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BRITISH WATERWAYS BOARD 1st Defendant TONY HAYLES 2nd Defendant
SKELETON ARGUMENT OF NIGEL PETER MOORE
This is a case defining limits to the powers lawfully exercisable by British Waterways [BW].
The genesis of the case lies in the service on several boats in my care with formal Notices. One was a “move on” notice, demanding immediate removal from my moorings on the alleged grounds that the boat was overstaying at a designated location; the remaining five were “Section 8(2) Notices”, demanding removal “from the Board’s property” on the alleged grounds that the boat were “unlicensed” and “unlawfully moored”.
The lawfulness of these notices was challenged on the grounds that the boats were all within a Public Navigable River, moored to private riparian property.
THE BASIC CASE
In common ground with BW’s previous legal advisors, I assert that Outwith sunk, stranded or abandoned boats, SECTION 8(2) NOTICES are applicable ONLY to boats without a current boat licence.
In common ground with BW’s previous legal advisors, I assert that – Outwith specific Parliamentary authority, BW CANNOT lawfully demand a boat licence where Public Rights of Navigation still exist.
The River Brent/Grand Union Canal below Bax’s Mill retains the Public Right of Navigation, and Parliamentary authority has not been granted to demand boat licences over this section of waterway.
It follows that NO SECTION 8(2) NOTICE CAN LAWFULLY BE SERVED on any boat within this section of waterway.
The single finding by Martin Mann QC that I had won on the survival of Public Rights of Navigation, has accordingly already won me the basic case.
ISSUES AT STAKE
The Original Claim
The Claim entered against BW [once it was obvious that they were going to pursue litigation], asserted several key facts, which can be condensed into the following:
a) the water on which the boats are kept is a public navigable river with public rights of navigation confirmed [not abolished] by the Transport Act 1968,
b) the rights of local inhabitants to freedom from all charges relating to use of this public navigable river was ratified by the GJCC Enabling Act of 1793, and has been confirmed by all relevant later legislation to the present day, and
c) the public navigable river Brent, that forms the large part of this final section of the Grand Union Canal, is not a navigation owned by BW.
All three premises dispose of any legal claim to the particular powers purportedly exercisable in the grounds given for service of any of the notices; the last premise disposes also, of any pretence to applicable common-law rights, the availability of which is, in any event, denied categorically.
Following the third instance of my boats being boarded, the latter two by BW employees, and following assurances that these would continue, I brought interim proceedings against, in the first instance, Tony Hales, Chairman of BW, who had declined to intervene to prevent the events I complained of.
The claim in that instance sought to establish that:
a) boarding of boats without the master’s consent [except in matters of imminent danger] is an offence against both BW Statute and the Merchant Shipping Act, and
b) individual officers of the Board should be held accountable for criminal actions undertaken in the purported exercise of their employment.
These issues were not dealt with in the hearing at first instance, the matters being adjourned to the present main trial.
By direction of Lady Justice Arden in the Court of Appeal, the relevant Human Rights issues in the case were to be brought before the Court.
Later Lists of Issues
Considerable peripheral issues have since been brought before the court by BW, with the Court’s express approval. These pertain to the exercise of BW’s powers in wider circumstances than those obtaining within the local situation on the tidal Brent, and will be addressed in turn once the primary issues have been dealt with.
The physical situation is as set out in my Witness Statement and as illustrated by the exhibits to that statement. While noting minor inaccuracies in the evidence of BW, the general locus is a matter of common ground.
The boats were all moored on the tidal section of the River Brent/Grand Union Canal between the Boatman’s Institute [formerly Bax’s Mill] and the Thames. This too is common ground.
The boats were all registered Pleasure Boats under the terms of the 1976 Byelaw provisions, all being owned by &/or in charge of British Citizens.
The specific location has been used as moorings for at least 150 years; the specific apparatus enabling the use as at the time of the notices, had been in
use since 1996 with the full knowledge and acceptance of BW, subject only [in their view], to boats using the moorings being licensed to be on “their” waters.
FUNDAMENTAL LEGAL PRINCIPLES
The powers of British Waterways
The powers of BW derive solely from the original Enabling Acts, as added to and amended by modern legislation.
The basic principle of construction that has been laid down in Law is that BW, as successor to the original canal companies, can claim nothing that has not been clearly given to them by Parliament.
This principle was established most notably in the context of a canal company claiming the common law rights of a landowner to charge for use of their indisputably purchased property [Stourbridge v Wheeley]. The rule was confirmed in the Court of Appeal in 1997 in the case of Swan Hill Developments v BWB.
In the event of any question arising as to BW’s powers under the private Acts underpinning and granting those powers, the rule is that any ambiguity must be construed against them, and in favour of the public.
This rule of construction is not to be lightly set aside or dealt with arbitrarily; it is fundamental to all examination of the bases of BW’s powers.
The strength of the principle should never be watered down; the law demands that in the event of varying interpretations being possible, that interpretation must be chosen by the Court that operates against BW and in favour of the public; it is not simply that the “most likely” argument should prevail.
This Rule has been acknowledged openly by BW in the context of complaint about the lack of a “level playing field”. It has, nonetheless, been markedly absent in all rulings in the courts below.
The rights of the public
The fundamental rule when considering the rights of the public vis-à-vis all such legislation as underpins the waterways, is that where rights of the public have been ratified by an Act of Parliament, only an Act of Parliament that abolishes those rights in express terms, can suffice to remove such rights.
The Rule is established by Lang v Munro as approved by the Scottish judges in Robertson v Network Rail.
The rule demands expressly stated abolition of the rights; no later Act can remove such rights by action of the doctrine of implied repeal. The later Act will be construed wherever possible, in such terms as maintains the formerly
ratified public right, even though the Act might otherwise be considered as incompatible with such rights.
It has further been commented on by Parliament in the course of later BW Acts, that removal of public rights, even through the medium of expressly enunciated private Acts, is abhorrent in principle.
An attempt was made in the British Waterways Private Bill 1990 to abolish all such rights under Clause 27, but this was dropped in the face of sustained outrage and steadfast opposition from both public and Parliament.
Shortly after passage of the BW Act 1995 the continued operation of ancient rights was tested in both High Court and Appeal Court; the finding was confirmed that BW remain bound by the terms of the original Enabling Act [in those proceedings, the relevant Act being the same Grand Junction Canal Act of 1793 as affects this case].
Insofar as later legislation is passed that is incompatible with the terms of formerly granted powers to authorities, the doctrine of implied repeal must hold sway.
In respect, as an example, of the terms of the Human Rights Act of 1998, any powers granted under former legislation as are incompatible with that Act, can be subjected to a Declaration of Incompatibility.
The powers specific to Section 8(2) of the BW Act 1983
The precursor power to remove vessels by the British Transport Commission was expressed as applicable only to those “sunk, stranded or abandoned”.
The private BW Act of 1983 added a further category to this classification, so that a relevant craft for the purposes of the Section would include such vessels as were “left or moored” . . . within waters controlled by BW . . . “without lawful authority”.
Of the only two mooring offences created by the 1995 Act, there is but one that classifies a boat as “unlawfully moored”, and that is Section 18, where a boat is creating an “obstruction or hindrance to navigation”. Such boats are specifically dealt with under Section 8(5), so the charge of being “unlawfully moored” is entirely inapplicable to Section 8(2).
The powers of Section 8(2) are applicable therefore, solely to boats that are present on BW controlled waters without a “relevant consent” to be on those waters; in such circumstances [and only such circumstances], they will be present “without lawful authority” and will be relevant craft for the purposes of that Section and sub-section. The applicable relevant consent will be the appropriate Licence/Certificate that would constitute the boat’s “lawful authority” to be left or moored within that waterway.
In short, for boats that are neither “sunk, stranded or abandoned”, Section 8(2) can only be applicable to vessels without a current Boat Licence/Certificate.
Section 8 was never envisaged for mooring control – because prior to the 1995 Act, and outside of the two Byelaws, no restrictions on mooring existed.
Powers had been granted from 1954 to create byelaws respecting mooring should that ever be deemed necessary [it never was so deemed, until the recent expansion of boat numbers], and yet Byelaws 28 & 29 were the only ones passed controlling that. These Byelaws provide that vessels shall be securely moored fore & aft, and that they shall not be moored to sluices and lock gates etc, which have not been designed for such use. It falls to be noted that Byelaws carry their own powers of remedy in the form of a fine; no other enforcement applies to these.
“Left or moored therein without lawful authority” can only be interpreted as moored against the law, and where there is no law there is no offence. Other than the two Byelaws, a boat can now [since the 1995 Act] be considered “unlawfully” moored only if creating an obstruction or danger to navigation.
No byelaws exist respecting the time that a boat can spend at any one place. The only Statutory restriction relating to time spent mooring, is that relating to vessels without a declared home mooring. For such boats [and such boats only], the limit is 14 days in any one place. This simple, very generalised rule, is the subject of much current contention and inappropriate litigation.
The only arguable charge under the terms of Section 8(2) would be that the boat was not licensed to be on the water whether moored or not, so was therefore left or moored within waters controlled by the Board unlawfully, in contravention of either the 1976 Byelaws or the BW Act 1971, both as modified by the BW Act 1995. This was, in fact, BW’s understanding through the 90’s as illustrated by their testimony before the Select Committee of the House of Lords in May 1991, when seeking to promote their 1990 Bill.
The answers of Mr White [Solicitor and Secretary for BW] make this plain, during the giving of evidence as to why BW should be given the powers in the various mooring clauses of the Bill [most of which clauses failed, in the event, to survive passage through Parliament].
The cross-examination is recorded in the Select Committee Minutes of Evidence for 21st May 1991 [Day 5, page 36]:
Q. Is it not the case that the abuse of moorings at certain locations could quite easily be dealt with under existing legislation, in particular section 8 of the 1983 Act, if the Board wishes to invoke that legislation? A. Section 8 could be brought into play only where the craft was unlicensed, sunk, stranded or abandoned, and would be a very draconian measure to use against such vessels. If the craft were licensed, provided it was not causing an obstruction to navigation it would be unreasonable for us to use it, even if we could. I think section 8 is inappropriate. [My emphasis]
And on less drastic powers to move vessels:
Q. “I believe you already have powers to move vessels on the grounds of excessive length of time spent on towpath moorings, or whatever. Is that not so?” A. [Mr White] “We do not have proper powers in that regard. The only power we exercise at the present time, if we are able to do so, is the one concerning refusal to obey the reasonable instruction of an authorised officer of the Board. “
Mr White’s first answer reveals a curious dislocation with reality. Throwing up his hands in horror at the thought that BW would ever stoop to so unreasonable a step as to apply Section 8 to a mooring offence “even if we could”, sits strangely alongside the fact that the 1990 Bill specifically sought to make it possible that they could - in Clause 22, making contravention of 5 of the new mooring provisions they sought, liable to the sanction of Section 8. In the event, only one of the provisions qualified, which was the one Mr White did think appropriately dealt with by Section 8, and that provision was made liable only in respect of Section 8(5), which no-one could consider draconian.
If the draft new byelaws become approved by the Secretary of State, then there could be, for the first time, a number of relevant laws on mooring. It falls to be noted that the sanctions against failure to comply with those Byelaws will remain those specified within the Byelaws, and that Section 8(2) will still not apply. A mooring offence does not automatically create an “unlawful
mooring” as will be seen later.
This was a prime reason [not admitted by BW] for attempting incorporation of the mooring clauses into an Act, rather than following the cheaper and less rigorous path of getting new byelaws approved.
Having failed to get Parliamentary approval for the mooring clauses, BW have now just ‘copy & pasted’ them into the new draft byelaws. Mr Johnson has had to do little to earn his bonus points for the task.
The BW Bill 1990 specifically sought new law in order to widen the definition of “relevant craft” for the purpose of Section 8, replacing Section 8 with a new, more widely applicable section. The fact that that new proposal failed to pass into law is sufficient indication of the narrower application of Section 8.
THE NOTICES AND NECESSARY DEFENCES
“Ere Comes Trouble” Notice
This notice demanded immediate removal, on the grounds that the boat had overstayed at a designated location. No such offence exists.
For BW to justify the Notice they would have to establish a) that there was a formal, lawful designation relating to use of the pontoon; b) that this was public knowledge or made known to us, and c) that the boat had in fact overstayed the period so designated.
BW have admitted that no official designation of the pontoon mooring exists. In conflict with that, the follow-up letter to the boat owners claimed a 14 day designation for the location. (D 4 Tab 113)
The absurdity of the claim is illustrated by the long history of use of the pontoon as recorded by both BMS and BW’s Patrol Officer. This was an imaginary offence dreamed up for the occasion. (D 1 Tab 8)
The boat had, in fact, disregarding the above, only been in place for less than 48 hours anyway, having been off-system on the Thames for an extended boating holiday.
BW must also establish that they have the appropriate power to designate such limiting periods, and the power to demand that vessels move on from them.
I claim that not only do BW have no such powers, they were specifically refused such powers in the course of the 1990 Bill, so that the exercise of them is in clear violation of the will of Parliament.
The specific clause embodying these desired powers was Clause 18, “Prohibition or control of mooring”, wherein no person should moor or leave a vessel in contravention of a notice prominently displayed by the Board. Without Parliament’s consent to this power, BW has no lawful basis to claim and enforce it.
It has been admitted by BW that all notices designating restricted mooring times are advisory only, not having the force of law. A notice relying on such power and on the ignorance of the boater, whether that is ordering the boat to move on or fining the boat for overstaying, is knowingly ultra-vires.
The “broad discretionary power” claimed for Section 43(3) of the Transport Act 1962 in relation to such claims is not unconditional, and in any event, does not apply at all at this location.
The National Association of Boat Owners issued a formal Complaint including a range of legal challenges inclusive of some of the above points, on the basis of having received the Opinion of legal Counsel. No further progress has seemingly been made following the reply of BW’s Head of Legal in October 2009.
Specific points relating to the claimed powers underlying this Notice, both with reference to the specific location and in general, will be addressed within the issues underlying the Section 8 Notices.
Section 8 Notices
The Section 8(2) Notices as produced by BW are printed with options for the Patrol Officer to choose. The Notices served on my boats did not give any option to move on from their location, the demand chosen was to remove the boats “from the Board’s property”.
The Patrol Officer reports on all the boats acknowledges in respect of each of them that they were in good to fair condition; there was no question of the boats being “sunk, stranded or abandoned”.
Had the boats presented an obstruction or hazard, BW have Section 8(5) powers to move such boats without notice.
The Patrol Officer Reports state in respect of each boat that they were “unlicensed” and “unlawfully moored”.
“the Board’s property”
In the first instance, unless the boats were on the Board’s property, the Notices were entirely inapplicable. From the beginning BW refused to accept that land ownership had anything to do with the case despite my challenge on this point; now that their land fraud has at least temporarily succeeded, BW has naturally swung around to lean heavily upon the fact of their current new registration of the river.
My initial pleadings and exhibits showed sufficient grounds to demonstrate that BW’s predecessor, the Grand Junction Canal Company [GJCC], had purchased no part of the natural riverbed and only a small portion of land for ‘short-cuts’. The Application for registration of the whole was therefore misconceived.
I propose to deal with the land ownership issue under two headings;
a) The Land Registry Fraud, in that regardless of any determination of the matters of fact raised in my pleadings, the registration was only accomplished on the basis that the Adjudicator in the parallel case of Mason/DeVere was kept ignorant of -
my unresolved objection, and
the contemporaneous proceedings in this Court that necessarily affected the case before him.
If these facts had been disclosed to the Adjudicator he could only have determined the narrow matter before him and could never have directed the Land Registry to register the land as though objections had not been made. Further, the Adjudicator’s decision itself relied on false information being presented in BW’s oral argument before him.
b) The Historical Record, demonstrating as matters of pure fact,
that the GJCC purchased no part of the natural or modified River Brent, and
that the GJCC had no beneficial occupation even of those portions that had been freehold purchases.
Aside from the Notice’s reliance on a false claim of the boats being on “the Board’s property”, further reliance is placed on their putative land ownership claims in order to substantiate a right to apply the powers of Section 43(3) of the Transport Act 1962. This will be dealt with under a separate heading later.
As stated previously, there is no offence such as being “unlawfully moored” unless, wherever that boat might be moored, it has no licence to be on the water in which it is left or moored.
Boats are required to obtain the licence of BW to bring boats onto ‘their’ waters, use and keep them there, either under the terms of the BW Act 1971 or under the terms of the 1976 Byelaws, in both of which instances of relevant consents, terms and conditions are as added to by the relevant sections of the BW Act 1995.
There has been a signal failure by BW to address this issue; the only applicable ground for classifying the boats as being within the remit of Section 8. It is, of course, obvious that this was the only differentiating factor in choosing which Notice to apply to the boats, instead of serving all with the same Notice.
The only defence to the charge of being “left or moored therein without lawful authority”, is therefore to demonstrate that no lawful authority is required for the boats to be on their particular area of water under BW’s control.
It is a fact kept very quiet by BW, that considerable areas of waterway under their control still fall into this category.
BW always recognised that public navigable rivers were free from any licensing regime, which was why they sought relevant powers to demand registration under the 1970 Bill that became the BW Act 1971. The licensing powers sought were limited to specific sections of specific rivers as listed in Schedule 1 of the Act. The tidal River Brent between Bax’s Mill and the Thames is not on that list, neither are some other such rivers. Some other sections of other rivers were added to the Schedule by the BW Act of 1974, still omitting the Brent and others. The licensing requirements of the 1971 Act cannot therefore be applied to these waters.
It has always also, been recognised that Byelaw powers to control the entry of boats onto such areas of water under BW’s control as are tidal in nature, do not exist.
The fundamental relevance of the continued existence of Public Rights of Navigation between Bax’s Mill and the Thames is therefore clearly evident. The issue underlies virtually all other relevant issues in the case.
There is but a single provision in BW law creating a relevant mooring offence classifiable as “unlawfully moored” and so deemable as a “relevant craft” for purpose of Section 8. There were only two relevant Clauses [from the 6 original mooring offences sought by BW in their 1990 Bill] that survived passage through Parliament: those that are now known as Sections 18 & 19 of the BW Act 1995.
Section 19 gives BW powers of Removal of Vessels to Permit Works. Under that provision, if a boat disregards a relevant notice from BW to move, then BW may move it without further notice. Contravention of this section is expressly stated NOT to be classified as “unlawfully moored”.
Section 18 is headed ‘Obstruction by Vessels’, and is the ONLY mooring offence, contravention of which allows the vessel to be deemed a ‘relevant craft’ for the purposes of Section 8.
BW’s claim to a right of control over moorings is said to be founded on common-law rights as a landowner, when combined with the effect of Section 43(3) of the Transport Act 1962 and the abolition of conferred Public Rights of Navigation [PRN] under the Transport Act 1968.
As will be demonstrated, and which has already been argued and lost by BW with their subsequent acceptance of the finding, the abolition of PRN’s did not
affect the section of the River Brent/Grand Union Canal below the Gauging Locks & the sluice at the site of Bax’s Mill, any more than it affected the some 250 miles of other public navigable rivers under BW’s control.
Section 43(3) is not a “catch all” power as so often used by BW; it is a power to charge for and make conditions, for such services and facilities as BW are lawfully entitled to provide. If control of a use of the waterways by any boat is outwith BW’s powers, then this Section cannot possibly bite.
The most immediate example relates to the issue of public navigable rivers just mentioned – prior to the BW Act 1971, BW had no control over whether a boat entered on and used those waters. With no legal basis for demanding consent to that use, there was no basis on which Section 43(3) could confer a power to charge for, or to condition, such use.
The later proceedings of the 1990 Bill establish also, that even where powers to charge were granted in certain of those rivers, powers to set conditions still did not apply, absent Parliamentary approval, because the powers of the 1971 were expressly limited. (D 3 Tab 71 page 661)
BW acknowledged their inability to control moorings on the “free rivers” under questioning before the Select Committee examining the 1990 Bill. (D 3 Tab 71 page 681)
The claim to common law rights as a landowner must fail; BW are bound by the terms of their Enabling Acts [of which there are some 500, dating back as early as the 15thC] and can only exercise powers clearly and unambiguously granted to them by the terms of those Acts, as amended and added to by modern legislation.
The classic case of Stourbridge v Wheeler confirms the rule, which was recently confirmed in its application to BW by the Court of Appeal; BW has no access to the common-law rights of an ordinary landowner.
It falls to be mentioned that this issue also, raises the question of whether, in any event, BW are relevant landowners anyway.
Questions to be resolved
From the above, it is evident that the question of the legality of the Notices depends upon several core issues of fact, and upon the interpretation of various statutory powers.
The questions relating to the Interim Injunction application will involve the determination of –
a) Whether the BW Act 1983 Act dictates limitations to the circumstances under which BW staff may board a vessel without the Master’s consent;
b) Whether in fact Brentford can be recognised as an inland port, and c) Whether BW staff and Board are accountable for crimes committed in BW’s name.
Having dealt with both the original claim and Interim Injunction in this way, I will address the Human Rights and remaining issues in turn.
ORIGINAL CLAIM CORE ISSUES OF FACT
The three core issues of fact underlying the case are as asserted in the original Particulars of Claim. These are –
a) The tidal River Brent between Bax’s Mill and the Thames is a public navigable river with intact Public Rights of Navigation confirmed by the Transport Act 1968;
b) The existing rights of the townspeople of Brentford to freedom from all boating related charges “whatsoever” for use of the River Brent/Grand Union Canal below Bax’s Mill [including transhipment of goods], was ratified by the 1793 Act; confirmed by the Transport Charges Scheme  of the British Transport Commission and acknowledged by the Transport Act of 1962 as amended by the Railways Act 2005.
c) The navigable river between Bax’s Mill and the Thames is owned by the adjacent riparian land owners; neither the GJCC nor its successor BW had/have any beneficial occupation of any part of it, nor have BW any colour of title to any portion for which they can produce no deeds.
PUBLIC RIGHTS OF NAVIGATION
This issue was the main element of Issue 1 of the Preliminary Trial, and the judge found in my favour on the point. What neither the judge did, nor the Appeal Court, was make the Declaration to that effect that I had earned.
Since the finding by Mr Martin Mann QC, BW wrote that they accepted the finding, and in their pleadings before the Appeal Court they noted that they could have no great objection to a declaration in the wording that I had sought.
I trust that I have made the importance and relevance of the question sufficiently obvious at this point, to show good cause why this issue should be made the subject of a finding and Declaration at the commencement of this trial; it underpins all other immediately relevant issues.
For this reason I would suggest that BW be invited to concede the point, in the terms of the wording in paragraph 76 a), in order to save considerable time and effort re-litigating the question.
It is open for BW to continue their argument, as heretofore, that such public rights of navigation do not assist me, so that their case is in no way prejudiced, according to their presented understanding of the matter to both the Appeal Court, the court below and to the Master.
The shortest way of approaching the question, insofar as it is necessary for the present Court to understand the issue of retained PRN’s, is to consider the ‘exclusion’ clause in the relevant section of the 1968 Transport Act relied upon.
Section 115 of Part VII of the Act, subsection (2) states: “Nothing in section 105 or in any order under section 112 of this Act shall be construed as abrogating any rights of navigation which subsist otherwise than by virtue of the enactments referred to in subsections (5) and (6) of the said section 105 or subsection (1) of the said section 112; and in those subsections references to rights conferred by an enactment do not include references to rights which are merely confirmed by it and which, if that enactment had not been passed, would subsist otherwise than by virtue of any such enactments as aforesaid.
So the simplest way to put the most relevant question is: if the GJCC Act of 1793 had never been passed, would a Public Right of Navigation subsist over the River Brent below Bax’s Mill?
The short answer is yes, so the 1968 Act could only confirm the continued existence of the right.
The following paragraphs are submitted in recognition that BW may wish to resile from the position they took before the Appeal Court and re-litigate the lost issue – and that the Court will permit them to do so.
The River Brent has been a public navigable river since before the dawn of legal memory. As parcel of the Thames [being an “arm of the sea” by reason of its tidal nature], the public right of navigation was ensured by virtue of the first agreement between the City of London and Richard the first in 1197. (D 3, Tab 55)
This agreement was re-iterated with a like agreement between the City of London and King John in 1199.
The situation was confirmed by the terms of Magna Carta in 1215 under clauses 13 & 33.
In 1226 the Charter between the City of London and Henry III reaffirmed Magna Carta in almost identical terms.
Successive similar pronouncements were made under Edward III in 1347, 1350 & 1371.
In the fiftieth of Edward III, 1376, occasion arose to single out the River Brent as suffering from a violation of the Statutes, and those Statutes were affirmed, authorising removal of the illegal fish traps from the river. (D 3, Tab 57)
In 1393; 1399; 1402; 1413; 1423; 1472; 1485-1509; 1531; 1535 and 1710, like confirmations of the Statutes with additional provisions and remedies were promulgated under the reigns of Richard II; Henry IV; Henry V; Edward IV; Henry VII; Henry VIII and Queen Anne.
An Lease involving Henry Hawley of Brentford, records an earlier Agreement dated 1737 in which the River Brent is described as ebbing and flowing so far as the lands of James Clitherow [Lord of the Manor] immediately below Hanwell. (D 4 Tab 77)
The same Lease records that an integral part of the rental agreement for use of the River Brent for a pair of Mills, was that the river was to be kept clear at all times for the navigation of vessels between the Mill and the River Thames.
The Court Records of the Manor for the year 1791 record an indictment of Dr Robert Wallace Johnson for the criminal offence of permitting an obstruction to be built across part of the southern branch of the River Brent alongside his land, which impeded navigation and bode shortly to totally obstruct it. (D 3 Tab 58, page 529)
Both the Thames Conservancy Act 1864 and the Thames Watermen’s and Lightermen’s Act of 1893 described the limits of their jurisdiction as encompassing “all docks, canals, creeks and harbours of or out of the said river [Thames] , so far as the tide flows therein;”
An exclusion clause relating to the imposition of byelaws dictating the minimum numbers of qualified watermen required for controlling vessels, exempted “any craft whilst upon any part of the canal of the Company of proprietors of the Grand Junction Canal within the limits of this Act”. This establishes emphatically that portion of the GJC canal was recognised as tidal and so falling within the described limits of the Conservator’s and Watermans’ Acts. (D 4 Tab 109)
That the tide still ebbs and flows during spring tides as far as the sluice at the site of the former Bax’s Mill [now replaced by the Boatman’s Institute, since converted into a private house] is demonstrated by photographs exhibited (D 3 Tab 60)
Further photographs in the same Tab show that the constant level of this section of the River Brent/Grand Union Canal is maintained at a level of 3.00 mtrs Above Ordnance Datum Newlyn. The Mean High Water Level for this area of water is given as 3.65 mtrs AOD by the Port of London Authority and is illustrated by them in the Plan attached (D 3 Tab 60, page 534).
Mean High Water Level is the accepted limit for all legal purposes when identifying areas within the ordinary reach of the tides; the River Brent/Grand Union Canal even at its constant, artificially maintained level, is at all times below that limit [excepting only in times of excess rainfall, when the depth of the river increases due to flood waters swelling the system].
The terms of the GJCC Act 1793 explicitly recognised the historical existence of the Public Right of Navigation between Bax’s Mill and the Thames, and in Section 43 mandate that this is not to be interfered with, even in the course of any works of improvement in making short cuts.
By the explicit terms of the Transport Act 1968, wherever such Public Rights of Navigation would have continued in existence in the absence of any relevant canal enabling Act, those PRN’s are not affected by the 1968 Act.
The River Brent/Grand Union Canal below Bax’s Mill remains therefore, as confirmed by the 1968 Act, a public navigable river with its PRN’s intact.
The situation is so blindingly obvious that it seems scarcely credible that any argument could be raised against it, but that would be to fail in appreciating the extraordinarily creative imagination of BW’s Counsel.
It is necessary to look at the arguments he presented in the course of the trial on Preliminary issues – arguments that the judge found against, in admitting that I had won on the point.
I will leave aside the highest flights of legal fantasy that has Mr Stoner alleging that the 1793 Act actually abolished the PRN over all once the canal had been completed [even though it was, as he admitted, to be preserved throughout the period of construction when that would have been the worst time for the company to have to cope with it].
I do not intend to waste time either, with any arguments relating to imaginary private rights, because those are immaterial, as BW acknowledged before the Appeal Court, to any position that either side wish to take.
The only argument with any colour of substance to it is the age old argument relating to the status of the “new cuts”.
The argument goes that any short cuts in improving a navigable river [with its natural loops] by way of straightening its course, are built upon land purchased [perhaps] by the navigation company – and obviously a right of navigation had never existed over that field, so the PRN could not apply to that section.
In the first instance, the character of a PRN falls to be considered. As a public highway of sorts, there are clear correlations with the law of highways [though not altogether identical]. The clear purpose of the highway is to allow passage from one point to another – in the present case for example, between Bax’s Mill and the Thames.
The point is clearly emphasised by Mr Stoner in the matter of BW v Davies in Bristol County Court earlier this year.
Bu all logic and law therefore, the right of highway/navigation is a right to travel between two destinations, and the route taken is largely immaterial. If the route of a King’s Highway change its course, whether the route be one of land or water, and whether the alteration is natural or artificial, then the right follows the new course. A new right is not created, the ancient right is the free passage from one point to another.
The rule is especially applicable when the new course is subject to the tides: in these cases the PRN extends to all Arms of the Sea whether natural or artificial anyway [excluding, perhaps, basements and cellars!]
The nature of the 1793 Act in this regard is emphasised by usage of the terms “said River of Brent and said canal” when speaking of rights “as hitherto anciently used and enjoyed”. There was no need for additional conferring of new rights, the rights as anciently used and enjoyed were those expressed as naturally applying to any extension, addition, or re-routing of the navigable river channels.
The inevitability of the rule is the more apparent when the original channel becomes artificially or naturally blocked, so that the new cut is the only alternative route, such as obtained eventually with the River Brent and as it obtained in the case of the River Witham.
As I raised in the previous trial, PRN’s over the River Witham were the subject of the classic case on the matter in R v Betts, relating to a case for obstruction of a PRN on the River Witham, caused by the building of a railway bridge across it in the mid 18thC.
The navigation authority had argued that there was no offence, because the bridge had been built across the new cut that they had constructed through land that they had purchased for that purpose, and that the PRN could not possibly be construed to extend to that artificial channel. The argument sits four-square with that of Mr Stoner.
The decision of the Court of Appeal was that there was no question in their mind but that the PRN followed the new course; no new legislation needed to be passed conferring any PRN’s on the new cut, because those rights attached automatically; the route of the water highway was between Boston and Lincoln and could not be broken.
The applicability of the doctrine is emphasised when examining the Witham case in the light of modern applicable legislation. The artificial cut within which the Boston Sluice was situate, was declared by the Court of Appeal to naturally enjoy the same PRN as had always applied to the natural course. It was not held that the relevant Navigation Act had conferred that PRN. IF they had held that the relevant navigation Act HAD conferred a new, not previously existent PRN over the new cut [as per Mr Stoner’s arguments], then that PRN
would not have been considered as a confirmed PRN for the purposes of the Transport Act 1968.
If Mr Stoner’s arguments were to have been then held true, then under the terms of the 1968 Act the PRN over the River Witham would have been abolished – but legislative history demonstrates that such was not the case. The River Witham inclusive of its new cuts has always remained a PRN since the 1968 abolition of conferred PRN’s.
This is evident from British Waterways’ private Act of 1971. It is therein established that PRN’s remained in existence over the River Witham [including its new cuts] and others, following the Transport Act 1968. It also establishes that because of such PRN’s, BW had not had the power to demand boat licences for use of those rivers, and so consequently had need to seek those powers from Parliament.
Those powers were so granted - over very specific sections of the rivers listed in the schedule to the Act, and not elsewhere. The powers conferred by the 1971 Act were NOT general powers to demand boat licences over all public navigable rivers within their control; Not only were particular named rivers itemised as ones to which the powers were applicable, the powers were limited to specified portions of those rivers – areas of those rivers remaining within BW’s control but lying outside of the specified lengths, remained unaffected, as were areas within that length but outside of the main navigation channels.
The Select Committee Reports and Debates leading up to passage of the 1971 Act establish: first, that PRN’s over rivers formerly enjoying that status survived the passage of the 1968 Act, that second, such surviving PRN’s included those portions of the rivers that had been artificially created as short cuts, and third, that by reason of the continued existence of those PRN’s, BW had, at 1970, no powers to demand boat licences over such rivers.
As mentioned previously, such powers as were granted to BW to demand boat licences over rivers enjoying a PRN, were limited to specified portions of those rivers only. The River Brent is not one of those rivers, as BW have acknowledged elsewhere. The inescapable conclusion is that BW have no powers to demand boat licences over the tidal stretch of the River Brent/Grand Union Canal below the Boatman’s Institute.
PROHIBITION AGAINST CHARGES
It was common practice for canal companies promoting private Acts of Parliament to agree to the preservation of as many rights of the public as was possible, commensurate with fulfilling the purposes of their Act, while additionally conferring mitigating rights in recognition of the inconvenience to which that public had been put. This was a result of the common-sense recognition that they would need as little opposition to their Bills as could be achieved through such bargains.
Section 43 of the GJCC Act of 1793 ratified the existing rights of the Brentford townspeople to the free use of the River Brent for any and all uses, whether for trans-shipment of goods between land and water or for any use by vessels or barges.
The ancient rights were expressed to apply to “the said Canal” equally as to “the said river of Brent”.
The rights were expressed to be applicable to “owners, proprietors, occupiers and possessors” of land and property adjacent to and nearby, the river and canal.
This matter comprised the other element of Issue 1 at the trial of preliminary issues.
BW had argued that such rights could not be said to apply to occupiers and possessors of qualifying lands, but only to owners. They further argued that it only applied to such owners as were living at the time of the passing of the Act, or at the time of construction of the canal.
These are tired old arguments that have been rejected by the courts every time that they have been proposed. Mr Martin Mann QC likewise disagreed with them, but again, declined to give me the Declaration to that effect that I had earned. The Appeal Court likewise declined to give that Declaration and adjourned the matter to this trial.
I will make the point at this stage that I know of no tenet of British law that justifies the refusal of the courts to grant the requested relief sought by a successful Claimant. Not only did BW fight and lose these two crucial issues, they did not appeal them. They further acknowledged and accepted the findings in pleadings before the Appeal Court, by way of seeking to persuade the Appeal Court that no permission to appeal was necessary.
I am confident that should the court fail, yet again, to grant the above relief, I will have ample grounds to take to the European Court of Human Rights the abuse of my right to a fair trial in defence of my home, property and quiet enjoyment of life.
I know of no tenet of British law that permits a party to re-litigate issues that they have argued, lost, failed to appeal, and subsequently accepted in the Appeal Court; that appears, nonetheless, to be permitted to BW.
I am absolutely confident, that should I seek to re-litigate the issue that I had lost and declined to appeal, no consent would be entertained. Unless the court acknowledges by its actions that it has a duty to act even-handedly between parties, then my case has been fatally compromised by bias.
I propose once again that BW should be invited to concede the point [as they indicated at the Appeal Court would be acceptable], in order to save considerable court time that will otherwise be taken up with re-litigating the question.
As with the issue over PRN’s, BW claim that such rights can be of no assistance to me. On their own representations therefore, they will be in no way prejudiced by adopting the sensible path of confirming the representations that they made to the Appeal Court.
It will be open to BW to argue, as they have indicated they will, that neither I nor the companies I represent/ed are in a position to claim the benefit of the ancient rights.
For all the reasons above I believe that I am entitled to the Declaration that I have sought in the terms of the wording of my paragraph 76 (b).
The following paragraphs are submitted in recognition that BW will undoubtedly choose to resile from the position they took before the Appeal Court, and seek to re-litigate the already lost issue.
There are several classes of public rights within the original Enabling Acts. There are those that are conferred, and there are pre-existing rights that are ratified; there are those specific to the owners and occupiers of certain lands, and there are those applicable to the public generally.
The GJCC Act 1793, for example, conferred rights for the owners and occupiers of lands adjoining their canal to create mooring provisions for boats alongside and in the canal. The Act also conferred rights of navigation for all crown subjects over all the navigation, subject only to toll for the carriage of goods.
In Section 43 of the Act, the Public Right of Navigation for all crown subjects between Bax’s Mill and the Thames was ratified, as an ancient right. The rights of the townspeople of Brentford to freedom from all river-related charges, “as anciently used and enjoyed” “by them and their predecessors” was likewise ratified by the same Section [they are best, perhaps, described as the rights of Brentford as a “free port”].
I will refer to the judgment in the preliminary issues trial for answer to BW’s claim that the rights to freedom from charges related only to those people living at the time of the Act/completion of the canal. (D 1 Tab 29)
The prohibition is expressed in the Section as relating to the shipment of goods as well as any use by barges or vessels, and relates to any rates, tolls etc “whatsoever” [BW assert the mooring of boats to be a use of the waterway as defined in the relevant section of the Transport Act 1962].
The all-embracing effect of “whatsoever” is illustrated by the case of Rex v Calder & Hebble.
The fact that people of the time recognised that even Toll Traverse across the GJCC’s own land was subject to this prohibition, is illustrated by the auctioneers’ pamphlet of September 1827. (D 3 Tab 67) Lot III is described as a plot of freehold land fronting the High Street alongside the GJCC towpath [which was a section of towpath, the freehold purchase of which is proven].
Transhipment of goods between the river and this property would necessarily involve carriage across the GJCC land property [ordinarily vesting powers to exact toll-traverse in the landowner]. Nonetheless, the Lot was described, along with riverfront properties, as “not subject to any Toll to the Grand Junction Canal.”
The pamphlet illustrates that the ancient freedom from charges relating to use of the River Brent did not attach merely to strictly riparian properties, nor merely to carriage of goods and any other boating uses along the river, but to the owners and occupiers of lands “nearby” the River Brent, and to carriage of goods across land to & from the River Brent.
Along with the generally applicable grant of rights to owners and occupiers to provide moorings in the canal alongside their property, these ancient rights have been preserved to the present day.
BW’s explicit recognition that all such rights could interfere with BW’s scope to enlarge their profiteering, led to the attempt to have all these extinguished through the medium of their private Bill of 1990. It is not clear to me whether
the class of rights described in Section 43 of the 1793 Act would actually be included even in the infamous Clause 27, although the general right to provide one’s own mooring facilities was most definitely in their sights.
Regardless of whether the Section 43 rights were encompassed within Clause 27 or not, the Clause failed to pass the scrutiny of Parliament and was withdrawn. All such rights remain therefore a thorn in BW’s side, until and unless Parliament changes its mind at some point in the future, and passes an appropriate Act to expressly abolish them.
The debate as BW attempted to push this clause through against all opposition is proof positive that these rights still existed [despite also, their insistence that they were obsolete]. (D 3 Tabs 71 & 72)
The Swan Hill case two years later established beyond doubt, the enduring nature of such rights and their applicability to the present day owners and occupiers of canal-side land.
BW are seeking to claim in any event, that neither I or my companies had/have any such interest in land as would qualify us for entitlement to this freedom from charges.
Freedom from Charges applies to the public at large
My primary case in this respect is that by inevitable extrapolation of the meaning of the original wording of the 1793 Act, all boating uses of the
section were free from charges – e.g. a common carrier foreign to the area but bringing in coal or carrying away local goods, would be servicing the owners/occupiers near the Brent and those owners/occupiers could not have charges for that service by boats imposed upon them – ergo, no charges could be imposed upon the boats servicing them, even though those boats were owned and/or operated by ‘foreigners’.
This understanding is supported by the explicit prohibition generally against any charges for use by boats below the Gauging Lock under the 1954 BTC Charges Scheme.
Right applies to present owners & occupiers of ‘qualifying land’
The application of the rights to present day owners and occupiers was confirmed in the trial of preliminary issues and I need not repeat the judge’s findings.
Where the judge became hopelessly confused was in suggesting that I was not seeking to establish an entitlement to the exercise of those rights. Even laying the general argument aside, it is a matter of demonstrable fact that both I and my companies had/have such an interest in land as qualifies us to entitlement respecting the Section 43 freedom from charges.
Prior to issue of the notices, BW had cognisance of our claim to ownership of relevant land, and any action predicated upon a denial of that claim could properly and legally only have been taken after resolution of the issue.
Mr Johnson in fact recognised that, when making the point that “even if” our claim was upheld, that would not impinge upon the necessity for a boat licence and/or an “End-of-Garden” mooring charge [which had never been demanded in the 11 years of prior use of the mooring].
OWNERSHIP OF THE NAVIGATION
This issue not only is vitally significant in terms of what the Section 8 Notices demanded, it forms the entire and only grounds upon which BW rely for laying claim to any control of moorings.
Mr Johnson has identified in his Witness Statement that two areas are pertinent to BW’s claims: a) “the Blue Land” [as it was identified in the Geronimo action], and b) The riverbed
The Blue Land
Yet again, this is an area that BW have already argued over and failed in, and they now seek to re-interpret the Judgment of Nicholas Dowding QC, as Mr Johnson explicates in his statement.
The judge had divided the parcel into two areas for consideration, which he described as “bridge land” & “non-bridge land”. The difference between the
two was that the northern [non-bridge land] had evidence of a deed, whereas the rest had none.
As Mr Johnson explains, BW wish to discard the plan attached to the court judgment by the judge, and try to claim that this does not apply; that by verbal description, the “non-bridge land” extends far further, to include all that area of infilled riverbed to which they could produce no title, except for that portion represented by the footprint of the former brick Turn-over bridge.
The judgment is not only crystal clear in outlining the basis of the judge’s findings, it has the benefit of the annotated maps that the judge has appended to his judgment, in order that there be no such misunderstanding as BW would seek to achieve.
The important principle demonstrated by the Geronimo Judgment is that BW can claim nothing for which they can produce no deeds. They succeeded in gaining a declaration as to ownership of “the non-bridge land” because that was the area that remained from a deed produced from 1897 and mostly sold on in 1952.
The argument presented by Mr Johnson seeks to ignore the basis upon which the judge found in their favour on that portion defined as the ”non-bridge land”, and ignores the basis on which the judge found that they had failed to show title to “the bridge land”. That basis was quite simply the ability to produce or not, the evidence of an appropriate deed.
It its pertinent to the following, parallel issue of the riverbed, that the area claimed by BW to be included in the area granted by the judge consists, as Mr Johnson describes it, of infilled river.
The arguments that were presented by BW in the course of the Geronimo Judgment lie foursquare with the arguments presented to justify their ownership of the rest of the river.
BW’s arguments in the Geronimo case comprised 3 basic propositions:
a) BW has documentary title to the whole of the land; alternatively,
b) BW has lost the deeds, or they have been destroyed over time, or
c) In the final alternative, BW has acquired adverse possession of the land.
It was common ground that BW could produce no deeds other than the one acquired by the GJCC in 1897. It was on the basis that a remnant of the area covered by this deed was retained following a subsequent sale in 1952, that the judge made the ruling that he did.
The court needs to look carefully at the plan to those deeds to understand precisely what the judge was awarding.
It falls to be noted that the current OS map does not follow the existing land contours. Piling in the 1960’s moved the end bank to the east of the old bridge further southwards, to be in line with the western side of the old bridge.
For some reason the old OS maps showing the old bridge were retained for title purposes up until 2009, but as stated, the modern maps still do not accurately reflect the existing riverbank, even though showing the new footbridge. The bank to the east of the new bridge is shown as more northerly than the bank on the west.
This is illustrated most markedly in the current amalgamation of title into AGL59891. Here, the recognition of the grated titles AGL12435 & AGL12428 are shown to be ‘higher’ than the western bank and in consequence have been drawn with a marked ‘kink’ in the border across the Dock entrance.
The very precise juxtaposition of those titles with the reality, is clearly demonstrated by the title search done for the area occupied by Ridgeways in 1987. The Land Registry surveyor correctly identified that the steel piled bank ran in a straight line from the western bank below the level of AGL12435.
Accordingly they marked the ground not covered by title, coloured green, to show which parts were unregistered, which included a “horizontal tick” of land at the end of the south easternmost tip of that title.
When it came to creating AGL12428 however, this seems to have been forgotten, so that the title plan drawn up omits the strip of newly infilled land immediately below AGL12428.
Comparison with the modern OS map clearly demonstrates that the southernmost point of “the non-bridge land” only just touches, if at all, with the present line of the bank with the tip of its broad downward pointing arrow shape, so that that remnant of the original 1897 title comprises no frontage to the river whatsoever, despite BW’s assertion to this Court that it did.
The overlays of this 1987 title search were sent to the Land Registry when apprised of BW’s application.
It is notable that at least one of the documents offered in evidence to the Land Registry as proof of ownership of “the Blue Land” was a manifest forgery. This was wisely not relied upon in this court, but it was an article that had been adapted and supplied as evidence for the hearing before the Land Registry Adjudicator.
The Fraud Act 2006 states: 7 Making or supplying articles for use in frauds (1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article— (a) knowing that it is designed or adapted for use in the course of or in connection with fraud, or
(b) intending it to be used to commit, or assist in the commission of, fraud. (2) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).
I believe that it is an appropriate question for the court to ask, just who produced the fake copy and under whose direction and knowledge. It was quite skilfully done.
This forging of evidence speaks volumes as to the probity of BW’s Property Department. It is salutary to realise that the same officer who insisted to me personally, with a copy of the forged Terrier Map in hand, that the handhatched area on this Terrier Map was proof of their ownership – a man selfconfessedly familiar with the original – was one of BW’s officers entrusted with drafting and swearing a Statutory Declaration as to BW’s alleged ownership of the public navigable river Lea.
The Fraud Act 2006 states: 6 Possession etc. of articles for use in frauds (1) A person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud. (2) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both).
It would be appropriate for the court to seek to discover who else within BW had knowledge and/or possession of this document while aware of its fraudulent nature.
The very fact that BW considered that their case for claiming the whole of “the Blue Land” was so weak that it required the taking of so extravagant a risk, speaks sufficiently to the admirable sense of judgment by the Geronimo judge, in finding that BW had shown no title to this part of the land.
The comments of the judge as to the “lost deeds” argument should be also be carefully noted. BW did not forcibly pursue that argument at trial as they had every opportunity to do, while proposing that they would take the argument to the less discerning Land Registry solicitors.
The judge gave it as his opinion that BW had been right not to pursue such an argument before him.
It should be noted in the context of Mr Johnson’s statement as to BW’s intended application [for title to more land than was indicated by the judge’s 48
plan], that it was all that area NOT embraced by a deed that was described as “Bridge Land”.
Any presumption that there might be lost deeds establishing purchase of any of this and adjoining land leading to Brent Way is rebutted by the documented fact that the whole of this infilled river causeway, including the peninsular tip and swing bridge, was constructed as an integral part of Brentford’s vehicular public highway.
This is demonstrated by the Tithe Map of 1838; the Gould conveyance of 1814 and the Court records. The towpath for use by the GJCC and others, was described as using this [mostly non-riverside] public route.
For BW to seek to advance an argument in a lower court, that they had had the opportunity to advance in the High Court [and had in fact advanced the argument in pleadings before that court] is an abuse of process.
The Adverse Possession argument, while part of BW’s pleadings, was not advanced at trial at all.
It is an impossible case to make out. All of the footpath leading up to and over the bridge is public adopted highway, and all members of the public can come and go over this way. Only the area under and alongside the footbridge is
capable of being fenced off, and neither BW nor any of their predecessors have ever done so.
Only my former company Ridgeways ever fenced in this area, which fencing remains to this day from the 1960’s [in a rather dilapidated condition].
Neither BW nor their predecessors have ever done anything to the land; none of them have ever made any use of the land. Only my former company, its tenants, licensees and myself have ever made use of the land and, in recent years, exerted tighter control over it. BW has never brought any action for possession against us and the Geronimo case for declaration of ownership for the whole of the Blue Land has already failed in respect of all the riverbank land described as “the bridge land”.
Insofar as BW has ever exercised such acts of user as they are empowered to do by Statute, such acts can never operate as acts of dispossession. It was the sworn testimony of every BW employee giving evidence at the Geronimo trial, employed in this area over the past 20 odd years, that no acts done by them were otherwise than in exercise of their Statutory Duties.
Finally, for BW to seek to advance an argument in a lower court, that they had had the opportunity to advance in the High Court [and had in fact advanced the argument in pleadings before that court] is an abuse of process.
Riverbed Application AGL166926
Mr Johnson now refutes his earlier disparagement of the land ownership issue as largely irrelevant, and devotes some paragraphs to the recent successful completion of registration of the River Brent and adjacent unregistered land.
As mentioned previously, I will deal with this issue under two separate headings -
The boasted success of the recently achieved Registration of Title No: AGL166926 is one that could only have been accomplished through deliberate and sustained fraud.
Registration of land when an unresolved objection has been received by the Land Registry cannot proceed until the objection has been resolved – whether by withdrawal of the objection; by resolution of dispute by the Adjudicator to Her Majesty’s Land Registry, or by Court proceedings.
BW were advised early on of my objection to their claim to the riverbed; they were later informed by the Land Registry that my registered objection had been classified as not groundless, and that no further action would be taken until then current related matters before the Adjudicator had been resolved, when the matter would be looked at again.
In the matter of Mason/DeVere and BW, one of the related cases before the Adjudicator, the Adjudicator required disclosure of any contemporaneous proceedings affecting the matters before him to be made at the first Case Management Conference. No disclosure of the court proceedings in Case No: HC07C02340 was made by BW.
Given that no Registration can take place while an unresolved objection is in place, withholding of this information from the Adjudicator was the only possible route to achieve Registration absent resolution of my objection.
Going even further than simply withholding disclosure of the proceedings, BW wrote to the Adjudicator falsely assuring him that there were no longer any outstanding objections over the relevant area following an amended, 3rd version of their Map 3; this having been accepted by the Land Registry as replacing the original and first revision.
BW continued to withhold the relevant fact of contemporaneous proceedings [between different parties upon different grounds of objection to those lying for the Adjudicator’s decision] on the day of the hearing in the Mason/DeVere case – they further ensured my silence by strenuously and successfully objecting to my giving of evidence at that hearing.
The Adjudicator could never lawfully have directed the Land Registry, as he did in his subsequent Order, while knowing of the unresolved objections lying to be resolved in the High Court. The registration that followed was, therefore,
a direct result both of the withholding disclosure of that fact and the false assurances that no such objections existed.
The questions for the court are very simple: either BW disclosed the existence of these contemporaneous proceedings, or they did not.
a) If BW DID disclose the existence of these contemporaneous proceedings to the Adjudicator, then his subsequent Directions were ultra vires and void [and possibly actionable as an accomplice to fraud].
b) If BW did NOT disclose the existence of these contemporaneous proceedings, then the Adjudicator’s Directions were based on a fraud to which he was not privy.
Either way, the Registration based on the Adjudicator’s directions was fraudulent, with the full knowledge of Tony Hales; the Board; Robin Evans; the Property Department; the Legal Department & BW’s outside legal team.
The Fraud Act 2006 States: 3 Fraud by failing to disclose information A person is in breach of this section if he— (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.
Mr Johnson acknowledges in his Statement that he was present at that hearing and aware of my presence. The question needs to be asked, why he felt no need to rectify the non-disclosure and why he felt no need to correct the imparting of false information that he knew perfectly well was false.
BW cannot cry “innocent mistake” on this; they were at all times aware of the direct relevance of this case to their Application. Even if there was no other evidence, Mr Johnson’s Witness Statement reveals how heavily they will seek to rely on the fact of this Registration in these proceedings.
More, Mr Stoner’s remarks at the close of the October CMC reveals that the outside legal team were likewise aware of the legal ramifications of the case before the Adjudicator vis-à-vis these proceedings.
Quite beside this, the whole collection of correspondence between the Land Registry, me, Shoosmiths and BW Board and management [including Tony Hales & Mr Johnson], establishes their several and individual culpability beyond any doubt whatsoever.
Imparting false information to Adjudicator
In the course of the Mason/DeVere hearing, BW presented oral evidence to the Adjudicator that flatly contradicted even their own Skeleton Argument.
I will refer to the Transcript of the Proceedings for the full details, which involve conflicting descriptions of what a core document said [the document being all but unreadable due to miserably poor duplication].
This document, a page from the 1811 “Book of Reference”, is the one that itemised all land transactions concerning the tidal River Brent between 1793 and 1826.
A “core plank” of DeVere’s case [as the Adjudicator characterised it], was that this document recorded that lands outside of the narrow strip taken for canal & towpath, were subsequently sold off as unwanted land [they were “separated pieces” which the GJCC were compelled to buy under the terms of their Act].
In particular, it was claimed that some of those sales were listed as being sold, or agreed to be sold, to Dr Johnson.
BW, in direct contradiction of this representation of the document’s content, claimed that the document recorded no such thing; it made no references to subsequent sales, being concerned with purchases only. They went further and claimed that there were no references to Dr Johnson at all, in the Comments columns.
As the court will see from the better quality reproduction I have supplied, those statements were completely false to fact, and yet the Adjudicator swallowed the lies unhesitatingly in making the judgment that he did.
BW further misled the Adjudicator as to the effect of the Geronimo judgment, offering only a quoted couple of paragraphs and not producing the judgment in evidence. The whole point of the judgment as clarified above, was kept from the Adjudicator who was given the impression that it both favoured BW’s argument and disparaged me.
Success in this tactic was only ensured by persuading the Adjudicator that I should not be allowed to give evidence. Quite what point Mr Johnson seems to be making in his Statement regarding my presence at that hearing is unclear; if it is meant to suggest that I had the opportunity to present any evidence against them, then he is plainly wrong. He certainly was in a position to tell Counsel that I should be allowed to give evidence, knowing as he did, my direct personal knowledge both of the Geronimo case and the underlying documentation.
The false information thus presented to the Adjudicator was identified by him as a key factor in his decision, which must necessarily have been very different had he known the truth. Even upon the narrow grounds presented by Mason/DeVere therefore, the Adjudicator’s decision was founded upon his acceptance of a falsehood and so must necessarily be an unsafe decision.
The Fraud Act of 2006 states: 2 Fraud by false representation
(1) A person is in breach of this section if he— (a) dishonestly makes a false representation, and
(b) intends, by making the representation— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A representation is false if— (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading. (3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of— (a) the person making the representation, or (b) any other person. (4) A representation may be express or implied. (5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).
The court should question how it was that Mr Johnson declined to intervene and correct his Counsel on points of fact with which he was intimately familiar.
Mr Johnson does not stand alone in culpability, every BW Board member and senior management from Robin Evans on down, had been fully aware of the particulars, and every individual one of them had the opportunity to call a halt to the process.
Tony Hales, in particular, was directly called upon by me to investigate the [at time potential] fraud in the interests of maintaining the public perception of BW as a body of probity. He evidently declined to do so.
The Fraud Act of 2006 states: 12 Liability of company officers for offences by company (1) Subsection (2) applies if an offence under this Act is committed by a body corporate. (2) If the offence is proved to have been committed with the consent or connivance of— (a) a director, manager, secretary or other similar officer of the body corporate, or (b) a person who was purporting to act in any such capacity, he (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly. (3) If the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
Upon all the evidence above, I submit that it is only appropriate for the Court to declare the Registration of AGL166926 fraudulent, and for it to order rectification of the Registry accordingly.
THE FACTS ON OWNERSHIP
I will deal with the facts in the matter under the same heads as those for “the Blue land”, because the arguments presented to the Land Registry Adjudicator stand foursquare with those arguments in the Geronimo case.
If the Geronimo Judgment is taken as precedent for any consideration of the surrounding land [as it should], then the court must find in accord with that judgment, such that it must necessarily be declared that BW have no title in any of the adjacent riverbed and other land, for which they can produce no deeds. This aspect of the Geronimo Judgment has the benefit of centuries of case law precedent, and should be followed precisely by this court in the present disputation as to the extent of the “non-bridge land” in the Geronimo judgment, and as to ownership of the adjacent riverbed in the 2007 application.
It is common ground that BW can show no title to any of this navigation except those listed in the Schedule to the Stuart Mills’ Statutory Declaration.
The extent of that documented title is shown on the exhibited map as marked red. BW has no lawful claim to any of the rest of the riverbed or new cuts.
There is no presumption in law that a navigation authority empowered to make navigable a river, necessarily takes title to that river, even where by grant of Parliament, in consideration of the work and monies expended, the authority is empowered by Parliament to exact toll for the use of the improved navigation.
It is a fact that BW have long recognised this presumption against ownership of navigable rivers, as acknowledged in evidence before the Select Committee examining the BW Bill of 1990. (D 3 Tab 71, page 681)
In the present instance, the GJCC was specifically prohibited from exacting any toll whatsoever; the weight is therefore so much more against such presumption.
By finding of law, no canal company’s purchase of title can be assumed in the absence of deed, even where it can be proved that monies were paid out.
In the present instance, there was evident failure on the part of the GJCC to even pay fully for such title deeds as they did purchase. (D 4 Tab 118)
There is no presumption in law that a canal or river body need purchase anything more than was necessary for the purposes of their enterprise.
In the present instance, the GJCC had no real need to undertake any works at all for their purposes, because the tidal river Brent was and had been for centuries past from before legal memory, a public navigable river of immense strategic and financial importance.
Such works as were undertaken along the tidal Brent were merely to facilitate and improve access to the GJCC canal at the Gauging Lock, the first point from which they were entitled to levy toll.
That these were works and purchases voluntarily entered into by stages, is illustrated by the account of their income from the time the canal first opened [between Uxbridge and Brentford] in 1795.
Comparison between the dates of land purchases with the accounts, reveals that the GJCC was expanding its considerable profits every year, while gradually improving the navigation by purchases until 1826 – a more than 30 year period.
The GJCC was above all things, a commercial enterprise; they could never logically be presumed to have purchased that which it was not necessary for them to purchase. The Brent as a public navigable river was theirs to use in common with all the Crown subjects; they had power/duties to improve, cleanse, scour, straighten and deepen the river; no requirement to purchase that which everyone was free to use, existed.
It is noteworthy that the only bottle-neck that the GJCC struggled with initially, was the impediment of keeping Bax’s Mill tail empty, a requirement at odds with navigational efficiency. (D 4 Tab 76)
In order to resolve this at the behest of complaining bargees as demand for the canal rose in its early years, the GJCC, in 1801, bought out the miller’s lease, which by then had some 86 years to run. (D 4 Tab 78)
This parcel is marked orange on the illustrative map to indicate land rented by the GJCC. A further collection of rented land parcels surround the High Street bridge. These rented pieces are not purchases and the freehold would revert to the owners’ successor at the time the leases expired. (D 4 Tab 28)
The meticulous records of the GJCC, represented by the Book of Reference 1811, list every land transaction between 1793 and 1826, as exhibited by Stuart Mills in his Declaration. (D 4 Tab 86; D 1 Tab 13)
Every deed listed, and area taken, can be accounted for, and no single portion of the existing riverbed, whether canalised or not, was ever included.
The Statutory Declaration of Stuart Mills was intended, as explained by the Land Registry, to “fill in the gaps”. The plain fact is, there were no gaps.
The one land transaction recorded in the Book of Reference of 1811 for which no deeds have been produced, is that respecting Dr Johnson’s Town Meadow land. This is readily understandable, as no deeds would have existed.
The Johnson purchase was a transaction for copyhold land, an impossible acquisition for any corporation such as the GJCC.
At the time of drafting the 1793 Act, the GJCC had failed to consider the ramifications of differing tenures. They carelessly considered that the terms of their Act ensured full and complete title free of defect, providing only that the authorised form was entered into. This was quickly proved to be mistaken.
The effect of copyhold purchases by the GJCC operated only so far as to buy the lifetime interest of the tenant while the canal was built; at the tenant’s death, the property returned to the Lord unless and until another party [usually an heir or assign of the deceased] paid the requisite fee and was entered into the rolls.
No corporation could legally possess copyhold tenure, as this would deprive the Lord of income from renewals of the tenure for ever after. Alternative arrangements were to have someone entered into the rolls as proxy; as an alternative, the corporation might attempt an agreement for perpetual payment of rents and nominal renewals – but none of such methods later devised for coping with the problem was ever satisfactory.
It has to be noted that on the face of it, this did not matter; the GJCC did not have to own the bed and banks of its canal, a public right of navigation was conferred by Statute, so there could be no question of the canal not continuing to be operable whoever owned it, same as for navigable rivers. The company derived no income from the soil, but from tolls for use of the navigation, so there would be no affect upon their income whoever owned the soil beneath the canal.
The GJCC Act of 1793 specifically notes, for example, an agreement to construct the canal across the property of one Mary Searles, with no mention of payment. Later, the canal was driven across Grove Park with no purchase ever made of that land. (D 4 Tab 76)
In short, as I said before, there was no obligation on the canal company to purchase land for the canal where that purpose could be fulfilled without such purchase – but it was not the better part of wisdom.
The GJCC quickly realised that copyhold tenure especially, created thorny problems. Within 8 years they had returned to Parliament  for a new Act, this one including certain provisions for entering into copyhold agreements. This, of course, was not back-datable, and the effectiveness of the provision is not known.
Ordinarily, of course, for the reasons aforesaid, the fact that the GJCC had no freehold or even copyhold interest in the land once the copyholder had died, was not a problem, but there were spectacular exceptions.
At this point I must needs resurrect the spectre of Dimes, who has been credited with bringing about the early demise of the Lord Chancellor of his day [Lord Cottenham]
Having acquired the Manor of Rickmansworth, Dimes was Lord of the Manor when a certain Mr Skidmore died, leaving an infant heir. Skidmore had sold his copyhold interest in certain land to the GJCC for use for the canal. That purchase included “separated pieces” as provided for under the Act.
The GJCC promptly arranged a sale of the separated pieces to a third party, and that party was admitted into the Manor rolls as the new tenant on payment of the requisite fee.
The canal was dug across the 20 yard wide stretch that the GJCC had needed,
The GJCC had never gone through the process of surrender and admittance as had the third party to whom they had sold the separated pieces, nor, indeed, was it possible in law that they could.
It was Dimes’ inspiration once he had realised this, to take advantage of the legal situation. Sufficient time had elapsed for the provisions of the Act for compensation rights and for compulsory purchase to have lapsed. Dimes therefore went through the form of reclaiming the property and threatened ejectment of the GJCC.
As was to prove a pattern over the ensuing years, Dimes was found right in law and wrong in equity. His right to the freehold of the land was unquestioned, but the judges were not prepared to accept that he thereby had the right to [effectively] hold the country to ransom by blocking the primary commercial artery of all England.
The GJCC were granted an Injunction against Dimes, preventing him from barricading the canal, which Dimes unwisely ignored, with the inevitable consequence of a prison term.
What seems never to have crossed anyone’s mind [except perhaps for the judges granting the injunction], was that the ownership was irrelevant in the face of the granted Public Rights of Navigation – Dimes could own the soil, but it had since been rendered subject to he Public Right of Navigation which could not be interfered with.
However the imaginative Dimes knew enough law to continue causing trouble, asserting that the terms of copyhold never granted rights for a succeeding party to change the use of the land.
The Court had recognised the attendant legal problems of the copyhold tenure, and suggested a way out by either admitting Skidmore’s infant heir as an agent for the GJCC, or selling the freehold. Dimes by that time seems to have lost sight of his original fiscal objective, and refused either. It was only at the end of many years that saw off the Lord Chancellor, that Dimes eventually agreed a sale of the freehold.
Aside from the special problems entailed in having no legal copyhold tenure, sometimes problems of freehold title arose also, which were not, as Mr Stoner seems to suggest, curable simply by virtue of purchase according to the statutory form of deed.
The GJCC claim to absolute free and clear title to any land purchased according their Act’s format, regardless of the standing of the seller in relation
to that land, was tested in the Courts in the matter of Ward v Scott, 1812. There the GJCC had purchased land with defective title, then sold the surplus at auction. The courts held that the GJCC could never purchase more interest than the seller was legally entitled to, and that their Act had reference only to the Form of the transaction, without curing any defect in the title.
The inevitable conclusion is that the GJCC was never invested with more than the strictly temporal property rights purchased from Johnson; these served their purpose sufficiently to enable short cuts across the meadow to be made, the separated pieces were promptly re-sold to Johnson by pre-arrangement, and James Clitherow was no Dimes, so it never mattered to anyone that the new cut was still vested in the Lord and in no-one else.
It is to be noted that the nature of Johnson’s tenure was raised in the Geronimo case, although there were no findings made on a point that was then merely of interest. It simply remains for me to note that the successor to Johnson’s remaining copyhold did not claim the non-bridge land by reference to any copyhold in that area, which had been entirely subsumed beneath the public road until replacement of the original swing bridge.
Subsequent to the building of the new Turnover bridge, the Montgomery’s claimed the freed-up land, excluding the copyhold tip, by way of Adverse Possession. That remaining tip remained unregistered land until registered as possessory title on the basis of my former company’s occupation and possession since 1954. (D1 Tab 9 pages 151-154)
The claim by BW that lack of evidence for deeds of purchase of the riverbed must be due to the accidents of history, fails conclusively by reference to the aforementioned buy-out of the Lease on Bax’s Mill. This purchase, by William Praed in 1801 on behalf of the GJCC, ensured that no further complaints would arise by reason of the GJCC sluices downstream, and these were shortly thereafter replaced with a proper lock.
The Lease Agreement refers to an originating Agreement dated 1737 between a miller [Ralph Carter] and a consortium of riparian land owners. The riparian owners agreed to lease, for a fixed term of 150 years, all their estate and interests in the River Brent, with freedom to cleanse and scour the river, saving only that the public right of navigation between the mill and the Thames was to be in no way impaired. (D 4 Tab 77)
The whole of the river then, was at the time of the creation of the GJCC, vested in the adjacent landowners subject to the 150 year lease. At no time during the initial purchases of land for the canal or at any time thereafter, did the GJCC purchase any of that riverbed, which remained under the control of Richard Kidd [who by 1801 had bought out Richard Bax].
It was only in 1801 that the GJCC, for the reasons aforesaid, bought out the remainder of Kidd’s Lease. The inclusion of the 1737 Agreement was of nil value in any positive sense, as they already had the statutory powers to use and improve the navigation, subject to exactly the same restrictions as to maintaining the public right of navigation. (D 4 Tab 78)
That use and improvement had already been made in the most significant ways by 1794, with the company taking in expanding profits year by year. Buying out the Lease Agreement simply enabled them to build the Thames Lock without complaint, to further increase the numbers of boats getting access to the Gauging Lock, and the rental period lapsed in 1887.
Land used for towpath was likewise not necessarily purchased by the GJCC either, and it was not - except where voluntarily bought for areas not prescribed by the Act. The only length of genuine towpath described in the Act and land for which was purchased by the GJCC, was that on the south side of the river between the new swing bridge and the Thames.
From Brentford High Street to the new swing bridge, the Act described the towpath as taking a route following the ancient vehicular highway crossing the Ham Common; an uninterrupted path along the northern riverbank was impossible by reason of the Turpentine Works occupying a large section of the riverside Common.
As noted previously, the infilled causeway; peninsular tip and bridge, formed part of this same highway system dedicated to the public use for carts as well as horses. The GJCC, customers and all bargees, using the river but never entering the tollable section above the Gauging Lock, were all free to use this public facility provided by the town.
It is obvious from the Vestry Minutes and the relevant exhibited conveyance that no part of the Ham Common comprising the public cart-way was deemed necessary for the GJCC to purchase – nor, in like fashion, did they need to purchase the land for the extension to this public highway.
The Hawley Agreement is important evidence that the GJCC had never purchased any part of the riverbed as it was at the start of their works. The true owners of the riverbed had retained their title and their rights to the proceeds [if desired] of the continuing Lease. The only purchases of freehold land were those evidenced by deeds exhibited to the Stuart Mills Declaration; there can be none missing, lost or destroyed.
By way of reinforcing the evidence of Hawley’s Agreement as to riparian ownership of the river, some more of the conveyancing history previously referred to should be examined.
Following Johnson’s death, his heir Elisabeth Gould sold the Town Meadow copyhold to James Montgomery in 1814. In the indentures she guaranteed surrender to the Lord and undertook to gain Montgomery’s admittance to the rolls. The agreement included the non-highway portion of the peninsula tip, beyond the circular swing bridge foundation. (D 4 Tab 88)
It can be observed from the margin map, that the earlier indictment over Johnson’s obstruction of the southern branch of the River Brent had been fully justified, and the court assumption that the new canal would remedy the
problem was misplaced. [the canal ended up taking a different course] The court’s optimism had undoubtedly been founded on the earlier proposal for the canal to take the southerly course along the Brent [as can be seen on the deposited map], but the decision had been taken later to adopt the western branch instead.
The consequence of the infilling of the southern branch was that the bed of the branch, falling as it did wholly within the parish boundaries, became identified on plan as attaching to the adjacent Town Meadow land.
By the time Montgomery came to sell on this property to the Railway company, yet more length of the river had silted up/been infilled, and the margin map once again acknowledges this extra length of former riverbed as attaching to the property. ( D 4 Tab 89)
The Ealing Tithe Map of 1839 also displays the acknowledged moiety of the original course of the River Brent as attaching to the adjacent landholdings. It discounts, of course, the public highway that is the River Brent used by the Grand Junction Canal Company, but for that section of the River Brent as had formerly constituted the natural course [before a short cut had been driven across it during the 17/18th Century [and which is known now as Soaphouse Creek], it carefully delineates which portions belong to which adjacent property. ( D 4 Tab 92)
In more recent times, the Middlesex County Council [MCC] applied, in the early 1950’s, for registration of the moiety of the riverbed within Workhouse Dock that related to the sections of riverbank that they had acquired [whether through purchase or prescription]. The Land Registry accepted the principle as applying. ( D 4 Tab 93 pages 927-931))
Later, the MCC came to an agreement with the neighbouring tannery, and added the moiety of the riverbed alongside some of the tannery’s land to their portfolio. Again, accepted by the Land Registry. (D 4 Tab 932,933)
Every riparian landowner alongside the River Brent takes the moiety of the riverbed subject to the public rights of navigation which have never been repealed.
I submit that over 270 years’ worth of documentary evidence of the riverbed moiety vesting in the riparian property is compelling. No evidence existing of any sales or acquisitions of this land being made by the GJCC, and no necessity for purchasing that which the GJCC were free to use [in company with all the Crown subjects], the presumption of necessary purchase inevitably fails – and the suggestion of lost deeds becomes consequently hopeless.
Adverse Possession of the riverbed fails even more comprehensively than the equivalent claim for the Blue Land.
The argument is a total non-flyer for several reasons, not least of which is the fact that by reason of the Public Right of Navigation, BW can at most only share in the universal easement of the use of the river; its occupation can never be exclusive.
The Hawley Agreement in this instance also, gives the lie to any possibility of Adverse Possession, because it was not purchased by the GJCC until the navigation had been, by 1801, up and running for a profitable 7 years. It was a rental agreement only, for a fixed term of years, and as tenant the GJCC could not lawfully deny the title of their landlord.
The Agreement furthermore insisted on maintaining the public right of navigation right up to the mill [then yet to be built] – the Lease Agreement itself therefore, gave no exclusivity of occupation.
The GJCC never had beneficial occupation, even of lands purchased, below Bax’s Mill. The canalised river was, by virtue of the ratifying section in the statute, to remain as it always historically had been, a public highway free of all charges.
Further, insofar as they have recently sought to impose exclusivity through imposition of unlawful control over its use, this is a criminal offence; no period of exercise of such an obstruction to the public right can ever suffice in law to gain any prescriptive right, or ever operate to extinguish the public right.
The occupation of BW as successor to the GJCC can not only be nonexclusive, it can never be beneficial occupation, by reason of the fact that they are statutorily forbidden from levying any charges relating to use of the river/canal. Any recent abuse of their powers in outraging that statutory provision is a criminal offence, the exercise of which over however many years, can never operate so as to confer a prescriptive right.
Both of the above positions is confirmed by the Tithe Maps and Apportionments for Brentford dated 1838. The canal and river Brent is included, along with roads, paths and certain buildings and public works, for the free use of the public and so exempt from rates.
Case law establishes emphatically also, that where there was beneficial occupation, rates were payable, and the GJCC provided that the GJCC were subject to such rates. The Tithe apportionments are conclusive proof that the River Brent/Grand Union Canal below Bax’s Mill constituted a public highway from which the GJCC derived no profit whatsoever, even from lands legitimately purchased freehold, yet, over this particular section, were classified free from rates.
Insofar as BW has exhibited evidence of charging for drainage into the river, that was an interference expressly forbidden by statute; constitutes thereby a criminal offence, and cannot operate therefore, to earn any prescriptive right to such charges with the passage of time. The adjacent land owner rights to drainage from their land remain untouched by any later statute.
The most that could be claimed from such practice even if considered noncriminal, would be a prescriptive right to continue charging for such discharges, it could not operate to gain ownership of the river itself.
Insofar as BW have sought to rely on legitimate exercise of their Statutory Powers, it is settled law that such use can never act to dispossess another.
The evidence given by Stuart Mills in his Declaration sought to persuade the Land Registry that there had never been any objection or claim adverse to the claim of British Waterways to be proprietor of any part of the navigation.
The rank knowing falsity of this statement is extraordinary. As Head of Property Mr Mill could not help but be aware of the ongoing dispute between his Department and myself for the previous 2 & a half years, let alone all the other past and present disputes [including the Crown, Thames Conservators, and the Port of London Authority].
The Brentford Yacht & Boat case was not alone, and as BW’s Chief Executive later informed the Board in his Report of January 2009 (D 4 Tab 104) there has been a long history of numerous Adverse Possession claims against the Board. Some of those objections still rumble on, unresolved in anyone’s favour by the courts.
The most recent PLA objection was only resolved by purchase from the PLA of the riverbed claimed by them, closed on the eve of the Mason/DeVere hearing. The Crown Estates remain a Statutory adverse claimant to the same.
It was impossible for Mr Mills as Head of property, to be ignorant of the continuing challenge to BW’s registration of all the riverbed application as clarified in my letter to Shoosmiths of 31 October 2007. Nor, for the same reason, could he be ignorant of the Land Registry letter dated September 2008 which confirmed that the Land Registry was treating my objection as “not groundless.” This made the retention of the statement a continuing untruth; it was not remedied by amendment to the Map 3, as explained in my 2007 email.
It is sobering to realise that throughout the years that this forsworn Declaration has been challenged, neither BW’s top management and Board, nor the Land Registry officials, nor the Adjudicator, nor the High Court, have ever evinced the slightest concern over the matter.
In summary, BW has no exclusivity of occupation; has no beneficial occupation, and are subject to continuing unresolved objection to their claims. Any claim to Adverse Possession is doomed to failure.
The first relevant topics to be considered, specifically in relation to the Notices, are basically twofold; they address:
a) the issue of whether boat licences are necessary in this location, and b) the extent to which BW can control moorings.
The question of boat licences has relevance only to the Section 8 Notices, not to the “move on” Notice.
The question of boat licences has relevance also, only to localised areas such as the River Brent/Grand Union Canal, which have not only retained their PRN’s but which have also not been chosen for inclusion in the Schedule to the 1971 Act as amended by the 74 Act.
There are, however, considerable areas in this position, because the request for powers to demand registration of boats using the listed public navigable rivers and canals, restricted the requirement to the main navigable channels of those rivers. If a boat chose not to go cruising, they would be under no obligation to get certified. Then there are very large tidal rivers like the Yorkshire Ouse, where the registration regime applies only to the furtherest reaches of the river.
There is basically no response on this issue from BW; there is really no response possible. BW themselves went to Parliament for the registration powers precisely because they recognised that they had no such powers with
respect to these waters. This is established by the Annual report of 1964, when the issue was first raised. (D 3 Tab 63)
The Select Committee Minutes of Evidence for the 3 days of deliberations over the 1970 Bill makes the position abundantly clear.
The 1971 Act Part II section 5. (1) provided that “It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway [as defined in the attached Schedule of the Act] unless a certificate, in this Act referred to as a “pleasure boat certificate”, in relation to the pleasure boat is then in force or unless there is then in force in relation to it a licence issued by the Board allowing the use of all inland waterways without further payment”. This section and following sections regarding related charges was introduced because such powers, over public navigable rivers, “cannot be effected without the authority of Parliament”, as the preamble to the Act acknowledges.
The situation is frankly recognised in the DEFRA commissioned Report on Water-based Sport and Recreation with respect to the tidal element of such rivers. ( D 4 Tab 107)
If BW wished to extend their boat licensing powers to include yet more public navigable rivers, then they have no alternative but to go back to Parliament, as they did in 1974, to ask that the powers be extended to cover those extra waterways.
It appears unlikely that they will so seek Parliamentary consent, for the simple reason that they believe that they have now found a viable alternative in “Our Sal”. I submit that Ms Ash does not possess powers greater than those of the Queen of England; I submit that she is not a credible legal alternative to the voice of Parliament. (D 3 Tab 66)
It falls to be noted that BW’s Standard Canal & River Pleasure Boat Licence covers all waterways under their control, whether Canal or navigable river. It is a choice of river-based boats whether to buy the Rivers Only Boat Certificate, or the universal Licence; the Standard Licence is not a compulsory requirement for the navigable rivers, even for those listed in Schedule 1 of the 71 Act as amended by the 74 Act.
The Standard Boat Licence has its legal basis in the Byelaw provisions of 1976, as authorised by Parliament in the BW Act 1974, although discretionary Boat Licences were customarily issued for many years before that.
It is expressly stated in the BW Act 1975 that while the byelaw making powers were to be extended to permit BW to control entry by boats onto their water; refuse entry onto their water, or to make the entry onto their water subject to conditions, - those powers were inapplicable to tidal waters.
It ought to be self-evident that this authority to demand Boat Licences was intended to make the same provisions for the rest of the system, as were enabled for the navigable rivers, the powers previously claimed by BW as justifying Boat Licences being deemed based on uncertain understanding of the law, in particular Section 43(3) of the 1962 Act. (D 3 Tab 71 page 656)
The Section 43(3) powers will be examined in a section of its own later; for now it suffices that Parliament considered it necessary to grant through byelaw provisions, powers considered as being hitherto unavailable to BW.
On the facts, the power to demand Standard Canal & River Boat Licences for boats on the tidal River Brent/Grand Union Canal cannot apply. (D 3 Tab 65 pages 593 – 597; 602)
It is significant that this specific area of exclusion from licensing requirements was recognised, at least in part, by BW in previous years. The Patrol Officer Reports from the 1990’s respecting boats below the Thames Locks, explicitly notes that boats there did not require licences. (D 1 Tab 8 page 55)
The corollary to this acknowledgement is that BW have knowingly misrepresented the law, to all those boaters who never progressed above the Gauging Locks, and have evicted [under the claimed powers of Section 8 of the 1983 Act] many of such boats when they failed to acquire Boat Licences or were refused them, while knowing that this action was unlawful.
It falls to be stated that BW have acknowledged in pleadings thus far that the tidal section of the River Brent/Grand Union Canal as far as Bax’s Mill, remains a tidal watercourse.
Insofar as a discredited basis for demanding Boat Licences relied upon a misplaced interpretation of Section 43(3) of the 62 Act, this also could still not be applicable to this section of waterway, by reason of the prohibition against all charges for use of this specifically identified section of waterway.
A final point needs to be made, that denying access to a public navigable river, whether knowing that to be wrong or not, and applying Section 8 powers to remove boats unlawfully from such waters, whether knowing that to be unlawful or not, constitutes a violation of the Public Right of Navigation and is, accordingly, a criminal offence.
The fact that BW and its Legal Officers, Patrol Officers and Enforcement Staff did and do know the applicable law, serves to highlight the moral bankruptcy of the organisation. This is, I submit, a powerful reason for calling, as I do in the appropriate section, for all such offences to be laid at the door of such officers. Until they personally face the possibility of prison for such criminal abuse of boaters, they will continue to operate in such a fashion, secure in their invulnerability from prosecution under the corporate cloak.
Control of moorings
There are, quite simply, as BW publicly and candidly acknowledge, no public law provisions giving control over moorings. As stated earlier, this makes a charge of “unlawful mooring” for a licensed boat that cause no obstruction impossible to sustain.
Control of moorings is a power that once, no one ever imagined could ever be thought necessary. In times of heavy commercial operation the boats plying the canals never stood still longer than was humanly necessary for rest – the more time on the move, the more the income. Only when pleasure boating overtook freight carriage did problems start to arise.
With nationalisation, the future likelihood of some control was recognised, and Byelaw making powers for that were envisaged as being capable of meeting any such future need. The provision for such was therefore granted.
By the late 80’s boat numbers had risen to the point that congestion was experienced at so-called “honey-pot sites”. Without adequate legal frameworks of control, BW drew up laws that they thought would cover all contingencies and put these to Parliament, along with much else in what one MP called “this nasty little bill” – the British Waterways Bill 1990 (D 3 Tab 70)
The provisions as to mooring control sought by BW in the 1990 Bill were comprehensive, with draconian criminal sanctions. Parliament recognised the desirability of mooring control, but was unhappy with the implacable desire of BW to criminalise non-compliance.
The question was put to BW why they did not simply create the byelaws they were empowered to draft for approval, rather than go to the extreme length of promoting a Private Bill. No satisfactory answer was ever forthcoming.
It needs noting that the mere power to create byelaws for control of moorings does not in itself make such byelaws unnecessary. The structure of lawful control needs drafting, and approval from the Secretary of State; until that is done, the law does not exist. Mooring guidance, no matter how sensible and beneficial for all it may be, remains guidance only, without the force of law.
Only two such byelaws had and have ever been passed. The situation as it was in 1991 is made clear by Mr Ian White, BW’s Secretary and Solicitor during questioning by BW’s Counsel of the time, Mr Lockhart-Mummery, in the course of Day 5 of The Lord’s Select Committee in May 1991. (D 3 Tab 71 Pages 670 – 680)
Mr Lockhart-Mummery asks: “The Board’s existing controls are very limited are they not, and are found within the general byelaws of 1965, at page 13?” Mr White replies: “That is correct: Byelaws 28 and 29”.
The two byelaws are quoted in full, then Mr Lockhart-Mummery asks: “With the assistance only of those powers, has the Board experienced difficulties in the control of moorings?” The answer was: “Yes, we have experienced problems in the control of moorings, and those difficulties relate particularly to safety and amenity.”
The situation back in 1990 was such that [aside from the two byelaws] mooring control was not legally enforceable anywhere, notwithstanding that BW were at the time, pursuing their usual course of proceeding as though they could.
The examination then goes on to explore the need for each of the proposed mooring clauses in turn.
Mr Lockhart-Mummery starts: “I want to pass from the provision in clause 13 to the various provisions which start with clause 16. I will read the clause to remind the Committee of its contents: "No person shall moor or otherwise leave a vessel on an inland waterway so as to cause obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside the inland waterway'. What leads the Board to seek that clause? A. I believe that clause is required because many problems have been experienced over the years with regard to control of moorings, where in some instances the leaving of vessels has led to particular dangers or problems for our users in regard to access to or along the waterway system. Craft are regularly left along the navigation and hinder the free passage of craft. That is because they tend to end up mooring around bends, the approaches to locks, bridges and other structures. I believe the Board requires the ability to be able to control such unauthorised moorings and eliminate the risk to the moored craft itself and those on the canal and other craft such as tankers, coal barges, etc, which themselves could be placed at risk.” (page 672)
Mr Lockhart-Mummery then continues: “I should like you to turn to clause 17 which contains powers to give directions as to moorings: '(1) Any person in charge of a vessel who is proposing to moor or who has moored the sane on an inland waterway shall comply with any reasonable direction of an authorised officer of the Board (who shall, if so required, produce his authorisation) as to - (a) the means by which the vessel is fastened or secured; and )b) the precise location in which the vessel is moored. (2) Any person to whom a direction is given under subsection (1) above shall if necessary move the vessel in order to comply with the direction'. Subsection (3) is a procedural matter. What leads the Board to propose the powers in this clause? A. This clause would enable officers of the Board to direct people to remedy problems caused by them seeking to moor craft in the wrong place or in a badly secured manner. If we are aware of a craft that is likely to cause a problem local staff are sent to deal with the crew and ask them to move the vessel to a better location.”
After further explanations of why BW need this power, they continue: “Turning to Clause 18 . . . “No person shall moor or leave a vessel in contravention of a notice prominently displayed by the Board in or beside any inland waterway: (a) prohibiting the mooring of all vessels, or of vessels other than the vessel or vessels specified in the notice, or vessels of a kind or kinds specified in the notice, on any part of the inland waterway so specified; or (b) making requirements as to the manner in which vessels are to be moored in the part of the inland waterway so specified and (without prejudice to the generality of the foregoing) the means by which vessels are to be fastened or secured; or (c) specifying the maximum period, hours of the day or night, or days of the week, during which mooring (whether of all vessels, or of vessels of a kind or kinds specified in the notice) is permitted or prohibited as the case may be.” Explaining the background Mr White says: “The prohibitional control of moorings is required to prevent the abuse of facilities, and more importantly to reduce the danger to craft.” He then explains the debate within BW as to whether moorings should be authorised or prohibited. He says: “It is our intention to allow the majority of the system to be used for moorings, and it is felt better, in terms of aesthetic grounds and operational cost, that signing should be kept to a minimum.”
So everywhere was to be considered authorised for mooring, unless a sign indicated otherwise. (page 675)
Clause 19 was to allow BW to move vessels when that was needed to allow essential works to be carried out, and provided that: (page 677)
“. . . the Board may serve on the owner of such a vessel for such time as the Board or other authority or body may reasonably require for the completion of such works or operations.” The Clause also provided that BW would have to provide a temporary mooring for the moved vessels for the period concerned and be held liable in respect of it. The explanation of Mr White is: “This Clause is required in order to ensure that moored vessels do not prevent us or others from carrying out works or operations. As noted in the Bill, I would have to accept that temporary moorings would have to be provided, and this is usually the case; and that we would not use this power to terminate moorings, as has been suggested by some of the petitioners.”
Clause 21 did not deal with mooring practice, but with the construction of works protruding into the canal area. This Clause, considerably modified, was introduced into the Act.
Clause 22 is the one that speaks most immediately to the topic; this Clause sought to criminalise infringements of any of the preceding Clauses 16, 17, 18, 19 and 21. Additionally it sought to have all vessels infringing the Clauses -
“deemed to be a ‘relevant craft’ for the purpose of Section 8 (Removal of Vessels) of the Act of 1983.”
Mr Lockhart-Mummery emphasise this point: “My Lord, in subclause (2) there is the reference to ‘relevant craft’ and to Section 8 of the Act of 1983”.
He went on (pages 679,680) to explain fully the designed intent of Clause 22: “My Lord I was thinking that it might be helpful just to make a brief reference to section 8 of the British Waterways Act of 1983, to be found at page 94 at the Statute bundle, P3. This is the section in the 1983 Act which defines a relevant craft as meaning ‘any vessel which is sunk, stranded or abandoned in any inland waterway or in any reservoir owned or managed by the Board or which is left or moored therein without lawful authority’, and includes any part of such vessel. The substantive power is in subsection (2) – ‘The Board may remove any relevant craft after giving not less than 28 days notice to the owner of the relevant craft stating the effect of this section’. Then there are other provision at page 95, which I will not read, but they include expenses incurred by the Board in various operations, which can be recovered from the owner of the relevant craft, and the effect therefore of subclause (2) in the Filled Bill at page 12 is that a vessel moored in contravention of the new provisions is deemed to be subject to the powers of section 8.”
The only moorings provisions to survive the passage through Parliament related to control over mooring structures within designated areas. Even now, however, no such areas have ever yet been designated. (D 4 Tab 111)
It is significant that even where such control was envisaged as applying, BW were cautioned as to the desirability of refraining from interference with private mooring rights, whether those existed as a matter of customary use, or being a right attached to land. In any event, such powers over control of the structures were expressly stated as being unusable for the purpose of denying private rights of mooring. (1995 Act)
Having failed to obtain Parliament’s consent to the mooring provisions of the 1990 Bill, BW is now incorporating those identical clauses into their new Draft Byelaws for approval. (D 4 Tab 74)
These draft byelaws, Part VIII, introduce wholly new byelaws relating to control of moorings – which have never existed previously. Note the comment: - “This is a new byelaw in that a similar provision does not exist in the GCB [General Canal Byelaws] . . . Indeed section 16 (2)(c) BTC Act 1954 provides that regulation of the mooring of vessels is one of the specified purposes of canal byelaws . . .Whilst provisions of this nature may not have been considered necessary in the 1960’s . . . the very significant growth in use of the network since then . . . gives rise to the need for such a byelaw”.
This establishes two things – first, that canal byelaws are necessary to provide for lawful control of moorings if that is desired, [absent incorporation of such laws into a Parliamentary Act] and second, that until now such byelaws have not been created because the perceived necessity had never arisen.
The only exceptions to that are the two 1965 byelaws concerning a) the way boats are moored, and b) mooring to structures such as locks and inside bridge holes, which need to be kept clear for everyone’s use.
Outwith actual direct legislation, BW put forward two alternative justifications for their control of moorings. One involves a complex combination of
legislation with assumed common-law rights [as explicated in BW’s ‘End of Garden Mooring’ Informative], the other relies upon integrating acceptance of mooring provisions within the Terms & Conditions of the Boat Licence.
Boat Licence Terms & Conditions
I submit that BW can have no power to impose conditions that are ultra vires their granted powers [which, as is common ground, contain none respecting mooring]. In other words there can be no “backdoor” method of granting themselves powers that have been denied to them by Parliament.
Just as with Ipswich v Moore – where it was found that the inclusion of conditions in a mooring licence, the fulfilment of which was outside the gift of the issuing authority, was meaningless [& could not operate to grant to a 3rd party any powers of consent that were not in that 3rd party’s possession] – so, equally, the inclusion in a licence of whatever sort [whether mooring or boat licence], of conditions that are not in the issuing authority’s control, are meaningless and powerless.
As an example, it is meaningless for BW to attach conditions to the issue of a licence when those conditions are not such as lie within their power to demand. The simple fact of making such conditions cannot confer on themselves the legal power to make such conditions. Only those conditions explicitly enumerated as attachable to the licensing of boats by the Parliamentary Act of 1995 can have legal force.
Even were the Terms to be considered as not ultra vires, this attempt to legitimise mooring control inevitably fails. As I explain later, within the topic of Section 43(3) powers, the claimed contractual obligation to comply with the mooring provisions agreed to as a condition of issuing the Licence, cannot arise. Imposition of such Terms where the applicant for a Licence is given no choice, renders the contract null & void; there has been compulsion without options. Burnett v British Waterways applies, because an involuntary contract is no contract. (Burnett v BW)
BW’s Analysis of Legal Authority to Control Moorings
The Core document relevant to the case is BW’s Informative on “End of Garden” Moorings.
This analysis of the relevant law as furbished by BW for many years now, seeks to establish a Statutory basis for charging for moorings regardless of whether the moorings belong to them or not.
The argument is built entirely upon the premise that BW own the bed of the river or canal; the Informative explicitly acknowledges that no such powers exist in situations where BW own neither bed nor bank of the waterway – “Where BW is navigational authority but does not own the bed of the river, a boater needs a licence from BW to cruise the river. However, the boater does not need to pay BW a mooring fee as well because BW does not own the river
bed. As mentioned earlier common law rules of riparian ownership usually apply (Note 1). Therefore, the owners of the properties on either side of the riverbank may ask a boater to pay them a charge for mooring over their land”.
The limits to BW’s powers in such circumstances were candidly recognised in the Select Committee Minutes of Evidence considering the 1990 Bill. BW stated then that they simply had no powers at all, to control moorings in public navigable rivers.
The corollary presumption was likewise acknowledged, that ownership of such navigations was an extremely rare situation.
For areas wherein BW could lay claim to ownership of the bed of the navigation, BW felt the need to compose a justification for control of moorings on that basis – no other basis then existing.
The legal theory
The Informative, then, sets out their legal theory:-
a) The 1968 abolition of all conferred rights of navigation includes all rights to “use or keep” a boat on the waterway, and “substituted a system of permissive use”;
b) BW has statutory powers under Section 43(3) of the 62 Act to both charge for such permission and to make the consent subject to conditions;
c) The licences [permits] issued by BW for boats, authorising navigation by consent, are limited to “use” of the water, they do not [by operation of the Terms & Conditions] include the right to “keep” boats on the waterway. A separate consent is therefore required for mooring long term, even if that is alongside the moorer’s own property;
d) BW owns the bed of the canal or river, and has the common law rights of a landowner to consent to use of their land;
I propose to deal with each in turn.
Rights of Navigation under Transport Act 1968
BW state: Section 105(5) of the Transport Act 1968 ("the 1968 Act") provides that any local enactment passed with respect to (BW's owned or managed) inland waterways, so far as it "confers any public or private right of navigation over the waterway shall cease to have effect". Section 115 of the 1968 Act provides that ". ..reference to any right of navigation over a waterway or canal includes references to any right to use or keep any vessel or craft on the waterway or canal: ..." (emphasis added). These two sections effectively abolished any statutory public rights to use or keep boats on BW's owned or managed canals and substituted a system of permissive use.
At the outset, it has to be recognised that this abolition of public rights of navigation was far from universal, so that nothing in this informative can impact upon those hundreds of miles of navigable rivers which have retained their PRN’s. The whole End of Garden moorings argument consequently is inapplicable to the tidal river Brent where we are moored.
The specific reference to the definition of Section 115 is typical of BW’s approach; this was the wording quoted by Mr Johnson when replying to my first email. The intention is to establish that the abolished right of navigation embraces BOTH use of the water, AND keeping a boat on the water, i.e. that a boat needs permission just to be on the water, even if it is not using the waterway for navigation.
This perfectly accurate analysis of what is comprised within a right of navigation by the 1968 Act definition then gets used to assert the proposition that any “relevant consent” granted by BW to be on the water can, as a matter of their unilateral choice, be split into two distinct forms of permit – one for the boat to travel the waterways [“use”], one allowing the boat to remain at any one spot [“keep”] while not on the move, on further payment to BW.
The fact remains that the powers granted to BW by Parliament to demand a “relevant consent” in the form of either a) a Standard Canal & River Pleasure Boat Licence, or b) a Rivers Only Certificate, are expressly stated to constitute the required permission for all use of the corresponding waterways; there is no
artificial distinction between forms of use [I am disregarding the specialist licences for commercial or residential only use].
The 1971 Act Part II section 5. (1) provided that “It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway [as defined in the attached Schedule of the Act] unless a certificate, in this Act referred to as a “pleasure boat certificate”, in relation to the pleasure boat is then in force or unless there is then in force in relation to it a licence issued by the Board allowing the use of all inland waterways without further payment”.
The simplest and most obvious understanding of the import of this section is that for so long as a Pleasure Boat has in force in relation to it a Pleasure Boat Certificate or Canal AND Rivers Licence, it SHALL “be lawful to keep . . . or use” [that] “pleasure boat on a river waterway” [or] “all inland waterways” [respectively] “without further payment.”
It is the responsibility of any body promoting a private Parliamentary Bill to ensure that the terms of the Statute are as clear and unambiguous as possible. If, in the private Acts of 1971, 1975 and the rest, there is any ambiguity as to the extent and import of the powers granted to BW for demanding Boat Licences/Certificates, then the Court is bound to interpret those vagaries in such a fashion as to have them operate in favour of the public and against the interests of BW. My submission is that there is no ambiguity anyway.
The artificial distinction as to extent of use defined by a “relevant consent” is not explicitly [or even, on my case, implicitly] authorised by Parliament.
I submit that no Conditions can be applied to Boat Licences/Certificates that seek to substitute the whim of BW for the express will of Parliament.
The Select Committee Minutes of Evidence for the 1990 Bill show ample evidence of the care taken by Parliament as to what terms and conditions could be made lawful pre-requisites to the issue of “relevant consents”. Those conditions are clearly and explicitly worded in the BW Act 1995, and no others can be held to be lawfully demanded or applied.
In the premises, any Pleasure Boat Licence/Certificate grants [subject only to the conditions for issue laid down by the 95 Act], the lawful authority to “use or keep” that boat on the relevant waterway. No public law provisions having been made for control of moorings, that is an issue entirely outwith the question of a boat’s lawful authority to be used or kept on the water.
For clarity, it is not a question of my asserting that the Boat Licence/Certificate gives an express right to moor in any one place; it is simply the case that the “relevant consent” expressly includes the right to keep a boat on the relevant waterway – whether a boat may lawfully be kept in any particular location on the waterway will be a question for the relevant controller of such use in that particular location. Most of the time, that will not be BW, whether or not it is the legitimate owner of the land in question.
I examine the issue of Terms & Conditions more particularly in a later section.
I submit that the clear intention of Parliament is that any relevant consent issued under the terms of the relevant Parliamentary Acts, embraces the right to BOTH keep AND use the boat on the relevant waterway. Section 43(3) Powers
BW state: Section 43(3) of the Transport Act 1962 ("the 1962 Act") provides "... the [British Waterways Board and the Strategic Rail Authority] shall have power to demand, take and recover [or waive] such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit." Section 43(8) of the 1962 Act provides "The services and facilities referred to in subsection (3) of this section included, in the case of British Waterways Board, the use of any inland waterway owned or managed by them by any ship or boat".
This section is BW’s all-time favourite. It is claimed to be a universal catch-all power of the broadest possible application, enabling them to control virtually anything done on waters under their control.
Limitation shown by logical analysis
There is an inherent flaw in this view, the weakness of which is tacitly acknowledged in the way the section is most often quoted in public pronouncements.
I submit that there is an implicit proviso in Section 43(3) that it can only apply to such facilities and uses as BW can lawfully supply and control. Common sense dictates that BW could not, for example, issue a licence for use of a boat as a brothel – because that would be contrary to the law of the land at present. So the Section cannot possibly be construed as conferring a blanket power to charge for and condition any uses of the waterway that they wish.
This common sense recognition that BW cannot authorise unlawful uses must, in the context of the over-riding legislative dictat that they have no powers that have not been clearly and expressly given to them, extend to the recognition that Section 43(3) powers cannot extend to such services and facilities that they have no lawful authority to control.
Section 43(3), in other words, cannot be applied [as BW is wont to do], as in itself conferring powers that make all surrounding legislation of none effect.
It is very obvious that in 1962, when the section was drafted and passed, the section was inapplicable to any licensing system – because existing legislation had left the public right of navigation in place over the entire system. The potential was recognised that the powers could extend to mooring control, in that Byelaw powers were expressed to cover such a realm – although [aside from 2] no such have yet been passed.
All uses therefore imaginable as applicable within the section at the time of drafting, were exclusive of licensing powers or control of mooring. The uses envisaged as chargeable were whatever uses there were, over which BW had powers of consent or refusal. It was self-evidently therefore, never intended to be a ‘catch-all’ or blanket power at all; it was simply a sensible provision stating, in effect, that for all facilities and services which BW could legitimately supply, they were entitled to charge for them, and to set conditions of use.
This is especially pertinent in the context of modern claims that the Section, in and of itself, empowers the levying of charges & setting of conditions for whatever BW wishes – most pertinently of all, in that it is now claimed that this power is applicable, not merely to Statutory powers of charging, but to alleged additional powers arising from the common law rights of landowners, which were both implicitly and explicitly denied in the original Enabling Acts.
Limitation shown by Case Law
The classic case [amongst various prior historic case law], that addresses such claimed powers, is that of Stourbridge vs Wheeley, as approved in modern times by Swan Hills Development vs BWB [which I examine in more detail a little later]. This established without any shadow of doubt, that the original canal companies [and consequently BW as their successor] could claim no powers whatsoever that had not been clearly and unambiguously given to them. The case law specifically targeted the powers to charge and concluded
that the company had no powers whatsoever that were not clearly and unambiguously granted under the terms of their Enabling Acts.
The judgment in the case specifically denied the alleged right of the canal company to charge for consent to the use of its purchased property in circumstances where adjacent landowners had the right to build over the canal company’s land. Section 43(3) could not apply in the case.
If the present day argument [that a canal company could be empowered under common law rights to charge for use of their property] had then been countenanced, then the outcome would have been the reverse of what was decided. The inescapable conclusion is that the courts have always considered that common law rights had NEVER been accessible to the canal companies. BW as their successor are still bound by the same legislative criteria as interpreted by the Courts.
Any true construction of the Section must embrace the fact that it could only possibly be held to apply to such uses of the waterways that BW were legally entitled to control. To say that the phrase implies otherwise is to suggest that this phrase permits BW to charge and condition anything they please regardless of whether, for example, it was otherwise criminal for them to do so. Common sense dictates that such an interpretation could not be correct. There are stringent limits to the powers exercisable by BW, as delineated in the original enabling Acts to which BW [to their sorrow] are still subject. I will go on to explore this topic later in this section.
Limitation recognised by the 1990 Bill
The adverse affect of precedent legislation respecting public rights was a significant reason behind BW’s attempt [in the 1990 British Waterways Bill] to have abolished ALL ancient rights such as included rights of moorings and use of pleasure boats without charge. Fortunately [for the public weal], the general revulsion against removing rights of the public in such a manner held sway. The ancient rights remain in force, as later upheld by the Appeal Court in Swan Hill Developments.
The 1990 Bill sought to have a clause [Clause 27 as at 21 May 1991] included in the Bill which would abolish “. . . any statutory provision with local application enacted before 1900 however worded being a provision of an Act, the Bill for which was promoted by any predecessor of the Board as undertakers for any inland waterway, as . . . (a) authorises any persons
(other than the Board) being the owners, lessees or occupiers of any land adjoining any inland waterway - . . . (ii) to construct in or adjoining the inland waterway places for boats to turn, pass, moor or or lie; . . .or . . . (b) confers on lords of manors or other persons . . . rights to use pleasure boats without payment on, any inland waterway .” [quoted in its amended form HL SC Minutes of Evidence, Day 5, 21 May 1991, page 49]
Clause 27 was, in the event, deleted in its entirety from the ensuing 1995 Act. The only impact that the 1995 Act could now have upon the exercise of
such rights, derives from Sections 20 & 21, which permit BW [whilst mindful not to interfere with or deny private rights of mooring], to designate areas within which they could demand the right to certify any structures built within the waterway in the interests of public safety. At present the power to demand safety certification of such structures is absent, simply because BW have never seen reason to initiate the Section by designating any length of waterway for that purpose.
The consequence, of course, is that all instances of enabling legislation that provided for owners/occupiers of certain lands to enjoy certain rights outwith the consent of the canal company, remain in force. Examples would be building bridges [as in the Swan Hill instance], or, more pertinently to this case, providing their own facility for mooring boats to their land, whether “in or adjoining the inland waterway
In all such instances therefore, the public has those rights of use; BW has no right to give or withhold consent in such circumstances, and so by virtue of the finding in Swan Hill, Section 43(3) cannot bite.
Limitation illustrated by Legislative history
The principle is seen clearly when examining the succeeding development of additional legislation through the private Acts promoted by BW.
BW themselves, understood very early on that any true construction of Section 43(3) must acknowledge the fact that it could only possibly be held to apply to such uses of the waterways that BW were legally entitled to control.
Hansard records the reason given by BW in 1970 for seeking from Parliament powers to demand boat certificates and levy charges, for the use of the public navigable rivers under their control.
The reason was acknowledged, in fact, as early as 1964 in the Board’s Annual Report of 1964.
Introducing the House of Commons Debate, 19th March 1970, Mr John Wells [an IWAC member] said “. . . the Board wants to introduce a registration scheme for pleasure craft navigating on . . . rivers.” “The Board has insufficient powers to introduce such a scheme without Parliamentary approval. None of the ancient public rights of navigation existing on the Board’s free rivers was affected by nationalisation or the subsequent Section 105 of the Transport Act, 1968 . . .” “The proposed registration scheme contained in the Bill would enable the Board to raise from users of pleasure craft income which would not otherwise be available to it.”
This reveals important knowledge of the limitations to the application of Section 43(3). It shows that BW recognised in 1970 that the rivers over which it had succeeded in control retained their public rights of navigation post 1968. Further, it says that BW recognised that such rights to use waters as of right
rather than by consent, precluded them from requiring registration and exacting charges for that registration. It says that BW recognised that only an express grant of powers from Parliament could over-rule the rights of the public to freedom from regulation and charges respecting navigation on such waterways.
In sum, it shows that BW recognised in 1970 that minus Parliamentary sanction, Section 43(3) did not & could not possibly operate to permit them to charge for use by boats of the services and facilities within those particular river waterways under their control – despite what their modern interpretation of Section 43(3) might suggest.
This establishes what I have been saying, in that BW could see that Section 43(3) did not empower them to charge for use of a waterway under their control in circumstances where that use was not within their control – even though the waterway itself was.
Subsequent to an express power being granted to them under the terms of the BW Act 1971, BW could then demand registration and, again by express empowerment, levy a charge for that ‘service’.
Even then, however, they could not extrapolate from that empowerment to claim that Section 43(3) enabled them to not only charge, but also to make the use subject to any conditions [the PRN still being in force].
The Minutes of Evidence given to the HL Select Committee on the 1990 Bill records BW’s QC Mr Lockhart-Mummery explaining, re Pleasure Boat Certificates on the river navigations: [Day I, pages 46,47] “The Board must issue a pleasure boat certificate after the prescribed charge and application is delivered.” “The British Waterways Act 1971, section 6(1) provides that the Board ‘on payment to them . . .’ shall issue a certificate. My Lord, it is the word ‘shall’, the mandatory effect of that. There is no discretion left to the Board to impose conditions . . .”
So then Pre the 1968 Transport Act, BW had no power to charge for or condition boat licences anywhere on the system [because public rights of navigation obtained over all]. Post the BW Act 1971, they had the power to charge for boat licences [certificates] to use large portions of certain named public navigable rivers, but still no powers to condition that use.
Post the 1976 Byelaws, they had powers to demand and charge for Pleasure Boat Licences for all the canals and rivers, but still no powers to condition that use [even though the BW Act 1975 gave powers to create byelaws conditioning the use of the waterways by any boat, none were ever created.]
[Even had they been created, such byelaws were prohibited from application to tidal waters, which formed a significant portion of the navigable rivers listed in Schedule 1 of the 1971 Act.]
The end result was that Section 43(3) could still not empower BW to impose conditions on Licences for use of any waterways until Parliament expressly gave them that power in the BW Act 1995.
It was for reasons best known to themselves, that BW chose to promote a Private Bill instead of creating byelaws, but post the BW Act 1995, BW enjoyed powers to charge for and condition use by boats of the vast majority of their waters – but still not ALL. There remained those portions of the public navigable rivers listed in the Schedule to the Act which fell outside of the main navigational channel of the named lengths, plus any other public navigable rivers that were not named at all in that Schedule or the later addition to that Schedule [in the BW Act 1974].
There are, in other words, still portions of waterways that fall outside of the operation of Section 43(3) regarding charging for and conditioning boat licences; the rest only fell under the influence of Section 43(3) once Parliament had expressly granted, in stages over the succeeding years, the relevant powers of control over boat licensing. Until those particular controls were granted over such use of the waterways, Section 43 (3) could not operate in respect of those uses.
The inevitable result of such historical legislative analysis is then, as I stated to begin with, that Section 43 (3) was never a ‘catch-all’ or ‘blanket’ power to charge for and condition such uses of the waterways as BW saw fit - the section could only ever operate to permit such power respecting uses which, at any time, BW were empowered to control. Such uses that they were NOT empowered to control necessarily fell outside of the provisions of the Section.
It is little wonder that the learned Mr Lockhart-Mummery concluded, in begging for BW to have the power to condition use of the rivers as well as canals: [Day 1, page 48] “. . . standards have been imposed on certain classes of boats under Section 43 (3) of the 1962 Act, but there has been, as I indicated earlier, uncertainty as to the precise scope of that power and in practice one has the highly unsatisfactory state of affairs.”
I would suggest that there is no uncertainty at all as to the precise scope of that power; the scope is precisely limited to such powers of control that have been clearly given to them. Where powers to control a use have not been clearly given to them, they have no powers to charge for or condition that use. What could be simpler? BW’s use of the section has always been a perversion of true construction, turning the ’62 Act on its head and proposing that it effectively gives carte blanche to assert whatever powers they wish, when the Section itself was expressly made subject to prior and then present legislation.
Section 43(3) can only be legitimately construed as conferring on BW a power to charge for and condition such uses of its waterways as they may lawfully control. The converse of that is that it has no powers to charge for or condition uses over which it has no lawful control. The Section cannot legitimately be used as an instrument conferring lawful control. It is not a self-justifying power and remains at all times subject to any Act precluding its operation [such as, in the aforegoing examples, the existence of public rights of navigation].
The above analysis as to the extent of Section 43(3) powers – as to them being limited to only those uses of services and facilities such as BW have explicit powers to supply – receives confirmation by looking at amendments to legislation, which amendments are expressly stated to extend BW’s rights in what might seem the most trivial of points. A classic example is the “Regulatory Reform (British Waterways Board) Order 2003”.
The Transport Act 1962 Section10 (3) stated: “Subject to this Act, the British Waterways Board shall have power – (d) to abstract and sell untreated water from any inland waterway owned or managed by the Board for any purpose”.
This did not give them the power to abstract water from any other source than that mentioned in (d); it did not give them the power to purchase water; it did not give them the right to treat water before selling it [or at all]; it did not give them the power to sell any water other than that mentioned in (d), nor did it give them powers to treat and dispose of effluent.
All the above last mentioned powers were added to section (d) by the Regulatory Reform Order. It is clear confirmation that BW can claim nothing that is not clearly given to them by the 1962 Act, and that no extrapolation or inference from any section granting powers can be legitimately entertained.
Limitation expressly stated by statute
In that the 1962 Act expressly exempted the effect of Section 43 (3) from applying to any areas wherein freedom from charges was ratified under the terms of original Enabling Acts, the section cannot possibly be construed as circumventing &/or supplanting any such provisions of the Enabling Acts.
The most significant indication that BW know this all too well, is the way that the Section is invariably quoted by them. The End of Garden Moorings Informative is no exception. The way that it there quotes the Section is: Section 43(3) of the Transport Act 1962 ("the 1962 Act") provides "... the [British Waterways Board and the Strategic Rail Authority] shall have power to demand, take and recover [or waive] such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit."
Under the circumstances, as doubtless intended, this is misleading. In fact the most recent amendment of the section following from the Railways Act 2005 omits the brackets and “and the Strategic Rail Authority”, so it reads [as BW quote it] “. . . British Waterways shall have power . . .” etc.
The devil is in the dot - dot – dots preceding “British Waterways shall have power . . .” The usually omitted wording represented by the dots is: “Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection . . .”
The “last foregoing subsection” says “Paragraph (b) of the foregoing subsection shall not be read as exempting British Waterways Board from any local enactment so far as it provides for freedom from charges or otherwise prohibits the making of any charge.”
The phrase read in full then, bears out my legal analysis – the Section 43(3) powers are themselves conditional, subject to whatever prohibitions have historically been placed on BW. The powers to charge and condition uses of the waterway are subject to any previous legislation granting individuals &/or classes of people within certain areas, certain free uses of the waterway. Even without such preceding words, as I have shown, the phrase cannot be construed as other than conditional; but the introductory wording makes as plain as anyone could wish for, the fact that the powers are “Subject to” prohibitory and regulatory legislation.
In the premises then, Section 43(3) cannot possibly be lawfully applied to uses over which BW have not been expressly granted powers of control, and most certainly cannot be lawfully applied in areas wherein they have been expressly prohibited in law from charging.
Limitation by Law of Contract
There is a further aspect of Section 43(3) that bears examination [which has been referred to under Terms & Conditions], which is that the application of the Section implies a contract between the respective parties.
This aspect makes the application of the Section subject to the laws relating to fair contracts. If there is no fair contract, the contract is unenforceable; if the contract is involuntary and imposed unilaterally without choice, then the Section is unenforceable.
Regardless of the current consultative exercise wherein BW have ostensibly sought a consensus of opinion and agreement as to what Terms & Conditions of Boat Licences would be fair and reasonable for the smoother running of the waterways, those will always remain only [hopefully] sensible guidelines.
The effort is commendable, because some consensus on acceptable behaviour is desirable and necessary, but that will not make those Terms enforceable as law, and this should be made clear.
Insofar as these or whatever Terms and Conditions are attached to the application for a boat licence, signing up to which Terms and Conditions is made a compulsory element of the application, this is ultra vires. Only those conditions as are laid down by the 1995 Act as lawfully required pre-requisites for any licence can be upheld.
Insofar as Terms and Conditions are attached to the application for a boat licence, signing up to which Terms and Conditions is made a compulsory element of the application, the implied or explicit contract must fail, because the applicant is given no option to refuse; compulsion and lack of choice negate the contract.
This analysis is confirmed by the Court of Appeal in the 1973 Judgment in the matter of Burnett v British Waterways, wherein the Appeal judges laid down yet another principle of construction of Section 43(3). They held that: “British Waterways could not rely upon Section 43(3) of the Act of 1962” in circumstances where a party “had entered into no contract with the board for the use of their services and facilities” [my emphasis]
The context was one where an individual was using the facilities provided by the Board, but had had no choice in the matter.
Most of the above comments relate to the general claims made by BW for the universal application of Section 43(3), and the issue having been raised, hopefully determination that there are limits to such powers may prove of value to the more general boating public.
The tidal River Brent, however, between Bax’s Mill and the Thames, remains one of the areas within which the explicit prohibition against charges has been confirmed, so that Section 43(3) is, anyway, totally inapplicable.
Access to Common Law Rights
BW state: BW is the successor in title to the original constructors of the canals it now owns. Unlike rivers (where common law rules of riparian ownership 1 usually apply) canals are artificial structures built on land bought by the companies that built them (usually under powers of compulsory purchase). Therefore, the ownership of the bed of the canal (and towpath) is separate from that of adjoining dry land on either side. Accordingly, a boat moored in a BW canal is floating over the bed of the canal which is in BW's ownership and BW has the common law right of a landowner to give or withhold consent for such use of its land and to charge for that use (even though the boat may be adjacent to the end of a garden in other ownership). In the absence of such consent, the boat is trespassing (a BW boat licence does not give the right to moor long term).
This claim by BW underpins, as they explain, any claim to a right of control over moorings [and formerly, and perhaps even now, the right to demand a boat licence].
Common Law rights are simply not available to BW; as successors to the original canal companies, they can claim NO powers that have not been clearly given to them by Parliament.
Indeed, it is implicit in many of both ancient and modern provisions of the relevant Acts that such common law rights could not apply [implicit because
of rights specifically conferred, that need not have been explicitly conferred, were common law rights accessible].
Modern powers to pass byelaws to enable control of mooring would likewise never have been deemed necessary had common law rights to do so been accessible, the comment quoted as justifying the draft byelaw testifying to that.
BW would never have contemplated taking the mooring clauses of the 1990 Bill before Parliament, had they been confident of their existing rights to control moorings under the umbrella of common law rights – nor would Parliament have contemplated giving powers that already existed.
Common law rights such as are claimed by BW [as to rights to charge for boating use of ‘their’ property] are denied to them specifically in relation to this stretch of navigation. The prohibition against charging under any original enabling Act is retained and confirmed by all relevant later legislation.
The classic case of Stourbridge v Wheeley emphasises this specific point. The canal company were undisputed freehold owners of the land comprising their canal; their argument before the court was that effectively, as owners of the soil beneath the canal, they had the common law right of a landowner to consent to [and therefore charge for] use of their property.
The argument proffered was “. . . that if individuals have no right to navigate a particular part, the company may make their own bargain as to the terms upon which they may be permitted to do so.”
The court, however, found that regardless of their ownership, they were nonetheless to be held incapable of charging for use of their canal except in the strict terms of their Enabling Act - which allowed only for charges relating to passage through locks; if a boat did not pass through a lock, it did not need to pay anything. The common law rights of a landowner could not be relied on.
The famous maxim in that case was that all such canal companies could claim nothing that had not been clearly given to them by their Act, and as even Mr Johnson acknowledges, BW are still bound by the terms of their original Enabling Acts.
A modern example of a case where it was found that an authority/landowner could not exercise the common law right of a landowner is that of Ipswich v Moore, in which Mr Stoner represented Ipswich Council. In July 2001 at the Court of Appeal, it was found that Ipswich, despite being owners of the riverbed, had no powers to charge for moorings in that riverbed in circumstances where authority to charge for moorings - even though once statutorily vested in the Council - had been granted to another body [Ipswich Port Authority].
The same ruling would have to apply in relation to BW, so that even in the event that it was held that BW were owners of the relevant section of canal or river, still, the common law right could not apply in circumstances where -
(a) generally, no relevant powers have yet been granted to BW to control the mooring of boats and, (b) in particular circumstances, wherein the ability to charge for any boating related uses have been expressly prohibited by early statute, and rights to create moorings are granted.
This principle is acknowledged & upheld by BW’s QC when seeking powers of control over moorings within the BW Bill 1990. In the HL Select Committee Minutes of Evidence Day 5 [21 May 1991] page 19, Mr White [solicitor to the Board] informs the Chair: “All the Board’s canals and navigations are now subject to the requirements of the Dock Regulations, 1988, and as a consequence we have to monitor and approve where appropriate all berths for cargo handling, and also for the embarkation and disembarkation for trip and restaurant boats. These are even on the narrow canals. Where such activities take place on our land, we have to guarantee, amongst other things, safe access for pedestrians to the public highway, and therefore, in order to regulate such operations by others, even on our own land, we do need to have the ability to consent to such activities, such that our liabilities and interests as landowners are protected, and dock regulations complied with.”
Mr White is correctly observing that even where BW are landowners, they do not have the common law right of a landowner to consent to use of their land, and as a consequence they NEED the requested legislation to protect their interests as landowners, as well as being enabled to comply with other regulations. They did not, however, in the event, get the requested legislation.
The principle is re-iterated by Mr White on page 40 of the above Minutes of Evidence, in the context of approving “. . . third party works coming across our property . . .” Regarding the charges made by BW for such approvals, Mr White says: “. . . if such fees were to be levied, it is with regard to the engineering and operational aspects of the structure, which is akin to provisions within the Land Drainage Acts and elsewhere, and not necessarily for the right to erect it. Obviously, the land owner, being the riparian owner, would cover that aspect of it.” – The riparian owner could consent [or not] to the erection, but BW as landowner of the canal bed could not approve or disapprove “works coming across our property” [toll traverse].
The situation described is an exact parallel with that described in the subsequent Swan Hill case of a few years later, in which BW as the landowner was held by the Court of Appeal to have no powers of consent to building over the canal bed that they owned, in the case of the Grand Junction [now Grand Union] Canal.
Swan Hill Developments & ORS v British Waterways Board  EWCA Civ 1089 (25th February 1997) confirmed the Rule in Stourbridge v Wheeley,
and decided that, as the adjacent landowners had the right [under the GJCC Act 1793] to build bridges across the canal, BW had no powers to consent to or charge for that.
All charges therefore, relating to approval for works across BW’s property can only, as Mr White explained, relate to construction and maintenance conditions under the terms of their public liabilities – the charges do NOT relate to consent for the construction in the first place, as would ordinarily be the common-law right of a landowner. [This category of charge is subject to fixed rates appointed by government bodies].
It is curious that this same Mr White noted that BW DID charge for mooring over their canal beds even in EoG cases [though not invariably], while acknowledging that the Board “. . . does not . .” [have any powers to charge for moorings on the river navigation, where, as he says earlier, “In about 98% of circumstance on a river we do not own the bed or banks.”]
In the Swan Hill case, BW’s presumption of common law rights as a landowner was rebutted by the Lords of Appeal, who confirmed the finding of the court below. BW consequently cannot claim the common law right of a landowner to give or withhold consent for particular uses of their property. Without that power of consent to the use, BW’s favourite legislation [Section 43(3) of the 62 Act] cannot apply.
This decision was a realisation of BW’s worst fears, underlying their vigorous promotion of Clause 27 of the 1990 Bill, which sought a blanket abolition of all such ancient rights.
The continued existence of the whole tranche of these ancient rights [as also confirmed by the Robertson v Network Rail decision] sounds the death knell for every pretension of any claim to BW’s common law right as a landowner to consent to and charge for, uses of their property over which they have no control.
Pertinent to this topic is that one of the prime examples of ancient rights that BW complained of to Parliament, was the same GJCC Act 1793 that we are dealing with in this case. In particular, as an example, BW complained of the rights granted by that Act for all owners and occupiers of canal-side land to ply pleasure craft free of charge between locks and to construct places for boats to moor alongside their property.
Wherever, therefore, a landowner/occupier creates a mooring facility alongside the Grand Junction Canal section of the Grand Union –
a) BW does not have the common law right of a landowner to demand its consent for the occupation of the bed of the canal within its ownership, & correspondingly therefore, b) The Landowner/occupier does not need the consent of BW for the mooring, neither does he owe any payment to BW.
The 1793 Act being the same as in this case, the confirmed rule is that BW have no standing whatsoever to claim the relevant common law right of a landowner to consent to “End of Garden” moorings anywhere on the former Grand Junction Canal. Equally, of course, the rule applies to ALL areas throughout the country wherein the same or similar rights have been granted by originating statute.
The 1962 Act removed the ceilings on charging that had been encased within enabling Acts and modified by the 1947 Act; it did not grant new powers to charge that had not previously existed – the distinction is important, and was recognised in the petitions to Parliament in the 1970 Bill as above.
The relevant proposition is enunciated by Francis Bannion in “Statute Construction”, under the topic of “Legality”. He says – “Where the decisionmaker is a public corporation it lacks the comprehensive power possessed by natural persons to regulate the use of its property in any lawful way it sees fit: see e.g. R v Somerset County Council, ex p Fewings  3 All ER 20, following Calder and Hebble Navigation Co v Pilling (1845) 14 M & W 76 at 88.
A similar principle is upheld by the House of Lords decision in McCarthy & Stone (Developments) Ltd v Richmond upon Thames LBC  UKHL 4 (14 November 1991). There, it was decided that a local Authority had no powers to levy charges, where such powers had not been explicitly granted to
them [even though a natural person in such a situation would have every right to charge for the use of their time & services].
In the premises, BW can claim no access to common law rights of a landowner to consent to and charge for, uses of their property for which they have been granted no powers of control.
The End of Garden mooring argument for this right falls comprehensively on its face; by general rule of law, the common law rights argument must fail; by specific operation of originating canal enabling Acts, that failure is explicitly confirmed.
The Public Right of Navigation over the tidal River Brent/Grand Union Canal below Bax’s Mill has never been abolished, nor has the river been listed for 1971 purposes, so that Boat Licences are not here required;
Powers under Section 8(3) are inapplicable to mooring offences, even where the few such potentially applicable offences exist.
The moorings were not unlawful, nor were any time limiting designations in place. Such designations are in any event not enforceable by law.
Section 43(3) cannot apply to the section by reason of the ratified rights to freedom from all charges and the conferring of extant rights of mooring, and
even if BW owned this navigation, they could claim no common law rights respecting it in the face of the public rights. Combined with the fact that BW do not own the navigation anyway, any attempt to use the arguments of the End of Garden Mooring Informative is hopelessly misconceived.
THE INTERIM INJUNCTION Boarding Boats
The offence under the BW Act
The question as what powers BW personnel have to board boats, is clearly laid out in the British Waterways Act 1983 that conferred the powers to serve Notices of Removal under Section 8 of that Act.
7.(2)(a) An officer may at any reasonable time enter upon any vessel on any inland waterway or on any reservoir owned or managed by the Board for the purpose of inspecting the condition of the vessel so as to ascertain whether the vessel is unsafe.
7.(2)(b) An officer shall not enter upon any vessel in accordance with this subsection unless
- not less than 24 hours’ notice of such entry has been given to the master of the vessel; or
- the officer has reason to believe that the vessel may be unsafe and that an immediate inspection is required.
It should be noted from the above that the sole reason powers are given to board a boat is to ensure the safety of the boat &/or its surroundings. There are no powers granted to board boats for any other purposes whatsoever. My boats were not boarded for that legislated purpose.
Even when boarding boats for safety purposes, the officer must comply with the clear stricture that he shall not do so unless at least 24 hours notice has been given to the master of the vessel.
The only exception to this is where the officer has reason to fear that the boat’s apparent condition justifies an immediate inspection in the interests of public safety.
The Patrol Officer’s Reports at the time of serving the Notices give as his opinion that: ‘Gilgie’ was in “good condition”; ‘Kamelya’ was in “good condition”; ‘Platypus’ was in “good condition”; ‘Kalzar’ was in “good
condition”; ‘Saifti’ was in “fair condition”. [No report has been disclosed for ‘Ere-comes-trouble’, but it too was in good condition.]
The above is clear proof that the Patrol Officer had not the slightest reason for believing that an immediate inspection was required, not that this has even been suggested. It falls to be questioned just how far such officers are educated in the applicable law, when such draconian powers to turn people’s lives upside down and seize their homes and property are entrusted to them.
Service of Notices under the Act comes under PART IV:
(2) Any notice such as is referred to in subsection (1) of this section may be served—
(a) by delivering it to the person upon whom it is to be served or by leaving it at his proper address or by sending it by post to him at that address; or
if the person is a body corporate, by serving it in accordance with paragraph (a) of this subsection on the secretary or clerk of that body; or if the person is a partnership, by serving it in accordance with paragraph (a) of this subsection on a partner or a person having the control or management of the partnership business; or if in the case of a notice relating to a vessel the name and address of the person upon whom the notice is to be served cannot after reasonable inquiry be ascertained, by exhibiting it in a conspicuous position on or near the vessel;
It should be noted from the above that no necessity existed for service on the boats themselves, because names and addresses were known for most of the boats, owing to present or previous licence applications, and my stewardship of all these boats meant that the relevant information could have been had by simply picking up a phone to me. “Reasonable inquiry” was not even necessary, they knew exactly how to get hold of me at any moment they pleased in order to ask whatever questions they had.
It should further be noted that in circumstances where reasonable efforts to ascertain such details had failed, the Notices could be exhibited “in a conspicuous position near the vessel”. The gates to the premises were an obvious location to attach the notices which could not be missed by any of us accessing our boats, and there was a post box there besides.
It should finally be noted that exhibiting a Notice on the vessel never needs the vessel to be boarded.
All the above granted, none of which alternatives were followed, there was absolutely no need for haste – we had not even had any of the prior letters etc that were part of the required pre-requisite procedures. The statements offering some sort of excuse that these procedures were not possible under the circumstances are frankly lies; BW’s haste was related solely to their agreement with the developer to move us out of the picture as quickly as possible.
The evidence of the years of the Patrol Officer’s familiarity with our use of the pontoon and Blue Land, suffices to demonstrate the arbitrary nature of the action taken.
In the premises, BW clearly and knowingly violated the specific strictures of their own Act. They went on to do it again, and I had the written assurances of their solicitors that they considered it would continue to be necessary.
The offence under the Merchant Shipping Act 1995
The relevant section of the Act provides under PART IV SAFETY, provisions supplementary to Section 85: 104 Unauthorised presence on board ship. Where a United Kingdom ship or a ship registered in any other country is in a port in the United Kingdom and a person who is neither in Her Majesty’s service nor authorised by law to do so— (a) goes on board the ship without the consent of the master or of any other persons authorised to give it; or (b) remains on board the ship after being requested to leave by the master, a constable, an officer authorised by the Secretary of State or an officer of customs and excise, he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Given that the boarding of my vessels was in clear violation of the relevant British Waterways Act, the officers boarding the boats were not authorised by law to do so.
The definition of a United Kingdom ship for the purpose of the safety regulations [and for pollution regulations], are confusingly different from that for the rest of the Act. The relevant definition does, however, appear at the heads of the two sections for the avoidance of any doubt.
Section 85 - Safety on Ships begins: 1) The Secretary of State may by regulations (in this Act referred to as “safety regulations”) make such provision as he considers appropriate for all or any of the following purposes— (a) for securing the safety of United Kingdom ships and persons on them, and for protecting the health of persons on United Kingdom ships; (b) for securing the safety of other ships and persons on them while they are within United Kingdom waters and for protecting the health of persons on ships other than United Kingdom ships while they are within United Kingdom waters.
(2) In subsection (1) above “United Kingdom ship” means a ship which— (a) is registered in the United Kingdom; or (b) is not registered under the law of any country but is wholly owned by persons each of whom is— (i) a British citizen, a British Dependent Territories citizen or a British Overseas citizen, or (ii) a body corporate which is established under the law of a part of the United Kingdom and has its principal place of business in the United Kingdom.
All the boats were owned by British citizens, so they were therefore all “United Kingdom Ships” for the purposes of the Safety Regulations of the Act.
The stated purpose of the Section is given in sub-section 1 (b) as being – “for securing the safety of other ships and persons on them while they are within United Kingdom waters and for protecting the health of persons on ships other than United Kingdom ships while they are within United Kingdom waters.”
BW have stated that they do not accept that the locus could be considered as “within a United Kingdom port” within the meaning of the Act.
The Act defines “port” as including “place”, which is in the same terms as that of the predecessor Act of 1894. I refer to legal dictionaries.
The meaning of these terms was considered in the case of Humber Conservancy Board v Federated Coal & Shipping Co  1 KB 492. Scrutton LJ stated in that case: “I think that ‘place’ following ‘port’ must be interpreted as ejusdem generis with ‘port’ as a locality having some or many of the characteristics of a port, though by reason of the absence of charter or other reasons one would not speak of it as a port.”
I will refer to the earliest detailed maps of Brentford to show that this was an inland port from earliest times, being lined with named wharves on maps dating from 1635 through to the 20thC. (D1, Tab 100, pages 1003-1004).
I will refer to a book published by the Grand Union Canal Company circa 1935, promoting their services, illustrating that Brentford was a significant inland port with connections not only to all the Midlands industrial heartland, but also to many international destinations. (D1, Tab 101, pages 1005-1009).
I will refer to a random collection of websites linking references to Brentford as a place long known as a port even to the present day. (NM Statement bundle 1, Tab 102, pages 1010-1019).
The Patrol Officer’s Report of January 1999 records the presence of a boat named “Dorwen”, granted “haven”, another characteristic of “Port” recognised by BW as applying to the area above the Thames Locks. (D 1 Tab 8, page 39)
I submit that the above evidence is sufficient to establish that the locus of my boats at Ridgeways Wharf is undeniably a ‘place’ bearing most of the characteristics of a ‘port’ and thus eligible for inclusion within that definition for the purposes of the 1995 Act. I submit that taking the purpose of this section of the Act in particular, as applying to boats within UK inland waters, cements the question beyond reasonable doubt.
In the premises, I submit that the boarding of my boats was unquestionably an offence under the Act and should be held to be so. There was no genuine purpose for the actions other than deliberate offence and aggravation designed to unsettle and frighten people off. It largely succeeded.
I am aware that such actions are undertaken routinely throughout the country, with varying degrees of arrogance. It is uncertain just what level of appropriate education these enforcement officers have, although they claim an absolute right of entry onto boats by virtue of them being on “their” property.
It would be a genuine public benefit if the court made it plain that such abuses of people’s right to quiet enjoyment of their home and property will be met with the available lawful sanctions, visited upon those directly and personally responsible.
Following naturally on from the previous concerns, my Claim made it plain that without the visitation of the appropriate sanctions upon individuals committing crimes in the name of the corporation that is BW, those actions would inevitably continue. Where those actions are taken by perhaps innocent [as in ignorant] employees as the command of their superiors, then those superiors should be held responsible.
The buck stops at the top, and for so long as the Chairman of the Board and his Chief Executive are content to continue with the dismissive attitude shown hitherto, despite being personally apprised of the situation, then no effective direction will be sent down the chain of command to disallow such abuses of their clients.
I produced for the Injunction hearing, the evidence that BW were signatories to the Code of Corporate Governance. That needs to be more than a lip-service badge-holding, it needs to be demonstrated as the moral and legal commitment it signs up to be.
The provisions of the Fraud Act already cited, make plain the personal accountability of Directors and involved management for the crimes of which they are aware.
The history of court dealings with crimes committed by BW is sadly demonstrative of entirely uneven judgments, that treat sub-contractor firms and their individual Directors according to the code of Corporate Responsibility, yet make no mention whatsoever of personal accountability of the BW officers, even when it has been evident that the contributory negligence has been widespread and gross in nature. This is a situation that should be redressed as a matter of urgency while BW is sliding into the realm of even less accountability and public scrutiny.
In no criminal case in which BW has been held guilty and fined, has any individual officer ever been held personally responsible. (D 4 Tab 103) The message sent out by the courts with such judgments is most unfortunate.
There is another, vitally important aspect of personal accountability. By agreement f the Board some years ago, a fund was set aside for payment of any fines incurred by BW employees in the course of their employment. The result is that no employee, even if fined for an offence, would suffer out of his own pocket. That is a subversion of justice and an evasion of accountability.
The effect is that for offences against the public, the public must pay. In the last case where BW were found prime guilty party over the death of a subcontractor, the Board were fined around £100,000; the sub-contracting firm was fined around £50,000 and the Director of the sub-contracting firm was fines around £25,000. Why was no Director of BW fined? There was no evenhanded administration of justice.
But as the judge recognised, BW’s fine would be paid from the public purse. If a Director [&/or all of the many in chain of command who had been found guilty of gross negligence] were not only found to be as personally accountable as the sub-contractor’s Director, then justice would still not have been served because the public would still have been paying for the crimes of BW.
Only when the courts face up to the necessity of not only fining the individuals responsible under the Code of Corporate Governance that BW are signatories to, but also insisting that those fines are paid from their personal pockets, will justice be served and some small hope exist, that this will serve as a deterrent against future crimes. Until individuals are held to be personally accountable in this way, offences will never cease; there will simply be no sanction to fear while acting under the cloak of corporate invulnerability.
HUMAN RIGHTS ABUSE
The powers exercised by BW in respect of boat owners/dwellers are extreme. A boat represents a considerable financial investment for anyone, and the power to deprive people of their property is one that should be exercised, even when lawfully enabled to do so, with correspondingly extreme discretion and punctiliousness in procedure.
Where the boat is someone’s home, the burden of responsibility is so much the greater, as BW give lip-service to in their publications on the topic.
The reality “behind the scenes”, is that they are all too keen to flex their muscles whenever in a position to do so, as evidenced by the email concerning one of my boats once I had removed it from my care – the attitude of BW then was “If I had the resources now, I would Section 8 and snatch it” !!
Relevant Rights under the 1998 Act are specifically Articles 6, 8, and 14; Protocol 1 Article 1; Protocol 2 Article 1 and Protocol 3 Article 1 of the European Convention on Human Rights.
The case law that BW rely upon to justify rendering people homeless bites ONLY where correct procedure followed – which is entirely inapplicable in this case. Then again, acts of fraud as with Kamelya relied on abuse of position and lies entirely outside of any procedural protocol. IF the notices were invalid/illegal anyway, of course, then everything about the case is abusive of human rights whether involving liveaboards or simply chattels.
Leaving aside the ultimate legality of the Notices, BW ignored correct procedure and initial correspondence or contact in their conduct of the affair. Absence of a current boat licence was the sole potential justification for serving a Section 8(2) Notice.
That we were amenable to complying with a request to obtain a licence, as ordinarily precedes any start of a Section 8 process, is obvious from the fact that most of the boats were so licensed [regardless of legal necessity], just so soon as the necessary works had been undertaken to obtain a Boat Safety Certificate.
Refraining from giving us any opportunity to put right the situation, supposing BW genuinely felt themselves to be in the right, was a gross violation of due process.
Having been alerted to a legal situation that he had to know was unassailable, Mr Johnson’s refusal to countenance withdrawal of the Notices was necessarily reliant on an assumption that we would bow to his supposedly superior knowledge and move off onto the dangers of the tideway, somewhere, while ill-equipped to cope with that.
It is the fact that I have every respect for the scope of Mr Johnson’s knowledge that underlies my accusation that he knowingly abused his position in attempting to steam-roller us off the system and render us homeless.
Under the circumstances, I believe that Mr Johnson and his legal and enforcement teams pursued this attempt in the full knowledge that they had no Statutory powers to do so and were in violation of the human rights of all concerned to their homes, property and quality of life.
It was not enough for BW to let the matter lie as an ongoing litigation; they interfered with the rights to property of others in the course of their fraudulent theft of land with their Brent application. It is a matter of documented evidence, exhibited previously, that parts of the land to which they have gained title belong to the Council, and that other parts not only do not belong to them, but don’t belong to them because had actually sold it already some years ago! They relied on timidity and risk of financial exposure to intimidate people and small businesses into lying down under this abuse.
BW went further in harassment during the course of the last four and a half years. I refer in the first instance to the persuasion by the local moorings manager that one of our boaters should leave Kamelya because BW could seize it at any time, whether she was present or not, and whether all her goods were aboard or not.
This is one of clearest examples I could think of, of an abusive use of position, wherein any ordinary person would feel able to rely on the information provided by a BW employee. I suggest that this also was a fraud, with two victims – both the landlord of the boat and the tenant. It was responsible for much heartache and anxiety for both women concerned, with one being falsely put in fear of losing her home and the other left facing bankruptcy as a result.
There is also the matter of BW’s pursuit of me for illegal charges for the alleged offence of overstaying, of a boat I had assisted with the purchase of about a year before.
The evidence of the unwarranted pursuit of this money from me, when they had been told and then proven that I was not the party to pursue, is in my exhibits. It is inconceivable that they would have taken anyone else to court under the same circumstances, and yet they withdrew the claim with only weeks to spare only once they realised that the extortionate and unlawful charges had been foolishly paid by the boat’s owner many months previously anyway.
I regard the boarding of my boats also, as clear harassment in violation of our human rights to peaceful enjoyment of our homes. It is, as I explained in the Interim Injunction claim, a situation difficult for a ‘land-lubber’ to appreciate, but finding a stranger on your boat is akin to a home owner finding such a person in your living room.
Boat dwellers have the fewest legal rights of any class of people in the United Kingdom with respect to the security of tenure of their homes; for the few rights they have to be violated so dismissively speaks volumes of the insensitivity of the current generation of BW enforcement and legal teams.
It is likewise abusive to have their solicitor ring up and claim a right to tear down my property in circumstances where the alleged right to do so derives solely from the solicitor’s unilaterally arrived at theory of possession in obvious rebuttal of the result from the Geronimo trial. It is accepted that
clarification can be negotiated, it is not accepted that verbal threats against property in anticipation of the results of that negotiation are appropriate.
These all are instances of sustained sniping at our peace of mind with the inevitable effect that it has been largely successful in getting rid of all but one of the boats.
I note that none of this behaviour is dependant, for a finding of abuse, upon the core argument. That there was never any colour of justification for the threat to our homes in the first place, makes BW’s conduct all the more reprehensible, and the appropriate censure should be visited on them.
In a situation where BW are being primed for entry into the charitable sector, with less public scrutiny; perhaps no access to Freedom of Information, and the loss even of the minimal government oversight exercised to date, the probity and character of the upper management of the new charity needs to be of the highest moral calibre.
The court should also realise that within the Public Bodies Bill, BW have obtained an amendment preserving, alone amongst all the other public bodies and against the explicit warning of the Lord’s Select Committee Report - the powers to create secondary legislation and to exercise powers tending to deprive people of their liberties
In circumstances where their present powers are abused so comprehensively, and in light of their historic drive to promote legislation that Parliament has found overbearing and offensive, possession of this continuing power is alarming. I submit that the only hope that boaters and the general public will have for a tolerable existence going into the future, will be a clear signal from the court that such abuses will not be tolerated, and that the individuals within the organisation who are responsible for such conduct are made to answer for it on their own two feet.
It falls to be noted that some current BW legislation is in fact already in itself, repugnant to the Human Rights Act 1998. I do not believe, for example, that Section 13 of the 1971 Act could possibly be considered commensurate with the appropriate protocols, and I submit that it should be subjected to a Declaration of Incompatibility.
It seems likely that Byelaw 30 of the 1965 Byelaws will be made redundant if the new Draft Byelaws are approved; if not, then that too should be subjected to a Declaration of Incompatibility.
There are a number of discrete issues identified in the Order of Master Bragge that fall to be commented on to some extent. Some of these arise in connection with the primary issues, some are consequential to primary issues and some query the standing of parties respecting certain claims.
One of the points made by BW following the findings in the Geronimo judgment respecting the ‘riparian rights’ was that neither I nor Brentford Yacht & Boat Co Ltd, nor Brentford Marine Services, had such occupation and possession of ”qualifying property” [to use the judge’s description] as could avail any of us to a right of enjoyment of those rights.
In the first place, however confused the judge was over what rights were being discussed, he nonetheless understood, and explained clearly, that the rights described in Section 43 of the 1793 Act applied impersonally; that “the sole qualification to claim the benefit being ownership or occupation of qualifying property”. (D 2 Tab 30 page 416)
As to incorporating his findings into his Order, while he acknowledged that his judgment found both public rights of navigation and riparian rights to have survived past the Transport Act 1968, he claimed that neither finding assisted me [in his opinion], so was unnecessary to declare them, although he said: “If the question had been something like: whether the rights, that is to say the right, if any, created by the Act and/or the public right of navigation and/or the riparian rights, concerning the waterway, as described or otherwise affected by the Act, remain in force and unaffected by the provisions of the Transport Act 1968. That could have been answered in that way. So the answer would have been: public right not affected, private right repealed, riparian rights not affected” . . . “and it may be that that is something you can
agree with Mr Stoner, I do not know, he may not want to agree that but that is the result of my judgment . . .”
Needless to say, Mr Stoner remained silent on the point, and we ended up in the Appeal Court with the inconclusive result that the matter was adjourned to this trial.
For the present purpose however, the immediate question is whether any of us, corporate or individual, have such interest in the “qualifying property” as entitles us to the benefit of the rights.
Personal entitlement as occupier, proprietor and freeholder of ‘qualifying property’.
. 576. I have personally been an occupier of Ridgeways Wharf since 1990 and have been registered as such with Hounslow Council since 1999. As a continuous registered occupier of qualifying land since that time to the present day, I am entitled in my own right to the exemption from all boating relating charges protected under the various relevant Acts.
The court needs to recognise that I remain, to date, the current registered proprietor of the “Blue Land”; a dispute still exists between BW and I as to the extent of the land to which the Geronimo Judgment gives BW title [as the
Statement of Nigel Johnson identifies]. Both I and others remain occupiers of the qualifying land, and so benefit from the freedom from charges
The court needs also to recognise that the Geronimo proceedings were not an action in trespass by either BW or Geronimo, and it was explicitly stated in pleadings that no action was being contemplated by either of those parties for removal of vessels from the land.
The court should also take notice in this respect that, contrary to BW’s wishes, the Geronimo Judgment did NOT declare that I and others had no proprietary interest in the “Blue Land”. The judge refused three times over, in the course of handing down judgment, to alter the wording of his Order to suggest any such thing. He explicitly gave as his understanding that proprietary interest vested from locking of the gates.
It is also pertinent to note that I have applied for rectification of the Register with respect to the freehold of the riverbed over which all the boats moored to the pontoon floated. I have done so as someone with better entitlement to the ownership than BW, and will transfer ownership, once obtained, to Geronimo as per the Tomlin Order in that case.
BYB entitlement as occupier and as freeholder of ‘qualifying land’.
BW had knowledge of the BYB claim to Ridgeways as separate from the bridge land prior to taking their action. BW was in constant contact as events
unfolded with Geronimo, as evidenced by the emails between them. Geronimo issued a press release on the morning of the illegal eviction, mentioning our claim to ownership of the Dock. This was published in the local paper and duplicated on the TW8 Forum – which was being closely followed by the parties, as shown by the content of the shared emails.
Once BW had officially joined forces with Geronimo in litigation over land ownership, sharing the same solicitors, they would have been privy also to BYB’s claim to “the green slivers” [approx 70’ of wharf within Workhouse Dock.] This claim had been lodged on 5th December 2006 – around 6 months prior to service of the Section 8’s. Title was eventually granted to BYB by the Land Registry, so that it is impossible for BW to claim that BYB was not, at the time of servicing the Section 8’s, a freehold owner of ‘qualifying property’, such that the company had rights to the use of boats on this section free of all rates, charges, tolls whatsoever. The title is unassailable proof that BYB and its licensees were entitled to enjoyment of the prohibition against charges as ratified by the 1793 Act and all subsequent legislation up to 2005. This inevitably impacts upon the powers relied upon by BW as to licences and moorings insofar as these depend upon Section 43(3) of the 1962 Transport Act – which is the very foundation of all their argued position on such powers.
BYB was in seamless occupation of “The Nib” before and after the date of the illegal eviction from the remainder of the property and was, moreover, still a tenant holding over under the terms of the 1954 Lease as regards the
Ridgeways Land, with a termination notice not set to expire until mid – October of 2007.
BMS entitlement as occupier and as freeholder of ‘qualifying Land’.
It was made clear throughout proceedings, that the Section 43 rights adhere, not only to strictly ‘riparian’ property, but to property “nearby” the River Brent/Grand Union Canal, with evidence adduced showing that historic rights of access to and use of the river adhered to property as far distant as the High Street.
The Dowding Judgment in the Geronimo case and his statements at handing down make clear that there was to be no denial of the possessory rights of myself and BMS to occupation of the ‘Blue Land”.
BMS is, besides, a freeholder of ‘qualifying land’ in Bradshaw’s Yard, with rights of access to the river’s edge. An application for first registration will be shortly be filed with the Land Registry in Swansea.
Joint occupation of Individual & Business
BW have queried how both I as an individual and Brentford Marine Services as a business, could claim to have joint occupation of the same land.
The judge’s comments when handing down the Geronimo judgment should be referred to: (D 1 Tab 29 page 387) - “it might save time if I were to just indicate why it was that provisionally I expressed paragraph 107 in the way I did . . . the issues in the trial did not seem to me to include any real exploration of the question to which the defendant, or indeed Mr Moore or another company might be in possession of the blue land after 2006.”
The case of Wheat v Lacon  1 All ER 582 is a decision by the House of Lords concerning the definition of “occupier” for the purposes of the Occupiers’ Liability Act 1957. It concerned a business and their manager.
The relevant finding was: “Where the owner did not let by demise, but merely licensed the property [i.e. allowed another person to live on it], he will be considered occupier of the entire space because he would retain the right and the duty to do repairs. In both cases he will be occupier jointly with the tenant.”
Riparian Rights along ‘New Cuts’
It is evident from the Bragge List of Issues that BW will seek to argue that ordinary ‘Riparian Rights’ could only persist if they existed at the time of the Act; i.e. they will argue that if a section of bank was created following the act, by way of carving a new cut, then that bank could not enjoy such riparian rights as would ordinarily apply, because they would not have existed as time of the act. [he also applied the same reasoning to PRN, i.e. they could not
apply to new cuts, because the act only protected what existed and they did not exist where only fields had been before.
This asks the court to pronounce upon the meaning of an ambiguous wording in such a manner as to benefit the promoter against the public. Additionally, the wording of the Act referred to ancient rights of use extending to both river AND canal, so the intention was obviously to make newly riparian property subject to the same advantages as the old.
BW have argued previously that any historical rights are incompatible with modern day legislation, so have therefore, regardless of their status as Statute protected, been implicitly repealed.
As I have argued above, with specific reference to the case of Robertson v Network Rail, implied repeal cannot apply to private acts. The intention of Parliament in granting such powers as BW regards as incompatible, must not be taken as incompatible for so long as it is possible to construe the legislation in such a way as to confirm the previously ratified rights.
That such ancient rights have never been abolished, is established with quite sufficient emphasis, from Parliament’s express denial of such abolition of ancient rights as was requested in Clause 27 of the 1990 Bill.
The fact was confirmed only two years after publication of the 1995 Act in the Court of Appeal in the case of Swan Hill v BWB.
Insofar as the later acts relied upon to repeal by implication, are themselves private acts, then the rule is that those later acts themselves cannot be so construed as against the interests of the public – they must be construed, wherever [and if] ambiguity exists, against the promoters of that private act i.e. -. as Nigel Johnson acknowledges – against BW.
The later legislation never, in any event, offers the opportunity to construe them as antithetical to the original Enabling Act. Contrariwise, the powers granted to BW under the relevant public Acts [notably the oft-misquoted Section 43(3)] are expressly stated to be “subject to” that previous legislation. Those words, notably, are consistently and conspicuously omitted every time BW quotes the section, when advancing the Statutory basis of their powers
Relevant consent for pontoon moorings.
Insofar as BW consented to our use of the pontoon for moorings over an eleven year period, it is a breach of implied contract to turn around without notice and rescind any implied and practised consent to such use.
BW not being owners of the pontoon or land to which it was attached, they quite simply have no standing to make accusations as to whether we had a third party’s consent. It is frankly none of their business.
However BW have indicated that they will seek to argue that as the pontoon was attached to the “Nib” [as it was known in the Geronimo judgment], and that land is in the registered ownership of Geronimo, then we could not have had their consent to moor there.
At the time of the notices, BYB had a legitimate claim for ownership of “the Nib”. Ceding of ownership was only by mutual agreement, subsequent to service of the notices.
Notwithstanding disputed ownership at the time of the notices, there was tacit acceptance of the boats being moored at their location on the pontoon and adjacent land – not only had the boats been moored to the pontoon and adjacent land by Geronimo’s agents on the day of the illegal eviction [4 weeks prior to service of the notices], but no action had been taken by either BW or Geronimo at the time of the notices to evict the boats from their moorings [this was expressly noted by the lawyers for both BW & Geronimo in the Reply to Defence].
The joint action taken out by BW and Geronimo was for a declaration of title only; it was not an action for possession [the relevant comment acknowledged that such an action would probably be taken following success as to title, but that it formed no part of the lodged case.]
By virtue of the compromise reached with Geronimo subsequent to service of the notices, it was agreed to vacate the pontoon moorings space at a time to
suit me, subject to a time limit of some months, all of that period being a year beyond the date of the Notices, mooring of the boats having therefore been consented to by Geronimo for all the time prior to their voluntary removal.
The voluntary removal of the boats from that waterspace did not operate to vacate our legitimate claim for title to the riverbed below that waterspace. It is a part of the relevant agreement that any of us are free to seek registration of that land within the next 21 years, and I have applied to the Land Registry for rectification of the Register accordingly.
So far as pontoon and boat moorings alongside and adjacent to “the Nib” are concerned, the agreement to vacate the area claimable as our own is clearly restricted to that portion immediately east of “the Nib” as delineated yellow in the plan attached to the Consent Order. There is no demand by Geronimo to remove either boats or pontoon from the area west of the yellow waterspace.
All remaining boats are moored - at the eastern end, to the moorings rings attached to the pilings of “the Nib”; at the western end, to the mooring stake welded to the pilings of the land that was indisputably excluded from the “nonbridge land” by Order of Nicholas Dowding QC.
Ridgeways and its tenant BYB were in recognised occupation and possession of “the Nib” and the dock since 1954 onwards as attested to by Statutory
Declaration of Fernandes in 1989. It is especially notable that registration of the riverside portion of “the Nib” was based solely upon this fact.
Further to BYB’s legitimate claim to the riverside portion of the nib as land not included in the 1954 Ridgeways Lease, BYB as successor to Ridgeways was a protected tenant of the adjacent demised premises, in possession of a Landlord & Tenant notice terminating that tenancy only in October 2007 – four months beyond the date of service of the Notices.
PRN’s and Mooring
The topic of PRN’s vis-à-vis mooring keeps getting brought up to make some point too obscure for me. I hope that the following comments assist the court with whatever point BW seeks to make from the topic.
BW referred to the preliminary hearing in this case on this topic, in the context of another case expelling a boater from ‘their’ waters in BW v Davies in the Bristol County Court earlier this year.
One of the very few items of fact that Martin Mann QC successfully comprehended was that [insofar as the case dealt with moorings], it involved – not moorings in the riverbed but – mooring to the riverbank.
Mr Stoner submitted to the court that we were both agreed that a PRN did not include a right to moor other than temporarily; the difference between us being, he identified, a question of how long a ‘temporary’ period could be considered reasonable.
It is only in the context of riverbank moorings that the issue of PRN’s vis-à-vis mooring rights has any relevance to this case.
Mr Stoner’s submission was that 14 days should be considered a reasonable maximum period; my submission [discoverable only in the pleadings rather than in Mr Stoner’s submission on issues] was that no time at all could be considered reasonable, that a PRN gave no entitlement to moor to private riparian property even momentarily.
The judge, in the event, gave no consideration to our differing positions at all, he simply reiterated that with which we were both in agreement.
I maintain that I was correct in saying that a PRN gives no rights of mooring to riparian river banks at all, and that Mr Stoner was incorrect insofar as [if that is what he was doing] he maintained that a PRN could be reasonably interpreted as conferring a right to moor for up to 14 days in such a situation.
Aside from point-scoring however, I have never understood the relevance of the topic to our dispute, nor its application to Continuous Cruisers.
Houseboats or Pleasure Boats
BW introduced the subject of Houseboats on the first day of the preliminary issues trial as a supplementary argument. It is one of the most challenging legal gymnastics indulged in by BW, that when people are known to live aboard a boat they wish to be rid of, they simultaneously serve both Section 8 AND Section 13 [71 Act] Notices.
While it is understood why BW would wish to try covering all their bases, this reduces matters to absurdity. It is impossible to be BOTH a Pleasure Boat and a Houseboat simultaneously, so it is impossible to simultaneously serve notices on the same boat, alleging offences that can apply only to one or the other. Legal action needs certainty as to the accusation; a scatter-gun approach is amateur and indicative of faulty and unsure premises.
Houseboat legislation arises solely from the 1971 British Waterways Act.
By definition of the 1971 Act, a houseboat is “. . . any boat or barge or any vessel or structure or any part, remains or wreckage thereof whether or not the same shall be used or intended to be used for human habitation . . .” By that definition any floating piece of rubbish never intended for living on can be classified as a houseboat. Consequently, anything can be, and naturally our boats therefore also could be, so classified.
If, therefore, Section 13 of the Act was applicable as broadly as BW wish, the meaning would be that every vessel in any inland waterway is committing an offence – because Section 13 (1) says: “It shall not be lawful to moor . . . any houseboat in any inland waterway . . . unless a . . . houseboat certificate in relation to it is then in force . . .” So every boat travelling the system as a continuous cruiser, would, according to that construction, be unlawfully moored every single day. Every boat with a home mooring whether travelling or not, would be unlawfully moored – even if moored to BW approved moorings. The effect of a simple face-value construction is to descend into maze of contradictions, whereby every boat without a houseboat certificate is at all times automatically unlawful and subject to seizure and destruction at BW’s whim, regardless that the boats hold legitimate Pleasure Boat Licences.
The only possible way in which this clause could be construed in a sensible manner, would be in such a way as made it compatible with the later 1995 Act. That Act provides, inter alia, for Pleasure Boat Licences to be granted to boats without a home mooring, but which are being lived on and cruised constantly [so long as they do not moor in any place longer than two weeks at a time]. The earlier Act must not be construed in such a fashion as to render this later legislation invalid or inapplicable – which it would be, if Section 13 could be applied as though the licence under the 1995 Act could be deemed invalid, simply because somebody lived aboard [not that such use enters the relevant definition anyway].
The 1971 Act must also be construed in a manner that makes it compatible with the provisions for licensing of Pleasure Boats that hold their Licence on the basis of having a declared Home Mooring. BW acknowledge the existence of some thousands of such boats which are being used as homes, whether on specifically designated residential moorings or on some other moorings without objection from the local planning authority. Such use is now declared by BW to be, in effect, none of their business [except where, by reason of operating the mooring, they are open to action from the local authority.]
The only sensible way to interpret/apply Section 13 of the Act in my submission, would be to consider it applicable only to those houseboats that have been registered as such, but which have failed to renew their certificate.
It should perhaps also be clarified, in order that the section be not considered repugnant to the later legislation, that the mooring referred to in Section 13 applies ONLY to the mooring in respect of which the Houseboat Certification was granted. In that situation [and there are less than 100 throughout the country] if the Houseboat had paid its mooring permit but had somehow failed to pay for the certificate, then regardless of the legitimate mooring permit, it would be unlawfully moored.
The above suggestion would seem to be given support by the debates over the subject during the passage of the 1990 Bill, wherein the one fixture identified appeared to be that “a houseboat was anything not a pleasure boat”. All boats
that have been registered at any time as a pleasure boat could never therefore be classified for the purposes of the 1971 Act as a Houseboat.
It should be noted also that current BW guidance highlights the impossibility of having both forms of licence – you are one or the other; either a Pleasure Boat or a House Boat. In my submission therefore, once a pleasure boat always a pleasure boat – regardless of use – unless and until a successful application has been made to obtain the alternative houseboat certificate.
It is important to note in this regard that the question of the boat being a “live-aboard” is the one identifying factor removed deliberately from the 1971 definition. Whether a “House Boat” is being lived on or not is considered by the Act to be irrelevant to its status. That should apply uniformly, so that that excluded defining factor should not be applied to a Pleasure Boat in order to alter its status.
A registered houseboat, if mobile and undertaking a journey, is, while undertaking that journey, deemed by specific provision in the Act, to be a pleasure boat for the duration of its journey. There is no such provision in reverse [a registered pleasure boat can never be deemed to be a houseboat by reason of: a) being lived on, or b) being stationary for any length of time.]
On the face of it, the former legislation is utterly at odds with the 1995 Act, so if it proved impossible to accept the above formula as construing Section 13 in an appropriate compatible manner, the only alternative would be to find that there has been an implicit repeal of that former legislation.
It is further obvious that Section 13 is, in any event, utterly incompatible with the Human Rights Act 1998, and puts houseboat dwellers in a parlous, unprotected position such as is shared by no other category of mobile home owner. I submit that the court should make a Declaration to that effect.
Licence Terms & Conditions
The defining of a vessel as houseboat or pleasure boat is as set out in the relevant terms and conditions of the certificates/licences then in force.
Up until 1 February 2011 the relevant definition was - “Houseboat” means a boat which is not used for navigation and is kept on a British Waterways long term mooring with planning consent for residential use”
All of the relevant boats were used for navigation from time to time; none of them were kept on a British Waterways long term mooring, whether with or without planning consent for residential use – and no such moorings exist downstream of the Weydock moorings on the Ham.
Even by present definition, “Houseboat means a boat . . .” with relevant “. . . planning permission for the site where it is moored.” As the new drafted Licence terms state in C10 “If a boat is a houseboat (see General Licence Conditions – Definitions 1.4) you may purchase a Houseboat Certificate. These are only issued for boats covered by a British Waterways long term mooring permit . . .”
It follows that as all the relevant Section 8’d boats are precluded from obtaining a houseboat certificate, and as they are not on a river waterway as defined by the British Waterways Act 1971 as amended, they can only be eligible for a Standard Canal & River Boat Licence. It is impossible to impose the requirements of a houseboat certificate on boats which do not and could not comply with the conditions for such.
The essential definition as debated for years during passage of the 1990 Bill, was “a houseboat is anything not a pleasure boat”; all the boats were registered pleasure boats.
It follows that as all the relevant Section 8’d boats are precluded from obtaining a houseboat certificate, and as they are not on a river waterway as defined by the British Waterways Act 1971 as amended, they can only be eligible for a Standard Canal & River Boat Licence. It is impossible to impose the requirements of a houseboat certificate on boats which do not and could not comply with the conditions for such.
The defining characteristics of a “Houseboat” in the 1971 Act explicitly exclude use for a dwelling whether in fact, by design, or by intention of use.
The case is concerned solely with the notices served on the boats, alleging the unlawfulness of those notices; the question of whether alternative notices might have been alternatively or additionally served, does not arise for determination in the present case. The issue is a complete red-herring.
It was BW’s determination that the vessels were subject to Section 8(2) notices under the 1983 Act and NOT subject to Section 13 notices under the 1971 Act.
It is invariably the case that BW, when dealing with live-aboards, serve BOTH S8’s and S13’s simultaneously. This is a legal absurdity since the S13’s could not possibly apply in circumstances where the afflicted vessels were registered pleasure boats, and the issue of Section 8(2) Notices would, in the circumstance of the vessels being genuine certificated houseboats, be redundant - but it emphasises that BW had not served the notices to us on the basis that they were missing houseboat certificates.
By operation of the 1995 Act there is no offence in not having a Houseboat Certificate.
In any event, in circumstances wherein BW have no powers to dictate whether a vessel may enter upon a stretch of tidal water, and may impose no terms or conditions upon a vessel’s use of that water, the entire question and challenge based upon whether the boats might be classified as houseboats under the 1971 Act, is irrelevant and misconceived because entirely inapplicable.
The case began with the unlawful service of Section 8(2) Notices on my boats demanding their removal from the waterways altogether.
The boats are on a public navigable tidal river that is not amongst those listed in Schedule 1 of the 1971 Act as amended in 1974.
BW have accordingly no power to demand any licence for boats to use this water.
Section 8(2) of the 1983 Act applies only to unlicensed boats.
In the premises, BW have no power to serve Section 8(2) Notices on any boat using this stretch of waterway below Bax’s Mill and the Gauging Locks.
In the premises, BW are guilty of violating the Human Rights Act of 1998 in both seeking - and in large measure succeeding - in rendering us homeless, depriving us of income and property, and depriving us of peaceful enjoyment, through the medium of this unlawful attack.
BW commit a criminal offence in boarding boats without consent in circumstances where no imminent safety issues are evident.
Officers personally responsible for criminal acts in the course of their employment must be held personally accountable for those acts.
AND I ASK THE COURT TO DECLARE THAT –
1. The River Brent/Grand Union Canal below Bax’s Mill and the Gauging Lock remains subject to Public Rights of Navigation.
2. BW has no rights to demand boat licences for vessels that do not proceed above the Gauging Locks.
3. Outwith sunk, stranded or abandoned boats, Section 8(2) of the 1983 Act applies only to unlicensed boats.
4. BW has no powers to Section 8(2) any boat not sunk, stranded or abandoned on the waterway below Bax’s Mill and the Gauging Locks.
5. BW has no powers or rights to levy any charges whatsoever for any boating related/freight carriage use of the River Brent/Grand Union Canal below Bax’s Mill and the Gauging Locks.
6. BW has no common-law rights, or powers other than those expressly granted by Parliament.
7. BW has no ownership or any proprietary interest at all in those portions of the Rive Brent’s riverbed and riverbank for which BW can produce no evidence of purchase by deed.
8. The Land Registry be ordered to rectify the Register accordingly.
9. BW has no legal powers to designate lengths of waterways limiting times of mooring by notice.
10. BW has no legal right to impose charges for alleged ‘overstays’ along the towpath.
11. BW has no powers to board vessels on their waterways without the Master’s consent, outside of the specific circumstances specified in the BW Act of 1983.
12. Boats with licences issued on the basis of having a home mooring are not subject to the ‘14 day Rule’ applying to ‘Continuous Cruisers”.
13. Private rights of mooring are attested to by historical custom in the area of the moored boats that were subjected to the Section 8 Notices objected to.
14. BW is prohibited from interfering with or denying private rights of mooring.
15. BW officers are to be held personally accountable for criminal offences committed in the course of their employment.
16. Section 13 of the 1971 BW Act is incompatible with the Human Rights Act 1998.
17. BW be ordered to make appropriate restitution and compensation.
Nigel Moore Ridgeways Wharf Brent Way Brentford Middlesex TW8 8ES
27th October 2011
CLAIM NO: HC07C02340
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
NIGEL PETER MOORE Claimant and
BRITISH WATERWAYS BOARD 1st Defendant & TONY HAYLES 2nd Defendant
SKELETON ARGUMENT OF NIGEL PETER MOORE
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