ROYAL COURTS OF JUSTICE STRAND LONDON
BETWEEN:
LEIGH RAVENSCROFT Claimant
&
CANAL AND RIVER TRUST Defendant
INDEX TO CLAIMANTS STATEMENT OF CASE
Heading Sub-heading Page
Summary of Claim Issues (a) to (c) 1-2
The Relevant Legislation British Waterways Act 1983 2-3
British Waterways Act 1971 3
Definition of River Waterways Issue (a) Introduction 3-4
Transport Act 1968 4-9
Canals examples 9-11
The Common Law 12-18
Secondary Legislation 18-20
International Law 20-22
British Law 22-25
BW/CaRT Acknowledgement 25-26
Legislative Background 27-32
Rules of Construction: Private Acts 32-35
Rules of Construction: All Statutes 35-37
Site Characteristics 37-40
Disproportionality of Action Issue (b) Human Rights Act 1998 41-50
Extremity of Actions taken 50-57
The Lawful Objective 57
Unlawful Objectives 57-59
Article 6 of Convention Rights 59-60
The Statute of Marlborough 60-64
Application of Section 8 Issue (c) 64-71
Consequences of Misuse as Debt Recovery
Statute of Marlborough 71-72
Tribunals, Courts & Enforcement Act 2007 72-76
Remedy under Schedule 12 76-78
Torts (Interference with Goods) Act 1977 78-80
Interference with Rights of Navigation 80-81
Presumption of Probity Introduction 81-85
Unlawful Licence Demands 85-86
Unlawful s.8 Eviction Notices 86-91
Criminal Obstruction to the PRN 91-92
Choices in legal s.8 Cases 92-94
Withdrawn Licence s.8 Cases 94-96
Fraud and Forgery 96-98
Lack of Honour 98-101
Contempt of Court 101-102
Contempt of the Sovereign [Illegal Agreements] 102-105
Power to Board Boats 105-106
Dispensing with Data Protection Act 106
Agreeing to pay Costs 106-107
Statutory Obligation 108-109
Relevance of the History 109-110
Parliamentary Concern 110-113
Summary Licence Requirement 114-115
Violation of Marlborough & the Human Rights Act 115
Nature of s.8 Powers 115
Requested Declarations As to Construction of the Private Acts
Main Navigable Channel in 1971 Act 116
Effect of s.8 in 1983 Act 116-117
As to Grandma Molly/Three Wise Monkeys 117-118
Statement of Truth 118
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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ROYAL COURTS OF JUSTICE STRAND LONDON
BETWEEN:
LEIGH RAVENSCROFT Claimant
&
CANAL AND RIVER TRUST Defendant
CLAIMANTS STATEMENT OF CASE
SUMMARY OF CLAIM
1. The facts of the matter are as set out in the Claimants Particulars of Claim. They
deal with the background history of the boat named Three Wise Monkeys [formerly Grandma Molly], initially registered by the Claimant in July 2010, and given the British Waterways [BW] Pleasure Boat Certificate number: 73563.
(a) It is claimed that Canal and River Trust [CaRT] have seized the boat unlawfully, having done so upon their own unilateral definition of the extent of
the main navigable channel of the river Trent, without recourse to the
Secretary of State for defining maps as provided for in the relevant legislation.
(b) It is further claimed that CaRT have acted unlawfully - even in the event [which is denied] that the boat was within the legislations ambit - in failing to apply the specified sanctions for the alleged offence; instead they have
applied the most draconian and disproportionate sanction in their arsenal.
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(c) It is yet further claimed that the exercise of s.8 powers, in circumstances where the boat is causing no obstruction, is unlawful where the identity of the
boat owner is known, debt is alleged, yet no Court Order has been obtained.
THE RELEVANT LEGISLATION
British Waterways Board Act 1983
2. The power to seize and remove boats is claimed under s.8 of the British
Waterways [BW] Act 1983. This provides that
(2) The Board may remove any relevant craft after giving not less than 28 days notice to the owner of the relevant craft, stating the effects of this
section.
[As per s.8(1) relevant craft means any vessel which is sunk, stranded or abandoned in any inland waterway or in any reservoir owned or managed by
the Board or which is left or moored therein without lawful authority . . .]
3. The question then, as to whether any boat falls within the class of craft that may be
subject to s.8(2) is determined [if not sunk, stranded or abandoned] on the grounds of it being left on CaRTs waterways without lawful authority.
4. The only question to be resolved in this case is, as a consequence of the above,
whether or no the boat requires such lawful authority to be kept on the relevant
section of CaRTs waterways.
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5. It has to be recognised that CaRTs powers to control the presence of boats on
waterways within their jurisdiction vary according to the nature of those waterways. There are the artificial canals; the rivers enjoying public rights of navigation amended under the 1971 Act Schedule 1 [as amended in 1974 and 1995], and tidal rivers remaining outside of the 1971 Act. As HHJ Hildyard said in Moore v British
Waterways Board [2012] EWHC 182 (Ch) (10 February 2012):
In particular, in my view, BWB have never convincingly addressed or offered
a coherent and consistent explanation of the fact that the legislation has
distinguished between the various types of inland waterways under its
ownership or control, and BWB's powers are differently expressed in
relation to each. [my bold]
British Waterways Board Act 1971
6. The relevant waterway in this case is the River Trent, which is one of those listed
in Schedule 1 of the 1971 Act. That Act provided that from passage of the Act the
free river status of the relevant sections of listed rivers were to be subject to the requirement to possess a current pleasure boat certificate:
Section 5(1) It shall not be lawful to keep, let for hire or use a pleasure boat on a river waterway unless a certificate, in this Act referred to as a pleasure
boat certificate, in relation to the pleasure boat is then in force or unless
there is then in force in relation to it a licence issued by the Board allowing the
use of all inland waterways without further payment. [my bold]
7. It is CaRTs case that the boat fell into the category of relevant craft by reason of
it being kept on the Trent without a current pleasure boat certificate.
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DEFINITION OF RIVER WATERWAYS
Addressing Claim (a) -
8. In order to understand the distinguishing character of the 1971 Pleasure Boat
Certificate [as differing from the universal Pleasure Boat Licence demanded under the 1976 Byelaws], the waterways definitions therein must be referred to.
9. The part of the 1971 Act that set the requirement for registration of pleasure boats
begins by defining with clear particularity those areas of the specified lengths of
specified rivers to which the section was to apply:
s.4(1) This Part of the Act applies to the main navigable channel of each of the inland waterways specified in Schedule 1 to this Act which channel so
specified is in this Act referred to as a river waterway. [my bold]
10. For CaRT to justify their action under s.8 of the 1983 Act then, they must first establish that the boat was kept within the main navigable channel. It is contended
here that it was not.
11. The language of the Act is clear, and as a relatively modern Act it is to be
assumed that redundancy of vocabulary was not indulged in when drafting the
legislation [unlike the case with 18thC and 19thC private Acts, where the language reflected the paid-by-word-count influence of the professional draftsmen].
12. Use of the adjective main then, in the description main navigable channel sends a clear signal of the legislations intent as to the extent of the sections
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application it was not to include those navigable channels that did not constitute the
main channel. Use of the word main necessarily implies the existence of secondary
navigable channels even within geographically limited waterways. It is used to
designate a fairway through the single navigable channel of even artificial canals,
where no subsidiary, physically separated alternatives/branches/tributaries exist.
13. As the pivotal point of the argument, it is needful to exam in some detail the
legislative usage of the descriptive phrase.
The Transport Act 1968
14. The Transport Act 1968 was designed to relieve BW of the costly responsibilities
they had in respect of maintenance of the Boards waterways. From the very
beginning of their formation under the Transport Act of 1962, they had been
promoting one private Act after another to remove their liability to maintain waterways
in a navigable state, these being the private Acts of 1963; 1965, and 1966.
15. Finally, the public Act of 1968 put an end to the incremental removal of the
navigation rights over particular lengths of canal by the simple although drastic step
of removing ALL public and private navigation rights over the entire artificial canal
system. It replaced those navigation rights [with the accompanying obligation to maintain them as fully navigable] with a three part classification of the waterways according to which those waterways were to be maintained [or not] to differing, now limited standards.
16. The first sector of waterways was classified as Commercial Waterways; these
BW were obligated to maintain in a state useable by the size of commercial craft
accustomed to use those waterways in the nine months prior to 8 December 1967.
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17. The second sector of waterways was classified as Cruising Waterways; these
BW were to be obligated to maintain only to the extent that they would be useable by
the normal size of pleasure boat accustomed to use those waterways in the nine
months prior to 8 December 1967.
18. The third sector of waterways was classified as Remainder Waterways, for
which BW had no obligation to maintain as navigable at all.
19. For each of the two navigable tranches of waterways, whether for commercial
use or pleasure use standards, that obligation was further limited. Part VII, s.104
provides:
Classification of the Boards waterways.
(1) For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertaking of the Waterways Board shall be divided into
(a) the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Part of this Act referred to as the commercial waterways) to be principally available for the commercial carriage of freight;
(b) the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as the cruising waterways) to be principally available for cruising, fishing and other recreational purposes; and
(c) the remainder.
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(2) The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister [or, in the case of a waterway in Scotland, the Scottish Ministers] for giving greater precision to that description by reference to a map. [my bold]
20. Section 105 provides:
Maintenance of the Boards waterways.
(1) With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways
Board, subject to the provisions of this section
(a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and
(b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of
passengers and driven by mechanical power.
(2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board any duty to maintain a waterway, or
any part of a waterway, in a suitable condition for use by any vessel of
the kind mentioned in that paragraph unless the dimensions of the
vessel (that it to say, its length, width, height of superstructure and draught)
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(a) correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months
ending with 8th December 1967; or
(b) if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part; but, save as
aforesaid, the duty imposed by that paragraph shall extend to any vessel of
the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied. [my bold]
21. Clarifying these limits to BWs obligation to maintain navigability, the definitions in
the aforementioned Schedule 12 confirm that the obligation was restricted to -
The main navigable channels of the following waterways: -
21. As relevant to this case, included within the Commercial category was the main
navigable channel of The Trent Navigation from the tail of Meadow Lane Lock,
Nottingham, to Gainsborough Bridge.
22. The Board were, as consequence of this Act, obliged only to keep the main
navigable channel of the relevant waterways in a suitable state for use by the type
and size of craft designated. Their obligation, in other words, was limited to
maintaining as navigable for the designated size of vessels the fairway of the
waterway, and the Schedule 12 list includes amongst the two sets of waterways both
rivers and the artificial canals.
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23. It is notable that the defining vocabulary of BW/CaRTs maintenance obligation
is identical to the later 1971 legislation as to the extent of boaters registration
obligation. That is true both as to the description of main navigable channel, and to
the provision in cases of uncertainty for a Minister/Secretary of State approved map
to more precisely delineate the boundaries if necessary.
Canals Examples
24. In clear contrast to many of the main rivers, the canal system comprised more
restrictive widths. Even within those restrictive navigable channels however, a main
navigable channel to be kept clear at all times was recognised within the enabling
legislature well before the passing of Schedule 12 of the Transport Act 1968.
25. Rights under the enabling Acts invariably granted the right for riparian owners to
build facilities both for commercial wharfage and for boats to lie against, fees in
respect of which were reserved to the owners rather than to the proprietors of the
canal. The invariable restriction placed upon those rights was that neither structures
nor boats using them should impede the navigable channel.
26. It is obvious then, that these Acts acknowledged even on the wholly private
property of the canal, a distinction between a main navigable channel, and space
available for moorings and for boats to lie alongside the banks.
27. An example is that of the GJCC Act of 1793, which further defined the space to
be kept clear at all times as being that sufficient to allow two boats of the designed
dimensions for the navigation, to pass each other. This equates to the main
navigable channel of a navigation purposely designed and built to be navigable from
bank to bank. [Exhibit 1]
10
28. The principle is still acknowledged in CaRTs online publication of the determining
factors for private building and using such facilities [the claimed right to approve and charge for consent to these being a contempt of statute outside the remit of this
case]. The website describes the width to be kept clear as the Minimum Operational Channel, and it is notable that, sensibly [and in line with international law on main navigable channels] the channel so described is dependant upon depth of water as well, such that the middle of the waterway may not necessarily be the deepest area
[particularly on the bends], and the positioning of the Main Navigable/Minimum Operational Channel will vary accordingly. [Exhibit 2]
29. Naturally enough, the width of the Main Navigable/Minimum Operational
channel varies according to the navigation concerned; thus the website lists
examples of relevant dimensions as being:
Lee Navigation 12.00 metres
Grand Union 10.00 metres
Stort 7.60 metres
Grand Union (Slough Arm) 5.30 metres
30. To put those figures into perspective, the Grand Union Canal as an example, was
built to 20 yards width as standard [this was the maximum they could acquire under compulsory purchase]. The Minimum Operational Channel therefore, can be seen to be approximately half the entire navigable channel.
31. That the concept of the operational channel being defined by the ability for two
boats to pass each other is a matter of general understanding, is illustrated by the
recent letter of Ian Lane, the new waterway manager for the West Midlands:
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Further to my last email I have been trying to find if we have a navigation
policy regarding vegetation on both sides and unfortunately have had little
success. However whilst it appears that we do not have a set policy, there is
a clear aspiration to maintain the navigation to allow 2 boats to pass.
Unfortunately from your photos we are clearly not achieving this in some
places.
This criterion for determining the main navigable/minimum operational channel is
confirmed in the 2011 Discussion Paper published by BWs Head of Asset
Management, Mr Graham Holland. [Exhibit 3] The main navigable channel of all BW waters has been determined by identifying the pinch points limiting craft
dimensions, then doubling that with a bit to spare to define a channel sufficing to
allow 2 boats to pass each other. This has been applied to every stretch of river and
canal and published in the WUSIG spreadsheet of 2011. -
http://www.britishwaterways.co.uk/media/documents/meetings/wusig/MOC-
dimensions-comparison-v3-110311.xls
32. In clear distinction from the wording of the 1971 Act respecting the scheduled
rivers, the 1976 Byelaw licensing requirement for boats on all waterways NOT being
river waterways, admits of no similar limitation: regardless of whether the boats are
kept outside of the Minimum Operational Channel, they must possess and display a
Pleasure Boat Licence good for all CaRT waterways.
33. Recognition of this essential difference in the character of the requirements is key
to the issue. The 1968 Transport Act as cited previously, confirms this understanding
in including the canals in the system within the Cruising or Commercial categories
listed in Schedule 12, of which the main navigable channel only - as with the rivers -
was required to be maintained to the relevant standard.
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The Common Law
34. If a main navigable channel can be distinguished within the single navigable
channel of artificial canals as in the examples above, the situation is even clearer
when dealing with natural rivers.
35. To further illustrate why this additional qualifying adjective [main] made its way into the legislation, the distinction between tidal rivers and non-tidal rivers respecting
the Public Right of Navigation [PRN] must be apprehended.
36. It is settled law in the Courts of England that in tidal rivers the PRN extends over
the whole course of the navigation i.e. from bank to bank.
37. On non-tidal rivers, the public right does NOT extend from bank to bank; it is
confined to the central navigable channel Rowland v Environment Agency [2002] EWHC 2785 (Ch). The right of navigation over privately owned non-tidal rivers is thus more restricted than on tidal rivers and the rights of navigation [inclusive of the right to both use & keep boats on the water] outside of the central channel, vest only in
the riparian owners.
38. With this understanding, it is readily appreciated why this legislation distinguished
between the navigable channel that extends from bank to bank [as on some of the scheduled river lengths], and the public main navigable channel [as applies to most of them] that is confined to an area falling short of the banks. BW could not grant a licence to the public to trespass over the navigable channel belonging to third parties.
39. The Trent under CaRTs jurisdiction is tidal between Gainsborough Bridge and Cromwell Lock. Further upstream from Cromwell Lock it is non-tidal, and certainly so
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far upstream as Farndon, the ownership of the riverbed vests in the riparian owners.
[Exhibit 4]
40. The common law right of the riparian owner - as distinct from the general public -
to exercise rights of navigation respecting using and keeping boats moored over his
property outside of the main, public navigable channel, is as a consequence
designedly unaffected by the provisions of the 1971 Act. The promoters of the 1971
Act asked Parliament to amend the public rights of navigation only to the limited
extent that it did; it never purported to ask for amendment of the private rights of
navigation. That is in direct contrast to the terms, for example, of the Transport Act
1968, which - respecting the artificial canals where the rights of navigation were
expressly conferred by the Enabling Acts rather than arising from the common law
rights on rivers expressly abolished both public and private rights of navigation.
41. This inevitable conclusion is given added weight, moreover, by the Acts
recognition that circumstances could arise wherein debate over the precise
boundaries of the main navigable channel was possible. No such debate could
arise if the wording had simply referred to the whole navigable channel of the rivers.
42. Hence s.4(2): The description of any waterway contained in the said schedule shall be read subject to any order made by the Secretary of State for further defining the waterway by reference to a map. [my bold]
43. It is obvious that further defining the waterway as to the extremities of its length is
quite unnecessary, given that these are described with precision and need no map
for further defining as with the Trent for example, whose applicable length is
described in Schedule 1 to the 1971 Act as from the tail of Meadow Lane Lock,
Nottingham, to Gainsborough Bridge.
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44. With start and end points of jurisdiction thus clear, the only possible area left for further defining the waterway by reference to a map, must be the width.
45. It has been suggested by some that other navigable channels must refer to
alternate parallel cuts, canals, tributaries and marinas. If that were so, then the Act
could simply have referred to the river, or to the navigable channel of the river but
the jurisdiction of the authority is limited to the river itself in any event, and there would be no need to refer to a map further defining the river itself in case of alleged
ambiguity.
46. Non-navigable channels/inlets/tributaries etc would, in any event, be outside of
the scope of the Act. The obligation to maintain the navigation is inherited from the
British Transport Commission and was diminished under the terms of the Transport
Act 1968 as reviewed above - to apply only to the main navigable channel of the
rivers and canals.
47. In the case of very wide waters such as in the harbours, or in tidal rivers where
knowing the navigable channels is critical, the channels both main and otherwise are
often marked out by a system of buoys, marker poles or lights [and charts are usually available for reference to and indicating these], but where the whole of the river is ordinarily navigable at all times, the main navigable channel is a matter of common
sense keeping to the middle avoiding moored boats &/or permanent structures
encroaching into the river; there is no precise border to it. Only if a question arose
over the technical definition for the purpose of something like the registration
requirement, would any necessity be seen for a map further defining the waterway
[already defined as the main navigable channel of the river] by reference to a map.
15
48. It is important to note that no power was bestowed upon BW in respect of an
ability to unilaterally define the extent of the main navigable channel. The very fact
that any further defining by reference to a map is only to be by order of the
Secretary of State, makes it crystal clear that any such refining of the definition was
not a matter to be left to BWs discretion [nor of course to their successor].
49. It is a matter of record that no such maps for further defining the extent of the
main navigable channel have ever been made under any order of the Secretary of
State at any time. The only maps held by CaRT purport to show only the extent of
their jurisdiction over the rivers, NOT the extent of the main navigable channel; they have quite simply never seen the need for such maps, imposing their own unilaterally
derived definition for main as embracing the whole navigable channel. As s.4(2) demonstrates, however: no such unilateral power of interpretation is legitimately
available to them.
50. It is submitted that merging the meanings of main and whole does violence to
the plain language, and that the common-sense understanding of the statutes
application would acknowledge that most boats moored to the banks of the river on a
more or less permanent basis, must be considered as not intruding into that main
navigable channel.
51. This would likewise apply to many of those moorings that intrude yet further into
the river by way of jetties and pontoons, though probably not all. [It is a feature of riparian rights on tidal rivers some of which are likewise embraced within this
legislation - that the right of access to their bank at all times may be accomplished by
building jetties out to the main navigable channel. In such circumstances the licensing requirement for boats kept there would bite as the wording includes
boats kept within, and not merely using the main navigable channel.]
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52. In short, when reading the statute as might the man on the Clapham omnibus,
the distinction between a main navigable channel and the entire navigable channel is
as obvious as BWs Information Officer evidently found it. [see paragraphs 84, 85]
53. This is no new concept; the issue was raised in the Appeal Court in the case of
BWB v Peter James in 2003:
But Mr James submitted to us that had he been in possession of the
statutory material in the lower court, there were other points which he would
wish to have taken. In particular, he would have wished to contend that at all
material times Ya Basta was not on a river waterway for the purposes of
section 5 of the 1971 Act because, as one can see from section 4(1):
This Part of this Act [which includes section 5] applies to the main navigable channel of each of the inland waterways specified in Schedule 1 to this Act
[the River Severn is so specified] which channel so specified is in this Act referred to as a river waterway.
He contends that it is only a part of the river which can properly be
regarded as the river waterway for the purposes of section 5. That is not
an issue which was ventilated before the magistrates, and it is in no sense
part of the material which we have to decide today. Were it necessary to
adjudicate upon it, we would have to have submissions which we have not had the benefit of, and we make no finding about it. But we can well
understand why Mr James wishes to observe, as he has, that that was a
point that he would have wanted to have taken. [my bold]
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54. It is a point of mild interest that BW offered no response to Mr James argument,
even though doubtless they saw it in the same light as the Appellate judges something extraneous to the pleadings at issue. It is significant that the judge did not belittle the argument; on the contrary he only set it aside as an issue not pleaded in
the court below, while accepting the force of the argument.
55. In all the premises above, it is submitted that whether or not a permanently
moored boat is to be subjected to enforcement [of whatever nature] on the basis of s.5 of the 1971 Act, should in all cases be a matter dependant upon the production of
a Secretary of State approved map. This would not be too difficult or onerous a
matter for CaRT to arrange.
56. For so long as the common-sense view of the extent of main navigable channel
[assisted by comparison with the effect of the Thames Conservancy Act it was modelled on] is to be challenged by CaRT, the absence of such maps is a serious drawback to those wishing to know exactly where the boundaries of the applicable
legislation lies. It is wrong to continue to permit the interpretation of the Statute to be
the sole province of CaRT.
57. HHJ Hildyard concluded his judgment in Moore v BWB [2012] with the expressed hope that consideration be given to bringing forward clearer consolidated
legislation in due course to clarify and set out in more accessible form the extent of
BWB's powers and the circumstances in which they may be exercised. [my bold] In this instance, the production of such maps as the legislation already allows that the Secretary of State may approve, would serve to provide that more
accessible form.
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58. As HHJ Hildyard later commented in his subsequent judgment on the Human Rights aspect of that case: It does not seem to me to be right that the boating
public should be faced with this morass of legislation going back to 1793 if it is to
ascertain its rights and not be left to rely on the say-so of the British Waterways
Board.
59. It is submitted however, that in this case the 1971 legislation has made clear
provision for the avoidance of reliance on BW/CaRTs say-so as to the extent of the
main navigable channel, and that therefore no action could lawfully be taken
against any boat moored to the bank [as compared with one moored to a jetty or pontoon extending into the main navigable channel] for so long as that clear provision has been neglected, in favour of the authoritys say-so.
Secondary Legislation
60. The recognition that there may be several navigable channels within the same
body of water [as distinct from physically separated channels flowing in much the same direction, or flowing into the principal channel] exists in other legislation such as Byelaws. For example, navigable channels are, in the Southampton Harbour
Byelaws 2003, distinguished as a fairway. Their definition provides:
fairway means a navigable channel which is a regular course or track of
shipping including navigable channels marked, dredged or maintained by
ABP;
61. Byelaw 19 relating to navigation in fairways makes clear that there will be boats
that can navigate outside of the designated navigable channel [i.e. within secondary navigable channels as distinct from the main fairway], as:
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(1) The master of a small vessel, which is not confined to the fairway, shall not make use of the fairway so as to obstruct other vessels which can
navigate only within the fairway.
62. This accords with the definition in Websters New World College Dictionary that
gives the nautical [non-golf] meaning of fairway as: a navigable channel in a river, harbor, etc.; often, specif., the middle of such a channel. [my bold].
63. Identical definitions to that in the Southampton Harbour Byelaws 2003 are
given in the Humber Navigation Byelaws 1990; the Medway Ports River Byelaws
1991, and the Windermere Lake Byelaws 2012.
64. Even more particularity is given to the meaning of navigable channels in the
River Hamble Byelaws 1986, which state Fairway means the navigable channel of
the river and includes those parts of the channel kept clear of moorings or other
obstructions in order to give vessels clear passage. [my bold]
65. The Port of Ipswich Byelaws 1996 putting it the other way around: navigable
channel means the fairway of the River Orwell . . . [my bold]
66. The British Waterways Byelaws for River Ouse and Foss Navigation contain a
good illustration of the use of a fairway within a wider navigable channel:
Precedence on fairway
12. (a) A vessel not propelled by power when meeting, overtaking or being overtaken by a power-driven vessel shall so far as it is safe and
practicable keep out of the fairway.
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(b) A vessel when meeting, overtaking or being overtaken by a vessel of deeper draught shall so far as it is safe and practicable give the
fairway to that vessel.
67. Identical concerns are embraced within the Port of London Authority Byelaws
2012, relating to the single channel of the Thames:
14.4 A person using a personal water craft must not enter a fairway except
where crossing in accordance with Rule 9 of the International Collision
Regulations.
68. Finally, the Southampton Harbour Byelaws 2003 referred to previously, further
distinguish [byelaw 11] amongst the available fairways/channels a Precautionary Area which means the main navigable channel . . . [my bold]
69. That there is clear intent in the legislative language, distinguishing between
navigable water and navigable channels, and further distinguishing amongst the
latter a main navigable channel, is, it is submitted, an irresistible conclusion.
International Law
70. The character of the main navigable channel [i.e. as described by CaRT as minimum operational channel depending on depth as well] is, as noted, commensurate with International law. Farnham Law of Waters & Water Rights
vol.I deals with Boundary rivers [pgs 30,31]
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7. Boundary rivers - When a river forms the boundary between two states or
nations, the title to each is presumed to extend to the middle of the main
channel of the stream. In such cases the land covered by the water on each
side of the dividing line is as much the property of the bordering state as
though the water did not flow over it. This line is the middle of the main
navigable channel, and not the middle line measuring from bank to bank,
nor the line followed by vessels engaged in navigating the stream. The
navigation of the stream is of paramount importance to each state,
imperatively demanding that its rights be fixed in such a way as to give it
equal access to the navigable channel. Consequently, when applied to
boundaries between states the words middle of the river and middle of the
main channel are synonymous. [my emphasis]
71. The Treatise cites Iowa v Illinois, 147 U.S. 1, 37 L. ed.55, 13 Sup. Ct. Rep. 239.
and some 19 other cases in support. Commenting on two contrary cases, a footnote
explains:
These decisions are plainly contrary not only to the weight of authority, but to
true principle, because there are streams the character of which is such that
there are large stretches of shallow water along one shore, so that if the
middle line from shore to shore was taken the territory of the state on that
side might not reach the navigable portion of the stream.
72. The above case law does but state what common sense dictates that while the
entire width of a waterway may be navigable by vessels, those with deeper draft
and/or other size restrictions may well be confined to a particular channel within its
breadth. Determination of a main navigable channel useable by all will be a matter of
fact dictated by the individual physical characteristics of the river. For the purposes of
22
the 1968 and 1971 Acts, the main navigable channel is definable according to the
dimensions of the customary craft that used them, whether commercial or cruising.
British Law
73. The case of Rowland v Environment Agency [2002] EWHC 2785 (Ch) has already been referred to respecting the rights of the public in tidal compared to non-
tidal rivers. As expounded there:
49. There are two distinctions at common law between tidal and non-tidal
rivers. (a) In the case of tidal rivers the presumption is that the bed of the river belongs to the Crown and to establish PRN no prescriptive user is required; in
non-tidal rivers the presumption is that it is vested in the riparian owners and
a prescriptive user has to be established. In a case such as the present
where the PRN is established, this distinction between tidal and non-tidal
rivers is irrelevant. (b) In the case of tidal rivers the public rights extend over the whole watercourse but in the case of non-tidal rivers the public rights
(at least ordinarily) are confined to the channel of the river: see Orr Ewing v. Colqhoun (1887) 2 App. Cas. 839 at 848 per Lord Blackburn. [my bold]
74. Even where the public right extends from bank to bank of course, there will be
many examples where the ability to navigate in certain vessels will be physically
confined to certain channels within the river. An obvious example is presented where
bridges cross the navigation, such that on the larger tidal rivers some arches will be
designated as the main navigable channel, some will be classified as minor channels
available to smaller craft, while others yet may be closed to navigation, for all that the
public right extends from bank to bank in these tidal rivers.
23
75. The principle of the public right being confined to the main navigable channel in
non-tidal rivers was upheld in several previous cases where obstructions to
navigation by bridges were claimed.
76. Reg v Betts 16 QB 1022, 1850 was a case on the river Witham [one of the scheduled rivers of the 1971 Act], where the navigation proprietors had been accused of the criminal action of obstructing the public right of navigation through
building a railway bridge immediately upstream of the Boston Grand Sluice Lock. The
proprietors were cleared by a jury of the accusation, considering that as the bridge arch in front of the lock was at least as commodious as the lock and no vessel
wider than the lock could pass through anyway - the practically available navigable
channel itself was not obstructed.
77. It is incontrovertible therefore, that so far as this scheduled river is concerned, the
main navigable channel has been effectively defined - as comprising a considerably
smaller fraction of the whole width of the navigable river - for the past 165 years.
78. The later case of Orr Ewing v Colquhourn [1877] HL (Sc) likewise dealt with the extent, if any, a bridge built across the navigable river Leven obstructed the right
of navigation. The nature of the river was an inland stream, and the tide does not
flow up to the point where the piers are erected. Thus, in the words of Lord Hatherly
we have further to consider what the navigable channel of the river is; and
I think upon that it is established beyond a doubt that except in extraordinary
circumstances, such as possibly I may have afterwards to refer to in
connection with piece of evidence, the navigable channel of the river is
from a distance of twenty-five feet . . . to the west of the easternmost pier,
24
which is the particular pier complained of in the progress of this case as
interfering with the navigation.
I think it will be found that the evidence largely preponderates to shew that
barges were never in the habit of taking any other course than the course
down the western side of the pier and in the deepest channel of the river;
and that so far were they from taking any other course, especially towards the
east of the pier, that the witnesses tell us that it was considered dangerous to
pass by on that side, because if you passed at all near to that portion of the
river which would be to the east of the pier, or which the pier itself occupies,
you would run a great risk of being carried into the lade, a result which of
course would be deprecated by those who were skilled in navigating the
river. [my bold]
79. Based upon the fact that the customary navigable channel was practically limited
to the degree described, and [again as with Reg v Betts] that the bridge arch spanned that channel, and at a sufficient height, he declared:
. . . it appears to me to be established plainly and distinctly that there is no
interference with the right of navigation on this river.
80. He went on to explain:
The question seems to be simply this: Does this bridge interfere with that
right of navigation as exercised, or as capable of being exercised, in the
stream? [my bold] I think we have evidence here which is beyond all dispute . . that the right of navigation has not been exercised to the east of the
piers of the bridge.
25
81. So although it was possible for boats to navigate the river to the east side of the
river however dangerous and difficult that was under the circumstances - the right
of navigation on this non-tidal portion of the river was limited to the customary, or [as we might put it adopting the terms of the 1971 legislation] main navigable channel.
BW/CaRT Acknowledgement
82. Apropos of a far earlier case, a request was made via the WhatDoTheyKnow
website, for copies of any Secretary of State approved maps further defining the
main navigable channel of the scheduled river waterways.
83. The answer dated 26 August 2011 was:
Maps of each of the river navigations listed in Schedule One of the British
Waterways Act 1971, as amended by the British Waterways Act 1974, which
mark the main navigable channel of each of those rivers do not exist and, for
that reason, this information is not held by British Waterways. [my bold]
84. In a follow-up to that request, reference was made to a prior incident [also on the river Trent] dating back to 2008, wherein a marked map purporting to show the area within which registration was required was sent to the s.8 recipient. This map was
subsequently produced, with its dotted green line as described, with the comment:
Further to your query of 28th August I am now in receipt of the map referred
to in the following correspondence between Mr Cropper and the 'Trent
boater':
26
"I attach the River layout for the Beeston Chalets area; the map shows an
intermittent green line which indicates the navigation. All craft moored on the
river (between the green lines on the attached map) require a current River licence."
I attach a copy of this map for you now. You will see that the intermittent
green line is drawn on either edge of the section of the River Trent to
show the entire navigation and not, as you believed, drawn to indicate
the main navigable channel. .
Again I can confirm that maps of each of the river navigations listed in
Schedule One of the British Waterways Act 1971, as amended by the British
Waterways Act 1974, which mark the main navigable channel of each of
those rivers do not exist and, for that reason, this information is not held by
British Waterways. [my bold and underlining]
85. This is clear recognition that BW understood and acknowledged the distinction
between the entire navigation within either edge of the section of the River Trent
and the main navigable channel [even though the 2008 enforcement officer had wrongly [&/or willfully] assumed that boats anywhere within the entire navigation were subject to registration requirements]. [Exhibit 5]
86. It can be noted here for the sake of completeness, without actually referencing
the past stoppages programme notices by BW, that these too made mention of works
affecting some of the scheduled rivers, resulting in closure of some navigable
channels while not affecting the main navigable channel.
27
Legislative Background
87. The intent behind the legislation is abundantly clear from the Bill itself; from the
Hansard debate over the Bill and its purpose, and from the Select Committee
Minutes of Evidence. [Exhibit 6]
88. The intent was not to impose any registration requirement on boats merely kept
on the river while outside the main navigable channel, but rather to impose the
requirement on all boats that would use the channel, thereby enjoying the benefits of the work done in maintaining the navigability of the rivers at some considerable
cost to the authority. As Mr Jupp QC for British Waterways explained to the
Chairman of the Select Committee:
The licence which a boat owner takes out and pays for makes him free of the
artificial canal system, including the locks, and gives him the free use of the
locks on the river navigations of the Board. On the rivers the situation is
different. The Board are able to, and do, charge for the use of locks and
people who have not got a canal licence because they do not keep their boats
on the canals pay when they go through locks. Commercial traffic of course
pay tolls on the goods carried by them on the river navigations so that the
Board thereby has a means of collecting revenue from the commercial traffic
and also from the pleasure traffic which uses locks. On the other hand, the
river navigation involves not only locks. You can keep a boat on the river and
by taking quite large stretches which there are where there are no locks
you need never go through a lock and therefore need never pay. But of
course a river navigation is not just locks, it consists of sluices, weirs, maintenance by weed cutting, dredging, bank protection and the like, as well
as by the locks themselves which make the rivers navigable. Without those
28
things which are expensive and expensive to repair and maintain, the rivers
would quickly silt up, develop shoals, become overgrown, the banks would fall
in and very soon they would become unnavigable. [my bold]
89. In arguing for the desirability of the section, BW made direct comparison with the
Thames Conservancy Act 1966 which referred solely to licensing to use the river,
not to merely keeping a boat on the bank which never used the navigation. Only with
the advent of the Environment Agency (Inland Waterways) Order 2010 did it become mandatory for boats merely kept on the Thames to be registered whether
they used the navigation or not. [Exhibit 7]
90. The caution displayed by BW in not seeking to impact upon the publics rights of
navigation more than absolutely necessary [in their opinion] was due to the sensitivity of so many to such an imposition. Mr John Wells MP in presenting the Bill to
Parliament:
Until tonight the rivers the Bill will create charges upon have, in the jargon of the Inland Waterways community, been called free rivers . . .
One of the main points of the river authorities is that they consider that the
charges are fiscal in character and must fetter the public right of
navigation and offer no tangible benefits in return for registration. I think I
have already dealt with the tangible benefits, which, I freely admit, are not
very great, but neither are the charges very great, nor is the revenue going to
be very great, and if there is to be speed control and patrolling, then
registration must come about and there must be some charge.
29
91. The point was emphasised by Mr Downey (Representative of the Minister of Transport):
. . . in considering this formal application the Minister had to consider two
things: the acceptability or otherwise of the proposals to be contained in the
Bill and whether legislation was the right means of dealing with these
proposals. In considering that the Minister had to take into account the
fact that on the rivers in question there are very ancient public rights of
navigation, as the Committee is already aware, and having regard to that
rather emotive matter it was felt - and the Treasury Solicitor was consulted
before that decision was reached that it would not have been proper for the
Board to have attempted to achieve its aims by means of byelaws, that it was
necessary that legislation should be introduced for this purpose.
92. In explaining the inspiration and existence of precedence for the clauses, Mr
Wells MP commented: [my bold above and below]
The board considers that the increase of leisure activity resulting in the use
of pleasure craft on these navigable free rivers such as the Severn and
Trent whose navigation it controls necessitates making greater the
possibilities, far from those who use them, of contributions to the works and
services which the board provides on its rivers, and to achieve this the board
wants to introduce a registration scheme for pleasure craft navigating on
such rivers. It has taken as the essence of its scheme schemes already
in existence under the Thames Conservancy since the Act of 1966 and
on the Norfolk Broads since the Great Yarmouth Port and Haven Act, 1963.
30
93. That direct reliance on the Thames Conservancy Act is a positive indication of
what BW were aiming to achieve.
94. The draft of the Bill makes specific reference to this reliance in its footnote to the
relevant clause.
95. Mr Jupp QC drew particular attention to this in his presentation of the Bills
rationale:
The registration of pleasure boats which is provided for in Part II of the
Bill is no new thing. The Thames has already a similar system; it has had
it since 1932, in a Thames Conservancy Act of that year; the Act was re-
enacted with amendment in 1966, and the Thames Conservators, who are
both navigation authorities and river authority - the two functions are
combined in the Thames - control the pleasure boats there by a system of
registration.
96. As Mr John Wells MP had said:
The Board is perfectly fair in asking the House for these powers. Some who
felt that the powers appeared at first sight to be a bit draconian have been
slightly reassured by being told that most of the Clauses were taken as
model clauses, as it were, from the Thames Conservancy legislation.
97. That the clause was aimed at those actually using the navigation as distinct
from those merely keeping their boats there is evident from his rationalisations for the
registration and charges:
31
It is reasonable to point out that there must be increased patrolling,
increased sanitary facilities, increased water facilitiesfresh drinking-water
facilities, I meanand increased lock facilities. I mean not that there will be
more locks but that the locks should be open for longer hours. These are
extra services for which people will be asked to pay, and it seems to usto
me, anywaythat this is not unreasonable.
The proposed scheme is also of importance to the Board in that it will enable
the board to achieve a measure of control and management of craft using its
waterways, as the craft will then be identifiable. [my emphasis]
The real rationale of course, was that byelaws could not be effectively enforced when
there was no means of readily identifying the craft and that was the single most
driving impetus to get registration made compulsory: so that that those who used the
rivers could be nabbed for speeding etc.
98. It is evident then, that throughout the Bills preparation and passage through
Parliament [two sittings were taken on the Bill], there was concern to impact upon the navigations rights as little as was deemed possible while still achieving their stated
objective to manage and control active use of the navigation, as had been displayed in the fore-runner legislation for the Thames.
99. The only distinct difference from the Thames legislation is that the BW version
included boats moored [kept] within the main navigable channel [the Thames Conservancy Act excluded boats moored in the main channel of the Thames
provided they did not use the river] but such boats would be in a considerable minority and largely found within tidal sections for reasons of accessibility.
32
100. Although the effect of the Thames Conservancy Act has now been over-ridden
by virtue of the 2010 Order [such that ALL boats on the entire width of the river whether using it or not must be licensed], no such amending legislation has ever yet been passed affecting the 1971 Act.
Rules of Construction of Private Acts
101. The 1971 Act is a private Act promoted by the statutory body that was British
Waterways Board at the time.
102. The firm rule to be applied by the Court when construing all such private Acts, is
that in the event of any ambiguity, the wording must be construed against the
interests of the promoters of the Act, and in favour of the public.
103. Whilst it is submitted that use of the express qualifying adjective admits of no ambiguity at all, for so long as CaRT argue [as they must to justify their action] against the common-sense understanding of the applicable area, then ambiguity
must be held to exist in this instance, and the Court will be bound to apply the
invariable rule in such cases.
104. The rule has ancient precedent [often dealing with canal Acts], notably the oft-cited case of Stourbridge v Wheeley, cited with approval in the case of Swanhill
Developments Ltd & Ors v British Waterways Board 1998 JPL 153 and in Moore
v British Waterways Board [2012] 1 WLR 3289, [2012] EWHC 182 (Ch): -
The canal having been made under the provisions of an Act of Parliament,
the rights of the plaintiffs are derived entirely from that Act. This, like many
other cases, is a bargain between a company of adventurers and the public,
33
the terms of which are expressed in the statute; and the rule of construction in
all such cases is now fully established to be this, that ambiguity in the
terms of the contract must operate against the adventurers, and in
favour of the public; and the plaintiffs can claim nothing which is not clearly
given to them by the Act. [my bold]
105. The relevant proposition is enunciated by Francis Bannion in Statute
Construction, under the topic of Legality. He says
Where the decision-maker is a public corporation it lacks the comprehensive
power possessed by natural persons to regulate the use of its property in any
lawful way it sees fit: see e.g. R v Somerset County Council, ex p Fewings
[1995] 3 All ER 20, following Calder and Hebble Navigation Co v Pilling (1845) 14 M & W 76 at 88." . . . . .
106. The Bournemouth-Swanage Motor Road & Ferry Co. v Harvey & Sons
[1929] 1 Ch. 686 -
The courts construe private Acts on a presumption that people should not be
prejudiced in matters they can lawfully perform without compensation, unless that intention is clearly expressed. . . .
I approach the matter from the position that clear and unequivocal words are
necessary to derogate from common right, to deprive people of the power to
do what they were doing for profit at the passing of the Act, without any one
being able to stop them. . . .
In approaching the consideration of the Act it is necessary in my view to set
out the canons of construction of such a statute. In Scales v Pickering
34
[1828] 4 Bing. 448, 452. Best C.J. says: If the words of the statute on which they rely be ambiguous, every presumption is to be made against the
company and in favour of private property. In Parker v Great Western Ry
Co. [1844] 7 Scott. N.R. 835, 870. Tindal C.J. says: The language of these Acts of Parliament is to be treated as the language of the promoters of them .
. . Acts passed under such circumstances should be construed strictly against
the parties obtaining them, but liberally in favour of the public. If there be
any reasonable doubt, said Lord Cottenham L.C. in Webb v Manchester &
Leeds Ry. Co. [1839] 4 My, & Cr. 116, 120. As to the extent of their powers . . . they must go elsewhere and get enlarged powers; but they will get none
from me, by way of construction of their Act of Parliament.
The judge later quoted from:
the case of Scottish Drainage Co. v Campbell [1889] 14 App. Cas. 139, 142 Lord Herschell said: when an Act of this description is obtained by a
company incorporated for purposes of profit, to confer upon them rights and
powers which they would not have at common law, the provisions of such a
statute must be somewhat jealously scrutinized, and I think that they ought not to be held to possess any right unless it be given in plain terms or arises
as a necessary inference from the language used.
107. It being clear, as both BW and Parliament recognised, that rights of navigation
[both public and private] over the rivers had existed since time immemorial, any construction of the private Act that seeks to limit those rights further than the clear
language of the Act makes necessary, must be held to be contrary to accepted legal
practice.
35
108. Any assumption of powers by the promoters must be strictly limited to those
clearly given them in the Act. They have clearly been given powers to demand
registration fees for all boats kept or used within the main navigable channel of the
scheduled rivers; they have not been given powers to demand registration of boats
that are kept or used outside of the main navigable channel, and any ambiguity
claimed in order to extend the reach of the power to cover the entire navigable
channel can only operate against them, not against members of the public.
Rules of Construction of all Statutes
109. The rights of navigation being derived in this instance from the common law, it is
further worth pointing out in any event, that statutes should be construed so as to
impact upon such common law rights no further than the Act makes expressly clear.
110. As put by the judge in Attorney-General Ex-Relatio Yorkshire Derwent Trust Ltd & Another v Brotherton & Ors [1991] WLR 1126
There is, however, a presumption that except in so far as they are clearly
and unambiguously intended to do so, statutes should not be construed so
as to make alterations in the common law. [my bold]
111. To quote Lord Scott of Foscote from the House of Lords 2003 judgment in Wilson & ors v Secretary of State for Trade & Industry:
Another statement of the presumption is to be found in the judgment of Dickson J in Gustavson Drilling [1977] 1 SCR 271, 282:
"The rule is that a statute should not be given a construction that would
impair existing rights as regards person or property unless the language
36
in which it is couched requires such a construction: Spooner Oils Ltd v
Turner Valley Gas Conservation Board [1933] SCR 629, 638. The presumption that vested rights are not affected unless the intention of the
legislature is clear applies whether the legislation is retrospective or
prospective in operation. A prospective enactment may be bad if it affects
vested rights and does not do so in unambiguous terms. [my bold]
112. In the present case it is submitted, the enactment in issue has carefully limited
the impairment of existing rights by the use of - what cannot be considered a
redundant - adjective respecting the navigable channels of the rivers that are to be classified as river waterways for the purpose of registration.
113. Even supposing, however [which is denied], that the description admitted of any ambiguity, that ascribed looseness of wording could not be relied upon to impair
existing rights that would otherwise remain unaffected.
114. In the premises, CaRT acted unlawfully in construing their Act so as to impair
the existing rights in circumstances where the boat lay outside of the main navigable
channel of the non-tidal river Trent.
115. It is regrettable that CaRT, as BW before them, have been allowed to apply the
legislation in the cavalier way that they have been doing for so long; the 2008 case
being in point, where the enforcement officer had declared that all boats within the
entire navigation were subject to the registration requirement, when even BWs Information Officer acknowledged that the green lines on which he had relied did
not, and did not purport to, indicate the main navigable channel.
37
116. Such ignorance if ignorance it was on the part of such an officer might be
understandable though not excusable, but these s.8 proceedings are monitored at
the highest levels including the legal department, and the actions of the officers even
when transparently wrong, are supported as a matter of institutional policy.
Site Characteristics
117. The boat was moored along the bank of what had once been the Farndon Ferry
operation; now a private boatyard.
118. It is an inescapable feature of a ferry operation both that the width and depth of
the waterway demands such a service, and that the ferry boat will at all times be
present and moored at one side of the river or the other at the point of crossing. The
corollary will be that in granting consent for the ferry, the moored boat will not have
been considered to have intruded into the main navigable channel so as to constitute
an obstruction to the public right of navigation, but that free passage for boats
navigating the Trent at this point will have been permanently clear for those heading
in either direction simultaneously.
119. The width of the Trent at this crossing is 56 mtrs, or 183 feet.
120. The maximum width of vessel ordinarily navigating the Trent this far upstream
was 20 feet, and further downstream signs beside the waterway warned of a 40 foot
channel for boats to keep within [though these signs may no longer be in existence]. That would accord with the general principle of the main navigable channel being
sufficiently wide to allow two boats of the type ordinarily using the waterway to pass
each other.
38
121. Historically the dredged navigable channel was 50% wider; the Trent Navigation
Company had obtained an Act of Parliament in 1906, authorising them to make
improvements upstream of Newark [which includes the section relevant to this case] to allow larger boats to navigate the river. The Act authorised dredging a channel 60
feet wide and five feet deep. [Exhibit 8]
122. This section of the Trent was recently dredged in 2014 by contractors Land &
Water, after more than ten years neglect of the statutory obligation to keep the main
navigable channel suitable for commercial use. The Works Supervisor Mr Avi Verber
was quoted as saying: We have dredged only the channel, not the whole width of
the river, because that simply isnt economically viable. [my bold]
123. Announcing that work in February 2014 the Clean Water Trust noted:
The Canal and Rivers Trust has announced that it is spending 1 million to
dredge the river to aid navigation; that is to provide a navigable channel
from Nottingham to Gainsborough . . . [my bold] They further noted: The maintenance of the River Trent and its channel is vital . . . [my emphasis]
CaRT has confirmed that The channel dimensions dredged in order to achieve our
navigational standards were: Holme Lock to Cromwell Lock 11m X 2.3m. That
equates to roughly 36 feet width. [Exhibit 9]
124. The very latest non-tidal Trent charts published by The Boating Association
show the centre of the navigable channel as a thin red line. They note:
Because of the small scale of the charts the course of the safe channel is
necessarily exaggerated and may occasionally touch the bank. Use common
39
sense and keep at least 12 feet (4 metres) from a training wall, further from a stone heap, and well away from a gently sloping bank. Remember that the
red line indicates the centre of the channel and, in most places, this is
around 30 feet wide or more. [my bold] [Exhibit 10]
125. Whether the width of the channel is taken as 30 feet, 36 feet, 40 feet or the
historical 60 feet makes little practical difference for the instant purpose; even the
original 60 foot wide channel would mean that the main navigable channel took up
only a third of the available width of the Trent at this point.
126. The legal obligation to maintain the requisite depth for commercial traffic is
limited under the 1968 Act to this main navigable channel, and the exact same
defining terms as to that, are those used in the 1971 Act respecting the requirement
for boat registration. Supposing CaRT was to argue that the main navigable channel
extended from bank to bank, then given these identical definitions [Secretary of State approved maps or no] their obligations to dredge must be equally extensive - yet that is scarcely on their agenda! As recorded above, the extent of the main navigable
channel under the 1968 statutory obligation is claimed by CaRT to be no more than
36 feet for this section of river. The identical dimensions will apply to the 1971
Act registration requirements, couched as those are in identical language.
127. The historical facts and the comparative legislation leave no room for doubt: the
main navigable channel of the Trent at Farndon is a maximum 60 feet wide by virtue
of Parliamentary statute, and considerably less in practically applied terms. With an
equivalent 60 feet of river outside of that channel on both the northern and southern
sides, all boats moored at Farndon Ferry are unquestionably outside of the main
navigable channel as provided for in the 1906 legislation; stipulated in the legislation
of 1968 and 1971, and acknowledged by CaRT in the 2013 dredging contract.
40
128. As a final note on the subject, it should be remarked that CaRT had the opportunity to rebut argument on this very issue in the proceedings brought by them
last year against Mr Tony Dunkley [Claim No: A00NG769], in another instance of unlawful and inappropriate use of s.8 powers. Argument on the issue was contained
within paragraphs 124 to 128 of Mr Dunkleys Defence dated 28 July 2014. In that
instance CaRT chose to discontinue their action once having read that Defence. It
may be noted as pertinent that the same Enforcement Officer [Mr Stuart Garner] was the driving force in that case also. [Exhibit 11]
DISPROPORTIONALITY OF THE ACTION
Addressing Claim (b) -
Human Rights Act 1998
129. In this the year of its 900th anniversary, Magna Carta, often considered the
keystone document of the UKs governance, is receiving heightened attention. It is
appropriate therefore, to consider that elements of this document contain the seeds
of exactly such general concerns over the rights of the governed as have received
more particular attention in the Human Rights Act of 1998.
130. No matter that the original concerned the rights of the aristocracy rather than the
rights of the common people, the influence even of its purely symbolic character
helped formulate much of the common law and guide the drafting of statutes. This led
to Lord Dennings description of it as the greatest constitutional document of all
times the foundation of the freedom of the individual against the arbitrary authority
of the despot. It is this essential element, demanding what later European concepts
called the principle of proportionality in the application of law, that has informed the
41
European Convention on Human Rights, and prompted the UK adoption of that
Convention under the aegis of the 1998 Act.
131. That Lord Denning was right in so far as he considered Magna Carta a catalyst
for following legislation dealing with the rights of individual against their rulers, is well
illustrated by the 1276 Statute of Marlborough, three of its clauses remaining as live
today [supposing that the Law Commission recommendations have not been approved by Parliament by the time this reaches the Court].
132. Clause IV states: Moreover, Distresses shall be reasonable, and not too great;
and he that taketh great [or undue] and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses. [my bold]
133. This precocious statute [the very oldest remaining in force] limiting the application of powers, is a direct precursor to the modern 1998 legislation
particularly being aligned to the test of proportionality - and is binding in the instant
case.
134. The seizure of property engages Article 1 of The First Protocol of the
Convention rights to which this country is signatory.
From the Human Rights Act 1998, Schedule 1, Part II -
The First Protocol
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public
42
interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties.
135. This case revolves around the alleged right of the authority to forcibly remove
property and hold it subject to release only on payment of costs entirely disproportionate to the value claimed owed.
136. It is not accepted that the relevant law [s.8 of the BWB Act 1983] does give this
as an available option to CaRT, for the purpose of securing the payment of taxes or
other contributions or penalties, but discussion on that point is dealt with under the
final point of claim.
137. At all times, however, when assessing the exercise of extraordinary power [s.8s being always acknowledged as draconian], the HRA demands that the remedy be appropriate and tailored to the mischief. In the words of the Statute of Marlborough:
reasonable and not too great; there is to be no Excess of such Distresses.
138. The question needs to be asked, in other words, does the remedy achieve the
legitimate purpose? - which inevitably entails the preliminary question what is that
purpose?. If the immediate purpose is ensuring that the offending boaters pay their
way, then s.8 does not accomplish that. If the statutorily authorised preliminary steps
to recover the monies owed have not been taken, then the s.8 process - far from
being employed as a 'last resort' - is an all too precipitate abuse of the law, being
43
unreasonable and excessive in its undue effect, creating greater penalties
[revenges] than the directly applicable law drafted for the purpose.
139. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,
Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test for determining proportionality. Lord Clyde observed, at p 80, that in determining
whether an act, rule or decision is arbitrary or excessive the court should ask itself:
"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the
objective."
140. According to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca, the test of proportionality is generally acknowledged to comprise 4 stages:
there must be a legitimate aim for a measure
the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)
the measure must be necessary to achieve the aim, that there cannot be
any less onerous way of doing it
the measure must be reasonable, considering the competing interests of
different groups at hand.
141. Without prejudice to the primary claim that CaRT had no empowerment to require a pleasure boat certificate for a boat kept outside of the main navigable
channel and never using that channel, and without prejudice to the tertiary claim that
44
s.8 is inapplicable where the owner is known and in contact, it is nonetheless argued
that in applying the most severe sanction in their arsenal in this case, CaRT fail the
test of proportionality demanded by the Courts:
142. Judgment of the Court (Fifth Chamber) of 11 July 1989. - Hermann Schrder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau Case 265/87
3 . Both the right to property and the freedom to pursue a trade or profession
form part of the general principles of Community law whose observance is
ensured by the Court. However, those principles do not constitute unfettered
prerogatives but must be viewed in the light of their social function .
Consequently, the right to property and the freedom to pursue a trade or
profession may be restricted, particularly in the context of a common
organization of the market, provided that those restrictions in fact correspond
to objectives of general interest pursued by the Community and that they do not constitute, as regards the aim pursued, a disproportionate and
intolerable interference which infringes upon the very substance of the
rights thus guaranteed.
By virtue of the principle of proportionality, measures imposing financial
charges on economic operators are lawful provided that the measures are
appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question. Of course when there is a choice
between several appropriate measures, the least onerous measure must
be used and the charges imposed must not be disproportionate to the
aims pursued . . . . . Consequently, the legality of a measure adopted in
that sphere can be affected only if the measure is manifestly inappropriate
having regard to the objective which the competent institution intends to pursue. [my bold]
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143. Professeur Jean-Marc Thouvenin - European Governance 2 : The Principle
of proportionality
A Origins of the principle
As a constitutional principle and as a general principle of administrative law,
the principle of proportionality requires each decision and measure to be
based on a fair assessment and balancing of interests, as well as on a
reasonable choice of means. In other words, any action undertaken must be
proportionate to its objective.
The principle of proportionality as a legal principle is derived from German
law. It is a legal safeguard against the unlimited use of legislative and
administrative powers and considered to be a part of a rule of common
sense, according to which an administrative authority may only act to
exactly the extent that is needed to achieve its objectives.
More specifically, the principle of proportionality means that any measure by a
public authority that affects a basic human right must be: appropriate in order
to achieve the objective, which is intended, necessary in order to achieve the objective, which is intended, i.e. there are no less severe means of achieving the objective, and reasonable, i.e. the person concerned can reasonably be expected to accept the measure in question . . .
144. The Outer Limits of European Union Law; edited by Catherine Barnard,
Okeoghene Odudu
The principle of proportionality is referred to in almost every case which
applies to a review of measures (well defined eg Case C-189/01 Jippes [2001] ECR 1-5689, paras 80-101; see also C-331/88 Fedesa and Others
46
[1990] ECR 1-4023). The ECJ has adopted a three-level test (levels two and three are often addressed together): first, measures may 'not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question'. Secondly, when there is
a choice between several appropriate measures recourse must be had
to the least onerous', and thirdly, the disadvantages caused must not be
disproportionate to the aims pursued'.
145. When the crucial test of choice between alternate appropriate measures is
applied, the actions of CaRT in this as in many such cases, becomes transparently
disproportionate. The standard presumption of the Courts that the relevant
waterways authority will act at all times appropriately, is now established to be
unjustified. HHJ Hildyard in Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012):
. . . BWB did exercise its powers inappropriately . . .
146. The s.8 powers of removal of vessels were never designed as a punitive
measure against unlicensed boats; it was a power of last resort, to enable removal
of abandoned vessels in cases where the owners could not be found, and
applicable only when alternative measures failed to achieve the objective.
147. This was recognised by all parties including BW when discussing before
Parliament the proposed new measures of control during passage of the 1990 Bill.
This was highlighted by HHJ Hildyard in the above judgment:
Para 191 As previously noted, BWB has long accepted that the powers
afforded by section 8 to remove vessels are draconian and to be exercised
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as a last resort. In his submissions (both written and oral) the Claimant drew attention in this context to evidence given to a House of Lords Select
Committee when in 1991 the then British Waterways bill which eventually was
(with deletions and amendments) enacted in 1995 was under review. The person in BWB then responsible for the management of BWB in the North
East, when cross-examined in respect of his evidence that BWB needed
more comprehensive methods of controlling navigation and mooring,
considered that the use of section 8 was draconian; and that even in the case
of a licensed vessel "provided it was not causing an obstruction to
navigation it would be unreasonable for us to use it, even if we could." (I pause to record that BWB objected to the use of this material as an aid to construing the statutory provisions; but I am not using the material for that
purpose, but rather to demonstrate BWB's own factual acceptance as to the
nature and severity of their powers.) [my bold]
148. Even though HHJ Hildyard concluded that BW were entitled in the end, to
require removal of the boats in that case [overturned on appeal], BWs conduct came under criticism:
Para. 229 . . . I do consider that this incident, the failure within BWB to see
to it that all relevant personnel were properly informed of the Court
undertaking and the importance of it being observed to the letter, the failure to
offer me a proper explanation before I called for it, and the failure at the time
to deal with the Claimant's not unreasonable requests for an explanation, all
further suggest inappropriate haste and carelessness. BWB are given
draconian powers: and it is of particular importance that they should be,
and be seen to be, deliberate, transparent, fair and careful in
discharging their functions.
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149. Hence in his conclusions:
viii) However, in serving section 8 notices BWB 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 BWB to be draconian and
to be used only as a last resort BWB would abide by such procedures;
150. The relevant objectives for implementation of the law involve the duty of the authority to manage the waterways in the interests of the countys economy and for
the benefit of all other users. Following the precepts of Lord Clyde as quoted earlier,
use of s.8 proceedings need to be examined as to their rational connection to the
legislative objective.
151. It will be seen that s.8 proceedings against navigable boats are to the detriment
of the economy rather than otherwise, and have no positive benefit protecting the
rights and interests of others. The greatest impact on others is of a purely admonitory
nature.
152. Without doubt, a non-paying customer is damaging the economy. The remedy is
to recover the money owed, as Section 5 of the BWA 1983 provides:
(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same, or to comply with
any requirement of the specified enactments upon compliance with which a
charge is payable, the Board may (without prejudice to any criminal proceedings to which that person may be liable) recover from him a sum equal to .
(a) the amount of the charge which is due or payable; or (b) where charges may be paid for periods of less than one year and the
49
Board have not accepted part payment of the charge, a sum equal to the
amount of the charge which is due or payable for one year; in the manner in
which the charge would be recoverable apart from this section.
(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge
may, in addition to dealing with him in any other way, order him to pay to the
Board any sum which the Board are empowered to recover under this
section.
153. So much for the generality what is the relevant offence?
154. Under the 1971 Act [as amended], there is a penalty for permitting a boat to be on a river waterway without lawful authority, of 50 and a daily charge of 5 per day
for all the time the offence continues from the time of summary conviction.
155. The relevant legislative objective, therefore, in respect of a vessel kept or used within the main navigable channel of the relevant river is provided for by those
statutory powers, which are designed to achieve precisely the recovery of sums
owed, adding in the financial penalty, plus the criminal conviction. Not only does this
appropriate legislation provide for the economic well-being; by providing, additionally
to the recovery of monies owed, a perfectly adequate admonitory function ensuring
proper management of the system for the well-being of other users, it achieves both
legitimate over-riding objectives.
156. Not only cannot the s.8 process achieve the first, nor provide the only tool for
public warning, this means of allegedly accomplishing the objectives will not only be far more than is necessary to accomplish the objective because there are less onerous ways of doing it, the chosen means will be as a consequence both
50
arbitrary and excessive. Application of s.8 under those circumstances, therefore,
violates both the HRA and the fourth clause of the Statute of Marlborough.
157. It is accepted that the authority has the right under law to secure the payment
of taxes or other contributions or penalties. But once again: s.8 proceedings were
not designed to achieve that objective, they were designed solely to free up space on the waterways so that their use is not impeded by boats that ought not to be there.
The payment of taxes etc can only be achieved through exercise of the s.5 power.
158. ALL of the legitimate purposes can be achieved through application of the more
appropriate legislation available to the authority. Most of those purposes CANNOT be
achieved through application of the s.8 procedure.
159. Ergo, the process in the circumstances is manifestly without reasonable
justification.
Extremity of measures taken
160. The situation is exacerbated when it is realised that CaRT have taken this step
of engendering tripled costs while recognising that their victim was in all probability in