Local authority – Byelaws – Mooring – Appellant being convicted of breaching byelaws by mooring boat without prior written consent of respondent local authority – Appellant appearing by way of case stated – Whether byelaws being made for improper purpose and irrational – Whether byelaws breaching appellant’s right to respect for home under article 8 of the ECHR – Appeal dismissed
The respondent local authority alleged that the appellant had moored or permitted his boat, Longwood Lady, to be moored to land owned by the respondents at Ham Lands, Ham, Richmond, for longer than the maximum permitted period which, in the case of that location, was one hour in any 24 consecutive hours. Byelaw 4, made under section 235 of the Local Government Act 1972, made it a criminal offence to so moor a boat against that land without the prior written consent of the respondents except “in cases of an emergency or other unavoidable cause”. The appellant was convicted by a district judge of four breaches of the byelaws.
The appellant appealed by way of case stated pursuant to section 111 of the Magistrates Court Act 1980 challenging the validity of byelaws. He contended that byelaw 4 was unlawful at common law because it was made for an improper purpose and was irrational. He argued that the material generated by the consultation process showed that the basis for making the byelaws was anti-social behaviour but the byelaws did not address such behaviour and were such an excessive response to the evidence of that behaviour that they were ultra vires at common law. He also argued that making the byelaws breached the appellant’s rights under article 8 of the European Convention on Human Rights (ECHR).
Held: The appeal was dismissed.
(1) Although the byelaws would make it difficult to live on a boat within the areas designated in the byelaws, that effect did not assist in determining the purpose for which the byelaws were made. Section 235 of the 1972 Act empowered byelaws for the prevention and suppression of nuisances and the judge expressly found that the purpose of the byelaws was to prevent and suppress nuisances. The purpose of the byelaws was not to make the boat owners homeless but to prevent them from treating that particular site as a permanent mooring with all the attendant impact on the area. While concern about anti-social behaviour was voiced by some of the objectors and there was evidence of nuisance and anti-social behaviour occurring and reported at the river bank, the judge was entitled to conclude on the basis of the respondents’ evidence that the dominant or primary purpose was preventing the tow path being blocked or otherwise being interfered with and the impeding of access to the river and its banks.
(2) There was a public right of navigation on the River Thames and those exercising their right of navigation were entitled to moor vessels to the river bed temporarily from time to time. But such persons were not entitled to obstruct the river. Potentially, permanent mooring of boats such as the appellant’s which obstructed free access from the riparian land to the river constituted both a private and public nuisance. The nature of the rights of riparian owners and others to moor boats was a relevant consideration when considering the rationality and legality of public law acts such as these byelaws, which regulated and restricted a person’s ability to moor a boat without committing an offence. It was legitimate for the respondent to regulate the way in which the appellant and others occupied the river bank, land held for the benefit of the whole community, to the detriment of other uses of the land and river bank: Couper v Albion Properties Ltd, Port of London Authority and Hutchison Whampoa Properties (Europe) Ltd [2013] EWHC 2993 (Ch); [2013] PLSCS 252, Moor v British Waterways Board [2013] EWCA Civ. 73, [2013] Ch 488 and Couper v Albion Properties [2014] EWHC 265 (Ch) considered.
(3) The district judge erred in finding that a right under article 8 of the ECHR to respect for the home was not engaged in the circumstances of this case. The fact that he had lived on the boat for nine years and had owned it for some seven years meant that it was not possible simply to say article 8 was not engaged because he could move the boat and because he was a trespasser and his trespassing conduct precluded the engagement of article 8. That was so particularly if the boat had been moored in the same place for all or a substantial part of that time and it was not moveable because it had no working engine. It was clear that article 8 was not only engaged in respect of a home where that home was lawfully established. However, the judge had not erred in concluding that the byelaws were a proportionate and necessary step for the respondent to take to ensure good rule and government and the suppression of nuisance in the borough: Buckley v United Kingdom (1996) 23 EHRR 101, Connors v United Kingdom (2005) 40 EHRR 9; [2004] 4 PLR 16 and R (N) v Lewisham London Borough Council [2014] UKSC 62; [2015] AC 1259 considered.
(4) A trespasser would only be able to trump the rights of an owner of property by invoking article 8 in an exceptional case, particularly where the owner was a public authority which held the land for the general public good such as the respondents. It followed that an interference with article 8 rights, such as the byelaws restricting the mooring of boats in certain places, was not disproportionate where the boats subject to the restriction were homes. There was no evidence that the effect of the byelaws would preclude the appellant from living on a boat in the borough when other permanent moorings were available. Moreover, the article 8 defence had not been pleaded in a sufficiently particularised way to meet the high threshold required to make it seriously arguable. Accordingly, while it might be possible to envisage a situation in which byelaws concerning waterways were so restrictive that it became impossible to live on a houseboat in the local authority’s area, that was not the position in this case: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113, Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186 and Thurrock Borough Council v West [2012] EWCA Civ 1435 considered.
Nathaniel Wade (instructed by Hodge, Jones and Allen) appeared for the appellant; Adam Heppinstall (instructed by Richmond London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read the transcript for Akerman v Richmond London Borough Council.
