Grand Union Canal – BWB refusing single-bank developer’s request to build new bridges over canal – Developer claiming right to do so under Grand Junction Canal Act 1793 – Whether relevant provision limited to owners of both banks – Canons of construction applicable to private Acts of that epoch – Appeal of defendant dismissed
Management of the Grand Union (formerly Grand Junction) Canal was governed by a private Act of parliament, the Grand Junction Canal Act 1793 . Sections 75 to 78 cast upon the British Waterways Board (BWB), as successor to the company incorporated by the Act, duties of drainage fencing and support owed to owners and occupier of lands ‘adjoining or near to the said canal’. Section 79 gave to owners and occupiers of lands ‘through which the said canal. . . cuts’ the right, subject to obtaining certain approvals, to build bridges, passages and drains and to execute like works ‘in over or near to the said canal’ at their own expense.
The plaintiff owned land adjoining the west bank of the Northampton arm of the canal. With plans for a major office and light industrial development it sought approval from BWB to build two new road bridges over the canal and to lay a pipe beneath. On failing to come to terms, the plaintiff claimed to be entitled to do the works without payment by virtue of section 79. BWB contended that the benefits of the section were limited to persons owning land on both sides of the canal. The judge rejected BWB’s argument that the preposition ‘through’, when contrasted with ‘adjoining’ as used in the preceding sections, could only refer to land which had been bisected when the canal was cut. BWB appealed.
Held The appeal was dismissed
1. It was well established that ambiguities in a private Act should be construed against the promoter: see Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B & Ad 792. Moreover caution was required when applying the normal canons of construction to enactments which preceded the establishment of the Office of Parliamentary Counsel in 1869, in particular where different words were used to express the same thing: see Freedman v British Railways Board unreported March 22 1980.
2. Though the OED defined ‘through’ in terms of one limit (or one side) to the other, it would not be incorrect to describe a canal which had cut away part of a boundary as one which cut through the land in question. That the draftsman intended section 79 to apply to the same category of owner and occupier as the preceding sections could be inferred above all from the insertion of section 79 as a proviso to that group of provisions. Nor was there anything in the Act to explain why ‘double riparian ownership’ should be especially favoured. For the same reason the owner of a single bank did not have to show that he derived title from a person who at one time owned both banks.
3. Since the right arose when such owners ‘at any time or times hereafter choose . . . to erect etc. . . ‘, it was not limited to owners at the time the canal was cut. The appellate function of the commissioners was now to be exercised by the court where consent was unreasonably refused.
4. Authoritative guidance on the construction of similar enactments was to be found in the illuminating judgment of Hoffman J in Freedman v British Railways Board.
Anthony Scrivener QC and John Whittaker (instructed by Nabarro Nathanson) appeared for the appellant; Terence Etherton QC and Jonathan Karas (instructed by Debenham & Co) appeared for the respondents.
