Moore v British Waterways Board

A public right of navigation over tidal canalised river water does not include a right to permanent mooring. Ordinary riparian rights likewise comprise access and temporary mooring for purposes such as boarding, loading and unloading, but not permanent mooring. A vessel left or moored in an inland waterway without any lawful right to moor may constitute “relevant craft” under section 8 of the British Waterways Act 1983. The phrase “without lawful authority” is concerned with absence of lawful authority, rather than only breach of a criminal mooring prohibition. Pleasure boats used bona fide for navigation exclusively on undesignated tidal stretches did not require the relevant consent under the statutory licensing regime. However, a public authority exercising a draconian statutory power must comply with a settled procedure of prior warning where that procedure has generated a legitimate procedural expectation.

The claimant challenged notices served by the defendant under section 8 of the British Waterways Act 1983 requiring the removal of vessels moored near Ridgeways Wharf on the tidal River Brent section of the Grand Union Canal. He relied on the public right of navigation, alleged riparian rights, the Grand Junction Canal Act 1793, and restrictions on the defendant’s statutory licensing and removal powers.

Four preliminary issues had previously been determined by a deputy High Court judge. The Court of Appeal set aside the ruling on the principal statutory issue and directed a trial: [2010] EWCA Civ 42. The trial concerned the existence of a right to moor, the scope of the defendant’s regulatory powers, the validity of the notices, legitimate expectation and human rights.

1. Navigation and mooring. The public right of navigation recognised and confirmed by section 43 of the Grand Junction Canal Act 1793 remained in force over the relevant tidal stretch. It was a right of passage and did not include permanent mooring. Temporary mooring ancillary to navigation remained permissible.
2. Riparian rights. Section 43 confirmed pre-existing rights but conferred no new permanent mooring right. Ordinary riparian rights included access and the erection of wharfs or jetties, but did not entitle an occupier to keep a vessel permanently moored. No special pre-1793 right of permanent mooring had been proved. Sections 82, 84, 85 and 99 of the 1793 Act did not assist the claimant.
3. Licensing. The statutory regime distinguished canals, designated river waterways and tidal stretches. A pleasure boat bona fide used for navigation exclusively on the relevant tidal stretch did not require a pleasure boat certificate, licence or other “relevant consent”. A vessel not bona fide used for navigation would instead be subject to the houseboat certification requirement in section 13 of the British Waterways Act 1971.
4. Section 8. “Without lawful authority” in section 8 of the British Waterways Act 1983 meant without a lawful right or authority to moor, rather than merely in breach of the criminal prohibition in section 18 of the British Waterways Act 1995. The claimant had no right to permanent mooring. The vessels were therefore subject to the defendant’s navigational authority and section 8. Section 8 was available in addition to the section 18 sanctions, but section 19 of the 1995 Act provided the exclusive remedy for works-related removal.
5. Legitimate expectation. The defendant’s settled practice of warning live-aboard boaters before using section 8 generated a legitimate procedural expectation. The defendant’s failure to warn before serving the notices was inappropriate and breached that expectation. The notices were not invalidated for collateral purpose because improper collaboration with a developer had not been proved.
6. Human rights and further relief. The claimant’s occupation of “Gilgie” as his home engaged article 8 of the Convention. The court’s provisional view was that removal without warning, absent any identified obstruction or danger to navigation, was disproportionate. Final determination of infringement and relief was reserved for further submissions. The defendant had also breached a court undertaking, but the breach was inadvertent and required no further action.

• Court of Appeal: The claimant appealed the determination of preliminary issues. The court set aside the ruling on the principal statutory issue and directed that it proceed to trial with the remaining issues: [2010] EWCA Civ 42.
• High Court (Chancery Division): The court determined the statutory and legitimate-expectation issues. Further submissions were directed on Article 8, relief and costs.