Attorney General, ex rel Yorkshire Derwent Trust Ltd and Another v Brotherton and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 31 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0731-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0697 |
| Date | 31 July 1990 |
[1990] EWCA Civ J0731-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR. JUSTICE VINELOTT)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Balcombe
and
Lord Justice Bingham
90/0697
CH 1984 Y 2171
Her Majesty's Attorney General At and By The Relation of
MR. E.W.H. CHRISTIE and MR. NICHOLAS PEACOCK (instructed by Messrs. Payne Hicks Beach, Solicitors, London WC2A 3QG) appeared on behalf of the Plaintiffs (Appellants).
MR. W.D. AINGER (instructed by Messrs. Hepworth & Chadwick, Solicitors, Leeds, LS1 2JB) appeared on behalf of the Defendants (Respondents).
This is the judgment of the court, to which all its members have contributed.
This is an appeal by the plaintiff from an order of Vinelott J. dated 19th December 1988 in an action which raises the issue whether there exists a public right of navigation over that part of the Yorkshire Derwent ("the River") which lies between Malton and Sutton. By an order dated 25th July 1986, Millett J. ordered the determination as a preliminary issue of five questions, one of which (Question 5) is of considerable general importance. It was these questions which came before Vinelott J. and to which he gave his answers by the order under appeal. His judgment is reported in whole in [1990] 59 P. & C.R. p. 60 and in part (on Question 5) in [1989] 2 W.L.R. 938 and [1989] 2 All E.R. 423.
The nominal plaintiff is the Attorney General. He sues at the relation of the Yorkshire Derwent Trust Ltd. and the Town Council of Malton. The Derwent Trust is a charitable body whose main object is the restoration of the River as a navigable river, and in particular the restoration of the lock cuts and locks round dams which presently obstruct the navigation of the River. Malton, which lies on the west bank of the River about 38 miles from its junction with the Ouse, is the only sizeable town on the River. Its Town Council is concerned to preserve any public rights of recreation on the River which may exist. In the remainder of this judgment we shall refer to the relators as the plaintiffs.
The defendants are all riparian owners who own lands bordering the River at various points between Malton and Sutton.
The judge described in detail the position of the defendants' land, but for the purposes of the appeal it is sufficient to quote his summary:
"the defendants own substantial stretches of riparian land between Malton and Kirkham, between Kirkham and Howsham, between Howsham and Buttercrambe and between Buttercrambe and Stamford Bridge. They also own an area of riparian land downstream of Sutton"[irrelevant for the purposes of this action]. "None of the defendants owns any land between Sutton and Stamford Bridge or upstream from Malton."
The judge made it clear that the defendants' purpose in opposing the plaintiffs' claim was not the selfish purpose of preserving the River for their own enjoyment and excluding the public. The defendants take the view that it is in the public interest that this stretch of the River, which is still comparatively unspoiled, should be preserved as a haven for the river wildlife for which it is famous, and that unrestricted public access along the River with motorboats and other pleasure craft would lead to the rapid destruction of a precious national asset. But, as the judge said:
"the feelings that have been aroused by this litigation are not the less intense because they do not arise from a conflict between economic and commercial interests but because of the parties' very different perception of what is truly in the public interest."
The River rises near Wykeham High Moor, north-west of Scarborough. It runs generally in a north-south direction, past Yedingham, Malton (by which time it has become a sizeable river), Kirkham, Howsham, Buttercrambe, Stamford Bridge and Sutton until it joins the Ouse at Barmby. The 15-mile reach below Sutton is tidal, although in 1973 the tidal flow was stopped at Barmby by the construction of a tidal barrage. However, there is a lock in the barrage and a lock-keeper in attendance, so that on the tidal stretch of the River navigation is not obstructed. We were told that it is now accepted by the parties to this action that the River between Sutton and Stamford Bridge is also navigable. There are (or were) locks at Kirkham, Howsham, Buttercrambe, Stamford Bridge and Sutton, in various states of repair (or disrepair). A more detailed description of the River will again be found in the judgment at first instance, to which reference can be made if necessary (see 59 P. & C.R. at pp. 63–66).
The year 1702 is of great significance in the history of the River, for it was in that year that there was enacted "An Act for making the River Derwent in the County of York Navigable" ( 1 Anne c. 14) ("the 1702 Act"). The judge summarised the position as it was in 1702. The River was tidal and publicly navigable as far as the dam at Sutton. Between Sutton and Howsham the River consisted of a number of pounds varying in length from 3 to 6 miles. The depth of water in these pounds was sufficient to allow the passage of boats drawing up to 2 feet 6 inches and for much of its length vessels drawing 4 feet 6 inches. However, there was no tow path and the use of sails to propel boats—in particular in the gorge between Stamford Bridge and Howsham, which is well-wooded and steep-sided—would rarely have been practicable. Boats would, therefore, have had to have been rowed or poled upstream. It would have been necessary either to pull them over the dams or through the dam sluices or alternatively, to tranship the cargo at each dam on to other vessels. Above Howsham there was a reach of some 10 miles interrupted, although not wholly obstructed, by a collapsed dam at Kirkham. However, the collapse of the dam had resulted in a lowering of the water level and a boat drawing over 1 foot 6 inches would have had difficulty, save in exceptional circumstances, in negotiating the shallows above Kirkham. There were dams at New and Old Malton and above Old Malton the River meandered through ill-drained and marshy land through and beyond Yedingham.
In 1700 a petition was presented to Parliament. The Journal of the House of Commons records:
"A petition of the gentlemen, freeholders, mercers, drapers, grocers, and the other traders within the Borough of Malton; and several of the gentlemen and freeholders of several towns nigh thereto, was presented to the House and read; setting forth, that Malton is a great trading market town in Yorkshire, situate upon the River Darwent, which runs into the River Ouze, and is capable of being made navigable; and will thereby be a great ease and advantage to the petitioners, and other neighbouring towns, who are now forced, at very great charges, to carry and re-carry their goods many miles by land: and praying leave to bring in a Bill for making the River Darwent navigable at the charge of such gentlemen as shall undertake the same."
The preamble to the 1702 Act similarly states that the Darwent or Derwent
"…is capable of being made navigable, from Scarborough Mills down to the River of Ouse…"
and that it will be of benefit to the said County—that is of York
"…by opening a Trade and Commerce between the several Ridings thereof…. and advancing the Trade of the said County…
that the said River of Darwent may be made navigable and passable for Boats, Barges and other Vessels."
The printed copy of the 1702 Act which was put before us was in the old form, and does not contain numbered clauses.
However, for ease of reference it is convenient to summarise the provisions of the 1702 Act (as did the judge) by reference to numbered clauses.
Clause 1 of the 1702 Act authorises and empowers five named undertakers
(a) to make the River navigable and passable for barges, boats, lighters and other vessels from Scarborough Mills to New Malton and from New Malton to the Ouse and to maintain the navigation;
(b) to clean, enlarge and straighten the River and to cut the banks of the river and any stream or river running into it for the purpose of making the River "navigable and passable";
(c) to make new cuts for the better carrying-out of the necessary work on the land of any person, including the Queen;
(d) to remove trees and gravel beds which might hinder the navigation either in sailing or in hauling vessels with men or with horses;
(e) to build on adjoining land locks, weirs, turnpikes, cranes, wharves and warehouses and maintain them;
(f) to make any necessary ways for carrying goods to and from the River or for making or repairing dams, locks, weirs and turnpikes:
(g) to alter or heighten any weirs and to alter any bridges that might hinder navigation; and
(h) to set out paths and ways for towing boats, barges and lighters
"the said Undertakers, their Heirs and Assigns giving Satisfaction to the Owners and Proprietors of the said Lands and Hereditaments and Premises for any Damage and Injury done to them for or by reason of the same."
as the Commissioners thereafter appointed should direct in default of agreement.
Clause 2 appoints 50 Commissioners to determine:
"…all Matters about which any difference may arise between the said Undertakers, their Heirs or Assigns, and the Proprietors of the said Lands, Hereditaments and Premises…"
Any seven of the Commissioners are empowered to determine the damage suffered by the owners and...
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