "main navigable channel" are used in the Schedules to distinguish the main through routes of the respective Commercial and Cruising Waterways from un-navigable river loops, canal branches and unused sections not essential to through navigation, and are not apt to discriminate between one integral component and another of any one waterway. . ."
The Report also contained numerous tables of dimensions both of locks and other facilities and of the vessels using the waterways. As I understand it, it also set out alternatives in relation to the extent of the maintenance obligation under the legislation at the time. Mr Moore also took me to a table of depths and widths which is published. On the relevant stretch of the River Trent the published dimensions are 11.44 metres in width and 2.38 metres in depth, the entire width of the River at that point being approximately 54 metres.
- In this regard, Mr Moore also drew attention to an observation made by the Waterways Ombudsman and reported in her Annual Report for 2010-11. She noted at paragraph 12 of her Report, that the CRT can "sometimes interpret legislation in different ways depending on what suits them in particular cases" and pointed to her summary of case 516. In that summary, it was noted that the CRT interpret the phrase "main navigable channel" as referring to the whole width of the waterway. She went on:
"I pointed out that that interpretation of "main navigable channel" was not the one British Waterways had applied previously when dealing with complaints about lack of maintenance under moorings. Then they had argued that as their maintenance obligation in the Transport Act 1968 applied only to the main navigable channel, they were not obliged to dredge under moorings, only the central part of the waterway. British Waterways accepted that my comments were valid …"
- Mr Moore also referred to the ability to further describe the "main navigable channel" by reference to a map, set out in section 4(2) of the 1971 Act. It is not in dispute that there are no such maps in relation to the River Trent. However, Mr Moore says that: such a power is consistent first, with a definition of "main navigable channel" which is other than bank to bank of all but the tributaries, streams and inlets of a river; and secondly, allows for the movement of the deepest channel in a river, which he accepts may happen naturally, or due to passing traffic.
- Further, having made a Freedom of Information request, on 15 September 2011, Mr Moore received a response from the Customer Service Co-Ordinator, Ms Young, for BWB enclosing a map which delineated the entire width of the Trent Navigation at Beeston Chalets as the area in which a current River Licence was necessary for moored craft. Ms Young commented that "You will see that the intermittent green line is drawn on either edge of the section of the River Trent to show the entire navigation and not, as you believed, drawn to indicate the main navigable channel." Mr Moore relies on the statement as consistent with a distinction between the full width of the Navigation and the "main navigable channel."
- Lastly, Mr Moore says that "main" must be given a proper meaning. He also says that it can be equated with or is closely aligned with what has become known as the "Minimum Operational Channel." He highlighted a passage in a paper by Graham Holland, Head of Asset Management to a WUSIG Meeting on 13 April 2011. It had a schedule of dimensions attached. It was stated that: "The suggested MOC dimensions is often but not always based on the minimum width that would allow 2 standard beam boats for that navigation to just pass ...". The MOC dimensions for each canal, river and navigation appear in a schedule. This includes dimensions for the River Trent. Mr Moore says that the MOC is the absolute minimum for a "main navigable channel".
- Mr Stoner QC submits first that neither the 1965 Byelaws nor the earlier statutes are of assistance in construing the 1971 Act because they precede it. He submits that they would only be of relevance if what is referred to as the "Barass principle" applied. That is referred to in Bennion on Statutory Interpretation - "A Code" 6th edition at section 210(3). The sub-section is as follows:
"Under the Barras Principle, where an act uses a form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not Parliament intended to use the term in the sense given by this early history."
The comment on that sub-section states that under the Barras Principle where "an enactment uses a processed term, that is one upon whose meaning the courts have previously pronounced, it may be presumed that it was intended to have that meaning in the enactment." It is accepted that the principle also applies if there is an event which bears on the meaning of a term used in subsequent legislation. Mr Stoner says neither is the case here.
- Concentrating on the 1971 Act itself, he says that the preamble makes its aim and purpose clear: it was to regulate the proper use of the relevant waterways, to provide services and to create a registration regime for which charges were to be imposed. He submits that the provisions make no sense if "main navigable channel" is to be construed narrowly to mean the deepest part of the waterway which is used as a "thoroughfare" or "fairway" and that such a construction is contrary to the aim and purpose of the Act itself. He asks rhetorically, if that were the case, how would the strict liability offences contained, for example, in sections 5(2) and 9(4) have any certainty about them and how would the CRT and the BWB before it have proper control over the waterway and be able to raise revenue in order to fulfil their maintenance obligations and the provision of services?
- In this regard, Mr Moore says that offences should be construed strictly and narrowly in favour of the public and that the uncertainty in relation to boundaries would arise in any event. He says that it can be resolved by applying for a map under section 4(2) or one could mark the main navigable channel with buoys to which Mr Stoner responds that marking with buoys would be wholly impractical and that as the deepest part of a river changes from time to time, if Mr Moore is right, one would have to apply for a map and carry out surveys of all inland waterways at regular intervals and re-position buoys with regularity.
- Mr Stoner submits that it is of particular note that the definition of "pleasure boats" for the purposes of the 1971 Act is so wide and includes even punts which one would associate with shallow water. He says that the definition itself is consistent with the "main navigable channel" encompassing the river or navigation, bank to bank but for its unnavigable parts. In addition, he draws attention to section 5(1) of the 1971 Act which amongst other things provides that it is not lawful to "keep . . . a pleasure boat on a river waterway unless a certificate . . . is then in force". He submits that the inclusion of "keep" along with "let for hire" and "use" in that sub-section is not consistent with a definition of "main navigable channel" which is restricted to the thoroughfare or fairway. He says that one does not naturally "keep" a pleasure boat in the thoroughfare. He also points out that if Mr Moore were correct, it would be possible to let a pleasure boat for hire without a pleasure boat certificate, as long as it did not use the thoroughfare. He says that that would be inconsistent with the aim of the 1971 Act expressed in the Preamble and cannot be the ordinary and proper meaning of the words particularly, in the light of the strict liability offence of contravening section 5(1) contained in sub-section (2).
- He also points out that in the absence of any marking for the main navigable channel, which Mr Moore accepts to be the case, it would be necessary to argue the point on each occasion in relation to a prosecution under section 5(2) and that this cannot have been the intention of Parliament. He makes the same point in relation to sub-sections 9(1) and (4) which respectively contain the requirement for registered boats to have their name and number conspicuously displayed and create an offence of using such a pleasure boat on river waterway without such registration marks. Mr Stoner says that in the light of such matters, the phrase must have been intended to cover bank to bank and to exclude tributaries, streams, cuts and unnavigable stretches and would be a nonsense if it were restricted to the "thoroughfare".
- He submits that this is reinforced by the fact that the Schedule 1 of the 1971 Act contains reference to both tidal and non-tidal waters. He took me to paragraphs 6.04 – 6.06 of "Wisdom's Law of Watercourses" 6th Edition, at which it is explained that the public have a right to use a tidal watercourse for navigation in its entirety but that whether particular water is navigable is a question of fact and depends on the character and nature of the channel. It is also explained that there is no right at common law to navigate non-tidal inland waters although a right may be acquired by immemorial usage and other means. Mr Stoner submits therefore, that in such circumstances, his construction of "main navigable channel" is consistent with both tidal and non-tidal waters and avoids confusion. It includes the main waterway and excludes tributaries, streams, cuts and creaks. I should add that in this regard, Mr Moore says that Mr Stoner's construction does not work because the waterways listed in the schedule are not just river systems. They include navigations.
- If he is wrong and the provisions of the 1968 Act are relevant as an aid to construction of the 1971 Act, Mr Stoner points out that the statutory obligation to maintain contained in section 105 is not limited to dredging and applies to commercial and cruising waterways which pursuant to section 104 and Schedule 12 are the "main navigable channels" of the listed waterways. Mr Stoner submits that the natural meaning of the phrase in the context of the maintenance obligation applies bank to bank and not solely to a narrow channel which might be created after the event and also had the capacity to move. He points out that the maintenance obligation includes for example, the maintenance of water levels on artificial watercourses, maintenance of infrastructure and the control of vegetation.
- He submits that a real window on the meaning of "main navigable channel" can be found when one views sections 104 and 105 in the light of section 107(1) 1968 Act. It restricts the duty of the BWB under section 10 of the 1962 Act to provide services and facilities on the inland waterways owned and managed by them to the commercial waterways and cruising waterways only. The duty as redefined is applicable to the 'main navigable channel' because of the definition of 'commercial waterways' and 'cruising waterways' in Schedule 12 of the 1968 Act. Mr Stoner says that it is plainly appropriate if those waterways are the whole of the main channel from bank to bank and wholly inappropriate if the 'main navigable channel' is in fact limited, as Mr Ravenscroft contends, simply to the main navigation fairway or thoroughfare. He also submits that although section 105, which imposes the maintenance obligation, does not use the term 'navigation' it does refer to the obligation of securing the waterways for public use for suitable craft, which implicitly is a reference to navigation.
- Mr Stoner also points out that the Fraenkel Report post dated the 1971 Act and therefore, can be of no assistance in construing it. He says that the Minutes of the Select Committee to which Mr Moore referred in his written submissions and to the extracts from Hansard are both inadmissible and of no assistance. He says that the criteria in Pepper v Hart are not met and that in any event the documents referred to do not contain a clear statement by a promoter of the Bill.
- I approach the task of construction of "main navigable channel" with Arden LJ's approach in 9 Cornwall Crescent London Ltd v Mayor & Burgesses of the Royal Borough of Kensington & Chelsea (supra) firmly in mind. I must construe the phrase in its legislative context and policy context, as shown by any admissible material, such as Law Commission reports, explanatory notes accompanying legislation, travaux préparatoires and (in certain cases) Hansard.
- Before going any further, I should state that I do not consider that the extracts from Select Committee Minutes or from Hansard to be admissible. In my judgment, the criteria in Pepper v Hart are not met. It does not seem to me that the relevant provisions of the 1971 Act are ambiguous, obscure or lead to absurdity. Even if they did, I do not consider that the extracts from Hansard and Select Committee Minutes contained in Mr Moore's skeleton argument contain clear statements by the Minister or promoter of the Bill which are relevant to the task of construction in hand.
- What then is the proper construction of the phrase "main navigable channel" in Part II of the 1971 Act? It seems to me that taking into account both the legislative and the policy context and the purpose of the 1971 Act itself, it cannot be correct that the phrase "main navigable channel" is confined to the deepest part of any river, canal or navigation which is used from time to time as a thoroughfare or fairway. It seems clear from the Preamble to the 1971 Act that its purpose or aim was the imposition of a licensing system in order properly to regulate the use of waterways and to raise revenue for the provision of related services. With that context in mind, Mr Moore's construction would make a nonsense of the control and registration provisions contained in the 1971 Act and would render their operation all but impossible. It would be surprising if "main navigable channel" were construed in a way which only required licences to be obtained in respect of a narrow band of unmarked and undefined water in the centre, or perhaps not in the centre of the river or canal. It would render the entire regime of the 1971 Act unworkable. On that basis, it seems to me that the statutory context is such that Mr Ravenscroft's interpretation cannot be correct.
- This is all the more so in the light of the fact that it is accepted that the thoroughfare or fairway on the River Trent is not delineated and may change from time to time. No doubt the position is the same on most of the inland waterways for which the CRT is responsible. I do not consider that the difficulty is resolved by the ability to apply for a map. It seems to me that the power in section 4(2) of the 1971 Act is not apt to enable the production of a map by order of the Secretary of State each time the route of the thoroughfare of a waterway changes. If Mr Moore were right, it would be necessary to conduct frequent surveys of all inland waterways for which CRT is responsible in order to obtain up to date details of the position of the deepest channel and to record the same on a map made by order of the Secretary of State. It seems to me that the map produced to Mr Moore as a result of his Freedom of Information request in 2011 takes the matter no further forward. It is not suggested that the map was produced pursuant to section 4(2) of the 1971 Act or that anything can be gleaned from the comments made by the Customer Service Co-Ordinator.
- I also agree with Mr Stoner that his wider construction is consistent with the existence of the strict liability offences in sections 5(2) and 9(4) of the 1971 Act. If "main navigable channel" were construed in the way which Mr Moore suggests there would be no certainty as to whether those offences had been committed. In my judgment, it cannot have been Parliament's intention to create strict liability offences the parameters of which are uncertain. Further, although I place much less weight upon it, I also agree with Mr Stoner that his wider construction is also consistent with the very wide definition of "pleasure boat" in the 1971 Act.
- The wider construction is also consistent with section 5(1) of the 1971 Act which includes the term "keep" and "let for hire". If Mr Moore's construction were correct, a pleasure boat certificate would only be required if a vessel were "kept" or "let for hire" in the thoroughfare of the river in question. It seems to me that it is not consistent with the purpose of the 1971 Act set out in the Preamble. Furthermore, it seems to me that it is not normal to assume that a pleasure boat will be "kept" in such a thoroughfare at all.
- In fact, although it post-dates the 1971 Act and therefore, is not relevant as an aid to construction (and I do not take it into consideration in that regard) I consider that the natural and ordinary meaning of "main navigable channel" was described in general terms in the Fraenkel Committee Report. The term is used to distinguish between the entirety, bank to bank of the main through routes of the respective Commercial and Cruising Waterways from un-navigable river loops, canal branches, unused sections, cuts and creeks not essential to through navigation. If such a construction is adopted all the remainder of the legislative provisions are workable and make sense. In my judgment, therefore, it is the correct construction and equates with that put forward by Mr Stoner on behalf of the CRT.
- I come to that conclusion despite the use of the phrase "main navigable channel" in Byelaw 19 of the 1965 Byelaws. It seems to me that the use is context specific. Furthermore, there is nothing to suggest that Parliament intended the phrase to bear the same meaning in the 1971 Act as it did in the 1965 Byelaws. On the contrary, as I have already decided, it seems to me that such an intention would be contrary to the scheme of the 1971 Act. In any event, I was not referred to an authority on the meaning of the phrase which pre-dated the 1971 Act or to an event prior to 1971 which would bear on the meaning of the phrase in the 1971 Act. For completeness, I should also add that I did not find reference to the 1975 and 1976 Byelaws to be of any direct assistance.
- I also agree with Mr Stoner that the provisions of the 1968 Act are of no assistance in construing the provisions of the 1971 Act for the same reasons which apply to the 1965 Byelaws. In any event, in my judgment, they do not assist Mr Moore in the way in which he suggests. The obligation in section 105(1)(a) is to maintain the "commercial waterways in a suitable condition for use by commercial freight-carrying vessels". By virtue of Part I of Schedule 12, "commercial waterways" are defined as the "main navigable channels" of the rivers, navigations and canals which are listed. "Suitable condition" is expanded upon in sub-section 105(2) by reference to the dimensions (length, width, height of superstructure and draught) of the vessels customarily using the waterway in the nine months preceding 8 December 1967. As Mr Stoner pointed out, there is nothing to suggest that the maintenance obligations in section 105 are confined to dredging a central channel or thoroughfare. They are general, albeit limited by reference to the dimensions of the vessels described in sub-section 105(2), including notably, the height of the superstructure of such vessels. Accordingly, it seems to me that the obligation might well include necessary steps to be taken on or near the banks of a waterway and may include for example, maintenance of locks, bridges and/or tow paths and the removal of overhanging vegetation. Although I am not required to determine the ordinary and natural meaning of the phrase "main navigable channel" in Schedule 12 of the 1968 Act, given the breadth of section 105, it seems to me that it is not naturally confined to a deep channel or thoroughfare as Mr Moore would have it.
- Further, I do not consider the fact that CRT may have sought to argue that its maintenance obligation is limited to the thoroughfare, when before the Waterways Ombudsman takes the matter any further forward.
- For the sake of completeness, I should add that I did not find the references to the "Minimum Operational Channel" of assistance. I was not informed as to whether the term has any statutory basis and the information to which I was referred did not itself refer to the "main navigable channel." In the circumstances, I derive nothing from the use of the term or the existence of dimensions for specific waterways. Although I do not take it into account, it seems to me that the existence of such dimensions referable to a term other than "main navigable channel" in fact, militates against "main navigable channel" being confined to the thoroughfare on a waterway.
- In my judgment, therefore, Mr Stoner's construction is to be preferred. It makes sense in the context of the relevant legislation as a whole and the purpose of that legislation. Accordingly, the "Three Wise Monkeys" should have had a valid pleasure boat certificate and without such a certificate it was not lawful to keep it on the River Trent in the place where it was moored: see section 5(1) of the 1971 Act.
(ii) Human Rights Act – proportionality
- Mr Ravenscroft also contends that the removal of the "Three Wise Monkeys" from the River Trent was a breach of his rights under the Human Rights Act 1998, in particular, under Article 1 of the First Protocol which is headed "Protection of property" and is in the following form:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
- In this regard, Mr Moore says on behalf of Mr Ravenscroft that even if the "Three Wise Monkeys" required a licence in the position in which it was moored and therefore was unlicensed and even if it was unlawfully on the river despite a common law right of navigation, CRT was wrong to use its section 8 powers to remove the vessel from the water. He says it ought to have used the more proportionate means at its disposal. He points out that CRT could have: recovered the arrears by prosecuting Mr Ravenscroft under section 5(3) of the 1983 Act; it could have recovered the arrears of licence fees as a debt under section 7(2) of the 1971 Act and section 5(2) of the 1983 Act; or it could have marked and buoyed the vessel under section 8(3)(c) of the 1983 Act. He says it should only have used section 8 after all else had failed. He says that that is the approach adopted by the Environment Agency on the waters for which it is responsible.
- In this regard, Mr Stoner took me to "The Human Rights Act 1998", Wadham 7th ed at paragraph 8.07 which appears under the heading: "Protocol 1, Article 1, Protection of Property". It is stated that three distinct rules arise from the case of Sporrong and Lonnroth v Sweden (1983) 5 EHRR 35. They are that to establish that there has been prima facie interference with the right to property it must be shown that: the peaceful enjoyment of the applicant's possessions has been interfered with by the state; the applicant has been deprived of his possessions by the state; and the applicant's possessions have been subjected to control by the state. It makes clear that interference, deprivation or control will not violate Protocol 1 Article 1 if done "in the public interest' or "to enforce such laws [as the state] deems necessary to control the use of property in the public interest."
- It also states at paragraph 8.30 that ECtHR has held that the second paragraph of Article 1 should be construed in the light of the general principal enunciated in the opening sentence of Article 1. It goes on to state: "Controls on use of property are therefore subject to the fair balance test in the same way as deprivations of possessions." This principle was set out in R (Countryside Alliance and Ors) v Attorney General and Anr  UKHL 52,  1 AC 719. That was a case which was concerned with the validity of the provisions of the Hunting Act 2004. Mr Stoner referred me to  of the speech of Lord Brown in which he addressed Article 1 rights in the following way:
"155. The justification required for depriving someone of their possessions is merely that this be in the public interest. Similarly the use of people's property can be controlled by the state if that is deemed necessary in the public interest. The state must establish a legitimate aim in the public interest and the deprivation involved must be proportionate to that aim. A fair balance must be struck between the demands of the general interest of the Community and the need to protect the individual's property rights, a balance that will not be found if the individual has to bear an excessive burden. There is, however, as the European Court of Human Rights made clear in James v United Kingdom (1986) 8 EHRR 123, para 51, no test of strict necessity to be found in this article. That being so, and the interference with the appellants' property rights here being comparatively slight, I am prepared to regard the moral objection of the majority as a sufficient public interest justification."
- Mr Stoner also referred me to R (Clays Lane Housing Co-operative Ltd) v The Housing Corporation  1 WLR 2229. In that case, the claimant sought judicial review of the decision by the Housing Corporation to direct the claimant to transfer its land, against its will, to another registered social landlord instead of permitting the voluntary transfer to another housing co-operative. The appeal was concerned solely with whether it was disproportionate for the Housing Corporation to adopt a course which was not the least intrusive of the claimant's rights under Article 1 of the First Protocol. Maurice Kay LJ stated:
"13. There is no doubt that these decisions were informed and influenced by the decision of the European Court of Human Rights in James v United Kingdom (1986) 8 EHRR 123. The issue in that case related to the impact of article 1 of the First Protocol on the rights of tenants under the Leasehold Reform Act 1967 to acquire the freehold of their properties at a price below market value. The court identified the aim of the 1967 Act as being the remedying of an injustice whereby a long leaseholder who may have expended large sums of money improving and maintaining his property was required to return the property to the lessor at the end of the lease without compensation. The court observed, at p 145, para 50: "there must. . . be a reasonable relationship of proportionality between the means employed and the aim sought to be realised." It then set out and rejected the landlord's case in the following passage, at p 145, para 51:
"According to the applicants, the security of tenure that tenants already had under the law in force provided an adequate response and the draconian nature of the means devised to give effect to the alleged moral entitlement, namely deprivation of property, went too far. This was said to be confirmed by the absence of any true equivalent to the [Leasehold Reform Act 1967] in the municipal legislation of the other contracting states and, indeed, generally in democratic societies. It is, so the applicants argued, only if there was no other less drastic remedy for the perceived injustice that the extreme remedy of expropriation could satisfy the requirements of article 1. This amounts to reading a test of strict necessity into the article, an interpretation which the court does not find warranted. The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving a legitimate aim being pursued, having regard to the need to strike a 'fair balance'. Provided the legislature remained within these bounds, it is not for the court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way. The occupying leaseholder was considered by Parliament to have a 'moral entitlement' to ownership of the house, of which inadequate account was taken under the existing law. The concern of the legislature was not simply to regulate more fairly the relationship of landlord and tenant but to right a perceived injustice that went to the very issue of ownership. Allowing a mechanism for the compulsory transfer of the freehold interest in the house and the land to the tenant, with financial compensation to the landlord, cannot in itself be qualified in the circumstances as an inappropriate or disproportionate method for readjusting the law so as to meet that concern,"
This approach was followed in Holy Monasteries v Greece (1994) 20 EHRR 1 and Chassagnou v France (1999) 29 EHRR 615. It was also followed by Lightman J in R (Fisher) v English Nature  1 WLR 503, in which James v United Kingdom was cited by the judge, at para 46, as authority for the proposition that "The fact that there may be other even better methods of achieving the same ends does not necessarily mean that any particular measure is disproportionate under article 1". It is evident that in the present case Keith J founded his conclusion on this line of authority.
20. The centre piece of the Strasbourg jurisprudence on this point is James v United Kingdom 8 EHRR 123. The European Court of Human Rights, at para 51, plainly rejected a test of "strict necessity" and emphasised "the need to strike a 'fair balance'" in relation to article 1 of the First Protocol. The speech of Lord Steyn in Daly's case  2 AC 532, para 27, adopts the language of "no more than ... necessary to accomplish the objective". Although Daly's case concerned article 8 it was no doubt because it has been authoritatively applied more generally, and specifically to article 1 of the First Protocol (see International Transport Roth GmbH v Secretary of State for the Home Department  QB 728, per Simon Brown LJ, at para 51) that Mr Stanley accepted in the course of his submissions that "necessity" is a requirement of proportionality in the present case. His point is that "necessity" is a more flexible concept than the "strict necessity" that was rejected in James v United Kingdom. In particular, he submits, it does not compel and is not to be equated with the least intrusive option. To this extent, he seeks to distinguish Samaroo's case  UKHRR 1150, another article 8 case."
- Mr Stoner also took me to a passage from the first edition of "Judicial Review – Principles and Procedure" by Auburn, Moffett and Sharland concerned with proportionality under the Human Rights Act 1998. At paragraph 18.19 it is stated that a proportionality test is applied when assessing whether an interference with a qualified right can be justified as necessary in a democratic society. In a footnote it is stated that the proportionality review for the purposes of Article 1 of the First Protocol is less intensive than in relation to other articles. It is also noted at paragraph 18.30 that the "minimum impairment" requirement must be deployed with caution: " . . what is important is whether the objective can be achieved by a less intrusive measure without significantly compromising that objective."
- Lastly, in this regard, I was referred to Bank Mellat v Her Majesty's Treasury (No 2)  AC 700, a case concerning financial restrictions imposed under section 62 Counter-Terrorism Act 2008. Lord Sumption considered the test to be applied at  and  in the following way:
"19. … It follows that the essential question raised by the Bank's substantive objections to the direction is whether the interruption of commercial dealings with Bank Mellat in the United Kingdom's financial markets bore some rational and proportionate relationship to the statutory purpose of hindering the pursuit by Iran of its weapons programmes.
20. The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. The classic formulation of the test is to be found in the advice of the Privy Council, delivered by Lord Clyde, in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80. But this decision, although it was a milestone in the development of the law, is now more important for the way in which it has been adapted and applied in the subsequent case law, notably R (Daly) v Secretary of State for the Home Department  2 AC 532 (in particular the speech of Lord Steyn), R v Shayler  1 AC 247, paras 57-59 (Lord Hope of Craighead). Huang v Secretary of State for the Home Department  2 AC 167, para 19 (Lord Bingham of Cornhill) and R (Aguilar Quila) v Secretary of State for the Home Department  1 AC 621, para 4. Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective. Lord Reed JSC, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68-76) which I would disagree with."
- Mr Stoner submits therefore, that the question is not merely whether there was an alternative to the measure adopted. He says that neither a prosecution nor a claim for a debt are necessarily less intrusive measures and that marking and attaching buoys under section 8(3)(c) of the 1983 Act is only relevant if the vessel were sunk or stranded. In any event, he points out that section 8 is not about the recovery of money. He says that its purpose is to facilitate the proper management of the waterway in order to ensure safety and that vessels on the river are insured. He submits therefore, that the legitimate aim of section 8 is to remove vessels which are not lawfully on the waterway from the point of view of good management and safety. In this regard, he relies on the evidence of Mr Grimes which was adopted by Mr Deards, as to the substantial increase in the boats on CRT's managed waterways and the pressure caused in a finite space, the need to control that use and to raise revenue. Mr Stoner points out that it is necessary to maintain a fair balance between those objectives and the interests of the public in using the river for navigation. He adds that it is important to view this case in context and on its own facts and points out that there were seven notices served either on the "Three Wise Monkeys" itself or at Mr Ravenscroft last known address without any response.
- He also says that although the approach of the Environment Agency may be different, there having been 324 prosecutions and only 17 removals during a period the length of which is unclear, its powers are also different. Under paragraph 16 of the Environment Agency (Inland Waterways) Order 2010 the Agency has power to remove or relocate a vessel which is not registered but also has power under paragraph 17 to require the owner or master of a vessel to give information including the name, address and identity of the owner and under paragraph 18, it is an offence not to do so. He says that CRT do not have those powers and in this case, could not be certain of the identity of the current owner of the "Three Wise Monkeys" and accordingly, would not have been in a position to prosecute.
- In response, Mr Moore referred to sections 5(2) and 7(2) of the 1971 Act and pointed out that the former refers to "any person" contravening section 5(1) being liable to a fine and that the latter refers to a liability in respect of the "master" of the vessel which is defined to include, any person whether the owner, the master or other person lawfully or wrongfully having taken control of the vessel. He says therefore, that the comparative legislation is not different.
- Mr Stoner also points out that the vessel was returned to Mr Ravenscroft before these proceedings were commenced, that there is no evidence of any loss caused and accordingly, there can be no question of damages being awarded under section 8 Human Rights Act 1998.
- At paragraph 26 of the Amended Particulars of Claim there is also reference to a "violation of Articles 6 and 7 of Part 1 of the Convention Rights" because it is said that CRT acted without any "relevant paperwork establishing Court involvement" required by the "relevant legislation". Mr Moore did not pursue this element of the case before the court and I make no further mention of it.
- First, in my judgment, it is quite clear that the power contained in section 8 is not one which can only be exercised once other powers have been exercised as Mr Moore suggests. On its express wording, it is free standing. In any event, as the cases make clear, the relevant question is: (i) whether the objective of section 8 is sufficiently important to justify the limitation upon Mr Ravenscroft's property rights; (ii) whether section 8 is rationally connected to the objective; (iii) whether a less intrusive measure could have been used without unacceptably compromising the objective of section 8; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
- In my judgment, the purpose and objective of section 8 relates to the proper and safe management of the waterways and is not directly connected to licence fees. Its objective is to keep the waterways safe and accessible for all craft which use it and properly to regulate that use for all. Section 8 relates to circumstances in which boats are abandoned and stranded as well as when they are unlawfully on the waterway. It seems to me that the objective I have described is sufficiently important in the circumstances to justify the inroad into the right to property which it entails. If the CRT were not able to exercise such a power in appropriate circumstances, the waterways which they manage would be less safe and accessible to all.
- I also consider that there is no question that given its wording, section 8 is directly connected to its objective. It is concerned with the removal from the inland waterway of vessels or parts of vessels which are sunk, stranded, abandoned or left or moored without lawful authority. In my judgment removal in such circumstances is directly connected with the safe and proper management of the waterways for all users.
- It also seems to me that although there are other measures which can be adopted to recover arrears of licence fees, the power in section 8 is not directed to that end and therefore, those powers, being the power to prosecute and to recover arrears as a debt are not directly comparable or relevant. As I have already stated, I consider the objective of section 8 to be the safe and proper management of the waterway rather than the recovery of arrears. Therefore, the question of whether there is a less intrusive measure which could have been used without unacceptably compromising the objective does not arise.
- However, if the ability to recover arrears of licence fees by way of a debt or prosecution were directly comparable with section 8, I would have decided that whilst prosecution was not less intrusive, recovery of a debt would have been.
- In any event, has a fair balance been maintained between the rights of the individual and the interest of the community? I am satisfied that it has. It seems to me that it is necessary to keep the waterways properly regulated for the benefit of the whole community and that accordingly, it is appropriate to take such steps as are necessary to remove boats in the circumstances set out in section 8. In this regard, it should also be borne in mind that as long as the owner is known, the vessel is not confiscated and can be recovered on payment of the storage and removal charges. This it seems to me, is a proper and fair balance between the competing interests of the community and rights of the individual.
- Accordingly, there is nothing in this point and it is unnecessary to consider whether this a situation in which damages should be awarded under the Human Rights Act 1998.
(iii) Statute of Marlborough – distress
- Mr Moore on Mr Ravenscroft's behalf says that it was quite clear that a condition for return of the "Three Wise Monkeys" was the payment of arrears of licence fees: it was demanded orally by Mr Garner at the Marina and was set out as a condition in some of the correspondence from Shoosmiths on behalf of CRT.
- He submits that although the letter from Shoosmiths on behalf of CRT to Mr Ravenscroft's previous assistant, Ms Tracey Thomas of 10 March 2015 separated out storage charges from arrears of licence fee and stated that the "Three Wise Monkeys" would be returned if the former were paid although a total made up of storage charges and licence fees was due, in the emails of 19 March and 2 April 2015, from Lucy Gray on behalf of CRT to Ms Thomas and to Mr Ravenscroft respectively it was stated that the vessel would be released upon payment of a total sum of £12,676 which included licence fee arrears. In a previous email sent by Helen Underhill on behalf of CRT to Ms Thomas dated 16 February 2015, a breakdown of seizure and storage charges was provided together with a breakdown of arrears of licence fees and a total amount owing was shown.
- Furthermore, Mr Moore says that there was no mistake about it. It was clearly CRT's policy to recover arrears of licence fees in this way and it was set out on their website until recently.
- He submits that this is a breach of the Statute of Marlborough 1267. Sections 1 and 4 of that Act are as follows:
"1. Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified by the King and his Court, like as they ought and were wont in Time of the King's noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours, and of other, until they had Amends and Fines at their own Pleasure: and further, some of them would not be justified by the King's Officers. nor would suffer them to make Delivery of such Distresses as they had taken of their own Authority; It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King's Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of our Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower.
And upon the foresaid Article It is Provided and granted, that if any from henceforth take such Revenges of his own Authority, without Award of the King's Court as before is said, and be convict thereof, he shall be punished by Fine, and that according to the Trespass; and likewise if one Neighbour take a Distress of another without Award of the King's Court, Whereby he hath Damage, he shall be punished in the same wise, and that after the Quantity of the Trespass; and nevertheless sufficient and full Amends shall be made to them that have sustained Loss by such Distresses.
4. None from henceforth shall cause any Distress that he hath taken, to be driven out of the County where it was [taken]; and if one Neighbour do so to another of his own Authority, and without Judgment, he shall make Fine, as above is said, as for a Thing done against the Peace; nevertheless, if the Lord Presume so to do against his Tenant, he shall be grievously punished by Amerciament. Moreover, Distresses shall be reasonable, and not too great; and he that taketh great and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses."
- Mr Moore says that CRT should be punished for having levied unlawful distress because it took possession of the "Three Wise Monkeys" and then demanded arrears of licence fees as part of the condition for return of the vessel despite the fact that section 8(4) of the 1983 Act makes clear that on payment of storage and removal charges amongst other things, it "shall" return the vessel. He says that even if the possession was lawful, it was being used for unlawful means.
- CRT accepts and admits that it was not entitled to seek payment for the licence arrears as a pre-condition for the return of the "Three Wise Monkeys". However, it contends that it did not levy distress which is described in the 4th Edition of "Words and Phrases Legally Defined" as:
"primarily [connoting] a summary remedy by which a person is entitled without legal process to take into his possession the personal chattels of another person, to be held as a pledge to compel the performance of a duty or the satisfaction of a debt or demand."
- It is submitted that CRT was in lawful possession of the "Three Wise Monkeys" pursuant to section 8, the vessel having been removed from the River Trent because it was on the water without a pleasure boat certificate which was unlawful under section 5 of the 1971 Act. Mr Stoner says that: there is no evidence that it was removed from the River in order to recover the licence fees; and it was not seized because of licence arrears or for the purpose of obtaining payment of those arrears. Mr Stoner points out that none of the notices served on the vessel made mention of fees at all.
- However, it is admitted that after the vessel was removed from the water, whilst still in the Marina, Mr Garner referred to the payment of £8,000 or £9,000 in order to have the vessel put back in the water, and that that figure must have included an element of arrears of licence fees. In this regard, Mr Stoner pointed out that Mr Garner's reference to licence fees should be understood in the context that he was expressly asked about them. It is also accepted that in subsequent correspondence the sum demanded as a condition for return of the vessel included arrears of licence fees. However, it is submitted that the vessel was not detained longer as a result and that there was no offer purely to pay the storage and removal charges despite the fact that the correspondence reveals that Mr Ravenscroft was aware of the distinction.
- Mr Stoner submits that if he is wrong and distress was levied, the Statute of Marlborough does not apply in any event. He says that section 1 is concerned with illegal distress and section 4 with excessive measures in relation to what would otherwise be legal distress. He submits that the taking of the vessel was not illegal and there is no evidence that there were cheaper means which should have been deployed.
- As the Tribunals, Courts and Enforcement Act 2007 (the "2007 Act") and the Tort (Interference with Goods) Act 1977 (the "1977 Act") were also mentioned in Mr Moore's skeleton although not pursued before the court, Mr Stoner also addressed those statutes. In short, he submits that the 2007 Act and sections 62 – 65 which are concerned with enforcement by taking control of goods is of no relevance because none of the relevant Waterways legislation is referred to in Schedule 13. In relation to the 1977 Act, he submits that the vessel was returned before the proceedings were commenced and therefore the provisions of the Act have no application.
- As I have already made clear, I do not consider that the exercise of section 8 powers is inherently concerned with the recovery of arrears of licence fees. It is concerned with the proper and orderly management of the waterways and the maintenance of safety, including the provision of insurance for vessels upon those waterways. Having said that, it is clear that the figure quoted when the vessel was lifted from the water on 27 January 2015, included arrears of fees and that it was not until 10 March 2015 that the matter was presented in an appropriate matter, excluding those arrears from the figure required to recover the vessel. Thereafter, a composite figure was quoted in correspondence once again.
- However, it seems to me that distress was not levied and therefore, neither section 1 nor section 4 of the Statute of Marlborough is relevant. The vessel was removed from the water pursuant to and for the purposes of section 8 of the 1983 Act. It was not taken into the possession of CRT in satisfaction of the arrears of licence fees. As Mr Stoner points out, none of the notices whether served on the vessel or at Mr Ravenscroft's postal address made any reference to arrears of fees.
- It was extremely unfortunate that arrears of fees were rolled up in the figure quoted at the Marina, that it took so long to present the matter properly and that mistakes were made in correspondence subsequently. I also note the policy which appeared on the CRT website until recently. However, in my judgment, the removal of the vessel from the waterway was pursuant to section 8 and did not relate to the arrears. Accordingly, it seems to me that it was not removed from the water as a remedy without legal process for the recovery of a debt.
- Even if I am wrong about that and distress was levied when the "Three Wise Monkeys" was removed from the River Trent, in addition to the exercise of the section 8 powers, in my judgment, no loss was suffered whether for the purposes of an action on the case under section 1 or section 4 of the Statute of Marlborough. CRT was entitled to incur and to recover the storage and removal charges incurred in the exercise of its powers under section 8 of the 1983 Act: section 8(3). Further, CRT was entitled to recover arrears of licence fees under section 5 of that Act. There is no evidence of any further loss. At the very best, if distraint were levied whether unlawfully or by excessive means, Mr Ravenscroft might have been entitled to nominal damages.
- Were it in issue, I would also agree with Mr Stoner that the 2007 Act is not relevant. The relevant waterways legislation is not included in Schedule 13 of the 2007 Act and therefore, its terms do not apply. Further, the vessel was returned before the proceedings were commenced and therefore the only possible claim which might have been advanced under the 1977 Act would have related to trespass to goods. This has not been articulated in any way and in any event, there is no evidence of any loss in relation to the removal of the "Three Wise Monkeys" from the River Trent on 27 January 2015 and its return to Mr Ravenscroft on 6 May that year.
- For the reasons set out above, Mr Ravenscroft's claims are dismissed.
- - - - - - - - - - -- - - - - -
POINTS CHALLENGED BY CRT IN STATEMENT OF MR RAVENSCROFT
(Paragraph Number/what is challenged)
1. Not accepted the vessel has been sold.
2. Not accepted a sale was agreed in December 2014 (or at all)
3. Not accepted (as with all such references) that the Trust were 'stealing' the boat.
6. Not accepted Stuart Garner acted in an intimidating manner.
7. Not accepted that Stuart Garner lashed out, pushing a phone into face.
11. Not accepted (if it is intended to suggest as much) that the police officer was saying that payment of licence arrears would sort out the situation.
12. Not accepted the Trust employees simply refused to answer other than saying will speak to you later.
16. Not accepted the letter showed previous address: it showed the same address as given to the Court.
21. Not accepted canopies were ripped off.
26. Not accepted the Trust said they did not want the owner.
27. Not accepted the Trust employees found the situation funny.
30. Not accepted 2 hours had passed
35. Not accepted Mr Ravenscroft's father made an offer to pay
40. Not accepted any criminal damage was done to the canopies (or at all).
45. Not accepted that the Trust said if the matter was not sorted within 6 weeks the Trust would claim ownership and sell or dispose of the vessel.
47. Not accepted there was essential paperwork on the vessel (unless reference is to the notices posted on the vessel)
51. Not accepted that Mr Garner said the vessel would be held for 6 weeks whether sums paid or not.
62. The way this is put is not accepted: it is accepted the Trust agreed not to include the costs in the sums that had been sought. Did not distinctly insist that licence fees must be paid (as distinct from it being part of the overall sum sought).
71. Not accepted that the Judge on appeal in the County Court suggested the appeal on costs could be joined with High Court proceedings.
POINTS CHALLENGED BY MR RAVENSCROFT IN STATEMENTS
Para. 4 Not accepted that there are any canal beds, channels etc at the Farndon Ferry site with any implied CaRT ownership, if so intended; the riparian owner is alongside natural river, owning the bed to the centre.
Para. 6 Not accepted that a licence is required. If in the main navigable channel then a Pleasure Boat Certificate is mandatory, not the Pleasure Boat Licence.
Para. 20 Not accepted that Claimant was physically aggressive in the manner described; he was retreating as Mr Garner walked towards him, not the other way around.
Para. 21 Not accepted that good warning given to cameraman before lashing out at the camera.
Para. 24 Not accepted that anyone was aggressive in any way towards the CBS personnel, though accepted that there was verbal aggression towards police and Mr Garner.
Para. 25 It is vigorously denied that anyone loosened the wheel-nuts of the truck. The driver was in the cab of the truck the whole time, police and marina staff were everywhere, and in any event the tool required would be out of the ordinary.
Para. 34 Is simply outdated. The application for permission to appeal has been adjourned to a full Appeal Court hearing in December this year.
Para. 41 It is denied that Shoosmiths or the Defendant responded at all, at any time, to the repeated claim that licence arrears need not be a condition for retrieval of the boat, let alone in the email referred to.
Para. 43 the implication that any supporters of the Claimant loosened the wheel-nuts is denied.
Para. 46 Not accepted that response to the exhibited letter was simply a refusal; a 2 page email was sent with a counter proposal that seemed to the Claimant to be an even better saving of court and litigant time and expense.
Para. 13 Not accepted that the river Trent was "created" if that is intended to imply a legal position equal to the canals vis-à-vis the public right of navigation as later claimed [but correctly disavowed by Mr Deards].
Page l of 2
Para. 14&15 It is not accepted that "finite space available" has much relevance to the area concerned in this claim; it is certainly true of localised areas such as London.
Para. 17 & 18 Denied just for the record — Mr Deards having correctly acknowledged this to be untrue, but -
Para. 19 Follows with "Accordingly". . . It is not accepted that the content of this paragraph can be viewed in isolation from the rejected premises. It is not accepted that agreement to terms and conditions are required for issue of a licence or certificate, and it is denied that breach of any condition other than those listed in s.17 of the 1995 Act empowers revoking of a pleasure boat licence or certificate [houseboat certificates, by contrast, being tied to the terms and conditions set out in the Act, and those imposed unilaterally as empowered under the 1971 Act].
Para. 20 It is denied that the Transport Act 1962 forms the basis for mandatory boat licences, which requirement was only imposed in 1976 following relevant empowerment to do so under the British Waterways Act 1975. Imposition of further conditions MAY be imposed by byelaw under that Act, but the primary legislation of 1995 was chosen as the preferred avenue instead.
Para. 22 It is not accepted that a pleasure boat licence or certificate is subject to unilaterally imposed terms and conditions as seems to be implied. Using or keeping a licensed or registered boat is subject to the primary and secondary legislation governing such keeping or using, but that is distinct from the grounds for issuing the pleasure boat licence or certificate in the first place.