ROYAL COURTS OF JUSTICE STRAND LONDON

BETWEEN:

LEIGH RAVENSCROFT Claimant

&

CANAL AND RIVER TRUST Defendant

INDEX TO CLAIMANTS STATEMENT OF CASE

Heading Sub-heading Page

Summary of Claim Issues (a) to (c) 1-2

The Relevant Legislation British Waterways Act 1983 2-3

British Waterways Act 1971 3

Definition of River Waterways Issue (a) Introduction 3-4

Transport Act 1968 4-9

Canals examples 9-11

The Common Law 12-18

Secondary Legislation 18-20

International Law 20-22

British Law 22-25

BW/CaRT Acknowledgement 25-26

Legislative Background 27-32

Rules of Construction: Private Acts 32-35

Rules of Construction: All Statutes 35-37

Site Characteristics 37-40

Disproportionality of Action Issue (b) Human Rights Act 1998 41-50

Extremity of Actions taken 50-57

The Lawful Objective 57

Unlawful Objectives 57-59

Article 6 of Convention Rights 59-60

The Statute of Marlborough 60-64

Application of Section 8 Issue (c) 64-71

Consequences of Misuse as Debt Recovery

Statute of Marlborough 71-72

Tribunals, Courts & Enforcement Act 2007 72-76

Remedy under Schedule 12 76-78

Torts (Interference with Goods) Act 1977 78-80

Interference with Rights of Navigation 80-81

Presumption of Probity Introduction 81-85

Unlawful Licence Demands 85-86

Unlawful s.8 Eviction Notices 86-91

Criminal Obstruction to the PRN 91-92

Choices in legal s.8 Cases 92-94

Withdrawn Licence s.8 Cases 94-96

Fraud and Forgery 96-98

Lack of Honour 98-101

Contempt of Court 101-102

Contempt of the Sovereign [Illegal Agreements] 102-105

Power to Board Boats 105-106

Dispensing with Data Protection Act 106

Agreeing to pay Costs 106-107

Statutory Obligation 108-109

Relevance of the History 109-110

Parliamentary Concern 110-113

Summary Licence Requirement 114-115

Violation of Marlborough & the Human Rights Act 115

Nature of s.8 Powers 115

Requested Declarations As to Construction of the Private Acts

Main Navigable Channel in 1971 Act 116

Effect of s.8 in 1983 Act 116-117

As to Grandma Molly/Three Wise Monkeys 117-118

Statement of Truth 118

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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ROYAL COURTS OF JUSTICE STRAND LONDON

BETWEEN:

LEIGH RAVENSCROFT Claimant

&

CANAL AND RIVER TRUST Defendant

CLAIMANTS STATEMENT OF CASE

SUMMARY OF CLAIM

1. The facts of the matter are as set out in the Claimants Particulars of Claim. They

deal with the background history of the boat named Three Wise Monkeys [formerly Grandma Molly], initially registered by the Claimant in July 2010, and given the British Waterways [BW] Pleasure Boat Certificate number: 73563.

(a) It is claimed that Canal and River Trust [CaRT] have seized the boat unlawfully, having done so upon their own unilateral definition of the extent of

the main navigable channel of the river Trent, without recourse to the

Secretary of State for defining maps as provided for in the relevant legislation.

(b) It is further claimed that CaRT have acted unlawfully - even in the event [which is denied] that the boat was within the legislations ambit - in failing to apply the specified sanctions for the alleged offence; instead they have

applied the most draconian and disproportionate sanction in their arsenal.

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(c) It is yet further claimed that the exercise of s.8 powers, in circumstances where the boat is causing no obstruction, is unlawful where the identity of the

boat owner is known, debt is alleged, yet no Court Order has been obtained.

THE RELEVANT LEGISLATION

British Waterways Board Act 1983

2. The power to seize and remove boats is claimed under s.8 of the British

Waterways [BW] Act 1983. This provides that

(2) The Board may remove any relevant craft after giving not less than 28 days notice to the owner of the relevant craft, stating the effects of this

section.

[As per s.8(1) relevant craft means any vessel which is sunk, stranded or abandoned in any inland waterway or in any reservoir owned or managed by

the Board or which is left or moored therein without lawful authority . . .]

3. The question then, as to whether any boat falls within the class of craft that may be

subject to s.8(2) is determined [if not sunk, stranded or abandoned] on the grounds of it being left on CaRTs waterways without lawful authority.

4. The only question to be resolved in this case is, as a consequence of the above,

whether or no the boat requires such lawful authority to be kept on the relevant

section of CaRTs waterways.

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5. It has to be recognised that CaRTs powers to control the presence of boats on

waterways within their jurisdiction vary according to the nature of those waterways. There are the artificial canals; the rivers enjoying public rights of navigation amended under the 1971 Act Schedule 1 [as amended in 1974 and 1995], and tidal rivers remaining outside of the 1971 Act. As HHJ Hildyard said in Moore v British

Waterways Board [2012] EWHC 182 (Ch) (10 February 2012):

In particular, in my view, BWB have never convincingly addressed or offered

a coherent and consistent explanation of the fact that the legislation has

distinguished between the various types of inland waterways under its

ownership or control, and BWB's powers are differently expressed in

relation to each. [my bold]

British Waterways Board Act 1971

6. The relevant waterway in this case is the River Trent, which is one of those listed

in Schedule 1 of the 1971 Act. That Act provided that from passage of the Act the

free river status of the relevant sections of listed rivers were to be subject to the requirement to possess a current pleasure boat certificate:

Section 5(1) It shall not be lawful to keep, let for hire or use a pleasure boat on a river waterway unless a certificate, in this Act referred to as a pleasure

boat certificate, in relation to the pleasure boat is then in force or unless

there is then in force in relation to it a licence issued by the Board allowing the

use of all inland waterways without further payment. [my bold]

7. It is CaRTs case that the boat fell into the category of relevant craft by reason of

it being kept on the Trent without a current pleasure boat certificate.

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DEFINITION OF RIVER WATERWAYS

Addressing Claim (a) -

8. In order to understand the distinguishing character of the 1971 Pleasure Boat

Certificate [as differing from the universal Pleasure Boat Licence demanded under the 1976 Byelaws], the waterways definitions therein must be referred to.

9. The part of the 1971 Act that set the requirement for registration of pleasure boats

begins by defining with clear particularity those areas of the specified lengths of

specified rivers to which the section was to apply:

s.4(1) This Part of the Act applies to the main navigable channel of each of the inland waterways specified in Schedule 1 to this Act which channel so

specified is in this Act referred to as a river waterway. [my bold]

10. For CaRT to justify their action under s.8 of the 1983 Act then, they must first establish that the boat was kept within the main navigable channel. It is contended

here that it was not.

11. The language of the Act is clear, and as a relatively modern Act it is to be

assumed that redundancy of vocabulary was not indulged in when drafting the

legislation [unlike the case with 18thC and 19thC private Acts, where the language reflected the paid-by-word-count influence of the professional draftsmen].

12. Use of the adjective main then, in the description main navigable channel sends a clear signal of the legislations intent as to the extent of the sections

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application it was not to include those navigable channels that did not constitute the

main channel. Use of the word main necessarily implies the existence of secondary

navigable channels even within geographically limited waterways. It is used to

designate a fairway through the single navigable channel of even artificial canals,

where no subsidiary, physically separated alternatives/branches/tributaries exist.

13. As the pivotal point of the argument, it is needful to exam in some detail the

legislative usage of the descriptive phrase.

The Transport Act 1968

14. The Transport Act 1968 was designed to relieve BW of the costly responsibilities

they had in respect of maintenance of the Boards waterways. From the very

beginning of their formation under the Transport Act of 1962, they had been

promoting one private Act after another to remove their liability to maintain waterways

in a navigable state, these being the private Acts of 1963; 1965, and 1966.

15. Finally, the public Act of 1968 put an end to the incremental removal of the

navigation rights over particular lengths of canal by the simple although drastic step

of removing ALL public and private navigation rights over the entire artificial canal

system. It replaced those navigation rights [with the accompanying obligation to maintain them as fully navigable] with a three part classification of the waterways according to which those waterways were to be maintained [or not] to differing, now limited standards.

16. The first sector of waterways was classified as Commercial Waterways; these

BW were obligated to maintain in a state useable by the size of commercial craft

accustomed to use those waterways in the nine months prior to 8 December 1967.

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17. The second sector of waterways was classified as Cruising Waterways; these

BW were to be obligated to maintain only to the extent that they would be useable by

the normal size of pleasure boat accustomed to use those waterways in the nine

months prior to 8 December 1967.

18. The third sector of waterways was classified as Remainder Waterways, for

which BW had no obligation to maintain as navigable at all.

19. For each of the two navigable tranches of waterways, whether for commercial

use or pleasure use standards, that obligation was further limited. Part VII, s.104

provides:

Classification of the Boards waterways.

(1) For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertaking of the Waterways Board shall be divided into

(a) the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Part of this Act referred to as the commercial waterways) to be principally available for the commercial carriage of freight;

(b) the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as the cruising waterways) to be principally available for cruising, fishing and other recreational purposes; and

(c) the remainder.

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(2) The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister [or, in the case of a waterway in Scotland, the Scottish Ministers] for giving greater precision to that description by reference to a map. [my bold]

20. Section 105 provides:

Maintenance of the Boards waterways.

(1) With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways

Board, subject to the provisions of this section

(a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and

(b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of

passengers and driven by mechanical power.

(2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board any duty to maintain a waterway, or

any part of a waterway, in a suitable condition for use by any vessel of

the kind mentioned in that paragraph unless the dimensions of the

vessel (that it to say, its length, width, height of superstructure and draught)

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(a) correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months

ending with 8th December 1967; or

(b) if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part; but, save as

aforesaid, the duty imposed by that paragraph shall extend to any vessel of

the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied. [my bold]

21. Clarifying these limits to BWs obligation to maintain navigability, the definitions in

the aforementioned Schedule 12 confirm that the obligation was restricted to -

The main navigable channels of the following waterways: -

21. As relevant to this case, included within the Commercial category was the main

navigable channel of The Trent Navigation from the tail of Meadow Lane Lock,

Nottingham, to Gainsborough Bridge.

22. The Board were, as consequence of this Act, obliged only to keep the main

navigable channel of the relevant waterways in a suitable state for use by the type

and size of craft designated. Their obligation, in other words, was limited to

maintaining as navigable for the designated size of vessels the fairway of the

waterway, and the Schedule 12 list includes amongst the two sets of waterways both

rivers and the artificial canals.

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23. It is notable that the defining vocabulary of BW/CaRTs maintenance obligation

is identical to the later 1971 legislation as to the extent of boaters registration

obligation. That is true both as to the description of main navigable channel, and to

the provision in cases of uncertainty for a Minister/Secretary of State approved map

to more precisely delineate the boundaries if necessary.

Canals Examples

24. In clear contrast to many of the main rivers, the canal system comprised more

restrictive widths. Even within those restrictive navigable channels however, a main

navigable channel to be kept clear at all times was recognised within the enabling

legislature well before the passing of Schedule 12 of the Transport Act 1968.

25. Rights under the enabling Acts invariably granted the right for riparian owners to

build facilities both for commercial wharfage and for boats to lie against, fees in

respect of which were reserved to the owners rather than to the proprietors of the

canal. The invariable restriction placed upon those rights was that neither structures

nor boats using them should impede the navigable channel.

26. It is obvious then, that these Acts acknowledged even on the wholly private

property of the canal, a distinction between a main navigable channel, and space

available for moorings and for boats to lie alongside the banks.

27. An example is that of the GJCC Act of 1793, which further defined the space to

be kept clear at all times as being that sufficient to allow two boats of the designed

dimensions for the navigation, to pass each other. This equates to the main

navigable channel of a navigation purposely designed and built to be navigable from

bank to bank. [Exhibit 1]

10

28. The principle is still acknowledged in CaRTs online publication of the determining

factors for private building and using such facilities [the claimed right to approve and charge for consent to these being a contempt of statute outside the remit of this

case]. The website describes the width to be kept clear as the Minimum Operational Channel, and it is notable that, sensibly [and in line with international law on main navigable channels] the channel so described is dependant upon depth of water as well, such that the middle of the waterway may not necessarily be the deepest area

[particularly on the bends], and the positioning of the Main Navigable/Minimum Operational Channel will vary accordingly. [Exhibit 2]

29. Naturally enough, the width of the Main Navigable/Minimum Operational

channel varies according to the navigation concerned; thus the website lists

examples of relevant dimensions as being:

Lee Navigation 12.00 metres

Grand Union 10.00 metres

Stort 7.60 metres

Grand Union (Slough Arm) 5.30 metres

30. To put those figures into perspective, the Grand Union Canal as an example, was

built to 20 yards width as standard [this was the maximum they could acquire under compulsory purchase]. The Minimum Operational Channel therefore, can be seen to be approximately half the entire navigable channel.

31. That the concept of the operational channel being defined by the ability for two

boats to pass each other is a matter of general understanding, is illustrated by the

recent letter of Ian Lane, the new waterway manager for the West Midlands:

11

Further to my last email I have been trying to find if we have a navigation

policy regarding vegetation on both sides and unfortunately have had little

success. However whilst it appears that we do not have a set policy, there is

a clear aspiration to maintain the navigation to allow 2 boats to pass.

Unfortunately from your photos we are clearly not achieving this in some

places.

This criterion for determining the main navigable/minimum operational channel is

confirmed in the 2011 Discussion Paper published by BWs Head of Asset

Management, Mr Graham Holland. [Exhibit 3] The main navigable channel of all BW waters has been determined by identifying the pinch points limiting craft

dimensions, then doubling that with a bit to spare to define a channel sufficing to

allow 2 boats to pass each other. This has been applied to every stretch of river and

canal and published in the WUSIG spreadsheet of 2011. -

http://www.britishwaterways.co.uk/media/documents/meetings/wusig/MOC-

dimensions-comparison-v3-110311.xls

32. In clear distinction from the wording of the 1971 Act respecting the scheduled

rivers, the 1976 Byelaw licensing requirement for boats on all waterways NOT being

river waterways, admits of no similar limitation: regardless of whether the boats are

kept outside of the Minimum Operational Channel, they must possess and display a

Pleasure Boat Licence good for all CaRT waterways.

33. Recognition of this essential difference in the character of the requirements is key

to the issue. The 1968 Transport Act as cited previously, confirms this understanding

in including the canals in the system within the Cruising or Commercial categories

listed in Schedule 12, of which the main navigable channel only - as with the rivers -

was required to be maintained to the relevant standard.

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The Common Law

34. If a main navigable channel can be distinguished within the single navigable

channel of artificial canals as in the examples above, the situation is even clearer

when dealing with natural rivers.

35. To further illustrate why this additional qualifying adjective [main] made its way into the legislation, the distinction between tidal rivers and non-tidal rivers respecting

the Public Right of Navigation [PRN] must be apprehended.

36. It is settled law in the Courts of England that in tidal rivers the PRN extends over

the whole course of the navigation i.e. from bank to bank.

37. On non-tidal rivers, the public right does NOT extend from bank to bank; it is

confined to the central navigable channel Rowland v Environment Agency [2002] EWHC 2785 (Ch). The right of navigation over privately owned non-tidal rivers is thus more restricted than on tidal rivers and the rights of navigation [inclusive of the right to both use & keep boats on the water] outside of the central channel, vest only in

the riparian owners.

38. With this understanding, it is readily appreciated why this legislation distinguished

between the navigable channel that extends from bank to bank [as on some of the scheduled river lengths], and the public main navigable channel [as applies to most of them] that is confined to an area falling short of the banks. BW could not grant a licence to the public to trespass over the navigable channel belonging to third parties.

39. The Trent under CaRTs jurisdiction is tidal between Gainsborough Bridge and Cromwell Lock. Further upstream from Cromwell Lock it is non-tidal, and certainly so

13

far upstream as Farndon, the ownership of the riverbed vests in the riparian owners.

[Exhibit 4]

40. The common law right of the riparian owner - as distinct from the general public -

to exercise rights of navigation respecting using and keeping boats moored over his

property outside of the main, public navigable channel, is as a consequence

designedly unaffected by the provisions of the 1971 Act. The promoters of the 1971

Act asked Parliament to amend the public rights of navigation only to the limited

extent that it did; it never purported to ask for amendment of the private rights of

navigation. That is in direct contrast to the terms, for example, of the Transport Act

1968, which - respecting the artificial canals where the rights of navigation were

expressly conferred by the Enabling Acts rather than arising from the common law

rights on rivers expressly abolished both public and private rights of navigation.

41. This inevitable conclusion is given added weight, moreover, by the Acts

recognition that circumstances could arise wherein debate over the precise

boundaries of the main navigable channel was possible. No such debate could

arise if the wording had simply referred to the whole navigable channel of the rivers.

42. Hence s.4(2): The description of any waterway contained in the said schedule shall be read subject to any order made by the Secretary of State for further defining the waterway by reference to a map. [my bold]

43. It is obvious that further defining the waterway as to the extremities of its length is

quite unnecessary, given that these are described with precision and need no map

for further defining as with the Trent for example, whose applicable length is

described in Schedule 1 to the 1971 Act as from the tail of Meadow Lane Lock,

Nottingham, to Gainsborough Bridge.

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44. With start and end points of jurisdiction thus clear, the only possible area left for further defining the waterway by reference to a map, must be the width.

45. It has been suggested by some that other navigable channels must refer to

alternate parallel cuts, canals, tributaries and marinas. If that were so, then the Act

could simply have referred to the river, or to the navigable channel of the river but

the jurisdiction of the authority is limited to the river itself in any event, and there would be no need to refer to a map further defining the river itself in case of alleged

ambiguity.

46. Non-navigable channels/inlets/tributaries etc would, in any event, be outside of

the scope of the Act. The obligation to maintain the navigation is inherited from the

British Transport Commission and was diminished under the terms of the Transport

Act 1968 as reviewed above - to apply only to the main navigable channel of the

rivers and canals.

47. In the case of very wide waters such as in the harbours, or in tidal rivers where

knowing the navigable channels is critical, the channels both main and otherwise are

often marked out by a system of buoys, marker poles or lights [and charts are usually available for reference to and indicating these], but where the whole of the river is ordinarily navigable at all times, the main navigable channel is a matter of common

sense keeping to the middle avoiding moored boats &/or permanent structures

encroaching into the river; there is no precise border to it. Only if a question arose

over the technical definition for the purpose of something like the registration

requirement, would any necessity be seen for a map further defining the waterway

[already defined as the main navigable channel of the river] by reference to a map.

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48. It is important to note that no power was bestowed upon BW in respect of an

ability to unilaterally define the extent of the main navigable channel. The very fact

that any further defining by reference to a map is only to be by order of the

Secretary of State, makes it crystal clear that any such refining of the definition was

not a matter to be left to BWs discretion [nor of course to their successor].

49. It is a matter of record that no such maps for further defining the extent of the

main navigable channel have ever been made under any order of the Secretary of

State at any time. The only maps held by CaRT purport to show only the extent of

their jurisdiction over the rivers, NOT the extent of the main navigable channel; they have quite simply never seen the need for such maps, imposing their own unilaterally

derived definition for main as embracing the whole navigable channel. As s.4(2) demonstrates, however: no such unilateral power of interpretation is legitimately

available to them.

50. It is submitted that merging the meanings of main and whole does violence to

the plain language, and that the common-sense understanding of the statutes

application would acknowledge that most boats moored to the banks of the river on a

more or less permanent basis, must be considered as not intruding into that main

navigable channel.

51. This would likewise apply to many of those moorings that intrude yet further into

the river by way of jetties and pontoons, though probably not all. [It is a feature of riparian rights on tidal rivers some of which are likewise embraced within this

legislation - that the right of access to their bank at all times may be accomplished by

building jetties out to the main navigable channel. In such circumstances the licensing requirement for boats kept there would bite as the wording includes

boats kept within, and not merely using the main navigable channel.]

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52. In short, when reading the statute as might the man on the Clapham omnibus,

the distinction between a main navigable channel and the entire navigable channel is

as obvious as BWs Information Officer evidently found it. [see paragraphs 84, 85]

53. This is no new concept; the issue was raised in the Appeal Court in the case of

BWB v Peter James in 2003:

But Mr James submitted to us that had he been in possession of the

statutory material in the lower court, there were other points which he would

wish to have taken. In particular, he would have wished to contend that at all

material times Ya Basta was not on a river waterway for the purposes of

section 5 of the 1971 Act because, as one can see from section 4(1):

This Part of this Act [which includes section 5] applies to the main navigable channel of each of the inland waterways specified in Schedule 1 to this Act

[the River Severn is so specified] which channel so specified is in this Act referred to as a river waterway.

He contends that it is only a part of the river which can properly be

regarded as the river waterway for the purposes of section 5. That is not

an issue which was ventilated before the magistrates, and it is in no sense

part of the material which we have to decide today. Were it necessary to

adjudicate upon it, we would have to have submissions which we have not had the benefit of, and we make no finding about it. But we can well

understand why Mr James wishes to observe, as he has, that that was a

point that he would have wanted to have taken. [my bold]

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54. It is a point of mild interest that BW offered no response to Mr James argument,

even though doubtless they saw it in the same light as the Appellate judges something extraneous to the pleadings at issue. It is significant that the judge did not belittle the argument; on the contrary he only set it aside as an issue not pleaded in

the court below, while accepting the force of the argument.

55. In all the premises above, it is submitted that whether or not a permanently

moored boat is to be subjected to enforcement [of whatever nature] on the basis of s.5 of the 1971 Act, should in all cases be a matter dependant upon the production of

a Secretary of State approved map. This would not be too difficult or onerous a

matter for CaRT to arrange.

56. For so long as the common-sense view of the extent of main navigable channel

[assisted by comparison with the effect of the Thames Conservancy Act it was modelled on] is to be challenged by CaRT, the absence of such maps is a serious drawback to those wishing to know exactly where the boundaries of the applicable

legislation lies. It is wrong to continue to permit the interpretation of the Statute to be

the sole province of CaRT.

57. HHJ Hildyard concluded his judgment in Moore v BWB [2012] with the expressed hope that consideration be given to bringing forward clearer consolidated

legislation in due course to clarify and set out in more accessible form the extent of

BWB's powers and the circumstances in which they may be exercised. [my bold] In this instance, the production of such maps as the legislation already allows that the Secretary of State may approve, would serve to provide that more

accessible form.

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58. As HHJ Hildyard later commented in his subsequent judgment on the Human Rights aspect of that case: It does not seem to me to be right that the boating

public should be faced with this morass of legislation going back to 1793 if it is to

ascertain its rights and not be left to rely on the say-so of the British Waterways

Board.

59. It is submitted however, that in this case the 1971 legislation has made clear

provision for the avoidance of reliance on BW/CaRTs say-so as to the extent of the

main navigable channel, and that therefore no action could lawfully be taken

against any boat moored to the bank [as compared with one moored to a jetty or pontoon extending into the main navigable channel] for so long as that clear provision has been neglected, in favour of the authoritys say-so.

Secondary Legislation

60. The recognition that there may be several navigable channels within the same

body of water [as distinct from physically separated channels flowing in much the same direction, or flowing into the principal channel] exists in other legislation such as Byelaws. For example, navigable channels are, in the Southampton Harbour

Byelaws 2003, distinguished as a fairway. Their definition provides:

fairway means a navigable channel which is a regular course or track of

shipping including navigable channels marked, dredged or maintained by

ABP;

61. Byelaw 19 relating to navigation in fairways makes clear that there will be boats

that can navigate outside of the designated navigable channel [i.e. within secondary navigable channels as distinct from the main fairway], as:

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(1) The master of a small vessel, which is not confined to the fairway, shall not make use of the fairway so as to obstruct other vessels which can

navigate only within the fairway.

62. This accords with the definition in Websters New World College Dictionary that

gives the nautical [non-golf] meaning of fairway as: a navigable channel in a river, harbor, etc.; often, specif., the middle of such a channel. [my bold].

63. Identical definitions to that in the Southampton Harbour Byelaws 2003 are

given in the Humber Navigation Byelaws 1990; the Medway Ports River Byelaws

1991, and the Windermere Lake Byelaws 2012.

64. Even more particularity is given to the meaning of navigable channels in the

River Hamble Byelaws 1986, which state Fairway means the navigable channel of

the river and includes those parts of the channel kept clear of moorings or other

obstructions in order to give vessels clear passage. [my bold]

65. The Port of Ipswich Byelaws 1996 putting it the other way around: navigable

channel means the fairway of the River Orwell . . . [my bold]

66. The British Waterways Byelaws for River Ouse and Foss Navigation contain a

good illustration of the use of a fairway within a wider navigable channel:

Precedence on fairway

12. (a) A vessel not propelled by power when meeting, overtaking or being overtaken by a power-driven vessel shall so far as it is safe and

practicable keep out of the fairway.

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(b) A vessel when meeting, overtaking or being overtaken by a vessel of deeper draught shall so far as it is safe and practicable give the

fairway to that vessel.

67. Identical concerns are embraced within the Port of London Authority Byelaws

2012, relating to the single channel of the Thames:

14.4 A person using a personal water craft must not enter a fairway except

where crossing in accordance with Rule 9 of the International Collision

Regulations.

68. Finally, the Southampton Harbour Byelaws 2003 referred to previously, further

distinguish [byelaw 11] amongst the available fairways/channels a Precautionary Area which means the main navigable channel . . . [my bold]

69. That there is clear intent in the legislative language, distinguishing between

navigable water and navigable channels, and further distinguishing amongst the

latter a main navigable channel, is, it is submitted, an irresistible conclusion.

International Law

70. The character of the main navigable channel [i.e. as described by CaRT as minimum operational channel depending on depth as well] is, as noted, commensurate with International law. Farnham Law of Waters & Water Rights

vol.I deals with Boundary rivers [pgs 30,31]

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7. Boundary rivers - When a river forms the boundary between two states or

nations, the title to each is presumed to extend to the middle of the main

channel of the stream. In such cases the land covered by the water on each

side of the dividing line is as much the property of the bordering state as

though the water did not flow over it. This line is the middle of the main

navigable channel, and not the middle line measuring from bank to bank,

nor the line followed by vessels engaged in navigating the stream. The

navigation of the stream is of paramount importance to each state,

imperatively demanding that its rights be fixed in such a way as to give it

equal access to the navigable channel. Consequently, when applied to

boundaries between states the words middle of the river and middle of the

main channel are synonymous. [my emphasis]

71. The Treatise cites Iowa v Illinois, 147 U.S. 1, 37 L. ed.55, 13 Sup. Ct. Rep. 239.

and some 19 other cases in support. Commenting on two contrary cases, a footnote

explains:

These decisions are plainly contrary not only to the weight of authority, but to

true principle, because there are streams the character of which is such that

there are large stretches of shallow water along one shore, so that if the

middle line from shore to shore was taken the territory of the state on that

side might not reach the navigable portion of the stream.

72. The above case law does but state what common sense dictates that while the

entire width of a waterway may be navigable by vessels, those with deeper draft

and/or other size restrictions may well be confined to a particular channel within its

breadth. Determination of a main navigable channel useable by all will be a matter of

fact dictated by the individual physical characteristics of the river. For the purposes of

22

the 1968 and 1971 Acts, the main navigable channel is definable according to the

dimensions of the customary craft that used them, whether commercial or cruising.

British Law

73. The case of Rowland v Environment Agency [2002] EWHC 2785 (Ch) has already been referred to respecting the rights of the public in tidal compared to non-

tidal rivers. As expounded there:

49. There are two distinctions at common law between tidal and non-tidal

rivers. (a) In the case of tidal rivers the presumption is that the bed of the river belongs to the Crown and to establish PRN no prescriptive user is required; in

non-tidal rivers the presumption is that it is vested in the riparian owners and

a prescriptive user has to be established. In a case such as the present

where the PRN is established, this distinction between tidal and non-tidal

rivers is irrelevant. (b) In the case of tidal rivers the public rights extend over the whole watercourse but in the case of non-tidal rivers the public rights

(at least ordinarily) are confined to the channel of the river: see Orr Ewing v. Colqhoun (1887) 2 App. Cas. 839 at 848 per Lord Blackburn. [my bold]

74. Even where the public right extends from bank to bank of course, there will be

many examples where the ability to navigate in certain vessels will be physically

confined to certain channels within the river. An obvious example is presented where

bridges cross the navigation, such that on the larger tidal rivers some arches will be

designated as the main navigable channel, some will be classified as minor channels

available to smaller craft, while others yet may be closed to navigation, for all that the

public right extends from bank to bank in these tidal rivers.

23

75. The principle of the public right being confined to the main navigable channel in

non-tidal rivers was upheld in several previous cases where obstructions to

navigation by bridges were claimed.

76. Reg v Betts 16 QB 1022, 1850 was a case on the river Witham [one of the scheduled rivers of the 1971 Act], where the navigation proprietors had been accused of the criminal action of obstructing the public right of navigation through

building a railway bridge immediately upstream of the Boston Grand Sluice Lock. The

proprietors were cleared by a jury of the accusation, considering that as the bridge arch in front of the lock was at least as commodious as the lock and no vessel

wider than the lock could pass through anyway - the practically available navigable

channel itself was not obstructed.

77. It is incontrovertible therefore, that so far as this scheduled river is concerned, the

main navigable channel has been effectively defined - as comprising a considerably

smaller fraction of the whole width of the navigable river - for the past 165 years.

78. The later case of Orr Ewing v Colquhourn [1877] HL (Sc) likewise dealt with the extent, if any, a bridge built across the navigable river Leven obstructed the right

of navigation. The nature of the river was an inland stream, and the tide does not

flow up to the point where the piers are erected. Thus, in the words of Lord Hatherly

we have further to consider what the navigable channel of the river is; and

I think upon that it is established beyond a doubt that except in extraordinary

circumstances, such as possibly I may have afterwards to refer to in

connection with piece of evidence, the navigable channel of the river is

from a distance of twenty-five feet . . . to the west of the easternmost pier,

24

which is the particular pier complained of in the progress of this case as

interfering with the navigation.

I think it will be found that the evidence largely preponderates to shew that

barges were never in the habit of taking any other course than the course

down the western side of the pier and in the deepest channel of the river;

and that so far were they from taking any other course, especially towards the

east of the pier, that the witnesses tell us that it was considered dangerous to

pass by on that side, because if you passed at all near to that portion of the

river which would be to the east of the pier, or which the pier itself occupies,

you would run a great risk of being carried into the lade, a result which of

course would be deprecated by those who were skilled in navigating the

river. [my bold]

79. Based upon the fact that the customary navigable channel was practically limited

to the degree described, and [again as with Reg v Betts] that the bridge arch spanned that channel, and at a sufficient height, he declared:

. . . it appears to me to be established plainly and distinctly that there is no

interference with the right of navigation on this river.

80. He went on to explain:

The question seems to be simply this: Does this bridge interfere with that

right of navigation as exercised, or as capable of being exercised, in the

stream? [my bold] I think we have evidence here which is beyond all dispute . . that the right of navigation has not been exercised to the east of the

piers of the bridge.

25

81. So although it was possible for boats to navigate the river to the east side of the

river however dangerous and difficult that was under the circumstances - the right

of navigation on this non-tidal portion of the river was limited to the customary, or [as we might put it adopting the terms of the 1971 legislation] main navigable channel.

BW/CaRT Acknowledgement

82. Apropos of a far earlier case, a request was made via the WhatDoTheyKnow

website, for copies of any Secretary of State approved maps further defining the

main navigable channel of the scheduled river waterways.

83. The answer dated 26 August 2011 was:

Maps of each of the river navigations listed in Schedule One of the British

Waterways Act 1971, as amended by the British Waterways Act 1974, which

mark the main navigable channel of each of those rivers do not exist and, for

that reason, this information is not held by British Waterways. [my bold]

84. In a follow-up to that request, reference was made to a prior incident [also on the river Trent] dating back to 2008, wherein a marked map purporting to show the area within which registration was required was sent to the s.8 recipient. This map was

subsequently produced, with its dotted green line as described, with the comment:

Further to your query of 28th August I am now in receipt of the map referred

to in the following correspondence between Mr Cropper and the 'Trent

boater':

26

"I attach the River layout for the Beeston Chalets area; the map shows an

intermittent green line which indicates the navigation. All craft moored on the

river (between the green lines on the attached map) require a current River licence."

I attach a copy of this map for you now. You will see that the intermittent

green line is drawn on either edge of the section of the River Trent to

show the entire navigation and not, as you believed, drawn to indicate

the main navigable channel. .

Again I can confirm that maps of each of the river navigations listed in

Schedule One of the British Waterways Act 1971, as amended by the British

Waterways Act 1974, which mark the main navigable channel of each of

those rivers do not exist and, for that reason, this information is not held by

British Waterways. [my bold and underlining]

85. This is clear recognition that BW understood and acknowledged the distinction

between the entire navigation within either edge of the section of the River Trent

and the main navigable channel [even though the 2008 enforcement officer had wrongly [&/or willfully] assumed that boats anywhere within the entire navigation were subject to registration requirements]. [Exhibit 5]

86. It can be noted here for the sake of completeness, without actually referencing

the past stoppages programme notices by BW, that these too made mention of works

affecting some of the scheduled rivers, resulting in closure of some navigable

channels while not affecting the main navigable channel.

27

Legislative Background

87. The intent behind the legislation is abundantly clear from the Bill itself; from the

Hansard debate over the Bill and its purpose, and from the Select Committee

Minutes of Evidence. [Exhibit 6]

88. The intent was not to impose any registration requirement on boats merely kept

on the river while outside the main navigable channel, but rather to impose the

requirement on all boats that would use the channel, thereby enjoying the benefits of the work done in maintaining the navigability of the rivers at some considerable

cost to the authority. As Mr Jupp QC for British Waterways explained to the

Chairman of the Select Committee:

The licence which a boat owner takes out and pays for makes him free of the

artificial canal system, including the locks, and gives him the free use of the

locks on the river navigations of the Board. On the rivers the situation is

different. The Board are able to, and do, charge for the use of locks and

people who have not got a canal licence because they do not keep their boats

on the canals pay when they go through locks. Commercial traffic of course

pay tolls on the goods carried by them on the river navigations so that the

Board thereby has a means of collecting revenue from the commercial traffic

and also from the pleasure traffic which uses locks. On the other hand, the

river navigation involves not only locks. You can keep a boat on the river and

by taking quite large stretches which there are where there are no locks

you need never go through a lock and therefore need never pay. But of

course a river navigation is not just locks, it consists of sluices, weirs, maintenance by weed cutting, dredging, bank protection and the like, as well

as by the locks themselves which make the rivers navigable. Without those

28

things which are expensive and expensive to repair and maintain, the rivers

would quickly silt up, develop shoals, become overgrown, the banks would fall

in and very soon they would become unnavigable. [my bold]

89. In arguing for the desirability of the section, BW made direct comparison with the

Thames Conservancy Act 1966 which referred solely to licensing to use the river,

not to merely keeping a boat on the bank which never used the navigation. Only with

the advent of the Environment Agency (Inland Waterways) Order 2010 did it become mandatory for boats merely kept on the Thames to be registered whether

they used the navigation or not. [Exhibit 7]

90. The caution displayed by BW in not seeking to impact upon the publics rights of

navigation more than absolutely necessary [in their opinion] was due to the sensitivity of so many to such an imposition. Mr John Wells MP in presenting the Bill to

Parliament:

Until tonight the rivers the Bill will create charges upon have, in the jargon of the Inland Waterways community, been called free rivers . . .

One of the main points of the river authorities is that they consider that the

charges are fiscal in character and must fetter the public right of

navigation and offer no tangible benefits in return for registration. I think I

have already dealt with the tangible benefits, which, I freely admit, are not

very great, but neither are the charges very great, nor is the revenue going to

be very great, and if there is to be speed control and patrolling, then

registration must come about and there must be some charge.

29

91. The point was emphasised by Mr Downey (Representative of the Minister of Transport):

. . . in considering this formal application the Minister had to consider two

things: the acceptability or otherwise of the proposals to be contained in the

Bill and whether legislation was the right means of dealing with these

proposals. In considering that the Minister had to take into account the

fact that on the rivers in question there are very ancient public rights of

navigation, as the Committee is already aware, and having regard to that

rather emotive matter it was felt - and the Treasury Solicitor was consulted

before that decision was reached that it would not have been proper for the

Board to have attempted to achieve its aims by means of byelaws, that it was

necessary that legislation should be introduced for this purpose.

92. In explaining the inspiration and existence of precedence for the clauses, Mr

Wells MP commented: [my bold above and below]

The board considers that the increase of leisure activity resulting in the use

of pleasure craft on these navigable free rivers such as the Severn and

Trent whose navigation it controls necessitates making greater the

possibilities, far from those who use them, of contributions to the works and

services which the board provides on its rivers, and to achieve this the board

wants to introduce a registration scheme for pleasure craft navigating on

such rivers. It has taken as the essence of its scheme schemes already

in existence under the Thames Conservancy since the Act of 1966 and

on the Norfolk Broads since the Great Yarmouth Port and Haven Act, 1963.

30

93. That direct reliance on the Thames Conservancy Act is a positive indication of

what BW were aiming to achieve.

94. The draft of the Bill makes specific reference to this reliance in its footnote to the

relevant clause.

95. Mr Jupp QC drew particular attention to this in his presentation of the Bills

rationale:

The registration of pleasure boats which is provided for in Part II of the

Bill is no new thing. The Thames has already a similar system; it has had

it since 1932, in a Thames Conservancy Act of that year; the Act was re-

enacted with amendment in 1966, and the Thames Conservators, who are

both navigation authorities and river authority - the two functions are

combined in the Thames - control the pleasure boats there by a system of

registration.

96. As Mr John Wells MP had said:

The Board is perfectly fair in asking the House for these powers. Some who

felt that the powers appeared at first sight to be a bit draconian have been

slightly reassured by being told that most of the Clauses were taken as

model clauses, as it were, from the Thames Conservancy legislation.

97. That the clause was aimed at those actually using the navigation as distinct

from those merely keeping their boats there is evident from his rationalisations for the

registration and charges:

31

It is reasonable to point out that there must be increased patrolling,

increased sanitary facilities, increased water facilitiesfresh drinking-water

facilities, I meanand increased lock facilities. I mean not that there will be

more locks but that the locks should be open for longer hours. These are

extra services for which people will be asked to pay, and it seems to usto

me, anywaythat this is not unreasonable.

The proposed scheme is also of importance to the Board in that it will enable

the board to achieve a measure of control and management of craft using its

waterways, as the craft will then be identifiable. [my emphasis]

The real rationale of course, was that byelaws could not be effectively enforced when

there was no means of readily identifying the craft and that was the single most

driving impetus to get registration made compulsory: so that that those who used the

rivers could be nabbed for speeding etc.

98. It is evident then, that throughout the Bills preparation and passage through

Parliament [two sittings were taken on the Bill], there was concern to impact upon the navigations rights as little as was deemed possible while still achieving their stated

objective to manage and control active use of the navigation, as had been displayed in the fore-runner legislation for the Thames.

99. The only distinct difference from the Thames legislation is that the BW version

included boats moored [kept] within the main navigable channel [the Thames Conservancy Act excluded boats moored in the main channel of the Thames

provided they did not use the river] but such boats would be in a considerable minority and largely found within tidal sections for reasons of accessibility.

32

100. Although the effect of the Thames Conservancy Act has now been over-ridden

by virtue of the 2010 Order [such that ALL boats on the entire width of the river whether using it or not must be licensed], no such amending legislation has ever yet been passed affecting the 1971 Act.

Rules of Construction of Private Acts

101. The 1971 Act is a private Act promoted by the statutory body that was British

Waterways Board at the time.

102. The firm rule to be applied by the Court when construing all such private Acts, is

that in the event of any ambiguity, the wording must be construed against the

interests of the promoters of the Act, and in favour of the public.

103. Whilst it is submitted that use of the express qualifying adjective admits of no ambiguity at all, for so long as CaRT argue [as they must to justify their action] against the common-sense understanding of the applicable area, then ambiguity

must be held to exist in this instance, and the Court will be bound to apply the

invariable rule in such cases.

104. The rule has ancient precedent [often dealing with canal Acts], notably the oft-cited case of Stourbridge v Wheeley, cited with approval in the case of Swanhill

Developments Ltd & Ors v British Waterways Board 1998 JPL 153 and in Moore

v British Waterways Board [2012] 1 WLR 3289, [2012] EWHC 182 (Ch): -

The canal having been made under the provisions of an Act of Parliament,

the rights of the plaintiffs are derived entirely from that Act. This, like many

other cases, is a bargain between a company of adventurers and the public,

33

the terms of which are expressed in the statute; and the rule of construction in

all such cases is now fully established to be this, that ambiguity in the

terms of the contract must operate against the adventurers, and in

favour of the public; and the plaintiffs can claim nothing which is not clearly

given to them by the Act. [my bold]

105. The relevant proposition is enunciated by Francis Bannion in Statute

Construction, under the topic of Legality. He says

Where the decision-maker is a public corporation it lacks the comprehensive

power possessed by natural persons to regulate the use of its property in any

lawful way it sees fit: see e.g. R v Somerset County Council, ex p Fewings

[1995] 3 All ER 20, following Calder and Hebble Navigation Co v Pilling (1845) 14 M & W 76 at 88." . . . . .

106. The Bournemouth-Swanage Motor Road & Ferry Co. v Harvey & Sons

[1929] 1 Ch. 686 -

The courts construe private Acts on a presumption that people should not be

prejudiced in matters they can lawfully perform without compensation, unless that intention is clearly expressed. . . .

I approach the matter from the position that clear and unequivocal words are

necessary to derogate from common right, to deprive people of the power to

do what they were doing for profit at the passing of the Act, without any one

being able to stop them. . . .

In approaching the consideration of the Act it is necessary in my view to set

out the canons of construction of such a statute. In Scales v Pickering

34

[1828] 4 Bing. 448, 452. Best C.J. says: If the words of the statute on which they rely be ambiguous, every presumption is to be made against the

company and in favour of private property. In Parker v Great Western Ry

Co. [1844] 7 Scott. N.R. 835, 870. Tindal C.J. says: The language of these Acts of Parliament is to be treated as the language of the promoters of them .

. . Acts passed under such circumstances should be construed strictly against

the parties obtaining them, but liberally in favour of the public. If there be

any reasonable doubt, said Lord Cottenham L.C. in Webb v Manchester &

Leeds Ry. Co. [1839] 4 My, & Cr. 116, 120. As to the extent of their powers . . . they must go elsewhere and get enlarged powers; but they will get none

from me, by way of construction of their Act of Parliament.

The judge later quoted from:

the case of Scottish Drainage Co. v Campbell [1889] 14 App. Cas. 139, 142 Lord Herschell said: when an Act of this description is obtained by a

company incorporated for purposes of profit, to confer upon them rights and

powers which they would not have at common law, the provisions of such a

statute must be somewhat jealously scrutinized, and I think that they ought not to be held to possess any right unless it be given in plain terms or arises

as a necessary inference from the language used.

107. It being clear, as both BW and Parliament recognised, that rights of navigation

[both public and private] over the rivers had existed since time immemorial, any construction of the private Act that seeks to limit those rights further than the clear

language of the Act makes necessary, must be held to be contrary to accepted legal

practice.

35

108. Any assumption of powers by the promoters must be strictly limited to those

clearly given them in the Act. They have clearly been given powers to demand

registration fees for all boats kept or used within the main navigable channel of the

scheduled rivers; they have not been given powers to demand registration of boats

that are kept or used outside of the main navigable channel, and any ambiguity

claimed in order to extend the reach of the power to cover the entire navigable

channel can only operate against them, not against members of the public.

Rules of Construction of all Statutes

109. The rights of navigation being derived in this instance from the common law, it is

further worth pointing out in any event, that statutes should be construed so as to

impact upon such common law rights no further than the Act makes expressly clear.

110. As put by the judge in Attorney-General Ex-Relatio Yorkshire Derwent Trust Ltd & Another v Brotherton & Ors [1991] WLR 1126

There is, however, a presumption that except in so far as they are clearly

and unambiguously intended to do so, statutes should not be construed so

as to make alterations in the common law. [my bold]

111. To quote Lord Scott of Foscote from the House of Lords 2003 judgment in Wilson & ors v Secretary of State for Trade & Industry:

Another statement of the presumption is to be found in the judgment of Dickson J in Gustavson Drilling [1977] 1 SCR 271, 282:

"The rule is that a statute should not be given a construction that would

impair existing rights as regards person or property unless the language

36

in which it is couched requires such a construction: Spooner Oils Ltd v

Turner Valley Gas Conservation Board [1933] SCR 629, 638. The presumption that vested rights are not affected unless the intention of the

legislature is clear applies whether the legislation is retrospective or

prospective in operation. A prospective enactment may be bad if it affects

vested rights and does not do so in unambiguous terms. [my bold]

112. In the present case it is submitted, the enactment in issue has carefully limited

the impairment of existing rights by the use of - what cannot be considered a

redundant - adjective respecting the navigable channels of the rivers that are to be classified as river waterways for the purpose of registration.

113. Even supposing, however [which is denied], that the description admitted of any ambiguity, that ascribed looseness of wording could not be relied upon to impair

existing rights that would otherwise remain unaffected.

114. In the premises, CaRT acted unlawfully in construing their Act so as to impair

the existing rights in circumstances where the boat lay outside of the main navigable

channel of the non-tidal river Trent.

115. It is regrettable that CaRT, as BW before them, have been allowed to apply the

legislation in the cavalier way that they have been doing for so long; the 2008 case

being in point, where the enforcement officer had declared that all boats within the

entire navigation were subject to the registration requirement, when even BWs Information Officer acknowledged that the green lines on which he had relied did

not, and did not purport to, indicate the main navigable channel.

37

116. Such ignorance if ignorance it was on the part of such an officer might be

understandable though not excusable, but these s.8 proceedings are monitored at

the highest levels including the legal department, and the actions of the officers even

when transparently wrong, are supported as a matter of institutional policy.

Site Characteristics

117. The boat was moored along the bank of what had once been the Farndon Ferry

operation; now a private boatyard.

118. It is an inescapable feature of a ferry operation both that the width and depth of

the waterway demands such a service, and that the ferry boat will at all times be

present and moored at one side of the river or the other at the point of crossing. The

corollary will be that in granting consent for the ferry, the moored boat will not have

been considered to have intruded into the main navigable channel so as to constitute

an obstruction to the public right of navigation, but that free passage for boats

navigating the Trent at this point will have been permanently clear for those heading

in either direction simultaneously.

119. The width of the Trent at this crossing is 56 mtrs, or 183 feet.

120. The maximum width of vessel ordinarily navigating the Trent this far upstream

was 20 feet, and further downstream signs beside the waterway warned of a 40 foot

channel for boats to keep within [though these signs may no longer be in existence]. That would accord with the general principle of the main navigable channel being

sufficiently wide to allow two boats of the type ordinarily using the waterway to pass

each other.

38

121. Historically the dredged navigable channel was 50% wider; the Trent Navigation

Company had obtained an Act of Parliament in 1906, authorising them to make

improvements upstream of Newark [which includes the section relevant to this case] to allow larger boats to navigate the river. The Act authorised dredging a channel 60

feet wide and five feet deep. [Exhibit 8]

122. This section of the Trent was recently dredged in 2014 by contractors Land &

Water, after more than ten years neglect of the statutory obligation to keep the main

navigable channel suitable for commercial use. The Works Supervisor Mr Avi Verber

was quoted as saying: We have dredged only the channel, not the whole width of

the river, because that simply isnt economically viable. [my bold]

123. Announcing that work in February 2014 the Clean Water Trust noted:

The Canal and Rivers Trust has announced that it is spending 1 million to

dredge the river to aid navigation; that is to provide a navigable channel

from Nottingham to Gainsborough . . . [my bold] They further noted: The maintenance of the River Trent and its channel is vital . . . [my emphasis]

CaRT has confirmed that The channel dimensions dredged in order to achieve our

navigational standards were: Holme Lock to Cromwell Lock 11m X 2.3m. That

equates to roughly 36 feet width. [Exhibit 9]

124. The very latest non-tidal Trent charts published by The Boating Association

show the centre of the navigable channel as a thin red line. They note:

Because of the small scale of the charts the course of the safe channel is

necessarily exaggerated and may occasionally touch the bank. Use common

39

sense and keep at least 12 feet (4 metres) from a training wall, further from a stone heap, and well away from a gently sloping bank. Remember that the

red line indicates the centre of the channel and, in most places, this is

around 30 feet wide or more. [my bold] [Exhibit 10]

125. Whether the width of the channel is taken as 30 feet, 36 feet, 40 feet or the

historical 60 feet makes little practical difference for the instant purpose; even the

original 60 foot wide channel would mean that the main navigable channel took up

only a third of the available width of the Trent at this point.

126. The legal obligation to maintain the requisite depth for commercial traffic is

limited under the 1968 Act to this main navigable channel, and the exact same

defining terms as to that, are those used in the 1971 Act respecting the requirement

for boat registration. Supposing CaRT was to argue that the main navigable channel

extended from bank to bank, then given these identical definitions [Secretary of State approved maps or no] their obligations to dredge must be equally extensive - yet that is scarcely on their agenda! As recorded above, the extent of the main navigable

channel under the 1968 statutory obligation is claimed by CaRT to be no more than

36 feet for this section of river. The identical dimensions will apply to the 1971

Act registration requirements, couched as those are in identical language.

127. The historical facts and the comparative legislation leave no room for doubt: the

main navigable channel of the Trent at Farndon is a maximum 60 feet wide by virtue

of Parliamentary statute, and considerably less in practically applied terms. With an

equivalent 60 feet of river outside of that channel on both the northern and southern

sides, all boats moored at Farndon Ferry are unquestionably outside of the main

navigable channel as provided for in the 1906 legislation; stipulated in the legislation

of 1968 and 1971, and acknowledged by CaRT in the 2013 dredging contract.

40

128. As a final note on the subject, it should be remarked that CaRT had the opportunity to rebut argument on this very issue in the proceedings brought by them

last year against Mr Tony Dunkley [Claim No: A00NG769], in another instance of unlawful and inappropriate use of s.8 powers. Argument on the issue was contained

within paragraphs 124 to 128 of Mr Dunkleys Defence dated 28 July 2014. In that

instance CaRT chose to discontinue their action once having read that Defence. It

may be noted as pertinent that the same Enforcement Officer [Mr Stuart Garner] was the driving force in that case also. [Exhibit 11]

DISPROPORTIONALITY OF THE ACTION

Addressing Claim (b) -

Human Rights Act 1998

129. In this the year of its 900th anniversary, Magna Carta, often considered the

keystone document of the UKs governance, is receiving heightened attention. It is

appropriate therefore, to consider that elements of this document contain the seeds

of exactly such general concerns over the rights of the governed as have received

more particular attention in the Human Rights Act of 1998.

130. No matter that the original concerned the rights of the aristocracy rather than the

rights of the common people, the influence even of its purely symbolic character

helped formulate much of the common law and guide the drafting of statutes. This led

to Lord Dennings description of it as the greatest constitutional document of all

times the foundation of the freedom of the individual against the arbitrary authority

of the despot. It is this essential element, demanding what later European concepts

called the principle of proportionality in the application of law, that has informed the

41

European Convention on Human Rights, and prompted the UK adoption of that

Convention under the aegis of the 1998 Act.

131. That Lord Denning was right in so far as he considered Magna Carta a catalyst

for following legislation dealing with the rights of individual against their rulers, is well

illustrated by the 1276 Statute of Marlborough, three of its clauses remaining as live

today [supposing that the Law Commission recommendations have not been approved by Parliament by the time this reaches the Court].

132. Clause IV states: Moreover, Distresses shall be reasonable, and not too great;

and he that taketh great [or undue] and unreasonable Distresses, shall be grievously amerced for the Excess of such Distresses. [my bold]

133. This precocious statute [the very oldest remaining in force] limiting the application of powers, is a direct precursor to the modern 1998 legislation

particularly being aligned to the test of proportionality - and is binding in the instant

case.

134. The seizure of property engages Article 1 of The First Protocol of the

Convention rights to which this country is signatory.

From the Human Rights Act 1998, Schedule 1, Part II -

The First Protocol

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public

42

interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a

State to enforce such laws as it deems necessary to control the use of

property in accordance with the general interest or to secure the payment of

taxes or other contributions or penalties.

135. This case revolves around the alleged right of the authority to forcibly remove

property and hold it subject to release only on payment of costs entirely disproportionate to the value claimed owed.

136. It is not accepted that the relevant law [s.8 of the BWB Act 1983] does give this

as an available option to CaRT, for the purpose of securing the payment of taxes or

other contributions or penalties, but discussion on that point is dealt with under the

final point of claim.

137. At all times, however, when assessing the exercise of extraordinary power [s.8s being always acknowledged as draconian], the HRA demands that the remedy be appropriate and tailored to the mischief. In the words of the Statute of Marlborough:

reasonable and not too great; there is to be no Excess of such Distresses.

138. The question needs to be asked, in other words, does the remedy achieve the

legitimate purpose? - which inevitably entails the preliminary question what is that

purpose?. If the immediate purpose is ensuring that the offending boaters pay their

way, then s.8 does not accomplish that. If the statutorily authorised preliminary steps

to recover the monies owed have not been taken, then the s.8 process - far from

being employed as a 'last resort' - is an all too precipitate abuse of the law, being

43

unreasonable and excessive in its undue effect, creating greater penalties

[revenges] than the directly applicable law drafted for the purpose.

139. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,

Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test for determining proportionality. Lord Clyde observed, at p 80, that in determining

whether an act, rule or decision is arbitrary or excessive the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the

objective."

140. According to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca, the test of proportionality is generally acknowledged to comprise 4 stages:

there must be a legitimate aim for a measure

the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)

the measure must be necessary to achieve the aim, that there cannot be

any less onerous way of doing it

the measure must be reasonable, considering the competing interests of

different groups at hand.

141. Without prejudice to the primary claim that CaRT had no empowerment to require a pleasure boat certificate for a boat kept outside of the main navigable

channel and never using that channel, and without prejudice to the tertiary claim that

44

s.8 is inapplicable where the owner is known and in contact, it is nonetheless argued

that in applying the most severe sanction in their arsenal in this case, CaRT fail the

test of proportionality demanded by the Courts:

142. Judgment of the Court (Fifth Chamber) of 11 July 1989. - Hermann Schrder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau Case 265/87

3 . Both the right to property and the freedom to pursue a trade or profession

form part of the general principles of Community law whose observance is

ensured by the Court. However, those principles do not constitute unfettered

prerogatives but must be viewed in the light of their social function .

Consequently, the right to property and the freedom to pursue a trade or

profession may be restricted, particularly in the context of a common

organization of the market, provided that those restrictions in fact correspond

to objectives of general interest pursued by the Community and that they do not constitute, as regards the aim pursued, a disproportionate and

intolerable interference which infringes upon the very substance of the

rights thus guaranteed.

By virtue of the principle of proportionality, measures imposing financial

charges on economic operators are lawful provided that the measures are

appropriate and necessary for meeting the objectives legitimately pursued by the legislation in question. Of course when there is a choice

between several appropriate measures, the least onerous measure must

be used and the charges imposed must not be disproportionate to the

aims pursued . . . . . Consequently, the legality of a measure adopted in

that sphere can be affected only if the measure is manifestly inappropriate

having regard to the objective which the competent institution intends to pursue. [my bold]

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143. Professeur Jean-Marc Thouvenin - European Governance 2 : The Principle

of proportionality

A Origins of the principle

As a constitutional principle and as a general principle of administrative law,

the principle of proportionality requires each decision and measure to be

based on a fair assessment and balancing of interests, as well as on a

reasonable choice of means. In other words, any action undertaken must be

proportionate to its objective.

The principle of proportionality as a legal principle is derived from German

law. It is a legal safeguard against the unlimited use of legislative and

administrative powers and considered to be a part of a rule of common

sense, according to which an administrative authority may only act to

exactly the extent that is needed to achieve its objectives.

More specifically, the principle of proportionality means that any measure by a

public authority that affects a basic human right must be: appropriate in order

to achieve the objective, which is intended, necessary in order to achieve the objective, which is intended, i.e. there are no less severe means of achieving the objective, and reasonable, i.e. the person concerned can reasonably be expected to accept the measure in question . . .

144. The Outer Limits of European Union Law; edited by Catherine Barnard,

Okeoghene Odudu

The principle of proportionality is referred to in almost every case which

applies to a review of measures (well defined eg Case C-189/01 Jippes [2001] ECR 1-5689, paras 80-101; see also C-331/88 Fedesa and Others

46

[1990] ECR 1-4023). The ECJ has adopted a three-level test (levels two and three are often addressed together): first, measures may 'not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question'. Secondly, when there is

a choice between several appropriate measures recourse must be had

to the least onerous', and thirdly, the disadvantages caused must not be

disproportionate to the aims pursued'.

145. When the crucial test of choice between alternate appropriate measures is

applied, the actions of CaRT in this as in many such cases, becomes transparently

disproportionate. The standard presumption of the Courts that the relevant

waterways authority will act at all times appropriately, is now established to be

unjustified. HHJ Hildyard in Moore v British Waterways Board [2012] EWHC 182 (Ch) (10 February 2012):

. . . BWB did exercise its powers inappropriately . . .

146. The s.8 powers of removal of vessels were never designed as a punitive

measure against unlicensed boats; it was a power of last resort, to enable removal

of abandoned vessels in cases where the owners could not be found, and

applicable only when alternative measures failed to achieve the objective.

147. This was recognised by all parties including BW when discussing before

Parliament the proposed new measures of control during passage of the 1990 Bill.

This was highlighted by HHJ Hildyard in the above judgment:

Para 191 As previously noted, BWB has long accepted that the powers

afforded by section 8 to remove vessels are draconian and to be exercised

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as a last resort. In his submissions (both written and oral) the Claimant drew attention in this context to evidence given to a House of Lords Select

Committee when in 1991 the then British Waterways bill which eventually was

(with deletions and amendments) enacted in 1995 was under review. The person in BWB then responsible for the management of BWB in the North

East, when cross-examined in respect of his evidence that BWB needed

more comprehensive methods of controlling navigation and mooring,

considered that the use of section 8 was draconian; and that even in the case

of a licensed vessel "provided it was not causing an obstruction to

navigation it would be unreasonable for us to use it, even if we could." (I pause to record that BWB objected to the use of this material as an aid to construing the statutory provisions; but I am not using the material for that

purpose, but rather to demonstrate BWB's own factual acceptance as to the

nature and severity of their powers.) [my bold]

148. Even though HHJ Hildyard concluded that BW were entitled in the end, to

require removal of the boats in that case [overturned on appeal], BWs conduct came under criticism:

Para. 229 . . . I do consider that this incident, the failure within BWB to see

to it that all relevant personnel were properly informed of the Court

undertaking and the importance of it being observed to the letter, the failure to

offer me a proper explanation before I called for it, and the failure at the time

to deal with the Claimant's not unreasonable requests for an explanation, all

further suggest inappropriate haste and carelessness. BWB are given

draconian powers: and it is of particular importance that they should be,

and be seen to be, deliberate, transparent, fair and careful in

discharging their functions.

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149. Hence in his conclusions:

viii) However, in serving section 8 notices BWB failed to abide by its own procedures, and was in breach of legitimate expectations held by the

Claimant that in exercising a power admitted by BWB to be draconian and

to be used only as a last resort BWB would abide by such procedures;

150. The relevant objectives for implementation of the law involve the duty of the authority to manage the waterways in the interests of the countys economy and for

the benefit of all other users. Following the precepts of Lord Clyde as quoted earlier,

use of s.8 proceedings need to be examined as to their rational connection to the

legislative objective.

151. It will be seen that s.8 proceedings against navigable boats are to the detriment

of the economy rather than otherwise, and have no positive benefit protecting the

rights and interests of others. The greatest impact on others is of a purely admonitory

nature.

152. Without doubt, a non-paying customer is damaging the economy. The remedy is

to recover the money owed, as Section 5 of the BWA 1983 provides:

(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same, or to comply with

any requirement of the specified enactments upon compliance with which a

charge is payable, the Board may (without prejudice to any criminal proceedings to which that person may be liable) recover from him a sum equal to .

(a) the amount of the charge which is due or payable; or (b) where charges may be paid for periods of less than one year and the

49

Board have not accepted part payment of the charge, a sum equal to the

amount of the charge which is due or payable for one year; in the manner in

which the charge would be recoverable apart from this section.

(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge

may, in addition to dealing with him in any other way, order him to pay to the

Board any sum which the Board are empowered to recover under this

section.

153. So much for the generality what is the relevant offence?

154. Under the 1971 Act [as amended], there is a penalty for permitting a boat to be on a river waterway without lawful authority, of 50 and a daily charge of 5 per day

for all the time the offence continues from the time of summary conviction.

155. The relevant legislative objective, therefore, in respect of a vessel kept or used within the main navigable channel of the relevant river is provided for by those

statutory powers, which are designed to achieve precisely the recovery of sums

owed, adding in the financial penalty, plus the criminal conviction. Not only does this

appropriate legislation provide for the economic well-being; by providing, additionally

to the recovery of monies owed, a perfectly adequate admonitory function ensuring

proper management of the system for the well-being of other users, it achieves both

legitimate over-riding objectives.

156. Not only cannot the s.8 process achieve the first, nor provide the only tool for

public warning, this means of allegedly accomplishing the objectives will not only be far more than is necessary to accomplish the objective because there are less onerous ways of doing it, the chosen means will be as a consequence both

50

arbitrary and excessive. Application of s.8 under those circumstances, therefore,

violates both the HRA and the fourth clause of the Statute of Marlborough.

157. It is accepted that the authority has the right under law to secure the payment

of taxes or other contributions or penalties. But once again: s.8 proceedings were

not designed to achieve that objective, they were designed solely to free up space on the waterways so that their use is not impeded by boats that ought not to be there.

The payment of taxes etc can only be achieved through exercise of the s.5 power.

158. ALL of the legitimate purposes can be achieved through application of the more

appropriate legislation available to the authority. Most of those purposes CANNOT be

achieved through application of the s.8 procedure.

159. Ergo, the process in the circumstances is manifestly without reasonable

justification.

Extremity of measures taken

160. The situation is exacerbated when it is realised that CaRT have taken this step

of engendering tripled costs while recognising that their victim was in all probability in