Broads Authority v Fry

A statutory power to levy tolls on vessels moored in adjacent waters may be conferred in clear terms, even where the vessel does not navigate the main navigation area and its owner obtains no personal benefit from the authority’s services. Such a charge is not thereby an unauthorised tax or rate. The charge remains subject to the statutory requirement that it be reasonable. A bylaw is not invalid for uncertainty merely because the applicable charge is fixed elsewhere, provided there is an ascertainable lawful touchstone of liability.

The Broads Authority prosecuted the owner of an unpowered houseboat for mooring in adjacent waters without paying the toll required by bylaw 19(1) of the Broads Authority Vessel Registration Bylaws 1997. The magistrates convicted him, but the Crown Court at Ipswich allowed his appeal and set aside the conviction. The Authority appealed by way of case stated.

The central issues were whether the amended statutory regime authorised a toll where the vessel did not use the navigation area, whether the bylaw was invalid for uncertainty, and whether the charge was constrained by the statutory requirement of reasonableness.

1. Appeal allowed and decision quashed. The matter was remitted to a differently constituted Crown Court for reconsideration, including the implications of section 27 of the Harbours Act 1964. No order as to costs was made.
2. Section 13(1) of the Norfolk and Suffolk Broads Act 1988, as amended by Schedule 7 to the Broads Authority Act 2009, expressly authorised the Authority to determine and recover tolls for vessels moored on adjacent waters. Liability did not depend on proof that the owner personally benefited from the Authority’s services.
3. Forth Conservancy Board v IRC [1931] AC 540 did not establish a principle limiting Parliament’s power to authorise charges on vessels which did not use the navigation area. The Crown Court had therefore erred in relying on that decision.
4. The challenge based on uncertainty failed. The tolls were published by the Authority, and the bylaw had an ascertainable meaning. The applicable test was whether the provision had no ascertainable meaning or was incapable of certain application in any case, as explained in Percy v Hall [1997] QB 924.
5. Mitting J added that charges for vessels moored in adjacent waters fell within section 27 of the Harbours Act 1964 and had to be reasonable. The Crown Court had not determined that issue, so it required reconsideration on remittal.

• High Court (Administrative Court): Allowed the Authority’s appeal by way of case stated, quashed the Crown Court’s decision and remitted the matter for reconsideration by a differently constituted court.
• Crown Court at Ipswich: Allowed the defendant’s appeal against conviction and set aside the magistrates’ conviction.
• Lowestoft Magistrates’ Court: Convicted the defendant and imposed a fine, compensation, costs and surcharge.