Case No: HC07C02340 APPEAL COURT REFERENCE: 2009/0731

NIGEL PETER MOORE Appellant vs BRITISH WATERWAYS BOARD Respondent

SKELETON ARGUMENT in support of Grounds for Appeal

Introduction

1.

The genesis of this action lay in the serving of “section 8” notices on several boats in my care. The relevant reasons given were that the boats were unlicensed and/or on an unauthorised mooring.

2.

In answer to both those reasons I wrote to British Waterways Board (BWB) noting that these moorings had been used by our business for years without dispute and stating that “all these boats are on a free public right of navigation, moored against our private riparian property. As you in particular (Mr Nigel Johnson, Legal Director) are aware, the enabling Act of 1793 took particular care that the GJCC were to maintain and respect these rights along the tidal section between the Thames and what is now the ‘Boatman’s Institute’.”

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3.

Mr Johnson’s reply was that “all rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the Act of 1793 to which you refer) were abolished by section 105 of the Transport Act 1968. Section 115 of that Act defines the ‘right of navigation’ that is abolished as including ‘any right to use or keep any vessel or craft on the waterway or canal’.” (Tab 6)

4.

Following the issue of proceedings and exchange of pleadings, several other related issues and argument arose, and it was suggested that an initial trial of preliminary issues be heard.

5.

By Order of Master Bragge four issues were to be determined in a trial of preliminary issues. Three had been proposed by BWB, and at Master Bragge’s suggestion the initial issues raised in my Particulars of Claim were encapsulated within a single statement as issue (i). The intent of that issue which I had drafted was to have the two fundamental claims that I had proposed to BWB - and which had been rejected by them – determined judicially prior to any hearing on further issues.

6.

By agreement between the parties by the time of the hearing, two of the issues were agreed, leaving two live issues before the court: -

(i)

Whether the rights concerning the waterway between Bax’s Mill and the River Thames, as described in the Grand Junction Canal Company

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Act of 1793, remain in force and unaffected by the provisions of the Transport Act 1968.

(iii)

Whether the Defendant is the relevant statutory navigation authority for that element of the Grand Union Canal which now or formerly comprised tidal waters of the River Brent.

7.

In his Judgment of 12th February, Deputy Judge Mr Martin Mann QC (the judge) correctly identified that “the legality of the section 8 notices rests primarily on the outcome of issue (i).” (Tab 4, page 6, paragraph 15) However he later concluded that “strictly speaking issue (i) does not need to be determined because a public right of navigation does not include an ancillary right to moor other than temporarily in the course of navigation (issue (iv)).” (Tab 4, page 12, paragraph 33)

8.

As a result of this opinion the judge has only said in his Order that issue (i) “is answered (in so far as is necessary) in the following terms: the private right of navigation granted by section 43 of the 1793 Act was repealed by the 1968 Act.”

9.

Issue (iii) was answered “Yes” in favour of the Defendant and I am not seeking to appeal against that finding.

10.

In the course of handing down the judgment, while I was struggling to come to terms with the procedural niceties of an appeal against the determination of

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issue (i), the judge helpfully said: “I will give you leave of appeal if you persist but I do not want you to ask for leave to appeal the answer for the private right of navigation as repealed, if you think it has been repealed” (Tab 5 page 19. 13-15, my underlining).

11.

In the interval since then I clarified within my own mind the distinctions between true and false in the answer to issue (i), and how to approach the appeal, which I hope to present below.

12.

I take issue with the judge over his conclusion that issue (i) does not need to be determined - and it has not been determined in any sense that is relevant to the positions taken by the parties involved -

(a) The issue lay before him to be determined.

(b) He recognised that the legality of the section 8 notices rested primarily upon determination of the issue.

(c) The two fundamental pillars of my Claim rest upon determination of the issue, and the matter ought not to be brushed aside as irrelevant.

(d) In the course of his judgment and in the debate on handing down, the judge acknowledged that I was correct on those two

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fundamental questions and he ought to have said so by way of determining them.

(e) Suggesting that determining the issues would not assist me is neither correct nor relevant to whether they should be determined.

(f) The judge’s conclusion that a stated determination of those issues would not avail me was based on a faulty understanding of extraneous issues that were properly the subject of the future main trial.

13.

I take issue likewise with the judge’s stated reason “ . . . because a public right of navigation does not include an ancillary right to moor other than temporarily in the course of navigation (issue (iv))” This ignores the reason why I claimed the public right of navigation to be relevant, (Tab11, page 5, paragraph 18; Tab 20, paragraph 2.3.5) and ignores the fact that I myself had argued by reference to case law that private mooring rights could not be considered in law as an ancillary right of the public right of navigation. (Tab 11, page 98, paragraph 320; Tab 13, pages 44-45; Tab 18, page 6, paragraph 37; Tab 21, page 123). The judge in this instance has evidently allowed himself to be led astray by BWB’s straw-man argument, which has absolutely nothing whatsoever to do with my case and which cannot possibly justify refusal to determine the issue as requested.

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14.

I submit that the Order must properly address the issue as drafted. That should either be as an affirmation of the proposition as a whole, or if the view was taken that any element should be answered in the negative, then all the elements should be identified with answers whether positive or negative addressing each of those elements.

15.

As the Order presently stands, with no reference to my core issues, nor with reference to other important issues, the result is an acute injustice in that no avenue has been left open for appeal on those elements which could be considered as found against me, nor has there been usable vindication of those elements which could be considered as found for me.

16.

The Order as it stands, while ignoring the core issues upon which the case was founded, is drafted on a false assumption that the single point that was incorporated was a finding against me and so perpetrates an injustice on the question of costs.

17.

The Order as to issue (i) stating that which the judge regarded as all that was necessary, is wrong in any event and needs of itself to be re-drafted. Strictly speaking the Order is neutral in effect as I have not relied on any private rights of navigation in my case (nor have even BWB suggested that I have) and such a finding can have no effect upon the continued existence of the described preexisting rights. There are, however, several reasons why this Order needs varying:

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(a) As an unqualified statement it is plainly wrong &/or misleading. By the plain wording of section 43 and by the acknowledgement of the judge in the course of his analysis, there were private rights of navigation that pre-existed and were not replaced. Those could only be affirmed by the Transport Act 1968.

(b) The stated rights referred to in the Order are not rights as described by the 1793 Act. They are supposed rights construed by implication as being “essential supplemental or parallel” private rights (paragraph 24 last sentence) and which, by the judge’s own explanation, arose only from what he perceived to be a “- need to extend the navigation rights already in existence to newly canalised sections” (paragraph 23 last sentence, my underlining).

(c) Even as qualified by reference to the explanation above, the statement is misleading and inaccurate. It ignores the

acknowledged pre-existing private rights over the river Brent as pertained to both natural and modified courses at the time of the Act – as stated above, even if additional rights were granted, these could not render the existing rights liable to abolition under the Transport Act 1968; additionally, the alleged need is absent – for so long as public rights of navigation continued to obtain over the navigation (as the judge acknowledges), these rights automatically extended to any new cuts. (This was established in the case of Regina vs Betts to which the judge was referred

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during the hearing. Refer also to my Reply & Defence to Counterclaim, Tab 9, page 16, 17, paragraph 29, sub-paragraph (iii). At the time of the 1793 Act the river had even then been subjected to course alterations over the centuries while remaining a public navigable river. Exhibit 1 to my 2nd Witness Statement illustrates this, Tab 22). I submit that it is against all common sense to suppose that members of the public who enjoyed additional rights to those of the general public, could be thereby barred from exercising the public right unless supplemental private rights were granted to them.

(d) The reasons adduced for considering this finding as contra to my position are erroneous. Nowhere within my Statements or argument can there be found any reliance upon private rights of navigation in support of any position that I have taken.

18.

As the motivations, factual understandings and underlying arguments for the decision taken both as to the wording of the Order in Paragraph 1(i) and in Paragraph 4 are revealed within the body of the judgment, and in the following debate, it is necessary to consider those in order.

The judgment

19.

Paragraph 1 opens the judgment with errors of fact. In the first place, by omission, in that the action was not purely about mooring rights, but was

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equally about the right to keep and use a boat on the water – a completely independent and separate right (covered by the public right of navigation) that the judge appears to have overlooked throughout the judgment. The section 8 notices upon which the action lies, had but two applicable grounds under the circumstances: that of the boats being unlicensed, and that of the boats being on unauthorised moorings. Only the latter has been observed and considered by the judge, leading to a skewed assessment of the issues and an inability to recognise the importance and relevance to my case of the public right of navigation.

20.

By contrast, BWB understand the implications of a public right of navigation to such an extent that they have devoted most of their argument to rebutting its existence in the first place, and additionally diverting attention away to an entirely irrelevant aspect of it. (Refer back to Tab1)

21.

The site of the moorings has likewise been misunderstood by the judge. He identifies the action as concerning mooring rights “alongside the bank of the river at a point where the true legal ownership of the bank is in question”. This misunderstanding has contributed markedly to his subsequent flawed appraisals:

(i)

subsequent deliberations by the judge based on this assumption concluded that as neither BYBC nor I could be held to own the bank, no riparian rights could be exercised, so that the whole issue of those

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riparian rights was of no assistance to my case. This is both wrong and immaterial –

(a) the riparian rights attached to the lands alongside or nearby the river Brent applied to all users of those lands, inclusive of “owners, proprietors, possessors and occupiers” (my

underlining).

(b) Consequently neither I nor BYBC need to own the land in order to be in a position to exercise those rights, and only the true owner could be in a position to deny occupation &/or possession.

(c) It was common ground in the land ownership case referred to (Geronimo & BWB vs BYB) that BWB were not the documentary title holders of “the Bank”. That is the only determination within that judgment that is germane to this case (Tab 23).

(ii)

All but one of the boats at the time of the section 8 notices (and two currently) were moored entirely to land that was registered property in Title No: AGL 12428, while the single exception was partially moored to ‘the Bank’ and partly to AGL 12428 (Tab 24). BWB has no claim to this registered land and has not attempted to assert any. The ownership of this land was in dispute between BYBC and Geronimo prior to issue of the section 8 notices, but was since compromised by mutual

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agreement. That agreement continues to assure me of an unchallenged right to moor the remaining vessels to that bank - as it further establishes that there had been no objection to the mooring of the relevant vessels at the time of issue of the section 8 notices.

(iii)

As I had had occasion in the course of the hearing to remind the judge, the issue of whether I, (as an individual with no claim to personal ownership of any of the land) had any status to exercise the rights attached to occupation of the land, was not up before him for determination anyway; the issue before him was simply the continued existence of those riparian rights. The judge has failed to either comprehend or accept this.

(iv)

Paragraph 7 of the judgment reinforces the extent of the judge’s misapprehension with the attachment of a map to show the location of the relevant boats at the time of the notices, with the assertion that these related to “the Blue Land” of the land ownership case. As clarified above, this is simply incorrect.

(v)

Paragraph 8 of the judgment acknowledges the occupation and possession of ‘the Bank’ (the riverside portion of ‘the Blue Land’) by BYBC while refuting the idea that it could thereby exercise any private rights attached to the land. That is in clear contradiction to the terms of the 1793 Act regarding mere “occupiers and possessors”, while contradicting his own findings that rights attached to the land for the

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benefit of successors in title. This is demonstrated by his words in paragraph 26 (page 10) “- the sole qualification to claim the benefit being ownership or occupation of qualifying property” (my underlining). The burden of the paragraph is an emphatic rejection of BWB’s argument that the riparian rights described in section 43 of the 1793 Act had reference solely to those persons who were owners at the time of passing of the Act or by completion of the works.

22.

Paragraph 8 is likewise incorrect is claiming that my alleged inability to assert that I have “any rights at all apart from the public right of navigation”. . . “is common ground”. This is absolutely false and is contradicted by the extensive argumentation and proffering of evidence in my Claim; Argument, and Witness Statements.

23.

Paragraph 9 asserts that “only BYBC” could, “prima facie” assert any riparian rights attached to ‘the Bank’. As stated above, that is clearly wrong, while it continues to labour under the misapprehension that the locus was principally related to ‘the Bank’ rather than to the adjacent bank comprised in AGL 12428.

24.

Paragraph 15, final sentence is incorrect in asserting that issue (iv) (whether a public right of navigation included an ancillary right to moor other than temporarily in the course of navigation), was not agreed. Apart from the repeatedly re-iterated point that I refused to take issue on the point anyway (as it was irrelevant to my position), this was a straightforward straw-man

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argument that only BWB had said would be necessary for me to assert (in the face of my adamant assertion to the contrary). My position had been made abundantly clear; while the BWB position as drafted in submission on the first day of trial had been couched in the same terms as I had employed in my final Statement (i.e. that the length of time that could be considered reasonable for a boat to be moored ancillary to the public right of navigation depended entirely upon the individual circumstances) – and I confirmed my complete agreement with that at the commencement of the hearing. It is regrettable that the judge has seemed incapable of grasping the nature of the pleadings in this respect.

25.

The judge’s failure to recognise my position in this respect is illustrated by the following paragraphs 16-18, which are completely beside the point. The case law referred to are cases concerning the establishment of permanent moorings in riverbeds; this being, as the judge had recognised in his first paragraph, not the case in the present instance.

26.

Paragraph 19 is correct in acknowledging that I had not in fact made any assertions as to the nature of the boats’ mooring at the time of the notices. It is further correct in stating that the boats were moored (not alongside the Bank as he states [see my paragraph 13] but - ) “outwith the public right of navigation”. It is regrettable that the judge appears not to have realised or embraced the fact that this was exactly the position that I had asserted from the beginning and which I had supported with case law (my paragraph 12 above). It appears evident from this paragraph and the judge’s subsequent analysis that

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he considered this to be a finding against me, rendering, moreover, in his opinion, determination of issue (i) unnecessary! (his paragraph 33).

27.

Paragraph 20 continues in the vein of seemingly gratuitous misunderstanding of pleadings that the judge admitted at the start of the hearing that he had not read. It is simply wrong that riparian rights could not assist me, so long as those rights pertained to land in the ownership of any party other than BWB themselves. It is even more extraordinary that the judge could state that I was not “interested simply in establishing rights in that character”. The pleadings and Statements give the direct lie to that assertion. (Reply & Defence, Tab 9, pages 10-12; Witness Statement, Tab 11, pages 9-15; Tab 26).

28.

The following paragraphs of the judgement are quotations concerning the nature of riparian rights under various circumstances. It is not immediately apparent what the purpose of the judge was in quoting these commentaries.

29.

Quotation 2.03 notes that private rights on both tidal and non-tidal waters “may be subject to public rights of navigation”. That is perfectly in tune with my own argumentation.

30.

Quotation 2.09 refers solely to those instances where the river is a public navigable river, the riverbed of which is not owned by the riparian landowner. This is usual, but the quote is inapplicable to those instances where the public navigable river’s bed is in private ownership (as, notably, in the Hedsor Water case in Rowlands vs The Environment Agency). The present instance also,

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arguably shares the same characteristics of the Hedsor Waters. The quotation is equally inapplicable in that the judge had already recognised in his opening sentences that my case was not concerned with moorings in the riverbed. The purpose of the quote is therefore impenetrable as regards this case, except insofar as it seems to be establishing a supposed pattern of findings against my position as erroneously perceived.

31.

Paragraph 21 sensibly suggests as a starting point an identification of the pertinent rights in the 1793 Act. It perhaps less sensibly suggests identifying those rights which were “created or conferred” rather than those rights which were described. (Although if any conferred rights were described, those would naturally be pertinent.)

32.

The judge’s analysis of section 43 of the 1793 Act is faulty.

(i)

sub-paragraph 22.(i) is exactly right except in so far as it states that it was common ground that a public right of navigation existed in the tidal reaches. There is nowhere within any of BWB’s pleadings where that proposition had been agreed – and the whole basis of BWB’s initial response to that assertion (implicit in the claims made by BWB’s Legal Director that the TA 1968 had abolished them), was the position that all navigation rights had been conferred not confirmed by the 1793 Act. Considerable research and consequent evidence had to be adduced to establish the pre-existent nature of the public navigation rights contrary to the position of BWB’s Mr Johnson. (Refer to Tab 6).

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(ii)

Sub-paragraph 22.(ii) is exactly right.

(iii)

Sub-paragraph 22.(iii) is a gratuitous imposition of a desired result upon a section which described nothing of the sort. Also -

(a) The statement omits the fact that rights relating to the inhabitants of New Brentford were more extensive than those relating merely to navigation. They related to all uses of the land, buildings and wharves. The section guaranteed “the full, free, and

uninterrupted use and enjoyment” of

“the several houses,

warehouses, wharfs, lands, tenements, and grounds, on, along, or near adjoining to, the said river of Brent” and “the navigation of the said canal, and also of the said river of Brent, as heretofore had, used, and enjoyed, by them and their predecessors”.

(b) The varying riparian rights attributable to the lands and people concerned as described in the 1793 Act are identified in detail in my Pleadings (refer paragraph 28 above). Importantly, those rights naturally included the rights of mooring to and using wharves, which was a private right outwith the navigation rights. (Tab 26). This formed the second major element of my Claim, and failing to recognise this when analysing the rights described is wrongly prejudicial to my case.

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(c) The non-navigation and navigation rights referred to in section 43 are all described as pertaining to the “owners, proprietors, possessors and occupiers”. . . “and their predecessors”. The judge’s own analysis in the following paragraph 23 rejected BWB’s front-line argument that public navigation rights had been replaced with conferred rights. All rights described in that case then, including the rights of navigation [to include by definition of the TA 1968 rights to keep and use a vessel] necessarily were either confirmed by the TA 1968 or fell outside of its jurisdiction. I refer to my paragraph 16, (a)-(c) above. Having recognised this, the judge ought to have included these described rights within the relevant paragraph.

(d) If, as the judge correctly observed in his paragraph 23, the described pre-existing rights were not replaced, then it is plainly wrong in analysing the section, to replace reference to the preexisting rights of navigation entirely with supposedly granted rights.

(e) It is further evident from the judge’s commentary that he believed “that new rights would be needed over and along new cuts but not necessarily over and along untransformed reaches”. Quite apart from the fact that public rights of navigation were in place which the judge agreed remained in place (so that no new rights were needed as per my paragraph 16 (c)), this is a recognition that

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existing rights were described, which, even on the judge’s understanding, would be retained along the river course as then positioned – and that the granted rights would only relate to the new cuts. The areas concerned are best illustrated by the attached map (Tab 27).

(f) It is difficult to imagine how the resultant complex picture could be subsumed into a statement that recognises only “the grant of navigation rights to the owners and occupiers of adjoining and neighbouring property” (my underlining).

(g) The judge’s sub-paragraph 22.(iii) is clearly contradicted by his own commentaries as noted above, yet it stands as the only reference he observes relating to private rights of navigation in section 43 and is, moreover, the only point from all the discussion relating to section 43 that he sees fit to incorporate into his Order. It is clearly wrong to do so.

(iv)

sub-paragraph 22.(iv) follows suit in omitting all reference in section 43 to non-navigation rights in the context of charges. The judge has only recognised the described freedom from charges as relating to the exercise of private rights of navigation, and has moreover recognised even that, as only applicable to his implied granted private rights of navigation. There is simply nothing whatever in the section to justify such a simplistic and restricted observation.

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(a) It is perfectly obvious once again from the judge’s own following discussion, that he had recognised the descriptions of private rights of navigation that existed and were retained over the then course of the river. The described existing freedom from charges related to these, as enjoyed by the relevant parties “and their predecessors”. Supposing the judge’s suggested supplementary grant of private navigation rights over the new cuts to be correct, that could not mean that the described freedom from charges could be said to relate only to those rights, over only those sections.

(b) The freedom from any charges “whatsoever” relating to the exercise of any of the pre-existing rights whether public or private in relation to the tidal river Brent was forbidden to the GJCC; confirmed in the Charges Schedule of 1958 drawn up under the auspices of the 1947 British Transport Commission Act; further confirmed by section 43 of the Transport Act 1962 and remains on the statutes to the present day as amended as late as 2005 (Tab 28).

(c) There is no foundation for declining to acknowledge the described non-navigational rights which had likewise always been free of any charges. It is probably appropriate to explain here in the context of non-navigational tolls that ‘tolls traverse’

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were sometimes applied to wharves on improved navigations by Parliamentary edict, even where ‘tolls thorough’ might be forbidden. ‘Tolls traverse’ related to wharfage charges for transhipment of cargoes. ‘Tolls thorough’, on the other hand, relate to charges for vessels to navigate along the river and/or could relate to the amount of cargo actually carried by vessels – neither these nor any other charges were permitted to the GJCC (despite approved improvements to the existing navigation) which the judge has failed to acknowledge. (Tab 11, page 32, paragraph 89; Tab 29)

(d) There exist no grounds for the judge’s comment that section 43 was “exonerating” [the grantees of the supplementary navigation rights] “from all or some of the charges which might otherwise be imposed by the GJCC” (my underlining). Applicable outside the narrow confines of “grantees of such navigation rights”, the freedom described was from liability “to the payment of any tolls, rates, or duties, whatsoever, upon account of, and for any goods, wares, and merchandises whatsoever, carried upon the said canal, or upon the said river Brent, or upon account of any barges, or other vessels navigating the said canal, or the said river of Brent” (my underlining).

(e) Sub-paragraph 22.(iv) also fails to recognise within its topic that the public right of navigation was likewise described in section

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43 as free; further, that any vessels carrying cargo to and from the Thames and the tidal river Brent (but not proceeding to or from the canal above the Gauging Lock) need pay not even the City of London toll – quite independently of who might own or employ those vessels.

(f) As demonstrated in exhibits to my Witness Statements, BWB themselves, outside of these proceedings, recognise the toll-free status of the river Brent in this respect (Tab 25, page 66).

33.

The inconsistency of the judge’s paragraph 22 with both the section 43 it analyses, and with the judge’s own subsequent commentaries, is a serious failing that has found its way into the judgment objected to.

34.

It is pertinent to comment at this juncture that insofar as freedom from charges related to private rights of navigation which did pre-exist, then the judge’s later assertions (during debate at handing down) that the “exemption” died with the right, cannot apply to those pre-existent rights that had not died.

35.

In paragraph 24 the judge correctly, I believe, dismisses the BWB argument that section 43 actually extinguished the public right of navigation. It is incomprehensible therefore (to me) how he could later say that BWB had not disagreed with its continued existence.

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36.

The plain effect of the judge’s paragraph 25 is nonetheless clear-cut in asserting that the pre-existing public right of navigation was not extinguished as a result of canalisation. As a consequence the Transport Act 1968 could only confirm its continued existence and the judge was, I believe, bound to have incorporated that essential finding into his Order as an affirmation of one of the two principal foundations of my case.

37.

With respect to the rights described as pertaining to the nearby properties, the judge in paragraph 26 has again, correctly in my opinion, refuted BWB’s argument that these benefits only applied to owners of those properties at the time; he has properly confirmed that these applied to all successors in title whether owners or occupiers. Where I must emphatically disagree with the judge, is with his opinion that the question is unimportant. This again, forms the other half of the two foundations of my case; the immediately relevant right being that of a wharf owner to moor boats to his wharf.

38.

In the context of the effect of the TA 1968, the pre-existence or otherwise of this right is irrelevant of course, because it is not a right of navigation; it therefore cannot be affected by the provisions of that Act in any case (which the judge acknowledged in debate at handing down). Nonetheless it should be noted that the right, as with all the riparian rights - inclusive of freedom from any charges relating to them - were pre-existing common law rights confirmed rather than conferred by the 1793 Act. Despite the works involved in improvement of the navigation, nothing in the Act was to be construed as

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entitling the GJCC to interference with those rights or to the levying of any charges whatsoever.

39.

Regardless of the judge’s opinion that these riparian rights could not assist my case, he was, I believe, bound to have incorporated his agreement with my Claim on this point also, into the Order.

40.

The following paragraphs 27 to 32 expound the reasons why the judge considers the point unimportant. As a rationale for declining to answer the issue as directed, these need to be examined.

41.

In essence, the judge has fastened upon the last-minute material produced by BWB on the first day of trial, and decided on the strength of his perception of its import, that for any boat to be legitimately moored anywhere, it must have a houseboat certificate specific to that site. This, forming as it does the fundamental grounds for the judge’s decision to refrain from declaring his acceptance of the continuation of the relevant rights as described in the 1793 Act, is the height of absurdity; not even BWB having openly advanced such a ludicrous argument.

42.

The tantalising hint offered by BWB as to the possibility of such an argument relating to houseboat licences was obviously effective, from the result evidenced in the judgment. On a purely common-sense basis, however, it ought, by anyone familiar with British Waterways legislation, to have been rowed out of court as the self-evident nonsense that it is.

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43.

BWB having produced this material only during the course of the hearing, no reactionary documentation could have been produced. With the Court’s permission, I believe that it would be appropriate and equitable for BWB’s true position regarding houseboat licences to be exhibited (Tab 30).

44.

The judge concluded that “the boats are alongside the Bank [sic] unlawfully and so will remain until and unless they are issued with [houseboat] certificates for that site” (paragraph 32, last sentence). This is completely wrong. It ought not, even if true, have influenced the judge to decline a properly responsive determination of issue (i); given that it is wrong, the decision to refrain from a declaration true to his findings is so much the more appalling a miscarriage of justice.

(i)

The judge’s assertion that the boats do all fall into the category of ‘houseboats’ is valueless. By the definitions within the relevant Acts, even wreckage from vessels not ever designed for human habitation could fall within the defined category. This does not mean that any such vessel needs a houseboat certificate rather than, for example, a pleasure boat licence if applicable.

(ii)

The relevant Acts referred to the necessity of vessels being registered – whether as pleasure craft or as houseboats (commercial carrying vessels falling outside the provisions of these particular Acts). Whether one or the other was desired depended upon the owner.

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(iii)

Ever since the 1971 and subsequent Acts were proclaimed, the issue of houseboats and their licensing regime have been bedevilled with growing problems. The definitions have been argued over for decades (still continuing in Parliament) and, as I said to the judge in the course of the hearing, BWB themselves could never, in any event, authorise unilaterally the residential use of a boat; neither are they any longer desirous of exercising such powers as were granted to them, to license houseboats according to the provisions of the various relevant Acts referred to by the judge. The reverse is in fact the case; BWB are seeking to eliminate houseboat certificates altogether, as providing too much protection for the possessors of this rarity.

(iv)

The simplest appraisal of the legal situation of moorings regardless of whether they comprise a sole dwelling or no, is achieved via reference to the statistics. BWB consider that around 2,700 boats on their network alone are more or less permanently lived on. In the region of 1,500 of those have ‘legitimate’, BWB approved moorings, whereas less than 100 throughout the nation actually have ‘houseboat certificates’. (Tab 3, pages 3 & 11). As I noted, even those are considered by BWB to be problematic anomalies that they seek to abolish as and when they can. Of a certainty, no more will ever be issued.

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(v)

If the judge’s understanding was held to be true, then the simple fact would remain that BWB would be thus found to have approved some 1,400 illegitimate moorings. This would be one of those all too rare instances in which I would assess BWB’s inevitable protestations at such a charge to be perfectly justified.

(vi)

The judge’s conclusion is, in any event, fatally flawed, as evidenced by reference to the latest major BWB legislation as comprised in the very Act of 1995 to which he refers. Even with respect to the licensing of those needing houseboat certificates (as an alternative to a pleasure boat licence), BWB are enjoined within that Act to “have due regard to the desirability of refraining from interference with private rights and established mooring practices and shall not prevent the mooring of any vessel which could lawfully have been moored pursuant to any such private right but for the exercise of such powers” section 20.(1) Section 20.(3) clarifies that “In this section “private rights of mooring” include any rights conferred by the Board or (in England or Wales) enjoyed as an incident of an interest in land” (which is where the wharf-owners’ rights on the river Brent come into play).

(vii)

The establishment of our pontoon for moorings was, besides, approved by BWB many years ago, and has been used for varying numbers of clients’ boats for varying periods of time (up to two years) depending on whether they were simply waiting for appropriate tides to enter the Dock, or having extended work done on them. This has necessarily

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been under the observation of BWB all that time, and there were no possible grounds for a sudden and unannounced reversal of position by them.

45.

The question of mooring rights is perfectly well understood by BWB.

(i)

Where they are owners of both canal (or riverbed) and adjacent land, they can themselves licence and charge for moorings to that bank.

(ii)

Where they are owners of the canal or riverbed but not owners of the bank or access to it, then they are entitled to charge a lesser sum (according to the Cambridge principle ideally) for what they term “End of Garden” mooring rights.

(iii)

Where they are simply in control of a river, the bed of which is not in their ownership (as is the case with the river Brent), the power to licence and charge for moorings rests not with them but with the riparian owner (Tab 31).

46.

Paragraph 32 is also wrong in stating that our boats are not exercising a public right of navigation. As BWB themselves have claimed from the outset, rights of navigation include (by definition of the TA1968), rights to keep and use a boat. On those grounds, on all waters where public or private rights of navigation have been abolished, BWB are entitled to issue and charge for a licence to use those waters, regardless of whether or not the vessel concerned

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is “navigating” in the sense of moving from place to place. This licence is separate and distinct from a mooring right and the holder of a ‘pleasure boat licence’ cannot rely upon that for any right to moor on a permanent basis where BWB own the bed. Similarly, where a boat may be legitimately moored to and over private property, it nonetheless, absent the existence of a public or private right of navigation, will still need to possess a navigational licence to be kept on that water even if it never moves from the mooring.

47.

Where the judge is correct, is where he is in agreement with my case that that the right to moor a boat to a private wharf is outwith any public right of navigation. As stated repeatedly throughout my case, reliance upon the public right of navigation has reference to the right to keep and use a boat on the relevant water, it has nothing to do with the exercise of the riparian right attached to the wharf.

48.

Paragraph 32 is also wrong in stating that the boats are not exercising any riparian rights. As is common law, the right to moor boats to a wharf is an inalienable right necessarily attached to that wharf. It is entirely irrelevant in the present instance, whether I am entitled to exercise those rights (even though, as I have argued, I was and am fully entitled to do so); the fact remains that I am exercising those rights and only the paper title owner (which on their own admission is not BWB so far as ‘the Bank’ is concerned and which is obviously not theirs so far as the registered title is concerned) could at some future point attempt an action for trespass.

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49.

I have submitted that even were the judge correct as to his assessment of my prospects of winning the ‘final argument’, that ought not to have prevented his declaration of the findings in my favour – if it availed me nothing then so be it, I would still nonetheless have won the point presently at issue. When, as I have presented above, the basis of that assessment is clearly wrong, the injustice of the resulting refusal to make the appropriate declaration is only the more apparent.

50.

When, in the judge’s summary in paragraph 33, he claims that “issue (i) does not need to be determined because a public right of navigation does not include a right to moor other than temporarily”, he is not merely being unjust, he gives evidence of a total lack of understanding of the issues in following BWB’s red herring.

51.

When the judge goes on to say “all that needs to be said about issue (i) therefore is that the private right of navigation . . . was repealed” he is therefore completely wrong.

(i)

For all the reasons stated above the issue should have been fully determined in my favour.

(ii)

The private right of navigation has, besides, nothing whatever to do with the arguments of either side and the judge has nowhere, that I can see, indicated how it might be construed to do so.

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(iii)

Even on the judge’s own showing, the admitted pre-existing private rights over the original river course will not have been abolished anyway.

The discussion on handing down

52.

The transcript of the debate following handing down of the above judgment is revealing in a useful way as further elucidation of the rationale for the judgment (Tab 5).

53.

In the first place it was difficult to get across a clear and full definition of my position due to interruptions which I as a layman was not equipped to handle. On page 2 lines 6-8 I attempted to put the case that the answers I had sought from issue (i) related to the rights that were described, that were pre-existing, not any right which might be construed by implication (as was the ‘parallel’ private right referred to by the judge). Later attempts to single out, for example, the private riparian rights, were eventually successful.

54.

What came out particularly in that opening discussion was that the judge described the private right of navigation as “the one right which it [the 1793 Act] creates, which has been dealt with by the Transport Act 1968” (page 2.26-3.1) Leaving aside the question as to whether any such private rights were indeed created, this at least makes clear that anything else was not so created, such that all other rights – the ones actually described – have not been dealt with by the Transport Act 1968. As the judge himself put it “the answer

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to the question raised by issue (i) is fairly dogmatic about the private right. It says nothing about the public right and so it, by necessary implication, the public right continues to subsist.” (page 4.23-25)

55.

I had attempted to convey to the judge that “it was important that if it [the court] found that the rights, including predominantly the public right of navigation, does still exist and those private rights, whether navigational or riparian, as did exist at the time; and as described as pre-existing - ” (page 2.20-23) also survived the Transport Act 1968 (as I’d hoped to continue), then (likewise), the Court should so declare to that effect.

56.

The judge did, at least, understand that I had wished to have these all (predominantly the public right of navigation and the riparian rights) made the subject of his declaration, but claimed that “it was not cast, as I understood it, by the question”, going on to suggest “Maybe the question was deficient?” (page 3.12-13) I personally do not believe that the question was deficient but that it was worded carefully to embrace all rights as were described by the 1793 Act.

57.

The judge went on to say that if the question had been phrased appropriately to what I had intended, “the answer would have been: public rights not affected, private right repealed, riparian rights not affected”. (page 3.19-20) The judge’s suggestion also, was that that might be something I could agree with Mr Stoner (barrister for BWB), commenting “he may not want to agree but that is the result of the judgment” (page 3.23). Some such wording was, of

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course, precisely what I was seeking, if references to specific rights were considered necessary, and it is understandable that Mr Stoner did not wish to agree. What I cannot understand is why, given the judge’s agreement with my two fundamental issues (regardless of whether he thought they would assist my case), he needed Mr Stoner’s agreement to make that declaration.

Order as to Costs

58.

The next, obvious reason for pressing the judge on the issue was to do with the question of costs. He had obviously found in my favour on the points BWB had argued against, so that those findings needed to be incorporated in the declaration of the Order.

59.

The judge said “if during the further conduct of this proceeding, you will be arguing that the public right gives you the rights that you wish to claim and assert, then this result does not affect you. If all you want to do in the further conduct of these proceedings is to assert a private right, then this answer does affect you because it has gone as a consequence of the 1968 Act.” This was a careless response in that the judge had already agreed that the riparian rights were unaffected and those were private rights. Insofar as he referred (as must be believed) to his construed supplemental private rights of navigation over the new cuts, then of course those would not be rights I would attempt to assert (why would I when there was no need?) On that score, the judge’s suggestion that the result would not therefore affect me is correct – except that I needed

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the positive answers to be made clear within the Order, affecting me positively in a fully responsive answer to issue (i).

60.

It is also, however, a fact that despite the above, the judge went on to unilaterally assume that I was reliant upon and wished to assert (to what end remains obscure to me) those private rights of navigation.

61.

As important as the need for the positive declaration in further proceedings, was the question of costs, for which I needed the judge’s assessment in my favour.

62.

The judge’s response was “Yes, I follow that. But I do not think that Mr Stoner has argued that the public right has gone.”

63.

This, I frankly confess, is incomprehensible to me. From the very first letter from Mr Johnson to the latest additional arguments submitted during the hearing, BWB had been arguing against the continued existence of the public right of navigation.

64.

As to the rights attached to the lands alongside and nearby the river Brent, BWB’s argued for their strictly temporary existence and those arguments likewise were rejected by the judge. In the light of these findings which were most strenuously argued against by BWB, there is no logical way that issue (i) could possibly be considered as a finding in BWB’s favour.

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65.

The simplest encapsulation of the issues was in fact presented to the judge by Mr Stoner (on page 8.14-17): “When one looks at the particulars of the claim, Mr Moore’s pleading is very clear, the original pleadings are plain. He says there were certain public rights of navigation and riparian rights and they have not been affected by the 1793 Act” It is to be presumed that the last was a slip of the tongue and that he meant to refer to the 1968 Act; otherwise there is nothing to fault in this summary. The public right of navigation being found to be not affected, and the riparian rights found to be not affected - despite BWB’s argument to the contrary on both counts - I submit that issue (i) was found in my favour “by implication” as the judge phrased it, and ought to have been clearly declared so that implication was unnecessary.

66.

The discussion as to costs became somewhat surreal. The judge said “it appears to me that you have not succeeded on the preliminary issues. You have succeeded, in so far as it remained an issue in establishing that public navigation rights continue to subsist. But, as I understood it, it was not being contested that those public navigation rights did continue to subsist” (my underlining). I am totally at a loss as to how such an understanding could arise following 18 months of dispute in pleadings and two days of argumentation at the hearing - predominantly on these issues, as the judge acknowledged: “Issue (i) took up the bulk of the time”. (page 15.26)

67.

Mr Stoner submitted that “there is no doubt that my client has won issues two, three and four” (page 14.23-24). He noted that “the riparian rights issue took a very different form” following the previous December judgment (page 15.2-

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3), and characterised the core point on public navigation rights as being the right to permanent moorings (page 15.5-6). He claimed that the only relevant right to be determined from the 1793 Act was the right which the judge determined to have been abolished (page 15.7-9). There is only one point from all that which was true – that BWB had won issue (iii). The rest is false.

68.

The judge however went along with most if not quite all of that, in saying: “it appears to me the extent it was an issue whether the public right of navigation continued to subsist notwithstanding the Transport Act 1968 that Mr Moore has won on that point, but that he has lost on all the other points and issues” (page 15.22-25).

69.

First of all it was wrong to say that BWB had won against me on issues (ii) and (iv) when I had agreed those issues and even advanced argument in their favour. The only issue lost was issue (iii).

70.

In respect of the question of riparian rights Mr Stoner was wrong to say that the previous land ownership case had altered the direction of that issue. The only matter relevant to this action arising as a consequence of that former action was the admission by BWB that they could claim no documentary title to ‘the Bank’. The judge was similarly wrong to follow BWB’s lead in that respect when his own analysis acknowledged the rights of mere occupiers.

71.

Mr Stoner was equally wrong to claim “the public right of navigation point, the core point was, that it doesn’t include a right to permanently moor” (page

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15.5-6, my underlining). I believe that I have clarified the issue sufficiently in my arguments above. I had rejected outright in the most emphatic words socially acceptable, that I was in any way imaginable, claiming a mooring right ancillary to the navigation right. The reverse was in fact the case, as evidenced by the case law that I advanced on the point. The “core point” with respect to the public right of navigation was the right to keep and use a boat on the relevant stretch of water. The mooring issue had nothing to with public rights of navigation as I have advanced ad nauseam.

72.

Mr Stoner is wrong again to claim any possible relevance to the issue, of the construed “supplemental” private rights of navigation. There is no conceivable way in which such supposed rights could be relied upon in support or rejection of any party’s position.

73.

There was further comment by the judge referring to the bulk of time taken with exploring the historical background, concluding (incomprehensibly to me) “which plainly involved an examination of how the private right impacted on a public right and as to why there needed to be a private right in all the circumstances” (page 16.2-6). What the judge is talking about here is beyond my understanding. He may be alluding to his construed, implied “supplementary” private rights of navigation, but I could not hazard any guess as to that. From my point of view there needed to be no consideration of private rights of navigation. These were redundant in light of the public right of navigation and irrelevant to the private wharf-owner rights.

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Summary

74.

BWB’s summary of my pleadings was accurate. BWB had argued against those pleadings. The judge found in my favour on those pleadings (regardless of his opinion as to whether they would assist me in the end-game). It must therefore be found that, despite BWB’s arguments, the judgement was against them on those points and in my favour on issue (i).

75.

The end result is one issue each; the legality of the ‘section 8’ notices as the judge recognised, primarily resting upon the outcome of mine, and the bulk of the time having been spent on consideration of mine.

76.

Leaving aside any confused elements within the judgment, the Order as to issue (i) ought, so far as was relevant and necessary from the matters discussed within the judgment, be simply answered “Yes”.

77.

If the judge had wished (as he obviously did!) to incorporate a perceived exception, then the Order should most properly have read: “Yes, except for those supplemental private rights of navigation granted over the new cuts”. In considering the effect upon costs, this interpolated exception would need to be recognised as an irrelevant issue to either party.

78.

An even more acceptable alternative would be an elaboration upon the judge’s own suggested potential formula posited by him as the result of the judgment. The answer would then be: “The public rights of navigation remain in force

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and are not affected by the Transport Act 1968; such supplemental private rights of navigation as were granted over the new cuts were repealed by the Transport Act 1968; the private riparian rights remain in force and are not affected by the Transport Act 1968.” I cannot see why BWB’s agreement to such variation was required in the face of the judge’s straightforward statement that this was essentially the effect of his judgment.

79.

Whichever of the above formula might be adopted by way of variation of the Order paragraph 1(i), it must, I submit, be accepted that I have, even upon the judge’s own findings, won against BWB on issue (i). Paragraph 4 of the Order as to costs ought as a consequence to reflect the fact that the primary issue was found in my favour while the secondary issue was found in BWB’s favour.

Nigel Moore Ridgeways Wharf Brent Way Brentford Middlesex TW8 8ES

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