Christopher Akerman v London Borough of Richmond
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Nicol |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWHC 84 (Admin) |
| Docket Number | Case No: CO/2943/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2017 |
[2017] EWHC 84 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Mr Justice Nicol
and
Case No: CO/2943/2016
Nathaniel Wade (instructed by Hodge, Jones and Allen) for the Appellant
Adam Heppinstall (instructed by London Borough of Richmond) for the Respondent
Hearing date: 19 January 2017
Approved Judgment
I. Introduction:
The issue in this appeal by way of case stated pursuant to section 111 of the Magistrates Court Act 1980 is the validity of byelaws made under section 235 of the Local Government Act 1972 ("the 1972 Act") by the London Borough of Richmond making it a criminal offence to moor a boat against specified land for longer than the maximum period specified. The appellant, Christopher Akerman, the owner of the Longwood Lady, was convicted by District Judge (Magistrates Court) Barbara Barnes on 1 February 2016 of four breaches of the byelaws. The respondent is the London Borough of Richmond.
The respondent alleged that on 13 March, 11 and 29 May, and 4 June 2015 the appellant moored or permitted the Longwood Lady, to be moored to land owned by it at Ham Lands, Ham, Richmond for longer than the maximum permitted period which, in the case of that location, was 1 hour in any 24 consecutive hours. Byelaw 4 makes it a criminal offence to so moor a boat against that land without the prior written consent of the respondent except "in cases of an emergency or other unavoidable cause". The appellant contended before the District Judge and contends in this court that byelaw 4 is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the byelaws was anti-social behaviour but the byelaws did not address such behaviour and were such an excessive response to the evidence of that behaviour that they were ultra vires at common law. It was also submitted that making the byelaws was a disproportionate infringement of the rights under article 8 of the European Convention on Human Rights ("the ECHR") and breached the appellant's rights.
II. The Legislative framework:
Section 235 of the Local Government Act 1972 empowers the respondent to make byelaws "for good rule and government and suppression of nuisances". It states:
"(1) The Council of a district… and a Council of a London Borough may make byelaws for the good rule and government of the whole or any part of the district… or borough, as the case may be, and for the prevention and suppression of nuisances therein.
(2) The confirming authority in relation to byelaws made under this section shall be the Secretary of State.
(3) Byelaws shall not be made under this section for any purpose as respects any area if provision for that purpose as respects that area is made by, or is or may be made under, any other enactment."
Following a process of advertising and consultation in accordance with sections 236(4) – (6) of the 1972 Act, on 16 December 2014 the respondent applied to the Secretary of State for Communities and Local Government for the approval of "byelaws relating to mooring". On 13 February 2015 a Minister in the department confirmed the byelaws. They came into force 1 month later, 1 minute after midnight on 13 March 2015. Byelaw 4 provides:
" Mooring
4. (a) Except in cases of an emergency or other unavoidable cause, no person shall on any land designated in Schedule 1 and shown delineated in red on the attached Mooring Byelaws Borough-wide Plan and Mooring Byelaws Detailed Plans 1 to 37 moor any boat or permit any boat to be moored for longer than a maximum period of 1 hour in any period of 24 consecutive hours (beginning with the time at which the boat first moored on the land) without the prior written consent of the Council.
(b) If a boat continues to be moored after the expiry of 1 hour in breach of the byelaw 4(a), further offences will be committed after the expiry of the first hour in every subsequent 24 hour period (such 24 hour periods to be calculated with reference to the time at which the boat first moored on the land) until the boat ceases to be moored to the land."
Byelaw 5(a) permits a boat to be moored for a maximum period of 24 hours on the land designated in Schedule 1 in the case of an emergency or other unavoidable cause for the purpose of remedying the emergency by making repairs or to arrange and wait for removal of the boat from the land. Byelaw 6 deals with the land designated in Schedule 2 and prohibits any boat to be moored or be permitted to be moored for longer than a maximum period of 24 consecutive hours in any period of 48 hours without the prior written consent of the Council.
Byelaw 9 contains transitional provisions which make it clear that, in the case of boats already moored on land designated on the date the byelaws come into operation, the time at which the boat is deemed to be first moored on the land for the purposes of calculating time periods will be 01.00 hours on the date the byelaws come into operation.
Byelaw 10 provides that any person offending against the byelaws is liable on summary conviction to a fine not exceeding level 2 of the standard scale.
In order to provide some context, I also summarise section 79 of the Thames Conservancy Act 1932 ("the 1932 Act"). Section 79(1) grants a public right of navigation on "any and every part of the Thames through which Thames water flows". By section 79(2), the right of navigation includes "a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by by-laws determine …". Section 79(2) contains a proviso that nothing in the statute or any byelaw made under it was to be construed as depriving any riparian owner of any legal rights which he may "now" possess in the soil or bed of the Thames or of any legal remedies which he may "now" possess "for the prevention of anchoring mooring loitering or delay of any vessel" or give any riparian owner any right as against the public which he did not possess before 17 August 1894 "to exclude any person from entering or navigating any backwater creek channel bay inlet or other water". It was common ground at the hearing that the use of the word "now" did not restrict the rights of riparian owners including the respondent and that, for the purposes of this appeal, it was not necessary to go into the distinction between mooring in the river and being moored to the river bank.
III. The factual background and the evidence:
Since most of the evidence was not in dispute (case stated, [4]) I can summarise it briefly. The appellant moored the Longwood Lady on land belonging to the respondent at Ham Lands near Teddington Lock for longer than the permitted 1 hour on each of the four days which are the subject of the charges. He accepted (case stated [4]) that there was neither a case of emergency nor any other unavoidable cause for overstaying. He stated (case stated [7]) that he had lived in the boat for 9 years and could not move the boat because the engine was broken and he could not afford to fix it.
There was no challenge to the procedures followed by the Council for making the byelaws. Evidence was given on behalf of the respondent by Mr Noviss, its solicitor, its Enforcement Officers Messrs Sigamoney and Copley, and Mr Allister the respondent's Head of Parks. Mr Noviss was cross-examined about the purpose of the byelaws. Paragraphs [5] and [6] of the case stated summarise the evidence as follows:
"5. The evidence from Mr Noviss, solicitor for R was not challenged as to the correctness of the procedures for making the byelaws. Mr Noviss in his evidence said that the byelaws were not directed at housing issues but were to prevent boats being moored at the council's land without permission. He said they related to anti-social behaviour connected with such moored vessels. The presence of the boats caused a nuisance in preventing access to the river and the bank for other river users such as anglers, yachtsmen, canoeists and pedestrians on the bank. He said the objective of the byelaws was to free up the banks for everyone and keep small boats moving on the river. He denied there was any right for boat owners to moor on someone else's riverbank property and said that the right to public navigation was only a right of movement on the river. He denied the byelaw would result in boat owners becoming homeless as the byelaw did not deprive them of their boat which was the home.
6. Other unchallenged evidence came from the Enforcement Officers…. who produced evidence of the boat being moored in excess of the permitted time;….. and…. the Head of Parks for the borough who outlined the nuisance and anti-social behaviour occurring and reported at the river bank at Ham Lands. He said that there were no facilities or infrastructure in place to accommodate people living in the vessels moored there and that a balance had to be struck so that the river and the banks were accessible to all users …"
The judge's findings of fact are at paragraph [8] of the case stated:
"I found that A was the owner of the boat and on the 4 dates specified he had moored the boat for longer than the permitted time of 1 hour. He did not have prior written consent of the Council and there was no emergency or any other unavoidable cause for mooring for over an hour."
Although not relevant to the issue before this court, I add that, at the beginning of his submissions, Mr Heppinstall on behalf of the respondent informed us of developments since the decision...
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Matthew Jones v Canal & River Trust
...court and counsel, prior to the hearing, had been alerted to the recent decision of the Divisional Court (Beatson LJ and Nicol J) in Akerman v LB Richmond [2017] EWHC 84 (Admin). In that case, the appellant appealed against his conviction in the Magistrates Court for four breaches of by-law......