The Royal Borough of Kingston-Upon-Thames v Warwick Salzer
| Jurisdiction | England & Wales |
| Judge | Jeremy Hyam |
| Judgment Date | 02 December 2022 |
| Neutral Citation | [2022] EWHC 3081 (KB) |
| Docket Number | Case No: QB-2022-001483 |
| Court | King's Bench Division |
[2022] EWHC 3081 (KB)
Jeremy Hyam KC
(Sitting as a Deputy High Court Judge)
Case No: QB-2022-001483
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Francis Hoar (instructed by SLLP) for the CLAIMANT
Mr Warwick Salzer as litigant in person and director of the Second Defendant
Hearing dates: 2–3 NOVEMBER 2022
APPROVED JUDGMENT
The Deputy High Court Judge:
This is an application for a final prohibitory and mandatory injunction against the Defendants to prevent either or both of them mooring vessels on a stretch of the River Thames in the Royal Borough of Kingston Upon Thames. An interim injunction prohibiting mooring of boats other than that which might be regarded as the Claimant's home has already been granted by Her Honour Judge Sarah Richardson sitting in this Court, on 30 th May 2022 following a trial on 27 May 2022.
The First Defendant, Mr Warwick Salzer is a riverboat user, and is director and majority shareholder of the Second Defendant. For approximately 20 years prior to the grant of the interim injunction, he had been renting or hiring out boats, and taking customers on fishing trips on a stretch of the River Thames in the Royal Borough of Kingston Upon Thames. In order to carry on this business, he has necessarily had to keep the boats that he has used for such business moored in a location convenient to his business. He has no licence to moor from the council and no private mooring rights. Rather he has historically used the public and visitor moorings that are provided and maintained by the Royal Borough of Kingston Upon Thames (‘RBKUT’) along a stretch of the Thames which lies south of the main bridge at Kingston-on-Thames, and include locations known as Charter Quay, Horsefair Quay, Town End Pier, Riverside Walk, Queens Promenade, and Half Mile Tree.
It appears that by long established practice on the Thames there is a limited entitlement to free morning on moorings which are operated by the Council. According to the latest version of the Claimant's “Mooring Policy” this is derived from the Thames Conservancy Act 1932.
Section 79(2) of the Thames Conservancy Act 1932 states all vessels have the statutory right ‘to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation’. Section 136 of the same Act states ‘no charge shall be made for vessels tied up or moored at night or for a reasonable time’. The terms of this provision do not prevent fees or charges being applied and it is for the Council, acting reasonably to determine what amounts to a reasonable time. They have determined a period of 24 hours as the free mooring period which is in accordance with long established custom and practice by other navigation authorities such as the Environment Agency and their predecessors in this regard (the Conservators of the River Thames).
The current mooring policy (introduced in November 2021) and charging structure as operated by the Claimant and published on its website reads as follows:-
“Mooring in Kingston
To improve, protect the local environment and maintain the area's unique riverside heritage. visitor moorings fees have been introduced. The intention is to deter boats from overstaying at mooring sites ensuring moorings are available for visitors to the town centre and the riverside remains a safe and pleasant place for everyone.
Permitted Mooring Locations
1. The mooring of any vessel is only permitted at Town End Wharf and Horsefair Quay.
2. By mooring a vessel, the registered owner and/or person in charge of the vessel accepts the terms and conditions.
3. Mooring is only permitted alongside: finger mooring or double mooring is not permitted.
4. Mooring is restricted to Environment Agency Registered Vessels ONLY. Vessels must have a valid Boat Safety Certificate and be insured against loss or damage.
5. The following mooring fees apply throughout the year:
a. First 24 hours (in accordance with the public right of navigation defined in the Thames Conservancy Act 1932): no fee provided the vessel does not return to either Town End Wharf or Horsefair Quay within 48 hours of leaving its mooring.
b. For each subsequent 24 hours or part thereof, the fee is £10.00
c. When Red Boards are displayed (as indicated on the Environment Agency website), the daily charge of £10. 00 per 24 hours or part thereof shall apply until the red boards are removed.
6. No vessel may be moored at either Town End Wharf or Horsefair Quay for more than 72 hours. (Other than when the River is under Red Board conditions – see 5.c.)
7. After a vessel has left its mooring it may not return to either Town End Wharf or Horsefair Quay before the expiry of 48 hours.”
A particular focus of the claim has been on boats owned by the Defendants and moored at a location described as Riverside Walk (Gazebo). This is an area of mooring in a location just south of the bridge at Kingston Upon Thames where steps come down from the Gazebo Public House to the riverside and adjoining Riverside Walk. It is a highly popular place during the summer months for members of the public to walk, sit on the steps, eat lunch or feed ducks. It is not one of the visitor moorings identified in the Mooring policy quoted above, but, the moorings on that stretch of riverside are, for reasons I explain below, clearly in the possession and control of the Claimant, and the Claimant is both expected and entitled to control the use of those moorings as a public authority, reasonably and fairly.
Since at least 2020 there have been complaints made to the Council about Mr Salzer's boat hire operation, both from other river users, and from the owners of the public house who objected in particular to a pedalo operation that Mr Salzer appears to have commenced in this location during lockdown.
According to the evidence of the Council's officers, RBKUT is the freeholder of riverside land at Queens Promenade, Town End Pier, Horsefair Quay, Canbury Gardens, Half Mile Tree. A map produced by Mr Ralph Hyde, who is Environmental Protection Officer for the Claimant, shows the areas of land in freehold ownership but also identifies three areas as “dedications”, including areas south of Kingston Upon Thames Bridge, the former dedicated as a river walk under an agreement dated 12 th August 1976, and another dedicated at a footpath on 21 st April 1977. In addition there is an area identified as a Leasehold interest at a location outside the Gazebo Public House which is located near Riverside Walk.
The title for that land, SGL51872, also called 3–5 Thames Street, is currently owned by Zurich Assurance Limited. It is owned subject to a lease for 999 years from 8 th February 1982 in respect of ‘ land at the back of 3 and 5 Thames Street’. That lease was made in favour of L.P.S. Richmond Holdings in 1982. At or about the same time as that lease was entered the Head-lessee (L.P.S. Richmond Holdings which in turn is owned by the brewery Samuel Smith) agreed to enter into an underlease of a specific area of land “The Riverside Walk” to RKBUT for a 999 year term less ten days. The initial agreement dated 1 st February 1982, placed obligations on L.P.S. Richmond Holdings, identified as “the Company” in the Agreement and on RKBUT (identified as “the Corporation” in the underlease).
Under the Agreement the Company was obliged to:
“ renovate and permanently maintain in good repair to the satisfaction of the Corporation the boundary wall along the river frontage including the steps down to the river and the balustrades surmounting the steps”.
It was also obliged to remove a boundary wall attached to “ Kings Passage” (a small set of steps leading down to the river to the south of the land) and provide capping flush with Riverside walk level. In order to facilitate the works which were envisaged under the Agreement (the main element of which was the building of a public house on the land) the Company covenanted “ to use their best endeavours (such endeavours to include if necessary the institution and prosecution of proceedings in the appropriate court) to remove or cause to be removed all boats of whatever description from the river fronting the land coloured blue on the plan at least three months before the opening date for trading of the Public House”. If they failed to do so within that time period, then and it thereafter fell to the Corporation to have to do so, the Company were to indemnify the Corporation in respect of cost, expenses and any compensation required to be paid to boat owners.
The Agreement also contained a provision which required the Corporation to display a notice on Riverside Walk that it had not been dedicated to the public as a right of way.
In my view it is clear that this Agreement clearly evidences mutual intention between the parties to it that:-
(i) The river front land to which moorings were attached (whether it was or formed part of a landing stage or otherwise) was understood to be within the ownership of the land demised.
(ii) The power to remove moorings attached to that land, rested with the Company in the first instance but thereafter, and pursuant to the underlease, with the underlessee, the RBKUT.
That same mutual understanding, continued into the drafting of the underlease which contained the following covenants by RBKUT:-
“…
(3) That it will erect and at all times during the sub-term maintain on the demised premises a Notice to the effect that the same have not been dedicated to the public as a highway
(4) … …
(8) That it will erect and maintain for the duration of the underlease a suitably worded notice to deter illegal or permanent mooring along the Riverside Walk;
(9)...
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The Mayor and Burgesses of the London Borough of Richmond-Upon-Thames v Alistair Trotman
...should be granted. An example of the granting of injunctive relief may be found in Royal Borough of Kingston v Salzer and others [2022] EWHC 3081 (KB) at [39], where a defendant had had notices served on him for a very long period of time and where the claimant had displayed clear signs ab......