Ipswich Borough Council v Moore & Anor

Where Parliament confers an express power on a port authority to licence moorings, the owner of the riverbed cannot exercise an overriding proprietary right to withhold consent to moorings licensed under that statutory scheme. The court must construe the statute as a whole, including its saving provisions, to determine whether pre-existing charter or proprietary rights remain unaffected, are modified, or are made subject to the statutory powers. A provision preserving existing rights does not prevent the statute from prejudicially affecting those rights where the legislation expressly excludes the relevant statutory powers from the saving.

The Council, claiming ownership of the foreshore and bed of the river Orwell, sought possession of areas occupied by mooring tackle and payment of a separate fee for the moorings. The respondents held mooring licences granted by the Ipswich Port Authority under section 12 of the Ipswich Dock Act 1950. Lloyd J declared that the Council could not require separate consent for moorings licensed under the Ipswich Docks legislation. The Council appealed on the substantive issue and on costs.

The central issue was whether a statutory licence granted by the Port Authority authorised moorings against the wishes of the Council as owner of the riverbed and foreshore.

1. Appeals dismissed. The statutory scheme established by sections 12, 13 and 14 of the Ipswich Dock Act 1950 was inconsistent with an overriding right in the Council to prevent or charge for moorings licensed by the Port Authority.
2. Section 12 conferred distinct powers to regulate moorings, grant licences to place, maintain and use them, contribute to their cost, and grant preferential rights of use. Sections 13 and 14 formed part of the same scheme by regulating houseboats, providing an appeal to the county court, and enabling the court to substitute terms or require the grant of the necessary licence or consent.
3. Although sections 12(3) and 13(7) stated that the legislation did not confer title or an interest in the riverbed or foreshore, those provisions did not prevent the legislation from conferring rights over or in respect of the riverbed. It would defeat the statutory scheme if the Council could override a licence granted by the Port Authority.
4. Section 28 was decisive. Its general saving of the Council’s charter rights expressly excluded the powers under sections 12, 13 and 16. Parliament therefore contemplated that those powers might prejudice the Council’s rights, including its proprietary rights as owner of the riverbed and foreshore.
5. The court applied the principle stated in The Mayor and Citizens of the City of Manchester v Lyons [1882] 22 ChD 287: the effect of later legislation on a chartered franchise depends on the intention disclosed by the statute itself. City of Toronto v Virgo [1896] AC 88 did not assist the Council because the present legislation did more than regulate; it authorised moorings subject to statutory control.
6. The judge had not erred in principle or exceeded the proper ambit of his discretion in ordering the Council to pay one half of the respondents’ costs. The respondents were awarded the costs of the appeals, including Mr Moore’s respondent’s notice and the Crown Estate Commissioners’ intervention, but excluding the Royal Yachting Association’s application to intervene. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeals from orders made by Lloyd J in the Chancery Division on 22 June 2000 were dismissed. The order on costs was upheld.
• Chancery Division: Lloyd J declared that the Council was not entitled to require separate consent for moorings licensed under the Ipswich Docks Acts and Orders 1852 to 1986 and made the challenged costs order.