England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		12th March 2009

1. This is an action about mooring rights in the tidal reaches of the River Brent. These are not mooring rights in the riverbed but alongside the bank of the river at a point where the true legal ownership of the bank is in question, it having been so held in an action between Geronimo Limited ("Geronimo") and the British Waterways Board ("BWB") as claimants and Brentford Yacht and Boat Company Limited ("BYBC") as defendant, Case No. HC07C02399 in this Division. In that action ("the Geronimo action"), judgment in which was given on 12^th December 2008, the court, inter alia, declared,

"The defendant has not acquired title to the Blue Land, or any part of it, by adverse possession".

In the High Court of Justice Chancery Division

2. The claimant in this action, Mr. Nigel Moore, was and is an officeholder of BYBC and had conducted the defence in the Geronimo action on BYBC's behalf. In the particulars of claim in this action he states,

"I live on the narrowboat "Platypus", Ridgeways Wharf, Brent Way, Brentford, Middlesex, TW8 8ES. I am the Company Secretary of Brentford Marine Services and of Brentford Yacht and Boat Company Limited, and as such have several boats in my care."

3. He then mentions five other boats four of which he states are sole residential homes of the occupants, and that these,

"are all presently moored alongside land and pontoon that, (as boatyard owners), Brentford Yacht and Boat Company Limited and predecessors have used for the past 60 years."

4. Mr. Moore's complaint is that BWB had on 21^st July 2007 served what is known as a section 8 notice on all of the boats, including one presently named, "Ere Comes Trouble", demanding their removal "from the Board's property" within 28 days or face confiscation. I shall say more about these notices later in this judgment.
5. Although Mr. Moore does not elucidate the basis on which he brings this action it would appear that he does so as the occupant of Platypus rather than as someone with a financial interest in BYBC, an interest which he informed the court he does not have. At all events, BWB has not challenged Mr. Moore's locus standi, so nothing more need be said on this subject.
6. Mr. Moore claims a variety of declaratory relief which in summary reduce to a declaration that the section 8 notices were unlawful and cannot be enforced.
7. The judgment in the Geronimo action describes the location, "the Blue Land" mentioned in the declaration, in considerable detail. I shall refer to it in this judgment simply as "the Bank". It is in the position indicated by the flag in the middle of the picture below beside which are a number of rectangular boxes indicating boats. The larger scale picture inset in the box at the top left hand corner, incorporating the legend, is clearer although the court has been informed that the boats are moored somewhat differently today. For example, there are no boats today in positions 7, 8 and 9, and Platypus and Gilgie are in positions 2 and 3, more or less, respectively. There have been other changes but these are immaterial.

8. Although BYBC clearly does not own the Bank in the sense of having a registrable title to it, it equally clearly is exercising a measure of control over it which could be said to be equivalent to ownership, but this does not mean that BYBC can exercise any private rights over or in relation to the navigation, still less that Mr. Moore can assert he has any rights at all apart from the public right of navigation in tidal waters if and in so far as that right has not been extinguished. This, however, is common ground.
9. I should add that if riparian rights are attached to the Bank, then prima facie only BYBC can assert them. However, for reasons which will appear later in this judgment, neither the true legal ownership nor the de facto possession or control of the Bank are relevant to the question whether the section 8 notices were or were not lawful
10. Mr. Moore's case against the section 8 notices is founded on section 43 of the Grand Junction Canal Act 1793 ("GJCA"). This was a private Act which operated to unite numerous individuals into a company of proprietors ("GJCC") for the purpose, according to the preamble, of "making and maintaining a Navigable Canal from the Oxford Canal Navigation, at Braunston, in the County of Northampton, to join the River Thames at or near Brentford, in the County of Middlesex, and also certain Collateral Cuts from the said intended Canal".
11. Section 43 GJCA, in so far as material, provided:

"... that 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 Brent, as heretofore anciently used and enjoyed, may or shall be prevented, impeded, or hindered, or the houses, warehouses, wharfs, lands, tenements, and grounds, on, along, or near adjoining to, the said River of Brent, shall be injured; but 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; and that 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, 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 of Brent, or upon account of any barges, or other vessels navigating the said canal, or the said River of Brent, in such part of the said river and line of the said 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 ....." [My emphasis]

12. The mill there mentioned as in the occupation of Richard Bax lay at the limits of the tidal reaches of the River Brent and has been referred to in these proceedings as Bax's Mill. The position of Bax's Mill (which, incidentally, is now a private house) is pointed out by the flag in the top left comer of the picture on page 3, just below and to the right of the 'boats' box already alluded to.
13. The court on 13^th February 2008 ordered the following issues to be determined as preliminary issues, namely whether:

(i) The rights concerning the waterway between Bax's Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793, remain in force and unaffected by the provisions of the Transport Act 1968;

(ii) The Grand Union Canal extends downstream to the mouth of the River Brent into the River Thames;

(iii) 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;

(iv) A public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation.

14. I should explain before continuing that the Grand Junction Canal was renamed the Grand Union Canal on the transfer of the undertaking of the proprietors of the GJCC to the Regent's Canal and Dock Company, and amalgamation with that company's undertaking under the Regent's Canal and Dock Company (Grand Junction Canal Purchase) Act 1928. The Transport Act 1947 vested the Grand Union Canal in the British Transport Commission. It was later vested in BWB pursuant to the provisions of the Transport Act 1962 and subordinate legislation. In the remainder of this judgment the canal is therefore referred to as the Grand Union Canal ("GUC").
15. Although for completeness I have set out above all of the issues ordered to be determined, the legality of the section 8 notices rests primarily on the outcome of issue (i). There are a number of reasons for this. In the first place, issue (ii) is agreed, and in any event it is perfectly plain, given the language of the GJCA and subsequent legislation which Mr. Moore and counsel for BWB have carefully taken me through, that the GUC extends all the way to the point at which the River Brent enters the River Thames. It is also perfectly plain from the legislation that the regulation of what the GJCA refers to generically as 'the Navigation', meaning the GUC including new and collateral cuts, has devolved from the GJCC (which had regulated it pursuant to section 57 GJCA) to BWB which, as will appear later in this judgment, has regulated it since the enactment of the Transport Act 1968 ("TA 1968") and latterly under the British Waterways Acts 1971 to 1995. This resolves issue (iii). Issue (iv) is not agreed but has ceased to be a major issue because clearly the boats are not in the process of navigating the GUC, whether in the tidal reaches or at all.
16. Two authorities suffice to make good the proposition that the boats are not in the process of navigating the GUC. The first is Denaby and Cadeby Main Colleries Limited v. Anson [1911] 1 KB 17 in which, at page 200, Fletcher Moulton L.J. explained the public right of navigation and ancillary rights, thus:

"The public have, no doubt, the free use of the waters for the purpose of navigation, and this includes the exercise of all rights ancillary thereto. But that means ancillary to that navigation, i.e., to the navigation of the ship navigated. They have, for instance, the right of waiting in a place till the wind or the weather, or probably also the season, permits them to leave it, or until they have obtained a cargo or have completed repairs. In doing all these things they no doubt exclude the rest of the public from bringing their ships to the place where they are moored, just as a man who is lawfully standing on or moving along the public highway prevents any other member of the public being at that moment at the same place on the highway as he is. But all this is in the exercise of the rights of navigation of the ship itself."

17. The second is the Scottish case of Crown Estate Commissioners v. Fairlie Yacht Slip Limited [1979] SC 156 in which Lord Cameron said at page 182,

"I would agree that "navigation" of a ship does not necessarily mean that only when she is actually in free motion or under way is she being "navigated": for various reasons she may require to anchor and to remain anchored for varying periods, and I do not see how it could be successfully argued that during the time she was anchored a ship by that token alone ceased to be in the process of navigation. It seems to me a question of fact and circumstances whether anchoring is an episode or incident in the course of navigation or whether it marks the termination of a passage or voyage and the ship cannot any longer be held to be in course of navigation or being navigated."

18. Clearly, therefore, a public right of navigation does not include an ancillary right to moor other than temporarily in the course of navigation.
19. I should nevertheless add that it has not in fact been suggested by Mr. Moore that the boats served with the section 8 notices are simply temporarily stopped in the course of a voyage, so it necessarily follows that these boats are moored alongside the Bank outwith the public right of navigation.
20. The riparian rights (if any) of BYBC could not assist Mr. Moore and indeed neither it nor he are interested simply in establishing rights in that character. Riparian rights are separate and distinct rights which even if BYBC or Mr. Moore could claim them would not avail them. Bates, Water and Drainage Law, published by Sweet & Maxwell in 2008, helpfully describes the characteristics of riparian rights in two succinct paragraphs at pages 2001 and 2004, as follows:

"2.03 The rights of a riparian owner depend on his ownership of property that abuts on a natural watercourse or lake; not on the ownership of the bed. In Chasemore v. Richards (1859) 7 H.L. 382, Lord Wensleydale said, "it is now settled that the right to the enjoyment of a natural stream of water on the surface, ex jurae naturae, belongs to the proprietor of the adjoining lands, as he is to all the other natural advantages belonging to the land of which he is the owner." These rights exist on both tidal and non-tidal waters, although they may be subject to public rights of navigation."

2.09 A riparian owner whose lands are situated on the banks of a navigable river has a right of access to the river from any point on his land in the same way that a householder has a right to enter or leave his house on to a highway. The rule on this was stated by Lord Blackburn in Marshall v. Ulleswater Steam Navigation (1871) 7 L.R. QB 166 to be that: "The owner of adjoining land, and those whom he permits to go thereon, have a right to cross to and from their vessels by either wading or walking over a plank, but they have no right to disturb the soil covered by the water, as by permanently fixing anchors."

21. Reverting to issue (i), a sensible starting point is to identify on the one hand the rights concerning the waterway between Bax's Mill and the River Thames created or conferred by the GJCA, and, on the other, the purpose and effect, so far as the GUC is concerned, of the TA 1968.
22. Both limbs involve questions of construction but it is most convenient to begin with section 43 GJCA which, whether literally construed or construed with an eye to the Act's expressed purpose, in particular to the very explicit directions it contains, appears to me to be perfectly clear so far as the tidal reaches of the River Brent were and are concerned. The section is lengthy, somewhat complex and a little repetitive but it can readily be summarised as, broadly, incorporating four components (so far as material), as follows:

(i) a direction that in making, forming, and continuing the line of the intended canal, nothing should be done to disturb or interfere with, i.e., obstruct, the free navigation of the River Brent, "as hitherto anciently used and enjoyed" (it is common ground that a public right of navigation existed in the tidal reaches);

(ii) a direction that in that process no property adjoining or neighbouring the canal should be injured;

(iii) the grant of navigation rights to the owners and occupiers of adjoining and neighbouring property;

(iv) a direction that the exercise of navigation rights in the tidal reaches up to the limits at Bax's Mill should not to be chargeable to the grantees of such navigation rights (thereby exonerating them from all or some of the charges which might otherwise be imposed by the GJCC under section 57 GJCA).

23. It is noteworthy that the grant of navigation rights (component (iii)) is expressed to replicate exactly but not to replace pre-existing rights. This, in my judgment, is the clear inference from the words the draftsman has used: that the grantees are, "to have the full, free, and uninterrupted use and enjoyment [of the River of Brent], 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", which phraseology points out that the draftsman appreciates the need to extend the navigation rights already in existence to newly canalised sections.
24. It has been argued on behalf of BWB that section 43 actually extinguished the public right of navigation, replacing it, as I understand it, with purely personal rights. But while this is arguable, it both ignores the words of grant I have pointed out and lacks the common sense of a construction which acknowledges both the physical consequences of canalisation of the tidal reaches of the River Brent (in particular straightening it by means of new cuts) and the legal consequences (in particular that new rights would be needed over and along new cuts but not necessarily over and along untransformed reaches). In any event, absent clear words, the court should be slow to reach a construction which entails the destruction of an existing right when the language it is invited to construe admits an alternative, more reasonable, construction. In my judgment, a construction which does not result in the destruction of the existing right of navigation but nevertheless results in the coming into existence of essential supplemental or parallel rights is much to be preferred.
25. Certainly, there is nothing, in my judgment, in the language of section 43 or elsewhere in the GJCA which impels the conclusion that the legislature intended the pre-existing public right of navigation over and along the tidal reaches of the River Brent to be extinguished as a result of canalisation.
26. It was submitted that had easements been intended, section 43 would have spelled this out. I reject this. In the first place, in my judgment, the section did spell it out, albeit somewhat obliquely in the manner I have mentioned in paragraph 23. Perhaps as importantly, however, the submission ignores that an easement is a property right which enures for the benefit of a dominant tenement. If the grantee is possessed of the dominant tenement, there is no need (though by some it might be considered better practice) to incorporate in the grant words which signify the benefit is not to be purely personal to the grantee and that, by contrast, it is to enure for the benefit of the grantee's land through successive ownerships. This will be the consequence without more anyway unless the words used lead inexorably to the conclusion that the benefit conferred is intended to be personal to the grantee, but, as I have pointed out, the words of section 43 are impersonal, the sole qualification to claim the benefit being ownership or occupation of qualifying property. There is nothing, in my judgment, to justify a narrower construction. It is one thing to construe a grant as purely personal when the grantee is named. It is quite another thing to conclude this is the case when the grantee is neither named nor readily identifiable within the four corners of the instrument. Right or wrong, however, BWB's point is, for reasons which I shall explain, unimportant.
27. As already mentioned, the GUC is now comprised in the undertaking of the BWB. Sections 105 to 111 TA 1968 govern the maintenance of the BWB's inland waterways. The section 8 notices were served under section 8(2) of the British Waterways Act 1983, a provision which empowers the BWB to remove any vessel moored therein without lawful authority after giving not less than 28 days notice. The boats are houseboats within the meaning of section 3 of the British Waterways Act 1971 required to be issued with a certificate under section 13 of that Act, if to be deemed, inter alia, lawfully moored. Houseboats must also be registered (section 14). There are charges for certification and registration (section 15).
28. Part III of the British Waterways Act 1995 introduced regulations, for example, expressly conditioning the mooring of houseboats on the issue of a certificate for a specified site (schedule 1). Consequently, a houseboat is illegally moored and can be removed under section 8 of the 1983 Act whether or not it causes an obstruction if there is no certificate in force.
29. Mr. Moore's contention is that section 43 GJCA exempted boats moored alongside the Bank but his contention must fail if that section was either repealed by the TA 1968 or is otherwise irrelevant to the exercise of BWB's regulatory powers.
30. The GUC is classified by the TA 1968 as a 'cruising' waterway (see section 104(1)(a) and part II of schedule 12). Section 105(5) (in so far as material) provides:

".. any local enactment passed with respect to any such inland waterway, so far as that enactment-

(a) confers any public or private right of navigation over the waterway;

(b)........

shall cease to have effect."

31. It therefore follows that the private right of free navigation created or conferred by section 43 GJCCA ceased to have effect as of the date the TA 1968 came into force but that the public right, if then in force, remained in force.
32. But it is neither here nor there whether the public right remains in force so far as Mr. Moore and BYBC are concerned because for reasons I have already given they are neither exercising the public right of navigation nor any riparian rights. The boats are alongside the Bank unlawfully and so will remain until and unless they are issued with certificates for that site.
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 GJCA was repealed by the TA 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.
34. Finally, as issue (ii) is agreed, I shall say no more about it other than that the GUC extends downstream to the mouth of the River Brent into the River Thames.
35. The court's answers as regards the several issues directed to be determined are therefore as follows (so far as material):

(i) The rights concerning the waterway between Bax's Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793, remain in force and unaffected by the provisions of the Transport Act 1968;

Answer: the private right of navigation granted by section 43 of the Act was repealed by the 1968 Act.

(ii) The Grand Union Canal extends downstream to the mouth of the River Brent into the River Thames;

Answer: Yes.

(iii) 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;

Answer: Yes.

(iv) A public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation.

Answer: No.

36. I shall hear counsel and Mr. Moore as to the terms of the order, and as to costs.