Brown, R (on the application of) v Canal River Trust [2012] EWHC 3133 (Admin)

Case No CO/290/2012[2012] EWHC 3133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/11/2012
Before
MRS JUSTICE COX DBE
Between
THE QUEEN on the application of NICK BROWNClaimantCANAL RIVER TRUSTDefendant
Nick Brown (In Person with McKenzie Friend Ms Smith) for in personIain Steele (instructed by Bates, Wells & Braithwaite, Solicitors) for DefendantHearing Hearing dates: 18 October 2012
JudgmentMrs Justice Cox :
[1]This is a renewed application for permission to apply for judicial review of guidance first published by the Defendant in 2004, then revised in 2011, concerning their interpretation of s.17(3)(c)(ii) of the British Waterways Act 1995. The Claimant’s renewed application follows refusal on the papers by Mr Justice Eder, who considered that there was no arguable merit in any of the Claimant’s grounds and noted that the claim was, in any event, lodged out of time.[2]The Claimant is a self-represented litigant who appeared before me with his partner, Ms Smith, as his McKenzie friend. The Claimant and Ms Smith have plainly spent an enormous amount of time researching and preparing this claim; and the Claimant feels very strongly about the issues raised. His original grounds ran to some 71 pages and were extremely detailed and closely argued. Following the refusal of permission he lodged a further, detailed 27-page document which he advanced as a supplement to his original claim.[3]Helpfully, in oral argument at the hearing before me, the Claimant succinctly developed what he regards as the main points, the application being listed with the usual 30 minute time estimate for a renewed application. The Defendant, now the Canal & River Trust, to which body the relevant statutory functions and powers of the original Defendant, the British Waterways Board, were transferred on 2 July 2012, was represented by Mr Steele.[4]At the hearing the Claimant handed in some further documents and authorities, all of which I have considered. There was insufficient time, given the state of the list, to consider all the material and give judgment on the day of the hearing which is why, somewhat unusually for a renewed application, judgment was reserved in this case.[5]The relevant background is, briefly, as follows. The Claimant is a chartered engineer. He lives with his partner on a narrowboat called “Flossie” and they also have a steam-powered wooden harbour launch called “Freya”. He states that he travels on the Kennet and Avon Canal, the Grand Union Canal and the Oxford Canal, all of which are under the jurisdiction of the Defendant. He has lived on narrowboats for many years and this is, for him, an important way of life.[6]His essential complaint appears from paragraph 5 of his witness statement. In summary, although wishing to stay in and maintain his connections with the local area, he states that he is effectively being required by the Defendant “to make a progressive journey throughout the canal network”. While he is on waters within the jurisdiction of the Defendant he is required to observe mooring time limits of less than 14 days or else pay a penalty at certain locations. This makes finding a mooring more difficult, especially in popular locations. The costs of having to move his boat every 14 days are also significant, in terms of the necessary fuel. The sanction for failing to move is the removal of the relevant boat and his expulsion from the jurisdiction of the Defendant.[7]The main issue raised is whether waterways owned or managed by the Defendant can be used without having to comply with the terms and conditions set by the Defendant and, in particular, without having to purchase a home mooring.[8]The Claimant’s essential challenge, as I understand it, is to the lawfulness of the Defendant’s decision to publish the revised 2011 Guidance which, he argues, misstates the correct legal interpretation of s.17(3)(c)(ii) of the 1995 Act. He argues further that s.43(3) of the Transport Act 1962 does not permit the Defendant to impose terms and conditions which go beyond the requirements of s.17(3). He also alleges that the Defendant may, at some point in the future, be in breach of the rights of boaters, of which he is one, under Article 8 of the European Convention on Human Rights. Finally, he argues that in publishing the 2011 Guidance the Defendant acted in breach of the Equality Act 2010. The Legal Framework[9]Much of this appears not to be in dispute. The Defendant now manages over 2,200 miles of canals and rivers in Great Britain, together with associated assets including towpaths, bridges and buildings. The original Defendant in this matter, the British Waterways Board (“the Board”), was established under the Transport Act 1962.[10]S.31(5) of that Act vested in the Board the property, rights and liabilities comprised in that part of the British Transport Commission’s undertaking which consisted of their inland waterways, whether natural or artificial. S.32 vested in the Board all the Commission’s statutory functions.[11]S.43 of the Transport Act 1962 provides, so far as is relevant, as follows:
“(3) Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection the Board 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 shall think fit. … (8) The services and facilities referred to in subsection (3) of this section include, in the case of [the Board], the use of any inland waterway owned or managed by them by any ship or boat.”
The term “ship” is defined in s.92 as including every description of vessel used in navigation. The term “boat” is not defined.[12]Plainly, this provision entitles the Defendant to charge for the use of any inland waterway, which it owns or manages, by a ship or a boat. The Defendant is further entitled to make the use of any such waterway subject to such terms and conditions as it thinks fit.[13]By virtue of s.105(5) of the Transport Act 1968 any public or private rights of navigation, granted by the enabling legislation which had facilitated the construction and maintenance of the inland waterway network, were abolished. S.105(5) provides, so far as material:
“(5) …; and any local enactment passed with respect to any such inland waterway, so far as that enactment – (a) confers any public right of navigation over the waterway; or; (b) imposes any duty to maintain that waterway for the purpose of navigation (including any duty to support, or maintain a supply of, water for the waterway for that purpose) shall cease to have effect.”
This provision needs to be read together with s.115(1), providing:
“(1) In sections 105 and 112 of this Act – (a) references to any right of navigation over a waterway or canal include references to any right to use or keep any vessel or craft on the waterway or canal …” shall cease to have effect.”
[14]By virtue of these provisions there is no public right to use or keep a vessel on such a waterway which is owned or managed by the Defendant (CRT). Such use has to be with CRT’s consent. S.43 of the 1962 Act provides that such consent can be subject to a charge and to such terms and conditions as CRT think fit.[15]A system of licensing is in operation whereby anyone may obtain the right to use the waterways; and the licence and mooring fees received contribute to the costs of annual maintenance. The type of licence required depends on the nature of use for the relevant vessel. Legislation passed between 1971 and 1995 has made provision for the various licensing requirements.[16]S.13(1) of the British Waterways Act 1971 provides:
“(1) It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway … unless a certificate, in this Act referred to as a ‘houseboat certificate’, in relation to it is then in force …”
If no certificate is in force, the Board has the power to serve a notice requiring the remedy of an unlicensed vessel being on the inland waterway belonging to or under the control of CRT. Provision was made for registration of houseboats in s.14 and, in s.15, for payment for registration and renewal of any houseboat certificate.[17]In relation to a “houseboat”, as defined in s.3, it is irrelevant whether or not the vessel is used for human habitation. By s.3 a vessel is a houseboat if it is not “bona fide used for navigation”, a term which is not defined. S.3 also defined the term “pleasure boat” and Part II of the Act introduced a system of registration for pleasure boats, though only in respect of “river waterways”, which do not include canals.[18]The pleasure boat licensing requirement was subsequently extended to canals as a result of Bye-Laws introduced in 1975 and 1976, through the power vested in the Board under s.32 of the 1962 Act.[19]The next relevant legislation was the British Waterways Act 1983, section 4(1) of which provides:
“(1) Notwithstanding anything in the Act of 1971 or the Act of 1974 or in any other enactment relating to the Board or their inland waterways, the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine …”
[20]Under s.8 the Defendant can serve notices requiring the removal of an unlicensed vessel, being a vessel which is left or moored without lawful authority. Failing its removal the Defendant is authorised to remove it.[21]I come then to the British Waterways Act 1995 (“the Act”), which makes further provision for registration of houseboats and pleasure boats. The material section under consideration in this case is s.17(3), which provides as follows:
“Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless – (a) the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel; (b) an insurance policy is in force in respect of the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and (c) either – (i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or (ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”
Subsection (7) was simply a transitional provision that, for a specified period, restricted the Board’s powers to refuse or withdraw a relevant consent held by certain boats prior to the passing of the 1995 Act. (i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or (ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”[22]The phrase “relevant consent” is defined in s.17(1) as meaning “a houseboat certificate, a licence or a pleasure boat certificate”. The word “licence” is defined as a licence issued by the Board in respect of any vessel allowing the use of the vessel on any inland waterways. This is a standard, pleasure or business licence granted pursuant to the powers contained in s.43(3) of the 1962 Act, referred to above. It was included in the 1995 Act, in addition to houseboat and pleasure boat certificates, to reflect the fact that the majority of boat licences granted by the Board are now granted on the standard licence basis.[23]Pursuant to their powers under s.43(3) of the Transport Act 1962 the Board published terms and conditions, namely “General Terms and Conditions for Boat Licences: England and Wales”, the latest version of which is dated November 2011. Condition 4, headed “Continuous Cruisers”, provides:
“You must cruise in accordance with the British Waterways Act 1995. The Guidance for Boats without a home mooring is contained in Schedule 2 and this Guidance sets out what is required to comply with the British Waterways Act 1995.”
[24]Schedule 2 to these terms and conditions sets out “Guidance for Boaters Without a Home Mooring”. Its terms are in fact identical to those in the earlier document of the same title, dated September 2011, which the Claimant seeks to challenge in this case. This 2011 Guidance is a revised version of guidance initially published in 2004 and previously revised in 2008.[25]The reason for yet further revisions in 2011 was a judgment given in the Bristol County Court in the case of British Waterways Board v. Davies (claims number 9BA00333/9XK943370, dated 30 November 2010). In that judgment, after hearing full argument, the judge considered the proper interpretation of s.17(3) of the 1995 Act. Subsequently, the Board consulted with a User Group which comprised representatives of various national boating organisations, including the present Claimant, on what revisions, if any, should be made to the 2004 Guidance, before finalising the 2011 Guidance.[26]The references in that Guidance to a “home mooring” are clearly references to the requirements of s.17(3)(c)(i) of the 1995 Act. A home mooring may be on waterways owned or managed by the Defendant or it may be elsewhere, for example in a marina. The Defendant will charge for a home mooring which is on its property. These charges form part of the revenues contributing to the maintenance costs, to which I have already referred.[27]Mr Steele points out that, in the case of vessel which is someone’s home, as is the case with this Claimant and the vessel “Flossie”, the home mooring will require planning permission because it constitutes a change of use of that part of the canal. This is to be contrasted with a vessel being used “bona fide for navigation” since, in planning terms, the mooring of a vessel up to 14 days in a particular place as part of passage or transit is incidental and ancillary to the use of the canal and no planning permission is required. The Present Claim[28]Against that background, most of which is not in dispute, I turn to consider the Claimant’s grounds of challenge. They are set out in considerable detail and overlap to some extent, but his main criticisms appear, essentially, to be as follows:(i) The 2011 Guidance misstates the correct legal interpretation of s.17(3)(c)(ii) of the 1995 Act and the decision to publish it was therefore unlawful;(ii) S.43(3) of the 1962 Act does not permit the Defendant to impose terms and conditions which go beyond the requirements of s.17(3);(iii) The Defendant may at some point in the future be acting in breach of the Claimant’s rights under Article 8 of the European Convention on Human Rights because the Guidance has a dramatic and direct impact on his private and family life;(iv) In publishing the 2011 Guidance the Defendant acted in breach of the Equality Act 2010.[29]Mr Steele, on behalf of the Defendant, submits that all these grounds of claim are misconceived and that permission to apply for judicial review should be refused.[30]Before dealing with the substantive grounds of challenge, however, the first difficulty the Claimant faces is delay. It is not disputed that the Claimant, as a member of the User Group involved in the consultation process leading to the revisions of the 2004 Guidance, was provided on 14 September 2011 with a copy of the 2011 Guidance, which is the subject of challenge, and informed that no further changes would be made to it.[31]By virtue of Civil Procedure Rule (CPR) 54.5 his grounds of challenge therefore first arose on that date. The Claimant appears to recognise this himself because, in his pre-action letter of 26 September 2011, he stated that his challenge was to “1.3 … the final version of the revised form of the BW policy document entitled ‘Guidance for Boaters Without a Home Mooring’ dated September 2011 and published by BW on 14th September 2011 (‘the 2011 Guidance’).” The response from the Defendant, dated 10 October 2011, stated at paragraph 21, “[I]t is wholly accepted that the decision was made to publish the 2011 Guidance in early September 2011 and that is the decision you are challenging.” However, the Claimant did not in fact issue his claim until 11 January 2012 which is almost four months later. His claim is, therefore, considerably out of time.[32]His argument, as advanced in writing and orally at the hearing, is that time did not begin to run until 12 October 2011, that is the date of the wider publication of the 2011 Guidance. He argues that the fact that the Guidance came to him beforehand is wholly irrelevant.[33]However, I cannot accept that argument. It has no validity, in my view, in circumstances where the Claimant was plainly aware of the decision before wider publication, and indeed identified the decision under challenge and its date so clearly in his pre-action letter, sent well before the date of publication. Further, as Mr Steele points out, there is no material difference between the provisions in the 2011 Guidance, which the Claimant now seeks to challenge, and the equivalent provisions in the 2004 Guidance, such that it was clearly open to the Claimant to challenge the published guidance at an earlier stage.[34]Mr Steele described the delay in this case as a “knock-out blow” to this claim and I agree that the delay would, in itself, found a proper basis for refusing permission. However, I have carefully considered the grounds of challenge being advanced by this Claimant. Part of the reason for delay, he explains, has been the extensive work and research that has gone into the preparation of his arguments and I shall therefore consider the substantive merits of his claim.

(i) The Lawfulness of the 2011 Guidance

[35]By way of introduction it is helpful to set out the stated purpose of the two-page document under challenge in this case, which appears from the second footnote, as follows:
“This Guidance does not have the force of law but seeks to interpret the law as set out in s.17 British Waterways Act 1995. The language of the Act is generic and, as with all statutes, requires interpretation. The Guidance is based on professional legal advice, including from Leading Counsel, and is believed by BW to reflect the correct legal interpretation of the Statute. The Guidelines issued in 2008 were considered by the court in the case of British Waterways v Davies in the Bristol County Court. The Judge expressly found that Mr Davies’ movement of his vessel every 14 days (whilst remaining on the same approximate 10 mile stretch of canal between Bath and Bradford on Avon) was not bona fide use of the vessel for navigation. These Guidelines have been updated and refined in the light of that judgment.”
[36]The second observation I make at the outset is that the Claimant’s argument, that the Guidance misstates the correct legal interpretation of s.17(3)(c)(ii), depends entirely on extensive references to Minutes of the House of Commons Select Committee, sitting in 1993-94 to consider the Bill, subsequently enacted as the 1995 Act. A great deal of time and effort has gone into examining these Minutes in minute detail, as a result of which the Claimant now relies upon various extracts from them which he suggests support his preferred construction of the relevant provision.[37]Putting to one side, for the present, the question whether his reliance on these minutes is permissible, having regard to Pepper v. Hart [1993] AC 593, I consider the relevant phrase in s.17(3)(c)(ii) which is in dispute.[38]The phrase in issue is “bona fide for navigation”, which is not defined in the Act and is therefore a matter of statutory interpretation.[39]The meaning of the word “navigation” was considered by the Court of Session in the case of Crown Estate Commissioners v. Fairlie Yacht Slip Ltd [1979] SC 156, in which the Court provided a clear and helpful analysis of the term in the context of a dispute as to rights of mooring referable to the public right of navigation. Lord Cameron held as follows at page 182:
“It seems to me a question of fact and circumstance whether anchoring is an episode or incident in the course of navigation or whether it marks the termination of a passage or voyage and the ship cannot any longer be held to be in course of navigation or being navigated. … In my opinion the basic concept of the word ‘navigation’ is of passage or transit through navigable waters whether they be tidal or non-tidal … As Mr Weir put it, in the concept of the word ‘navigation’ is the essential notion or idea of passage, of movement in, and communication, by sea or, I would add, in all navigable waters. By the Oxford Dictionary ‘navigation’ is defined as ‘the action of navigating: the action or practice of passing on water in ships or other vessels.’ The underlying concept is clearly one of movement as opposed to rest.”
[40]This helpful analysis has been approved and applied in Moore v. British Waterways [2009] B12(Ch), and in the Davies case in the Bristol County Court referred to above.[41]In s.17(3)(c)(ii) of the 1995 Act, as in s.3 of the 1971 Act, the word “navigation” is prefaced by the phrase “bona fide”, namely “in good faith”. Mr Steele submits, and I agree, that in this context the phrase “bona fide for navigation” is intended to exclude from the ambit of the section those people who are not properly “navigating”, in the sense of being in transit or on a passage, but who instead undertake minor and regular movement on the same stretch of waterway. Thus, the 2011 Guidance states, “Importantly, short trips within the same neighbourhood, and shuttling backwards and forwards along a small part of the network, do NOT meet the legal requirement for navigation throughout the period of the licence.” Reference is made in the footnote to that section of the Guidance to the Judge’s finding in the Davies case that moving a vessel every 14 days on a 10 mile stretch of canal between Bath and Bradford on Avon was not use of the vessel bona fide for navigation.[42]It seems entirely clear to me that, when a vessel is engaged in such short journeys, the mooring of that vessel for up to 14 days is not a mooring in the course of navigation. On the contrary, as was made clear in the Fairlie Yacht Slip case, it is the termination of the relevant journey. Thus, people engaged in such activity cannot be said to be “navigating” or to be on a journey. For the purposes of the 1971 Act they would therefore be classified as a houseboat, requiring a houseboat certificate. In the context of the 1995 Act they would be classified as a vessel requiring its own ‘parking space’ in order to be licensed, namely a permanent or home mooring.[43]The Claimant contends, essentially, that the definition of “navigation” established in the Fairlie Yacht Slip case does not apply. At paragraphs 9.47-9.60 of his statement of case he is arguing, as I understand it, that the act of mooring which is carried out by users of boats without a home mooring constitutes a merely temporary mooring, which does not therefore terminate the navigation. He refers to tying ropes either to existing rings or bollards or to metal pins that are removed when the boat leaves.[44]I cannot see how this argument can possibly be correct. As Mr Steele points out, if it were, a boat moored by ropes and pins would be regarded as “navigating”, even if it remained in the same place for many months.[45]Further, the 1995 Act also requires that the bona fide navigation is “throughout” the period of the licence. This will be for at least three months and will usually be for a period of 12 months, emphasising the requirement for a genuine passage or transit for the entirety of the licence period. S. 17(3)(c)(ii) also includes a requirement that the vessel does not remain continuously in any one place for more than 14 days. In contrast to the word “mooring”, the word “place” clearly indicates, in my view, that Parliament did not intend the words to be limited to a vessel remaining on the same mooring for a period of more than 14 days. As the 2011 Guidance states, in my view correctly, “‘Place’ in this context means a neighbourhood or locality, NOT simply a particular mooring site or position … What constitutes a ‘neighbourhood’ will vary from area to area – on a rural waterway a village or hamlet may be a neighbourhood and on an urban waterway a suburb or district within a town or city may be a neighbourhood. A sensible and pragmatic judgement needs to be made. It is not possible (nor appropriate) to specify distances that need to be travelled, since in densely populated areas different neighbourhoods will adjoin each other and in sparsely populated areas they may be far apart (in which case uninhabited areas between neighbourhoods will in themselves usually be a locality and also a ‘place’). Exact precision is not required or expected – what is required is that the boat is used for a genuine cruise.”[46]I accept Mr Steele’s submission that this is an accurate summary of the legislative intent underpinning the statutory language used. The Claimant’s argument, that moving to another “place” merely requires moving over 50 yards is, in my view, unpersuasive.[47]The consequences, if the Claimant’s arguments were correct, militate against the Claimant’s suggestion that the relevant statutory provision should be given the wide meaning for which he contends. If he were right it would be unnecessary for a boater to obtain a home mooring, which would plainly encourage people who currently hold “off line” moorings to remain on the inland waterways and cause congestion in popular areas. Further, there would be substantial interference with those cruising from mooring during the course of their cruises, in particular near popular places and various attractions. Mr Steele also draws attention to the serious financial consequences that would flow from decreased income if home moorings were not obtained.[48]The Claimant further criticises the following passages in the Guidance:
“Circumstances where it is reasonable to stay in one neighbourhood or locality for longer than 14 days are where further movement is prevented by causes outside the reasonable control of the boater. Examples include temporary mechanical breakdown preventing cruising until repairs are complete, emergency navigation stoppage, impassable ice or serious illness (for which medical evidence may be required).”
[49]The Claimant’s argument is that this passage wrongly confines the qualification to the 14 day rule to “the most extreme of reasons” (see paragraph 9.26(1) of his statement of case), and that a “good reason” for remaining for longer than 14 days in the same place can include “personal choice” (see paragraph 7.98(4)). I consider this argument to be unsustainable. It would run wholly contrary to the legislative intent underpinning s.17(3)(c) and would further undermine the distinction between boats with home moorings, in sub-paragraph (i), and boats used for bona fide navigation, dealt with in sub-paragraph (ii).[50]For these reasons the 2011 Guidance does not, in my judgment, misstate the correct legal interpretation of s.17(3)(c)(ii) of the 1995 Act.[51]The problem for the Claimant, in relying on the extracts from the Select Committee Minutes to argue to the contrary, (leaving aside the Defendant’s objections that the Minutes supplied are neither accurate nor complete), is that the rule in Pepper v. Hart renders such reliance impermissible. The key passage, in the speech of Lord Browne-Wilkinson in that case, appears at 640B-C:
“I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”
[52]Each of these three conditions is critical. In the case of Wilson v. First County Trust (No.2) [2004] 1 AC 816, Lord Hobhouse emphasised that there must be no “extension to thePepper v Hart decision or relaxing the strict observation of the safeguards which it included”. As Longmore LJ pointed out in R (L) Commissioner of Police of the Metropolis [2008] 1 WLR 681, “The mere assertion that a statutory phrase has a particular meaning does not render the statutory provision ambiguous”.[53]Despite the Claimant’s best endeavours to persuade me to the contrary, I am not satisfied that any of the three conditions is met in this case. First, for the reasons I have already given s.17(3)(c)(ii) is neither ambiguous nor obscure. Secondly, the Claimant appears to be relying on what he describes at paragraph 7.19 of his statement of case as a “procession of comments” made during various Select Committee hearings and it is not at all clear which comment or comments are said to have been made by the promoter of the Bill. Finally, none of the comments being relied on, so far as I can see, amounts to a clear statement that the relevant statutory provision was intended to have the meaning for which the Claimant now contends. The Claimant’s suggestion, during oral argument, that these Minutes represent “the crystallisation of the will of Parliament” is, as Mr Steele correctly observed, erroneous.[54]For all these reasons the first ground of challenge is unarguable. S.43(3)[55]Pursuant to s.43(3), the Defendant has published Terms and Conditions which include a requirement that licensees abide by the 2011 Guidance. The issue raised by the Claimant is whether the power contained in s.43(3) could be used to impose such a requirement if the Guidance went beyond merely stating the effect of s.17(3)(c)(ii) of the 1995 Act.[56]I agree with Mr Steele, however, that this is now academic because the interpretation of the statutory provision in the Guidance is, in my judgment, correct for the reasons I have already given. The Defendant does not need to rely upon s.43(3) in order to give legal effect to the contents of the Guidance.[57]In any event, this point is also unarguable. The Claimant’s reliance on Burnett v. British Waterways Board [1973] 1 WLR 700 is, in my view, misconceived. This case merely established that the Defendant cannot use s.43(3) in order to impose terms and conditions on parties with whom they have not entered into a contract for the use of their services and facilities. Clearly that has no application in circumstances where a boater is being invited to purchase a licence to which the Terms and Conditions apply. The Claimant’s argument that s.43(3) of the Transport Act 1962 should be construed by reference to what was said during Select Committee hearings taking place some 30 years later, relating to what subsequently became the 1995 Act, is unsustainable for the reasons I have already given. Article 8[58]The Claimant’s argument that the 2011 Guidance infringes, or may infringe his or indeed anyone else’s rights under Article 8 of the Convention, or under any other Article, seems to me to be misconceived. The Guidance, first and foremost, does not purport to set out a policy of any kind. The Claimant appears to be arguing that, if the Defendant subsequently took enforcement action following the application of that Guidance in relation to s.17(3)(c)(ii), this could potentially give rise to violation of his rights under the Convention. In oral argument he emphasised that he was relying on his rights under Article 8.[59]However, the question whether, at some future point, the Defendant might take some action which interferes with the Claimant’s private or family life, such as to give rise to a violation of his Convention rights is wholly speculative and hypothetical at this time. The Guidance cannot by itself be said to engage any Convention right. The only provision that relates to enforcement action is the statement contained in the Guidance, that the failure or inability to provide information to the Defendant concerning the requirement of bona fide navigation “may result in further action being taken, but only after fair warning”. The accompanying footnote states as follows:
“Enforcement of the legal requirements will be based on observations by BW. If initial observations indicated insufficient movement to meet the legal requirements, the boater(s) will be advised why the observed movement is considered insufficient and be asked to keep adequate evidence of future movements. Failure then to meet the movement requirements, or to provide evidence of sufficient movement when requested by BW, can be treated as a failure to comply with s.17 of the 1995 Act. After fair warning the boat licence may then be terminated (or renewal refused). Unlicensed boats must be removed from BW waters, failing which BW has power to remove them at the owners cost.”
[60]As Mr Steele points out, this is clearly not a comprehensive statement of the Defendant’s enforcement policy. The suggestion that the Guidance itself gives rise to any arguable interference with Convention rights is therefore misplaced. In any event, Mr Steele draws attention to the nature of Article 8 rights as qualified rights, and to the defence of justification which would be open to the Defendant if, in the event, they were to proceed to removal.[61]Any alleged violation of Convention rights must always be considered on the actual facts of any particular case and not, as appears in the present case, hypothetically. There is, in my judgment, no arguable human rights point in the Claimant’s grounds. Equality Act 2010[62]The Claimant’s arguments in relation to a breach of the Equality Act proceed on the basis that someone who lives on a boat has a philosophical belief, within the meaning of s.10 of the Act, and that the Defendant was therefore required, by virtue of s.149, to conduct an equality impact assessment before publishing the 2011 Guidance.[63]This proposition is, in my view, unarguable. Under s.150 of the Act the public sector equality duty applies to those persons who are specified in schedule 19 to the Act. This Defendant is not so specified. Nor is it arguable that, in publishing the Guidance, the Defendant could be said to be exercising a relevant “public function”.[64]However, the main difficulty for the Claimant seems to me to be in demonstrating that living on a boat constitutes a religious or philosophical belief within the meaning of s.10(2). For a philosophical belief to be protected it must be “a belief as to a weighty and substantial aspect of human life and behaviour” and must “attain a certain level of cogency, seriousness, cohesion and importance”, see Nicholson v. Grainger plc [2010] ICR 360. As Mr Justice Burton added at paragraph 26 in that case, “it is necessary, in order for the belief to be protected, for it to have a similar status or cogency to a religious belief”, in contrast to a mere “lifestyle choice”.[65]I accept that the choice made by the Claimant is one which is, for him, a matter of considerable importance. However, his suggestion that choosing to live his life on a boat amounts to a genuine philosophical belief within the meaning of the Equality Act is, in my judgment, without merit.[66]Elsewhere in the Claimant’s grounds there are a number of unparticularised allegations of bad faith on the part of the Defendant. The Claimant refers to ‘unlawful surveillance’ having been carried out covertly, such as to require authorisation under the Regulation of Investigatory Powers Act 2000; to a breach of a legal duty of consultation; and to a fettering by the Defendant of its discretion under s.17(3) in publishing the Guidance. None of these other matters seems to me to raise any arguable issues on which permission to apply for judicial review should be granted.[67]For all these reasons this renewed application for permission must be refused. Costs[68]In considering the application for costs on the papers Mr Justice Eder observed that the Defendant was entitled to its costs to date, including the preparation of the Acknowledgment of Service and summary grounds. He noted that the figure claimed (£16,130.40) was very high, but considered that this was the result of the need to consider and respond to the Claimant’s lengthy statement of claim. He noted that the Claimant had advanced nothing which provided any basis for denying the Defendant its costs, but he made enforcement of the order conditional upon further order of the Court. He summarily assessed those costs in the sum of £15,000.[69]Mr Steele now pursues that application. The Claimant submits that the amount of costs claimed is wholly disproportionate. However, the high figure is clearly due to the extensive work carried out by those representing the Defendant in order to respond to the detailed grounds being advanced by the Claimant in substantial documentation. There is nothing now advanced by the Claimant which provides any basis for denying the Defendant its costs and, in all the circumstances, I order that the Claimant is to pay the Defendant’s costs in the sum of £15,000.