The Environment Agency v Barrass & Ors

The expression “locks cuts and works” in section 4 of the Thames Conservancy Act 1932 includes docks, basins and marinas. A marina connected to the Thames by an artificial cut may therefore form part of the statutory river, even where it lies on privately owned land.

The public right of navigation extends to connected waters through which Thames water flows, unless they are artificial inlets maintained for genuinely private purposes. Where the statutory definition of the Thames is incorporated into a regulatory order, vessels kept in such marinas fall within that order, whether or not they are being navigated.

The Environment Agency appealed by way of case stated from the dismissal by District Judge Lachhar, sitting in the magistrates’ court, of informations against vessel owners. The alleged offences concerned failure to register vessels kept in Thames and Kennet Marina and Penton Hook Marina under articles 4(1)(a) and 18(1)(a) of the Environment Agency (Inland Waterways) Order 2010.

The magistrates’ court held that neither marina formed part of the river Thames within section 4 of the Thames Conservancy Act 1932. The central questions were whether the marinas formed part of the statutory Thames and, consequently, whether the 2010 Order applied to vessels kept there.

The court allowed the appeal and answered both questions stated for its opinion in the affirmative.

1. Section 4 of the Thames Conservancy Act 1932 had to be construed as a whole, in its statutory context and having regard to the Act’s purpose. The word “works” was not confined to structures assisting navigation or controlling the flow of water.

2. The proviso to section 4 expressly excluded certain docks, canals, cuts and bridges from the statutory Thames. That exclusion was a strong indication that a dock could otherwise fall within “works”. Sections 60 and 65 reinforced that conclusion by treating docks and basins as examples of works requiring licensing.

3. A marina was properly understood as a dock or basin with moorings for yachts and other small craft. The two marinas therefore fell within “locks cuts and works” in section 4.

4. This construction was consistent with section 79. The marinas were places through which Thames water flowed and were connected to the main river. They were deliberately open to members of the public, including river users, and served commercial purposes. They were not artificial inlets used for genuinely private purposes within the proviso to section 79(1). The court relied generally on Rowland v The Environment Agency [2005] Ch. 1 concerning the public right of navigation.

5. Private ownership did not make the statutory application repugnant. The Act contemplated private land forming part of the Thames and balanced the statutory scheme against private landowners’ rights. The argument based on Article 1 of the First Protocol to the Convention added nothing and was not tenable.

6. The 2010 Order expressly adopted the section 4 definition. It therefore applied to vessels kept in both marinas, including vessels not actually in use. The case was remitted to the magistrates’ court under section 28 A of the Senior Courts Act 1981 for final determination.

• High Court (Administrative Court) — The appeal by way of case stated was allowed. Both questions were answered affirmatively and the case was remitted to the magistrates’ court for final determination.
• Magistrates’ court — District Judge Lachhar dismissed the informations and returned verdicts of not guilty after ruling that the marinas were outside the statutory Thames.