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.
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.
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.”
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.
For those interested to read further, my own argument on the constitutional/statutory interpretation point is found in my Skeleton Argument at paragraphs 3-5, and 298-362.
http://www.scribd.com/doc/121286488/Moore-v-BWB-Appeal-Skeleton-against-Hildyard-Judgment-of-Feb-2012
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”
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.
There are two issues discussed here.
1) Houseboats: In the UK, as in Ireland, evenrything is allowed unless it is prohibited. Also, Article 8 of the EUHRC:
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
There is a similar protection of the home in our constitution.
Quotes from EUHR cases:
Home is the physically defined place where private life and family life develops. It does not matter whether this space is the property of the affected person or even legally inhabited. The notion may also encompass business premises, temporarily inhabited spaces or caravans.
Interferences with one of the rights protected by Article 8 paragraph 1 ECHR can only be justified if they are necessary in a democratic society. This means that the interference has to respond to a pressing social need. The Court grants signatory states to the Convention a certain margin of appreciation when balancing the interests of the affected individual with the interest of society in the interference (Colon v The Netherlands, para 86 – 87;), for the national authorities are better positioned than an international court to assess the social developments and possible implications. However, the Court exercises control whether the contracting states have overstepped the boundaries of their margin of appreciation.
In a first step, it should be established whether there is an interference with the right to private life, familiy life, home or correspondence. To this end, it has to be established whether a certain measure, action or omission (see below) falls within the scope of one of the interests, which Art.8 para 1 protects, and whether it has some impact on the way in which the rights can be exercised, whether it limits the extend to which the right can be enjoyed.
Then it should be scrutinized whether this interference is justified pursuant to Art.8 para 2 ECHR.
When assessing whether a certain conduct on the part of the state falls within the scope of Art.8 ECHR, it should be borne in mind that Art. 8 – as the other articles of the Convention – entails positive obligations. Contracting states do not meet their obligation to secure the rights enshrined in the Convention (see Art. 1 ECHR) by simply refraining from interferences. They can also be obliged to actively employ certain measures with a view to ensuring that the Convention rights become effective. Measures states have to take to meet their positive obligations may include, (but are not limited to) passing legislation in order to ensure the enjoyment of rights guaranteed in the Convention, conducting effective investigations in cases of alleged violations of human rights or ensuring that factual conditions for exercising rights are met.
2) Clamping; EU law states that “where a number of appropriate measures are available, the least onerous must be used” This strongly indicated that if a ticket can be issued, that is what must be done, not clamping.
Well that was long, but I don’t think actually gets us anywhere.
I read with interest the case. I am grateful that someone spent so much of their time and effort to overcome seemingly incredible odds.
I live on a vessel on the Taw and Torridge estuary in North Devon . The vessel is moored just below mean high water and has been so for many years with no charge. An ajoining land owner is now claiming the foreshore as it appears to be unregistered. I have downloaded a copy of his deeds from land registry. They his land to be further inland from mean high water. I am now being asked for mooring fees and am been given contracts agreeing to conditions of use of my boat and foreshore. I have been informed the river was made free from fees relating to a charter dating back to the Spanish Armarda days because ships that sailed and fought in the battle were rewarded via freedom of the estuary.
Question ? Please can someone tell how I could possibly find the documents as no local museum or library seem to know anything about it although it is often spoken off.
Kind regards
Robert Thompson
Googling and serendipity are all that springs to mind. Search A2A [archive to archive] website using any and all combinations of potentially relevant terms [including people’s names].
Essentially, though, the burden of proof lies with this landowner to show how when and why, by virtue of ownership of his adjacent land [not even reaching the high water mark according to you], he has somehow historically rebutted the standard presumption that tidal waters and foreshore belong to the Crown. Any application that he makes to register such land HAS, by law, to be referred to the CEC [not that the Land Registry always take any notice of the law].
It would be worth lodging some sort of pre-emptive notice with the Land Registry that others [including the CEC and yourself] have interests in the foreshore at this location. If he cannot disprove Crown ownership, nothing else such as the Charter you are looking for will be relevant anyway.
Also make an enquiry via the WhatDoTheyKnow website, asking the CEC what their claim, if any, is to this foreshore – and alert them to the claim being made.
How long your boat has been there will also make a difference – not in terms of Adverse Possession, but – respecting the alleged landowner – in respect of acquired prescriptive rights. He cannot, after long acquiescence, commence a claim to rights of charging for an established use even IF he succeeds in claiming title.
Thank You Nigel,
I shall make good use of your suggestions and progress by researching all the databases that you kindly enlightened me to. I shall contact land registry and the crown estates. In times of austerity no other body seem remotely interested, but complain when events overtake them.
I feel more at ease now.
Rob Thompson
As someone being tested to the use of obvious wrongs and failure to address or acknowledge those wrongs, I would deeply like to contact Nigel Moore directly
Try my Hotmail email Diana –
nigelmoore5002