Without lawful authority? The houseboats strike again

People live in boats. In some cities, such as Cambridge and London, living in a houseboat may be an affordable way somewhere where house prices would otherwise make that impossible. On so slender thread as that we at nearly legal have reported a number of houseboat cases, even though the points in issue might seem to have more of a nautical than housing flavour.

Moore v British Waterways Board [2013] EWCA Civ 73 certainly falls into that category, but it may raise a much more fundamental issue: what does "without lawful authority" mean?

Mr Moore "had care of" a number of houseboats, all occupied as homes, that were permanently moored on the banks of a tidal part of the Grand Union Canal. He lived in one, the Gilgie. The British Waterways Board (BWB), now the "Canal & River Trust", wanted to stop him doing so.

BWB's plan was to use section 8 of the British Waterways Act 1983 (a local act, 1983 c.ii, available as a PDF from the statute law database). This permitted (among other things) BWB to remove craft which were moored "without lawful authority". BWB said that Mr Moore had no lawful authority.

Both parties agreed that Mr Moore could exercise the rights of the riparian owner (i.e. the person who owned the river bank). The actual ownership of this stretch of river is complex. For a detailed discussion see Geronimo v Brentford Yacht and Boat Company [2008] EWHC 3140 (Ch) in which Mr Moore (then living on Platypus as far as I can tell) was also involved.

Mr Moore's straightforward claim was therefore that, as riparian owner, he had a right to moor his boat by the river bank. That right was firmly rejected by the Court of Appeal in a thorough analysis of the law by Lewison LJ. Although there was a public right of navigation over the Canal at that point, Mr Moore did not rely on that as giving him a right to moor. Not only was that point rejected in Moore v British Waterways Board [2010] EWCA Civ 42 (a rather odd appeal) but as he explained to us in a comment on Port of London Authority v Ashmore [2010] EWCA Civ 30 (an even odder appeal about a houseboat) he never contended for such a right.

This is where the appeal becomes very interesting. Lord Justice Mummery thought that in deciding whether the boat was moored "without lawful authority" the first instance judge should have asked whether Mr Moore was committing an actionable wrong in doing so, not whether he could point to a positive right. He cited Sir Robert Megarry V.-C in Metropolitan Police Commissioner [1979] 1 Ch 344 at 357C:

England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.

Mummery LJ reasoned as follows:

Although the common law does not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right does not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it, he was not doing it "without lawful authority" within s.8, because the law allows him to do what it did not prohibit at common law or by statute.

This is a highly significant decision. If it is followed it will have far-reaching consequences, the phrase "without lawful authority" being used in thousands of statutes. Although the obscure subject matter may mean little notice is taken of it.

I do wonder whether it is right. If the answer to "does X have lawful authority" is "yes" then one is surely entitled to ask "what lawful authority does X have?". The answer "X does not need lawful authority because England is a free country" does not seem, to me, to be a proper answer. Not needing lawful authority is surely distinct from having lawful authority. But if X cannot be said to have lawful authority, surely X is "without lawful authority"?

I confess that time constraints have prevented me from searching the case law to see if there are other decisions on this point. I would be interested what NL readers might have to offer.

Another impressive feature of the Court of Appeal's decision is its strong defence of oral advocacy. I cannot put it better than Mummery LJ:

Doubts are sometimes expressed about how often oral advocacy affects the actual outcome of appeals. Judicial experience affirms the value of oral hearings of appeals. Sometimes there are dazzling, even terrifying, displays of advocacy, but more often the hearing is a down-to-earth exercise in pro-active judicial engagement with the case: talking through unfamiliar, confusing or difficult factual and legal aspects; disentangling what matters from what does not matter; bringing order and understanding to the discussion of what matters by judicial thinking aloud to test legal propositions and to double-check facts; and ensuring as far as possible that, in conjunction with the pre-reading of the papers, the court has a good grasp of what the parties are getting at.

Quite so. Oral hearings can be essential. One of the first appeals I conducted as an advocate had been rejected twice on the papers (a curious feature of the particular forum was that one could remake paper applications indefinitely) but at the oral hearing the judge could not see anything in my opponent's arguments. What seemed unlikely on paper was treated as being obviously so in the oral hearing.

For this reason it really is important, especially with litigants in person, to allow oral advocacy and in particular to permit the court to extract from the litigant what exactly is their case.

Posted in Possession, Uncategorized and tagged .

10 Comments

  1. This is very bad news for the wheelclamping ban – something I had campaigned for for many years. It bans clamping without lawful authority. A number of clampers were apparently privately claiming that they still have lawful authority – as before the ban, clamping was lawful. This was widely seen as ridiculous, but may be correct if this case is followed.

    I believe there was previous precedent (Hirst and Agu v Chief Constable of West Yorkshire) that lawful authority was different from, and a higher standard than, lawful excuse, and required authorisation from some ‘authority’.

    • After further thought, the clamping ban should just about be effective still, as consent (the previous lawful basis) is expressly excluded in the Protection of Freedoms Act from counting as lawful authority. The clampers were arguing that there is another basis: distress damage feasant – but it’s far from clear this was ever a lawful basis in the first place.

  2. 1. Other decisions? How about DPP v Jones [1999] 2 WLR 625 – protest on the highway?
    2. The oral advocacy quote is very important at a time when the MoJ (in the JR consultation – sorry deadline passed now) are proposing not to allow oral permission hearings in certain circumstances;
    3. Finally, wonderful David and Goliath decision -well done, Mr Moore – but also like the way in which reams and reams of arguments were reduced to a simple (and very correct) principle. Sometimes the simple point can be lost in the vast complexities of the law ( boat law being a classic example of vast complexity – see Hildyard J’s comments in the earlier decision)

    • I’m not sure that DPP v Jones takes the point much further. The relevant case would appear to be the one discussed in Jones: Hirst v Chief Constable of West Yorkshire. I’m afraid that doesn’t really get very far either, as it turns more on lawful excuse than lawful authority – as Glidewell LJ said:

      “Some activities which commonly go on in the street are covered by statute, for instance, the holding of markets or street trading, and thus they are lawful activities because they are lawfully permitted within the meaning of the section. That is lawful authority. But many are not and the question thus is (to follow Lord Parker’s dictum): have the prosecution proved in such cases that the defendant was obstructing the highway without lawful excuse? That question is to be answered by deciding whether the activity in which the defendant was engaged was or was not a reasonable user of the highway.”

  3. The next offence that appears to be at risk of becoming unenforceable is using violence for securing entry under s. 6 Criminal Law Act 1977 – it depends on the entry being made ‘without lawful authority’.

    It surely cannot have been the intention of Parliament that a common law right to enter constitutes that authority?

    • Doesn’t s.6(2) deal with that anyway? “Subject to subsection (1A) above, The fact that a person has any interest in or right to possession or occupation of any premises shall not for the purposes of subsection (1) above constitute lawful authority for the use or threat of violence by him or anyone else for the purpose of securing his entry into those premises.”

      As an aside, leaving the uppercase “T” in “The” looks like some rather lazy amending by CJPOA 1994.

  4. I rather suspect that Mummery is a libertarian in the mould of JS Mill. Take for example the harm principle from ‘On Liberty”: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his body and mind, the individual is sovereign”

  5. Pingback: Riparian law | Law Bod Blog

  6. Re-reading this article, I am minded to respond to the question over what “lawful authority” entails.

    While Mummery LJ suggested correctly that the lawful authority in my case derives from the libertarian principle, I would suggest [as I did in my Skeleton for the main trial] that in all instances where the phrase is used in legislation, some specific identifiable statutory authority is alluded to.

    That specific statutory authority can be identified in the BW legislation as the power granted to BW under the 1971 Act [respecting scheduled river waterways] and under the 1976 Byelaws [respecting both river waterways and canals] to demand their authority [referred to as “relevant consent” in the 1995 Act] for any boat to be “left or moored” [“kept”] within those waterways.

    The later emphasis within proceedings on the mooring itself – rather than BW’s original argument [in agreement with my own position] that absence of the right to “keep OR use” a boat on their waterways [i.e. having no Boat licence or Certificate] was what rendered a mooring unlawful in the case of unlicensed boats – distracted from the identification of that applicable “lawful authority”.

    As Hildyard J had agreed that in the particular circumstances, the “relevant consent”/”lawful authority” was not required, that ought to have disposed of the matter.

    In short, there WAS a specific identifiable statutory “lawful authority” germane to s.8 of the 1983 Act, rather than merely the libertarian right.

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