Swan Hill Developments Ltd & Ors v British Waterways Board

A private canal Act is construed against the promoters where its language is ambiguous. The word through is not confined to land severed by the canal. It can include land adjoining the canal on one side, or land partly within and partly outside the relevant boundary.

Where a statutory right is expressed to be exercisable at any time thereafter, entitlement is assessed when the right is exercised. Continuous common ownership or occupation is not required.

Developers owning land beside the Northampton arm of the Grand Union Canal sought declarations concerning rights under section 79 of the Grand Junction Canal Act 1793. They wished to construct bridges across the canal and install pipes beneath it without paying charges demanded by the British Waterways Board.

Robert Walker J decided that section 79 benefited owners or occupiers whose land adjoined the canal on one side, and that the rights did not depend on continuous common ownership or occupation. The Board appealed, seeking declarations confining the section to landowners whose land had been severed by the canal and requiring a direct chain of succession.

1. Appeal dismissed. The Court of Appeal, comprising Lord Woolf MR, Peter Gibson LJ and Swinton Thomas LJ, unanimously upheld the judge’s answers. The appeal was dismissed with costs and leave to appeal to the House of Lords was refused.
2. Section 79 had to be read in its statutory context, particularly sections 75, 76 and 78. It was introduced as a proviso and authorised additional facilities of the same general kind as works which the company was required to provide. Those earlier provisions were not confined to double riparian owners. The reference to land through which the canal was made therefore did not impose that limitation.
3. The ordinary meaning of through could include a canal running along the edge of land, or partly within and partly outside its boundary. The section also referred to works in, over or near the canal, which was consistent with facilities on one side only. The Board’s construction would produce surprising and discriminatory consequences for matters such as fishing and mining rights.
4. Because the Act was private legislation, any ambiguity had to be resolved against the promoters and in favour of affected private interests. The approach stated in Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B & Ad 792 was applied. Comparable canal Acts could be consulted only cautiously because differences might reflect particular bargains.
5. The words at any time or times hereafter meant that the statutory rights were to be judged when exercised. A person entitled under section 79 at that time was not disqualified by the absence of continuous common ownership or occupation. Midland Railway Company v Gribble was distinguishable because it concerned an abandoned easement, whereas section 79 concerned a statutory right not yet exercised.
6. The commissioners named in the Act no longer existed. The High Court could provide the necessary substitute relief by granting declarations.

1. Court of Appeal (Civil Division) — [1997] EWCA Civ 1089: appeal from the Chancery Division dismissed with costs; leave to appeal to the House of Lords refused.
2. Chancery Division — Robert Walker J: preliminary issues determined in favour of the developers on the construction and continuity questions.