Akerman v London Borough of Richmond

A local authority may validly restrict mooring on its land to prevent obstruction of public access to a river and its banks. The practical effect on boat dwellers does not establish an improper purpose where the dominant purpose falls within the statutory power to suppress nuisances.

A houseboat may constitute a home for article 8 purposes even if it occupies land unlawfully. A general challenge to a legislative rule nevertheless requires proof that the rule is incapable of proportionate operation in all or nearly all cases. Where an occupier has no domestic-law right to remain, displacement will be disproportionate only exceptionally. The defence must also be sufficiently particularised.

The appellant was convicted by a District Judge of four offences arising from the mooring of his houseboat for longer than one hour on land owned by the London Borough of Richmond. He challenged the validity of the council’s mooring byelaws by an appeal by way of case stated under section 111 of the Magistrates’ Courts Act 1980.

The byelaws had been made under section 235 of the Local Government Act 1972 to prevent permanent or semi-permanent mooring from obstructing access to the river and its banks. The appellant alleged improper purpose, irrationality, failure to consider housing consequences and less restrictive alternatives, and disproportionate interference with his right to respect for his home under article 8 of the Convention.

The central questions were whether the byelaws were valid, whether article 8 was engaged and, if so, whether the restrictions were proportionate.

1. Appeal dismissed. The District Judge had correctly found the byelaws valid. Their dominant or primary purpose was to prevent permanent mooring from blocking or interfering with the towpath and impeding access to the river and its banks. That purpose fell within the power under section 235 of the Local Government Act 1972 to make byelaws for good rule and government and for the prevention and suppression of nuisances. The fact that the restrictions made living on a boat difficult within the designated areas did not establish an improper purpose.

2. The byelaws were rational. A public right of navigation includes temporary mooring in the ordinary course of navigation, but it does not confer a positive right to moor permanently on another person’s land or to obstruct the river. The council could therefore regulate occupation of riverbank land held for the community so that other members of the public could use it. The offence was overstaying the prescribed mooring period, not causing anti-social behaviour. Proof that an individual defendant had behaved anti-socially was consequently unnecessary.

3. At the material time, the later statutory requirement to consider places where houseboats could be moored was not in force. Apart from article 8, housing need was therefore not a relevant consideration which the council was required to address when making these byelaws.

4. The District Judge’s categorical conclusion that article 8 was not engaged was doubtful. The concept of a home concerns occupation in fact and is not confined to lawfully established premises. A person’s trespass or the theoretical mobility of a houseboat does not therefore preclude engagement of article 8, particularly where the boat has been occupied for a substantial period and cannot readily be moved.

5. A challenge to a legislative or quasi-legislative rule on article 8 grounds faces a high threshold. The rule cannot be struck down unless it is incapable of proportionate operation and is inherently unjustified in all or nearly all cases. Any disproportionate operation in an individual case could also be addressed through section 3 of the Human Rights Act 1998.

6. Assuming article 8 was engaged, the interference was proportionate. A person without a domestic-law right to remain on property can displace the owner’s rights by reliance on article 8 only in a very exceptional case. Other permanent moorings were available, there was no evidence that the appellant was precluded from living on a boat within the borough, and his article 8 case was insufficiently particularised. Nicol J agreed.

1. High Court (Administrative Court): The appeal by way of case stated was dismissed. The court upheld the validity of the byelaws and the convictions, while inclining to the view that the District Judge had erred in treating article 8 as necessarily disengaged.
2. District Judge (Magistrates’ Court): The appellant was convicted of four breaches of the mooring byelaws. The judge found the byelaws valid, rational and proportionate.