Inland waterway – Residential mooring – Section 8 of British Waterways Act 1983 – Respondent statutory navigation authority serving section 8 notices requiring removal of appellant’s boat as moored without lawful authority – Whether right to moor resulting from rights created or preserved by Grand Junction Canal Act 1793 – Preliminary ruling set aside – Issue to be re-argued at trial
The appellant lived on one of several narrowboats moored alongside the riverbank on the tidal reaches of the River Brent, at a boatyard operated by his employer. The river formed part of the route of the Grand Union Canal, which was vested in the respondent as the statutory navigation authority. In 2007, the respondent served notices, under section 8 of the British Waterways Act 1983, on all the moored boats, requiring their removal within 28 days as vessels moored without lawful authority in an inland waterway under its control.
The appellant sought declarations that the notices were unlawful. He contended that he was entitled to moor by virtue of common law rights of navigation and rights preserved or conferred by the Grand Junction Canal Act 1793. In particular, he relied on section 43 of the 1793 Act, which conferred a private right of navigation on riparian owners and occupiers. Preliminary issues were tried as to whether, inter alia: (i) the private right of navigation granted by section 43 of the 1793 Act had been repealed by subsequent legislation; and (ii) the public right of navigation included an ancillary right to moor.
The judge held that the private right of navigation had been repealed by the Transport Act 1968 and that the public right did not include an ancillary right to moor other than temporarily in the course of navigation. He held that any riparian rights held by the boatyard company did not assist, since these were confined to a right of access to the river: see [2009] PLSCS 90.
The appellant appealed on issue (i). He contended that the judge had dealt insufficiently with the question of the rights conserved or created by the 1793 Act, including non-navigational riparian rights to moor along the bank. The respondent argued that any right to moor that had existed prior to 1793 had been repealed by the 1793 Act or the 1968 Act and that, although the legislation did not affect the preserved public right of navigation, such rights did not confer a right to moor on riparian owners but were subject to the respondent’s regulatory and management powers. However, it accepted that the judge’s ruling on issue (i) was unsatisfactory since it was in terms for which neither party had contended.
Held: The appeal was allowed.
It was not disputed that the judge’s ruling on issue (i), regarding the rights preserved or created by the 1793 Act, was unsatisfactory. The issue needed to be re-argued and it was sensible for that to occur at a trial after the court had heard all the evidence. The court that conducted the trial would be better equipped to understand the whole situation than would an appeal court constrained by the terms in which the preliminary issue was framed. The judge’s ruling was set aside and the action should proceed to trial of that issue, together with all other issues not resolved by the preliminary rulings.
The appellant appeared in person; Christopher Stoner (instructed by Shoosmiths) appeared for the respondent.
Sally Dobson, barrister
