Waterways – Human Rights – Licensing – British Waterways Act 1995 – Appellant keeping boat on canal pursuant to continuous cruising licence granted under section 17 of 1995 Act – Respondent waterways authority seeking removal of boat on grounds that licence validly terminated for non-compliance with its terms – Appellant raising defence under Article 8 of European Convention on Human Rights – Whether appropriate to strike out Article 8 defence summarily – Appeal allowed
Since 2011, the appellant had kept a canal boat on the Kennet and Avon canal pursuant to a “continuous cruising” licence issued to him by the British Waterways Board (BWB), as the statutory body responsible for managing and controlling the inland waterways of England and Wales. The licence, issued under section 17 of the British Waterways Act 1995, permitted the use of the boat on the waterways on the basis that it would be used for genuine navigation during the licence period.
In 2012, after the respondent took over the statutory functions of BWB, it took the view that the appellant’s use of his boat did not comply with the terms of the appellant’s licence in light of published BWB guidance as to the correct operation of section 17 of the 1995 Act. It based that view on its observations that the appellant’s boat had been confined to the same 5km section of the canal near Bradford-on-Avon from October 2011 to January 2013.
The respondent purported to terminate the appellant’s licence and gave him 28 days in which to remove his boat from the respondent’s owned and managed waters. When the appellant did not comply, the respondent applied to the county court for a declaration that it was entitled to remove the appellant’s boat from its property pursuant to statutory powers under section 8 of the British Waterways Act 1983 and section 13 of the British Waterways Act 1971. It also applied for injunctions restraining the appellant from mooring his boat on the Kennet and Avon canal and from mooring, navigating or securing the boat on any of its canals or waterways.
The appellant disputed the respondent’s interpretation of section 17 and denied that he was in breach of his licence conditions. He also contended that he had a physical disability that impeded his progress around the canal and that the respondent had failed to have regard to its duties under the Equality Act 2010. He further asserted that the boat was his home and that the respondent’s actions contravened his right to respect for his home under Article 8 of the European Convention on Human Rights.
The respondent was successful in an application to strike out the appellant’s Article 8 defence on the ground that it raised no seriously arguable case. The county court judge held that that it would be unreasonable to impose on the respondent the significant burden of having to consider Article 8 rights in every case involving alleged breaches of licence conditions. That decision was upheld by the High Court. The appellant appealed.
Held: The appeal was allowed.
(1) In cases concerning local authority housing, the balance between public interests and the requirements of hard-pushed local authority landlords, on the one hand, and the relative claims of individual tenants wishing to assert and to preserve rights under Article 8, on the other, were well tried and tested before the courts. It was therefore possible for the courts readily to assess the relative weight of those considerations in relation to the limited housing stock to be shared between applicants for housing in austerity conditions: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 applied.
The Pinnock line of cases did not demonstrate a true exception to the requirement of a structured approach to the proportionality assessment. Instead, the position was that, in public authority housing cases, the Article 8 issues were more amenable to a pre-trial summary assessment and determination in the authority’s favour than in other cases. The court was capable of deciding on such a summary application whether or not the Article 8 considerations afforded seriously arguable grounds for resisting the authority’s claims in whole or in part. The issue of whether the eviction was a proportionate means of achieving a legitimate aim could be determined at an early stage of the proceedings in a relatively straightforward manner. However, the position might not be so straightforward in cases involving other types of public authority.
(2) In parity with the housing cases, in cases of the present type the court would usually be able to proceed on the basis that the authority had sound management reasons for wishing to enforce its licensing regime rigorously, without such reasons being distinctly pleaded and proved. As in the housing cases, the court could not make the judgment as to how best the respondent should manage the waterways: Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] PLSCS 59 applied. The management duties and the authority’s ownership rights should normally be taken as a “given” and as having strong weight in the assessment of proportionality under Article 8. However, unlike the housing cases, the relative weight of the competing interests of a boat operator, using his vessel as a home, might not always be as easily apparent in an individual case, at least where there were underlying disputes as to whether the respondent was entitled to act as it did in terminating a licence.
There might be cases where the county court could determine, on a summary assessment before trial, that the boat operator’s right under the Convention could not prevail to the extent of requiring the authority to accommodate his home on the authority’s waterways or on a particular part or parts of them. For example, the respondent’s right to obtain the removal of a vessel, used as a home, from a waterway might be more easily vindicated by summary process where there had been flagrant and/or persistent breach of licence conditions which had not been remedied. However, in some cases, the personal circumstances and any factual objections raised might give rise to a seriously arguable case. There might be more difficulty in summary dismissal of a boat occupier’s Article 8 rights as being outweighed by the management requirements of the respondent in a case such as the present, where there were continuing genuine disputes as to whether licence conditions had been satisfied or where there were other issues in play, such as questions under the Equality Act 2010: Aster Communities Ltd v Akerman-Livingstone [2015] UKSC 16; [2015] AC 1399; [2015] EGLR 39 considered; Akerman v Richmond London Borough Council [2017] EWHC 84 (Admin); [2017] PLSCS 17 distinguished.
(3) In the circumstances of the instant case, it was not appropriate to strike out the appellant’s Article 8 defence summarily. While the respondent’s property rights in the canal, and the public interest in the management functions exercised by the respondent, could usually be taken as read, the judge could not properly dispose of the Article 8 considerations before deciding whether the licence conditions had truly been broken and that property rights and management rights under section 8 of the 1983 could therefore be invoked unquestioningly, subject only to Convention rights. Moreover, the appellant’s defence under the Equality Act 2010 could not be summarily determined. Further, the respondent sought extensive relief, including injunctions restraining any mooring of any duration on the Kennet and Avon canal, restraining navigation on any of the extensive waterways controlled by the respondent and an order for immediate removal of the appellant’s home, namely the boat, from the canal. The summary striking out of the appellant’s Article 8 defence would preclude the court from revisiting Article 8 considerations at the end of a trial when considering the extent of the relief to be granted.
(4) The judge was wrong to regard the “burden” of dealing with Article 8 defences as a reason for striking them out summarily. In that regard, it was relevant that the respondent’s aim in enforcing licence conditions should usually be a “given”, with the result that the envisaged burden would not arise in the normal run of cases of the present type. However, the burden of dealing with an Article 8 defence would, from time to time, have to be shouldered by the court in assessing a defendant’s personal circumstances and in the balancing exercise in weighing those circumstances against the “given” represented by the respondent’s aims in the proceedings.
James Stark (instructed by The Community Law Partnership Ltd, of Birmingham) appeared for the appellant; Christopher Stoner QC (instructed by Shoosmiths LLP, of Milton Keynes) appeared for the respondent.
Sally Dobson, barrister
Click here to read a transcript of Jones v Canal & River Trust
