Nigel Peter Moore v British Waterways Board

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr. Justice Hildyard
Judgment Date10 Feb 2012
Neutral Citation[2012] EWHC 182 (Ch)
Docket NumberCase No: HC07C02340

[2012] EWHC 182 (Ch)

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Royal Courts of Justice

Rolls Building, Fetter Lane, London, EC4A 1NL

Before:

The Honourable Mr. Justice Hildyard

Case No: HC07C02340

Between:
Nigel Peter Moore
Claimant
and
British Waterways Board
Defendant

Mr Nigel Peter Moore the Claimant appeared in person

Mr Christopher Stoner QC (instructed by Shoosmiths) for the Defendant

Hearing dates: 1, 2, 3, 4, 7 November 2011

INDEX

(1) An overview of the issues………….

1–5

(2) The Preliminary Issues already decided……….

6–8

(3) Scope of this Trial……………………

9–19

(4) The part of the GUC in question………………….

20–25

(5) The basis of Public Rights of Navigation………….. …

26–30

(6) The geography of the alleged mooring area…………

31–37

(7) More detail as to the relevant vessels and their location when notices were served

38–50

(8) The form of the notices served………………………..

51–53

(9) The proper classification of the vessels……………….

54–60

(10) Section 43 of the 1793 Act and its interpretation and effect…………..

61–68

(11) PRN and the riparian rights asserted……..…………..

69–70

(12) Whether there are any other provisions of the 1793 Act that assist the Claimant……

81–87

(13) An alternative case advanced by the Claimant in relation to the Thames Conservancy Act, 1857………

88–92

(14) Claimant's case based on limitation of BWB's statutory authority……………

93–94

(15) The principles of statutory construction urged by the Defendants……………..

95

(16) Relevant parts of the legislation chronologically discussed…………………

98–131

(17) The Claimant's construction of these provisions……..

132–139

(18) BWB's construction and my conclusions……………

140–167

(19) Whether BWB had a collateral purpose………………

168–185

(20) Whether the Claimant had legitimate expectations that were ignored or overridden……..

186–204

(21) Human Rights………………………………………..

205–215

(22) BWB's breaches of undertakings…………………….

216–230

(23) Conclusion…………………………………………

231–235

Mr. Justice Hildyard

The Issues

1

The ultimate issue in this trial may be shortly stated: it is whether or not the Defendant, the British Waterways Board ("BWB"), was acting within its powers of control over and regulation of the Grand Union Canal ("the GUC", originally called the Grand Junction Canal) in serving notices under section 8 of the British Waterways Act 1983 ("section 8 Notices") on several vessels then under the care or control of Claimant and moored at or near the location of the Ridgeway Dock on the GUC at Brentford.

2

This short statement, however, disguises the variety and intricacy of the detailed points that arise in seeking to adjudicate upon that ultimate issue. In 1990, the legislation concerned was described by a Select Committee of the House of Lords (HL Paper 73, printed on 3 July 1991) as having "developed piecemeal over the last three decades". The Select Committee went on to encourage BWB to put forward consolidating legislation in place of the existing "confusing set of provisions." There has been no consolidating legislation since then, and the confusion remains.

3

The Claimant's primary case that the BWB simply lacks power to do as it has done requires a trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793 ("the 1793 Act"). His secondary case, that he has or can assert rights such that BWB cannot exercise against him the powers they have sought to enforce, requires not only a review of the provisions of the 1793 Act but also consideration of common law riparian rights (including a right to moor) which the Claimant contends he has by virtue of his possession or occupation of (or of part of) land along the GUC near Ridgeways Wharf.

4

Although some issues have melted away or been restricted by agreement (as I shall explain later), and despite BWB's protestations that it has been dragged into legislative undergrowth it had no wish to trawl through, the dispute has developed into something of a test of the rights of users of the GUC and the powers of BWB in that regard.

5

The matter has already travelled to the Court of Appeal. This was in relation to the adjudication by Mr Martin Mann QC, sitting as a Deputy High Court Judge, of 4 preliminary issues. These were designed to determine some of main issues raised in the pleadings in respect of the use of the GUC between Bax's Mill (now more usually called the "Boatman's Institute") and the River Thames. Not for the first time in litigation these preliminary issues have achieved less than had been hoped in terms of confining the trial.

The Preliminary Issues already adjudicated

6

The 4 preliminary issues, and the answers given to each at first instance, were as follows:

i) Preliminary Issue (1): whether the rights concerning the waterway between Bax's Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793 ("the 1793 Act") remain in force and unaffected by the provisions of the Transport Act 1968 ("the 1968 Act"); to which Mr Mann QC answered (though doubting that an answer was necessary in light of his other conclusions) that the private right of navigation, which he described as having been granted by section 43 of the 1793 Act, was repealed by the 1968 Act.

ii) Preliminary Issue (2): whether the GUC extends down stream to the mouth of the River Brent into the mouth of the River Thames; to which Mr Mann QC answered: Yes.

iii) Preliminary Issue (3): whether the BWB is the relevant statutory navigation authority for that element of the GUC which now or formerly comprised tidal waters of the River Brent; to which Mr Mann QC answered: Yes.

iv) Preliminary Issue (4): whether a public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation; to which Mr Mann QC answered: No.

7

The Claimant's appeal focused on Preliminary Issue (1), and on the order for costs (to the latter of which I return at the end of this Judgment). Indeed (as recorded in the judgment of the Court of Appeal) that is the only one of the Preliminary Issues for which the Claimant sought permission to appeal. Preliminary Issue (2) was agreed. Preliminary Issue (3) had been resolved by the fact that the regulation of the GUC (generically referred to as 'the Navigation') had devolved to BWB which in fact does and is entitled to regulate it. Preliminary Issue (4), though not agreed, ceased to be actively contested, it being clear that the public right of navigation has never included an ancillary right to moor, other than temporarily in the course of a voyage on the GUC, and it not being suggested that any of the vessels concerned in this case was temporarily stopped in the course of such a voyage.

8

The Court of Appeal endorsed what by then was or became the shared view of the parties that the Deputy Judge's ruling on Preliminary Issue (1) was unsatisfactory and could not stand. As Mummery LJ put it in his Judgment ( Nigel Moore v British Waterways Board [2010] EWCA Civ 42 at paragraph 5), "Something had gone wrong with it, not least because it was in terms for which neither side had contended." The Court of Appeal set aside the ruling and directed that Preliminary Issue (1) should proceed to trial along with all other issues not resolved by the Deputy Judge's ruling.

The scope of this Trial

9

However, in the course of the hearing in the Court of Appeal, and after the Claimant had refined and more specifically explained his case in reliance upon a riparian right, being to the effect that the relevant canal bank by Ridgeways Wharf is a wharf which carries the riparian right to moor alongside, BWB stated that it does not seek to argue that if, prior to 1793, there was a pre-existing right to moor, it has been repealed by the 1793 Act or the 1968 Act.

10

More specifically, BWB made clear that it would accept that the legislation does not affect the preserved pre-1793 public rights of navigation over the River Brent from Bax's Mill (now usually called "the Boatman's Institute") to the River Thames.

11

However, it does contend that neither the public right of navigation nor any riparian right such as the Claimant has asserted includes the right to moor, and that any right to use any part of the GUC, including the River Brent section, is still subject to BWB's regulatory and management powers in respect of the canal as an inland waterway.

12

BWB's concession and clarification makes unnecessary much of the detailed argument advanced before Mr Mann QC when hearing Preliminary Issue (1). Nevertheless, the 1793 Act still requires interpretation both in that context, and as I shall explain later, in the context of the Claimant's reliance before me (I think for the first time) on further sections of the 1793 Act, that is sections 82 to 86 as the source of his claimed right to moor.

13

The scope of the trial has been further defined and confined by concessions made on the second day of trial, and then confirmed in writing by both parties at my request. I return to discuss the relevance and effect of these concessions in more detail later; it suffices for present purposes to record that in this action

i) BWB does not rely upon any common law right of ownership to justify the serving of the section 8 Notices; and

ii) The Claimant does not assert or rely upon a claim to ownership of the bed of the River Brent/GUC as entitling him to moor any vessels.

14

Thus, in this action (and in fact consistently with its original position as set out in its Defence) BWB...

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