Moore v British Waterways Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Lewison,Lord Justice Jackson |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] EWCA Civ 73 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2013 |
| Docket Number | Case No: A3/2012/0788 |
[2013] EWCA Civ 73
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
THE HON MR JUSTICE HILDYARD
HC07C02340
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Jackson
and
Lord Justice Lewison
Case No: A3/2012/0788
The Appellant appeared in person
MR CHRISTOPHER STONER QC (instructed by Shoosmiths LLP) for the Respondent
Hearing date: 27 th November 2012
Introductory
This is an appeal from an order made by Hildyard J on 16 February 2012. In accordance with the judgment (reported at [2012] 1 WLR 3289) the order set out a succession of declarations on issues in proceedings brought by the claimant, Mr Nigel Moore, against the defendant, the British Waterways Board (BWB), known since 2 July 2012 as the Canal & River Trust following a transfer of statutory functions. The object of the claimant's action is to establish a right to moor vessels long term in part of the Grand Union Canal (the GUC) at Brentford, Middlesex, so that the claimant does not need the permission of BWB to do so and cannot be lawfully required by BWB to remove the vessels.
The principal ground of Mr Moore's appeal is that the judge was wrong to hold that, in the absence of BWB's permission, the long term mooring of vessels on a semi-tidal stretch of the GUC, close to the junction of the canalised River Brent element of the GUC and the River Thames, is "without lawful authority" within the meaning of s. 8 of the British Waterways Act 1983 (the 1983 Act). The judge found that the claimant had not demonstrated any right under the general law to moor vessels permanently, either in right of riparian ownership or possession, or otherwise.
Background
The parties
The claimant had care of 4 vessels which were moored for several years on a stretch of the GUC. They were moored alongside riparian land, which, for the purposes of this action, BWB accepts is in the possession or occupation of the claimant. Unlike the rest of the GUC, that particular part of the canal has a tidal element and is subject to a public right of navigation. The vessels were occupied as the sole residential homes of the occupants. The claimant occupies a vessel called "Gilgie." The vessels were thus moored otherwise than for temporary purposes ancillary to, or in the process of, navigation on the GUC, such as in loading and unloading, or for repairs, or to shelter from the weather conditions.
BWB is the statutory navigational authority for the GUC. It derives its powers from British Waterways Acts passed between 1971 and 1995. Purporting to act as such statutory authority for the management of the GUC, BWB served notices on the claimant on 21 July 2007. The notices, which stated that they were given pursuant to s.8 of the 1983 Act, demanded the removal of his vessels within 28 days on the ground that they were moored in the GUC "without lawful authority."
The proceedings
On 4 September 2007 the claimant started proceedings against BWB for a declaration that the notices served on him were unlawful and that he had a right to moor the vessels without BWB's permission.
Mr Martin Mann QC gave a judgment on preliminary issues on 12 March 2009. The claimant successfully appealed from part of that order on 5 February 2010: [2010] EWCA Civ 42. A list of issues was then drawn up at a case management hearing in preparation for trial, which took place before Hildyard J in November 2011. Some of the issues turned on the construction of the Grand Junction Canal Act 1793 (the 1793 Act) and of more recent legislation, in particular on the extent to which common law rights were preserved or amplified by the legislation. Others issues related to whether the s.8 notices had been served for an improper collateral purpose; whether, in serving the notices, BWB acted in breach of a legitimate expectation on the part of the claimant as to how those powers would be exercised; and whether article 8 of the European Convention on Human Rights was engaged in respect of the claimant's occupation of the vessel Gilgie as his home.
Those matters are relevant as background to this appeal, but there is no need to explore them in detail, as the judge's rulings on them are not appealed. So I turn to the parts of the order that are appealed.
The order
The material parts of the order under appeal provided that:-
"3. That it be and is hereby declared that a riparian owner has no entitlement, simply by reason of that riparian ownership, to moor a vessel alongside their riparian land otherwise than temporarily to facilitate access and for loading and unloading.
4. That it be and is hereby declared that the vessel "Gilgie" is unlawfully moored because it is not moored pursuant to public rights of navigation nor pursuant to any special or particular right entitling it to moor at its current location and no lawful right to moor there having been established.
5. That Mr Moore be required to move the vessel "Gilgie" from the waterways managed by British Waterways on or before 16 th May 2012, including the tidal element of the Grand Union Canal between Bax's Mill/The Boatman's Institute and the junction of the Grand Union Canal with the River Thames, save in so far as Mr Moore exercises public rights of navigation over the said tidal stretch and/or cruises British Waterways managed inland waterways in accordance with the terms and conditions of the licence issued in respect of the vessel "Gilgie" failing which after 16 th May 2012 British Waterways shall be entitled to exercise the statutory powers vested in it by section 8 of the British Waterways Act 1983.
6. That Mr Moore be forbidden, whether by himself or by instructing or encouraging any other person on or after 16 th May 2012 from mooring the vessel "Gilgie", or any other vessel in his control, on the tidal element of the Grand Union Canal between Bax's Mill/the Boatman's Institute and the junction of the Grand Union Canal with the River Thames, otherwise than for temporary purposes ancillary to or in the process of navigation, or at a lawful mooring."
The judge ordered the claimant to pay BWB 25% of its costs of the action, such costs to be the subject of a detailed assessment, if not agreed, and to pay the sum of £5000 on account of those costs.
The judge refused the claimant's application for permission to appeal. I worded the grant of permission to appeal cautiously.
The appeal
Does the claimant have "lawful authority" to moor his vessels permanently on the part of the GUC running alongside the riparian land possessed or occupied by him in Brentford? Or can he only moor there temporarily for the purpose of access and for loading and unloading?
The answer to those questions does not turn exclusively on the statutory powers of BWB, which accepts that, if it is lawful at common law for the claimant to moor the vessels permanently alongside his riparian land, he has the necessary "lawful authority" within the meaning of s.8 to do that. Lawful authority derived from the common law would provide a complete answer to the notices served by BWB. Section s.8 applies to vessels moored "without lawful authority": it does not just apply to the case of vessels moored without the permission of BWB.
Statutory bodies equipped with powers and rights (and subject to duties) continue to expand without replacing all the private and public rights and remedies for wrongs available under the common law. If the claimant's contention that he has unmodified common law mooring rights is correct, the notices are invalid: he does not need permission from BWB, as statutory authority, to do what the common law permits him to do.
The judgment
The judge carefully examined a mass of factual and legal materials. It is unnecessary to re-visit most of it in order to decide this appeal. On the key question of the construction and application of s. 8 the judge held that the claimant had not demonstrated that he had "the right to moor" vessels permanently along his part of the bank; that he had moored them "without lawful authority"; and that BWB had sufficient power under the legislation to serve the statutory notices in respect of vessels under the claimant's care.
The judge rejected the claimant's contention that BWB had used its powers for an improper collateral purpose, but upheld his claim that he had a legitimate expectation that, in exercising its powers under s.8, BWB would abide by its own prescribed and invariable procedures. Those issues do not arise on this appeal nor does the claimant's reliance on article 8 of the European Convention on Human Rights.
As for the common law position, the judge concluded that "the ordinary rights incidental to ownership of riparian land do not include a right of permanent mooring." See [74]. He agreed with BWB that:-
" 76. …in so far as the claimant asserts an entitlement to moor alongside the canal bank he occupies, there is no ordinary riparian right entitling him to moor his vessel there except temporarily for the purpose of access, and for loading and unloading."
The claimant had not therefore shown any "lawful authority" to moor vessels permanently alongside the riparian land. The judge agreed with BWB that the words "without lawful authority", which focus on the lack of authority, were broad enough to catch a vessel moored where no right to moor could be demonstrated. See [155] and [159]. The claimant had not shown any established right to use the GUC for permanent mooring, whether...
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