Inland waterway – Residential mooring – Section 8 of British Waterways Act 1983 – Defendant statutory navigation authority serving section 8 notices requiring removal of claimant’s boat as moored without lawful authority – Whether right to moor resulting from rights created or preserved by Grand Junction Canal Act 1793 – Whether defendant acting in breach of claimant’s right to respect for home and private life under article of European Convention on Human Rights 1950 – Claim allowed
The claimant 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 defendant as the statutory navigation authority. In 2007, the defendant 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 claimant 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 defendant argued that, since the claimant had failed to establish the basis on which he asserted a positive permanent right to moor vessels in the relevant part of the waterway, it had been entitled to serve the section 8 notices.
Held: The claim was allowed.
(1) No licence was legally required for a vessel bona fide used for navigation exclusively on tidal stretches of the GUC which had not been designated as river waterways specified in or further to the British Waterways Act 1971. The public rights of navigation recognised by the 1793 Act still applied and the relevant stretch of the GUC for the purposes of this action had been agreed to be tidal. Unless the vessels in question were not used bona fide for navigation, so that they fell to be classified as houseboats, and if they were only used in tidal stretches of the GUC, they did not require and thus did not lack, at the time when the section 8 notices were served, any relevant consent for the purposes of section 17 of the British Waterways Act 1995 Act.
(2) However, pursuant to section 13 of the 1971 Act, it was unlawful to moor, place, keep or maintain a vessel which was not bona fide used for navigation on the GUC (including tidal stretches) or any inland waterway unless a houseboat certificate was in force and displayed. If a vessel was to be kept or used for navigation on any part of the GUC other than its tidal stretches then it had to be registered and certificated as a pleasure boat, unless certificated as a houseboat or licensed by the defendant to use all inland waterways. Its name and number had to be conspicuously displayed and its certificate produced on demand, otherwise its keeping or use was unlawful.
(3) In the present case, since public rights of navigation did not confer any right to moor, except temporarily, the claimant had not demonstrated any other right to moor permanently, whether in right of riparian ownership, possession of a riverbank or wharf, or under the 1793 Act, or otherwise. Accordingly, any protection of riparian rights which section 43 of the 1793 Act provided would not avail the claimant as regards his claim to a right of permanent mooring.
The vessels in the care of the claimant permanently moored without a right to do so were and remained subject to the navigational authority of the defendant and, in particular, to section 8 of the 1983 Act. Moreover, the claimant had not provided sufficient evidence to support the conclusion that the defendant was using its powers under section 8 for an improper collateral purpose, namely to further its collaboration with a developer.
(4) However, in serving section 8 notices, the defendant had failed to abide by its own procedures, and was in breach of legitimate expectations held by the claimant that, in exercising a power admitted by the defendant to be draconian and to be used only as a last resort, the defendant would abide by such procedures. The court would expect a warning to be given, prior to the issue of notices, in every case unless the circumstances were so urgent as to override the obvious fairness of giving such a warning. Since the claimant presently occupied one of the vessels as his home, it was appropriate to form the provisional view that his rights under article 8 of the European Convention on Human Rights had been infringed.
Per curiam: The legislation which the court had had to consider was disparate and complex nature and it was to be hoped that consideration would be given to bringing forward clearer consolidated legislation in due course to clarify and set out in more accessible form the extent of the defendant’s powers and the circumstances in which they might be exercised.
The claimant appeared in person; Christopher Stoner QC (instructed by Shoosmiths) appeared for the defendant.
Eileen O’Grady, barrister
