Water and watercourses – Riparian Right – Extent

Moore v British Waterways Board: Court of Appeal, Civil Division: 14 February 2013

The claimant owned four vessels which he moored on a stretch of the Grand Union Canal (the canal). The vessels were moored alongside riparian land which was in the possession or occupation of the claimant. The vessels were occupied as the sole residential home of the occupants, and accordingly, were moored otherwise than for a temporary purpose ancillary to, or in the process of, navigation of the canal.

The defendant was the statutory navigational authority for the canal. Its powers were derived from the British Waterways Acts, including the British Waterways Act 1983 (the 1983 act). Purporting to act as such authority for the management of the canal, the defendant served notices on the claimant, pursuant to section 8 of the act, demanding the removal of the vessels on the ground that they had been moored 'without lawful authority'. The claimant issued proceedings seeking a declaration that the notices had been unlawful and that he had a right to moor the vessels without the defendant's permission by reason of his riparian ownership.

The claimant submitted that riparian ownership had created a common-law right to moor permanently. At trial, the defendant accepted that the claimant had not obstructed the public right to navigation by other members of the public, had not committed any wrong to other riparian owners, and had not committed any wrong with regard to the bed of the canal which had a tidal element (the defendant's concession). However, the defendant submitted that it had the power to require the removal of the claimant's vessels since they had been moored without any common law right and without any permission granted, and had, therefore, been 'without lawful authority'. The judge held that a riparian owner had no entitlement, simply by reason of that riparian ownership, to moor a vessel alongside their riparian land otherwise than temporarily to facilitate access and for loading and unloading the vessel. Accordingly, the judge upheld the defendant's notices served under section 8 of the 1983 act and ordered the claimant to move the vessels. The claimant appealed.

The claimant submitted, inter alia, that the judge had erred in his findings in relation to the rights of a riparian owner and that he had wrongly construed section 8 of the act as authorising seizure or expulsion from the waterways of any vessel otherwise entitled to be on those waterways. The appeal would be allowed.

There was no common law riparian right to moor vessels permanently to the canal bank. The riparian right to moor was more circumscribed and fell short of a permanent mooring right (see [36], [47] of the judgment). Accordingly, the judge had correctly held that the claimant had no riparian right to moor the vessels permanently (see [36], [47], [67], [68] of the judgment).

Section 8 of the 1983 act did not confer a general statutory power to require the removal of vessels moored without permission. The power under section 8 of the act was exercisable only in a case where the vessel was there 'without lawful authority'. If the recipient of a notice served under section 8 of the act was doing nothing wrong in mooring his vessel alongside his part of the bank, then he had acted within the law, not contrary to it. If what he did was lawful, there was no power under section 8 of the act to compel him to remove his vessels from their moorings. There was no statutory power to compel removal of vessels from the canal when no wrong had been committed by the mooring of the vessels alongside the bank possessed or occupied by the vessel owner. Although the common law had not recognised a positive riparian right to moor alongside the bank permanently, the absence of that right had not necessarily connoted the commission of a wrong and the presence of an unlawful mooring (see [35], [40], [42] of the judgment).

Accordingly, if what the claimant 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 section 8 of the 1983 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 section 8 of the act. Accordingly, the defendant had had no power under section 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 (see [41], [42], [44], [46], [67], [68] of the judgment). Decision of Hildyard J [2012] AlL ER (D) 136 (Feb) reversed in part.

The claimant appeared in person; Christopher Stoner QC (instructed by Shoosmiths LLP) for the defendant.