The Environment Agency v Mr Christopher Gibbs and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Mr Justice Teare,Mr Justice Holroyde |
| Judgment Date | 15 April 2016 |
| Neutral Citation | [2016] EWHC 843 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3344/2015 |
| Date | 15 April 2016 |
[2016] EWHC 843 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Mr Justice Teare
Mr Justice Holroyde
Case No: CO/3344/2015
Mr David Perry Q.C. and Mr Richard Evans (instructed by the Environment Agency) for the Appellant
Mr Michael Magee (instructed by Direct Access) for the Respondents
Hearing date: 8 March 2016
Introduction
In this appeal we must consider whether each of two "houseboats", both moored in the Hartford Marina on the River Great Ouse in Huntingdon, was properly found by the Crown Court not to a be "vessel" within the definition provided by article 2 of the Environment Agency (Inland Waterways) Order 2010 ("the Inland Waterways Order").
The appeal before us is an appeal by way of case stated under section 28 of the Senior Courts Act 1981. The appellant is the Environment Agency, the respondents Christopher Gibbs and Glen Parker. Mr Gibbs and Mr Parker each owns and occupies one of the two "houseboats". The decision under challenge was made on 10 April 2015 by Mr Recorder Fields and two lay justices sitting in the Crown Court at Peterborough. The Crown Court allowed Mr Gibbs' and Mr Parker's appeals against their convictions by the magistrates of offences of keeping an unregistered vessel on a waterway, contrary to articles 4(1) and 18(1)(a) of the Inland Waterways Order.
The issue in the appeal
The basis of the Crown Court's decision was that neither "houseboat" was a "vessel" for the purpose of the Inland Waterways Order. In paragraph 19 of the case stated "[the] question for the opinion of the High Court is whether the Crown Court was right to conclude on [the facts stated] that the structures in question were not vessels for the purposes of the [Inland Waterways Order]".
The Environment Agency contends that the structures were "vessels" within the statutory definition. It emphasizes the object of the Inland Waterways Order, as a legislative instrument, to regulate certain activities on certain waterways, and the deliberately broad, though not exhaustive, definition of a "vessel" in article 2. It urges us to accept that, in the particular factual context with which we are concerned, a "houseboat" is manifestly a "vessel" within that definition, and thus properly the subject of regulation in the public interest.
Mr Gibbs and Mr Parker contend that their "houseboats" are not, as a matter of fact, "vessels" within the statutory definition, and that the Environment Agency has overstated its regulatory remit in maintaining that they are.
The legislative scheme
The Environment Agency is the navigation authority for certain waterways in England, including those listed in Schedule 1 to the Anglian Water Authority Act 1977, as modified by article 28 of, and Schedule 1 to, the Inland Waterways Order. Its statutory responsibilities include the duty to maintain navigable channels in those waterways.
The Inland Waterways Order came into force on 6 April 2010. It was made under sections 3 and 5 of the Transport and Works Act 1992. It provides for a system of registration to govern the use of inland waterways, which is the responsibility of the Environment Agency as navigation authority.
Part 1 contains various preliminary provisions. These include article 2, "Interpretation", which sets out a number of definitions. A "vessel" is defined in article 2 in this way:
""vessel" includes every description of vessel with or without means of propulsion of any kind and includes anything constructed or used to carry persons, goods, plant and machinery, or to be propelled or moved, on, in or by water …".
A "commercial vessel" is defined as meaning "any vessel that is kept or used for any commercial purpose not being a non-charging vessel, and in this definition "non-charging vessel" means a vessel in respect of which neither the owner nor any operator receives any form of payment from any person for or in connection with any voyage or excursion other than as a contribution to the direct expense of operating the vessel during that voyage or excursion". A ""master" in relation to a vessel" is defined as "the person for the time being (whether lawfully or not) having command or charge of the vessel". The word "on", as it relates to a vessel on the waterways, is defined to include a vessel "in or upon the waterways, whether or not the vessel is floating". The "waterways" are as described in article 3(2).
Part 2, under the heading "Registration of vessels", contains articles 4 to 10. Article 4 provides:
"(1) An owner or master of a vessel must not keep, let for hire or use the vessel on the waterways unless –
(a) the vessel is registered with the Agency under article 5; and
(b) any requirement imposed by the Agency under article 8 when registering the vessel is complied with.
(2) Paragraph (1) does not apply in relation to a vessel if the vessel is exempted from its provisions by the Agency in accordance with paragraph (3).
(3) The Agency may exempt any vessel or class of vessel from the provisions of paragraph (1) if, having regard to all the circumstances, it considers that the application of those requirement is not justified in the interests of the regulation of the waterways."
Under article 7 registration may be refused or revoked if the Environment Agency is not satisfied that the vessel is insured, or that it has not been "constructed and equipped" in accordance with specifications prescribed for the safety of a vessel under article 12. Article 8 provides for the Environment Agency the power to make it a requirement of the registration of a vessel under article 5, among other things, that "the use of the vessel on the waterways is limited to the use specified to the category for which it is registered" (article 8(2)(a)), and that "any change in ownership of the vessel is notified to the Agency by the transferor" (article 8(2)(b)).
Part 3, under the heading "Further regulation of vessels", contains articles 11 to 17. Article 11, "Insurance", requires the "owner or master" of a vessel "not [to] keep, let for hire or use the vessel on the waterways unless there is in force in relation to the vessel a policy of insurance complying with the requirement of Schedule 3" (article 11(1)). Schedule 3 contains various provisions for "Insurance Policies as to Vessels". Paragraph 3 of that schedule provides that an insurance policy for a vessel is not required to cover liability in various respects, including "in respect of goods carried on or in the vessel to which the policy relates, or any vessel drawn or propelled by such vessel" (paragraph 3(c)). Article 12, "Construction and equipment standards", provides that the Environment Agency "may impose in relation to vessels such reasonable standards and specifications relating to construction and equipment" for one or more of three specified purposes, namely, "(a) securing the safety of persons or property", "(b) the prevention of damage or injury to persons or property" and "(c) the prevention of noise or pollution" (article 12(1)). An owner or master of a vessel to which any standard or specification imposed under article 12(1) "must not keep, let for hire or use the vessel on the waterways otherwise than in accordance with that standard or specification" (article 12(4)). Article 14, "Inspection of vessels", provides that the owner or master of a vessel on the waterways "must provide reasonable facilities for the inspection of the vessel by any person exercising powers of entry pursuant to sections 169 or 172 of the Water Resources Act 1991 for the purpose of ascertaining whether any requirement under or by virtue of this Order is being complied with" (article 14(1)). Article 15, "Additional requirements for commercial vessels", provides that the Environment Agency "may from time to time determine to impose additional requirements in relation to commercial vessels on the waterways for the purposes of safety or amenity or the proper regulation of navigation" (article 15(1)). Article 16 provides for the "Removal of unregistered vessels". Article 17 provides the "Power to require information, etc", exercisable by an officer of the Environment Agency, requiring, among other things, that the owner or master of any vessel on the waterways "must give the officer such information as is available to that person respecting the construction and equipment of the vessel and its compliance with the requirements of Article 12" (article 17(1)(c)).
Part 4, under the heading "Provisions as to offences", contains articles 18 to 21. Article 18, "Offences", provides:
"(1) Any person who contravenes or attempts to contravene or knowingly allows contravention of –
(a) the requirements of article 4(1) (requirements for registration);
(b) the terms of any exemption granted under article 4(3) (requirement for registration) …
…
is guilty of an offence.
…
(4) Any person guilty of an offence under this article is liable on summary conviction to a fine not exceeding level 3 on the standard scale."
Level 3 on the standard scale is a fine up to a maximum of £1,000.
The proceedings before the magistrates and in the Crown Court
On 15 May 2014 an officer of the Environment Agency went to Hartford Marina and saw Mr Gibbs' and Mr Parker's "houseboats" moored in it. Neither "houseboat" was registered under the provisions of the Inland Waterways Order. On 21 May 2014 the Environment Agency wrote to Mr Gibbs and Mr Parker giving...
To continue reading
Request your trial