Council defeats appeal by boat owner convicted of breaching mooring byelaws

The owner of a boat has lost an appeal over the validity of a council’s byelaws which made it a criminal offence to moor a boat against specified land for longer than the maximum period specified, the Administrative Court has ruled.

The byelaws were made under section 235 of the Local Government Act 1972 by the London Borough of Richmond.

The appellant, Christopher Akerman, the owner of the Longwood Lady, was convicted by District Judge (Magistrates Court) Barbara Barnes on 1 February 2016 of four breaches of the byelaws.

The council had alleged that on 13 March, 11 and 29 May, and 4 June 2015 the appellant moored or permitted the Longwood Lady, to be moored to land owned by it at Ham Lands, Ham, Richmond for longer than the maximum permitted period which, in the case of that location, was 1 hour in any 24 consecutive hours.

Byelaw 4 made it a criminal offence to so moor a boat against that land without the prior written consent of the respondent (the council) except "in cases of an emergency or other unavoidable cause".

Mr Akerman contended before the district judge and contended in the Administrative Court (Lord Justice Beaton and Mr Justice Nicol) that byelaw 4 was unlawful at common law because it was made for an improper purpose and was irrational.

It was submitted on the appellant’s behalf that the material generated by the consultation process showed that the basis for making the byelaws was anti-social behaviour but the byelaws did not address such behaviour and were such an excessive response to the evidence of that behaviour that they were ultra vires at common law.

It was also submitted that making the byelaws was a disproportionate infringement of the rights under article 8 of the European Convention on Human Rights and breached the appellant's rights.

Mr Akerman appealed against his conviction. The appeal was conducted by way of case stated.

Dismissing the appeal, Lord Justice Beatson concluded that:

1. The district judge neither erred nor was irrational in deciding that the byelaws were "good" law and were neither irrational or illegal. “By ‘good’ I take it that she meant ‘valid’ since we are concerned with legal validity rather than the issue of whether the byelaws are good or desirable in any other sense.”
2. He inclined to the view that: (a) the district judge erred in finding that a right under article 8 of the ECHR to respect for the home was not engaged in the circumstances of this case; but (b) the judge did not err on concluding that, if they were, the byelaws were a proportionate and necessary step for the respondent to take to ensure "good rule and government and the suppression of nuisance in the borough".
3. The district judge did not err in stating that evidence was not required of individual anti-social behaviour by the appellant in order to conclude that the byelaws were "good", i.e. "valid" law and that the prosecution against the appellant was properly brought.
4. It followed from his answers to questions 1-3 that the district judge's decision was not "Wednesbury unreasonable".

Mr Justice Nicol agreed.