England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Lloyd)

		Royal Courts of Justice Strand London WC2 Wednesday, 25th July 2001

Wednesday, 25th July 2001

1. LORD JUSTICE PETER GIBSON: Lord Justice Chadwick will give the first judgment.
2. LORD JUSTICE CHADWICK: These are appeals from orders made on 22nd June 2000 by Lloyd J in proceedings brought by Ipswich Borough Council, as owners of the foreshore and bed of the river Orwell, against Mr Derek Moore and Mr Alisdair Duke, each of whom held, at the relevant time, a mooring licence granted by the Ipswich Port Authority under section 12 of the Ipswich Dock Act 1950.
3. The proceedings were commenced by writs issued on 26 November 1996. The claims were, in form, claims for possession of such parts of the river bed as were occupied by the mooring tackle laid by the defendants; but the real issue in each action was whether the defendants could be required to pay a licence fee to the Borough Council as well as, and in addition to, the licence fee paid to the Port Authority. On that issue the judge held in favour of the defendants. He declared that the Borough Council were not entitled to require their separate consent to be obtained for the laying and use of a mooring in the foreshore or bed of the river Orwell for which permission had been granted under the Ipswich Docks Acts and Orders 1852 to 1986. He gave the Borough Council permission to appeal to this Court.
4. It is common ground that the river Orwell at Pin Mill - which is where the moorings in question are laid -- is within the port of Ipswich as defined by the Act of 1950. Pin Mill lies between Stoke Bridge and an imaginary line drawn across the river from Shotley Point to Fagborough Cliff. Nor is it in dispute that power to grant licenes to lay down, maintain and use moorings within the port as so defined is conferred on the Ipswich Port Authority - formerly known as the Ipswich Dock Commission - by section 12 of that Act. The section is in these terms:

"(1)(a) The Commission may from time to time on such terms and conditions as they shall think fit grant licences to any person to place lay down maintain use and have existing and future moorings in the port and may contribute to the cost of the same and the Commission may also grant licences to any person to exercise the privilege of preferential right of user of moorings laid down by the Commission in consideration of a contribution or periodical payment by such person to the Commission.

(b) Any licence granted under paragraph (a) of this subsection shall be valid only for a period of twelve months commencing with its date.

(c) The Commission may charge a fee not exceeding two pounds for the granting of a licence under paragraph (a) of this subsection.

(2)The Commission may make byelaws for the purpose of regulating the placing laying down maintaining using and having existing and future moorings in the port: Provided that before submitting such byelaws to the Minister for confirmation the Commission shall send a copy of the draft byelaws to the town clerk of the borough of Ipswich and to the clerk of the county council.

(3)Nothing in this section shall be deemed to confer on the Commission any right title or interest in or to any land (not for the time being belonging to the Commission) forming part of the bed or foreshore of the river Orwell."

5. The Commission was renamed the Ipswich Port Authority by the Ipswich Port Authority Order 1973 (SI 1973/2136), made under section 14 of the Harbours Act 1964. On 25 March 1997 the undertaking of the Port Authority was transferred to a successor company, Ipswich Port Limited, under a scheme (the Ipswich Port Authority Transfer Scheme 1996) approved and confirmed by the Secretary of State under section 9 of the Ports Act 1991 - see The Ipswich Port Authority Transfer Scheme 1996 Confirmation Order (SI 1997/948); but nothing turns on that. Save that the monetary limit on the amount that may be charged for a licence was removed by section 27 of the Harbours Act 1964, the provisions in section 12 of the 1950 Act have survived the enactment of subsequent legislation relating to the Commission and the Port Authority, unrepealed and unaltered.

The Borough's title to the bed and foreshore of the river.

6. The Ipswich Borough Council derives its title to the bed and foreshore of the river Orwell from a charter granted by Henry VIII in 1518. Although from time to time since the charter was granted the Crown has asserted its own title against the Borough, that dispute was compromised by an agreement made on 3 February 1936 between the Board of Trade, the Commissioners of Crown Lands and the Mayor, Aldermen and Burgesses of the Borough. The effect of that agreement, in the present context, is that the tidal portion of the river Orwell to the bed and foreshore of which the Borough can claim ownership under the charter is co-extensive with the port of Ipswich as defined in the 1950 Act.
7. The Borough's claim to ownership of the bed and foreshore of the river was put in issue by the defendants in these proceedings; but that challenge was not pursued at trial. The judge resolved the issue by a declaration of the Borough's title, founded on the 1518 charter and within the limits of the 1936 agreement. There is no cross appeal challenging that declaration.

The public right of navigation issue.

8. The defendants sought to argue at the trial that the right to lay and use deep water moorings was an incident of the public right of navigation in tidal waters, to which the owner of the bed of a tidal river could not object. If that contention were well founded, it would follow that, whether or not the position would otherwise be affected by the provisions in section 12 of the Ipswich Dock Act 1950, the Borough's consent to the defendants' use of their mooring was not required. The judge did not find it necessary to decide that question. It is raised, in this Court, by a respondent's notice, served under CPR 52.5(2)(b) on behalf of Mr Moore. The respondent's notice has given rise to applications on behalf of (i) the Crown Estate Commissioners and (ii) the Royal Yachting Association to appear at and take part in this appeal. In the event we have not found it necessary to hear the submissions which those applicants wish to advance on the question whether the right to lay and maintain deep water moorings is an incident of the public right of navigation in tidal waters.

The issues raised on these appeals.

9. The first issue raised by these appeals is whether, on the assumption that the Borough as owner of the bed and foreshore of the river under the grant made in the 1518 charter would otherwise be entitled to withhold - and so charge for - consent to lay deep water moorings, it is not entitled to do so in the case of moorings laid and maintained under licence granted by the Port Authority. To put the point another way: is licence granted by the Port Authority under section 12 of the 1950 Act sufficient authority to lay and maintain moorings on the bed of the river against the wishes of the Borough as owner?
10. If the Borough fails on the first issue, a second issue will arise; that is to say, whether the judge was entitled to make the orders for costs that he did. It is said that, instead of ordering the Borough to pay the defendants one half of their costs of the actions and counterclaims, he should have made discrete orders against the defendants in respect of the costs incurred by the Borough in establishing its title to the bed and foreshore of the river - the issue upon which it was successful.

Historical antecedents.

11. The Port Authority (formerly known as the Ipswich Dock Commission) was the successor to the Ipswich Dock Commissioners, a body incorporated by section 10 of the Ipswich Dock Act 1852. The 1852 Act was itself enacted to consolidate and amend earlier Acts relating to the part of Ipswich; in particular an Act of 1837 (1 Vict, c 74) which had, itself, repealed and replaced an Act of 1805 (45 Geo III, c 101).
12. The 1805 Act was enacted for the purpose of improving and rendering more commodiously the Port of Ipswich; the franchise in respect of which had, until then, been held by the Borough under the 1518 charter. The long title to the Act explains that:

"By deepening, widening, cleansing altering and otherwise improving that Part of the River Orwell, within the Liberties of the Town and Borough of Ipswich ... the Port and Town of Ipswich will be greatly benefited and the Navigation and Commerce of the Kingdom increased And forasmuch as very considerable Expence will be incurred by deepening, widening, cleansing, altering and improving such part of the said River Orwell, and the preserving and maintaining the same when improved; and as the Inconvenience Ships and Vessels are now exposed to for want of such Alterations and Improvements will be in great measure removed, it is reasonable that the Sums necessary to defray the same should be paid by Persons trading to and from the said Port..."

13. The 1805 Act appointed Commissioners, amongst whom are the "High Steward, Bailiffs, Recorder, Town Clerk, Portmen and Common Council Men of the Town and Borough of Ipswich", as well as a number of local gentry and others no doubt prominent in the commercial life of the town. "Portmen", in that context, is synonymous with "burgesses" or "citizens". The Commissioners were given power to make byelaws - see section 5 of the 1805 Act, which is in these terms, so far as material:

"That it shall be lawful for the said Commissioners ... to make such Bye Laws, Rules, Orders and Regulations for the ordering and securing, and safely and conveniently stationing or placing of the Ships and Vessels coming into and lying in the said River or Port, and for the loading and unloading, mooring and unmooring thereof ... and for the Appointment, Regulation, Direction, and well conducting of Ships and Vessels into or out of or whilst within the said River or Port..."

14. Section 6 of the 1805 Act contained a saving provision. The rules, orders and byelaws made under section 5 were not to be contrary or repugnant to (amongst other things) "any Claims for Anchorage or Groundage". It is common ground that anchorage and groundage were tolls, or harbour dues, to which the Borough had been entitled as the holder of the port franchise. Section 14 provided for the payment to the Commissioners of the rates and dues specified in the Table annexed to the Act; and no other rates, customs or duties "except such as are due and payable to the Bailiffs, Burgesses, and Commonalty of the said Town and Borough of Ipswich". Section 39 authorised the appointment of a harbour master with power to direct where vessels lying within the river should moor; and reinforced his powers by the imposition of fines on anyone who should "obstruct or hinder the mooring, unmooring, moving or removing of any Ship or other Vessel, in the said Port or Harbour". Section 64 of the 1805 Act provided that nothing in the Act was to affect, prejudice or take away any rights, estates or advantages belonging to the Borough "except such as are hereby expressly taken away or altered".
15. The general effect of the 1805 Act was to deprive the Borough of the franchise and oversight of the port and of the benefits which it had enjoyed as franchisee - save as to anchorage and groundage, which were expressly reserved - and to vest the operation of the port in the Commissioners. It is, to my mind, reasonable to infer that the Borough was willing to give up its rights as franchisee in order that the port, on which its trade and prosperity depended, could be improved and made more attractive. But whether the Borough welcomed the change is irrelevant; it is clear enough that the change was imposed by Parliament in order to further the general interest in commerce.
16. The 1805 Act was repealed and replaced by the Act of 1837, to which I have already referred. It is clear, from the long title to the 1837 Act, that the objects for which the 1805 Act had been enacted had been achieved; but money was needed for the construction of a wet dock and basin, with associated quays and wharfs, which "would tend much to the Advantage, not only of the said Port and of the neighbourhood thereof, but of that part of the Kingdom in which it is situate". New Commissioners were appointed, amongst whom were "the Mayor, Aldermen and Councillors of the Borough of Ipswich". The Borough had fact, in fact, lately been incorporated (or re-incorporated) by section 6 of the Municipal Corporations Act 1835 under the name "The Mayor, Aldermen and Burgesses of the Borough of Ipswich"; and it is, perhaps, unclear whether it was to be the Borough, as a corporation, or the members of the Borough Council, as individuals, who were to be Commissioners under the 1839 Act. But the distinction is not, I think, material.
17. The new Commissioners were given power to make byelaws - see section 15, which is in the same terms as section 5 of the 1805 Act. There was, again, a saving provision in respect of anchorage and groundage; and a more general saving provision - in section 134 - for the rights, estates and advantages belonging to the Borough. The provisions formerly in sections 14 and 39 of the 1805 Act were re-enacted as sections 45 and 104 of the 1837 Act.
18. Some ten years later Parliament enacted the Harbours, Docks and Piers Clauses Act 1847, for the express purpose of consolidating in one Act provisions usually contained in local acts authorising the construction or improvement of harbours, docks and piers. The 1847 Act provided that the persons authorised by any "special Act" (called "the Undertakers") should appoint a harbour master with power to give directions for (amongst other things) the time at which any vessel should lie in the harbour or dock "and its position, mooring or unmooring, placing and removing, whilst therein" - see sections 51 and 52 of the 1847 Act. In that context a "special Act" is any subsequent Act authorising the construction or improvement of a harbour, dock or pier and in which the provisions of the 1847 Act should be incorporated. Section 83 conferred a power to make byelaws; in particular, a power to make byelaws for regulating the use of the harbour, dock or pier.
19. The Ipswich Dock Act 1852 consolidated and amended, and repealed, the Act of 1837 and two subsequent Acts (4 & 5 Vict, c 52 and 6 & 7 Vict, c 20), not here material, in the light of the provisions of the Harbours, Docks and Piers Clauses Act 1847, which it incorporated. The 1852 Act contains no discrete power to make byelaws in relation to mooring in the terms formerly contained in section 5 of the 1805 Act and section 15 of the 1837 Act. But the reason, as it seems to me, is that it did not need to do so. Section 9 of the 1852 Act provided that all byelaws made by the earlier Commissioners should continue in force until new byelaws were made under that Act; and section 102 of the 1852 Act conferred a new power on the Commissioners constituted by that Act to make byelaws by reference to the Clauses Act of 1847. As I have mentioned, section 83 of the 1847 Clauses Act contained a power to make byelaws; and the power to regulate moorings was conferred on the harbour master by section 52 of that Act. Section 104 of the 1852 Act provided that no byelaw should be made which prejudiced the Borough's claim to anchorage and groundage; and section 111 of that Act contained general saving provisions for the rights, estates and advantages of the Borough.
20. The customary right of the Borough of Ipswich to anchorage and groundage was abolished by section 24 of, and Part II in the schedule to, the Harwich Harbour Act 1863. That was reflected in the Ipswich Dock Act 1877, which, at section 64, preserves the "right of the Corporation of Ipswich to any rates or duties due or payable to them" but (for the first time in this sequence of legislation) makes no reference to the rights to exact anchorage and groundage tolls which the Borough had formerly enjoyed as franchisee of the port. In 1918 the Commission (as it had become) was given an express power, for the first time, "to demand receive and recover in respect of vessels using any of the moorings belonging to the Commission such reasonable charges as they may prescribe."
21. The persons incorporated as "the Ipswich Dock Commissioners" by section 10 of the 1852 Act had included the Mayor, Aldermen and Burgesses of the Borough of Ipswich (a body corporate under the Municipal Corporations Act 1835) and seventy-two other persons selected by rotation. The Commissioners constituted by the 1852 Act were reduced in number, and reconstituted as "The Ipswich Dock Commission", by the Ipswich Dock Act 1913 - see section 5 of that Act. The Borough ceased to be a member of the Commission - but retained the right to appoint seven persons to membership. The right to appoint three members was conferred on the East Suffolk County Council.

The 1950 Act.

I return now to the provision of the Ipswich Dock Act 1950.

22. I have pointed out earlier in this judgment that the express powers to make byelaws in relation to moorings, formerly contained in section 5 of the 1805 Act and section 15 of the 1837 Act, were not re-enacted in the 1852 Act. The reason was that powers to regulate mooring were conferred on the harbour master by section 52 of the Clauses Act 1847; and a more general power to make byelaws was conferred by section 83 of that Act. The Clauses Act 1847 was itself incorporated in the 1852 Act.
23. An important feature of the 1950 Act, in this context, is the repeal of the wholesale incorporation of the Clauses Act 1847 in existing Acts (as defined in section 3(1) of the 1950 Act) - see section 2(3) of, and the first schedule to, the 1950 Act - and, in its place, a more selective incorporation under section 2(1) of the 1950 Act. In particular, the power to make byelaws, conferred by section 83 of the Clauses Act 1847, is limited in its application - see the partial repeal of section 102 of the 1852 Act which is effected by section 2(3) of, and the first schedule to, the 1950 Act. The effect of the repeal, as it seems to me, was that the power to make byelaws under section 83 of the Clauses Act 1847 is cut down so that it no longer extended to byelaws made in respect of "the Dock and Works of the Commissioners, the port of Ipswich and the River Orwell."
24. The apparent lacuna was filled, in relation to moorings, by section 12(2) of the Act of 1950, which I have already set out. That subsection provided that the Commission might make byelaws "for the purpose of regulating the placing, laying down, maintaining, using and having existing and future moorings in the port." Before submitting byelaws made under that subsection to the Minister for approval - as required by section 250 of the Local Government Act 1933 and section 23(1) of the 1950 Act itself -draft byelaws were to be sent to the town clerk of the Borough and to the clerk of the County Council. That reflects the interests of the Borough and the County Council as bodies entitled, under section 5(1) of the 1913 Act, to appoint persons to be Commissioners. In so far as any lacuna in the byelaw making power remained, it was filled, some 20 years later, by section 78(1) of the Ipswich Dock Act 1971; which gave the Commission power to make byelaws for the following, amongst other, purposes:

"(d)for prescribing parts of the river -

(i) where vessels or a specified class of vessels may not moor, anchor or be otherwise secured; ...

(g)to regulate the laying of moorings in the river; ..."

25. As I have indicated, a consequence of the partial repeal of the power to make byelaws under section 83 of the Clauses Act 1847 was that it was necessary, in 1950, to make new provisions as to moorings. That was done by section 12, the terms of which I have already set out. That section contains a number of distinct, but related, provisions. First, by subsection (2), it confers a new power to make byelaws for the purpose of regulating the placing, laying down, maintaining, using and having existing and future moorings. Second, it confers a new power to grant licences to any person to place, lay down, maintain, use and have existing and future moorings - see the first limb of subsection (1). Third, it confers a new power for the Commission to contribute to the cost of laying down and maintaining moorings - see the second limb of subsection (1). Fourth, it confers a new power to grant licences giving a preferential right of user of moorings laid down by the Commission - see the third limb of subsection (1). The power to grant licences giving a preferential right to use the Commission's own moorings may be seen as supplementing the power, already conferred by section 20 of the 1918 Act, to charge for the use of those moorings. The combined effect is that the Commission could charge anyone for using its moorings; but, in addition, could charge for the right to use those moorings in preference or priority to, or to the exclusion of, others.
26. Section 12 of the 1950 Act must be read in conjunction with sections 13 and 14 of that Act. Section 13(2) provides that:

"It shall not be lawful without the written consent of the Commission to moor, place, keep or maintain in the port any houseboat, whether or not the same shall have been so placed or moored before the passing of this Act."

27. "Houseboat", in that context, means any vessel (whether or not used or intended to be used for human habitation) other than a ship registered under the Merchant Shipping Act 1894 or any boat or vessel bona fide used for navigation - see section 13(1) of the 1950 Act. Section 13(2)(b) requires that, before giving consent, the Commission shall give notice to the Borough and to the County Council and shall take any representations which they may make into account. Section 13(4)(a) gives the Commission power to remove or demolish any houseboat in respect of which it has given a notice to remove which has not been complied with. Section 14(1) of the Act provides that

"any person aggrieved by any terms or conditions prescribed by the Commission or by any refusal of a licence under section 12 (Powers as to moorings) ... or by any refusal of consent or any requirement of the Commission under section 13 (As to houseboats) ... may appeal to the Ipswich County Court".

28. Section 14(4)(a) of the 1950 Act gives the judge power to allow an appeal against refusal of a licence or consent, or to substitute for the terms, conditions or requirement of the Commission any other terms, conditions or requirement which the Commission could have prescribed or made. Where the court reverses or varies any refusal or requirement of the Commission, effect shall be given to the court's decision by the grant of the necessary licence or consent - see section 14(7).
29. Sections 12 and 13 of the 1950 Act each contain - at subsections (3) and (7) respectively - a provision that nothing in the section shall be deemed to confer on the Commission:

"any right title or interest in or to any land (not for the time being belonging to the Commission) forming part of the bed or foreshore of the river Orwell".

30. But it is plain, as it seems to me, that, although no right, title or interest in or to the bed of the river is conferred by the section, it is impossible to read sections 12 and 13 of the Act without reaching the conclusion that they do confer rights over or in respect of the river bed. Section 13 enables the Commission to prevent anyone - including the Borough or anyone licenced by the Borough - from mooring or keeping a houseboat on the river. As I have indicated "houseboat" is widely defined. Further, the section enables the Commission to permit anyone to keep a houseboat on the river, notwithstanding the objections of the Borough. Section 13(2)(b) - to which I have referred - would have little point (at least in relation to the Borough) if, notwithstanding that the Borough had made representations against the giving of consent by the Commission which the Commission had decided to overrule, the Borough could itself prevent effect being given to that consent (and any licence granted consequent upon that consent) by exercising rights as owner of the bed or foreshore of the river. Similarly, section 12 enables the Commission to prevent, or to permit, anyone from laying down new moorings, or from maintaining and using existing moorings. The Commission's powers to refuse a licence or a consent, or to impose terms, are subject to control by the court under section 14 of the Act. It would, as it seems to me, be quite inconsistent with the scheme of control over the mooring and keeping of boats which sections 12, 13 and 14 of the 1950 Act are plainly intended to implement, if the Borough, as owner of the bed and foreshore, had an overriding right to prevent effect being given to a licence or consent granted by the Commission. A fortiori, in circumstances where the licence or consent is granted in order to give effect to an order of the court under section 14 of the 1950 Act.
31. Parliament has addressed the question whether the powers granted to the Commission by sections 12 and 13 of the 1950 Act are to affect the rights of the Borough as owner of the bed and foreshore of the river. Section 28 of the 1950 Act is in these terms:

"Save as respects the powers conferred on the Commission by sections 12 (Powers as to moorings), 13 (As to houseboats) and 16 (Removal of sunk, stranded or abandoned vessels) of this Act nothing in this Act shall affect prejudicially any of the rights, interests, privileges, powers or authorities of the [Borough] under any charter in force at the passing of this Act."

32. The contrast between section 64 of the 1805 Act, section 134 of the 1837 Act and section 111 of the 1852 Act, on the one hand, and section 28 of the 1950 Act, on the other hand, is striking. Each of the sections in the earlier Acts - which are Acts which confer powers to make byelaws - provides in express terms that nothing in, or done under, the relevant Act is to affect, prejudice, alter, abridge or take away any rights, estates, powers or advantages whatsoever belonging or appertaining to the Borough so that" all such rights, estates, powers and privileges shall continue in full force and effect, and may be exercised and enjoyed in as full and ample a manner, to all intents and purposes, as if this Act had not been made: any thing herein contained to the contrary in anywise notwithstanding". Section 28 of the 1950 Act provides, in terms, that the general savings for the rights, interests and powers of the Borough under any charter shall not extend to the exercise of the powers as to moorings conferred by section 12; nor to the powers in relation to houseboats and sunk, stranded or abandoned vessels conferred respectively by sections 13 and 16 of that Act. Plainly, Parliament contemplated and intended in 1950 that the exercise by the Commission of powers under sections 12, 13 and 16 of the Act would or might prejudice the rights, interests and powers of the Borough as owner of the bed and foreshore of the river. It is, perhaps, not without significance that the 1950 Act was the first of the Ipswich Dock Acts to be enacted after the compromise agreement of February 1936. Whatever may have been the position at the time of earlier enactments, there was no impediment, in 1950, to giving statutory recognition to the fact that the Borough had been granted rights of ownership by the charter. But, in recognising that, Parliament has made it clear that those rights were subject to the powers conferred on the Commission in respect of mooring licences.
33. We were referred to a number of authorities on the extent to which rights granted by charter survive, or are superseded by, or become subject to, rights conferred by subsequent legislation. They were analysed by the judge at paragraphs 40 to 43 of his judgment. It is unnecessary to set out that analysis again in this judgment. The principle, was stated by Bowen LJ in The Mayor and Citizens of the City of Manchester v Lyons [1882] 22 ChD 287 at page 310:

"Where there is a franchise created by charter, and the legislature afterwards operates upon it, it is obvious that the legislature can do exactly what it pleases. It can either leave the old franchise standing, and place a new parliamentary right beside it, or it may leave the old franchise standing and incorporate certain statutory incidents into the old franchise, provided it makes its intention clear; or it may extinguish the old franchise, either expressly or by implication, and substitute in its place not a franchise properly so called, but parliamentary rights and obligations as distinct from a franchise. We must therefore in each case look at the statute itself to see what the legislature has chosen to do." [emphasis added]

34. In the present case, it seems to me clear what the legislature has chosen to do. In 1815 it divested the Borough of most of the incidents of the port franchise granted under the 1518 charter, leaving the Borough with ownership of the bed and foreshore of the river and, until 1863, with the right to levy tolls in respect of anchorage and groundage. It transferred control over moorings, first to the Commissioners appointed under the Acts of 1805 and 1837; and then to the Commissioners incorporated under the 1852 Act. Until 1950 control over moorings was exercised by the Commissioners (and latterly by the Commission) through the powers conferred on the harbour master under the Clauses Act 1847. In 1950 control was vested, expressly, in the Commission, in terms which make it plain that the rights of the Borough as owner of the bed and foreshore of the river are subject to the powers conferred on the Commission. Those powers have enabled the Commission to grant licences to lay moorings on the bed of the river and to use existing moorings laid on the bed of the river. The rights of the Borough as owner of the bed and foreshore are subject to those powers; and so are subject to the rights (under the terms of their licenses) of those to whom licences under those powers have been granted under the terms of those licenses. The regulatory scheme introduced by the 1950 Act is superimposed upon the rights of nthe Borough as owner of the bed and foreshores of the river; so that the Borough's rights as owner take effect subject to rights granted to licenses in accordance with the scheme.
35. I would dismiss the appeals against the declarations made by the judge.

The costs issue.

36. I can deal with this issue shortly. In my view it has not been shown that the judge erred in principle in deciding to make the orders for costs which he did make. I would dismiss the appeals against that part of his orders also.
37. LORD JUSTICE KAY: I agree.
38. LORD JUSTICE PETER GIBSON: Mr Berry QC laid heavy emphasis on a submission that the Ipswich Ports Acts set up merely a regulatory scheme which could not be construed as expropriating without compensation any pre-existing private right or entitlement which the Council held as the owner of the bed of the Orwell and the foreshore. There is no doubt that the Acts did, and do, provide for the regulation by the Ipswich Port Authority (or its predecessors) by means of byelaws of vessels using the port of Ipswich. But that fact in itself does not provide the answer to the question whether the Council's rights as freeholder were left unaffected by the Acts so that the Council can assert, as it now does, the right to require its consent at a price for use made by vessels of moorings in the river. There is no evidence of the use by the Council of its asserted rights until very recent times, when it has made the claim the subject of the case before us. The one authority cited on this point by Mr Berry was City of Toronto v Virgo [1896] AC 88. This case was relied on by him for the remark made by Lord Davey giving the judgment of the Privy Council at page 93:

"... a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed."

39. But as Mr McDonnell QC in his helpful skeleton argument pointed out, those words must be read and understood in their context. The question in that case was whether the City of Toronto, which had powers to make byelaws for regulating and governing hawkers plying their trade in the city, could properly bar altogether hawkers from plying that trade in a substantial portion of the city where no question of any apprehended nuisance was raised. The full passage confirming that Lord Davey said at page 93:

"No doubt the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed."

40. Had the question been whether the Ipswich Port Authority could ban mooring in a substantial part of the Orwell, that case might well have been in point. But I cannot see how it can assist in showing that the Council as freeholder can refuse its consent to a mooring for which the Ipswich Port Authority has given a licence under an express statutory power. Indeed, just as the conferring of the power on the City of Toronto to regulate and govern hawkers plying their trade implied that subject to regulation such a trade was to be allowed, so the conferring of power on the Ipswich Port Authority to licence moorings implies that, subject to the regulation of the moorings, moorings are to be allowed; and it is inconsistent with the Council's claim to be able to refuse any mooring for which a licence has been granted by the Ipswich Port Authority.
41. Quite apart from the suggested effect of there being a regulatory scheme, the 1950 Act, in my judgment, unambiguously recognises in the opening words of section 28 that a licence granted under section 12 may prejudicially affect the rights of the Council.
42. For these as well as the reason given by Chadwick LJ, I conclude that the judge reached the right conclusion and that the appeal on the substantive point must be dismissed.
43. On the question of costs, the judge was faced, as he explained in a full and detailed separate judgment, with submissions from extreme positions. Mr McDonnell had prayed in aid the usual rule that costs follow the event and asked that the Council pay all of the defendants' costs. Mr Stoner, then appearing alone for the Council, argued that this was not a case in which costs should follow the event. He asked for an order that the defendants pay 50% of the Council's costs.
44. The point that is taken before us by Mr Berry and Mr Stoner is that, in relation to the question of title, Ipswich succeeded and that question occasioned the incurring of a substantial amount of costS given the huge volume of documentary evidence which had to be explored. The judge, however, had this fully in mind. He refers to Mr Stoner's submission and notes the quantity of the documentary evidence. The judge referred to the history of that issue and the way in which the defendants had put in issue the question of title, how the defendants did not receive the 1936 Deed of Compromise until early 1999, how the defendants were allowed to inspect physically the documents belonging to the Council and that, as soon as that had been done and its results considered, title was conceded. The judge also noted that subsequently there was an indication that that concession would be resiled from. It was not, he noted, in the end resiled from and the position was as he recounted it, that is to say that the judge thought it appropriate to decide the question of title, which he did, as I understand it, without argument to the contrary from Mr McDonnell.
45. All that was known to the judge and taken fully into account by him as well as certain other matters which had been argued on both sides. I find it quite impossible to see that the judge made any error of principle or that he exceeded the proper ambit of his discretion in making the order which he did that the Council should pay 50% of the defendants' costs. That being so, in my judgment the appeal on this point also must be dismissed.
Order: Appeal dismissed. We think that the successful defendants should have their costs, including in the case of Mr Moore the costs of the respondent's notice. That is to include the costs in relation to the intervention of the Crown Estates Commissioners but excluding the costs of the application by the RYA to intervene. Application to appeal to the House of Lords refused.