Moore v British Waterways Board [2012] EWHC 182 (Ch)

Case No HC07C02340[2012] EWHC 182 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10/02/2012
Before
THE HONOURABLE MR. JUSTICE HILDYARD
Between
NIGEL PETER MOOREClaimantBRITISH WATERWAYS BOARDDefendant
Mr Nigel Peter Moore the Claimant appeared in person for in personMr Christopher Stoner QC (instructed by Shoosmiths) for DefendantHearing Hearing dates: 1, 2, 3, 4, 7 November 2011
JudgmentINDEX
Between
An overview of the issues………….1-5 (2) The Preliminary Issues already decided……….6-8 (3) Scope of this Trial……………………9-19 (4) The part of the GUC in question…………………. …20-25 (5) The basis of Public Rights of Navigation………….. …26-30 (6) The geography of the alleged mooring area…………31-37 (7) More detail as to the relevant vessels and their location when notices were served 38-50 (8) The form of the notices served………………………..51-53 (9) The proper classification of the vessels……………….54-60 (10) Section 43 of the 1793 Act and its interpretation and effect…………..61-68 (11) PRN and the riparian rights asserted……..…………..69-70 (12) Whether there are any other provisions of the 1793 Act that assist the Claimant……81-87 (13) An alternative case advanced by the Claimant in relation to the Thames Conservancy Act, 1857………88-92 (14) Claimant’s case based on limitation of BWB’s statutory authority…………...93-94 (15) The principles of statutory construction urged by the Defendants……………..95 (16) Relevant parts of the legislation chronologically discussed…………………98-131 (17) The Claimant’s construction of these provisions……..132-139 (18) BWB’s construction and my conclusions……………140-167 (19) Whether BWB had a collateral purpose……………...168-185 (20) Whether the Claimant had legitimate expectations that were ignored or overridden……..186-204 (21) Human Rights………………………………………..205-215 (22) BWB’s breaches of undertakings…………………....216-230 (23) Conclusion…………………………………………231-235Mr. Justice Hildyard :The Issues
[1]The ultimate issue in this trial may be shortly stated: it is whether or not the Defendant, the British Waterways Board (“BWB”), was acting within its powers of control over and regulation of the Grand Union Canal (“the GUC”, originally called the Grand Junction Canal) in serving notices under section 8 of the British Waterways Act 1983 (“section 8 Notices”) on several vessels then under the care or control of Claimant and moored at or near the location of the Ridgeway Dock on the GUC at Brentford.[2]This short statement, however, disguises the variety and intricacy of the detailed points that arise in seeking to adjudicate upon that ultimate issue. In 1990, the legislation concerned was described by a Select Committee of the House of Lords (HL Paper 73, printed on 3 July 1991) as having “developed piecemeal over the last three decades”. The Select Committee went on to encourage BWB to put forward consolidating legislation in place of the existing “confusing set of provisions.” There has been no consolidating legislation since then, and the confusion remains.[3]The Claimant’s primary case that the BWB simply lacks power to do as it has done requires a trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793 (“the 1793 Act”). His secondary case, that he has or can assert rights such that BWB cannot exercise against him the powers they have sought to enforce, requires not only a review of the provisions of the 1793 Act but also consideration of common law riparian rights (including a right to moor) which the Claimant contends he has by virtue of his possession or occupation of (or of part of) land along the GUC near Ridgeways Wharf.[4]Although some issues have melted away or been restricted by agreement (as I shall explain later), and despite BWB’s protestations that it has been dragged into legislative undergrowth it had no wish to trawl through, the dispute has developed into something of a test of the rights of users of the GUC and the powers of BWB in that regard.[5]The matter has already travelled to the Court of Appeal. This was in relation to the adjudication by Mr Martin Mann QC, sitting as a Deputy High Court Judge, of 4 preliminary issues. These were designed to determine some of main issues raised in the pleadings in respect of the use of the GUC between Bax’s Mill (now more usually called the “Boatman’s Institute”) and the River Thames. Not for the first time in litigation these preliminary issues have achieved less than had been hoped in terms of confining the trial.

The Preliminary Issues already adjudicated

[6]The 4 preliminary issues, and the answers given to each at first instance, were as follows: i) Preliminary Issue (1): whether the rights concerning the waterway between Bax’s Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793 (“the 1793 Act”) remain in force and unaffected by the provisions of the Transport Act 1968 (“the 1968 Act”); to which Mr Mann QC answered (though doubting that an answer was necessary in light of his other conclusions) that the private right of navigation, which he described as having been granted by section 43 of the 1793 Act, was repealed by the 1968 Act. ii) Preliminary Issue (2): whether the GUC extends down stream to the mouth of the River Brent into the mouth of the River Thames; to which Mr Mann QC answered: Yes. iii) Preliminary Issue (3): whether the BWB is the relevant statutory navigation authority for that element of the GUC which now or formerly comprised tidal waters of the River Brent; to which Mr Mann QC answered: Yes. iv) Preliminary Issue (4): whether a public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation; to which Mr Mann QC answered: No.[7]The Claimant’s appeal focused on Preliminary Issue (1), and on the order for costs (to the latter of which I return at the end of this Judgment). Indeed (as recorded in the judgment of the Court of Appeal) that is the only one of the Preliminary Issues for which the Claimant sought permission to appeal. Preliminary Issue (2) was agreed. Preliminary Issue (3) had been resolved by the fact that the regulation of the GUC (generically referred to as ‘the Navigation’) had devolved to BWB which in fact does and is entitled to regulate it. Preliminary Issue (4), though not agreed, ceased to be actively contested, it being clear that the public right of navigation has never included an ancillary right to moor, other than temporarily in the course of a voyage on the GUC, and it not being suggested that any of the vessels concerned in this case was temporarily stopped in the course of such a voyage.[8]The Court of Appeal endorsed what by then was or became the shared view of the parties that the Deputy Judge’s ruling on Preliminary Issue (1) was unsatisfactory and could not stand. As Mummery LJ put it in his Judgment (Nigel Moore v British Waterways Board [2010] EWCA Civ 42 at paragraph 5), “Something had gone wrong with it, not least because it was in terms for which neither side had contended.” The Court of Appeal set aside the ruling and directed that Preliminary Issue (1) should proceed to trial along with all other issues not resolved by the Deputy Judge’s ruling.

The scope of this Trial

[9]However, in the course of the hearing in the Court of Appeal, and after the Claimant had refined and more specifically explained his case in reliance upon a riparian right, being to the effect that the relevant canal bank by Ridgeways Wharf is a wharf which carries the riparian right to moor alongside, BWB stated that it does not seek to argue that if, prior to 1793, there was a pre-existing right to moor, it has been repealed by the 1793 Act or the 1968 Act.[10]More specifically, BWB made clear that it would accept that the legislation does not affect the preserved pre-1793 public rights of navigation over the River Brent from Bax’s Mill (now usually called “the Boatman’s Institute”) to the River Thames.[11]However, it does contend that neither the public right of navigation nor any riparian right such as the Claimant has asserted includes the right to moor, and that any right to use any part of the GUC, including the River Brent section, is still subject to BWB’s regulatory and management powers in respect of the canal as an inland waterway.[12]BWB’s concession and clarification makes unnecessary much of the detailed argument advanced before Mr Mann QC when hearing Preliminary Issue (1). Nevertheless, the 1793 Act still requires interpretation both in that context, and as I shall explain later, in the context of the Claimant’s reliance before me (I think for the first time) on further sections of the 1793 Act, that is sections 82 to 86 as the source of his claimed right to moor.[13]The scope of the trial has been further defined and confined by concessions made on the second day of trial, and then confirmed in writing by both parties at my request. I return to discuss the relevance and effect of these concessions in more detail later; it suffices for present purposes to record that in this action i) BWB does not rely upon any common law right of ownership to justify the serving of the section 8 Notices; and ii) The Claimant does not assert or rely upon a claim to ownership of the bed of the River Brent/GUC as entitling him to moor any vessels.[14]Thus, in this action (and in fact consistently with its original position as set out in its Defence) BWB relies only on its powers as the statutory navigational authority for the GUC.[15]As to this, the parties vied with each other as to which of them has the simplest case. In its bare essentials, the Claimant contends that the section 8 Notices were served on a false premise. The false premise is that BWB had (and has) a right to require an owner of any vessel operating in this section of waterway to have a licence, and that this in turn gives BWB the power to regulate and control the use of the entire inland waterway by those vessels. The Claimant contends that this premise is fundamentally misconceived. It follows on his case that the Notices were served without authority and are invalid.[16]On the other hand, BWB contend (in summary) that the Claimant must demonstrate some basis or source of his alleged entitlement to moor the vessels without being subject to control by BWB; but cannot do so. As to its own powers, BWB contends that unless the Claimant can establish a positive right to moor (whether under the 1793 Act or otherwise) the regulatory regime entitled it to remove any moored vessels from waters owned or managed by it, and that it was therefore empowered and entitled to serve section 8 Notices on the vessels in question (including ‘Gilgie’) accordingly.[17]Put another way, the Claimant contends that to succeed BWB must demonstrate parliamentary authority to demand boat licenses for use of vessels over the relevant part of the waterway; and that it cannot. BWB, on the other hand, contends that to succeed the Claimant must demonstrate a right to moor vessels in the relevant part of the waterway; and that he cannot.[18]The Claimant’s Skeleton Argument runs to some 651 numbered paragraphs over 160 pages. BWB’s is shorter but it is dense. The Claimant represented himself before me (as before Mr Mann QC and then the Court of Appeal). He has conducted his case with learning, care and politeness and with the benefit of a wealth of experience on the GUC. BWB appeared through Mr Christopher Stoner QC, who has presented the case with moderation and fairness as well as patience and skill. But precise identification of the contested issues, let alone consensus as to what they are, has been an elusive task.[19]To some extent this is the consequence of a mismatch in the parties’ conception of what the case involves and should determine. The Claimant conceives the case as a vehicle for the determination of the rights, and in particular the restrictions on the rights, of BWB as the river authority, expressing the hope in his Skeleton Argument that this “may prove of value to the more general boating public.” BWB, apparently more simply and selectively, seeks to justify and establish the efficacy of the section 8 Notices that were served. Its focus appears more concentrated; but the underlying analysis required is, at least to my mind, substantially the same. The fact is that both ways of looking at the matter require a careful analysis of complex and confusing legislation: there is no alternative but to seek to understand the architecture, building bricks and ultimate effect of the legislation affecting the right of user and regulation of the GUC since 1793.

The factual context: the area of the GUC in question

[20]The GUC was originally called the Grand Junction Canal. It was constructed pursuant to the provisions of the 1793 Act, which in its long preamble lists the numerous promoters. It runs from Braunston in Oxfordshire to the junction of the River Brent with the River Thames in Brentford.[21]The greater part of the GUC, and more particularly that to the north of a lock known as the “Gauging Lock” (or sometimes “Lock 100”), is non-tidal; much of it is an entirely artificial waterway (a canal in the strict sense).[22]From the Gauging Lock downstream to its mouth with the River Thames the GUC utilizes the course of the former River Brent, though the course was straightened to aid navigation. It is common ground that the same rights attach to the whole course of this part of the GUC, including “new cuts” built to improve navigation over a previously navigable river, as applied to the river in its natural course.[23]A second lock was built downstream of the Gauging Lock (and towards the Port of London) some years after the GUC was opened. The lock was initially constructed as a single lock, but then (in the 1960s) re-constructed as a double lock. These double locks are called the “Thames Locks”.[24]Between the Gauging Lock and the Thames Locks the GUC is what is called by BWB “semi-tidal”, where the ebb and flow of the tide usually has less effect on the water level (because of the effect of the Thames Locks), although at times of high tides the level of the water will rise significantly. Between the Thames Locks and the River Thames the GUC remains fully tidal.[25]For the purposes of this action it is common ground that the area just to the east of the Guaging Lock, known as Bax’s Mill, downstream to the GUC’s junction with the River Thames, is all to be treated as simply being tidal. That tidal area is the canalized former River Brent.

The tidal nature of the relevant stretch of the GUC and public rights of navigation

[26]There is no longer any dispute between the parties that in the case of tidal parts of the GUC, being a navigable river (and as the Claimant put it, citing ancient texts, “an arm of the sea”), there is a “public right of navigation” (“PRN”).[27]The Claimant provided an impressive historical review of the genesis of these rights, back past Magna Carta (which confirmed such rights) to an agreement between King Richard I and the City of London in 1197, and beyond to “the dawn of legal memory”. It is clear that the right of the public to navigate on the sea has been unchallenged from the earliest times (see Denaby and Cadeby Main Collieries Ltd v Anson [1911] 1 KB 171 at 198 (Court of Appeal); and it extends to tidal waters, being “arms of the sea”, the soil of which belongs to the Crown.[28]Both parties also referred me to section 43 of the 1793 Act. I shall return to other parts of that section later; but for present purposes it is sufficient to note that the section expressly recognises and protects “the free navigation of the River of Brent, as hereinbefore anciently used and enjoyed”.[29]At one time, when it first was called upon by the Claimant to justify the disputed section 8 Notices, BWB claimed that all such rights had been abolished by section 105 of the Transport Act 1968. Indeed, preliminary issue (i) appears to have been formulated to test that claim. But it came to be accepted by BWB that the real issue was not whether there was a public right of navigation, but whether that right also comprised a right to moor. In any event before me BWB did not dispute the existence of a public right of navigation.[30]Thus, BWB accepts, Mr Mann QC concluded, and so far as necessary, I hold, that the 1793 Act recognised and confirmed such public right of navigation (“PRN”) over the relevant tidal section of the GUC between Bax’s Mill and the River Thames, and that this public right of navigation remains in force and unaffected by the provisions of the Transport Act 1968. Accordingly, I need not analyse any more fully the Claimant’s interesting research into the origin and genesis of that right.

The relevant geography

[31]To return to the relevant geography, Ridgeways Wharf (also sometimes called “Workhouse Dock”) is on an area of water (part of which was then in-filled) between the old course of the River Brent and the line of the canal. The ownership of that area of land and water has been the subject of detailed scrutiny in another action namely, Geronimo Limited(1) and BWB(2) v Brentford Yacht & Boat Company Limited [2008] EWHC 3140 (Ch) (“the Geronimo Action”). The Judgment of Mr Nicholas Dowding QC (sitting as a Deputy Judge of the Chancery Division) contains a valuable description of the land in question (which he called, as I shall, “the Blue Land”) and the disputes in relation to its ownership.[32]Brentford Yacht & Boat Company is the second company of that name, the first having been dissolved in 1990. It is referred to in Mr Dowding QC’s Judgment as “BYB2” and I shall adopt that reference. The Claimant is (or certainly was) a director of BYB2 and represented it (with the learned Judge’s permission) in the Geronimo Action.[33]In the Geronimo Action, BYB2 disputed BWB’s claim to the Blue Land, and itself claimed title by adverse possession. Mr Dowding QC found (in briefest summary) that BWB had established paper title to part of the Blue Land north and east of a ramp forming part of what had been a turnover bridge which he called “the non-bridge land”, but that no party had established title to the rest of the Blue Land (which he called “the bridge land”). He agreed to make a declaration that BYB2 had not acquired title to any part of the Blue Land by adverse possession.[34]However, it is not disputed by BWB in this action that the Claimant and/or BYB2 is in possession or occupation of the land on the canal bank referred to as the bridge land, which indeed the Claimant has fenced in (according to Mr Dowding QC in his Judgment since 2006).[35]It is by virtue of that possession or occupation that Mr Moore claims riparian rights to moor vessels on the GUC at Ridgeways Wharf without license from BWB.[36]I should interpolate here, for the avoidance of doubt, that I queried the Claimant’s standing and, in particular, whether he had a sufficient interest personally to assert any riparian right: but I was told that no point is taken, and it is accepted that he can in these proceedings seek to demonstrate that the disputed notices are invalid on the grounds that the Claimant summarised in his Skeleton Argument as being that the vessels “were all within a Public Navigable river, moored to private riparian property.”[37]The parties also confirmed that it is no longer in issue in these proceedings whether(i) the Claimant occupies in his own right or as licensee and/or(ii) is entitled to exercise the riparian rights of a riparian owner. It is accepted that the relevant issue to be decided in this context is whether a riparian owner of the land in question would have a right to moor. If such a riparian owner would have such a right, I assume that BWB accepts that this should be taken to be a good answer to the section 8 notices served.

The factual context: the location of the vessels the subject of the disputed notices

[38]When the disputed section 8 notices (and, in the case of one of the vessels, a “move on” notice) were served on 21st July 2007 the vessels concerned (namely, ‘Platypus’, ‘Gilgie’, ‘Kamelya’ (which had previously been called ‘Goldfinch’), ‘Ere-Comes-Trouble’, ’Kalzar’ , ‘Lilcha’ and ‘Saifti’) were moored alongside land, including the Blue Land described above, and a pontoon attached to land known as the ‘nib’ (which BWB contends does not form part of the Blue Land, a contention which may be relevant in other proceedings but which is not for me to determine now).[39]The vessels were moored there after their eviction and removal on 15th June 2007 from offline moorings within “Workhouse Dock”, which I understand had been a working boatyard occupied by BYB2 for the purposes of its business. None of the vessels was at that time licensed by BWB to be on its waterways except for the vessel ‘Ere-Comes-Trouble’. ‘Ere-Comes-Trouble’ was licensed, as were two other vessels nearby, namely ‘Rocking Horse’ and ‘Lazy Daze’.[40]For completeness I should record that the Claimant has not sought to contest the removal of one of the vessels, namely ‘Lilcha’. The Claimant had made clear, some time before service of the section 8 notices, that BWB could remove that vessel whenever they wished.[41]The Claimant exhibited to his Witness Statement contemporary maps and illustrations depicting mooring posts lining the whole of the north bank, including the area under and alongside a bridge which (though since rebuilt) still remains.[42]In 2007 and thereafter until about the end of 2009 the Claimant lived on ‘Platypus’. Since then, with the permission of its owner, he has lived on ‘Gilgie”. ‘Gilgie’ is in fact now licensed. This may seem inconsistent in light of the Claimant’s contentions that no license is required and none may be charged for; but he is not the owner of the vessel (or indeed any of the vessels on which the disputed notices were served), and in any event, as the Claimant put it, he wishes and should be entitled “to stand by his rights even if not on them”.[43]Some time in July 2007, according to the evidence of Mr Ray Farrow (then a Patrol Officer employed by BWB, who retired on 29 August 2008), BWB decided (to quote his Witness Statement) “that as none of the boats had moved for a period of 4 months it was necessary to commence enforcement action against them.”[44]This was apparently on the basis also put forward by Mr Farrow in his evidence that (to quote his witness statement again) the vessels “came out on to the GUC at some time in February 2007.” I will return to Mr Farrow’s evidence below; but I pause to note in the meantime that his evidence in this regard cannot be correct: the vessels had been moored on the GUC for just over a month, having been moved there in June, as explained above.[45]Be that as it may, on 21st July 2007, and (as is accepted by BWB) without any prior warning letter, Mr Farrow arranged for section 8 Notices to be served on the unlicensed vessels, and they were so served that day by being affixed to each relevant vessel. Removal of the vessel is the only sanction provided for by section 8(2).[46]In the case of ‘Ere-Comes-Trouble’, however, which was licensed, a different form of notice was served. That vessel was thought by BWB to be moored at a designated BW mooring location at which the maximum stay is usually 14 days. In that case the notice served (also on 21st July 2007) was an “Overstaying Notice”, requiring the vessel to leave the designated mooring and continue its journey.[47]There were other vessels also moored in the vicinity at that time. These were not under the Claimant’s control. This apparent selectivity has given rise to concern on the part of the Claimant that he was and is being victimised. I return briefly to that later.[48]Especially having regard to the next paragraph, the exact locations of the various vessels at the date on which the disputed notices were served are not, as it seems to me, of materiality: but they were as indicated on a plan included in Mr Martin Mann QC’s Judgment in the Preliminary Issues at page 3.[49]As at the date of the hearing, none of the vessels on which disputed notices were served remained at mooring, except ‘Gilgie’: the remaining vessels have been moved from the location of this dispute. BWB submitted to me that, therefore, issues relating to any other of the vessels are moot. But even if they are, with the possible exception of the different notice served on ‘Ere-Comes-Trouble’, and subject to one other point, the scope of the Trial is not thereby reduced to any appreciable extent: the same premise (that vessels may only be moored with a license) underlay all the section 8 notices, and falls to be tested and adjudicated.[50]The one other point arises from the fact that at the time that the Section 8 Notices were served it seems that not only ‘Platypus’ (which was the Claimant’s home at that time, as indicated previously) but also ‘Gilgie’ (on which, as also noted above, the Claimant now lives), ‘Kamelya’, and also ‘Ere-Comes-Trouble’, were (according to the uncontroverted evidence of the Claimant) the sole residential homes of the occupants. If those vessels were still moored unlicensed that might have given rise to the need for further assessment of individual rights under the Human Rights Act. As it is, I consider I need only consider in the context of the Human Rights Act any rights that the Claimant may have arising from his living on ‘Platypus’ and now ‘Gilgie’.

The form of the Section 8 Notices as served

[51]The Section 8 Notices were all in substantively the same, and it appears, standard form. Each was headed “NOTICE PURSUANT TO SECTION 8(2) BRITISH WATERWAYS ACT 1983 SUNK, STRANDED ABANDONED OR UNAUTHORISED CRAFT”[52]Each notice then identified the relevant vessel, described each as “now lying in the semi-tidal G. Union Canal”, and stated as follows:
“The Board hearby [sic] give you notice that you are required to remove the craft [the words (from its present location) are then deleted] (from the board’s property) by the 18 Aug 07 (date). If you fail to do so the Board will remove it and section 8, British Waterways Act 1983, which is printed overleaf and forms part of this notice will apply. If you have any query regarding this notice please contact the following person quoting reference []”
[53]Each notice then identified Mr Ray Farrow as the Patrol Officer concerned and was signed by him.

Classification of the vessels the subject of the disputed notices

[54]Different licensing or certification regimes may apply according to the classification of a vessel (a description which, to borrow from the British Waterways Act 1983, includes any ship, boat, barge, lighter or raft and any other description of craft, whether used in navigation or not) either as a “houseboat” or a “pleasure boat”. The two definitions set out in the British Waterways Act 1971 (“the 1971 Act”), are mutually exclusive: a vessel which is bona fide used for navigation cannot be a houseboat; a vessel which is a houseboat cannot be a pleasure boat. However, many of the provisions of the various pieces of legislation, including section 8, apply to both, since both are vessels.[55]Although not so at the time when the section 8 notices were served, ‘Gilgie’ at least has since been licensed (as noted above); and its categorisation as a pleasure boat was not contested by BWB in that context. None of the vessels was (or is) registered as a “houseboat” within the meaning of that Act.[56]In his oral presentation Counsel for BWB submitted that ‘Gilgie’ at least was not in fact being “bona fide used for navigation”; and that the vessel thus falls within the definition of “houseboat” in the 1971 Act, and so cannot qualify as a “pleasure boat” within the meaning of the 1971 Act. Counsel for BWB drew attention to section 13(1) of the 1971 Act which expressly states that “It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway (whether or not the houseboat shall have been so moored or placed before the passing of this Act) unless a certificate, in this Act referred to as a “houseboat certificate”, in relation to it is then in force…”[57]The potential relevance of that section is obvious. If applicable and invoked, it appears to dispose of any argument as to a right to moor: without a certificate, it is unlawful to moor.[58]Although there may be an ambiguity in the definition of “houseboat” such that it is not clear what is sufficient to denote use for bona fide navigation, or whether only a vessel used “solely” as a houseboat falls within the definition, BWB appears to accept that a vessel may still be a houseboat though used for occasional cruising; and although a vessel which has not a “home mooring” can only be licensed as a “continuous cruiser”, a vessel with a home mooring will not necessarily be a houseboat just because it is moored for much of the time. It is an important detail in this case that ‘Gilgie’ had a home mooring, and has never pretended to be a continuous cruiser. I return to that later; for the present suffice it to say that the combination of circumstances makes it unusually difficult to determine the status of (at least) ‘Gilgie’.[59]Whether this is the explanation or not, at all events BWB has not invoked section 13 of the 1971 Act in this case. The notices in dispute do not relate or refer to it: they refer only to section 8. BWB has not relied on section 13 in its pleadings, nor advanced substantial evidence against the Claimant’s evidence and the certificates that were granted.[60]On that basis it may not be strictly necessary for me to decide the classification of the vessels. But in case it is relevant in the context of section 8 (and especially in that context deciding the meaning and application of the phrase “without lawful authority”, as to which see further below) or hereafter I express my provisional views later, after my analysis first of the 1793 Act and then of the subsequent regulatory regime, to which I now turn.

Section 43 of the 1793 Act: rights reserved and the questions it raises

[61]My starting point is the 1793 Act, and more particularly section 43. That provides (using the version on which the parties were agreed, but interpolating sub-paragraph numbers not to be found in the original text but suggested by BWB and accepted by the Claimant) as follows:
“And it be further enacted, that, (1) in making, forming and continuing the line of the said intended canal, in, along, or near the said River of Brent, or any part thereof, no embankment shall be made, or other thing done, whereby, or by means whereof, the free navigation of the River of Brent, as heretobefore anciently used and enjoyed, may or shall be prevented, impeded, or hindered, or the houses, warehouses, wharfs, lands tenements, and grounds, on the banks, or near adjoining to, the said River of Brent, shall be injured; but that (2) it shall and may be lawful, to and for the owner, proprietors, possessors, and occupiers, of the several houses, warehouses, wharfs, lands, tenements, and grounds, on, along, or near adjoining to, the said River of Brent, to have the full free and uninterrupted use and enjoyment thereof, and the Navigation of the said canal, and also of the said River of Brent, as heretobefore used, and enjoyed, by them and their predecessors; and that (3) nothing in this Act contained shall extend, or be construed to extend, to charge or make the said owners, proprietors, possessors, and occupiers, of such houses, warehouses, wharfs, lands, tenements, and grounds, liable to the payment of any tolls, rates, or duties, whatsoever, upon account of, and for any goods, wares, and merchandises whatsoever, carried upon the said canal, or upon the said River Brent, or upon account of any barges, or other vessels navigating the said canal, or the said River Brent, in such part of the said river and line of the said proposed canal, as lie within the parishes of Hanwell, Isleworth and Ealing, between the mill in the occupation of Richard Bax and company, and the junction of the said canal and river with the river of Thames, or to the payment of the toll or duty of One halfpenny per ton, hereinafter made payable for goods and other things passing into or from the River Thames, provided such goods and other things shall not be navigated upon any part of the said canal, between the said mill, in the occupation of Richard Bax and company and Braunston aforesaid: And that (4) the said company of proprietors shall not, in the making, forming and continuing, of the said intended canal, or embankment, of the said River of Brent, cause the waters thereof to be so much raised, as to overflow, injure, or in any way damage the houses, warehouses, wharfs, lands, tenements, or grounds, lying near to the said River of Brent”
[62]In saying that the starting point is the 1793 Act I do not mean to suggest that the 1793 Act is the source of either the Claimant’s alleged rights or the Defendant’s asserted powers of management and control.[63]Indeed, although there was much focus before me on the 1793 Act, and in particular on its section 43, both parties were agreed that in relevant part it does not confer any new rights (save insofar as express insulation from charge is a “right”).[64]Both parties accepted that, if and to the extent that the provisions of the 1793 Act are ambiguous, the general rule of construction is that such ambiguities should be resolved in favour of the private individuals affected and against the interest of the promoters of the Act: see Swan Hill Developments Limited and others v BWB [1997] EWCA Civ 1089, citing a decision of Lord Tenterden LCJ in Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B & Ad 792 at 793 where he said:
“The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the pubic; and the plaintiffs can claim nothing which is not clearly given to them by the Act.”
[65]As I read the section, and consistently (as I perceive it) both with the required approach to construction and the purpose of the section (as above described), i) it (by its first limb) prohibited any prevention, impeding or hindrance of(a) PRN or(b) injury to the properties along or near the River Brent during the making, forming and continuing of the line of the canal; ii) (by its second limb) confirmed and ratified rights which, before the construction of the canal, owners, proprietors, possessors and owners of houses, warehouses, wharfs, land tenements and grounds already did enjoy, including full, free and uninterrupted use and enjoyment of (a) PRN and (b) any other rights they had or appurtenant to their land on, along or near adjoining to the River Brent (which I interpolate would most relevantly include riparian rights); iii) clarified that nothing in the Act should be taken to allow any tolls, rates or duties for the carriage of goods, wares and merchandise, or “upon account of any barges or vessels navigating the said canal, or the said River Brent ” within the relevant stretch of water; and iv) prohibited the making, forming or continuing of the canal or embankment in such a way as to cause damage of any kind to houses, wharehouses, wharfs, lands tenements or grounds lying near the River of Brent; v) read as a whole, conferred nothing that was not already enjoyed by the persons affected, but confirmed rights previously enjoyed and protected them from encroachment and interruption.[66]The questions that then seem to me to arise in the context of the rights and freedoms expressly preserved and confirmed by section 43 of the 1793 Act are i) What is comprised within the right of PRN or “free navigation”? ii) What is comprised within the right to have “the full, free and uninterrupted use and enjoyment of their several houses etc., as hereto before used…” and in particular whether the rights include any right to moor? iii) Whether the preservation and confirmation of free use of these rights makes it lawful to enjoy and use such rights without a license; iv) Whether subsequent legislation has eroded or altered any of the above.[67]Question (i) above has already been partially decided: it was held by Mr Mann QC in the context of the hearing of preliminary issues that the right of free navigation, which I think can be equated to PRN, does not include any ancillary right to moor other than temporarily in the course of navigation. Whilst PRN may remove the need for a license in the case of the use of a vessel for navigation on tidal stretches (see below), it does not include any right to moor other than temporarily in the course of navigation. The right is one of passage, not unlike the right of the public on a highway: and see also Iveagh v Martin and Another [1961] 1 QB 252 at 273. No more extensive right incidental to PRN is asserted.[68]At the heart of question (ii), which is as to the rights of owners, proprietors, possessors, and occupiers of relevant properties, is the issue as to the nature and proof of riparian rights. Leaving aside for present purposes special right individually acquired (for which specific and cogent proof would be required), the question becomes, as formulated in BWB’s Skeleton Argument, whether the possessor or occupier of land alongside the canal has a riparian right entitling him to moor a vessel alongside his land. For the avoidance of doubt, I do not read section 43 of the 1793 Act as providing for or acknowledging any greater relevant right than that.[69]On this question, as perhaps might be expected, the parties are not agreed. More unexpected is that the point appears somewhat uncertain in the case law.[70]In particular, there is a Privy Council decision in Booth v Ratte (1890) 15 App Cas 188 which appears (according to the headnote to the report) to establish that a riparian owner (as for the purposes of these proceedings I am to treat the Claimant) is at liberty to construct and moor to his bank a floating wharf and boathouse, provided it is not an obstruction to navigation.[71]However, in Halsbury’s Laws Vol. 100: Water and Waterways 4th ed. para. 82 the natural rights incidental to ownership of riparian land are cast in terms of rights of access, such that (for example) only a right to moor for such period as is necessary to board, load or unload a vessel is contemplated.[72]Leading Counsel for BWB sought to distinguish (or perhaps sideline) Booth v Ratte on the grounds that(a) in reality, the only issue in the case was whether the plaintiff, who had no title to either the wharf or the boathouse or the site thereof, had standing to maintain an action for damages for nuisance caused to the wharf(b) the relevant conclusion was not necessary and reached without full citation of relevant authority as to the nature of riparian rights. He further noted that a similar view of the case was taken by the Court of Appeal in Tate & Lyle Industries Ltd. and others v Greater London Council and others [1983] 2 Ll Rep 117, especially in the judgment of Oliver LJ at 136.[73]Booth v Ratte is rather an extreme case in some ways. The nuisance in question was very considerable; the plaintiff had used the wharf without complaint for nearly 20 years; the merits were very strong (and it may be noted that Counsel for the respondents was not called upon in the Privy Council). Also, and as Oliver LJ noted, it is not clear whether the plaintiff was relying upon purely riparian rights of user of the stream (p135). That does tend to dilute the authority of the case; and of course it is not strictly binding on this court anyway.[74]I would add this, however, by way of further support for the conclusion I have reached that the ordinary rights incidental to ownership of riparian land do not include a right of permanent mooring. As it seems to me, there are distinctions between a right to moor and a right to erect a wharf (including a floating wharf).[75]First, a wharf is ordinarily provided to assist access and the loading and unloading of goods, which is consistent with it being ancillary to a right of access (and see Haddock v Humphrey [1900] 1 QB 609); a permanently moored vessel is not. Secondly, and perhaps because of that, it does appear to be well established that a riparian owner may erect wharfs and jetties on the bank (and see Wisdom’s Law of Watercourses at 6-47;also what may be a recognition of that right in the 1793 Act itself at section 85). This also distinguishes Booth v Ratte, allows consistency with the general principle that the rights of a riparian owner are in the nature of being rights of access, and provides a basis of reconciling the textbook views to which I have referred earlier.[76]Accordingly, I agree with BWB, and I hold, that insofar as the Claimant asserts an entitlement to moor alongside the canal bank he occupies, there is no ordinary riparian right entitling him to moor his vessel there except temporarily for the purpose of access, and for loading and unloading.[77]Thus, in my judgment, any protection of riparian rights which section 43 of the 1793 Act provides would not avail the Claimant as regards his claim to a right of permanent mooring.[78]It follows that in relation to question (iii) in paragraph 66 above, in my judgment, nothing in the 1793 Act makes unlicensed use of the GUC lawful except in the case of(a) navigation of tidal stretches in exercise of PRN or(b) a special and specific right which was (i) enjoyed and used prior to 1793 (ii) as an incident of ownership, proprietorship, possession or occupation of houses, wharehouses, wharfs, lands or tenements and grounds along or near adjoining the River Brent. No such right has been demonstrated.[79]As to question (iv) in paragraph 66 above, it seems to me clear that subsequent legislation has not eroded PRN, nor any other right confirmed (rather than conferred) by the 1793 Act. As I understand its concession in the Court of Appeal to which I have referred earlier, BWB no longer contends otherwise (see paragraphs 9 to 11 above and also paragraph 114 below). But that does not assist the Claimant in the context of his claim to a right to moor, unless he can demonstrate such a right. My conclusion that a right to moor is not, and is not incidental to, a riparian right, and that no other specific right to moor used before 1793 and confirmed by section 43 of the 1793 Act has been demonstrated, means that to succeed the Claimant must show some other source of a right to moor within and confirmed by the 1793 Act.

Whether there are any other provisions of the 1793 Act that assist the Claimant

[80]The question thus arises whether there is anything else within the 1793 Act which does assist him, and which has survived the legislation about the GUC since then.[81]The Claimant combed through the 1793 Act, and prayed in aid sections 82, 84, 85 and 99. He did not press any of these hard, and in this I think he was right: in my judgment, none of the sections mentions, still less confers, any entitlement to moor permanently.[82]The nearest to his target seems to me to be Section 82. That section permitted owners of land through which the canal or collateral cuts were made to construct or use any wharfs, quays, landing places, cranes weigh beams or warehouses in or upon his, her or their own land and to “make and use proper and convenient places for boats and other vessels to lie and turn in and pass by each other…” subject to not causing an obstruction to navigation. Rates paid for use were vested in the owners. But, in my view, the permission is not, and cannot sensibly be read to connote or imply, a permanent mooring right.[83]Sections 84 and 85 address only rates or charges for wharfage, and do not in my judgment assist either.[84]Section 99 made it lawful for owners and occupiers of lands adjoining the canal or its collateral cuts to use any pleasure boat or boats upon the canal and cuts “without any interruption form the said Company of Proprietors and without paying any rate for the same so as the same be not made use of for carrying any goods or other things and so the same shall not obstruct or prejudice the navigation of the said canal and collateral cuts or the towing paths or the sides thereof.” But this, though an interesting example of the wish of promoters to accommodate landowners so as to secure their support, does not assist on the point in issue: it has nothing to do with, and certainly does not confer, permanent mooring rights. Further, in the case of tidal reaches, it adds nothing to the PRN.[85]I should mention that Mr Stoner on behalf of BWB also relied in this context on section 105 of the Transport Act 1968 (which I shall address further later in this judgment). This provided that any local enactment passed with respect to an inland waterway (which it is common ground the 1793 Act is) conferring (as distinct from recognising and endorsing) any public or private right of navigation over the waterway or imposing any maintenance obligation shall cease to have effect. Mr Stoner submitted that this was a further and complete answer to the sections that the Claimant relied upon as conferring rights. I agree that is so as regards section 99; but not as regards the other sections insofar as they relate to rights other than navigation rights.[86]Nevertheless, it follows from my conclusions that a right of permanent mooring is not a general riparian right, and that the 1793 Act does not confer any such rights either, that if the Claimant is to get anything more out of the 1793 Act than confirmation of PRN (which is not in issue) he would have to establish(a) some other special and particular right to moor vessels permanently(b) running with the land and(c) used and enjoyed by its previous owners, proprietors, possessors or occupiers(d) before 1793. That is a tall order.[87]In this regard the Claimant advanced an interesting argument based on submissions made in the course of proceedings in 1845 between HM Attorney-General and the City of London regarding rights in respect of the River Thames. The Attorney-General submitted, in relevant part, that “the ground and soil of every port, haven and arm of the sea, creek, pool and navigable river thereof, into which the sea ebbed and flowed…belonged to Her Majesty, and Her Majesty had a right of empire or government over the navigable rivers of this Kingdom, and that Her Majesty and her predecessors, time out of mind, was and has been seised, in right of the Crown of England, of the port and haven of the river Thames (the same being an arm of the sea, into which the sea has always flowed and re-flowed), and that the same river was also, and from time immemorial had been, an ancient royal and navigable river and King’s highway for all persons with their ships, vessels, and baits and crafts to pass, re-pass, and navigate at their free will and pleasure, and to moor their vessels in convenient parts of the river, not impeding the navigation.” [My underlining][88]The Claimant contended that the submissions quoted demonstrated an acceptance of public rights of mooring additional (rather than incidental) to PRN; and in reply to BWB’s answer that the submissions were in any event made in respect of the River Thames and not the River Brent he contended that in fact that the Thames Conservancy Acts and the Thames Watermen’s and Lightermens’ Act, 1893 extended to the tidal areas of the GUC.[89]The proceedings in which the submissions (called an Information) were advanced were in fact compromised, broadly along the lines that the City of London would give up its claims, and the Crown would agree that the disputed rights and powers should be vested in Thames Conservators pursuant to and on the terms of the Thames Conservancy Act, 1857. (Those powers are now vested in the Port of London Authority.) Accordingly, there was never a decision on HM Attorney-General’s submission.[90]I have read and considered carefully the legislative history assembled by the Claimant, and I am admiring of his resourcefulness; but I do not consider that either the quoted submissions or the history and content of the legislation assembled demonstrate a right of permanent mooring on the tidal reaches of the River Brent stretch of the GUC.[91]Briefly to explain this conclusion: I do not think I can accord to the submissions the status of a decision, when none was reached; and in any event, I do not think it clear whether any right of mooring was being presented as permanent and additional to PRN, or merely temporary and incidental to PRN. Nor am I satisfied that the two rivers were to be equated in this regard: and (though this is not the basis of my conclusion and there is room of argument) my own reading of the relevant Acts does not support the Claimant’s submission that the Thames Conservancy and related Acts extended to any part of the GUC prior to their express exclusion (which is clear) in the Port of London Acts.[92]Given the Claimant’s confirmation that for present purposes he does not assert or rely upon any claim to ownership of the bed of the River Brent/GUC as entitling him to moor any vessels, I have concluded further that the Claimant, despite his tenacity and ingenuity, has not surmounted the formidable hurdle of demonstrating any right of permanent mooring.[93]With his usual candour I think he recognised this. Indeed on the last day of the hearing he began his closing remarks by saying that if this was a case about establishing permanent mooring rights he would be likely to fail; he said it was “like shooting fish in a barrel”. Thus, whereas Leading Counsel for BWB politely urged on me that the fact that the Claimant cannot identify a permanent right to moor is fatal to his case and sufficient to dispose of it, the Claimant insisted that the case should not be about mooring rights but about the limitations of and restrictions on BWB’s power. This is the mismatch between the two sides in terms of their perception of the issues that I mentioned at the beginning of this long Judgment. The Claimant’s case based on the limitation on BWB’s statutory authority in tidal stretches of the GUC[94]Put summarily, the gist of what is really the Claimant’s primary case is that mooring is not of itself unlawful; that the powers of BWB in relation to mooring are confined to expressly defined offences; and that in that context the only mooring offences giving rise to any power of BWB to remove vessels from tidal stretches of the GUC, (leaving aside a vessel which is “sunk, stranded or abandoned” (see section 8(1) of the British Waterways Act 1983)) is limited to vessels which are causing “an obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside then inland waterway” (see section 18(1) of the British Waterways Act 1995) or which, after its owner has been served with 28 days’ notice of removal, “is moored or lying in such a position as is likely to interfere with any dredging, repairs, maintenance works, or any other operations of the Board, or any works or operations proposed to be carried out by any other authority or body in pursuance of any statutory functions” (see section 19(1) of that same 1995 Act).[95]On the Claimant’s case, the only additional power of removal available to BWB is where a vessel which is required to have and display a licence does not do so; but since (again on the Claimant’s case) a vessel used on a tidal stretch requires no licence, BWB has no power to remove a vessel from a tidal stretch on that ground.[96]The Claimant’s starting point in relation to his extended analysis of the web of legislation is the proposition that (quoting again from Stourbridge Canal v Wheeley [supra], to which I have already referred) the proprietors (for which read BWB) “can claim nothing which is not clearly given to them by the Act(s).” I accept this; and thereby both implicit parts of the proposition, being(a) the BWB, not being a natural person but a creature of statute, has only those powers with which it is endowed by statute and(b) in the event of ambiguity, such powers should ordinarily be strictly construed if a wider construction would deprive a member of the public of an existing right.[97]With that proposition in mind I turn, therefore, to consider in greater detail the Claimant’s primary case that the BWB simply had no statutory power to do what it has done in serving the section 8 Notices.

BWB’s statutory powers: the legislation from which they are derived

[98]Before reviewing the various Acts under which the BWB derives its powers it is important to clarify certain expressions that have led to some uncertainty in determining the scope of the powers in question.[99]In particular, it is important to note the difference between(a) a canal (which without words of extension denotes an artificial waterway) and(b) a river waterway (which denotes, in the case of a waterway which is in part artificial and in part tracks a pre-existing river, the latter part) and(c) a tidal waterway or river (connoting a part of a pre-existing river waterway that is tidal). All these parts fall within the description of an “inland waterway”: but different considerations may apply to each such part. It is also important to recognise that the BWB owns part, but by no means all, of the inland waterways the management of which forms part of its statutory undertaking. BWB’s powers have developed incrementally, but always having regard to the persistence of, and their obligation to assist, PRN.[100]The chronological starting point in the analysis of BWB’s regulatory (including licensing) powers is the British Transport Commission Act, 1954 (“the 1954 Act”). All that I need note from the 1954 Act (apart from the obvious fact that at the time the relevant authority was the British Transport Commission, “the BTC”) is that:(1) by section 16(2) the BTC was empowered to make “byelaws regulating the use of the canal and the conduct of all persons…who shall be on the canal for all or any of the following purposes:… (c) for regulating the loading, discharging and mooring of vessels using the canal…”(2) “Canal” was defined as meaning “any canal or inland navigation belonging to or under the control of the BTC…” This definition, and the uncertainty of the words of extension, has bedevilled analysis and precise identification of the true scope of the relevant regulatory powers, and had later to be clarified in the British Waterways Act 1975 (as will be seen later).(3) Section 16(6) stipulated that any byelaws made by the BTC should not come into operation until confirmed by the Minister. Suffice it to say that there is no byelaw relevant to the adjudication of this dispute, although it is right to note that new Bye-Laws pursuant to section 16 of the 1954 Act are proposed which are intended to empower BWB to prohibit and control mooring in a waterway it controls or manages. It is also right to note the Claimant’s contention in this regard that the perceived necessity and the explanation of the need for such new Bye-Laws demonstrates BWB’s understanding of its lack of power at present; and the explanation offered by BWB, that “Compliance with notices controlling mooring is currently enforced through licence conditions” is further relied on by the Claimant as confirming his point. “byelaws regulating the use of the canal and the conduct of all persons…who shall be on the canal for all or any of the following purposes:… (c) for regulating the loading, discharging and mooring of vessels using the canal…” “any canal or inland navigation belonging to or under the control of the BTC…” This definition, and the uncertainty of the words of extension, has bedevilled analysis and precise identification of the true scope of the relevant regulatory powers, and had later to be clarified in the British Waterways Act 1975 (as will be seen later).[101]Next is the Transport Act 1962 (“the 1962 Act”). This was the Act which created the BWB upon the dissolution of the BTC, and (by section 31) transferred to BWB the powers, rights and liabilities in respect of inland waterways previously vested in the BTC. Section 10 of the 1962 Act provides:
“It shall be the duty of the [BWB] in the exercise of their powers under this Act to provide to such extent as they may think expedient – (a) services and facilities on the inland waterways owned or managed by them, and (b) port facilities at any harbour owned or managed by them, and to have due regard to efficiency, economy and safety of the operation as respects the services and facilities provided by them.” (a) services and facilities on the inland waterways owned or managed by them, and (b) port facilities at any harbour owned or managed by them, and to have due regard to efficiency, economy and safety of the operation as respects the services and facilities provided by them.”
[102]Section 43 of the 1962 Act then provides: “(1) Subject to this Act,-(a) All charges schemes under Part V of the Transport Act, 1947, shall cease to have effect, and(b) No local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them- (i) for the carriage of passengers or goods, (ii) for the use of any railway, or of any inland waterway by any ship or boat, (iii) for services and facilities connected with the carriage of passengers or goods, or with the use of any railway, or of any inland waterway by any ship or boat, or (iv) for services and facilities in or connected with a harbour, (whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the Boards. (2) Paragraph (b) of the foregoing subsection shall not be read as exempting the Boards from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge. (3) Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the British Waterways 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 think fit (a) All charges schemes under Part V of the Transport Act, 1947, shall cease to have effect, and (b) No local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them- (i) for the carriage of passengers or goods, (ii) for the use of any railway, or of any inland waterway by any ship or boat, (iii) for services and facilities connected with the carriage of passengers or goods, or with the use of any railway, or of any inland waterway by any ship or boat, or (iv) for services and facilities in or connected with a harbour, (whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the Boards.[103]Further, section 43(8) of the 1962 Act provides as follows:
“(8) The services and facilities referred to in subsection (3) of this section include, in the case of [BWB], the use of any inland waterway owned or managed by them by any ship or boat.[“Ship” is defined in the same Act as including “every description of vessel used in navigation”.]”
[104]In his written submissions the Claimant depicted section 43(3) of the 1962 Act as BWB’s “all-time favourite”, a “universal catch-all power of the broadest application, enabling them to control virtually anything done on waters under their control.”[105]In anticipation of BWB placing predominant reliance on that provision the Claimant devoted considerable time and research (set out in some 40 paragraphs of his Skeleton Argument) to its true construction. He urged that, both as a matter of logic and coherence, and consistently with case law to the effect that the powers of BWB should be restrictively construed (again citing Stourbridge Canal Company v Wheeley (1831) 2 B. & AD. 792 and Swan Hill Developments Limited and others v BWB [1997] EWCA Civ 1089), any powers conferred by section 43(3) of the 1962 Act should be read as confined to charging and prescribing terms and conditions for use expressly made subject to the control of the BWB and not for use exercised as of right (such as user pursuant to PRN). He also cited extracts from evidence given in Select Committee to the effect that BWB recognised that its powers under section 43(3) of the 1962 Act were uncertain as to their precise scope .[106]In the event, BWB did not appear to me to put such great reliance on the section. In BWB’s Skeleton Argument the only reference to it was accompanied by BWB’s acceptance that “the ability to utilize section 43(3) is not available to BWB, pursuant to section 43(2) if, in the context of the present case, section 43 of the 1793 Act provides for a freedom from the relevant charge.” Although perhaps the extent of this concession is not ideally clear, I understand BWB thereby to accept that section 43 of the 1962 Act not only does not enable it to make a charge in respect of use of the GUC pursuant to PRN, but also that section 43 of the 1962 Act does not provide it with power to make the exercise of PRN, or the enjoyment of any other rights recognised and preserved by the 1793 Act (which both parties accepted is a “local enactment” for the purposes of section 43 of the 1962 Act), subject to any terms or conditions.[107]However, it seems to me arguable (though BWB did not press this) that this would not necessarily preclude BWB from utilizing section 43(3) of the 1962 Act to demand, take and recover charges for the use of the GUC on stretches to which the PRN is not applicable, and for other services and facilities for which the 1793 Act does not provide freedom from charge. Further, section 43(3) of the 1962 Act may arguably also enable BWB to make the use of any services and facilities it provides (including, by virtue of section 43(8) of the 1962 Act, the use of the GUC by any vessel) subject to such terms and conditions as it thinks fit, unless such user is pursuant to the exercise of PRN or some other right preserved by the 1793 Act.[108]The question then is as to the extent of any freedom from charge provided for by the 1793 Act. It is quite extensive; but not, to my mind, as absolute as the Claimant has submitted. Plainly, no charge for use in exercise of PRN may be made: limb (2) of the 1793 Act so provides (see paragraph 61 above). Nor may a charge be made for the use by owners, proprietors, possessors and occupiers of their houses, warehouses, wharfs, lands, tenements and grounds, in any way that they had previously used their houses, warehouses, wharfs, etc., prior to 1793: again, as I read it, limb (2) so provides; and I consider that the word “thereof” refers to the houses, warehouses etc., Further, limb (3) stipulates that nothing in the 1793 Act itself is to extend (or be construed to extend) to impose a charge or other tolls, rates or duties for the use of the specified part of the GUC. However, I do not read limb (2) as applying to the use or enjoyment of rights that cannot be demonstrated to have been exercised by the relevant owners, proprietors etc., prior to 1793. Nor, as I read the section, does limb (3) insulate owners, proprietors etc., or their successors from charges, tolls etc., imposed by legislation for all time thereafter.[109]On that basis, if (as I have concluded) neither the PRN nor any relevant riparian right confers or connotes any right to moor permanently, and except in the case of a relevant right (in the context, of permanent mooring) demonstrated to have been enjoyed prior to 1793, section 43 of the 1962 Act may arguably also, in my view, be read as empowering BWB to demand, take and recover a charge for permanent mooring, and to make permanent mooring subject to such terms and conditions as it thinks fit, provided that it has the means of imposing those terms and conditions (in right of ownership, by consent or by permissible Bye-Law).[110]However, given BWB’s apparent reluctance to press these points, I do not feel it appropriate to reach a final view on them. That feeling is strengthened because it does seem to me that presently there would be a difficulty for BWB in exercising those powers in the particular context. The problem for BWB, which may partly explain its somewhat lukewarm approach to section 43 of the 1962 Act in its submissions (written and oral) before me, is that, since it has not (or has agreed for the purpose of these proceedings not to rely on) a property right, its chosen vehicle for imposition of terms and conditions as to mooring has been a licence (on which terms and conditions regulating mooring are endorsed).[111]I have noted already, and it is also relevant in this regard, that in its own notes to accompany a table of proposed new Byelaws (dated February 2010) BWB acknowledge that “Compliance with notices controlling mooring is currently enforced through licence conditions”; and it is indeed on that basis that BWB seeks to justify a new byelaw to “provide clarity and better enable enforcement of compliance with mooring restrictions in areas of congestion.” If (as the Claimant contends) no licence is required that vehicle for the imposition of terms and conditions pursuant to section 43(3) of the 1962 Act is not available; and cf Burnett v BWB [1973] 1 WLR 701. Further, BWB has accepted in its own information sheet entitled “General Terms and Conditions for Boat Licences: England and Wales” (June 2011 issue) that:
“There are no public law provisions concerning moorings along [BWB’s] canals. That is entirely a matter for management by [BWB] as property owners.”
[112]Put shortly, even if the 1962 Act empowered BWB to impose terms and conditions for user by way of permanent mooring, I have not been persuaded that BWB has ever validly exercised such power. On that basis, the validity of the section 8 Notices in issue must depend on some further or alternative regulatory power. I return therefore to the legislative history.[113]Chronologically the next relevant piece of legislation is the 1968 Act. As noted previously, this was at one time of fundamental import in BWB’s approach; or so it appears from their early correspondence with the Claimant. For example, by e-mail dated 6th August 2007 Mr Nigel Johnson (writing as Legal Director, BWB) purported to correct the Claimant’s assertion that his free PRN were maintained and respected under the 1793 Act on the following basis:
“All rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the Act of 1793 to which you refer) were abolished by section 105 of the Transport Act 1968. Section 115 of that Act defines the “right of navigation” that is abolished as including “any right to use or keep any vessel or craft on the waterway or canal. Accordingly any vessel used or kept on a BW waterway must be licensed and lawfully moored in accordance with the provisions of the British Waterways Act 1995.”
[114]BWB no longer so contends. It now accepts that the purpose and effect of section 115(2) of the 1968 Act is to make clear that, although section 105 sweeps away any public or private right conferred by any “local enactment” (which expression, as noted above, the parties are agreed would include the 1793 Act), it has no such application to or effect on a right merely confirmed by (for example) the 1793 Act.[115]BWB of course(a) accepts the existence of PRN on tidal parts of the GUC and(b) has expressly conceded for the purposes of these proceedings that any right to moor maintained and respected by the 1793 Act has not been repealed by the 1968 Act. Accordingly, whilst the 1968 Act (which, it may also be noted, introduced a distinction in terms of regulation between (a) “commercial waterways” and (b) “cruising waterways”), is of considerable importance in the genesis of the dispute (and BWB’s reliance on it may also be relevant on the issue of costs), it is no longer important otherwise in the adjudication of this dispute.[116]Next in the sequence is the British Waterways Act 1971 (“the 1971 Act”). The 1971 Act reflected the great increase in the recreational use of the GUC, and provided for regulation for pleasure boats and houseboats (each as defined) in the following respects: i) Section 5(1) states that “It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway 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 [BWB] allowing the use of all inland waterways without further payment”. ii) Section 5(2) provides for breach to be an offence and for a fine to apply. iii) “River waterway” is defined in section 4(1): it is the “main navigable channel” of each of the inland waterways specified in Schedule 1 to the 1971 Act. iv) Section 6(1) provides for the registration of any pleasure boat upon payment of a prescribed charge and for a certificate of registration bearing a designated number, and for such certificate to be subject to “compliance by the applicant with the terms of any enactment relating to a river waterway”. v) Section 13(1) provides that “It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway (whether or not the houseboat shall have been so moored or placed before the passing of this Act) unless a certificate, in this Act referred to as a “houseboat certificate” in relation to it is then in force. The subsection contains a proviso that nothing in it is to prejudice or affect any obligation to obtain local authority consent(s). vi) Section 13(2) provides for the BWB, in the event of a breach of section 13(1), to give notices requiring the person having control of the houseboat “to remove or demolish it and to clear and restore the surface of that part of the inland waterway from or on which the houseboat has been removed or demolished or to comply with the condition imposed.” vii) Section 13(3) imposes a fine for failure to comply with a notice. viii) Section 13(3)(c) provides for costs and expenses incurred by the BWB in connection with removal or demolition and clearance and restoration to be recoverable. ix) Sections 14 and 15 and 16 provide respectively for(a) the registration of houseboats and the issue of numbered certificates,(b) for charges for such certificates and(c) for persons having control of a houseboat to produce a houseboat certificate on demand, with a fine for contravention.[117]The principal purpose and effect of the 1971 Act as it applies to the GUC was to introduce a defined system of registration, previously lacking, in respect of controlled user of the GUC. By specifically identifying particular stretches of inland waterways as being “river waterways” the 1971 Act drew a distinction between(a) canals and(b) river waterways and(c) remaining parts of the inland waterways which are neither canals nor river waterways, because tidal (such as the River Brent stretch).[118]Thus, on river waterways (as designated in Schedule 1 of the 1971 Act or as further defined by the Secretary of Sate pursuant to section 4 of that Act) use of any pleasure boat was made unlawful unless a “pleasure boat certificate” or some other license issued by the BWB was in force; and any such certificate subjected the holder to compliance with the terms of any enactment relating to a river waterway (section 6(1)(c)).[119]The licensing regime for the use of vessels for cruising on canals (properly so-called and not being river waterways) overlapped with that for inland waterways but was also subsequently provided for in Bye-Laws made pursuant to section 15(2) of the 1954 Act (and, by way of illustration, paragraphs 3 and 4 of the Bye-Laws made in 1976 required any person keeping or using any pleasure boat on any canal, not being a river waterway, to have a pleasure boat license on display).[120]The curious gap is obvious: vessels only using inland waterways that were not canals nor river waterways were not caught by the registration regime, except in the case of houseboats, which did henceforth now require (if to be lawfully kept or used on an inland waterway) a “houseboat certificate” (section 13(1)).[121]I return to this gap later; but continuing at this point this chronological review of the relevant statutes, I can pass over the British Waterways Act 1974 (“the 1974 Act”), which amended the 1971 Act by (amongst other amendments) adding to Schedule 1 of the 1971 Act, but not so as to extend to the stretch of waterway relevant in these proceedings.[122]The British Waterways Act 1975 (“the 1975 Act”) extended the powers of BWB under the 1954 Act to make canal bye-laws, but not so as to apply to tidal waters: so it is of no application in the present case.[123]It is however worth noting that section 3 of the 1975 Act requires any pleasure boat certificate or license to be displayed prominently “whilst it is on a river waterway.” That connotes, as it seems to me, that no display is required on any inland waterway that is not a river waterway: and the most obvious reason would be that no such license is required at all in the case of a pleasure boat that is not on a river waterway.[124]That brings me to the 1983 Act, and in particular section 8. That section, which is of course at the heart of the case, provides as follows: “8.—(l) In this section— "owner" in relation to any relevant craft means the owner of the relevant craft at the time of sinking, stranding or abandonment and includes a person letting a vessel for hire, whether or not that person owns the vessel; "relevant craft" means 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. (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. (3) All expenses incurred by the Board in—(a) the removal, storage or destruction of the relevant craft;(b) the removal or storage of any furniture, tackle and apparel of the relevant craft, or any cargo, goods, chattels and effects on board the relevant craft; or(c) marking, watching, buoying or otherwise controlling the relevant craft; may be recovered by the Board from the owner of the relevant craft. (4) If within six weeks of its removal by the Board any relevant craft cannot be proved to the reasonable satisfaction of the Board to belong to any claimant, it shall, together with any furniture, tackle and apparel and any cargo, goods, chattels and effects on board, vest in the Board: Provided that, if within twelve months of its removal a claim to the relevant craft is made by a person who subsequently proves that he is the owner thereof, the Board shall, if the relevant craft is unsold, permit the owner to retake it with any furniture, tackle, apparel, cargo, goods, chattels and effects on board upon payment of the expenses referred to in subsection (3) of this section or, if the relevant craft and the furniture, tackle and apparel and any cargo, goods, chattels and effects on board have been sold, the Board shall pay to such owner the amount of the proceeds of such sale after deducting the said expenses, and in case such proceeds shall be insufficient to reimburse the Board such expenses the deficiency may be recovered by the Board. (5) Notwithstanding the provisions of this section the Board may at any time move without notice a relevant craft if it be an obstruction or a source of danger.” (a) the removal, storage or destruction of the relevant craft; (b) the removal or storage of any furniture, tackle and apparel of the relevant craft, or any cargo, goods, chattels and effects on board the relevant craft; or (c) marking, watching, buoying or otherwise controlling the relevant craft; may be recovered by the Board from the owner of the relevant craft.[125]So far as this case is concerned, the vital words are in the definition of “relevant craft”. There being no question of any of the vessels having been sunk, stranded or abandoned, the issue is whether such vessels (and in particular now ‘Gilgie’) was(a) “left or moored”(b) in “any inland waterway or in any reservoir owned or managed by the Board”(c) “without lawful authority”. There is no dispute as to either (a) or (b): the crucial question is as to (c).[126]As foreshadowed earlier, the Claimant’s contention is that the phrase is to be given a restricted meaning. His case is that a vessel which either has a license or does not need one is only left or moored “without lawful authority” within the meaning of section 8(2) if it is thereby committing a specific mooring offence; and that the only mooring offences specified are those created by section 18 of the British Waterways Act 1995 (“the 1995 Act”).[127]Section 18(1) of the 1995 Act provides as follows:
“(1) 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.”
[128]Section 18(2) provides for a fine for contravention of section 18(1) on summary conviction. Section 18(3) provides for any vessel moored or allowed to remain in contravention of section 18(1) to be a “relevant craft” for the purpose of section 8 (of the 1983 Act).[129]Section 19(1) of the 1995 provides that when any vessel is “moored or lying in such a position as is likely to interfere with any dredging, repairs, maintenance works, or any other works or operation of the Board, or any works or operations proposed to be carried out by any other authority or body in pursuance of any statutory functions, the [BWB] may serve on the owner of such vessel a notice requiring him within 28 days…to remove such vessel for such time as BWB or such other authority or body may reasonably require for the completion of such works or operations.”[130]Section 19(2) of the 1995 Act permits the BWB to remove without further notice a vessel moored or allowed to remain in contravention of a notice served under section 19(1); but sections 19(3) and (4) mandates the BWB to arrange temporary mooring if the vessel was “lawfully moored”.[131]Section 19(6) also provides for the removal of a vessel that was “lawfully moored” to be at the cost and risk of BWB and there is provision also for compensation if the vessel is a hire pleasure boat as defined in section 3 of the 1971 Act.. Section 19(8) then provides as follows:
“For the purposes of this section a vessel shall not be deemed to be unlawfully moored solely by virtue of its being moored or allowed to remain in contravention of a notice served under subsection (1) above.”

The Claimant’s construction of these provisions

[132]In strict observance and implementation, as he would see it, of his proposition that BWB’s statutory powers must be restrictively construed, the Claimant’s case depends on a very precise and restrictive analysis and construction of the overall architecture of BWB’s control over inland waterways and of the particular provisions to which I have referred.[133]More particularly, in the context, the Claimant contends that section 8 of the 1983 Act is to be read as confined to removal of vessels which are either in breach of BWB’s licensing regime or are moored or kept at a place or in a way that impedes BWB in the exercise of its statutory function of maintaining the inland waterways for which it is the navigation authority in a suitable condition for use by relevant vessels (see section 105 of the 1968 Act). The Claimant contends that BWB has not, qua regulatory authority (as distinct from its rights as owner which are here not relevant), any statutory power as regards mooring that does not cause an obstruction or otherwise impede the use of the GUC for recreational cruising or the carriage of commercial freight. According to the Claimant, the phrase “without lawful authority” in section 8(2) of the 1983 Act, which is not expressly defined, relates exclusively to vessels that are present on BWB-controlled waters without a relevant consent.[134]In further elaboration of these contentions, and not least in view of sub-section 19(8) of the 1995 Act, and the specific process and requirement of prior notice stipulated in section 19(1), the Claimant contends that, of these two offences, only section 18 of the 1995 Act feeds into section 8 of the 1983 Act (expressly in section 18((3)). His case is that vessels moored or left so as to cause obstruction or hindrance contrary to section 18(1), and on that basis deemed by section 18(3) of the 1995 Act to be a “relevant craft” within section 8(1) of the 1983 Act, fall within section 8(5) only (that being the sub-section applicable to vessels constituting an obstruction or source of danger), and not section 8(2) of the 1983 Act at all.[135]It is in this way that the Claimant develops the argument that section 8(2) of the 1983 Act applies only to a vessel for which there is no current licence or certificate but which is required to have one: he thus contends that section 8(2) has nothing whatsoever to do with mooring control.[136]The Claimant’s conclusion is that there are no statutory provisions prohibiting or controlling mooring except where the mooring creates an obstruction or endangers navigation; and that furthermore, although the 1954 Act conferred power on BWB’s predecessor (the BTC) which (as explained above) BWB acquired under the 1962 Act, to make bye-laws regulating the mooring of vessels on canals and inland navigation belonging to or under the control of the BTC (see section 16(2)(c) of the 1954 Act) the extent of the power has been doubted (see above). He contends further that in any case the only bye-laws made so far do not touch upon the problem: they simply regulate how vessels are to be moored and prohibit mooring in such a manner or position as to obstruct navigation (see bye-laws 28 to 30 of the BWB’s General Canal Bye-Laws).[137]On the basis of this conclusion the Claimant stands by his case that the crucial question, to which all else ultimately reduces now that PRN over the relevant stretch has been established, is whether a vessel properly characterised as a private pleasure boat requires a “relevant consent” (defined in section 17 of the 1995 Act as a “houseboat certificate, licence or a pleasure boat certificate”) for use on the relevant stretch of the GUC.[138]It is common ground that the River Brent is not a river waterway as defined: use of the relevant part of the GUC is not therefore subject to any requirement for a “pleasure boat certificate” under section 5(1) of the 1971 Act. The Claimant’s case concludes that the public right of navigation in that tidal stretch, as confirmed by the 1793 Act, precludes any licensing requirement: no lawful authority (apart, of course, from the public right of navigation confirmed by the 1793 Act) is required for use of vessels in that stretch. There being no suggestion of obstruction, there can be no question of ‘Gilgie’ (or any of the vessels) having been left or moored “without lawful authority”; the premise of the section 8 notices is thus falsified; QED, as regards the statutory position, says the Claimant.[139]I should add that, as foreshadowed previously, the Claimant also contends that the 1793 Act precludes any charge for the use of vessels on the relevant stretch, and that this is a further reason why no licensing requirement can apply to the tidal stretches of the GUC. Before turning to BWB’s approach to the legislation, I can deal with this point quickly. I have already addressed the issue as to charges in paragraphs 107 to 109 above. Further, I would not accept that freedom from charge would of itself mean that there can be no licensing requirement; and, for example, BWB might maintain the requirement, but waive any fee.

BWB’s approach to and construction of the legislation

[140]As to the central issue, as to the extent of BWB’s right to control of mooring, BWB, of course, does not accept the Claimant’s conclusion that it has none in tidal stretches, and offers a rather different, and simpler, approach to the legislation.[141]I take the following summary of BWB’s case from its Skeleton Argument:
“In so far as [the Claimant] does not have an entitlement to moor a vessel alongside the canal bank in which he is in possession, [BWB] relies upon the aforementioned regulatory regime as having entitled it to serve notice pursuant to s.8 of the 1983 Act requiring ‘Gilgie’ (and the other relevant vessels) to be removed from waters owned or managed by it. This is because absent any reliance on a ‘right’ protected by s43 [of the 1793 Act], in circumstances where ‘Gilgie’ is plainly not exercising a public right of navigation the vessel is subject to [BWB’s] regulatory powers without qualification or question. In so far as [the Claimant] can, contrary to the submissions previously identified, establish a ‘right’ which at first blush was protected by s43 of the 1793 Act, it is [BWB’s] stance that the effect of s.43 has been implicitly repealed by and to the extent of the various regulatory provisions identified in the various Acts as the provisions in those Acts, which plainly apply to ‘inland waterways’ without savings are plainly inconsistent with the provisions of the subsequent British Waterways Acts: see Bennion on Statutory Interpretation (5th Ed. 2008) at pages 304-307.”
[142]BWB also relies, as I understand it, on a variant of this approach. In answer to various questions I caused to be circulated to the parties by e-mail after the hearing, including a query whether the designation of the vessels as “pleasure boats” rather than “houseboats” was in dispute, Leading Counsel for BWB clarified that “it is sufficient for [BWB’s] case that the section 8 notices in question were served, not on the basis that ‘Gilgie’ and the other vessels did not have houseboat certificates, but rather on the basis that the requisite “relevant consent they lacked (to use the phrase coined in s.17 of the 1995 Act) was a licence (imposed pursuant to s.43 of the Transport Act 1962).”[143]As I say, these seem to me to be rather different arguments. The first ascribes a broad meaning to the phrase “without lawful authority” in section 8(1) of the 1983 Act; the second ascribes a more limited meaning, actually consistent with the Claimant’s construction: in effect that the phrase denotes “without a relevant consent”. I therefore address each argument separately below: the second first, for reasons that may become apparent.[144]As to the alternative limb recorded in paragraph 141 above, I have already explained why I consider that the Claimant is unable to show any relevant right other than the right (PRN) he shares with others. It follows that the question of implicit repeal does not, in my view, arise.[145]As regards BWB’s alternative argument (to the effect, as stated above, that the phrase “without lawful authority” in section 8(1) of the 1983 Act denotes “without relevant consent”) the disagreement between the parties is not so much as to the construction of the phrase, but as to whether a “relevant consent” was required for ‘Gilgie’ (and the other vessels, so far as relevant). If, therefore, a “relevant consent” was required, but was lacking, there is no dispute left as to the application of section 8. BWB is adamant that such a licence was indeed required, and the lack of it at the relevant time caused the vessels to be moored without lawful authority, justifying the section 8 notices that were served.[146]I am not persuaded by this. In particular, in my view, BWB have never convincingly addressed or offered a coherent and consistent explanation of the fact that the legislation has distinguished between the various types of inland waterways under its ownership or control, and BWB’s powers are differently expressed in relation to each.[147]For example, BWB offered no compelling explanation why the Act of 1971 was confined in its application to pleasure boats to those used in river waterways; nor why, to take another related example, the Act of 1975 expressly carved out “tidal waters” from the power to make bye-laws recognised and refined in its section 5(1).[148]More generally, in my view, BWB’s contentions do not sufficiently take account of the discernible pattern in the legislation of leaving well alone the use of inland waterways in exercise of PRN, and of not extending the “relevant consent” scheme to the use of pleasure boats exclusively on tidal stretches in exercise of PRN.[149]It would be a different matter if BWB could establish that the vessels are not used for bona fide navigation, cannot be treated as “pleasure boats” and thus fall to be treated as “houseboats” (each as defined in the 1971 Act). Houseboats are not exercising PRN; there is no need for circumspection, for fear of encroaching on PRN, as to their licensing and control; and section 13 of the 1971 Act would plainly require a “houseboat certificate”.[150]The Claimant maintained that, though moored for long periods, the vessels (and, relevantly, ‘Gilgie’) were also used for cruising, and had been accepted by BWB for certification as pleasure boats.[151]Even if that is so, it would not necessarily mean that the vessel is not properly categorised and requires certification as a houseboat: I understand (for example from the House of Lords Select Committee Report (HL Paper 73) on what became the 1995 Act) that houseboat certificates do usually authorise houseboats to cruise the waterways without needing a pleasure boat certificate. But the fact is that BWB did not purport to serve its Section 8 notices on the basis of the lack of a houseboat certificate, and made no reference to section 13 of the 1971 Act; and indeed it is not, and never has been, any part of its pleaded case that any of the vessels was a “houseboat”. ‘Gilgie’, in particular, is licensed as a pleasure boat; it has not been suggested that the pleasure boat certificate in relation to it is no longer in force.[152]Fortified also by Leading Counsel’s clarification above noted, I consider I should approach the matter for present purposes (it being open to BWB to argue to the contrary on another occasion) on the basis of ‘Gilgie’ being a pleasure boat. On that basis, it follows from the conclusion I have reached that the licensing and certification regime established incrementally after the 1954 Act never extended to pleasure boats used only for cruising in tidal waters that if ‘Gilgie’ and the other relevant vessels are indeed to be treated as using the GUC for bona fide cruising exclusively in tidal waters they required, and therefore lacked, no “relevant consent”.[153]I should perhaps note in passing that this makes it unnecessary to determine whether section 13(2) of the 1971 Act is exclusive, or whether section 8 enables removal of an uncertificated houseboat (as seems to be arguable).[154]I turn to what I regard as BWB’s primary case as to the proper interpretation of the phrase “without lawful authority” in section 8(1) of the 1983 Act.[155]I can, I think, be comparatively brief. I accept this way of putting BWB’s case. I have concluded, not without hesitation, that the words actually used are broad enough to catch a vessel left or moored where no right to moor (whether by permit, houseboat certification or “private rights of mooring” (as now defined in section 20(3) of the 1995 Act) can be demonstrated.[156]In my view, the Claimant’s approach is based on the assumption (to my mind, readily understandable) that the phrase in section 8(2) of the 1983 Act (“without lawful authority”) is the same in legal meaning and effect as the phrase later used in sections 19 of the 1995 (“unlawfully moored”). In my view, the two phrases, even if interchangeable in ordinary usage or language, are not used in the same way in the relevant statutory provisions.[157]The Claimant’s assumption, and the importance of it to his analysis, appears most clearly from the following paragraph in the Claimant’s Skeleton Argument: ““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 Bye-Laws, a boat can now [since the 1995 Act] be considered “unlawfully” moored only if creating an obstruction or danger to navigation.” [My interpolation][158]I have concluded that the assumption is misplaced and the two phrases bear different meanings and connotations. The phrase “unlawful mooring” as used in section 19 of the 1995 Act denotes a mooring in contravention of section 18 of the 1995 Act, such as to constitute a criminal offence under section 18 of the 1995 Act. It is a mooring in breach of the criminal law: and it is to be noted in that context the care taken in section 19(8) of the 1995 Act to ensure that a continued mooring after receipt of a notice served under section 19(1) is not, without more, to be unlawful in that sense.[159]By contrast, the phrase “without lawful authority” in section 8(1) of the 1983 Act focuses on the lack of lawful authority, not on breach of a regulation or provision regulating mooring (and constituting a criminal offence). The gist is not contravention, but lack of authority.[160]I have already concluded that the Claimant cannot show any lawful entitlement to moor vessels permanently (that is to say, otherwise for temporary purposes ancillary to or in the process of navigation, such as to shelter from bad weather, or to effect emergency repairs, as to which see Denaby and Cadeby Main Collieires Limited v Anson [1911] 1 KB 171 at 200 and Crown Estate Commissioners v Fairlie Yacht Slip Limited [1979] SC 156 at 182, both cited and quoted in Mr Mann QC’s judgment); he can show no “lawful authority” in the sense of lawful right to use the GUC in that way (whether derived from a right of or incidental to property, or under the terms of a duly issued permit, licence or certification). In my judgment, the phrase must apply accordingly. I do not consider this to be an unwarranted extension of BWB’s powers; nor that this construction offends the proposition that BWB’s powers should be strictly construed. It is simply, in my judgment, the appropriate meaning to be given to the words used; and I consider that the power, on proper notice and subject to observance of proper process, to remove vessels moored or left without any right to do so is an appropriate one to enable BWB to exercise its navigational authority.[161]Although not strictly necessary, in deference to the submissions made to me in this regard it may assist for me to set out briefly my views as to the further inter-relationship between section 8 of the 1983 Act and sections 18 and 19 of the 1995 Act.[162]First, in my view, section 8 process is available in the event of a breach of section 18(1) of the 1995 Act, in addition to the criminal sanctions prescribed by section 18(2): that is the purpose of section 18(3) of the 1995 Act.[163]Secondly, I do not accept the Claimant’s contention that contravention of section 18 of the 1995 Act triggers only section 8(5) and not section 8(2) of the 1983 Act. Again, the purpose of section 18(3) is to invoke section 8 and trigger it in the event of a contravention of section 18(1) of the 1995 Act.[164]Thirdly, and conversely, in my view section 8 of the 1983 Act is not an available remedial provision where BWB seeks to invoke section 19 of the 1995 Act: section 19(2) is the exclusive remedy. Thus section 19, unlike section 18, of the 1995 Act does not refer back to section 8 of the 1983 Act; and the exclusive nature of the remedy is, to my mind, further bolstered by sub-sections (6) and (8) of section 19 of the 1995 Act. Section 19 applies whether or not a vessel is moored with authority and lawfully: it authorises removal at the risk and cost of BWB to permit works etc. It would be quite inappropriate for BWB instead to be able to use section 8 of the 1983 Act and avoid liability for such risks and costs.[165]Before finally reaching a conclusion as to the validity of the section 8 notices, and whether they should, if valid, be given effect, I need to consider three remaining questions. The first is whether BWB, in serving the notices, was acting for an invalid collateral purpose and in a discriminatory way such that the notices should be invalidated or set aside on that ground. The second, which may be a variant of the first point, is whether BWB in acting as it did, was in breach of its own procedures and of a legitimate expectation on the part of the Claimant that they would abide by them. The third, which is again connected, and which when the preliminary issues went before it the Court of Appeal expressly required to be considered at trial, is the possible impact of the Human Rights Act.[166]For these purposes it is also necessary to deal with the evidence given at trial, these remaining matters being fact-specific. In that context, witness statements were provided by the Claimant, and (on behalf of BWB) by Nigel Ian Johnson (“Mr Johnson”, solicitor and Legal Director of BWB, who provided 3 Statements), Ray Farrow (“Mr Farrow”, retired Patrol Officer employed by BWB from 1 January 1996 to 29 August 2008, and before then a Police Constable for 30 years) and Russell Bennett (“Mr Bennett”, an Enforcement Supervisor employed by BWB since 5 September 2005). Each was cross-examined.[167]Much of this evidence was useful in setting the context, but otherwise of limited relevance except as the vehicle for exhibiting salient documents to which I have already referred. Mr Johnson’s 3rd Witness Statement dated 11th November 2011 related exclusively to an issue arising in respect of undertakings given by BWB pending trial, which I deal with later. All the witnesses seemed to me to wish to assist me honestly; and I had no reason to doubt their truthfulness. Some aspects of their evidence did, however give me some concern as to the approach of BWB to this matter.

Had BWB an improper collateral purpose?

[168]It is part of the Claimant’s case (as pleaded in his Reply) that BWB had a collateral purpose in exercising its rights under section 8 of the 1983 Act, in the sense of a purpose other than(a) the maintenance of the GUC in a suitable condition for its safe use by commercial freight-carrying vessels and by cruising craft for the carriage of passengers (see section 105 of the 1968 Act) and(b) ensuring the GUC is kept clear from obstruction or other danger (see section 8 of the 1983 Act and sections 17 to 21 of the 1995 Act).[169]The Claimant elaborated the factual elements of this case in his second Witness Statement dated 1st August 2008. He did not expand greatly on this aspect of his case either in his main Witness Statement for Trial (his third, dated 12th October 2011) or in his detailed Skeleton Argument, or indeed his oral submissions. Nevertheless, the basis of his case came through to me as having the following principal elements.[170]First, it is based on an allegation of co-ordination and indeed collaboration between BWB and the would-be Developer of land at or near the off-line moorings within Workhouse Dock from which the vessels under the care of the Claimant were evicted. The Claimant’s case is that those moorings had been used for many years without any objection. The Claimant depicted the initial eviction by Geronimo Ltd (aka Ballymore Properties), apparently enforcing a possession order granted to its predecessor in title on 17 October 2005, and the subsequent precipitate service by BWB of section 8 notices on the vessels after they had been moved to new moorings on-line, as a “tag-team” effort adopted after the Claimant had campaigned strenuously against any redevelopment which failed to preserve the working boatyard.[171]Secondly, the suggestion of collateral motive is supported by the somewhat relentless haste of BWB in seeking to remove the vessels from their new moorings on-line pursuant to the disputed section 8 notices notwithstanding that BWB never suggested that any of the vessels posed an obstruction or danger to navigation on the relevant stretch of the GUC.[172]Thirdly, it is based on what the Claimant considered to be the apparent selectivity of BWB’s actions in singling out the Claimant’s vessels, leaving others (and in particular the vessel ‘Rocking Horse’) alone.[173]Fourthly, it is based on BWB’s suggested departure from its internal guidelines and usual practice in serving notices on “live-aboards” (which the Claimant also maintains was in breach of his human rights).[174]Fifthly, it is based on breaches of undertakings given to the Court by BWB, which are serious and unacceptable in themselves and also might suggest a departure from the careful, scrupulous and even-handed approach to be expected of a public authority, and what the Claimant presents as a notably disproportionate reaction on the part of BWB to matters which of themselves cannot objectively justify the time and expense expended, suggesting some different real agenda.[175]Obviously these are serious allegations to be made against a public authority, and (despite thereby further adding to the already great length of this Judgment) I must deal with each in turn.[176]First, as to the suggestion of collaboration or concerted action between BWB and the Developers, BWB from the start and consistently thereafter denied any such thing. The Claimant put the suggestion to Mr Johnson and Mr Farrow in cross-examination: but they were not to be moved. Some e-mails exhibited by the Claimant suggested that BWB and Geronimo were in close touch. The point was also made that Mr Farrow was on duty and witnessed the initial eviction from Ridgeways Wharf. But none of this is surprising or, to my mind, of itself sinister. In my judgment, the e-mail evidence falls far short of establishing collaboration of the sort alleged. Cross-examination did not establish or persuasively suggest that there was any improper collaboration such as is alleged.[177]As to the second point, the haste with which BWB thereafter pursued the matter is notable, the more so given the lack of any urgency from the point of view of its maintenance obligations. My interest has also been increased by the inaccuracy in the evidence given by Mr Farrow as to the context in which the section 8 notices were served, which I have already noted.[178]In that regard it will be recalled that in his Witness Statement he said this:
“In July 2007 it was decided that as none of the boats had moved for a period of over 4 months it was necessary to commence enforcement action against them…”
[179]As Leading Counsel for BWB accepted in his closing, this evidence is plainly incorrect: the vessels were not evicted from Ridgeways Wharf until 15 June 2007. The section 8 Notices are all dated 21st July 2011 (requiring removal by 18 August 2007). The decision to use section 8 must have been made either before the initial eviction (which would fuel the argument of co-ordinated action with the developer) or within days of it (which is unsettlingly precipitate, especially given BWB’s own admission that it is a draconian power which it would usually be very hesitant to use and that it is, to quote part of an undated letter from BWB (Dawn Reid) to the Claimant), one “we only resort to…as a last resort”).[180]Mr Farrow acknowledged the error but offered no explanation for it. I note that he had made a similar error in his first Witness Statement in the Geronimo action: he stated there that the vessels had been evicted from the off-line mooring by the developer of the boatyard and moved out onto the GUC “in February 2007.” None of BWB’s witnesses offered any explanation either; and nor did Counsel for BWB. The error or inaccuracy is not one of mere detail: Mr Farrow’s sworn testimony (I do not recall his witness statement having been corrected before he was sworn) was that it was because none of the boats had moved for a period of 4 months that “it was decided” (the actors are unnamed) that “it was necessary to commence enforcement action against them”.[181]I do not consider that the Claimant has made good the third point adumbrated (that BWB unfairly singled out for removal the vessels under the control of the Claimant, leaving alone other vessels close by), since I accept Mr Farrow’s evidence that both ‘Lazy Daze’ and ‘Rocking Horse’ had licenses issued by BWB and also mooring permits. But the fact that BWB has put before the Court an obviously incorrect explanation of the circumstances in which it decided to serve the section 8 notices, and then not offered any further explanation why it was necessary to resort to such a draconian power, has caused me seriously to question what BWB really thought they were doing and what was really their motive.[182]In the end, I do not think the matters to which I have referred sufficiently support the inference of collaboration or co-ordination; but they do, to my mind at least, suggest a less than transparent and measured approach, such as to fuel a feeling on the part of the Claimant, who already felt he had been unfairly evicted, that he was being singled out, and that the most obvious explanation might be collaboration between BWB and the developer, and his opposition to the development plans.[183]In the absence of a proper explanation, the overall picture is not, to my mind, one of measured and proportionate response on the part of BWB. My misgivings are further increased by three other factual details. These are, first, the fact that (it is said inadvertently) one of BWB’s Enforcement Officers, a Mr Peter Palmer (“Mr Palmer”), went aboard one of the vessels (‘Saifti’) to serve a section 8 reminder notice even after BWB had given the Court an undertaking that no such notices would be so served. The second is that BWB continued to assert that the licence application for ‘Gilgie’ had been made on the false pretence of it being used for ‘continuous cruising’ whereas in truth the application made was made on the basis of the vessel having a home mooring elsewhere, and was accurate (as I understand BWB now to accept). Thirdly, a somewhat less than moderate and proportionate approach seems to be illustrated by an internal e-mail dated 13th May 2008 from Deborah Figuerido (BWB Enforcement Officer and Administrator for London) to Matthew Bannister (BWB’s then moorings coordinator for the West London area including Brentford) in which the following appears: “I think (subject to resources) that we start enforcement action against this boat [as I understand it, the vessel ‘Kalzar’]. If I had the resources now I would section 8 it and snatch it’. [My interpolation.][184]I return to this concern below; but in the present context the question is whether these matters give rise to an inference of some improper use of BWB’s powers in collaboration with developers rather than for maintenance of the GUC. As to this, I still do not think there is sufficient basis in the evidence before me for such an inference. In my judgment, BWB’s conduct fell short of its own appropriate and requisite standards, and what I consider to be the gaps in its evidence have caused me concern; but not, in my judgement, such as unequivocally to connote improper or collateral purpose as the Claimant has alleged.[185]It follows that I do not consider that the section 8 Notices fall to be invalidated on the ground that they were served for a collateral and improper purpose.

Breach of the Claimant’s legitimate expectations?

[186]However, that does not conclude the question whether, in acting as it did, BWB acted fairly by its own lights and not so as to confound any legitimate expectation they had generated in the Claimant as to the manner in which they would exercise their powers under section 8 of the 1983 Act.[187]It is well established that a public authority with discretionary powers may generate a legitimate expectation on the part of a person liable to be affected by the exercise of such powers as to the manner in which those powers will be exercised. The legitimate expectation may be generated pursuant to a policy statement issued by the person with such powers; and that indeed is a paradigm. But a legitimate expectation that a public body will abide by its own internal procedures may be generated by the “existence of a regular practice which the claimant can reasonably expect to continue”: per Lord Fraser of Tullybelton in C.C.S.U. v Minister for the Civil Service [1985] 1 AC 374 at 401B.[188]Such a legitimate expectation is not a legal entitlement: but it is an expectation which is in some sense protected by law, to secure consistency and fairness in the exercise of discretionary statutory power, and with a view to ensuring that public authorities exercise such powers responsibly and without arbitrariness : and see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 636-638; R v Devon County Council ex p Baker [1995] 1 All ER 73 at 88-89; and R (on the application of Bibi) v Newnham London Borough Council [2002] 1 WLR 237.[189]Of course, an argument based on a failure by a public authority to honour, in the exercise of its powers, legitimate expectations generated whether by representations or settled practice would ordinarily be expected to arise in judicial review proceedings. But it is clearly established that such an argument may be raised as a defence to actions brought by public authorities: see Wandsworth L.B.C. v Winder [1985] 1 AC 461, especially at 509-510. Although in this case the claimant brought the proceedings, the issue is whether the failure to honour his (alleged) legitimate expectations provides a defence to BWB’s exercise of power: and in my view, the argument is available in just the same way.[190]I should record that these cases were not referred to me in the course of the hearing; but I invited, and in the case of both parties received, detailed written submissions on them afterwards. Neither party required an oral hearing.[191]As previously noted, BWB has long accepted that the powers afforded by section 8 to remove vessels are draconian and to be exercised as a last resort. In his submissions (both written and oral) the Claimant drew attention in this context to evidence given to a House of Lords Select Committee when in 1991 the then British Waterways bill which eventually was (with deletions and amendments) enacted in 1995 was under review. The person in BWB then responsible for the management of BWB in the North East, when cross-examined in respect of his evidence that BWB needed more comprehensive methods of controlling navigation and mooring, considered that the use of section 8 was draconian; and that even in the case of a licensed vessel “provided it was not causing an obstruction to navigation it would be unreasonable for us to use it, even if we could.” (I pause to record that BWB objected to the use of this material as an aid to construing the statutory provisions; but I am not using the material for that purpose, but rather to demonstrate BWB’s own factual acceptance as to the nature and severity of their powers.)[192]In his second Witness Statement on behalf of BWB in this action, Mr Johnson explained that, before resorting to such a draconian power, BWB’s standard policy is to correspond with the boater in question; that they would usually (and in the case of a live-onboard invariably) send a further letter giving notice (usually 21 days) before serving section 8 notices; and that if aware, or “there is reasonable likelihood”, that the boat is being used as a home not only would a series of warning letters be sent but also BWB’s invariable practice would be to seek the sanction of the court for its exercise of enforcement powers .[193]However, Mr Farrow appeared to suggest that warning letters were not usual except in the case of ‘live-aboards’; and the only templates of warning letters exhibited by BWB related to ‘live-aboards’. This leaves some doubt as to whether there was any standard procedure such as to generate a legitimate expectation in the case of vessels not believed or reasonably likely to be used as a home.[194]I must say that, in light of the admitted nature of the power as draconian, only to be used as a last resort, and with the greatest circumspection in the absence of some danger or obstruction to navigation, this does seem to me surprising. I would expect a warning to be given in every case unless the circumstances are so urgent as to override the obvious fairness of giving such a warning; and the Claimant has also drawn to my attention BWB’s publication on its powers of controlling moorings, which include a description of the way in which BWB “manage enforcement of boat licence terms and conditions”. This refers to “a series of standard advisory messages, warnings and then enforcement notices”. That seems fairer; and, furthermore, warning letters afford the boater the opportunity to raise factual issues and defences or other matters to be taken into consideration, such as that he or she is a ‘live-aboard’.[195]Nevertheless, I cannot be certain whether that publication was in the same terms at the relevant time; and in any case it was not in evidence, nor subject to critical review. On the evidence actually before me I think the warning procedure is only established to have been standard, and indeed invariable, in the case of vessels believed or reasonably likely to be used as a home.[196]However, it also seems to me that BWB have only themselves to blame if their procedures were such (at least at the relevant time) that, in proceeding without warning, they exposed themselves to the risk that they had not understood the true facts, and had denied themselves the opportunity of eliciting them. Thus, a boater who is in fact a ‘live-aboard’ has a legitimate expectation of being treated as one (absent concealment); and BWB cannot complain that they are unaware of this if they took no steps to find out and gave no warnings which would have revealed the fact.[197]As regards BWB’s established procedures in dealing with a ‘live-aboard’, it seems to me that both the fact of that policy (as recorded) and its publication (which I would expect in the nature of things to have come to the attention of the Claimant, whose interest in the details of BWB’s practices and powers is very evident) was and is such as to generate a legitimate expectation that BWB would not depart from it in the absence of pressing necessity or emergency (which BWB do not allege).[198]Mr Stoner QC contended that no relevant legitimate expectation had been generated, nor had there been any breach even if it had. He reminded me that the evidence on behalf of BWB that Mr Farrow had simply not appreciated that the Claimant was a ‘live-aboard’ had not been contradicted; and BWB had not knowingly departed from its procedures in this regard. He made the further point that had BWB served warning letters the Claimant would not have heeded the warning: the parties had a fundamental difference in view which could only be resolved by recourse to the Courts; and that in any event any legitimate expectation had not in reality or substance been disappointed, since the Claimant can have expected no more than the opportunity for consultation and (in the event of no agreement) the opportunity to put his case in Court; and he had enjoyed both.[199]These are substantial points, which may be of relevance in considering what relief is appropriate; but they are not such as to persuade me against the view that the Claimant did have legitimate expectations, which were disappointed, and that BWB did exercise its powers inappropriately accordingly.[200]In my judgment: i) BWB’s stated practice (also evidenced by the standard letters exhibited by Mr Johnson) were such as to generate a legitimate expectation of prior warning, at least in the case of ‘live-aboards’; ii) it is sufficient that BWB had in fact adopted such a practice; the legitimate expectation in issue is procedural, rather than substantive; in such a context, no reliance on a representation need be shown; but in this case, I would accept the Claimant’s evidence that in fact he knew of, and with such knowledge would legitimately have expected compliance with, BWB’s published standard practices; iii) it is not a sufficient answer for BWB to say that in the event there has been time for consultation; I consider that the relevant time to assess BWB’s conduct, and its compliance with its own procedures, falls to be tested before and at the time that the notices were served. BWB cannot rely on the Claimant’s challenge to justify or rescue it from its own failure to abide by its own prescribed procedures; iv) in proceeding without warning, and therefore without affording the Claimant the opportunity to make clear his status before BWB committed themselves to section 8 notices, BWB took the risk that they may have misunderstood the position, and cannot complain if the risk eventuated and they found themselves in breach of their own procedures.[201]I would add also that even if I accept Mr Farrow’s evidence that he assumed that there were no “live-aboards”, BWB did certainly come to know for sure, by 3rd August 2007 that there were ‘live-aboards’ on some of the vessels: they were quickly so advised by the Applicant by e-mail of that date, who noted expressly that “standard procedure has been entirely by-passed, most especially with regard to the 4 ‘live-aboards’. BWB certainly knew by 24 January 2008 at the latest, that the Claimant himself was a ‘live-aboard’ (since their solicitors recorded this in a letter to the owner of ‘Platypus’ bearing that date); but they continued to serve section 8 notices threatening removal.[202]I accept, of course, that even had the prescribed sequence of warnings been given the Claimant might not have heeded them, and contested the matter in Court in much the same way. This was put to the Claimant in cross-examination by Mr Stoner QC and he was hard put to gainsay it, though he did point out that he did advise owners to apply for licenses almost immediately, suggesting perhaps some flexibility and pragmatism.[203]The truth is that it is very difficult to assess now how the Claimant would have reacted, and whether an accommodation might have been reached. The hasty way that BWB proceeded from the start exacerbated the friction which was inevitable in the wake of what he regarded as the unlawful eviction of vessels under his care or control from the off-line moorings, which wrecked the business he had been undertaking there. BWB’s claims of untrammelled right, including Mr Johnson’s initial insistence (as recorded in an e-mail from him to the Claimant dated 6th August 2007) that “all rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the 1793 Act to which you refer) were abolished by section 105 of the Transport Act 1968” was not only wrong (as BWB now accept): it put the dispute on a confrontational and legalistic track that encouraged the Claimant’s propensity stubbornly, indeed relentlessly, to defend what he plainly regards as ancient freedoms. The friction that developed would probably not have been capable of being soothed, nor resolved without a fight.[204]However, the fact remains that the prescribed and invariable procedure was not followed; and speculation as to what would have happened is just that: speculation. It may affect what relief may be appropriate, as indeed may the passage of time, and the fact that the Claimant ceased to live aboard ‘Platypus’ and since then has lived on a different vessel; but the fact of BWB’s failure to abide by its settled practice, and its failure to correct its process, even after it was well aware that the Claimant was a “live-aboard”, remains.

Infringement of Human Rights?

[205]Turning now to the issue of human rights, which the Court of Appeal expressly directed should be considered, the factual context should already be apparent. I have already referred to BWB’s “invariable practice” in the case of vessels it knew, or which appeared, to be being used as homes was not followed, because Mr Farrow took the view that none of the vessels in question was being used as a home. It is now accepted that at the time that the section 8 notices were served, the Claimant lived aboard ‘Platypus’ and now lives aboard ‘Gilgie’ (as he has done since the end of 2009) though he owns neither vessel.[206]Article 8 of the European Convention on Human Rights (“the Convention”) is entitled “Rights to respect for private and family life”. Article 8(1) provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” Article 8(2) of the Convention provides as follows: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.[207]BWB is a public authority, and it is purporting to exercise powers vested in it as such. Further, by section 6 of the Human Rights Act 1998 (“the Human Rights Act”) it is unlawful for domestic courts, as public authorities (see Section 6(3)(a)), to act in a way which is incompatible with rights under the Convention, such as a right arising under article 8.[208]The Claimant’s case in this regard is uncompromising. In his Skeleton Argument he says this:
“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.”
[209]In this, the Claimant may go further than is necessary in seeking to establish knowing breach. The fundamental question is whether the relevant vessel was the Claimant’s home. If it was, the Claimant’s right to respect for it is engaged under Article 8. The right is not absolute; so then the question is as to the balance to be struck between the home occupier and the public authority (here, BWB). That requires consideration of the basis on which the Claimant was occupying the vessel as his home, the nature of the rights sought to be exercised against him, and the reasons and proportionality of their exercise.[210]It is a balance: thus, for example, a person occupying as a squatter, with no right of occupation against the owner of the property, may have little prospect of invoking the protection against the owner: but, following jurisprudence of the European Court of Human Rights, the Supreme Court has recently decided (after decisions of the House of Lords to the contrary) that any person at risk of being dispossessed of his or her home at the suit of a public authority should in principle have the right to raise the question of the proportionality of the measure: see Manchester City Council v Pinnock [2011] UKSC 6.[211]A problem for the Claimant here, as I see it, is that at the time the section 8 notices were served ‘Gilgie’ was not his home: ‘Platypus’ was; but ‘Platypus’ is no longer moored, and the issue as regards that vessel is in effect no longer a live one. It appears to be accepted that ‘Gilgie’ is now the Claimant’s home; and it is not disputed that his occupation of ‘Gilgie’ as a home is with the consent of the owner. As it seems to me, the rights (if any) of a person who takes up residence after a notice to quit (or a section 8 notice in this particular context) must be attenuated. However, I do not consider it eradicates the right: ‘Gilgie’ is now the Claimant’s home; BWB know that; and what they are doing, if permitted, will deprive him of it.[212]I have already indicated why I consider that BWB has been precipitate in its approach; and although I have not been persuaded that BWB deliberately chose to ignore the Claimant’s rights in serving the notices, the fact is that it took the risk of an assumption without any evidence of proper checking. There is no suggestion that the Claimant concealed that status; BWB had an easy means of finding it out; and indeed BWB soon came to know that one of the vessels was indeed lived on by the Claimant.[213]BWB have never advanced any argument based on necessity by reason of threat to, or obstruction of, safe navigation. They have asserted a right, but they have been less forthcoming as to why its exercise is pressing or necessary for the purposes of discharging their designated functions. There is little to weigh in their favour in the scales of proportionality. My provisional view is that the purported use of the draconian power conferred by section 8, without prior warning and in the absence of any identified and real threat or obstruction to safe navigation, with the effect of depriving the Claimant of his home, is not proportionate. The fact that I have already concluded that the Claimant’s legitimate expectations have been breached is another factor that I have had in mind.[214]However, I am conscious that in the deluge of other legal issues the question of proportionality was only briefly discussed at trial. Further, Counsel for BWB submitted, and I took the Claimant to agree, that the question as what would be the appropriate relief if I decided that the Claimant’s Article 8 rights had been infringed should be addressed by the parties further after judgment. The questions of proportionality and appropriate relief seem to me at least arguably to be linked.[215]Accordingly, before reaching a final conclusion on infringement and any appropriate remedy (taking into account also my conclusion as to breach of the Claimant’s legitimate expectations) I will hear the parties further on both points after delivering this Judgment.

Breach of Undertakings by BWB

[216]Except for summarising my conclusions, the final matter that it is necessary for me to address is the breach of an undertaking given to the Court by BWB, and also its alleged breach earlier of a contractual undertaking given to the Claimant. I will deal with the latter first, being first in time, and also of relevance to an understanding of the former.[217]After service of the section 8 notices, and then Mr Johnson’s email of 6th August 2007 to which I have already referred, the Claimant made an application to this court on 10th August 2007 for injunctive relief and in particular for BWB to be forbidden “to approach or interfere with any of the boats in the care of the applicant…unless and until the Court has determined that they have a legitimate right to do so.”[218]Further to an exchanges of e-mails, and to make unnecessary a hearing, BWB by letter dated 14th August 2007 agreed (by its Head of Legal , Jackie Lewis) to give the Claimant a contractual undertaking “not to interfere with or remove the boats name [sic] as ‘Platypus’, ‘Gilgie’, ‘Kamelya’, ‘Ere-Comes-Trouble’, ‘Kalzar’ and ‘Saifti’ from their current locations on the River Brent/Grand Union Canal at Brentford until such time as…” (the time specified being until agreement between the parties, failing which adjudication by the court of BWB’s relevant statutory powers). The Claimant withdrew his application to Court for injunctive relief on the faith of that undertaking.[219]However, in late January 2008 BWB decided it was best to serve a further suite of notices on the owners of the vessels in question so as to make quite certain that all owners were notified of the section 8 notices. These notices were sent by post or email (as thought best) on the owners; but copies of each were also hand delivered to each vessel, requiring Mr Farrow’s lengthsman to climb aboard each vessel to affix them. On 20 February 2008, the Claimant wrote by e-mail to BWB’s solicitors complaining about this and asserting that service on the vessels was entirely unnecessary and unjustified and that(1) it is a summary offence, under the Merchant Shipping Act 1995, to board a vessel without the consent of the master except for officers of Her Majesty or others lawfully so empowered and(2) that such boarding was a breach of the undertaking not to interfere with the vessels.[220]The Claimant has invited me (at paragraph 531 of his Skeleton Argument) to adjudicate on this and to hold the boarding of “his” boats to have been “unquestionably an offence under the Merchant Shipping Act”. I do not consider this possible or appropriate: this is not the occasion or the correct forum. I decline to say more about it, save to record BWB’s reply that the Act has no application to the vessels in question on the basis that the vessels were not moored at a port and were not registered in accordance with that Act.[221]As to the boarding of the vessels, it does seem to me that this was unwise on the part of BWB: it would have been better in retrospect, as it seems to me, to try to agree a procedure with the Claimant. But even taking into account both the Claimant’s sensitivities and his concerns that “landlubbers” (his word) do not understand properly what an invasion of a boater’s home such an intrusion is (he described it as “akin to a home owner finding such a person in your living room”), I do not think it amounts to interference with the vessels within the intended ambit of the contractual undertaking; nor do I think there is any real likelihood of loss. I do not think it appropriate to consider this aspect of the matter further, save in relation to the further application to Court for injunctive relief to which it gave rise.[222]As to that, on 2nd June 2008, the Claimant issued a fresh interim application for injunctive relief in these proceedings. He sought an injunction, not only against BWB, but also against Mr Tony Hales, Chairman of BWB (who does not appear on the record as a party). The injunction sought was in similar terms to the contractual undertaking. The matter came on before Mr Justice Floyd on 9th June 2008. He adjourned the matter over until trial, with no order as to costs, accepting an undertaking which BWB offered to the Court only to serve documents on the Claimant and the vessels by Royal Mail recorded delivery or by mutually agreed alternatives (including e-mail to the Claimant).[223]On 19th August 2008, Mr Peter Palmer (the new Enforcement Officer who took over from Mr Farrow on his ill-health and retirement) served a section 8 reminder notice on ‘Saifti’ in breach of the terms of the Court undertaking I have described above.[224]Even if the breach is in one sense minor and the damage is slight, the breach of any Court undertaking is a serious matter. To my mind somewhat surprisingly, neither Mr Johnson nor any other witness for BWB dealt with the matter at all in his Witness Statements. When the matter came before me, I considered that no adequate explanation had been offered, and I required further evidence on the matter to be filed. I also required a description of the steps taken to rectify any errors in procedure that might have led to a mistake being made. In response to this, Mr Johnson provided to the Court a long and detailed 3rd Witness Statement dated 11 November 2011, after the end of the hearing.[225]In that Witness Statement, Mr Johnson explained that, having made careful enquiry, it appeared that Mr Palmer (apparently on the day before he started his employment by BWB) had served the section 8 notice on ‘Saifti’ “on the basis that(1) it had moved from its previous location….and(2) he did not appreciate that the undertaking continued to apply…since the vessel had moved away from its original location.”[226]Mr Johnson went on “The breach of the court undertaking was unintentional but notwithstanding that I apologise unreservedly to both the Claimant and the Court for the breach.”[227]Mr Johnson then also explained that BWB had introduced a new computer system that should prevent similar errors in the future by updating Enforcement officers’ files more comprehensively and quicker.[228]This unfortunate, but (I accept) unintentional, breach of the undertaking was, however, compounded by the failure of BWB to respond to the Claimant’s requests for an explanation at the time. Thus, although the Claimant sought such an explanation in an e-mail dated 23 August 2008 (expressing at that time his presumption, having had a brief earlier conversation with Mr Palmer, that the breach was “undertaken in ignorance”), repeated his request (having had no response) by e-mail dated 5 September 2008, and then took the matter up both with the Court (through Mr Justice Floyd J’s clerk) and (by copy of court communications) with BWB’s Solicitors, Mr Johnson now accepts that no formal substantive response was ever provided to the Claimant. Mr Johnson offers an explanation that “due to the impending Geronimo trial the parties were all focussing on other issues post September 2008”; this seems to me to be, at best, lame. However, he does accept in his third witness statement that this “was clearly not acceptable”. I agree.[229]Nevertheless, I do not think it appropriate to take the matter further. I understood the Claimant to accept that the breach was inadvertent; and indeed his complaint really focused more on the failure to respond afterwards. But I do consider that this incident, the failure within BWB to see to it that all relevant personnel were properly informed of the Court undertaking and the importance of it being observed to the letter, the failure to offer me a proper explanation before I called for it, and the failure at the time to deal with the Claimant’s not unreasonable requests for an explanation, all further suggest inappropriate haste and carelessness. BWB are given draconian powers: and it is of particular importance that they should be, and be seen to be, deliberate, transparent, fair and careful in discharging their functions.[230]I appreciate and take into account that the Claimant has been stubborn and relentless. His determination in defence of what he has perceived to be his rights, and the rights of the boating public, has not been matched by determination to pay for the process to the extent that it has been adjudged right that he should do so: thus, he has offered BWB, and (as I understand it) paid, only £1 per month towards costs in the sum of £6,000 which he has been ordered to pay. Even taking account his difficult financial circumstances, his apparent feeling of entitlement that BWB should in the end be left to bear substantially all the costs of the whole process is misplaced, and no doubt a source of both concern and exasperation for BWB.[231]I appreciate also that BWB have a difficult task; and for the most part, their publications suggest a constructive and open relationship with the boating public; but this incident has not seen them at their best, and their conduct has tended not to soothe, but to exacerbate and complicate, a difficult situation.

Conclusion

[232]It now remains for me to set out, at long last, my conclusions.[233]I can do so as follows. In my judgment: i) no licence is legally required for a vessel bona fide used for navigation exclusively on tidal stretches of the GUC which have not been designated as river waterways specified in or further to the 1971 Act: the PRN recognised by the 1793 Act still applies: and the relevant stretch of the GUC for the purposes of this action has been agreed to be tidal; ii) it is unlawful to moor, place, keep or maintain a vessel which is not bona fide used for navigation on the GUC (including tidal stretches) or any inland waterway unless a houseboat certificate is in force and displayed in accordance with section 13 of the 1971 Act; iii) unless ‘Gilgie’ or the other vessels concerned were not and are not used bona fide for navigation, so that they fall to be classified as ‘houseboats’, and if they were only used in tidal stretches of the GUC, they did not require and thus did not lack at the relevant time (when the section 8 notices were served and re-served) any ‘relevant consent’ for the purposes of section 17 of the 1995 Act; and BWB has not sought to serve or justify the section 8 notices on the basis that the vessels were houseboats lacking a houseboat certificate (though they may do so in the future); iv) if a vessel is to be kept or used for navigation on any part of the GUC other than its tidal stretches then it must be registered and certificated as a pleasure boat (unless certificated as a houseboat or licensed by BWB to use all inland waterways), and its name and number must be conspicuously displayed, and its certificate produced on demand: otherwise its keeping or use is unlawful; v) it having already been decided that PRN do not confer any right to moor, except temporarily, the Claimant has not demonstrated any other right to moor permanently, whether in right of riparian ownership, possession of a riverbank or wharf, or under the 1793 Act, or otherwise; vi) ‘Gilgie’ and other vessels in the care of the Claimant permanently moored without a right to do so were and remain subject to the navigational authority of BWB, and in particular, to section 8 of the 1983 Act; vii) The Claimant has not provided sufficient evidence to support the conclusion he urged that BWB was using its powers under section 8 for an improper collateral purpose, namely to further its collaboration with a developer; viii) However, in serving section 8 notices BWB failed to abide by its own procedures, and was in breach of legitimate expectations held by the Claimant that in exercising a power admitted by BWB to be draconian and to be used only as a last resort BWB would abide by such procedures; ix) ‘Gilgie’, being presently the Claimant’s home, my provisional view is that his Article 8 rights have been infringed; x) I will, however, permit further argument as to that provisional conclusion and as to the appropriate relief (if any) in respect of (ix) and (x) at the hearing for delivery of this judgment; xi) BW was in breach of the undertaking it gave to the Court; but this was inadvertent and has now been explained, and no further action is required.[234]Thus there remain for further submissions and adjudication the questions consequential on my finding of an infringement of the Claimants legitimate expectations, my provisional conclusion as to the Claimant’s Article 8 rights, the form of any appropriate relief, and then questions of costs and any other incidental or ancillary matters.[235]It would assist me for written submissions (not more than 10 pages without permission) to be filed in this regard. A suitable date for Judgment and these further matters will be fixed through the usual channels. I would not expect the hearing to take more than one and a half hours, and would ask the parties to bear that in mind in preparing their submissions.[236]Lastly, I would not wish to leave this long judgment without expressing my concern about the present disparate and complex nature of the legislation that I have had to consider. It is, of course, a matter for BWB; I appreciate that the process would be time-consuming and expensive, and disputes such as this may be few and far between, which may make it difficult to justify in terms of cost; but I share the hope of the Select Committee of the House of Lords, in reviewing the Bill that ultimately became the 1995 Act, that consideration be given to bringing forward clearer consolidated legislation in due course to clarify and set out in more accessible form the extent of BWB’s powers and the circumstances in which they may be exercised.

Cited in 1 later judgment