Waterway – Registration – Marina – Appellant laying informations against respondents alleging offences of keeping unregistered vessel on waterway – Judge finding marinas where vessels kept not forming part of river Thames – Appellant appealing by case stated – Whether marinas forming part of river within section 4 of Thames Conservancy Act 1932 – Whether Environment Agency (Inland Waterways) Order 2010 applying to marinas – Appeal allowed
Each of the respondents owned a vessel kept at either Thames and Kennet Marina in Reading or Penton Hook Marina in Chertsey, both of which had always been in private ownership. The appellant Environment Agency laid informations against the respondents alleging offences of keeping an unregistered vessel on a waterway, namely the river Thames, contrary to articles 4(1)(a) and 18(1) of the Environment Agency (Inland Waterways) Order 2010. Having considered the question as preliminary issue, the judge found that neither of the marinas formed part of the river Thames under the Thames Conservancy Act 1932 and, accordingly, that the provisions of the 2010 Order did not apply to the respondents’ vessels.
The word “Thames” was defined by section 4 of the 1932 Act as including “… all locks cuts and works within the said portions of rivers Provided that no dock lock canal or cut existing at [17 August 1894] and constructed under the authority of Parliament … shall be deemed to form part of the Thames”. The 2010 Order made provision for a new uniform registration system to govern use of the main inland waterways in respect of which the Environment Agency was the navigation authority.
The appellant appealed by way of case stated. The questions for the court were: (i) whether the marinas formed part of the river Thames within the meaning of section 4 of the 1932 Act; and (ii) whether the provisions of the 2010 Order applied to vessels kept in the Thames and the marinas.
Held: The appeal was allowed.
(1) The question whether the marinas formed part of the river for the purposes of the 1932 Act turned on whether the marinas fell with the meaning of “works” in the context of section 4. The use of the word “dock” in the proviso to section 4 indicated beyond sensible dispute that the draftsman understood that such a structure or work could fall within the meaning of “works”. Further support for that construction of section 4 could be found in sections 60 and 65 of the 1932 Act. The word “marina” did not appear in the 1932 Act, probably because it had come into common usage only relatively recently, but it had variously been described as “a dock or basin with moorings for yachts and other small crafts” and “a little dock for pleasure craft”. Thus defined, a marina fitted comfortably within the concept of a dock within section 4 and therefore also within the concept of “locks cuts and works” in that provision.
(2) That construction of section 4 was consistent specifically with the purpose of section 79 to promote and protect the public right of navigation “over or upon any and every part of the Thames through which Thames water flows”. The marinas clearly fell section 79(1) as places into which Thames water flowed. Moreover, the evident purpose of section 79 was to grant a very broad public right of navigation on any and every part of the river Thames, extending into waters of various kinds connected to the main channel of the river, which would include docks and basins where river-going vessels might be moored, serviced or repaired and facilities were provided for their users. Parliament had been careful to exclude those areas of water which could truly be regarded as being in “private” use by inserting the proviso to section 79(1): “all artificial inlets for moats boathouses ponds or other like private purposes”. That was not a proper description of the two marinas in the present case since they were not places to which the public h ad no lawful access or was discouraged from entering They were not akin to to those areas of water to which section 79(1) referred as being “for … like private purposes”. Therefore, one of the purposes of the 1932 Act was to extend the public right of navigation into waters such as those comprised in the two marinas. Since there was clear public benefit in the performance by the appellant of its functions in maintaining the level and flow of the river Thames, and generally in protecting the public right of navigation on the river, the statutory scheme ensured that those members of the public who enjoyed a particular benefit in those respects were liable for some financial contribution towards the work that was required to be done.
(3) The 2010 Order expressly adopted the definition of the river Thames provided in the 1932 Act. The judge erred in concluding that the issue she had to resolve turned on the concept of “adjacent waters” in article 2 of the draft 2010 Order. Had she directed herself correctly, she would have appreciated that in fact it turned on the definition of the river Thames in section 4 of the 1932 Act. Accordingly, that definition included both marinas. It necessarily followed that the 2010 Order applied to vessels kept in either of those two marinas.
David Perry QC and Richard Evans (instructed by the Environment Agency) appeared for the appellant; Mike Magee (instructed by Direct Access) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Environment Agency v Barrass and others
