Inland waterway – Residential mooring – Section 8 of British Waterways Act 1983 – Appellant living in narrowboat moored alongside riverbank – Respondent statutory navigation authority serving section 8 notices requiring removal of appellant’s boat as moored – Whether appellant mooring boat without lawful authority – Appeal allowed The appellant lived on one of several narrowboats moored alongside the riverbank on the tidal reaches of the River Brent, at a boatyard operated by his employer. The river formed part of the route of the Grand Union Canal (GUC), which was vested in the respondent as the statutory navigation authority. In 2007, the respondent served notices, under section 8 of the British Waterways Act 1983, on all the moored boats, requiring their removal within 28 days as vessels moored without lawful authority in an inland waterway under its control. The appellant sought declarations that the notices were unlawful. He contended that he was entitled to moor by virtue of common law rights of navigation and rights preserved or conferred by the Grand Junction Canal Act 1793. In particular, he relied on section 43 of the 1793 Act, which conferred a private right of navigation on riparian owners and occupiers. However, even if the defendant had acted lawfully, the precipitate issuing of the notices without prior warning, in the absence of any real threat to safe navigation, was a disproportionate interference with his right to respect for home and private life under article 8 of the European Convention on Human Rights. The court made a number of declarations: [2012] EWHC 182 (Ch); [2012] PLSCS 45. The appellant appealed against the judge’s holding that, in the absence of the respondent’s permission, the long term mooring of vessels on a semi-tidal stretch of the GUC, close to the junction of the canalised River Brent element of the GUC and the River Thames, was “without lawful authority” within section 8 of the 1983 Act; and his finding that the appellant had not demonstrated any right under the general law to moor vessels permanently, either in right of riparian ownership or possession, or otherwise. Held: The appeal was allowed. The mindset at trial had been influenced by the positive nature of the mooring right asserted by the appellant, i.e. that under the common law he had a riparian right to moor vessels permanently which provided the “lawful authority” answer to the section 8 notices. That approach had sidelined the question whether the appellant was doing anything unlawful at common law by the mooring of his vessels along side the canal bank. Section 8 did not confer on the respondent a general statutory power to require the removal of vessels moored in the GUC without its permission. Its power under section 8 was exercisable only in a case where the vessel was there “without lawful authority”. If what was done with the vessel on the GUC was lawful at common law, the mooring was with lawful authority under section 8. The section 8 notices would clearly have been invalid if the appellant had established a positive private law or public law riparian right to moor vessels to the bank but he had failed to do so. The riparian right to moor was more circumscribed and fell short of a permanent mooring right. The public right of navigation did not include the permanent right to occupy any particular stretch of water. A riparian owner was entitled to the natural flow of the watercourse passing by his property and to access to and egress from his riparian property, even if he did not own any part of the soil. However, there was no authority to support the proposition that as against the owner of the bed of the waterway a riparian owner was entitled to maintain a floating structure or vessel indefinitely: Lyon v Fishmongers’ Co (1876) 1 App Cas 662, Iveagh v Martin [1961] 1 QB 232 and Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 considered. In the present case, the respondent had not alleged that the appellant had committed any wrong but had simply relied on its statutory powers. However, it had been unable to point to any power entitling the respondent to require the removal of vessels when no private or public wrong had been committed. In the light of what the respondent had accepted at trial, the court had been unable to identify any unlawful act that entitled the respondent to serve a notice under section 8. Although the common law did not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right did not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the appellant was doing was not a legal wrong, he was entitled to do it and was not acting “without lawful authority” within section 8, because the law allowed him to do what it did not prohibit at common law or by statute. Accordingly, the section 8 notices were invalid, on the narrow ground that they required the appellant to remove vessels when the respondent had no power to do that, as the presence of the vessels at a permanent mooring on the GUC was, on the agreed or conceded facts, not prohibited at common law or by statute and was therefore lawful. Furthermore, the judge had been correct in his legal ruling that a riparian right did not include a positive right to moor permanently in the GUC. The appellant appeared in person; Christopher Stoner QC (instructed by Shoosmiths LLP) appeared for the respondent. Eileen O’Grady, barrister
Inland waterway – Residential mooring – Section 8 of British Waterways Act 1983 – Appellant living in narrowboat moored alongside riverbank – Respondent statutory navigation authority serving section 8 notices requiring removal of appellant’s boat as moored – Whether appellant mooring boat without lawful authority – Appeal allowed The appellant lived on one of several narrowboats moored alongside the riverbank on the tidal reaches of the River Brent, at a boatyard operated by his employer. The river formed part of the route of the Grand Union Canal (GUC), which was vested in the respondent as the statutory navigation authority. In 2007, the respondent served notices, under section 8 of the British Waterways Act 1983, on all the moored boats, requiring their removal within 28 days as vessels moored without lawful authority in an inland waterway under its control. The appellant sought declarations that the notices were unlawful. He contended that he was entitled to moor by virtue of common law rights of navigation and rights preserved or conferred by the Grand Junction Canal Act 1793. In particular, he relied on section 43 of the 1793 Act, which conferred a private right of navigation on riparian owners and occupiers. However, even if the defendant had acted lawfully, the precipitate issuing of the notices without prior warning, in the absence of any real threat to safe navigation, was a disproportionate interference with his right to respect for home and private life under article 8 of the European Convention on Human Rights. The court made a number of declarations: [2012] EWHC 182 (Ch); [2012] PLSCS 45. The appellant appealed against the judge’s holding that, in the absence of the respondent’s permission, the long term mooring of vessels on a semi-tidal stretch of the GUC, close to the junction of the canalised River Brent element of the GUC and the River Thames, was “without lawful authority” within section 8 of the 1983 Act; and his finding that the appellant had not demonstrated any right under the general law to moor vessels permanently, either in right of riparian ownership or possession, or otherwise. Held: The appeal was allowed. The mindset at trial had been influenced by the positive nature of the mooring right asserted by the appellant, i.e. that under the common law he had a riparian right to moor vessels permanently which provided the “lawful authority” answer to the section 8 notices. That approach had sidelined the question whether the appellant was doing anything unlawful at common law by the mooring of his vessels along side the canal bank. Section 8 did not confer on the respondent a general statutory power to require the removal of vessels moored in the GUC without its permission. Its power under section 8 was exercisable only in a case where the vessel was there “without lawful authority”. If what was done with the vessel on the GUC was lawful at common law, the mooring was with lawful authority under section 8. The section 8 notices would clearly have been invalid if the appellant had established a positive private law or public law riparian right to moor vessels to the bank but he had failed to do so. The riparian right to moor was more circumscribed and fell short of a permanent mooring right. The public right of navigation did not include the permanent right to occupy any particular stretch of water. A riparian owner was entitled to the natural flow of the watercourse passing by his property and to access to and egress from his riparian property, even if he did not own any part of the soil. However, there was no authority to support the proposition that as against the owner of the bed of the waterway a riparian owner was entitled to maintain a floating structure or vessel indefinitely: Lyon v Fishmongers’ Co (1876) 1 App Cas 662, Iveagh v Martin [1961] 1 QB 232 and Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 considered. In the present case, the respondent had not alleged that the appellant had committed any wrong but had simply relied on its statutory powers. However, it had been unable to point to any power entitling the respondent to require the removal of vessels when no private or public wrong had been committed. In the light of what the respondent had accepted at trial, the court had been unable to identify any unlawful act that entitled the respondent to serve a notice under section 8. Although the common law did not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right did not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the appellant was doing was not a legal wrong, he was entitled to do it and was not acting “without lawful authority” within section 8, because the law allowed him to do what it did not prohibit at common law or by statute. Accordingly, the section 8 notices were invalid, on the narrow ground that they required the appellant to remove vessels when the respondent had no power to do that, as the presence of the vessels at a permanent mooring on the GUC was, on the agreed or conceded facts, not prohibited at common law or by statute and was therefore lawful. Furthermore, the judge had been correct in his legal ruling that a riparian right did not include a positive right to moor permanently in the GUC. The appellant appeared in person; Christopher Stoner QC (instructed by Shoosmiths LLP) appeared for the respondent. Eileen O’Grady, barrister
