Trespass requires a physical connection between the trespasser and the land.
In The Mayor and Burgesses of the London Borough of Richmond-Upon-Thames v Alistair Trotman [2023] EWHC 9 (KB), the High Court has considered an application for a permanent injunction prohibiting trespass.
The defendant had secured his houseboat, Kupe, some distance from the riverbank in Ham, upstream from Teddington Lock, by fore and aft anchor ropes and scaffolding poles sunk into the Environment Agency’s riverbed. An interim injunction – which the judge described as “verbose, poorly expressed and ungrammatical” – was granted in July 2023. The injunction prohibited the defendant from mooring or anchoring any vessel adjacent to the claimant’s Thames riverbank.
Section 79 of the Thames Conservancy Act 1932 allows persons to pass and repass in vessels over or upon the River Thames for pleasure or profit, and to anchor, moor or remain stationary for a reasonable time subject to restrictions made by owners of the riverbank. Byelaw 4 of the claimant’s Byelaws Relating to Mooring 2015, provides that, save in emergency or other unavoidable cause, no boat shall be moored for more than one hour in any 24 hours without prior written consent.
The claimant brought claims in trespass for mooring in breach of the byelaws and for anti-social behaviour, including littering of the riverbank, which the defendant denied. The evidence relied upon was that Kupe was frequently in contact with whips, saplings and branches growing from tree roots embedded in and forming part of the riverbank, even though they were overhanging the river when Kupe came into contact with them. There was no evidence of damage to the trees. There was only one instance of physical attachment to the land by a rope attached to a chain around a tree on the riverbank.
The judge concluded that the claimant had not established on the balance of probabilities that Kupe had been moored in contravention of byelaws. There was no significant trespass by the defendant on the claimant’s land to justify a final injunction. The reliance on contact with overhanging trees was a connivance to found an action in trespass.
However, the anchoring of Kupe no more than 3m from the riverbank for more than six months was an unreasonable obstruction to other river users – canoes, rowing boats, motor boats, rafts, barges, sailing dinghies – who wished or needed to moor their boats on that stretch of the River Thames. This was no trifling interference and constituted a public nuisance. The claimant was entitled to an injunction to prevent the defendant from doing so in the future.
Louise Clark is a property law consultant and mediator
