Moore v British Waterways Board

A statutory power to remove a vessel moored “without lawful authority” applies only where the mooring is unlawful. Absence of the navigation authority’s permission, or of a positive common law right to moor, does not itself establish unlawfulness. The authority must identify a private, public or statutory wrong.

Riparian ownership alone confers no positive right to moor a vessel permanently. It supports reasonable access and temporary stopping associated with navigation, loading or unloading. Nevertheless, where permanent mooring infringes no navigation right, neighbouring riparian right, interest in the bank or bed, or statutory prohibition, it is lawful and cannot be restrained under a power limited to unlawful mooring.

The appellant kept residential vessels permanently moored beside land which, for the proceedings, the British Waterways Board accepted that he possessed or occupied. The relevant part of the Grand Union Canal was semi-tidal and subject to a public right of navigation. The Board claimed no ownership or possession of the canal bed and no obstruction of navigation or infringement of neighbouring rights was alleged.

Acting under section 8 of the British Waterways Act 1983, the Board required removal of the vessels as moored “without lawful authority”. Hildyard J held that riparian ownership conferred no permanent mooring right and declared the mooring unlawful: [2012] 1 WLR 3289.

The central issue was whether absence of a positive riparian right made the mooring “without lawful authority”, despite the absence of any identified common law or statutory wrong.

1. The appeal was allowed unanimously. The section 8 notices were invalid because, on the agreed and conceded facts, the Board could identify no public, private or statutory wrong arising from the mooring. The Board therefore lacked power under section 8 of the British Waterways Act 1983 to compel removal.

2. Section 8 is directed to vessels moored “without lawful authority”. That expression does not mean merely without the Board’s permission. If conduct involving a vessel is lawful at common law and is not prohibited by statute, it falls outside the removal power. The absence of a demonstrated positive right does not necessarily entail the commission of a wrong.

3. The judge nevertheless correctly held that riparian ownership does not itself confer a positive right to moor permanently. Riparian rights include reasonable access to and egress from the water and reasonable temporary stopping associated with access, loading and unloading. The public right of navigation similarly permits temporary stationary use for navigational purposes, but not permanent occupation of a particular stretch of water.

4. Lewison LJ explained that ownership or possession of the waterway bed ordinarily determines whether occupation of the water above it constitutes trespass. A person owning part of the bed may moor above it indefinitely, subject separately to nuisance and public navigation rights. Conversely, the owner of the bed might have a trespass claim against a vessel permanently moored above it.

5. Here, the Board asserted no interest in the bed. No neighbouring riparian owner, navigator or bed owner complained of trespass, nuisance, obstruction or interference with access. On those special facts, permanent mooring was not prohibited and was therefore lawful. Mummery LJ stressed that the decision rested on that narrow basis; it did not establish a general riparian right of permanent mooring.

• Court of Appeal (Civil Division): The appeal was allowed unanimously. The court held that the section 8 removal notices were invalid on the agreed facts: [2013] EWCA Civ 73.
• High Court, Chancery Division: Hildyard J declared that riparian ownership conferred no permanent mooring right, that the vessel was unlawfully moored and that the Board could exercise its section 8 powers: [2012] 1 WLR 3289.
• Earlier Court of Appeal proceedings: The claimant had successfully appealed part of an order determining preliminary issues: [2010] EWCA Civ 42.