By Penny Schenk
I’ve been wanting to write a post about riparian law (relating to legal rights of land owners on the bank of a watercourse) for some time, and a recent case provides an interesting window (or should I say porthole?) into this area. Disclaimer: I’m the Law Library IT officer, not a lawyer or law librarian! I must also declare a personal interest in this topic: I live on a narrowboat on the River Thames in Oxford, by arrangement with the riparian land owner (with whom we are on good terms, I hasten to add). Additionally, management of the River Thames, currently entrusted to the Environment Agency, is scheduled to pass to the Canal and River Trust, formerly British Waterways, in 2015.
The story begins in 2008, and ends with the February 2013 Court of Appeal judgement in Moore v. British Waterways Board ( EWCA Civ 73) Throughout, the matter raises questions of riparian mooring rights and the public right of navigation.
At issue was the right of Mr. Moore to moor boats in the tidal reaches of the Grand Union Canal in Brentford, which includes the former River Brent. In 2008, Mr. Moore, who resided on a narrowboat, was involved in a legal action brought by property developers Geronimo and the British Waterways Board or BWB (now known as the Canal and River Trust). An account of that case, “the Geronimo action”, was published in the local press at the time.
Subsequently, British Waterways issued notices requiring a number of residential boats, including Mr. Moore’s, to move from their moorings in the same area. Mr. Moore brought a case against them contesting this: Moore v British Waterways Board  EWHC B12 (Ch) (12 March 2009) The judgement, by Mr. Martin Mann QC, sitting as a Deputy High Court Judge (Chancery Division), went against Mr. Moore, who represented himself.
In the judgement, Mr. Martin answered four questions:
(i) The rights concerning the waterway between Bax’s Mill and the River Thames, as described in the Grand Junction Canal Company Act of 1793, remain in force and unaffected by the provisions of the Transport Act 1968;
Answer: the private right of navigation granted by section 43 of the Act was repealed by the 1968 Act.
(ii) The Grand Union Canal extends downstream to the mouth of the River Brent into the River Thames;
(iii) The Defendant is the relevant statutory navigation authority for that element of the Grand Union Canal which now or formerly comprised tidal waters of the River Brent;
(iv) A public right of navigation includes an ancillary right to moor other than temporarily in the course of navigation.
There is some fascinating stuff here. The answer to question (ii) means that the formerly private Grand Junction (now Grand Union) Canal includes the canalised portion of the River Brent between it and the River Thames. This is important, because it gives jurisdiction over this *tidal waterway* to the British Waterways Board, as stated in question (iii).
Following the judgement, Mr. Moore then went to the Court of Appeal (Civil Division) in November 2009 to apply for leave to appeal. His case was heard by Lord Justice Mummery, Lady Justice Arden and Lord Justice Elias.
The crux of the matter is evident in the following two passages of their judgement:
The claims (of rights to moor without a BWB license) are resisted by BWB, in which the GUC has been vested since 1962. BWB does not rely in this case on private rights of ownership of, or of possession to the banks of the GUC, or on other common law rights. It asserts its position as statutory navigation authority controlling inland waterways and equipped with statutory regulatory and management powers, in particular the power to issues the notices given to Mr Moore in respect of his houseboats moored to the bank of the GUC and to the pontoon at The Nib without lawful authority.
In disputing the legal validity of the notices Mr Moore relies in particular on s43 of the 1793 Act, which provided that the free navigation of the river should not be impeded or hindered and that
” …it shall and may be lawful, to and for the owners, proprietors, possessors, and occupiers of the several houses, warehouses, wharfs, lands, tenements and grounds, on, along, or near adjoining to, the said River of Brent, to have the full, free, and uninterrupted use and enjoyment thereof, and the Navigation of the said canal, and also of the said River of Brent as heretofore had, used, and enjoyed, by them and their predecessors….”
The case and subsequent appeal – the case went to the Court of Appeal (Civil Division) – gives rise to some interesting and sometimes entertaining quotes. At one point, Lord Justice Mummery at the Court of Appeal declares that, in his judgement of February 16, 2012, the Hon Mr Justice Hildyard had “illegitimised, at a stroke, every bankside mooring in the UK inland waterways, even though not in breach of any BWB regulation on mooring.”
Interestingly, in the final analysis, Mr. Moore won his case not because of riparian rights, or right of navigation per se, but on a much broader point of English law. All England Reports puts it thus:
Accordingly, if what [Moore] had been doing was not a legal wrong, he had been entitled to do it. If he had been entitled to do it, he had not been doing it ‘without lawful authority’ within s 8 of the Act, because the law had allowed him to do what it did not prohibit at common law or by statute. In the instant case, in light of the defendant’s concessions, it had not been possible to identify what unlawful act the claimant had committed that had entitled the defendant to serve a notice under s 8 of the Act. Accordingly, [BWB] had had no power under s 8 of the Act to require the claimant to remove vessels, the mooring of which had been lawful, with the effect that the notices were invalid.
My own (cheeky) paraphrase of the judgement would be: OK, they can’t stop you from mooring here. But you had better behave yourself.
For further interesting reading on the issues raised in this case, see George Monbiot’s recent blog entry on the Guardian web site.