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IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION BETWEEN: NIGEL PETER MOORE

Claim No HC07C02340

Claimant and

BRITISH WATERWAYS BOARD Defendant

GROUNDS FOR APPEAL

Riparian Ownership Rights
1.

If the finding of this judgment holds true, then there is no lawful basis for any online mooring on the British Waterways controlled network. That is an alarming situation to contemplate - contrary to all common sense, contrary to BW’s own recognition and practice, and contradicting the recognition by Parliament that private mooring rights DO exist, exercisable for the purpose of maintaining “home moorings” for leisure craft between voyages.

2.

The judge has failed to appreciate that the riparian right to moor boats on the inland waterways is the sole legal basis for online moorings throughout the system; if his finding holds true, then the 25,000 mainly online moorings on the canals are all equally unlawful and their boat licences consequently invalid.

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3.

The judge’s approach to the whole issue was flawed; he demanded an impossible proof of rights to moor ‘permanently’, then extrapolated from the natural failure to establish that, to find that no right to moor other than for the most temporary of purposes existed, contrary to all accepted law and practice.

4.

The judge failed to perceive the true ratio and real issues examined in the relevant case law he relied on, which mostly dealt with the rights of the owner of the fundus in the context of PRN’s, both of which considerations were irrelevant to the issues in this case, whether in fact, law, or by agreement at the judge’s request.

5.

None of the case law relied upon by the judge established the isolated principle he claims for them – they simply determined whether or not the public right of navigation could over-ride the right of the fundus owner to consent to the use of their own property.

6.

The judge adopted an unwarranted approach to Section 43 of the 1793 Act, in demanding identification of “a special and specific right” where that Section dealt purely with the general right of the inhabitants to use of the navigation free from imposition of any charges.

7.

The judge was similarly wrong in his approach to Section 82 of the 1793 Act. To claim that the right of riparian owners to make places for boats to lie against their land “cannot sensibly be read to connote or imply a permanent mooring right” is irrelevant – the section cannot possibly be read as connoting anything less than a right to moor boats to the owners land; length of time in exercising that right does not enter into it. Case law expressly confirms the attendant right of mooring to an established mooring facility in line with the intended use of the mooring - as always, subject to the use not impeding the navigation.
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8.

The judge has also, crucially, missed my point in referring to Section 99. That Section makes abundantly clear that the promoters of the Act recognised that riparian owners would wish to keep and use pleasure craft on the waterway. In tandem with Section 82, it demonstrates a recognition that the riparian owners who made provision for boats to lie against their land would not necessarily or exclusively do so for purely commercial purposes; they would need to do so for accommodating their pleasure craft, the pattern of use of which would necessarily demand that they lie against the riparian property in between uses for pleasure jaunts up and down the navigation. The nature of the right is not a right to permanently moor, but it is most certainly a right to provide what modern legislation terms a “home mooring”. The BW Act 1995 explicitly confirms the continued existence of such rights.

9.

The judge made a wrongful determination of the status of the AG’s ‘Information’ in 1845, which was recording the state of accepted facts as pertaining to use of the Thames, rather than propounding points of law for determination by the court. The Select Committee Reports prior to that “Information” amply demonstrated the actual and accepted usage described. It is misleading, moreover, to demand some proof that those mooring practices were of a “permanent” nature; the moorings were permanent, the boats using them were not – and the time a boat spent lying at their berth was irrelevant to the Authority so long as no other rights were infringed.

10.

The case law, both ancient and modern, clearly establishes in this context, that a boat can never be considered as “permanently” moored; it remains a moveable chattel by its very nature, so that the test applied by the judge is misconceived.

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11.

The judge’s doubts respecting the limits of jurisdiction of the Thames Conservancy Acts are contradicted by the clearly worded evidence. The tidal section of the Grand Junction Canal was explicitly described as falling within the limits of both the Thames Conservancy and the integral Watermans Acts.

12.

It was wrong for the judge to rely on my confirmation for the purpose of the trial that I would not rely upon any claim to ownership of the bed as establishing a right to moor, while not factoring in the Defendant’s same confirmation. With the Defendant equally precluded from asserting the same right, no grounds for an adverse decision based on the relevant case law could equitably exist, and a decision as to the lawfulness of the mooring with consequent subjection to powers of seizure, could not lawfully be made under the circumstances [as per Ashmore]

13.

The judge is further at fault in not addressing the proven historical fact that we are dealing with “established mooring practices” at this location, of some 150 years duration – and that the BW Act 1995 explicitly recognises these also, as private mooring rights which are not to be denied by BW. Once again, it is not that these are “permanently” occupied, but that they have been used for “home mooring” of boats – in particular, recognised by BW [for the last 20 years], as suitable “home moorings” for licensing purposes.

14.

It is further perverse for the judge to classify Gilgie as “unlawfully moored” in the face of BW’s express written confirmation [before I moved onto her], that they were happy to continue licensing Gilgie, with the only caveat being, if she remained moored at this location, a possible liability for charges depending on [as yet unresolved] ownership disputes.

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15.

The judge was at fault in ignoring the published position of the Defendants to which I persistently referred, where that supports the lawfulness of riparian moorings generally and, in rivers, acknowledges the gift of consent as lying solely with the riparian owners. The ‘Informative’ further acknowledges that BW’s sole basis for granting or withholding consent for riparian moorings lies with their alleged ability to rely on the common law rights of a landowner to give or withhold consent to the use of their land. The document is a key one, and in the context of BW’s concession not to rely on any such right, disposes of their only claim to control moorings outside of Byelaws and the 1995 Act.

16.

The judge has erred in finding that Gilgie is unlawfully moored, even in the event that no specific riparian right could be established; a vessel may be lawfully moored at that location if, e.g., the local planning authority decreed that it WAS a place where a boat might lawfully be left. The negative finding respecting one source of authority does not necessarily entail the absence of ANY authority – and yet that is what the judge has concluded.

17.

Requiring proof of a positive right - in the absence of any breach of a relevant regulatory provision – failing which seizure of property is authorized, is contrary to the established basis of constitutional law in this country.

18.

The judge is at fault in failing to address my representations as to the powers of the Local Planning Authority in consenting to such use of land. He ignored the case law respecting the lawfulness of riparian moorings in the context of the Town & Country Planning Act 1990. The Secretary of State has determined that the use of riparian land on the inland waterways managed by BW for ‘home moorings’ is a lawful use of land commensurate with the character and purpose of the navigation.

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19.

That finding is all the more persuasive in that it was BW themselves who presented the successful line of argument in the case. Even if there had been a proven “change of use”, I had exhibited to the judge the relevant statute regarding “Certificates of Lawful Use”, which mandates the LPA to grant such a Certificate when the use can be proven [as the evidence adduced by both I & the Defendant had done], to have existed for at least 10 years.

20.

The extremity of the judge’s finding as to riparian rights to moor is against all common sense; it would not allow a pleasure boat to even moor overnight to sleep while on a cruise; all such boats would need to be in perpetual motion when not embarking or disembarking passengers.

21.

The flawed approach is exampled by consideration of the fact that no statute exists specifically empowering a boat to moor anywhere for any length of time anywhere on the canal network [other than, perhaps, in the case of “continuous cruisers”]; applying the judge’s test as to any existing lawful authority in the general sense, as compared with his test of my specific case, would then, have the same absurd, impractical and actually impossible result.

22.

The general test throughout legal history has always been one of reasonable user in the context of any potentially conflicting public &/or private rights of others. Applying that test, my moorings can only be regarded as lawful.

23.

The findings by the judge contradict the view of Parliament in 1995, who envisaged that all such private rights of mooring endured for the purposes of providing “home moorings”, which should be protected against the only powers they gave to BW to control such private rights of mooring. Any finding that negates the clearly expressed will of Parliament simply has to be so flawed as to be irreconcilable with reality.
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BW control of moorings
24.

The judge bases his conclusion that BW are entitled to serve Section 8(2) Notices on licensed boats that are not breaching any provision regulating mooring [which Gilgie was not], purely on some otherwise undefined “lack of lawful authority”; in his premises, an ambiguous term requiring strict interpretation in line with common law, which his interpretation is not.

25.

The judge is at fault in omitting to address, in that context, my contention that the addition of “without lawful authority” to the pre-existing power to remove “sunk, stranded or abandoned” craft, could only refer to the then recent state of affairs in which all pleasure craft using the waterways [except for tidal sections] by that stage required a “relevant consent”, so that a boat would be “left or moored therein” unlawfully if it did not possess one of the various Boat Licences/Certificates authorising them to be on the waterway.

26.

The judge has construed the breadth of application of Section 8(2) of the 1983 Act in a way which is inconsistent with all extant statutes respecting tidal waters. If a boat is left on waters wherein no permit is required from BW, then BW are in no position to expel them from those waters. That is the express wording of the 1975 Act extending Byelaw powers. A boat cannot be left on such waters “unlawfully” when it is lawful for them to be there, and where any authority to moor at a particular location is in the gift of other parties than BW.

27.

The judge’s interpretation would give to BW powers to act as enforcer for third party rights, which is a highly dubious motivation to ascribe to Parliament. The only appropriate way to approach analysis of the section is to ask what the mischief was, for which Parliament’s granting of this power was the remedy.

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28.

The section also, as acknowledged by the judge, provides for one remedy only – removal from the waterway network. That in itself indicates that it is intended to address only the problem of boats that ought not to be on the waterway network, whether through dereliction or having no relevant consent to be on them. Whatever mooring offences that any prior Act established, powers to remedy those had already been established. Addressing the problem of unlicensed pleasure boats was the only mischief then known for which this power could possibly be envisaged as addressing.

29.

The judge has failed to address the fact that it was not until the BW Act 1995 that Parliament expressly granted powers to BW to control private moorings – for specific purposes and with strictly defined limitations. Interpreting the earlier 1983 Act in terms that would make the later, less onerous powers redundant, is contrary to all accepted rules of construction.

30.

The judge failed to consider, when ordering ‘Gilgie’ to be subjected to Section 8(2), that BW had, since August 2009, created the legitimate expectation that ‘Gilgie’ would continue to be permitted to remain at the mooring.

31.

The judge has also signally failed to give any consideration to the fact that BW themselves, as the private promoters of the 1983 Act, clearly represented to Parliament in the course of pursuing the BW Bill of 1990, that Section 8(2) of the 1983 Act gave no such powers as the judge is here deciding that it does. That was the burden of the explicitly worded argument given to Parliament supporting the claimed need for new statutory provisions to control moorings.

32.

It must be obvious that rescinding a licence in my case, in circumstances where it has been confirmed that no licence is needed anyway, could not possibly have the effect of thus bringing the boat within the embrace of Section 8(2).
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Overview
33.

The judge refers at the start of his judgment to the Select Committee description of the waterways’ legislation as a “confusing set of provisions”; he concludes by describing them as “disparate and complex”.

34.

As to the extent of riparian rights, at paragraph 69 the judge described the position as being “somewhat uncertain in the case law”; regarding the extent of Section 8(1) the judge admits [paragraph 155] that he reached his conclusion “not without hesitation”.

35.

Under such circumstances I have put it to the judge that considering the wider application of his findings, it would be appropriate to have his findings adjudicated upon by a higher court.

Costs
36.

Obviously, should I succeed in establishing that Gilgie was lawfully moored at her present location, then there would be nothing left of BW’s case and costs would inevitably in this instance follow the event – however even if not, the present costs have been determined upon an understandably flawed premise, i.e. that I was willfully disregarding the court’s prior determination of costs in a show of contempt with my offer of regular nominal payments.

37.

Had I been aware that the judge was viewing the matter in that light, I could readily have demonstrated that my offer was not a contemptuous demand that BW bear the burden of the costs of pursuing the case in defiance of the court’s Order; it was no more than was actually possible under the straightened circumstances to which BW’s actions had led me.

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38.

I did not simply write to BW and offer £1/month; I sent them the relevant budget analysis and advice of the Consumer Credit Counselling Service. This had been obtained earlier owing to difficulties meeting credit card repayments at the suggestion, moreover, of the Card company.

39.

It was less than fully honest for BW to refrain from disclosing the basis of my offer while allowing the court to labour under the misapprehension that the offer was deliberately derisory.

40.

As it was that very misapprehension that, at the last, decided the judge that I needed to be taught a lesson, clearing the misapprehension ought to result in the position arrived at by the judge immediately prior to factoring in that consideration.

41.

It ought also be admitted and taken into account that the prior costs award referred to was extravagantly unjust, in light of the fact that the single main issue recognised as the most important one in that preliminary issues trial – and on which the majority of the time had been spent - has been now confirmed as being found entirely in my favour. To hold that I remain liable for the tens of thousands of pounds BW spent in failing in that case is an extraordinary failure on the part of the court to act justly.

42.

Whether viewed “globally” or on an issue basis, I was the clear winner in the preliminary issues trial before Martin Mann QC. It was only his refusal to recognise the effect of his own findings that resulted in his perverse decision on costs; the Appeal Court’s decision to return the matter to Chancery ought, as a corollary of that, to have included adjournment of the costs decision likewise.

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43.

Under such circumstances, for the judge to shrug off that injustice as an irremediable done deal and then to penalize me for my inability to pay it, is singularly inappropriate.

44.

It is all the more inappropriate to go on to recommend that my Article 6 rights to a fair trial in defence of my home should be thereby violated, and that I should be prevented from proceeding with my appeal unless and until paragraph 13 of the judge’s Order was complied with.

45.

In the event of success at appeal, the final costs Order should necessarily embrace the previous costs Order as costs in the case. The question of compensation for the years of sustained abuse of my Human Rights ought also to be a matter for determination by the court.

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