England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR MARTIN MANN QC (sitting as a Deputy High Court Judge )
No HC07C02340

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/02/2010

Lord Justice Mummery :

Introduction

1. This dispute is about the claimant's rights to moor his houseboats to, or alongside, the banks of a stretch of the Grand Union Canal (the GUC). The defendant British Waterways Board (BWB) is responsible for the GUC as an "inland waterway." The issues between the parties relate to the nature, source and extent of the claimant's rights, and the scope and exercise of BW's statutory powers of control over and regulation of canals, "inland waterways" and "houseboats" under the British Waterways legislation enacted in 1971, 1975, 1983 and 1995, and the impact (if any) of the statutory regime on the claimant's rights. The legislation set up a system for issuing relevant consents or certificates and for charging for the registration of houseboats. It includes powers to serve notices requiring vessels to be removed, to confiscate unlawfully moored vessels and to prohibit the maintenance of structures, such as mooring posts and landing stages, in an inland waterway, without a certificate.
2. The full trial of the case has not yet taken place, because a direction was made for the preliminary determination of 4 issues. They were determined by Mr Martin Mann QC, sitting as a Deputy High Court Judge, on 12 March 2009. The claimant was refused permission to appeal. The focus of his application to this court for permission was on issue (i) of the preliminary issues, which related to the impact of the Inland Waterways legislation on his rights in respect of the waterway described in the Grand Junction Canal Company Act 1793 (the 1793 Act), and on the order to pay 4/5^th's of BWB's costs of the preliminary issues.
3. In accordance with directions given by Arden LJ (supplemented by Lloyd LJ) the hearing on 25 November 2009 was listed as an adjourned inter partes application for permission to appeal, with the appeal to follow immediately on a grant of permission.
4. Mr Nigel Moore appears in person. BWB, represented by Mr Christopher Stoner, opposed Mr Moore's application mainly on the ground that an appeal was "unnecessary." There is going to be a trial at which all outstanding issues will be determined. As the arguments developed in discussions with the court, it became clear that permission to appeal ought to be given on issue (i), so that this court could set aside the preliminary ruling on that issue and allow it to be determined at trial along with all other outstanding issues of fact and law.
5. In his grounds of appeal Mr Moore criticised the ruling of the deputy judge as "insufficiently responsive to the question" relating to preservation of pre-existing rights and/or the grant by the 1793 Act of private, as well as public, rights of navigation and of private riparian, non-navigational rights, including the right to moor vessels to the banks of the GUC without objection from the owners of the banks. Mr Stoner fairly accepted that the deputy judge's ruling on issue (i) was unsatisfactory. Something had gone wrong with it, not least because it was in terms for which neither side had contended.
6. This court concluded that the issue would have be re-argued and that it was more sensible for that to be at trial after the court had heard all the evidence. That court would be better equipped to understand the whole situation than would be possible for this court on an appeal constrained by the terms in which the preliminary issue was framed. Subject to questions of liability for the costs of (a) the preliminary issues and (b) the appeal and the application for permission, Mr Moore and Mr Stoner were content for the court to take this course. For the benefit of the parties and of the trial judge this judgment provides a short summary of the background to the litigation and the issues to be determined, as well as a statement of reasons for setting aside the deputy judge's ruling on preliminary issue (i) and for making orders for costs of the preliminary issues and of the appeal, including the permission application.

Background

7. The stretch of the GUC relevant to this dispute was formerly part of the River Brent flowing into the River Thames at Brentford. The river was canalised at the end of the 18^th century to form the Grand Junction Canal, as the GUC was originally called. The Grand Junction Canal Act 1793 (the 1793 Act) was a Private Act which facilitated the construction of a navigable canal running from Braunston in Oxfordshire to the River Thames at Brentford. The GUC thus includes an element of the former River Brent.
8. BWB made the point that the subsequent legislation on the regulation of "inland waterways" did not contain any express saving for rights which may have been conserved or conferred by the 1793 Act. BWB's pleading alleged that the effect and extent of any rights contained within the 1793 Act fell to be construed by reference to and having regard to the various British Waterways Acts and that the powers of regulation in those Acts impliedly repealed and/or amended previously relevant rights in the 1793 Act.
9. It should be noted that the section of the GUC immediately above the junction with the River Thames is tidal and that a semi-tidal stretch goes back to Lock 100, above which and stretching back to Bax's Mill (which is expressly mentioned in the 1793 Act) the GUC is non-tidal.
10. Mr Moore lives a narrowboat Platypus moored to the bank at Ridgeways Wharf, Brent Way, Brentford. That stretch of the GUC is near a dock area and is close to the point above the Thames Lock called "The Nib." Mr Moore is the Company Secretary of Brentford Marine Services and of Brentford Yacht and Boat Company Limited (the Company) which has been involved in other litigation with BWB and a company called Geronimo Limited relating to title to land in the vicinity of the moorings. The dispute was partly compromised by a Tomlin Order in August 2008 and was the subject of a judgment handed down on 12 December 2008.
11. Nearby five other vessels owned or controlled by him are moored. Four of them are occupied. None of his vessels is anchored to the bed of the GUC. They are moored either to a pontoon in the GUC or to sections of the bank of the GUC. Before the trial of the preliminary issues the vessels were moored alongside land and a pontoon that Mr Moore contended had been used for the past 60 years by the Company and its predecessors. At the time of the trial the vessels were moored somewhat differently. However, it is still an issue in this action whether (and, if so, how) the vessels are moored either to a pontoon in the GUC or to sections of the bank of the GUC.
12. The litigation was prompted by Mr Moore's challenge to the validity and enforceability of notices served on him by BWB on 21 July 2007 under section 8 of the British Waterways Act 1983 (the 1983 Act) in relation to his houseboats. BWB contended that they were moored without lawful authority in an inland waterway under its control. The notices demanded the removal of the vessels within 28 days or face confiscation. Mr Moore says that he is entitled to do what he does by virtue of common law rights, which have not been extinguished by legislation, and by virtue of rights which he contends were preserved and/or conferred by the 1793 Act and have not been removed, repealed or overridden by later legislation.
13. The claims are resisted by BWB, in which the GUC has been vested since 1962. BWB does not rely in this case on private rights of ownership of, or of possession to the banks of the GUC, or on other common law rights. It asserts its position as statutory navigation authority controlling inland waterways and equipped with statutory regulatory and management powers, in particular the power to issues the notices given to Mr Moore in respect of his houseboats moored to the bank of the GUC and to the pontoon at The Nib without lawful authority.
14. In disputing the legal validity of the notices Mr Moore relies in particular on s43 of the 1793 Act, which provided that the free navigation of the river should not be impeded or hindered and that

" …it shall and may be lawful, to and for the owners, 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 heretofore had, used, and enjoyed, by them and their predecessors…."

15. The section goes on to make further provision in elaborate terms which will have to be closely examined at trial. All that need be said at this stage is that Mr Moore contends that the effect of the 1793 Act is that he is under no liability for payments is respect of his houseboats on the GUC between Bax's Mill and the junction with the River Thames.

Preliminary rulings

16. Preliminary issues were directed to be tried to determine some of the main issues raised in the pleadings in respect of the use of the GUC between Bax's Mill and the River Thames: what rights are included in the right of navigation, public or private; whether the GUC extended down to the mouth of the River Brent into the River Thames; whether BWB is the relevant statutory navigation authority for that element of the GUC comprising tidal waters of the River (or former river) Brent; and whether a public right of navigation includes an ancillary right to moor, other than temporarily in the course of navigation.
17. With the benefit of hindsight I have reservations as to whether issue (i) referred to below, which is the most important issue in the case, was suitably framed for determination as a preliminary issue. However, that is what the Deputy Judge was directed to try and he answered that and the other issues in this way-

"(i) The issue of whether the rights concerning the waterway between Bax's Mill and the River Thames, as described in [the 1793 Act] remain in force and unaffected by the provisions of the Transport Act 1968 ("the 1968 Act") is answered (in so far as is necessary) in the following terms: the private right of navigation granted by section 43 of the 1793 Act was repealed by the 1968 Act.

(ii) The issue whether the Grand Union Canal extends down stream to the mouth of the River Brent into the River Thames is answered: Yes.

(iii) The issue of whether the Defendant is the relevant statutory navigation authority for that element of the Grand Union Canal which now or formerly comprised tidal waters of the River Brent is answered: Yes.

(iv) The issue of whether a public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation is answered : No."

18. The deputy judge summarised his conclusions as follows

"33. In summary, while it is clear BWB is the relevant statutory navigation authority for that element of the GUC which now or formerly comprised tidal reaches or waters of the River Brent (issue (iii)), strictly speaking issue (i) does not need to be determined because a public right of navigation does not include an ancillary right to moor other than temporarily in the course of navigation (issue (iv)). All that needs to be said about issue (i) therefore is that the private right of navigation between Bax's Mill and the River Thames as described in the [1793 Act] was repealed by the [Transport Act 1968] whereas the public right if still in existence remains in force subject to and with the benefit of such of the BWB regulations for the time being in force which do not infringe it."

19. The deputy judge rightly observed that the validity of the statutory notices rests primarily on the outcome of issue (i). That is the only preliminary issue for which Mr Moore sought permission to appeal. As to the rulings on the remaining issues Mr Moore was content that they should be left in tact, though he added that that did not mean that he agreed with the way the deputy judge resolved them . The deputy judge noted that issue (ii) was agreed. In any event it was, in his view, perfectly plain that the GUC extended all the way to where the River Brent entered the River Thames. Issue (iii) was resolved by the fact that the regulation of the GUC, generically referred to as "The Navigation", had devolved to BWB, which had in fact regulated it. Although issue (iv) was not agreed, it ceased to be a major issue, as it was clear that the vessels in question were not in the process of navigating the GUC, whether in the tidal reaches or at all. The public right of navigation of a vessel clearly did not include an ancillary right to moor other than temporarily in the course of navigation. It was not suggested by Mr Moore that that his houseboats were temporarily stopped in the course of a voyage on the GUC.
20. The deputy judge had explained that the riparian rights (if any) of the Company could not assist Mr Moore. The riparian owner had a right of access to the river from his land like going in and out of his house, but not to disturb the soil covered by the waters such as by permanently fixing anchors. Mr Moore's main complaint is that the deputy judge did not address his submissions on the conservation of pre-existing rights and the conferring of new rights under s 43 of the 1793 Act, in relation in particular to non-navigational riparian rights to moor along the banks of the GUC.

The appeal

21. The appeal is thus against from the Deputy Judge's ruling on preliminary issue (i) and against the order for costs. Mr Moore says that no order for costs should have been made.
22. On issue (i) Mr Moore stated in his Notice of Appeal that the proper order that should have been is as follows

"(i) The issue of whether the rights concerning the waterway between Bax's Mill and the River Thames, as described in [the 1793 Act] remain in force and unaffected by the provisions of [the 1968 Act] is answered: Yes."

23. On that issue Mr Moore emphasises that he not only relied on a right to moor ancillary to the public right of navigation (which he still claims as a right to keep and use vessels on the canal), but he also advanced a claim that he has a right to moor ancillary to private, non-navigational riparian rights. He relies on both s 43 of the 1793 Act and on his possession or occupation of Ridgeways Wharf. He has rights of use and enjoyment of the GUC free of liability to pay charges to BWB, not just a public right of navigation. He says that the judge treated the non-navigational riparian rights raised by him "dismissively." His submission that those riparian rights include the right to moor the houseboats to the banks of the GUC was misunderstood by the deputy judge. What mattered was whether boats were moored to land without objection from the riparian owner. Not all the vessels were in fact moored to the unregistered land claimed by the Brentford Yacht and Boat Company in the earlier litigation. Some were moored to registered land.
24. BWB's overall stance is that it seeks to uphold the ruling that a right to moor cannot be claimed in reliance on the public right of navigation and it disputes Mr Moor's new riparian claim, contending that the area in question is not a wharf and that there is no right to moor ancillary to riparian rights. BWB asserts its statutory authority over mooring in the area of the GUC in question by virtue of the regulatory provisions of the BWB legislation. It wishes to argue in full its powers under the legislation. On the new riparian point BWB has expressly 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. It would accept that the legislation does not affect the preserved pre-1793 public right of navigation of riparian owners over the River Brent from Bax's Mill to the Thames, but it contends that such riparian rights (if any) do not include the right to moor and that they are subject to the BWB regulatory and management powers over the River Brent element of the canal as an inland waterway. That matter should be resolved at trial, not as a preliminary issue on this appeal.
25. Those are the positions adopted by the parties on the main issues and, for the reasons already explained, they have led to the court to the conclusion that it should grant permission to appeal and set aside the ruling on issue (i), so that the action can now proceed to trial of that issue together with all other issues not resolved by the deputy judge's rulings.

Costs

26. As for the appeal and the application for permission with which it was combined I would make no order as to costs. I agree with Mr Moore that he had to come to this court to have the ruling on issue (i) set aside and that he has succeeded in that. The outcome is, however, more of a draw than a victory, as Mr Moore has not persuaded the court to make the ruling sought in his notice of appeal. As explained earlier the court agreed with BWB that it was unnecessary to decide the substantive point on this appeal and that it would be better to decide it after full legal argument in the context of facts found at the trial.
27. As for the order to pay 4/5^th s of BWB's costs of the preliminary issues, Mr Moore contended that there should be no order for costs. The deputy judge was wrong, he said, to regard issues (ii) and (iv) being decided in BWB's favour. He had not contested issue (iv), never having made a claim to anchor the vessels to the bed of the GUC. The dispute is about mooring to the GUC banks. Ultimately issues (ii) and (iv) were agreed. Only issues (i) and (iii) were live at the hearing. As for issue (i) he agreed that it was of the prime importance and had taken up most of the time, but it was wrong to regard the unsatisfactory form of the ruling of the deputy judge as other than neutral between the parties. In a sense both sides had lost, as the judge had not made clear in his rulings which of Mr Moore's propositions on the preservation and grant of private riparian rights and on the effect of the later waterways legislation he had accepted.
28. I would make an adjustment to costs order below to reflect the fact that the court has allowed the appeal to the extent of setting aside the ruling on preliminary issue (i). It was the most important of the preliminary issues and it took up most of the time. Mr Moore lost before the deputy judge on issue (iii), which had important repercussions for BWB. Issue (ii) was not contested and I do not think that it is possible for Mr Moore to claim victory on issue (iv). I do not think that it would be appropriate to make an issues-based costs order. Looking at the matter globally I think that Mr Moore ought to pay 40% of the costs of the preliminary issues below.

Convention point

29. At the end of the hearing in response to a question from Arden LJ Mr Stoner properly accepted that, as the court was a public authority, BWB was a public body and Mr Moore was unrepresented, he should draw the attention of the judge to any Convention right that was relevant to the issues at the trial.

Lady Justice Arden:

30. I agree.

Lord Justice Elias:

31. I also agree.