The Environment Agency v Barrass & Ors [2017] EWHC 548 (Admin)

Case No CO/2392/2016[2017] EWHC 548 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 March 2017
Before
Lord Justice LindblomMr Justice Singh
Between
The Environment AgencyAppellantPaul Barrass and othersRespondents
Mr David Perry Q.C. and Mr Richard Evans (instructed by the Environment Agency) for AppellantMr Mike Magee (instructed by Direct Access) for RespondentsHearing Hearing date: 13 December 2016
Judgment

Introduction

[1]This is the judgment of the court, to which both of its members have contributed.[2]The crux of this appeal is whether each of two marinas – Thames and Kennet Marina in Reading and Penton Hook Marina in Chertsey – forms part of the river Thames as defined in section 4 of the Thames Conservancy Act 1932 (“the 1932 Act”).[3]The appeal is an appeal by way of case stated. The appellant, the Environment Agency, is aggrieved by the decision of District Judge Lachhar, sitting in Reading Magistrates’ Court on 20 November 2015, by which she dismissed informations against the respondents, Mr Paul Barrass and 19 others. Each of the respondents owns a vessel kept in one of the two marinas. The informations alleged offences of keeping an unregistered vessel on a waterway, namely the river Thames, contrary to articles 4(1)(a) and 18(1)(a) of the Environment Agency (Inland Waterways) Order 2010 (“the 2010 Order”). Having considered the question as a preliminary issue, the judge found that neither of the marinas formed part of the river Thames under the 1932 Act, and accordingly that the provisions of the 2010 Order did not apply to the respondents’ vessels. She gave her reasons in a short judgment, in which she observed (in paragraph 12) that it would be “repugnant to allow [the Environment Agency] to extend the registration provisions to vessels [on the two marinas] without primary legislation”. On 2 May 2016, having been requested to do so by the Environment Agency, she stated a case for the opinion of the High Court.

The issues in the appeal

[4]In the case stated two questions are presented to us. They are:
“1. Do the marinas known as Thames and Kennet Marina, Reading and Penton Hook Marina, Chertsey … form part of the river Thames within the meaning of section 4 of [the 1932 Act]? 2. Do the provisions of the [2010 Order] apply to vessels kept in the Thames and Kennet and Penton Hook Marinas?”

The essential facts

[5]There are today more than 30 marinas along the river Thames. They provide moorings for pleasure craft and other small boats. Most of them have come into existence since the 1950’s. Some – like Oxford Cruisers Marina in Eynsham and Bates Marina in Chertsey – were purpose-built. Others – for example, Osney Marina in Oxford and Bushnell’s Marina in Wargrave – were created in natural features, such as side channels or mill streams. Others again – including the two with which we are concerned in this appeal – were constructed in former gravel pits or other man-made excavations.[6]Both of these marinas provide moorings and various services for boat users. Thames and Kennet Marina was built about 25 years ago after the site had been worked for gravel. It was joined to the river by a cut, which had been dug in about 1984. Penton Hook Marina was also built in a gravel pit after mineral extraction had ceased. It too was connected to the river by a cut, which was constructed in 1950. By an agreement dated 9 January 1950 between The Surrey Sand and Gravel Company Limited, the owners of the land in which the marina was constructed, agreed with The Conservators of the River Thames that the cut linking the gravel pit to the river would be a private, artificial cut or inlet for the purposes of section 79 of the 1932 Act (see paragraph 17 below). On 7 June 1995 Marina Developments Ltd., the owner of the marina, asserted in a letter to the National Rivers Authority that the 1950 agreement was “inconsistent with the formation of a Marina”. Both marinas are accessible to the public from land and by river.[7]In the case stated (at paragraphs 2), 3) and 4))

the judge gave this brief account of the proceedings in the magistrates’ court:

“2) The Respondents are owners of vessels moored in Thames and Kennet and Penton Hook Marinas. On 23rd and 24th September 2014 the Enforcement Team of the Navigation Function of the Environment Agency collected details of vessels which were unregistered at Thames and Kennet Marina in Reading. A similar exercise was carried out on 13th and 14th November 2014 at Penton Hook Marina in Chertsey. A standard form was issued for each unregistered vessel drawing their attention to the registration requirement. Where no registration application was received a “Notification of Offence” letter was sent to the owner of the vessel, restating the registration requirement. The Respondents in this case did not file any registration application and therefore their cases were prosecuted. The Respondents with vessels at Thames and Kennet Marina appeared at Reading Magistrates’ Court on … 12th June 2015 and the Respondents with vessels at Penton Hook Marina appeared at Redhill Magistrates’ Court on 16th June 2015. The cases were subsequently joined. 3) The Respondents contended that they were not subject to the registration requirements and directions were given for a hearing to decide this as a preliminary point. Most of the Respondents pooled their resources and instructed [Mr Mike Magee] of counsel to represent them. However, the point in question relates to all the Respondents in this case. 4) The hearing took place on … 2nd November 2015. All the evidence was agreed. The draft admissions together with the exhibits referred to therein, together with the Secretary of State’s response to the draft Order are attached. The Appellants and the Respondents submitted written skeleton arguments. The Judgement was given on … 20th November 2015.” 3) The Respondents contended that they were not subject to the registration requirements and directions were given for a hearing to decide this as a preliminary point. Most of the Respondents pooled their resources and instructed [Mr Mike Magee] of counsel to represent them. However, the point in question relates to all the Respondents in this case. 4) The hearing took place on … 2nd November 2015. All the evidence was agreed. The draft admissions together with the exhibits referred to therein, together with the Secretary of State’s response to the draft Order are attached. The Appellants and the Respondents submitted written skeleton arguments. The Judgement was given on … 20th November 2015.”
[8]The admissions referred to by the judge contained a number of agreed facts. We need refer only to some of them.[9]There was agreement on certain “[basic] information” about 32 marinas on the river Thames, including the two with which we are concerned.[10]As to Thames and Kennet Marina, the parties agreed, among other things, that “3. [the] Marina lies entirely within privately owned land”; “4. [it] joins the main river at a point where the main river itself is within the bounds set by [the 1932 Act]”; “5. [it] was formed from a gravel pit that was previously not joined to the Thames”; “6. [the] gravel pit was joined by a cut to the main river in 1984”; “7. [a] licence was given for that cut”; “8. [in] 2002 the old cut was closed and a new cut opened by licence”; “11. [an] area of the marina was closed off and is used as a rowing lake …”; “12. [a] portion of land within the Marina was sold to the Environment Agency …”; “14. [the] Marina provides services to users of the Marina, including electricity and water supply, lighting, internet connection, showers, toilets, chemical toilet disposal and chandlery”; “15. [neither] the Environment Agency nor its predecessors have sought to charge fees in respect of boats kept on the Marina prior to 2011”; “16. [the] Marina has gates at the land-side entrance which are locked between 5 [p.m.] and 8 [a.m.]”; “17. [those] staying on the Marina do so by virtue of a licence agreement …” , and “[the] conduct of those who use the Marina is regulated by the Marina in so far as there is an agreement between the Marina and the users of the Marina”; “18. [the] Marina performs maintenance of the bed of the Marina, the banks, and all accommodations and facilities”; “19. [it] cuts the weeds within the Marina and sets a speed limit for boats”; “20. [it] is responsible for signage within the marina”; “21. [visitors] by boat to the Marina are required to moor at the visitors’ pontoon and report to reception”, and “are required to pay a charge to use the facilities of the Marina”; and “22. [the] Environment Agency has never requested that the Marina obtain licences or pay charges in respect of the accommodations within their land”. Maps of the marina and the surrounding area and photographs taken in May 2015 were exhibited.[11]Among the agreed facts relating to Penton Hook Marina were these:
“26. [the] Marina lies entirely within privately owned land”; “27. [it] joins the main river at a point where the main river itself is within the bounds set by [the 1932 Act]”; “28. [it] was formed from a former gravel pit that was previously not joined to the Thames”; “29. [the] gravel pit was joined by a cut to the main river in 1950”; “30. [consent] was given for that cut”; “35. [the] Marina provides services to users of the Marina, including electricity and water, gas and fuel supply, lighting, internet connection, showers, toilets, chemical toilet disposal, cranes, engineering and … repairs, towing, onshore storage and car parking”; “36. [neither] the Environment Agency nor its predecessors have sought to charge fees in respect of boats kept on the Marina prior to 2011”; “37. [visitors] seeking to access the Marina by road … need to be authorised to enter the security gates that are controlled by the Marina”; “38. [visitors] by boat to the Marina are required to moor at the visitors’ pontoon outside the Marina and to report to reception”, and “are required to pay a charge to use the facilities of the Marina”; “39. [those] staying on the Marina do so by virtue of a licence agreement …”, and “[the] conduct of those who use the Marina is regulated by the Marina in so far as there is an agreement between the Marina and the users of the Marina”; “40. [the] Marina performs maintenance of the bed of the Marina, the banks, and all accommodations and facilities”; “41. [it] cuts the weeds within the Marina and sets the speed limit for boats”; “42. [it] is responsible for the signage within the Marina”; “43. [visitors] by boat to the Marina are required to pay a charge to use the facilities of the Marina”; “44. [the] Environment Agency has never requested that the Marina obtain licences or pay charges in respect of the accommodations within their land”; and “45. [the] marina is only required to have licences and pay charges in respect of the two accommodations that extend beyond the frontage of its land into the body of the Thames …”
. Maps of the marina and the surrounding area and photographs taken in July 2015 were exhibited.

Section 4 of the 1932 Act

[12]Section 4 of the 1932 Act provides:
“4. In this Act the word “Thames” shall unless there is something in the subject or context repugnant to such construction mean and include – (a) so much of the rivers Thames and Isis as is between the east side of the Town Bridge at Cricklade in the county of Wilts and an imaginary straight line drawn from high-water mark on the bank of the river Thames at the boundary line between the parishes of Teddington and Twickenham in the county of Middlesex to high-water mark on the Surrey bank of the river immediately opposite the last hereinbefore mentioned point; and (b) so much of the river Kennet as is between the river Thames and an imaginary straight line drawn from a point on the north bank of the river Kennet seventy yards eastward of the east side of the High Bridge at Reading in the county of Berks to a point on the south bank of the river Kennet immediately opposite the last hereinbefore mentioned point; and all locks cuts and works within the said portions of rivers Provided that no dock lock canal or cut existing at the seventeenth day of August one thousand eight hundred and ninety-four and constructed under the authority of Parliament and belonging to any body corporate established under such authority and no bridge over the Thames or the river Kennet belonging to or vested in any county council municipal authority railway company or any company body or person other than the Conservators shall be deemed to form part of the Thames.” (a) so much of the rivers Thames and Isis as is between the east side of the Town Bridge at Cricklade in the county of Wilts and an imaginary straight line drawn from high-water mark on the bank of the river Thames at the boundary line between the parishes of Teddington and Twickenham in the county of Middlesex to high-water mark on the Surrey bank of the river immediately opposite the last hereinbefore mentioned point; and (b) so much of the river Kennet as is between the river Thames and an imaginary straight line drawn from a point on the north bank of the river Kennet seventy yards eastward of the east side of the High Bridge at Reading in the county of Berks to a point on the south bank of the river Kennet immediately opposite the last hereinbefore mentioned point; and all locks cuts and works within the said portions of rivers Provided that no dock lock canal or cut existing at the seventeenth day of August one thousand eight hundred and ninety-four and constructed under the authority of Parliament and belonging to any body corporate established under such authority and no bridge over the Thames or the river Kennet belonging to or vested in any county council municipal authority railway company or any company body or person other than the Conservators shall be deemed to form part of the Thames.”

Other provisions of the 1932 Act

[13]In Part III of the 1932 Act, section 60 provides for the licensing of docks, piers, embankments and other works. It states:
“(1) The Conservators may from time to time for a fair and reasonable consideration (such consideration to be either a sum in gross or an annual rent or partly a sum in gross and partly an annual rent and so far as a sum in gross to be paid at the time of granting the licence) and upon such terms and subject to such restrictions as they think proper grant to any owner or occupier of any land adjoining the Thames a licence for all or any of the following purposes (namely):- (a) For the making of any dock basin pier jetty wharf bank quay or embankment wall or other work immediately in front of his land and into the body of the Thames; (b) For the information of such recesses docks or beds for boats and barges and dwarf wharfing and for the driving of such piles and for such stone pitching and other works as the Conservators deem necessary or proper for the convenient use protection and improvement of his land and the placing and mooring of vessels in such line and at such levels as appear to the Conservators necessary or proper for the trade and convenient enjoyment of his land without injurious interference with the navigation or its future improvement.” (a) For the making of any dock basin pier jetty wharf bank quay or embankment wall or other work immediately in front of his land and into the body of the Thames; (b) For the information of such recesses docks or beds for boats and barges and dwarf wharfing and for the driving of such piles and for such stone pitching and other works as the Conservators deem necessary or proper for the convenient use protection and improvement of his land and the placing and mooring of vessels in such line and at such levels as appear to the Conservators necessary or proper for the trade and convenient enjoyment of his land without injurious interference with the navigation or its future improvement.”
[14]Section 64(1) provides that “[the] Conservators and any person with and in accordance with a licence and in the case of any person other than the owner of the soil with the consent of such owner may cut the banks of the Thames” for any of three defined purposes, one of which is “(a) making enlarging or repairing any dock or canal or any drain sewer or watercourse …”.[15]Section 65(1) provides that “[no] person shall without a licence … (a) make or form any recess dock bed for boats or barges basin pier jetty landing-place wharf bank dwarf wharfing way quay or embankment wall or other work or drive any piles or do any stone pitching in or upon the bed or shores of the Thames …”.[16]Section 73(1) provides that “[subject] to the provisions of this Act the Conservators from time to time … may regulate as they think fit the opening shutting and management of the locks and works on the Thames and the drawing down or keeping back of the water by means of any of those locks or works …”.[17]Section 79 provides for the “[public] right of navigation”. It states:
“(1) Subject to the provisions of this Act it shall be lawful for all persons whether for pleasure or profit to go be pass and repass in vessels over or upon any and every part of the Thames through which Thames water flows including all such backwaters creeks side-channels bays and inlets connected therewith as form parts of the said river: Provided that all private artificial cuts for purposes of drainage or irrigation and all artificial inlets for moats boathouses ponds or other like private purposes already made or hereafter to be made and all channels which by virtue of any conveyance from or agreement with the Conservators or the commissioners acting under any of the Acts mentioned in Part II of the First Schedule to the Thames Conservancy Act 1894 or by any lawful title had been enjoyed as private channels for the period of twenty years before the fourteenth day of August one thousand eight hundred and eighty-five shall be deemed not to be parts of the Thames for the purposes of any provisions of this Act relating to rights of navigation and removal of obstructions and dangerous erections: Provided also that notwithstanding anything in this section the Conservators may from time to time exclude the public for a limited period from specified portions of the Thames for purposes connected with the navigation or with any public work or uses or for the preservation of public order. (2) The right of navigation in this section described shall be deemed to include a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by byelaws determine and the Conservators shall make special regulations for the prevention of annoyance to any occupier of a riparian residence by reason of the loitering or delay of any house-boat or launch and for the prevention of the pollution of the Thames by the sewage of any house-boat or launch: Provided that nothing in this section or in any byelaw made thereunder shall be construed to deprive any riparian owner of any legal rights in the soil or bed of the Thames which he may now possess or of any legal remedies which he may now possess for the prevention of anchoring mooring loitering or delay of any vessel or to give any riparian owner any right as against the public which he did not possess before the seventeenth day of August one thousand eight hundred and ninety-four to exclude any person from entering upon or navigating any backwater creek channel bay inlet or other water. (3) If any person obstructs the navigation in this section described by means of any weir bridge piles dam chain barrier or other impediment then unless the same or substantially the same had been maintained for the period of twenty years before the fourteenth day of August one thousand eight hundred and eighty-five and if the Conservators by notice in writing require him to remove the same within a time to be specified in such notice such person shall comply with such notice and if he do not do so shall be liable to a penalty not exceeding five pounds and to a daily penalty not exceeding two pounds.”
Provided that all private artificial cuts for purposes of drainage or irrigation and all artificial inlets for moats boathouses ponds or other like private purposes already made or hereafter to be made and all channels which by virtue of any conveyance from or agreement with the Conservators or the commissioners acting under any of the Acts mentioned in Part II of the First Schedule to the Thames Conservancy Act 1894 or by any lawful title had been enjoyed as private channels for the period of twenty years before the fourteenth day of August one thousand eight hundred and eighty-five shall be deemed not to be parts of the Thames for the purposes of any provisions of this Act relating to rights of navigation and removal of obstructions and dangerous erections: Provided also that notwithstanding anything in this section the Conservators may from time to time exclude the public for a limited period from specified portions of the Thames for purposes connected with the navigation or with any public work or uses or for the preservation of public order. (2) The right of navigation in this section described shall be deemed to include a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by byelaws determine and the Conservators shall make special regulations for the prevention of annoyance to any occupier of a riparian residence by reason of the loitering or delay of any house-boat or launch and for the prevention of the pollution of the Thames by the sewage of any house-boat or launch: Provided that nothing in this section or in any byelaw made thereunder shall be construed to deprive any riparian owner of any legal rights in the soil or bed of the Thames which he may now possess or of any legal remedies which he may now possess for the prevention of anchoring mooring loitering or delay of any vessel or to give any riparian owner any right as against the public which he did not possess before the seventeenth day of August one thousand eight hundred and ninety-four to exclude any person from entering upon or navigating any backwater creek channel bay inlet or other water. (3) If any person obstructs the navigation in this section described by means of any weir bridge piles dam chain barrier or other impediment then unless the same or substantially the same had been maintained for the period of twenty years before the fourteenth day of August one thousand eight hundred and eighty-five and if the Conservators by notice in writing require him to remove the same within a time to be specified in such notice such person shall comply with such notice and if he do not do so shall be liable to a penalty not exceeding five pounds and to a daily penalty not exceeding two pounds.”

The 2010 Order

[18]The 2010 Order was made under section 3(1) of the Transport and Works Act 1992 (“the 1992 Act”), which provides that the Secretary of State may make an order relating to “(a) the construction or operation of an inland waterway in England and Wales …”. As its Explanatory Note states, the 2010 Order “makes provision for a new uniform registration system to govern use of the main inland waterways in respect of which the Environment Agency is the navigation authority”. Part 1 (articles 1 to 3) contains several preliminary provisions. Article 2, “Interpretation”, defines “waterways” in the 2010 Order as meaning “unless the context otherwise requires any of the waterways described in article 3(2)”. Article 3(1) states that the provisions of the 2010 Order “apply to the waterways”. Article 3(2) states:
“(2) The waterways are – (a) the waterways for which the Agency is the navigation authority pursuant to the Anglian Water Authority Act 1977 …; (b) that part of the River Little Ouse between Brandon Staunch and Brandon Bridge; (c) the Great Ouse Flood Relief Channel between the Head sluice lock at Denver and the Tail sluice at Saddlebrow; (d) the Medway navigation, as defined in paragraph (a) of the definition of “the Medway navigation” in section 32 of the Southern Water Authority Act 1982; (e) the Thames within the meaning of section 4 of the Thames Conservancy Act 1932.”
Part 2 of the 2010 Order (articles 4 to 10) governs the registration of vessels. Article 4 provides the “Requirement for registration”. It states:
“4. – (1) An owner or master of a vessel must not keep, let for hire or use the vessel on the waterways unless – (a) the vessel is registered with the [Environment Agency] under article 5 … … … .”
Part 3 (articles 11 to 17) contains further provisions for the regulation of vessels. Article 11(1) provides that the owner or master of a vessel “must not keep, let for hire or use the vessel on the waterways unless there is in force in relation to the vessel a policy of insurance complying with the requirements of Schedule 3”. Article 12(1) gives the Environment Agency the power to impose standards and specifications “relating to construction and equipment” for “(a) securing the safety of persons or property”, “(b) the prevention of damage or injury to persons or property”, or “(c) the prevention of noise or pollution”. Part 4 (articles 18 to 22) contains provisions as to offences. Article 18(1)(a) makes it an offence, punishable by way of a fine up to a maximum of £1,000, for any person to use a vessel on a waterway without the required registration under article 4(1). (a) the waterways for which the Agency is the navigation authority pursuant to the Anglian Water Authority Act 1977 …; (b) that part of the River Little Ouse between Brandon Staunch and Brandon Bridge; (c) the Great Ouse Flood Relief Channel between the Head sluice lock at Denver and the Tail sluice at Saddlebrow; (d) the Medway navigation, as defined in paragraph (a) of the definition of “the Medway navigation” in section 32 of the Southern Water Authority Act 1982; (e) the Thames within the meaning of section 4 of the Thames Conservancy Act 1932.” (a) the vessel is registered with the [Environment Agency] under article 5 … …[19]In October 2004 the Environment Agency had made an application to the Secretary of State for Environment, Food and Rural Affairs for an order under the 1992 Act, to confer on it new powers for the registration and regulation of vessels, and the levying of charges, on the principal navigations for which it was the navigation authority. Article 3(1) of the draft order had stated that its provisions applied not only to “(a) the waterways described in paragraph (2)” – which included “(c) the Thames within the meaning of section 4 of the Thames Conservancy Act 1932” – but also to “(b) the adjacent waters”, which were defined in article 2(1) of the draft order as: “[Any] lake, pit, pond, marina or other substantially enclosed water adjacent to any of the waterways to which this Order applies and from which a vessel may be navigated (whether or not through a lock or similar work) into the waterway”.[20]In a letter dated 3 March 2010 the Secretary of State issued his decision, which was that, “subject to modification of the charging provisions and removal of provisions relating to adjacent waters and other minor modifications, the Order should be made in the form requested by [the Environment Agency]” (paragraph 5). He “considered that it would be ultra vires section 3 [of the 1992 Act] to apply registration and charging requirements to the adjacent waters, and also asked for the relevant provisions to be removed” (paragraph 6). The Secretary of State described the relevant objection (in paragraph 7):
“The objection related to allowing the Order in principle on the basis that the Order was primarily intended to enable [the Environment Agency] to extend an annual registration charge to vessels in marinas, on a private mooring and on private waters and that [the Environment Agency] was perhaps exploiting confusion over registration and licensing. There was also a concern that [the Environment Agency] was intending to charge for registration purposes whether or not the vessel was in use rather than usage of the waterways which was considered to be more understandable. There was a further concern that the law should not be changed to criminalise a boat owner who keeps a boat on a marina mooring, private mooring or private water body such as a pond or lake but chooses not to navigate the river Thames. The Secretary of State considered that it would be ultra vires section 3 to apply registration and charging requirements to the adjacent waters, and asked [the Environment Agency] to remove the relevant provisions. … .” and (in paragraph 20): “An objection was raised that registration or a charge should not be applied on connected water that is managed by another navigation authority or is privately owned. A further objection was that registration extension was an attempt by [the Environment Agency] to take control of adjacent waters by stealth. [The Environment Agency] subsequently agreed that proposed charging and registration requirements for adjacent waters were ultra vires and the provisions have been dropped.”
As to the requirement for the “[registration] of all vessels on waterways even those unused (article 4)”, the Secretary of State said (in paragraph 8):
“The objections relating to the need to register all vessels on waterways, even those unused … . The [Environment Agency] position is that unused vessels should have to be registered because they benefit from the regulated waterways environment, such as water level control and general navigation supervision. The requirement for registration of these vessels is also desirable to reduce evasion of registration. The purpose of the Order is to harmonise the navigation regimes between various waterways within the [Environment Agency’s] control. … .” and (in paragraph 10): “The Secretary of State agrees with the [Environment Agency’s] view on these provisions.”

The judge’s reasoning

[21]In the case stated

the judge said this (in paragraphs 11), 12), 13) and 14)):

“11) … The [respondents’] submission was that the “adjacent waters” were removed from the draft Order and [the Environment Agency is] now trying to bring the provision which was removed from the Order within the meaning of “waterway” in [the 1932 Act] which has never been done before. In order for the Environment Agency to extend the order to “adjacent waters” it would have required primary legislation. 12) [The Environment Agency] submitted that the reason the said provision was dropped from the 2010 Order was because the Secretary of State did not have the power to make such an order as the enabling legislation was limited to “inland waterway”, namely [section] 3(1) of [the 1992 Act]. 13) I was of the opinion that it was abundantly clear that when the 2010 Order was made the question of extending the registration was specifically considered. The Environment Agency clearly wished it to be extended to “adjacent waters” which had been defined within Article 2 of the draft Order to include marinas. If marinas were already included within [the 1932 Act], then why was there a need for the proposed draft Order. If the purpose was merely to extend registration [fees] only to vessels being “kept” rather than just let for hire or use then why the additional “adjacent waters” provision within the draft Order. In my opinion, it was clear that … the Environment Agency, having failed to obtain the Secretary of State’s approval for the draft Order as worded, were acting as if it had been passed. I therefore decided that it would be repugnant to allow them to do so. 14) Accordingly I found that the Order did not apply to the [respondents] and returned verdicts of not guilty in each of their cases.”
[22]Before we turn to address the two specific questions on which this court has been asked to give its opinion, we would say this about the approach taken by the judge in those passages of the case stated. However understandable it may be that in the light of the legislative history to which we have referred (in paragraphs 18 to 20 above) the respondents feel a sense of grievance about the way in which they believe they have been treated by the Environment Agency, we must take care not to be distracted by that history from the essential issue before us. That issue, as the first question presented to us makes clear, turns on the correct interpretation of section 4 of the 1932 Act.[23]As we have noted (in paragraph 19 above), the scope of the draft order would have been much wider than that of the 2010 Order as finally made. It would have applied not only to the “waterways described in paragraph (2)” but also to “adjacent waters”, as defined in article 2(1) of the draft order. That definition was so wide as to embrace “substantially enclosed” waters “adjacent to any of the waterways to which this Order applies …”. Once the draft order was amended so as to remove that very broad and uncertain concept of “adjacent waters”, the definition still applied to all the “waterways” described in paragraph (2), including, but not only, “the Thames within the meaning of section 4 of the [1932 Act]”.[24]That brings one back to the definition in section 4 of the 1932 Act. It is the scope of that definition, therefore, which is the central issue in this case. The 2010 Order did not alter the meaning of section 4, but, on the contrary, expressly referred to and incorporated it. Either section 4 is wide enough to include the two marinas with which we are concerned, or it is not. We therefore turn to address that issue. Question 1 – Do the marinas form part of the river Thames within the meaning of section 4 of the 1932 Act?[25]The answer to this question depends on the correct construction of section 4 of the 1932 Act. In accordance with familiar and well established principles of statutory construction, this provision must be read as a whole, having regard to its context and in the light of the purpose of the statute.[26]The particular point of construction which arises here is the meaning of the phrase “locks cuts and works” in section 4. For the Environment Agency, Mr David Perry Q.C. does not suggest that the marinas in question are “locks”. That, in our view, is plainly right. Mr Perry also accepts that the word “cuts” bears its ordinary English meaning, namely, as he puts it (in paragraph 52 of his skeleton argument) “artificial side channels, creeks and other inlets cut into and through the riverbanks so that the river is made to flow into and across adjoining land”. That seems to us to be correct. In the Oxford English Dictionary (2nd edition), a cut is defined as “[a] passage or channel”:
“a. [an] artificial watercourse cut or dug out; a channel, canal, cutting”; “b. [a] natural narrow opening or passage by water; a channel or strait”; or “c. [a] creek or inlet”
. But this understanding of the concept of “cuts” would apply only to the channels which were formed to link the river Thames to the two marinas in question. As the parties agree, the crucial issue for us is whether those marinas themselves form part of the river Thames for the purposes of the 1932 Act.[27]That question turns on whether the marinas fall within the meaning of the word “works” in this context. That word is not defined in the 1932 Act. In the Oxford English Dictionary (2nd edition), one of the meanings of a “work” is “[an] architectural or engineering structure, as a house, bridge, pier, etc.; a building, edifice”. That seems an apt definition here. But in any event, a very clear signal as to what the draftsman of the 1932 Act considered to be the scope of the expression “works” under section 4 is to be seen in the proviso in that section itself. It is worth setting out the pertinent words of the proviso again:
“Provided that no dock lock canal or cut existing [on 17 August 1894] … and no bridge over the Thames or the river Kennet … shall be deemed to form part of the Thames”
. We can put to one side the words “lock” and “cut” in that proviso, since they already appear in the earlier part of the section, which refers to “all locks cuts and works”. However, the words “dock” and “canal” do not appear in that earlier phrase. It is readily understandable that the draftsman considered that a “canal” could be regarded as falling within the generic concept of “works”, or, in some circumstances at least, within the concept of “cuts”. It is the use of the word “dock” in the proviso which we think has particular significance, because this, in our view, indicates beyond sensible dispute that the draftsman understood that such a structure, or work, could otherwise fall within the meaning of “works”. And it was surely for this reason that the proviso needed to embrace docks as well as locks, canals and cuts. If docks had not been encompassed within the concept of “works” in the deeming provision, there would have been no need for the proviso to exclude certain docks from its ambit.[28]That, it seems to us, is a cogent enough reason in itself, within a conventional exercise in statutory interpretation, to sustain our understanding of the phrase “locks cuts and works” in section 4 as including docks. But further support for this construction of section 4 can be found in other provisions of the 1932 Act.[29]The words “work” and “works” are also employed in section 60. The use of the phrase “and other works” in subsection (1)(b) follows the earlier wording in that provision, which refers to the “formation of such recesses docks or beds for boats and barges”. This formulation reinforces the conclusion that the draftsman of the 1932 Act understood that “docks” belong to the general concept of “works”. And that conclusion is also strengthened by the words that follow in subsection (1)(b) – “… the placing and mooring of vessels in such line and at such levels as appear to the Conservators necessary or proper for the trade and convenient enjoyment of his [i.e. the owner or occupier’s] land …”. This language is apt, in our view, to include what occurs in a marina. Subsection (1)(a) uses a slightly different phrase – “or other work” (this time in the singular). It does so after listing a number of things which include “any dock basin pier jetty wharf bank quay …”. In our view, those words too are apt to include a marina, in particular the words “dock” and “basin”.[30]Section 65 uses the phrase “or other work” (in the singular). This phrase follows a list of things which require a licence under this section. The list includes “any recess dock bed for boats or barges basin pier jetty landing-place … quay …”. Again, the statutory language makes it quite clear that the draftsman was using the concept of a “work” to include a “dock” or “basin”. And, as we have said, those words are apt to include a marina.[31]On behalf of the respondents Mr Magee submits that the word “works” in the 1932 Act is a term of art confined to features which assist navigation or operate to maintain or control the flow of water in the river, such as locks, weirs, dams and sluice gates. In making that submission, he relies, for example, on the terms of section 73, which is concerned with “locks and works” and “locks or works”. He also argues that the concept of “works” in section 4 ought not to be understood in the broad sense contended for by the Environment Agency, but should be interpreted more narrowly as being “ejusdem generis” – of the same kind – as the works referred to in the same phrase, namely “locks” and “cuts”. One must understand, or read in, before the word “works”, some qualifying word – say, “kindred”, “like” or “such”.[32]That argument faces several difficulties. In the first place, as we have said, the draftsman clearly envisaged that a “dock” could be an example of “works” within the meaning of section 4 of the 1932 Act. Secondly, the proviso in section 4 itself refers to a “bridge”. We cannot see how a bridge could be understood to fall within the concept of “works” if that concept were as limited as Mr Magee submits it is. And thirdly, as we have pointed out, the word “works” appears elsewhere in the 1932 Act, in provisions where its scope plainly cannot be so confined as Mr Magee submits – for example, sections 60 and 65. And we are not persuaded that the word “works” in section 4 carries a different and narrower meaning from the same word when used in those other provisions.[33]In support of his argument Mr Magee also invokes section 25 of the Thames Navigation Act 1866, which transferred to the Conservators of the River Thames “the Locks, Canals, Works, Toll Houses, Real and Personal Property, Powers, Authorities, Privileges, Exemptions, Rights of Action and Suit, and all other the Rights and Interests of the Upper Navigation Commissioners …”. Mr Magee submits that because in that provision the word “Works” followed the words “Locks” and “Canals”, it cannot properly be understood as including docks or basins. We doubt that this submission is sound. But even if it were correct, it would be of no assistance to us in resolving the question of interpretation which faces us in this appeal. We have to construe section 4 of the 1932 Act, not section 25 of the Thames Navigation Act 1866.[34]It is true that the word “marina” does not appear in the 1932 Act, whereas it is to be found in other legislation. For example, section 2(2), “Interpretation”, of the Broads Authority Act 2009 defines “adjacent waters” to include a “marina”. However, the explanation for this appears to be that the word “marina” has come into common usage only relatively recently, and into statutory usage more recently still. According to the Oxford English Dictionary (2nd edition), its modern use to describe a particular kind of dock or basin seems to have begun in the United States in the 1920s. The relevant definition is “[a] dock or basin with moorings for yachts and other small craft. Also attrib. orig. U.S.”. The illustrative quotations for this definition trace its usage: “1935 Yachting Monthly LIX. 223/2 Fees for keeping a yacht in a municipal ‘marina’ (trick name for basin) are modest. Yachts are tied up in slips in these marinas. 1959 Manch. Guardian 15 Aug. 5/2 Everywhere in the United States the outboard motor, the cabin cruiser, the ‘marina’ (a little dock for pleasure craft) are to be seen. 1960 Sunday Times 3 Apr. 37/5 But what about entering and leaving this well-dammed basin, or marina – the American word? … 1963 R.I. McDavid Mencken’s Amer. Lang. 264 Spanish may share with Italian the credit or the current vogue of marina, as a de luxe designation for a yacht basin. … 1971 N.Z. Listener 25 Oct. 7/1 In 1928 boat-owners added another word to their vocabulary, ‘marina’. Coined in the United States to describe a new kind of luxury boating facility … it has altered the style and living of an increasing number of New Zealanders”.[35]Thus defined, a marina fits comfortably within the concept of a “dock” in section 4 of the 1932 Act, and therefore also within the concept of “locks cuts and works” in that provision.[36]In our view this analysis, including our construction of section 4, is generally consistent with the purposes of the 1932 Act.[37]It is also, as we see it, consistent specifically with the purpose of section 79, to promote and protect the public right of navigation “over or upon any and every part of the Thames through which Thames water flows …” (see generally Rowland v The Environment Agency [2005] Ch. 1, and in particular the judgment of Peter Gibson L.J. at p.24C to p.25B). It is common ground that, as a matter of fact, the marinas with which we are concerned are places into which “Thames water flows”. In this respect they would clearly fall within the provisions of section 79(1). We are also of the view that, as Mr Perry submitted, they fall within the concept of “all such backwaters creeks side-channels bays and inlets connected therewith [i.e. with the river Thames] as form parts of the said river”. Of course, this submission might seem to be circular – because it begs the question of whether these two marinas may be said to “form parts of the said river”. But it is in our view a perfectly logical submission, and correct, because the evident purpose of section 79 was plainly to grant a very broad public right of navigation on “any and every part” of the river Thames, extending into waters of various kinds connected to the main channel of the river, which would include docks and basins where river-going vessels may be moored, serviced or repaired and facilities are provided for their users. Parliament was careful to exclude those areas of water which could truly be regarded as being in “private” use, by inserting the proviso to section 79(1):
“all artificial inlets for moats boathouses ponds or other like private purposes”
. That does not seem to us to be a proper description of the two marinas with which we are concerned. They are not places to which the public has no lawful access, or is discouraged from entering. On the contrary, members of the public are deliberately admitted to them, including those enjoying the right of navigation on the river Thames, and they are used for the commercial purposes, and to provide the services, described in the agreed facts (see paragraphs 10 and 11 above). They are not akin to those areas of water to which section 79(1) refers as being “for … like private purposes”. We therefore accept the submission that one of the purposes of the 1932 Act was to extend the public right of navigation into waters such as those comprised in these two marinas.[38]We also accept Mr Perry’s submission as to what follows from this understanding of section 79. Since there is clear public benefit in the performance by the Environment Agency of its functions in maintaining the level and flow of the river Thames, and generally in protecting the public right of navigation on the river, the statutory scheme ensures that those members of the public who enjoy a particular benefit in these respects are liable for some financial contribution towards the work that is required to be done. As it seems to us, the 2010 Order, read with the 1932 Act, succeeds in this basic purpose. As Mr Perry submitted, that is a conclusion consistent with other purposes of the statutory scheme. For example, vessels must be insured (article 11 of the 2010 Order). They must comply with required safety standards (article 12(1)(a) and (b)). And they must comply with standards designed to prevent noise or pollution of the river Thames (article 12(1)(c)). We see nothing surprising in the fact that the statutory arrangements for regulation are framed so as to promote the interests of the public in this way. Though Mr Magee is entitled to submit that at least some of these matters may also be the subject of obligations in licences granted for the keeping of vessels in a marina, that is merely a matter of privateagreement, not of statutory regulation operating in the wider public interest.[39]Finally, we must consider Mr Magee’s argument that the construction of section 4 of the 1932 Act for which the Environment Agency contends would lead to an outcome that is “repugnant” on the facts in this appeal. Section 4 refers explicitly to the possibility of repugnancy, the effect of which is to disapply its definition of the river Thames. Mr Magee reminds us that these two marinas are today, and always have been, in private ownership. When they were built, they were connected to the river by cuts whose construction was authorized by the Environment Agency or its predecessors. And it had never previously been suggested that the owners of boats kept within them were liable to pay the charges which the Environment Agency has now sought to enforce.[40]We cannot accept that argument. The difficulty with it – indeed, we think, a fatal difficulty – is that the 1932 Act plainly contemplates circumstances in which land in private ownership will form part of the river Thames. Parliament has struck a careful balance between the reach of the 1932 Act and the rights of private landowners, for example when framing the public right of navigation in section 79. We have already concluded that the marinas in this case are not used for “private purposes” within the meaning of the relevant proviso in that section, but are places to which the public are deliberately admitted – though they remain in private ownership. Nor do we see anything surprising in the fact that the Environment Agency had not previously sought to enforce the charges it now contends are payable. Article 4(1)(a) of the 2010 Order has made obligatory the registration of all vessels kept, let for hire or used on the waterways to which it relates, not merely vessels actually in use on those waterways (see paragraph 18 above).[41]In his skeleton argument for this appeal Mr Magee also submitted that the construction of section 4 of the 1932 Act put forward by the Environment Agency would be incompatible with the right to peaceful enjoyment of possessions in Article 1 of the First Protocol to the European Convention on Human Rights. On reflection, however, he now acknowledges, rightly in our view, that his human rights argument adds nothing of substance to his submissions on repugnancy. He says it serves to confirm those submissions, rather than adding to them. In our view, it is not in itself a tenable argument, and it lends no force to the assertion that to regard these two marinas as falling within the meaning of the river Thames under section 4 would be repugnant.[42]We conclude that the first question stated for the opinion of this court must be answered in the affirmative. Question 2 – Do the provisions of the 2010 Order apply to vessels kept in the marinas?[43]As Mr Perry submits, this is not in reality a separate question from the first. The 2010 Order expressly adopts the definition of the river Thames provided in the 1932 Act. In our view the judge fell into error in concluding that the issue she had to resolve turned on the concept of “adjacent waters” in article 2 of the draft order (see paragraphs 21 to 24 above). Had she directed herself correctly, she would have appreciated that in fact it turns on the definition of the river Thames in section 4 of the 1932 Act. For the reasons we have given in addressing the first of the two questions in this appeal, and having regard to the agreed facts, we conclude that that definition includes both Thames and Kennet Marina and Penton Hook Marina. It necessarily follows that the 2010 Order applies to vessels kept in either of those two marinas.[44]Accordingly, the second question must also be answered in the affirmative.

Conclusion

[45]Both of the two questions which have been stated for the opinion of this court are therefore answered in the affirmative, and the appeal is allowed. Under section 28A of the Senior Courts Act 1981 we remit the case to the magistrates’ court, so that it can proceed to the final determination of these proceedings in accordance with the opinion of this court.

Cited in 1 later judgment