R Fry v North East Suffolk Magistrates Court
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 4849 (Admin) |
| Docket Number | CO/10267/2012 |
| Date | 17 January 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 4849 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
David Elvin QC
(Sitting as a Deputy High Court Judge)
CO/10267/2012
The Claimant appeared in person and was not represented
Mr Charles George QC (instructed by the Broads Authority) appeared on behalf of the Defendant
THE DEPUTY JUDGE ( David Elvin QC):
In this matter, Mr Alan Fry who is the master and owner of an unpowered houseboat, Adure, which is a historic Dutch barge built in 1904, which is moored in what are called adjacent waters of the Waveney River Centre on the Norfolk Broads, seeks to challenge by way of collateral attack, the basis upon which he was convicted of two offences in respect of registration and tolls regarding those adjacent waters.
His claim was made by judicial review on 18 September of last year and permission was refused on the papers by Haddon-Cave J on 26 October of last year — I will come back to those reasons in a moment. Essentially, the grounds upon which Mr Fry brings this challenge are that the convictions were based upon the Broads Authority having exceeded its statutory authority to charge a toll and thereby unreasonably refused to register his boat, because they were treating themselves effectively as navigation authority and charging a toll for the use of the navigation which they were not empowered to do, either under the Broads Authority Act 2009 or under the amendments to the Norfolk and Suffolk Broads Act 1988.
The convictions were obtained from the North East Suffolk Magistrates' Court on 29 March last year in respect of the following breaches of the Vessel Registration Byelaws 1997, which were made under the 1988 Act but reapplied by deeming provision in the 2009 Act:
(1) a breach of byelaw 19(1) that resulted from a failure to pay the appropriate toll for the period which included mooring at Waveney River Centre; and
(2) Mt Fry was in breach of byelaw 5(1) in that he had failed to register and did not have a valid registration certificate whilst remaining moored at Waveney River Centre on the River Waveney.
The convictions by the magistrates were appealed to the Crown Court. The Crown Court appears not to have thought it was appropriate to deal with this issue relating to the legality of the charging of toll and the registration issue which also flows from it and adjourn the matter to allow this judicial review to be brought.
As I explained to Mr Fry this is essentially a collateral challenge, it is not a direct challenge to the magistrates' decision but is a challenge based on the argument that the authority's basis for prosecution was unlawful, namely, that it had no power to charge the toll and in respect of registration it was wrong to refuse registration because in so doing it required a commitment to pay the toll.
The current position on collateral challenges is set out in the House of Lord's judgment in Boddington v British Transport Police [1999] 2 AC 143. The principles were most recently summarised by Lewison J, as he then was, in Bunny v Burns Anderson PLC [2007] EWHC 1240 at paragraph 47, and helpfully summarised by the learned authors of DE Smith's Judicial Review (6 th edition) pp. 211-214. These days it is usual to expect the court seized of the issue directly, namely, the court hearing the appeal from the magistrates, to deal with the legal issue which has arisen without the need for the adjournment, delay and additional costs involved in bringing judicial review in the High Court. The Crown Court appears to have thought it was proper to adjourn the matter though it seems to me that it should have dealt with the issues itself, including the collateral challenge. There would then have been the possibility of an appeal from the Crown Court's decision. However, since the matter is before me I will deal with it on its merits.
Mr Fry has presented his own case and has done so clearly and efficiently, and makes it clear that the heart of his case is that the amendments brought by the Broads Authority Act 2009 included a provision which made it absolutely clear that the Broads Authority was not given the powers of harbour authority or navigation authority. He submits that this is underlined by the provision in section 2(3) of the 2009 Act which states:
"Nothing in this Act shall have the effect of constituting the Authority as harbour authority or navigation authority for any adjacent waters."
The definition of "adjacent waters" is set out in section 2(2):
"Any broad, dyke, marina or other substantially enclosed waters connected to the navigation area and from which a vessel may be navigated (whether or not through a lock, moveable barrier or any other work) into the navigation area but does not include…"
(There are various exclusions which are not applicable here..)
It is not disputed that Mr Fry's boat is moored in "adjacent waters" for the purposes of the Act.
Section 2(1) defines "toll" as:
"a charge levied by the Authority under section 26 of the Harbours Act 1964, and includes any charge levied in respect of a vessel moored, used or navigated on any adjacent waters;"
This matter is picked up in schedule 7 to the Act where various amendments are made to the Norfolk and Suffolk Broads Act 1988. In paragraph 7 a new power is inserted into the 1988 Act to charge as follows:
"The Authority may determine and recover tolls in respect of vessels moored, used or navigated on adjacent waters as well in the navigation area."
Paragraph 8 which amend section 17 of the 1988 Act also defines "navigation expenditure" and "navigation income" as including both expenditure incurred in relation to adjacent waters under section 10(2A) of the 1988 Act and commits navigation income to include tolls in respect of adjacent waters.
Paragraph 8(10) states:
"The Authority may apply navigation income for the purposes of carrying out to adjacent waters works of maintenance or improvement which are intended to facilitate the use of those waters for the purposes of navigation by persons other than the occupier of or the owner of any interest in the land upon which the waters are situated."
The tolls in question for the use of adjacent waters were made under the byelaws that I have mentioned and were the result of a resolution of the Broads Authority on 18 September 2009 where the tolls were fixed to begin the following April.
I note that the report to the Authority which sought the approval of the annual toll is headed: "Broads Authority Act 2009: Tolls in Adjacent Waters" and it is a report by the Director of Waterways and Solicitor and Monitoring Officer. It begins by informing the Authority of the powers in relation to adjacent waters (see paragraph 1.2 of the report on page 145 of the bundle and following).
The tolls were fixed as part of the implementation of the 2009 Act under agenda item 1(19) and the dispute between Mr Fry and the Authority arose following this, when the Authority sought to levy the toll of £481.29 in respect of Mr Fry's mooring of his boat in adjacent waters and requiring him to sign up to payment of that toll in order that he might be lawfully registered under the...
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