Caie Wesley Graham and David Frank Devere v The British Waterways Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON: |
| Judgment Date | 11 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1119 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2003/1050 |
| Date | 11 July 2003 |
[2003] EWCA Civ 1119
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRENTFORD COUNTY COURT
(His Honour Judge Oppenheimer)
Lord Justice Peter Gibson
B2/2003/1050
The Applicant appeared in person.
The Respondent did not appear and was unrepresented.
The second claimant, David Frank DeVere, seeks permission to appeal out of time from the order made on 12th February 2002 by His Honour Judge Oppenheimer in the Brentford County Court. The judge had on 30th October 2002 dismissed the action of the first claimant, Mr Graham, and of Mr DeVere against the defendant, British Waterways Board ("the Board"), in trespass. By his subsequent order the judge granted injunctions against both claimants, restraining them from mooring their respective houseboats on any part of the Grand Union Canal and requiring each of them to remove his houseboat from where it was moored in the canal at Brentford. The judge refused permission to appeal. I am not aware that Mr Graham has sought further permission to appeal to this court. Mr DeVere had to serve the Appellant's Notice in this multi-track case on the Court of Appeal. What he did was to serve his Appellant's Notice in the county court within time. That was the wrong place. But when his Appellant's Notice was returned to him he says that he promptly lodged an Appellant's Notice in this court. If there is substance in the proposed appeal, I would not hold the delay against him.
The background facts are these. The Board is a statutory corporation. It has control over canals and other inland waterways. Mr DeVere claims to be the trustee and master of a Dutch houseboat, the Ambulant, which he has occupied as his home. It was moored, like Mr Graham's houseboat, at a point on Thames Creek, being that part of the Grand Union Canal close to its junction with the River Thames. The Ambulant has no houseboat licence. On 10th April 2001 officials of the Board served a notice on the Ambulant requiring its removal, as they did on Mr Graham's boat. Mr Graham and Mr DeVere commenced proceedings in trespass, claiming that the Board did not have title to, or jurisdiction or authority over, the stretch of water where the Ambulant is moored. The Board counterclaimed for possession, contending that they did have the right to control the canal either because of its navigational jurisdiction over the waterway where the two houseboats were moored, entitling them to serve statutory notices upon the claimants, or because the Board had title to the canal. The judge, exercising his case management powers at the beginning of the trial, directed the trial of the issue of control before the issue of title because it was common ground that if the Board had jurisdictional control over the relevant part of the waterway the Board must succeed.
The judge noted the evidence for the Board, including that of Nigel Johnson, who explained that the River Brent was incorporated in the line of the canal above and below Thames Lock, that the River Brent had been canalised down to the River Thames and that actual control had been exercised by the Board over the relevant part of the canal for very many years. The judge referred to the fundamental argument for the claimants as being that the Board does not have powers of control over the tidal part of the canal, that from Gauging Lock to the junction of the canal with the Thames, but that the Port of London Authority ("the PLA") does have those powers.
The judge considered a number of statutes and concluded that the Company of Proprietors of the Grand Junction Canal were enabled by the Grand Junction Canal Act 1793 to drive a canal from the Oxford Canal to the River Thames at Brentford and to manage and control the navigation of the canal. That canal was then built and the work done along the River Brent, including some straightening. He also held that by the Regents Canal Act 1928 the undertaking of the Grand Junction Canal vested in the Grand Union Canal Company, and in 1947, on the nationalisation of transport by the Transport Act 1947, the whole of the undertaking of the Grand Union Canal Company vested in the British Transport Commission. By the Transport Act 1962 the Board was established and to it were transferred the property, rights and liabilities comprised in that part of the Commission's undertaking constituted by (among other things) its inland waterways. The judge found that it gave the Board the authority to grant licences. By successive British Waterways Acts, "inland waterway" is defined as any canal or inland navigation belonging to or under the control of the Board. The judge accepted the Board's submission that the Board controlled everything formerly controlled by the Commission. By the Transport Act 1968 that part of the inland waterways comprised in the Board's undertaking which consisted of cruising waterways includes the Grand Union Canal down to its junctions with the River Thames at Brentford. The judge therefore held it was unarguably the case that the stretch of water on which...
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David Frank Devere v Hither Green Developments Ltd
...question as to whether that judgment could give rise to an issue estoppel in this action." 10 (3) On 23 August 2004, in Graham and DeVere v British Waterways Board (unreported) DJ Allan struck out the claim by Mr Graham and Mr DeVere for possession of a stretch of the bed of the River Brent......