The Royal Borough of Kingston-Upon-Thames v Warwick Salzer & Anor

A local authority with possession or control of riverside land and moorings may obtain a final injunction to restrain persistent unlawful mooring or trespass. A claimant who proves trespass is prima facie entitled to an injunction unless strong countervailing reasons exist, and damages may be inadequate where repeated non-compliance is likely.

Long use of public moorings does not itself establish adverse possession or a proprietary right. Acquiescence defeats injunctive relief only where enforcement, after the claimant’s delay, would be dishonest or unconscionable. Article 8 may be dealt with summarily where a boat-user can take the boat elsewhere and the injunction regulates the mooring location rather than removing the home itself. Any interference must nevertheless be proportionate.

The claimant local authority sought final prohibitory and mandatory injunctions against a boat-user and his company. The defendants had operated boat-hire and fishing businesses and had persistently moored vessels on riverside moorings controlled by the authority, including land near the Gazebo Public House.

The authority relied on trespass, its statutory powers, contractual arrangements concerning Riverside Walk, and its published mooring policy. The defendants disputed the authority’s entitlement to control the moorings and relied on their long use, alleged unfair treatment and the possible application of Article 8 of the European Convention on Human Rights.

The issues were whether the claimant had sufficient possession or control to sue in trespass, whether equitable or proprietary defences defeated relief, whether Article 8 was engaged or breached, and whether a final injunction was a proper exercise of discretion.

1. Entitlement to relief. The claimant had sufficient entitlement to possession of the riverside path and moorings for an action in trespass. The underlease, the parties’ contractual assumptions, the obligations to control illegal or permanent mooring, and the presumption that the demise extended to the middle of the river supported that conclusion. The evidence also established public use of the landing stage as a right of way for more than 20 years. No declaration of title was necessary.
2. Defences. The defendants had acquired no proprietary right by adverse possession because their boats had been moved between different moorings. Any defence based on acquiescence failed. The claimant had served enforcement notices from at least 2017 and had displayed notices limiting free mooring. Enforcement was not dishonest or unconscionable.
3. Article 8. Article 8 was not engaged on the facts. The injunction did not evict the First Defendant from his boat; he could take the boat and moor it lawfully elsewhere. The Second Defendant, being a company, had no Article 8 home requiring protection. Even if Article 8 were engaged, an order requiring compliance with the published mooring policy would be proportionate, having regard to the absence of any private mooring right, persistent overstaying, the authority’s possession rights and its responsibilities to other river users.
4. Discretion. Following the guidance in South Bucks DC v Porter, the court should ordinarily enforce a just order which the defendant can reasonably comply with. Damages would not be adequate or effective to deter repetition. The claimant was therefore entitled to final injunctive relief.
5. The injunction was granted in substantially the proposed terms, subject to deletion of the provision restricting access to the steps or towpath. The defendants were required to remove their vessels within the period specified in the final order and to pay the claimant’s costs, subject to detailed assessment if not agreed.