Brown, R (on the application of) v Canal River Trust

The claimant sought renewed permission to apply for judicial review of the Defendant's revised 2011 Guidance interpreting s.17(3)(c)(ii) of the British Waterways Act 1995, arguing that the Guidance misstates the law, that powers under s.43(3) of the Transport Act 1962 were exceeded, and that publication engaged Article 8 ECHR and the Equality Act 2010. The court held that the claimant's challenge was out of time and, on the merits, lacked arguable grounds.

The judge applied established authorities on the meaning of "navigation" (including Crown Estate Commissioners v. Fairlie Yacht Slip Ltd) and concluded that the Guidance correctly interprets "bona fide for navigation" and the concept of "place" in s.17(3)(c)(ii). Reliance on Parliamentary materials was rejected under Pepper v. Hart because the statutory language was not ambiguous and the Pepper v. Hart conditions were unmet. Human rights and equality arguments were speculative or inapplicable, and s.43(3) did not raise an additional point of substance. Permission to apply for judicial review was refused and costs of ,000 were ordered against the claimant.

Background and parties:

• The claimant is a liveaboard narrowboat owner who challenged Guidance issued by the British Waterways Board (now Canal & River Trust) interpreting s.17(3)(c)(ii) of the British Waterways Act 1995. The Defendant adopted the Guidance into its licence terms and conditions. The 2011 Guidance revised earlier guidance in light of the county court decision in British Waterways Board v. Davies.

Nature of the application:

• The claimant applied (renewed application) for permission to apply for judicial review of the 2011 Guidance. He claimed the Guidance misinterpreted s.17(3)(c)(ii), exceeded powers under s.43(3) of the Transport Act 1962, risked future breaches of Article 8 ECHR if enforced, and breached the Equality Act 2010 (failure to carry out an equality impact assessment and that living on a boat is a protected philosophical belief).

Issues framed by the court:

1. Whether the claimant's application was out of time.
2. Whether the 2011 Guidance misstates the correct legal interpretation of s.17(3)(c)(ii) (the meaning of "bona fide for navigation" and "place").
3. Whether s.43(3) permitted the Defendant to impose terms and conditions going beyond s.17(3).
4. Whether the Guidance engaged Article 8 ECHR or the Equality Act 2010.

Court reasoning and conclusion:

• Delay: The claimant first had grounds to challenge the decision on 14 September 2011 and nevertheless issued proceedings on 11 January 2012. The delay was significant and, of itself, a proper basis to refuse permission.
• Statutory interpretation: The court accepted established authorities (notably Crown Estate Commissioners v. Fairlie Yacht Slip Ltd) that "navigation" involves passage or transit; short, repetitive movements within a neighbourhood do not constitute bona fide navigation. "Place" denotes a neighbourhood or locality rather than a particular mooring site. The 2011 Guidance therefore correctly expressed the statutory meaning of s.17(3)(c)(ii).
• Pepper v. Hart: Reliance on Parliamentary Select Committee minutes to support a contrary construction was rejected because the statutory language was not ambiguous and the conditions for using Hansard were not met.
• S.43(3): The point was academic because the Guidance correctly interpreted s.17(3)(c)(ii), and in any event Burnett v. British Waterways Board did not assist the claimant's position.
• Human rights and equality: Any suggestion that the Guidance by itself infringed Article 8 was speculative; enforcement decisions would have to be assessed on actual facts. The public sector equality duty in s.149 Equality Act 2010 did not apply to the Defendant and the claimant's assertion that living on a boat is a protected philosophical belief did not meet the legal test.
• Permission was refused. The Defendant was awarded costs of ,000.

The renewed application for permission to apply for judicial review is refused. The claimant's challenge was out of time and, on the merits, the 2011 Guidance correctly interpreted s.17(3)(c)(ii) of the British Waterways Act 1995. Reliance on Parliamentary materials was impermissible under Pepper v. Hart; arguments based on s.43(3), Article 8 ECHR and the Equality Act 2010 were unarguable or speculative. Costs of ,000 were ordered against the claimant.