Jaqueline Casey & Ors v Environment Agency

In accelerated possession proceedings, a riverbed owner may recover possession from vessels trespassing in the water above it. The order may extend beyond each vessel’s immediate footprint where necessary to prevent defendants defeating it by moving their vessels a short distance, but must exclude unoccupied areas and areas occupied by consent. Public navigation and riparian rights do not confer a right to moor a residential vessel permanently against the riverbed owner. Article 8 proportionality may be determined summarily where the evidence discloses no substantial issue requiring a trial. A public authority remains subject to the duty of candour, but any error concerning that duty is immaterial where disclosure was sufficient.

The Environment Agency, the registered owner of part of the Thames riverbed, obtained possession orders against defendants who owned or occupied residential houseboats moored over that land. The County Court held that the Agency could claim possession despite uncertainty about ownership of adjoining riverbank land, and that neither riparian rights, navigation licences nor the public right of navigation conferred permanent mooring rights. It rejected public-law, Article 8 and procedural objections and granted a declaration.

The defendants appealed on the availability and scope of possession relief, the effect of navigation and riparian rights, authorisation, disclosure, improper purpose, Article 8 proportionality and the declaration. The central issue was whether any ground disclosed a realistic prospect of success requiring a trial.

1. Appeals dismissed. The County Court was entitled to decide the claims summarily under CPR Part 55. The essential question was whether the issues could be fairly resolved on the material before the court, or whether further disclosure, oral evidence and cross-examination were required.
2. The owner of a riverbed may bring possession proceedings against a vessel trespassing in the water above it, without owning the riverbank. A licence or registration, the public right of navigation under section 79 of the Thames Conservancy Act 1932, and riparian ownership do not confer a right to moor a residential vessel permanently against the riverbed owner. The decision in Moore v British Waterways Board supported that conclusion.
3. Applying Secretary of State for the Environment, Food and Rural Affairs v Meier, the possession order could cover the relevant occupied blocks, with a limited practical extension preventing defendants defeating it by moving their boats a short distance. It properly excluded materially unoccupied areas and areas occupied by consent. The order did not remove the defendants’ continuing right of navigation.
4. The declaration was unnecessary and granting it without formal amendment was not good practice. Nevertheless, it was innocuous, did not determine when a claim would succeed, did not bind non-parties, and fell within the judge’s discretion.
5. The Agency had power under section 37 of the Environment Act 1995 to enforce its property rights by litigation and was subject to the duty of candour in accelerated possession proceedings. The County Court’s contrary reasoning was wrong, but the evidence disclosed was sufficient and no realistic prospect of success was shown on authorisation, improper purpose or disclosure.
6. Article 8 was engaged, but proportionality could properly be resolved summarily. Applying Bank Mellat v HM Treasury (No. 2) and Canal & River Trust v Jones, substantial weight was due to the Agency’s ownership, management aims, protection of the character of the particular river stretch and public navigation. The defendants supplied no sufficiently evidenced circumstances compelling continued occupation as trespassers.

• High Court (King’s Bench Division): appeals from the County Court at Staines dismissed; the possession orders and declaration upheld.
• County Court at Staines: HHJ Simpkiss allowed the Environment Agency’s possession claim following a hearing under CPR Part 55.8.