The Environment Agency v Paul Barrass and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom |
| Judgment Date | 21 March 2017 |
| Neutral Citation | [2017] EWHC 548 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2392/2016 |
| Date | 21 March 2017 |
[2017] EWHC 548 (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 Singh
Case No: CO/2392/2016
Mr David Perry Q.C. and Mr Richard Evans (instructed by the Environment Agency) for the Appellant
Mr Mike Magee (instructed by Direct Access) for the Respondents
Hearing date: 13 December 2016
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
This is the judgment of the court, to which both of its members have contributed.
The crux of this appeal is whether each of two marinas – Thames and Kennet Marina in Reading and Penton Hook Marina in Chertsey – forms part of the river Thames as defined in section 4 of the Thames Conservancy Act 1932 ("the 1932 Act").
The appeal is an appeal by way of case stated. The appellant, the Environment Agency, is aggrieved by the decision of District Judge Lachhar, sitting in Reading Magistrates' Court on 20 November 2015, by which she dismissed informations against the respondents, Mr Paul Barrass and 19 others. Each of the respondents owns a vessel kept in one of the two marinas. The informations alleged offences of keeping an unregistered vessel on a waterway, namely the river Thames, contrary to articles 4(1)(a) and 18(1)(a) of the Environment Agency (Inland Waterways) Order 2010 ("the 2010 Order"). Having considered the question as a preliminary issue, the judge found that neither of the marinas formed part of the river Thames under the 1932 Act, and accordingly that the provisions of the 2010 Order did not apply to the respondents' vessels. She gave her reasons in a short judgment, in which she observed (in paragraph 12) that it would be "repugnant to allow [the Environment Agency] to extend the registration provisions to vessels [on the two marinas] without primary legislation". On 2 May 2016, having been requested to do so by the Environment Agency, she stated a case for the opinion of the High Court.
The issues in the appeal
In the case stated two questions are presented to us. They are:
"1. Do the marinas known as Thames and Kennet Marina, Reading and Penton Hook Marina, Chertsey … form part of the river Thames within the meaning of section 4 of [the 1932 Act]?
2. Do the provisions of the [2010 Order] apply to vessels kept in the Thames and Kennet and Penton Hook Marinas?"
The essential facts
There are today more than 30 marinas along the river Thames. They provide moorings for pleasure craft and other small boats. Most of them have come into existence since the 1950's. Some – like Oxford Cruisers Marina in Eynsham and Bates Marina in Chertsey – were purpose-built. Others – for example, Osney Marina in Oxford and Bushnell's Marina in Wargrave – were created in natural features, such as side channels or mill streams. Others again – including the two with which we are concerned in this appeal – were constructed in former gravel pits or other man-made excavations.
Both of these marinas provide moorings and various services for boat users. Thames and Kennet Marina was built about 25 years ago after the site had been worked for gravel. It was joined to the river by a cut, which had been dug in about 1984. Penton Hook Marina was also built in a gravel pit after mineral extraction had ceased. It too was connected to the river by a cut, which was constructed in 1950. By an agreement dated 9 January 1950 between The Surrey Sand and Gravel Company Limited, the owners of the land in which the marina was constructed, agreed with The Conservators of the River Thames that the cut linking the gravel pit to the river would be a private, artificial cut or inlet for the purposes of section 79 of the 1932 Act (see paragraph 17 below). On 7 June 1995 Marina Developments Ltd., the owner of the marina, asserted in a letter to the National Rivers Authority that the 1950 agreement was "inconsistent with the formation of a Marina". Both marinas are accessible to the public from land and by river.
In the case stated (at paragraphs 2), 3) and 4)) the judge gave this brief account of the proceedings in the magistrates' court:
"2) The Respondents are owners of vessels moored in Thames and Kennet and Penton Hook Marinas. On 23 rd and 24 th September 2014 the Enforcement Team of the Navigation Function of the Environment Agency collected details of vessels which were unregistered at Thames and Kennet Marina in Reading. A similar exercise was carried out on 13 th and 14 th November 2014 at Penton Hook Marina in Chertsey. A standard form was issued for each unregistered vessel drawing their attention to the registration requirement. Where no registration application was received a "Notification of Offence" letter was sent to the owner of the vessel, restating the registration requirement. The Respondents in this case did not file any registration application and therefore their cases were prosecuted. The Respondents with vessels at Thames and Kennet Marina appeared at Reading Magistrates' Court on … 12 th June 2015 and the Respondents with vessels at Penton Hook Marina appeared at Redhill Magistrates' Court on 16 th June 2015. The cases were subsequently joined.
3) The Respondents contended that they were not subject to the registration requirements and directions were given for a hearing to decide this as a preliminary point. Most of the Respondents pooled their resources and instructed [Mr Mike Magee] of counsel to represent them. However, the point in question relates to all the Respondents in this case.
4) The hearing took place on … 2 nd November 2015. All the evidence was agreed. The draft admissions together with the exhibits referred to therein, together with the Secretary of State's response to the draft Order are attached. The Appellants and the Respondents submitted written skeleton arguments. The Judgement was given on … 20 th November 2015."
The admissions referred to by the judge contained a number of agreed facts. We need refer only to some of them.
There was agreement on certain "[basic] information" about 32 marinas on the river Thames, including the two with which we are concerned.
As to Thames and Kennet Marina, the parties agreed, among other things, that "3. [the] Marina lies entirely within privately owned land"; "4. [it] joins the main river at a point where the main river itself is within the bounds set by [the 1932 Act]"; "5. [it] was formed from a gravel pit that was previously not joined to the Thames"; "6. [the] gravel pit was joined by a cut to the main river in 1984"; "7. [a] licence was given for that cut"; "8. [in] 2002 the old cut was closed and a new cut opened by licence"; "11. [an] area of the marina was closed off and is used as a rowing lake …"; "12. [a] portion of land within the Marina was sold to the Environment Agency …"; "14. [the] Marina provides services to users of the Marina, including electricity and water supply, lighting, internet connection, showers, toilets, chemical toilet disposal and chandlery"; "15. [neither] the Environment Agency nor its predecessors have sought to charge fees in respect of boats kept on the Marina prior to 2011"; "16. [the] Marina has gates at the land-side entrance which are locked between 5 [p.m.] and 8 [a.m.]"; "17. [those] staying on the Marina do so by virtue of a licence agreement …", and "[the] conduct of those who use the Marina is regulated by the Marina in so far as there is an agreement between the Marina and the users of the Marina"; "18. [the] Marina performs maintenance of the bed of the Marina, the banks, and all accommodations and facilities"; "19. [it] cuts the weeds within the Marina and sets a speed limit for boats"; "20. [it] is responsible for signage within the marina"; "21. [visitors] by boat to the Marina are required to moor at the visitors' pontoon and report to reception", and "are required to pay a charge to use the facilities of the Marina"; and "22. [the] Environment Agency has never requested that the Marina obtain licences or pay charges in respect of the accommodations within their land". Maps of the marina and the surrounding area and photographs taken in May 2015 were exhibited.
Among the agreed facts relating to Penton Hook Marina were these: "26. [the] Marina lies entirely within privately owned land"; "27. [it] joins the main river at a point where the main river itself is within the bounds set by [the 1932 Act]"; "28. [it] was formed from a former gravel pit that was previously not joined to the Thames"; "29. [the] gravel pit was joined by a cut to the main river in 1950"; "30. [consent] was given for that cut"; "35. [the] Marina provides services to users of the Marina, including electricity and water, gas and fuel supply, lighting, internet connection, showers, toilets, chemical toilet disposal, cranes, engineering and … repairs, towing, onshore storage and car parking"; "36. [neither] the Environment Agency nor its predecessors have sought to charge fees in respect of boats kept on the Marina prior to 2011"; "37. [visitors] seeking to access the Marina by road … need to be authorised to enter the security gates that are controlled by the Marina"; "38. [visitors] by boat to the Marina are required to moor at the visitors' pontoon outside the Marina and to report to reception", and "are required to pay a charge to use the facilities of the Marina"; "39. [those] staying on the Marina do so by virtue of a licence agreement …", and "[the] conduct of those who use the Marina is regulated by the Marina in so far as there is an agreement between the Marina and the users of the Marina"; "40. [the] Marina performs maintenance of the bed of the Marina, the banks, and all accommodations and facilities";...
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