QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF DART HARBOUR AND NAVIGATION AUTHORITY
THE SECRETARY OF STATE FOR TRANSPORT LOCAL GOVERNMENT AND THE REGIONS
THE DUCHY OF CORNWALL
Mr Gordon Nardell (instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) for the Defendant
Hearing dates: 10th – 11th June 2003
Crown Copyright ©
Mr Justice Lightman:
"33.-(1) The Authority may place, lay down, maintain, use and have moorings, buoys and similar apparatus in the harbour on land owned or leased by the Authority, or in which they hold an appropriate interest, and on any other land with the consent in writing of the owner and lessee thereof.
(2) No person other than the Authority shall place, lay down, maintain or use, nor alter, renew or extend moorings, buoys and similar apparatus within the harbour unless he is licensed to do so by a licence granted under this section, nor except in accordance with the terms and conditions upon which such licence is granted.
(3) The Authority may from time to time, on such terms and conditions and for such period as they shall think fit, grant a licence to any person to place, lay down, maintain or use, and to alter, renew or extend, a mooring, buoy or similar apparatus within the harbour;
(a) nothing in any such licence shall entitle a person to place, lay down, maintain, use, alter, renew or extend any mooring, buoy or similar apparatus on land not owned or leased by him or by the Authority, or in which he has no appropriate interest;
(b) the Authority shall not unreasonably refuse to grant a licence-
(i) to an owner or lessee of any land not leased by the Authority with respect to a mooring on that land;
(ii) with respect to a mooring or to a mooring or berthing area existing on 4th December, 1974;
and any question whether the grant of a licence has been unreasonably refused shall be determined by the Secretary of State;
(c) in any case to which both heads (i) and (ii) of paragraph (b) of this proviso apply the Authority shall not refuse to grant a licence, and if on the grant of such licence the Authority impose terms or conditions which in the opinion of the applicant for the licence are unreasonable, the question of the reasonableness or otherwise of such terms or conditions shall be referred to and determined by the Secretary of State.
(5) The Authority may charge a reasonable fee for the grant of a licence under this section, but such fee shall not exceed an amount sufficient to recover the reasonable costs arising from the application for and the issue of the licence, and any necessary supervision of the mooring in respect of which the licence is issued."
5.1 Peter Wyatt. The Harbour Master had written to him asking him to move his boat as a licence is required to be allowed to moor on Authority fundus. Mr Wyatt states that he has kept a boat on the wall for 11 years and that he owns the wall. The ownership of the wall is not in question. Mr Wyatt's boat 'Diana Joan' is moored over fundus leased by the Authority and it grounds on this fundus at low water. The boat is therefor (sic) on or over land leased by the Authority and the Authority is entitled to either ask for the boat to be removed from it's (sic) property or to levy a charge. Prescriptive rights do not apply in this case.
5.1.2 It was proposed by Mr Watson and seconded by Mr Hawkins and carried unanimously that, 'following the Board meeting, the Harbour Master should write to him asking him to remove the boat as under the Act the boat is a navigational hazard and is also on DHNA fundus. If he complies past fundus rental payments will be waived.'"
"The Dart Harbour & Navigation Authority is entitled to regulate the position in which 'Diana Joan' is moored as landlord of the fundus of the River Dart.
At the meeting of the Authority on 5th June the Authority decided that 'Diana Joan' should be moved as it is a navigational hazard and is also moored on fundus leased by the Dart Harbour & Navigation Authority. The same resolution went on to agree to waive the past fundus rental payments to which the Authority is entitled provided that your client complied with my letter of 7th June 2000.
Your client's request for a mooring licence was not considered at the meeting of 7th June 2000.
The Dart Harbour & Navigation Authority have at all times adhered to the Dart Harbour & Navigation Authority 1998 Bylaws.
In light of the fact that your client has received an instruction from me, as Harbour Master, and presently has his boat on fundus leased by the Authority I would advise you to pass onto your client that his boat should be removed immediately. The wall the vessel is moored to has nothing to do with this matter, and furthermore no prescriptive rights apply.
I hope that this fully explains our position and that I can now rely on your client's co-operation."
"…3. Article 33 of the Act (reference H) defines the requirement for a 'licence to moor'. Para 3(b) states –
'the Authority shall not unreasonably refuse to grant a licence –
(i) to an owner or lessee of any land not leased by the authority with respect to a mooring on that land; or
(ii) with respect to a mooring or to a mooring or berthing area existing on 4th December 1974;
and any question whether the grant of a licence has been unreasonably refused shall be determined by the Secretary of State;'
The term 'mooring' is not defined in law. The most authoritative definition is in 'The Oxford Companion to Ships and the Sea' and makes it clear that the term refers to the buoys, chains, anchors and gear which comprise the mooring and not the space which the moored vessel occupies. Diana Joan is not moored to the wall at St Peter's Quay but berthed alongside. No where [sic] in the Act or the Bye Laws is there any requirement for a 'licence' to berth alongside a private jetty. Quite obviously, the Act was framed at a time when the traditional rights of landowners to keep boats on or secured to, their property was recognised! If the term 'mooring' is used to include a berth alongside then the gear which comprises the mooring – the bollards, bitts and rings, are in the case of St Peter's Quay, all on private property. The Quay has been a 'berthing area' since 1863 (the date on the former warehouse walls) at least."
He then invited the Authority to reconsider its decision of the 5th June 2000, accepted his probable liability to payment of rent for the fundus and indicated his preparedness to pay this rent.
"…2. MR WYATT
2.1 The Chairman read out a letter she had received from Mr Wyatt.
2.1.1 This was discussed but the Board were still of the same opinion that as landlords we have absolute rights and Mr Wyatt does not have his facts quite right.
2.1.2 It was then proposed by the Chairman seconded by Mr E Strouts and resolved that 'No licence would be granted to Mr Wyatt and if 'Diana Joan' reappears alongside St Peter's Quay the Authority will use it's [sic] powers as landlords and authorise the Harbour Master to remove the boat.'"
"I enclose (enclosure 2) a copy of article 33 of the Dart Harbour and Navigation Authority Act 1975. This act (sic) was framed rather badly in a more gracious age, when owners of river bank had a traditional right to berth their boats on that bankside. The term 'mooring' has, as far as I can determine, no legal definition. The 'Oxford Companion to Ships and the Sea' which is probably the most authoritative book of seamanship definitions makes it clear that a 'mooring' is the buoys, chain and anchors (i.e. the gear) that make up the mooring and not the space occupied by the moored vessel. Diana Joan is not 'moored' but berthed alongside. No where [sic] in the act is there a requirement for a mooring licence for vessels berthed on a private quay, although article 33(3)(b)(ii) does mention the term 'berthing area'. If it is accepted that an alongside berth is indeed a 'mooring' then in my case, the 'gear' – the bitts, rings and warps are on private land and meet the conditions of article 33(3)(b)(i).
I am prepared to pay a rental for the fundus at the normal rate and I am also prepared to pay for a licence under the terms of article 33(5) of the Act.
I now submit that I have been unreasonably refused a 'licence to moor' if I indeed need one and would ask you, the Secretary of State, to arbitrate in accordance with the conditions laid down in article 33 of the Act."
"Although it is agreed that section 33 does not apply to the placing of the moorings being used by the appellant, because they are outside the area of the harbour, the Diana Joan when using the moorings, is within the harbour. There is therefore a question as to whether section 33(3) applies in respect of the grant by the Authority of a licence to the appellant which enables him, while within the harbour, to make use of a mooring which is itself outside the harbour.
It is to be noted that section 33(1) refers to the placing, laying, maintaining, using, etc of moorings. It is also noted that section 33(2) and (3) of the 1975 Act and the proviso (a) to section 33(3) all refer to the placing, laying down, maintaining or use of moorings. Thus placing and using are given in the alternative in section 33(2) and (3) and the proviso to (3). This suggests that a licence may be given for either the placing of a mooring within the harbour or for its use within the harbour. Further, proviso (b) to section 33(3) refers to a mooring or a mooring or berthing area. This suggests that section 33(3) applied to a mooring in its sense of apparatus and a mooring in its sense of an area in which a boat may be moored. As the proviso is a limitation on section 33(3), it cannot therefore have a wider application than that of section 33(3). The reference in the proviso to both a mooring and a mooring area therefore indicates that section 33(3) is intended to deal with both the apparatus and the area within which it is to be used. Thus in section 33(3), the Secretary of State considers that Proviso (b)(ii) provides that the Authority shall not unreasonably refuse to grant a licence with respect to a mooring area or berthing area within the harbour which was existing on the 4th December 1974, whether or not the mooring apparatus itself is within the harbour.
The Secretary of State has therefore concluded that the refusal of the licence is subject to the determination of the Secretary of State as to its unreasonableness, in accordance with the Dart Harbour and Navigation Authority Act 1975."
QUESTIONS OF LAW
(1) Relationship of sections 30 and 33
(2) Location of Apparatus
(3) "Unreasonably Refused"
(4) The decision of the Authority to refuse a harbour licence