Mr Nigel Moore v British Waterways Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lady Justice Arden,Lord Justice Elias |
| Judgment Date | 05 February 2010 |
| Neutral Citation | [2010] EWCA Civ 42 |
| Docket Number | Case No: A3/2009/0731 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2010 |
[2010] EWCA Civ 42
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Martin Mann QC (Sitting as a Deputy High Court Judge)
Before: Lord Justice Mummery
Lady Justice Arden
and
Lord Justice Elias
Case No: A3/2009/0731
No HC07C02340
The Appellant appeared in person
MR CHRISTOPHER STONER (instructed by Messrs Shoosmiths) for the Respondent
Hearing date: 25 th November 2009
Lord Justice Mummery:
Introduction
This dispute is about the claimant's rights to moor his houseboats to, or alongside, the banks of a stretch of the Grand Union Canal (the GUC). The defendant British Waterways Board (BWB) is responsible for the GUC as an “inland waterway.” The issues between the parties relate to the nature, source and extent of the claimant's rights, and the scope and exercise of BW's statutory powers of control over and regulation of canals, “inland waterways” and “houseboats” under the British Waterways legislation enacted in 1971, 1975, 1983 and 1995, and the impact (if any) of the statutory regime on the claimant's rights. The legislation set up a system for issuing relevant consents or certificates and for charging for the registration of houseboats. It includes powers to serve notices requiring vessels to be removed, to confiscate unlawfully moored vessels and to prohibit the maintenance of structures, such as mooring posts and landing stages, in an inland waterway, without a certificate.
The full trial of the case has not yet taken place, because a direction was made for the preliminary determination of 4 issues. They were determined by Mr Martin Mann QC, sitting as a Deputy High Court Judge, on 12 March 2009. The claimant was refused permission to appeal. The focus of his application to this court for permission was on issue (i) of the preliminary issues, which related to the impact of the Inland Waterways legislation on his rights in respect of the waterway described in the Grand Junction Canal Company Act 1793 (the 1793 Act), and on the order to pay 4/5 th's of BWB's costs of the preliminary issues.
In accordance with directions given by Arden LJ (supplemented by Lloyd LJ) the hearing on 25 November 2009 was listed as an adjourned inter partes application for permission to appeal, with the appeal to follow immediately on a grant of permission.
Mr Nigel Moore appears in person. BWB, represented by Mr Christopher Stoner, opposed Mr Moore's application mainly on the ground that an appeal was “unnecessary.” There is going to be a trial at which all outstanding issues will be determined. As the arguments developed in discussions with the court, it became clear that permission to appeal ought to be given on issue (i), so that this court could set aside the preliminary ruling on that issue and allow it to be determined at trial along with all other outstanding issues of fact and law.
In his grounds of appeal Mr Moore criticised the ruling of the deputy judge as “insufficiently responsive to the question” relating to preservation of pre-existing rights and/or the grant by the 1793 Act of private, as well as public, rights of navigation and of private riparian, non-navigational rights, including the right to moor vessels to the banks of the GUC without objection from the owners of the banks. Mr Stoner fairly accepted that the deputy judge's ruling on issue (i) was unsatisfactory. Something had gone wrong with it, not least because it was in terms for which neither side had contended.
This court concluded that the issue would have be re-argued and that it was more sensible for that to be at trial after the court had heard all the evidence. That court would be better equipped to understand the whole situation than would be possible for this court on an appeal constrained by the terms in which the preliminary issue was framed. Subject to questions of liability for the costs of (a) the preliminary issues and (b) the appeal and the application for permission, Mr Moore and Mr Stoner were content for the court to take this course. For the benefit of the parties and of the trial judge this judgment provides a short summary of the background to the litigation and the issues to be determined, as well as a statement of reasons for setting aside the deputy judge's ruling on preliminary issue (i) and for making orders for costs of the preliminary issues and of the appeal, including the permission application.
Background
The stretch of the GUC relevant to this dispute was formerly part of the River Brent flowing into the River Thames at Brentford. The river was canalised at the end of the 18 th century to form the Grand Junction Canal, as the GUC was originally called. The Grand Junction Canal Act 1793 (the 1793 Act) was a Private Act which facilitated the construction of a navigable canal running from Braunston in Oxfordshire to the River Thames at Brentford. The GUC thus includes an element of the former River Brent.
BWB made the point that the subsequent legislation on the regulation of “inland waterways” did not contain any express saving for rights which may have been conserved or conferred by the 1793 Act. BWB's pleading alleged that the effect and extent of any rights contained within the 1793 Act fell to be construed by reference to and having regard to the various British Waterways Acts and that the powers of regulation in those Acts impliedly repealed and/or amended previously relevant rights in the 1793 Act.
It should be noted that the section of the GUC immediately above the junction with the River Thames is tidal and that a semi-tidal stretch goes back to Lock 100, above which and stretching back to Bax's Mill (which is expressly mentioned in the 1793 Act) the GUC is non-tidal.
Mr Moore lives a narrowboat Platypus moored to the bank at Ridgeways Wharf, Brent Way, Brentford. That stretch of the GUC is near a dock area and is close to the point above the Thames Lock called “The Nib.” Mr Moore is the Company Secretary of Brentford Marine Services and of Brentford Yacht and Boat Company Limited (the Company) which has been involved in other litigation with BWB and a company called Geronimo Limited relating to title to land in the vicinity of the moorings. The dispute was partly compromised by a Tomlin Order in August 2008 and was the subject of a judgment handed down on 12 December 2008.
Nearby five other vessels owned or controlled by him are moored. Four of them are occupied. None of his vessels is anchored to the bed of the GUC. They are moored either to a pontoon in the GUC or to sections of the bank of the GUC. Before the trial of the preliminary issues the vessels were moored alongside land and a pontoon that Mr Moore contended had been used for the past 60 years by the Company and its predecessors. At the time of the trial the vessels were moored somewhat differently. However, it is still an issue in this action whether (and, if so, how) the vessels are moored either to a pontoon in the GUC or to sections of the bank of the GUC.
The litigation was prompted by Mr Moore's challenge to the validity and enforceability of notices served on him by BWB on 21 July 2007 under section 8 of the British Waterways Act 1983 (the 1983 Act) in relation to his houseboats. BWB contended that they were moored without lawful authority in an inland waterway under its control. The notices demanded the removal of the vessels within 28 days or face confiscation. Mr Moore says that he is entitled to do what he does by virtue of common law rights, which have not been extinguished by legislation, and by virtue of rights which he contends were preserved and/or conferred by the 1793 Act and have not been removed, repealed or overridden by later legislation.
The claims are resisted by BWB, in which the...
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