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Moore v BWB, Hildyard Main Judgment 2012

Moore v BWB, Hildyard Main Judgment 2012

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Published by Nigel Moore
Main Trial Judgment handed down by HHJ Hildyard re: Public Right of Navigation, requirement for Boat Licence; Legitimate Expectation; Human Rights; Riparian Right to Moor, Right to apply Section 8 Notice in absence of Regulatory Breach.
Main Trial Judgment handed down by HHJ Hildyard re: Public Right of Navigation, requirement for Boat Licence; Legitimate Expectation; Human Rights; Riparian Right to Moor, Right to apply Section 8 Notice in absence of Regulatory Breach.

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Published by: Nigel Moore on Jan 19, 2013
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01/19/2013

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IN THE HIGH COURT OF JUSTICECHANCERY DIVISION
B e f o r e :
THE HONOURABLE MR. JUSTICE HILDYARD
  ____________________ 
Between:
  ____________________ 
Mr Nigel Peter Moore the Claimant appeared in personMr Christopher Stoner QC (instructed by Shoosmiths) for the DefendantHearing dates: 1, 2, 3, 4, 7 November 2011
 ____________________ 
HTML VERSION OF JUDGMENT
 ____________________ Crown Copyright © 
INDEX
 
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England and Wales High Court(Chancery Division) Decisions
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 BAILII>>Databases>>England and Wales High Court (Chancery Division) Decisions>> Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012)URL:
http://www.bailii.org/ew/cases/EWHC/Ch/2012/182.html
 Cite as: [2012] EWHC 182 (Ch)
Neutral Citation Number: [2012] EWHC 182 (Ch)
Case No: HC07C02340Royal Courts of JusticeRolls Building, Fetter Lane, London, EC4A 1NL10/02/2012
NIGEL PETER MOORE
Claimant
- and -BRITISH WATERWAYS BOARD
Defendant
(1) An overview of the issues1-5(2) The Preliminary Issues already decided6-8(3) Scope of this Trial9-19(4) The part of the GUC in question20-25
 
Page 1 of 32Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012)04/05/2012http://www.bailii.org/ew/cases/EWHC/Ch/2012/182.html
 
Mr. Justice Hildyard :
 
The Issues 
 1.The ultimate issue in this trial may be shortly stated: it is whether or not the Defendant, the BritishWaterways Board ("BWB"), was acting within its powers of control over and regulation of the GrandUnion Canal ("the GUC", originally called the Grand Junction Canal) in serving notices under section 8of the British Waterways Act 1983 ("section 8 Notices") on several vessels then under the care or controlof 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 inseeking to adjudicate upon that ultimate issue. In 1990, the legislation concerned was described by aSelect 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 putforward consolidating legislation in place of the existing
"confusing set of provisions." 
There has been noconsolidating 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 trawlthrough numerous statutes affecting the GUC since the Act which authorised the construction of thecanal, the Grand Junction Canal Act 1793 ("the 1793 Act"). His secondary case, that he has or can(5) The basis of Public Rights of Navigation26-30(6) The geography of the alleged mooring area31-37(7) More detail as to the relevant vessels and their location when notices were served38-50(8) The form of the notices served51-53(9) The proper classification of the vessels54-60(10) Section 43 of the 1793 Act and its interpretation and effect61-68(11) PRN and the riparian rights asserted69-70(12) Whether there are any other provisions of the 1793 Act that assist the Claimant81-87(13) An alternative case advanced by the Claimant in relation to the Thames ConservancyAct, 185788-92(14) Claimant's case based on limitation of BWB's statutory authority93-94(15) The principles of statutory construction urged by the Defendants95(16) Relevant parts of the legislation chronologically discussed98-131(17) The Claimant's construction of these provisions132-139(18) BWB's construction and my conclusions140-167(19) Whether BWB had a collateral purpose168-185(20) Whether the Claimant had legitimate expectations that were ignored or overridden186-204(21) Human Rights205-215(22) BWB's breaches of undertakings216-230(23) Conclusion231-235
Page 2 of 32Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012)04/05/2012http://www.bailii.org/ew/cases/EWHC/Ch/2012/182.html
 
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 lawriparian rights (including a right to moor) which the Claimant contends he has by virtue of his possessionor 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), anddespite BWB's protestations that it has been dragged into legislative undergrowth it had no wish to trawlthrough, the dispute has developed into something of a test of the rights of users of the GUC and thepowers of BWB in that regard.5.The matter has already travelled to the Court of Appeal. This was in relation to the adjudication by MrMartin Mann QC, sitting as a Deputy High Court Judge, of 4 preliminary issues. These were designed todetermine some of main issues raised in the pleadings in respect of the use of the GUC between Bax'sMill (now more usually called the "Boatman's Institute") and the River Thames. Not for the first time inlitigation these preliminary issues have achieved less than had been hoped in terms of confining thetrial.
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 Milland 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 wasnecessary in light of his other conclusions) that the private right of navigation, which hedescribed as having been granted by section 43 of the 1793 Act, was repealed by the1968 Act.ii) Preliminary Issue (2): whether the GUC extends down stream to the mouth of the RiverBrent 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 forthat 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 tomoor 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 whichI return at the end of this Judgment). Indeed (as recorded in the judgment of the Court of Appeal) that isthe only one of the Preliminary Issues for which the Claimant sought permission to appeal. PreliminaryIssue (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 toregulate it. Preliminary Issue (4), though not agreed, ceased to be actively contested, it being clear thatthe public right of navigation has never included an ancillary right to moor, other than temporarily in thecourse of a voyage on the GUC, and it not being suggested that any of the vessels concerned in thiscase 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 theDeputy Judge's ruling on Preliminary Issue (1) was unsatisfactory and could not stand. As Mummery LJput it in his Judgment (
Nigel Moore v British Waterways Board 
[2010] EWCA Civ 42at 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) shouldproceed 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 andmore specifically explained his case in reliance upon a riparian right, being to the effect that the relevantcanal bank by Ridgeways Wharf is a wharf which carries the riparian right to moor alongside, BWBstated that it does not seek to argue that if, prior to 1793, there was a pre-existing right to moor, it has
 
Page 3 of 32Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012)04/05/2012http://www.bailii.org/ew/cases/EWHC/Ch/2012/182.html

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