Practice and procedure – Injunction – Mooring – Claimant local authority seeking final prohibitory and mandatory injunction against defendants to prevent them mooring vessels on section of river – Whether claimant entitled to injunction – Application granted
The claimant was a local authority, within section 270(1) of the Local Government Act 1972, with responsibilities and duties related to the riverbanks, pathways and towpaths adjoining the River Thames running through the Royal Borough of Kingston-upon-Thames, including Riverside Walk.
The first defendant was a riverboat user, and director and majority shareholder of the second defendant company. For approximately 20 years prior to the grant of an interim injunction, he had been renting or hiring out boats, and taking fishing trips on a stretch of the river in Kingston-upon-Thames. In order to carry on that business, he kept boats moored in a location convenient to his business. He had no licence from the claimant and no private mooring rights. He had historically used the public and visitor moorings provided and maintained by the claimant.
By long established practice on the Thames, there was a limited entitlement to free mooring. Under the claimant’s mooring policy and charging scheme, for the first 24 hours, no fee was payable for mooring, provided the vessel did not return within 48 hours of leaving its mooring. For each subsequent 24 hours, a £10 fee was payable.
Since at least 2020, the claimant had received complaints about the first defendant’s boat hire operation and, in particular, to a pedalo operation that he appeared to have commenced in that location during lockdown.
The claimant sought a final prohibitory and mandatory injunction prohibiting mooring of boats other than that which might be regarded as the first defendant’s home. It contended that it was the freeholder of the riverside land in question; that the moorings on that stretch of riverside were in its possession and control; and that it had a leasehold interest at a location outside the Gazebo Public House, located near Riverside Walk.
Held: The application was granted.
(1) There was sufficient evidence before the court on which to conclude that for the purposes of an action in trespass, the claimant had proper entitlement to the possession of the land in respect of which it sought the remedy of injunction (namely, the riverside path and moorings).
First, the underlease, which was based on a shared assumption between the head-lessee and the lessor that the head-lessee had a right to restrict the mooring of boats by the landing stage and under the demise, conferred on the claimant duties to enforce that restriction. Second, there was no other sensible interpretation of the agreements than that the landing stage or strip, which might well have been constructed as part of works envisaged at the time, was understood by the parties to the agreement to form part of the demised premises, over which the underlessee was entitled and expected to exercise control. Third, the rule “usque ad medium filum aquae” (up to the middle of the river) applied, as a rule of construction of the extent of the demised premises, which enabled the court to presume that the whole width of the landing stage/strip was included in the demise contained in the underlease. There was no evidence to rebut that presumption. Finally, even if there were some defect in title, there was good evidence, both from the claimant and first defendant himself, that the landing stage was used as a public right of way and had been so for over 20 years, with no good evidence showing a contrary intention.
(2) Given that the claimant had been serving notices on the defendant since at least 2017, and that throughout the relevant period clear notices had been displayed at all moorings indicating that any free mooring was limited to the period of 24 hours, after which there was no return for another 48 hours, if the first defendant was seeking to raise acquiescence as a defence to the injunctive proceedings, it clearly failed. Given the history demonstrated in the evidence for the claimant, it would not be unconscionable for the claimant to seek to protect its possession rights by way of injunction.
The claimant had a lawful basis for the injunctive relief it sought based on the law of trespass; or, in the alternative based on its statutory powers under (amongst others) section 111 of the 1972 Act, as the body responsible for the public walkway and associated moorings at Riverside Walk. That claim was not defeated by any defence relying on acquiescence or a proprietary right (adverse possession).
(3) The introduction of a charging scheme was clearly aimed at deterring the kind of overstaying featured in this case. There was no evidential basis for the first defendant to argue that he was being singled out or treated in a discriminatory way. Rather, all river users in the Kingston area were discouraged from overstaying by means of the charging scheme.
Having regard to the relevant facts, even if article 8 of the European Convention on Human Rights was engaged, it would not be disproportionate, or in breach of any article 8 right of the first defendant, to order that the defendants had to conduct themselves as any other responsible boat user in the area. The court was mindful of the Supreme Court’s guidance in Manchester City Council v Pinnock [2010] 3 EGLR 113 in the context of an article 8 defence to possession proceedings. In that case the court held that in virtually every case where an occupier had no contractual or statutory protection, and the local authority was entitled to possession as a matter of domestic law, there would be a very strong case for saying that the making of an order for possession would be proportionate.
(4) The remedy of final injunctive relief was discretionary. Once made, the court would expect that order to be obeyed. Prima facie, a claimant who had proved trespass should be entitled to an injunction to protect its rights, unless there were strong countervailing reasons why such an order should not be made. On the evidence, damages would not be an adequate remedy or an effective means of deterring future non-compliance by the defendants. Given the long history of overstaying on the claimant’s moorings, the grant of injunctive relief to restrain future repetition, in circumstances where it had been sought by the claimant as a remedy of last resort, was an entirely proper exercise of discretion for the court.
Francis Hoar (instructed by SLLP) appeared for the claimant; The first defendant appeared in person and as director of the second defendant.
Eileen O’Grady, barrister
