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

A navigation licence may lawfully require a vessel without a home mooring to be used bona fide for navigation throughout the licence period. Navigation means genuine passage or transit, not repeated short movements within the same neighbourhood. The 14-day limit applies to a place, understood contextually as a locality or neighbourhood, rather than merely to one mooring point. Exceptions require circumstances preventing further movement beyond the boater’s reasonable control.

Parliamentary material may be consulted under Pepper v Hart only where all three stringent conditions are met. A speculative possibility of future enforcement does not establish an arguable Convention-rights violation. Living on a boat, without more, is not a protected philosophical belief under the Equality Act 2010.

The claimant sought renewed permission to bring judicial review proceedings against guidance published by the defendant concerning vessels without a home mooring. He argued that the guidance misstated section 17(3)(c)(ii) of the British Waterways Act 1995, exceeded the defendant’s powers under section 43(3) of the Transport Act 1962, potentially infringed article 8 of the Convention, and breached the Equality Act 2010.

The claim was issued nearly four months after the claimant had received the final guidance and identified the decision under challenge. The court therefore considered both delay and the substantive merits. The central issues were whether the guidance lawfully interpreted bona fide navigation and the 14-day requirement, and whether any ground was arguable.

The renewed application for permission to apply for judicial review was refused. The claimant’s delay was independently sufficient to justify refusal, but the court considered the merits because the claimant attributed the delay to extensive preparation.

1. Statutory interpretation. Under sections 105(5) and 115(1) of the Transport Act 1968, there was no public right to use or keep a vessel on a waterway owned or managed by the defendant. Section 43(3) of the Transport Act 1962 permitted use to be subject to charges and terms and conditions.
2. Bona fide navigation. The phrase in section 17(3)(c)(ii) of the British Waterways Act 1995 required genuine passage or transit throughout the licence period. Short, regular movements on the same stretch of waterway did not satisfy it. The court adopted the analysis in Crown Estate Commissioners v Fairlie Yacht Slip Ltd, as approved and applied in Moore v British Waterways and British Waterways Board v Davies.
3. Meaning of place and exceptions. The word “place” referred to a neighbourhood or locality, assessed pragmatically according to the circumstances. It did not mean merely one mooring site, and no fixed distance could be prescribed. A longer stay was justified only where further movement was prevented by matters outside the boater’s reasonable control.
4. Parliamentary material. The claimant could not rely on Select Committee minutes. The three conditions identified in Pepper v Hart were cumulative and none was satisfied. The court applied the safeguards reaffirmed in Wilson v First County Trust (No.2) and the warning in R (L) Commissioner of Police of the Metropolis.
5. Other grounds. The section 43(3) argument was academic and, in any event, Burnett v British Waterways Board did not assist because the licence terms applied in a contractual context. Any article 8 complaint was hypothetical and fact-dependent. The defendant was not subject to the public sector equality duty, and living on a boat was not a protected philosophical belief under section 10 of the Equality Act 2010, applying Nicholson v Grainger plc.

The claimant was ordered to pay the defendant’s costs, summarily assessed at £15,000.

This was a renewed application for permission after Eder J refused permission on the papers. The Administrative Court refused permission and ordered the claimant to pay £15,000 in costs.