Water power
From time to time, the courts are called upon to explain who holds the power to order people about, and why they have it. Rosalind English looks at a recent case involving the British Waterways Board.
In Roger Deakin’s classic celebration of swimming the wild waterways of Britain, his one grouse is against the officiousness and overweening behaviour of the government bodies in charge of this country’s network of streams and rivers. If Deakin had been alive today he would have applauded the dedication of Mr Moore, a scholarly litigant in person whose challenge to the British Waterways Board elicited from Hildyard J a massively detailed and scrupulous analysis of the source of the BWB’s powers.
In the case of Moore v British Waterways Board [2012] EWHC 182 (Ch) the appropriately-named Mr Moore’s primary claim was that the BWB simply lacked the power to issue notices of intended removal of his boats moored on the Grand Union Canal. His argument, that BWB’s actions were unlawful and unenforceable, required not only a “ trawl through numerous statutes affecting the GUC since the Act which authorised the construction of the canal, the Grand Junction Canal Act 1793″ , but a deep consideration of all the ancient pre-existing water rights that may or may not have been extinguished by that and later acts of parliament.
He also argued that even if the BWB had acted lawfully, the precipitate issuing of these notices without prior warning and in the absence of any real threat to safe navigation, was a disproportionate interference with his right to respect for home and private life under Article 8 of the European Convention on Human Rights.
This case goes to the root of the common law relationship between government and governed: the notion of “negative” rights, in other words that all behaviour is permitted, save that which is specifically prohibited by statute. This cornerstone of the unwritten constitution was the battleground of the human rights controversy long before the HRA was passed, and remains so particularly to those sceptical of the source of state’s power to dictate what is or is not allowed in civil society. The debate about positive versus negative rights without context is sterile and boring. On the other hand, a story can give it life, even though it is is not clearly configured in ways that the contestants acknowledge is important: after all, who of us are prepared to go to the stake about mooring rights? But Mr Moore’s somewhat recondite tussle with the waterways authority contains within it some elements of a great constitutional battle.
Background
The claimant lived on a boat moored at a wharf on a tidal stretch of the Great Union Canal, and he had another few boats moored nearby. BWB asserted that the vessels were moored without the necessary licences and served notices on the claimant under their broad powers in Section 8 of the British Waterways Act 1983. Mr Moore challenged these notices, saying that his vessel could only be said to be moored ”without lawful authority” within the meaning of the 1983 Act if it was committing one of the specific mooring offences created by the relevant legislation, and that a broad discretionary power was not a sufficient basis for the issue of the notices. In response, BWB contended that unless the claimant could establish a positive right to moor the regulatory regime it was entitled to remove any moored vessels from waters he owned.
Put more succinctly, the claimant submitted that to succeed BWB had to demonstrate parliamentary authority to demand boat licenses for use of vessels over the relevant part of the waterway, and that it could not. BWB, on the other hand, argued that to succeed the claimant had to demonstrate a right to moor vessels in the relevant part of the waterway; and that he could not.
The judgment
The ancient public right of navigation was a right of passage only, not a source of mooring rights, and therefore could not be relied upon by the claimant. The starting point was the law that was brought in to govern the construction of the Grand Union Canal in 1793. No part of the GUC Act made unlicensed use of the canal lawful, except for the bare passage of boats in tidal sections. Similarly venerable rights, such as the right to the use and enjoyment of a wharf, and any other rights incidental to ownership of land on the banks of a river (riparian rights) were equally limited. They did not include a riparian right permitting the mooring of a vessel, and therefore any right to use any part of the GUC was still subject to BWB’s regulatory and management powers in respect of the canal as an inland waterway. The 1793 Act therefore was of no avail to the claimant.
On the other hand, the judge acknowledged that subsequent legislation has not eroded the public right of navigation, nor any other right confirmed (rather than conferred) by the 1793 Act. This means that the underlying common law rights enjoyed by users of the waterways are not eliminated at a stroke by the time parliament decides to legislate.
In this case it was not helpful to the claimant because modern legislation had made it unlawful to moor a boat that was not genuinely used for navigation, without a houseboat certificate. In the judge’s view, the phrase “without lawful authority” in s.8(2) of the 1983 Act was broad enough to catch a moored vessel that did not have mooring rights. The claimant could not show any lawful entitlement to moor vessels permanently and he could show no “lawful authority” in the sense of a lawful right to use the canal in that way. The board had the power, on proper notice and subject to observance of proper process, to remove vessels moored without any mooring right, including the claimant’s.
However, such broad powers must be carried out with respect to people’s expectations that public authorities will act consistently. It is well established that a public authority with discretionary powers might generate a legitimate expectation as to the manner in which they would be exercised. BWB had exercised its Section 8 powers cautiously in the past, and only as a last resort; so, for example, where the boat owner was living abroad, the exercise of the power was usually preceded by a warning letter. That had not been done in the instant case and the board had thus breached the claimant’s legitimate expectation that BWB would follow its own procedures.
In the light of this, the judge’s “provisional view” was that “the purported use of the draconian power conferred by section 8, without prior warning and in the absence of any identified and real threat or obstruction to safe navigation, with the effect of depriving the Claimant of his home, is not proportionate.”
The fact that he had already concluded that the Claimant’s legitimate expectations have been breached is another factor that Hildyard J had in mind.
Comment
This case, like so many in the public law field, involves what the judge calls a “mismatch” in the parties’ conception of what the case involves and should determine: “The Claimant conceives the case as a vehicle for the determination of the rights, and in particular the restrictions on the rights, of BWB as the river authority, expressing the hope in his skeleton argument that this “may prove of value to the more general boating public.” BWB, apparently more simply and selectively, seeks to justify and establish the efficacy of the section 8 Notices that were served. Its focus appears more concentrated; but the underlying analysis required is, at least to my mind, substantially the same. The fact is that both ways of looking at the matter require a careful analysis of complex and confusing legislation: there is no alternative but to seek to understand the architecture, building bricks and ultimate effect of the legislation affecting the right of user and regulation of the GUC since 1793.”
Someone has to pay for this expensive analysis and to that extent, BWB’s protestations that it has been “dragged into legislative undergrowth it had no wish to trawl through” are justified. Nevertheless as we see, the dispute deserves careful consideration and publicity since it has developed into something of a test of the rights of users of what economists call “public goods” and their relevant statutory controllers.
On the specific matter of mooring rights, boat owners take note: despite his admiration of the claimant’s “tenacity and ingenuity”, the judge was not convinced that there is anything such as a permanent entitlement. If the dedicated claimant here could not overcome the “formidable hurdle of demonstrating any right of permanent mooring”, there is little chance for anyone with less time and scholastic enthusiasm to devote to such a project.
To be fair on Mr M, he recognised that trying to establish a case about establishing permanent mooring would be ”like shooting fish in a barrel”.
Rosalind English is an academic consultant at 1 Crown Office Row and co-editor of the set's UK Human Rights Blog, where this article first appeared.
