Broads Authority v Fry
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Mitting |
| Judgment Date | 05 November 2015 |
| Neutral Citation | [2015] EWHC B27 Admin |
| Docket Number | CO/3510/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 November 2015 |
[2015] EWHC B27 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Mitting
CO/3510/2015
Mr R McCracken QC (instructed by NP Law) appeared on behalf of the Claimant
The Defendant appeared in Person
This is an appeal by way of case stated by the Broads Authority, the regulatory authority for the Norfolk and Suffolk Broads, hereafter "the Broads". It concerns the effect of changes in the statutory regime as a result of the Broads Authority Act 2009 ("the 2009 Act").
The particular issue concerns the liability of the owner of a vessel to pay tolls to the Broads Authority in respect of a vessel moored outside the navigation area of the Broads. The vessel is moored at a private mooring on waters which qualify as "adjacent waters" because a vessel may be navigated into the navigation area from it.
At some stage in 2014, or possibly the beginning of 2015, the Broads Authority instituted proceedings against Alan Fry, the respondent. It charged him with an offence of causing his Dutch barge "Adjo", to be moored in "adjacent waters" under the Norfolk and Suffolk Broads Act 1988 as amended by the 2009 Act, without having paid the appropriate toll. This, it maintained, was contrary to bylaw 19(1) of the Broads Authority Vessel Registration Bylaws 1997 ("the 1997 Bylaws").
The barge was registered as an un-powered houseboat and did not use the navigation area of the Broads. It has been moored at the Waveney River Centre on the Broads. It is common ground it is moored in adjacent waters under the 1988 Act as amended.
The respondent pays council tax to South Norfolk District Council in respect of the barge. I will refer later in this judgment to proceedings instituted by the Authority against him in 2012.
The present case came before the Lowestoft Magistrates' Court on 23 February 2015. The magistrates convicted the respondent. They fined him £200 and ordered him to pay the outstanding sum of £552.08, costs of £1,000, and a victim surcharge of £20. He appealed against his conviction to the Crown Court.
In a decision on 15 May 2015 the Crown Court at Ipswich, consisting of His Honour Judge Holt and lay justices allowed his appeal and set aside his conviction. The Broads Authority appeals to this court from that decision.
The Relevant Legislation
Prior to the enactment of the 2009 Act the Broads Authority only had power to raise revenue by way of tolls from those who moored, used or navigated "a vessel on waters within the navigation area". Paragraph 7(1) of Schedule 7 to the 2009 Act inserted new provisions for navigation charges into section 13 of the 1988 Act. The substituted section 13(1) provides that:
"The Authority may determine and recover tolls in respect of vessels moored, used or navigated on adjacent waters as well as in the navigation area."
The WestLaw printout of section 13 in the bundle before us states that the version was in force from 1 June 2012. The "navigation area" is defined by section 8(1) of the 1988 Act as stretches of named rivers and tributaries, branches and embayments, which at the time the Act was passed were "in use for navigation by virtue of any public right of navigation", the banks or the waterways which make up those stretches, and Haddiscoe Newcut and its banks. Section 2(2) of the 2009 Act defines "adjacent waters" as "any broad, dyke, marina or other substantially enclosed waters connected to the navigation area and from which a vessel may be navigated … into the navigation area but …" subject to specified exclusions which are not relevant to this appeal.
Paragraph 9(1) of Schedule 7 to the 2009 Act inserted a definition of "toll" into section 25(1) of the 1988 Act. This provides:
"'toll' means a charge levied by the Authority under section 26 of the Harbours Act 1964 (and includes any charge made in the discharge of the Authority's functions under Part II of this Act and any charge levied in respect of a vessel moored, used or navigated on any adjacent waters)…"
Paragraph 8 of Schedule 7 amends section 17 of the 1988 Act. Significantly for present purposes, it defines "navigation income" as including any income made "under section 26 of the Harbours Act 1964 (including tolls in respect of adjacent waters)" It defines "navigation expenditure" as "expenditure incurred in relation to adjacent waters under section 10(2A) of the 2009 Act".
Paragraph 8(10) provides:
"The Authority may apply navigation income for the purposes of carrying out to adjacent waters works of maintenance or improvement which are intended to facilitate the use of those waters for the purposes of navigation by persons other than the occupier of, or the owner of any interest in, the land upon which
the waters are situated."
It is convenient at this stage to interpose into the summary of the provisions of the 1988 Act as amended by the 2009 Act the provision of the Harbours Act to which reference is made in schedule to the 2009 Act. Section 26 is headed "Harbour charges".
Section 26(1) provides:
"Subject to the following provisions of this Act, any statutory provision made with respect to a particular harbour authority shall cease to have effect in so far as (otherwise than by way of expressly providing for freedom from dues or in any other manner prohibiting the levying of a due) it limits the discretion of the authority as to the ship, passenger and goods dues chargeable by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing (whether by specifying, or providing for specifying, the dues to be levied, or fixing or providing for fixing, dues, or otherwise)."
Section 27 of the Harbours Act 1964 provides that certain charges of certain Harbour authorities shall be reasonable. The material part of subsection (1) provides:
"In place of any limitation imposed, by a statutory provision made with respect to them in particular, on the discretion of a harbour authority as to charges … that may be made by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing … there shall, by virtue of this subsection, be imposed the limitation that the charges shall be such as may be reasonable."
I return to the 2009 Act. Section 11(2) of that Act provides:
"The Authority may make byelaws for the purpose of providing for the registration of vessels in the navigation area or on adjacent waters, and for the
determination and recovery of tolls in respect of vessels moored, used or navigated in the navigation area or on adjacent waters."
The 1997 bylaws which referred only to tolls for mooring using or navigating a vessel on waters within the navigation area have not been amended. Section 11(14) of the 2009 Act however, provides that, other than bylaws 23 and 28, the 1997 bylaws shall be deemed to have been made under this section and shall have effect as though the references in those bylaws to the navigation area included adjacent waters.
The fact that the changes to the legislation and the bylaws were made in this way is not conducive to clarity. There is a particular difficulty for those who are not qualified lawyers or familiar with the structure of our body of legislation commonly called the "statute book" to navigate their way through the incorporation of textual changes by reference. Things are not helped by the fact that the official government website, Legislation.gov.uk, does not yet contain a version of the 1988 Act incorporating the changes made by the 2009 Act, which if the WestLaw printout is correct, came into force on 1st June 2012. The fact that immediately above each section on the statute law database there is a statement that there are outstanding changes to the Act not yet made by the editorial team together with the reference to outstanding changes (in this case made by Schedule 7) is of course of considerable assistance. But the persistent searcher is still required to ascertain the current state of the legislation from two or more texts.
In these circumstances, it is surprising that the Broads Authority have not updated the bylaws to reflect the current position. They have power to do so. It may be that they have not done so because they respect Parliament's decision to provide for automatic amendment in the form given by section 11(14). The result, however, is a certain complexity and lack of transparency, which does not flow from the decisions made by those framing the primary legislation.
I turn to the primary facts, which are not disputed. Paragraph 5 of the Case Stated records them as follows:
"Mr Fry owns a vessel in a private marina in what are adjacent waters under the Norfolk and Suffolk Broads Act 1988 ("the 1988 Act"). His vessel has no engine. He does not take his vessel out of the marina into the navigation area of the Broads. The Broads Authority have exercised a power granted by the 1988 Act as amended. By the Broads Authority Act 2009 Schedule 7(7) to levy a toll on vessels moored in such adjacent waters. The outstanding toll at the time of his conviction by the Magistrates' Court in respect of Mr Fry's vessel was £552.08 pence. Mr Fry refused to pay it. The Broads Authority provide services which include ranger services, dredging, regulation of water quality and vessel safety and insurance. Mr Fry does not personally derive any benefit from such...
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