Moore v BWB, Appeal Skeleton against Mann Judgment on Prelim. Issues

7/29/2019 Moore v BWB, Appeal Skeleton against Mann Judgment on Prelim. Issues

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Case No: HC07C02340

APPEAL COURT REFERENCE: 2009/0731

NIGEL PETER MOORE

Appellant

vs

BRITISH WATERWAYS BOARD

Respondent

SKELETON ARGUMENT

in support of Grounds for Appeal

Introduction

1. The genesis of this action lay in the serving of section 8 notices on severalboats in my care. The relevant reasons given were that the boats were

unlicensed and/or on an unauthorised mooring.

2. In answer to both those reasons I wrote to British Waterways Board (BWB)noting that these moorings had been used by our business for years without

dispute and stating that all these boats are on a free public right of

navigation, moored against our private riparian property. As you in particular

(Mr Nigel Johnson, Legal Director) are aware, the enabling Act of 1793 took

particular care that the GJCC were to maintain and respect these rights along

the tidal section between the Thames and what is now the Boatmans

Institute.


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3. Mr Johnsons reply was that all rights of navigation on BW managedwaterways, whether public or private, arising under any local enactment

(which includes the Act of 1793 to which you refer) were abolished by section

105 of the Transport Act 1968. Section 115 of that Act defines the right of

navigation that is abolished as including any right to use or keep any vessel

or craft on the waterwayor canal. (Tab 6)

4. Following the issue of proceedings and exchange of pleadings, several otherrelated issues and argument arose, and it was suggested that an initial trial of

preliminary issues be heard.

5. By Order of Master Bragge four issues were to be determined in a trial ofpreliminary issues. Three had been proposed by BWB, and at Master Bragges

suggestion the initial issues raised in my Particulars of Claim were

encapsulated within a single statement as issue (i). The intent of that issue

which I had drafted was to have the two fundamental claims that I had

proposed to BWB - and which had been rejected by them determined

judicially prior to any hearing on further issues.

6. By agreement between the parties by the time of the hearing, two of the issueswere agreed, leaving two live issues before the court: -

(i) Whether the rights concerning the waterway between Baxs Mill andthe River Thames, as described in the Grand Junction Canal Company


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Act of 1793, remain in force and unaffected by the provisions of the

Transport Act 1968.

(iii) Whether 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.

7. In his Judgment of 12th February, Deputy Judge Mr Martin Mann QC (thejudge) correctly identified that the legality of the section 8 notices rests

primarily on the outcome of issue (i). (Tab 4, page 6, paragraph 15) However

he later concluded that strictly speaking issue (i) does not need to be

determined because a public right of navigation does not include an ancillary

right to moor other than temporarily in the course of navigation (issue (iv)).

(Tab 4, page 12, paragraph 33)

8. As a result of this opinion the judge has only said in his Order that issue (i) isanswered (in so far as is necessary) in the following terms: the private right of

navigation granted by section 43 of the 1793 Act was repealed by the 1968

Act.

9. Issue (iii) was answered Yes in favour of the Defendant and I am notseeking to appeal against that finding.

10. In the course of handing down the judgment, while I was struggling to come toterms with the procedural niceties of an appeal against the determination of


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issue (i), the judge helpfully said: I will give you leave of appeal if you persist

but I do not want you to ask for leave to appeal the answer for the private right

of navigation as repealed, if you think it has been repealed (Tab 5 page 19.

13-15, my underlining).

11. In the interval since then I clarified within my own mind the distinctionsbetween true and false in the answer to issue (i), and how to approach the

appeal, which I hope to present below.

12. I take issue with the judge over his conclusion that issue (i) does not need to bedetermined - and it has not been determined in any sense that is relevant to the

positions taken by the parties involved -

(a)The issue lay before him to be determined.

(b)He recognised that the legality of the section 8 notices restedprimarily upon determination of the issue.

(c)The two fundamental pillars of my Claim rest upon determinationof the issue, and the matter ought not to be brushed aside as

irrelevant.

(d)In the course of his judgment and in the debate on handing down,the judge acknowledged that I was correct on those two


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fundamental questions and he ought to have said so by way of

determining them.

(e)Suggesting that determining the issues would not assist me isneither correct nor relevant to whether they should be determined.

(f) The judges conclusion that a stated determination of those issueswould not avail me was based on a faulty understanding of

extraneous issues that were properly the subject of the future

main trial.

13. I take issue likewise with the judges stated reason . . . because a public rightof navigation does not include an ancillary right to moor other than

temporarily in the course of navigation (issue (iv)) This ignores the reason

why I claimed the public right of navigation to be relevant, (Tab11, page 5,

paragraph 18; Tab 20, paragraph 2.3.5) and ignores the fact that I myself had

argued by reference to case law that private mooring rights could not be

considered in law as an ancillary right of the public right of navigation. (Tab

11, page 98, paragraph 320; Tab 13, pages 44-45; Tab 18, page 6, paragraph

37; Tab 21, page 123). The judge in this instance has evidently allowed

himself to be led astray by BWBs straw-man argument, which has absolutely

nothing whatsoever to do with my case and which cannot possibly justify

refusal to determine the issue as requested.


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14. I submit that the Order must properly address the issue as drafted. That shouldeither be as an affirmation of the proposition as a whole, or if the view was

taken that any element should be answered in the negative, then all the

elements should be identified with answers whether positive or negative

addressing each of those elements.

15. As the Order presently stands, with no reference to my core issues, nor withreference to other important issues, the result is an acute injustice in that no

avenue has been left open for appeal on those elements which could be

considered as found against me, nor has there been usable vindication of those

elements which could be considered as found for me.

16. The Order as it stands, while ignoring the core issues upon which the case wasfounded, is drafted on a false assumption that the single point that was

incorporated was a finding against me and so perpetrates an injustice on the

question of costs.

17. The Order as to issue (i) stating that which the judge regarded as all that wasnecessary, is wrong in any event and needs of itself to be re-drafted. Strictly

speaking the Order is neutral in effect as I have not relied on any private rights

of navigation in my case (nor have even BWB suggested that I have) and such

a finding can have no effect upon the continued existence of the described pre-

existing rights. There are, however, several reasons why this Order needs

varying:


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(a)As an unqualified statement it is plainly wrong &/or misleading.By the plain wording of section 43 and by the acknowledgement

of the judge in the course of his analysis, there were private rights

of navigation that pre-existed and were not replaced. Those could

only be affirmed by the Transport Act 1968.

(b)The stated rights referred to in the Order are not rights asdescribed by the 1793 Act. They are supposed rights construed by

implication as being essential supplemental or parallel private

rights (paragraph 24 last sentence) and which, by the judges own

explanation, arose only from what he perceived to be a - need

to extend the navigation rights already in existence to newly

canalised sections (paragraph 23 last sentence, my underlining).

(c)Even as qualified by reference to the explanation above, thestatement is misleading and inaccurate. It ignores the

acknowledged pre-existing private rights over the river Brent as

pertained to both natural and modified courses at the time of the

Act as stated above, even if additional rights were granted,

these could not render the existing rights liable to abolition under

the Transport Act 1968; additionally, the alleged need is absent

for so long as public rights of navigation continued to obtain over

the navigation (as the judge acknowledges), these rights

automatically extended to any new cuts. (This was established in

the case of Regina vs Betts to which the judge was referred


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during the hearing. Refer also to my Reply & Defence to

Counterclaim, Tab 9, page 16, 17, paragraph 29, sub-paragraph

(iii). At the time of the 1793 Act the river had even then been

subjected to course alterations over the centuries while remaining

a public navigable river. Exhibit 1 to my 2nd

Witness Statement

illustrates this, Tab 22). I submit that it is against all common

sense to suppose that members of the public who enjoyed

additional rights to those of the general public, could be thereby

barred from exercising the public right unless supplemental

private rights were granted to them.

(d)The reasons adduced for considering this finding as contra to myposition are erroneous. Nowhere within my Statements or

argument can there be found any reliance upon private rights of

navigation in support of any position that I have taken.

18. As the motivations, factual understandings and underlying arguments for thedecision taken both as to the wording of the Order in Paragraph 1(i) and in

Paragraph 4 are revealed within the body of the judgment, and in the following

debate, it is necessary to consider those in order.

The judgment

19. Paragraph 1 opens the judgment with errors of fact. In the first place, byomission, in that the action was not purely about mooring rights, but was


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equally about the right to keep and use a boat on the water a completely

independent and separate right (covered by the public right of navigation) that

the judge appears to have overlooked throughout the judgment. The section 8

notices upon which the action lies, had but two applicable grounds under the

circumstances: that of the boats being unlicensed, and that of the boats being

on unauthorised moorings. Only the latter has been observed and considered

by the judge, leading to a skewed assessment of the issues and an inability to

recognise the importance and relevance to my case of the public right of

navigation.

20. By contrast, BWB understand the implications of a public right of navigationto such an extent that they have devoted most of their argument to rebutting its

existence in the first place, and additionally diverting attention away to an

entirely irrelevant aspect of it. (Refer back to Tab1)

21. The site of the moorings has likewise been misunderstood by the judge. Heidentifies the action as concerning mooring rights alongside the bank of the

river at a point where the true legal ownership of the bank is in question .

This misunderstanding has contributed markedly to his subsequent flawed

appraisals:

(i) subsequent deliberations by the judge based on this assumptionconcluded that as neither BYBC nor I could be held to own the bank,

no riparian rights could be exercised, so that the whole issue of those


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riparian rights was of no assistance to my case. This is both wrong and

immaterial

(a) the riparian rights attached to the lands alongside or nearby theriver Brent applied to all users of those lands, inclusive of

owners, proprietors, possessors and occupiers (my

underlining).

(b)Consequently neither I nor BYBC need to own the land in orderto be in a position to exercise those rights, and only the true

owner could be in a position to deny occupation &/or possession.

(c) It was common ground in the land ownership case referred to(Geronimo & BWB vs BYB) that BWB were not the

documentary title holders of the Bank. That is the only

determination within that judgment that is germane to this case

(Tab 23).

(ii) All but one of the boats at the time of the section 8 notices (and twocurrently) were moored entirely to land that was registered property in

Title No: AGL 12428, while the single exception was partially moored

to the Bank and partly to AGL 12428 (Tab 24). BWB has no claim to

this registered land and has not attempted to assert any. The ownership

of this land was in dispute between BYBC and Geronimo prior to issue

of the section 8 notices, but was since compromised by mutual


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agreement. That agreement continues to assure me of an unchallenged

right to moor the remaining vessels to that bank - as it further

establishes that there had been no objection to the mooring of the

relevant vessels at the time of issue of the section 8 notices.

(iii) As I had had occasion in the course of the hearing to remind the judge,the issue of whether I, (as an individual with no claim to personal

ownership of any of the land) had any status to exercise the rights

attached to occupation of the land, was not up before him for

determination anyway; the issue before him was simply the continued

existence of those riparian rights. The judge has failed to either

comprehend or accept this.

(iv) Paragraph 7 of the judgment reinforces the extent of the judgesmisapprehension with the attachment of a map to show the location of

the relevant boats at the time of the notices, with the assertion that

these related to the Blue Land of the land ownership case. As

clarified above, this is simply incorrect.

(v) Paragraph 8 of the judgment acknowledges the occupation andpossession of the Bank (the riverside portion of the Blue Land) by

BYBC while refuting the idea that it could thereby exercise any private

rights attached to the land. That is in clear contradiction to the terms of

the 1793 Act regarding mere occupiers and possessors, while

contradicting his own findings that rights attached to the land for the


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benefit of successors in title. This is demonstrated by his words in

paragraph 26 (page 10) - the sole qualification to claim the benefit

being ownership or occupation of qualifying property (my

underlining). The burden of the paragraph is an emphatic rejection of

BWBs argument that the riparian rights described in section 43 of the

1793 Act had reference solely to those persons who were owners at the

time of passing of the Act or by completion of the works.

22. Paragraph 8 is likewise incorrect is claiming that my alleged inability to assertthat I have any rights at all apart from the public right of navigation. . . is

common ground. This is absolutely false and is contradicted by the extensive

argumentation and proffering of evidence in my Claim; Argument, and

Witness Statements.

23. Paragraph 9 asserts that only BYBC could, prima facie assert any riparianrights attached to the Bank. As stated above, that is clearly wrong, while it

continues to labour under the misapprehension that the locus was principally

related to the Bank rather than to the adjacent bank comprised in AGL

12428.

24. Paragraph 15, final sentence is incorrect in asserting that issue (iv) (whether apublic right of navigation included an ancillary right to moor other than

temporarily in the course of navigation), was not agreed. Apart from the

repeatedly re-iterated point that I refused to take issue on the point anyway (as

it was irrelevant to my position), this was a straightforward straw-man


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argument that only BWB had said would be necessary for me to assert (in the

face of my adamant assertion to the contrary). My position had been made

abundantly clear; while the BWB position as drafted in submission on the first

day of trial had been couched in the same terms as I had employed in my final

Statement (i.e. that the length of time that could be considered reasonable for a

boat to be moored ancillary to the public right of navigation depended entirely

upon the individual circumstances) and I confirmed my complete agreement

with that at the commencement of the hearing. It is regrettable that the judge

has seemed incapable of grasping the nature of the pleadings in this respect.

25. The judges failure to recognise my position in this respect is illustrated by thefollowing paragraphs 16-18, which are completely beside the point. The case

law referred to are cases concerning the establishment of permanent moorings

in riverbeds; this being, as the judge had recognised in his first paragraph, not

the case in the present instance.

26. Paragraph 19 is correct in acknowledging that I had not in fact made anyassertions as to the nature of the boats mooring at the time of the notices. It is

further correct in stating that the boats were moored (not alongside the Bank as

he states [see my paragraph 13] but - ) outwith the public right of

navigation. It is regrettable that the judge appears not to have realised or

embraced the fact that this was exactly the position that I had asserted from the

beginning and which I had supported with case law (my paragraph 12 above).

It appears evident from this paragraph and the judges subsequent analysis that


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he considered this to be a finding against me, rendering, moreover, in his

opinion, determination of issue (i) unnecessary! (his paragraph 33).

27. Paragraph 20 continues in the vein of seemingly gratuitous misunderstandingof pleadings that the judge admitted at the start of the hearing that he had not

read. It is simply wrong that riparian rights could not assist me, so long as

those rights pertained to land in the ownership of any party other than BWB

themselves. It is even more extraordinary that the judge could state that I was

not interested simply in establishing rights in that character. The pleadings

and Statements give the direct lie to that assertion. (Reply & Defence, Tab 9,

pages 10-12; Witness Statement, Tab 11, pages 9-15; Tab 26).

28. The following paragraphs of the judgement are quotations concerning thenature of riparian rights under various circumstances. It is not immediately

apparent what the purpose of the judge was in quoting these commentaries.

29. Quotation 2.03 notes that private rights on both tidal and non-tidal watersmay be subject to public rights of navigation. That is perfectly in tune with

my own argumentation.

30. Quotation 2.09 refers solely to those instances where the river is a publicnavigable river, the riverbed of which is not owned by the riparian landowner.

This is usual, but the quote is inapplicable to those instances where the public

navigable rivers bed is in private ownership (as, notably, in the Hedsor Water

case in Rowlands vs The Environment Agency). The present instance also,


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arguably shares the same characteristics of the Hedsor Waters. The quotation

is equally inapplicable in that the judge had already recognised in his opening

sentences that my case was not concerned with moorings in the riverbed. The

purpose of the quote is therefore impenetrable as regards this case, except

insofar as it seems to be establishing a supposed pattern of findings against my

position as erroneously perceived.

31. Paragraph 21 sensibly suggests as a starting point an identification of thepertinent rights in the 1793 Act. It perhaps less sensibly suggests identifying

those rights which were created or conferred rather than those rights which

were described. (Although if any conferred rights were described, those would

naturally be pertinent.)

32. The judges analysis of section 43 of the 1793 Act is faulty.

(i) sub-paragraph 22.(i) is exactly right except in so far as it states that itwas common ground that a public right of navigation existed in the

tidal reaches. There is nowhere within any of BWBs pleadings where

that proposition had been agreed and the whole basis of BWBs

initial response to that assertion (implicit in the claims made by BWBs

Legal Director that the TA 1968 had abolished them), was the position

that all navigation rights had been conferred not confirmed by the 1793

Act. Considerable research and consequent evidence had to be adduced

to establish the pre-existent nature of the public navigation rights

contrary to the position of BWBs Mr Johnson. (Refer to Tab 6).


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(ii) Sub-paragraph 22.(ii) is exactly right.

(iii) Sub-paragraph 22.(iii) is a gratuitous imposition of a desired resultupon a section which described nothing of the sort. Also -

(a)The statement omits the fact that rights relating to the inhabitantsof New Brentford were more extensive than those relating merely

to navigation. They related to all uses of the land, buildings and

wharves. The section guaranteed the full, free, and

uninterrupted use and enjoyment of the several houses,

warehouses, wharfs, lands, tenements, and grounds, on, along, or

near adjoining to, the said river of Brent 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.

(b)The varying riparian rights attributable to the lands and peopleconcerned as described in the 1793 Act are identified in detail in

my Pleadings (refer paragraph 28 above). Importantly, those

rights naturally included the rights of mooring to and using

wharves, which was a private right outwith the navigation rights.

(Tab 26). This formed the second major element of my Claim,

and failing to recognise this when analysing the rights described

is wrongly prejudicial to my case.


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(c)The non-navigation and navigation rights referred to in section 43are all described as pertaining to the owners, proprietors,

possessors and occupiers. . . and their predecessors. The

judges own analysis in the following paragraph 23 rejected

BWBs front-line argument that public navigation rights had been

replaced with conferred rights. All rights described in that case

then, including the rights of navigation [to include by definition

of the TA 1968 rights to keep and use a vessel] necessarily were

either confirmed by the TA 1968 or fell outside of its jurisdiction.

I refer to my paragraph 16, (a)-(c) above. Having recognised this,

the judge ought to have included these described rights within the

relevant paragraph.

(d)If, as the judge correctly observed in his paragraph 23, thedescribed pre-existing rights were not replaced, then it is plainly

wrong in analysing the section, to replace reference to the pre-

existing rights of navigation entirely with supposedly granted

rights.

(e) It is further evident from the judges commentary that he believedthat new rights would be needed over and along new cuts but

not necessarily over and along untransformed reaches. Quite

apart from the fact that public rights of navigation were in place

which the judge agreed remained in place (so that no new rights

were needed as per my paragraph 16 (c)), this is a recognition that


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existing rights were described, which, even on the judges

understanding, would be retained along the river course as then

positioned and that the granted rights would only relate to the

new cuts. The areas concerned are best illustrated by the attached

map (Tab 27).

(f) It is difficult to imagine how the resultant complex picture couldbe subsumed into a statement that recognises only the grant of

navigation rights to the owners and occupiers of adjoining and

neighbouring property (my underlining).

(g)The judges sub-paragraph 22.(iii) is clearly contradicted by hisown commentaries as noted above, yet it stands as the only

reference he observes relating to private rights of navigation in

section 43 and is, moreover, the only point from all the discussion

relating to section 43 that he sees fit to incorporate into his Order.

It is clearly wrong to do so.

(iv) sub-paragraph 22.(iv) follows suit in omitting all reference in section43 to non-navigation rights in the context of charges. The judge has

only recognised the described freedom from charges as relating to the

exercise of private rights of navigation, and has moreover recognised

even that, as only applicable to his implied granted private rights of

navigation. There is simply nothing whatever in the section to justify

such a simplistic and restricted observation.


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(a) It is perfectly obvious once again from the judges own followingdiscussion, that he had recognised the descriptions of private

rights of navigation that existed and were retained over the then

course of the river. The described existing freedom from charges

related to these, as enjoyed by the relevant parties and their

predecessors. Supposing the judges suggested supplementary

grant of private navigation rights over the new cuts to be correct,

that could not mean that the described freedom from charges

could be said to relate only to those rights, over only those

sections.

(b)The freedom from any charges whatsoever relating to theexercise of any of the pre-existing rights whether public or

private in relation to the tidal river Brent was forbidden to the

GJCC; confirmed in the Charges Schedule of 1958 drawn up

under the auspices of the 1947 British Transport Commission

Act; further confirmed by section 43 of the Transport Act 1962

and remains on the statutes to the present day as amended as late

as 2005 (Tab 28).

(c)There is no foundation for declining to acknowledge thedescribed non-navigational rights which had likewise always

been free of any charges. It is probably appropriate to explain

here in the context of non-navigational tolls that tolls traverse


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were sometimes applied to wharves on improved navigations by

Parliamentary edict, even where tolls thorough might be

forbidden. Tolls traverse related to wharfage charges for

transhipment of cargoes. Tolls thorough, on the other hand,

relate to charges for vessels to navigate along the river and/or

could relate to the amount of cargo actually carried by vessels

neither these nor any other charges were permitted to the GJCC

(despite approved improvements to the existing navigation)

which the judge has failed to acknowledge. (Tab 11, page 32,

paragraph 89; Tab 29)

(d)There exist no grounds for the judges comment that section 43was exonerating [the grantees of the supplementary navigation

rights] from all or some of the charges which might otherwise

be imposed by the GJCC (my underlining). Applicable outside

the narrow confines ofgrantees of such navigation rights, the

freedom described was from liability to the payment of any tolls,

rates, or duties, whatsoever, upon account of, and for any goods,

wares, and merchandises whatsoever, carried upon the said

canal, or upon the said river Brent, or upon account of any

barges, or other vessels navigating the said canal, or the said

river of Brent (my underlining).

(e)Sub-paragraph 22.(iv) also fails to recognise within its topic thatthe public right of navigation was likewise described in section


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43 as free; further, that any vessels carrying cargo to and from the

Thames and the tidal river Brent (but not proceeding to or from

the canal above the Gauging Lock) need pay not even the City of

London toll quite independently of who might own or employ

those vessels.

(f) As demonstrated in exhibits to my Witness Statements, BWBthemselves, outside of these proceedings, recognise the toll-free

status of the river Brent in this respect (Tab 25, page 66).

33. The inconsistency of the judges paragraph 22 with both the section 43 itanalyses, and with the judges own subsequent commentaries, is a serious

failing that has found its way into the judgment objected to.

34. It is pertinent to comment at this juncture that insofar as freedom from chargesrelated to private rights of navigation which did pre-exist, then the judges

later assertions (during debate at handing down) that the exemption died

with the right, cannot apply to those pre-existent rights that had not died.

35. In paragraph 24 the judge correctly, I believe, dismisses the BWB argumentthat section 43 actually extinguished the public right of navigation. It is

incomprehensible therefore (to me) how he could later say that BWB had not

disagreed with its continued existence.


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36. The plain effect of the judges paragraph 25 is nonetheless clear-cut inasserting that the pre-existing public right of navigation was not

extinguished as a result of canalisation. As a consequence the Transport

Act 1968 could only confirm its continued existence and the judge was, I

believe, bound to have incorporated that essential finding into his Order

as an affirmation of one of the two principal foundations of my case.

37. With respect to the rights described as pertaining to the nearby properties, thejudge in paragraph 26 has again, correctly in my opinion, refuted BWBs

argument that these benefits only applied to owners of those properties at the

time; he has properly confirmed that these applied to all successors in title

whether owners or occupiers. Where I must emphatically disagree with the

judge, is with his opinion that the question is unimportant. This again, forms

the other half of the two foundations of my case; the immediately relevant

right being that of a wharf owner to moor boats to his wharf.

38. In the context of the effect of the TA 1968, the pre-existence or otherwise ofthis right is irrelevant of course, because it is not a right of navigation; it

therefore cannot be affected by the provisions of that Act in any case (which

the judge acknowledged in debate at handing down). Nonetheless it should be

noted that the right, as with all the riparian rights - inclusive of freedom from

any charges relating to them - were pre-existing common law rights confirmed

rather than conferred by the 1793 Act. Despite the works involved in

improvement of the navigation, nothing in the Act was to be construed as


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entitling the GJCC to interference with those rights or to the levying of any

charges whatsoever.

39. Regardless of the judges opinion that these riparian rights could notassist my case, he was, I believe, bound to have incorporated his

agreement with my Claim on this point also, into the Order.

40. The following paragraphs 27 to 32 expound the reasons why the judgeconsiders the point unimportant. As a rationale for declining to answer the

issue as directed, these need to be examined.

41. In essence, the judge has fastened upon the last-minute material produced byBWB on the first day of trial, and decided on the strength of his perception of

its import, that for any boat to be legitimately moored anywhere, it must have

a houseboat certificate specific to that site. This, forming as it does the

fundamental grounds for the judges decision to refrain from declaring his

acceptance of the continuation of the relevant rights as described in the 1793

Act, is the height of absurdity; not even BWB having openly advanced such a

ludicrous argument.

42. The tantalising hint offered by BWB as to the possibility of such an argumentrelating to houseboat licences was obviously effective, from the result

evidenced in the judgment. On a purely common-sense basis, however, it

ought, by anyone familiar with British Waterways legislation, to have been

rowed out of court as the self-evident nonsense that it is.


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43. BWB having produced this material only during the course of the hearing, noreactionary documentation could have been produced. With the Courts

permission, I believe that it would be appropriate and equitable for BWBs

true position regarding houseboat licences to be exhibited (Tab 30).

44. The judge concluded that the boats are alongside the Bank[sic] unlawfullyand so will remain until and unless they are issued with [houseboat]

certificates for that site (paragraph 32, last sentence). This is completely

wrong. It ought not, even if true, have influenced the judge to decline a

properly responsive determination of issue (i); given that it is wrong, the

decision to refrain from a declaration true to his findings is so much the more

appalling a miscarriage of justice.

(i) The judges assertion that the boats do all fall into the category ofhouseboats is valueless. By the definitions within the relevant Acts,

even wreckage from vessels not ever designed for human habitation

could fall within the defined category. This does not mean that any

such vessel needs a houseboat certificate rather than, for example, a

pleasure boat licence if applicable.

(ii) The relevant Acts referred to the necessity of vessels being registered whether as pleasure craft or as houseboats (commercial carrying

vessels falling outside the provisions of these particular Acts). Whether

one or the other was desired depended upon the owner.


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(iii) Ever since the 1971 and subsequent Acts were proclaimed, the issue ofhouseboats and their licensing regime have been bedevilled with

growing problems. The definitions have been argued over for decades

(still continuing in Parliament) and, as I said to the judge in the course

of the hearing, BWB themselves could never, in any event, authorise

unilaterally the residential use of a boat; neither are they any longer

desirous of exercising such powers as were granted to them, to license

houseboats according to the provisions of the various relevant Acts

referred to by the judge. The reverse is in fact the case; BWB are

seeking to eliminate houseboat certificates altogether, as providing too

much protection for the possessors of this rarity.

(iv) The simplest appraisal of the legal situation of moorings regardless ofwhether they comprise a sole dwelling or no, is achieved via reference

to the statistics. BWB consider that around 2,700 boats on their

network alone are more or less permanently lived on. In the region of

1,500 of those have legitimate, BWB approved moorings, whereas

less than 100 throughout the nation actually have houseboat

certificates. (Tab 3, pages 3 & 11). As I noted, even those are

considered by BWB to be problematic anomalies that they seek to

abolish as and when they can. Of a certainty, no more will ever be

issued.


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(v) If the judges understanding was held to be true, then the simple factwould remain that BWB would be thus found to have approved some

1,400 illegitimate moorings. This would be one of those all too rare

instances in which I would assess BWBs inevitable protestations at

such a charge to be perfectly justified.

(vi) The judges conclusion is, in any event, fatally flawed, as evidenced byreference to the latest major BWB legislation as comprised in the very

Act of 1995 to which he refers. Even with respect to the licensing of

those needing houseboat certificates (as an alternative to a pleasure

boat licence), BWB are enjoined within that Act to have due regard

to the desirability of refraining from interference with private rights

and established mooring practices and shall not prevent the mooring of

any vessel which could lawfully have been moored pursuant to any

such private right but for the exercise of such powers section 20.(1)

Section 20.(3) clarifies that In this section private rights of

mooring include any rights conferred by the Board or (in England or

Wales) enjoyed as an incident of an interest in land (which is where

the wharf-owners rights on the river Brent come into play).

(vii) The establishment of our pontoon for moorings was, besides, approvedby BWB many years ago, and has been used for varying numbers of

clients boats for varying periods of time (up to two years) depending

on whether they were simply waiting for appropriate tides to enter the

Dock, or having extended work done on them. This has necessarily


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been under the observation of BWB all that time, and there were no

possible grounds for a sudden and unannounced reversal of position by

them.

45. The question of mooring rights is perfectly well understood by BWB.

(i) Where they are owners of both canal (or riverbed) and adjacent land,they can themselves licence and charge for moorings to that bank.

(ii) Where they are owners of the canal or riverbed but not owners of thebank or access to it, then they are entitled to charge a lesser sum

(according to the Cambridge principle ideally) for what they term End

of Garden mooring rights.

(iii) Where they are simply in control of a river, the bed of which is not intheir ownership (as is the case with the river Brent), the power to

licence and charge for moorings rests not with them but with the

riparian owner (Tab 31).

46. Paragraph 32 is also wrong in stating that our boats are not exercising a publicright of navigation. As BWB themselves have claimed from the outset, rights

of navigation include (by definition of the TA1968), rights to keep and use a

boat. On those grounds, on all waters where public or private rights of

navigation have been abolished, BWB are entitled to issue and charge for a

licence to use those waters, regardless of whether or not the vessel concerned


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is navigating in the sense of moving from place to place. This licence is

separate and distinct from a mooring right and the holder of a pleasure boat

licence cannot rely upon that for any right to moor on a permanent basis

where BWB own the bed. Similarly, where a boat may be legitimately moored

to and over private property, it nonetheless, absent the existence of a public or

private right of navigation, will still need to possess a navigational licence to

be kept on that water even if it never moves from the mooring.

47. Where the judge is correct, is where he is in agreement with my case that thatthe right to moor a boat to a private wharf is outwith any public right of

navigation. As stated repeatedly throughout my case, reliance upon the public

right of navigation has reference to the right to keep and use a boat on the

relevant water, it has nothing to do with the exercise of the riparian right

attached to the wharf.

48. Paragraph 32 is also wrong in stating that the boats are not exercising anyriparian rights. As is common law, the right to moor boats to a wharf is an

inalienable right necessarily attached to that wharf. It is entirely irrelevant in

the present instance, whether I am entitled to exercise those rights (even

though, as I have argued, I was and am fully entitled to do so); the fact remains

that I am exercising those rights and only the paper title owner (which on their

own admission is not BWB so far as the Bank is concerned and which is

obviously not theirs so far as the registered title is concerned) could at some

future point attempt an action for trespass.


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49. I have submitted that even were the judge correct as to his assessment of myprospects of winning the final argument, that ought not to have prevented his

declaration of the findings in my favour if it availed me nothing then so be it,

I would still nonetheless have won the point presently at issue. When, as I

have presented above, the basis of that assessment is clearly wrong, the

injustice of the resulting refusal to make the appropriate declaration is only the

more apparent.

50. When, in the judges summary in paragraph 33, he claims that issue (i) doesnot need to be determined because a public right of navigation does not

include a right to moor other than temporarily, he is not merely being unjust,

he gives evidence of a total lack of understanding of the issues in following

BWBs red herring.

51. When the judge goes on to say all that needs to be said about issue (i)therefore is that the private right of navigation . . . was repealed he is

therefore completely wrong.

(i) For all the reasons stated above the issue should have been fullydetermined in my favour.

(ii) The private right of navigation has, besides, nothing whatever to dowith the arguments of either side and the judge has nowhere, that I can

see, indicated how it might be construed to do so.


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(iii) Even on the judges own showing, the admitted pre-existing privaterights over the original river course will not have been abolished

anyway.

The discussion on handing down

52. The transcript of the debate following handing down of the above judgment isrevealing in a useful way as further elucidation of the rationale for the

judgment (Tab 5).

53. In the first place it was difficult to get across a clear and full definition of myposition due to interruptions which I as a layman was not equipped to handle.

On page 2 lines 6-8 I attempted to put the case that the answers I had sought

from issue (i) related to the rights that were described, that were pre-existing,

not any right which might be construed by implication (as was the parallel

private right referred to by the judge). Later attempts to single out, for

example, the private riparian rights, were eventually successful.

54. What came out particularly in that opening discussion was that the judgedescribed the private right of navigation as the one right which it[the 1793

Act] creates, which has been dealt with by the Transport Act 1968 (page

2.26-3.1) Leaving aside the question as to whether any such private rights

were indeed created, this at least makes clear that anything else was not so

created, such that all other rights the ones actually described have not been

dealt with by the Transport Act 1968. As the judge himself put it the answer


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to the question raised by issue (i) is fairly dogmatic about the private right. It

says nothing about the public right and so it, by necessary implication, the

public right continues to subsist. (page 4.23-25)

55. I had attempted to convey to the judge that it was important that if it [thecourt] found that the rights, including predominantly the public right of

navigation, does still exist and those private rights, whether navigational or

riparian, as did exist at the time; and as described as pre-existing - (page

2.20-23) also survived the Transport Act 1968 (as Id hoped to continue), then

(likewise), the Court should so declare to that effect.

56. The judge did, at least, understand that I had wished to have these all(predominantly the public right of navigation and the riparian rights) made the

subject of his declaration, but claimed that it was not cast, as I understood it,

by the question, going on to suggest Maybe the question was deficient?

(page 3.12-13) I personally do not believe that the question was deficient but

that it was worded carefully to embrace all rights as were described by the

1793 Act.

57. The judge went on to say that if the question had been phrased appropriately towhat I had intended, the answer would have been: public rights not affected,

private right repealed, riparian rights not affected. (page 3.19-20) The

judges suggestion also, was that that might be something I could agree with

Mr Stoner (barrister for BWB), commenting he may not want to agree but

that is the result of the judgment (page 3.23). Some such wording was, of


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course, precisely what I was seeking, if references to specific rights were

considered necessary, and it is understandable that Mr Stoner did not wish to

agree. What I cannot understand is why, given the judges agreement with my

two fundamental issues (regardless of whether he thought they would assist

my case), he needed Mr Stoners agreement to make that declaration.

Order as to Costs

58. The next, obvious reason for pressing the judge on the issue was to do with thequestion of costs. He had obviously found in my favour on the points BWB

had argued against, so that those findings needed to be incorporated in the

declaration of the Order.

59. The judge said if during the further conduct of this proceeding, you will bearguing that the public right gives you the rights that you wish to claim and

assert, then this result does not affect you. If all you want to do in the further

conduct of these proceedings is to assert a private right, then this answer does

affect you because it has gone as a consequence of the 1968 Act. This was a

careless response in that the judge had already agreed that the riparian rights

were unaffected and those were private rights. Insofar as he referred (as must

be believed) to his construed supplemental private rights of navigation over the

new cuts, then of course those would not be rights I would attempt to assert

(why would I when there was no need?) On that score, the judges suggestion

that the result would not therefore affect me is correct except that I needed


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the positive answers to be made clear within the Order, affecting me positively

in a fully responsive answer to issue (i).

60. It is also, however, a fact that despite the above, the judge went on tounilaterally assume that I was reliant upon and wished to assert (to what end

remains obscure to me) those private rights of navigation.

61. As important as the need for the positive declaration in further proceedings,was the question of costs, for which I needed the judges assessment in my

favour.

62. The judges response was Yes, I follow that. But I do not think that Mr Stonerhas argued that the public right has gone.

63. This, I frankly confess, is incomprehensible to me. From the very first letterfrom Mr Johnson to the latest additional arguments submitted during the

hearing, BWB had been arguing against the continued existence of the public

right of navigation.

64. As to the rights attached to the lands alongside and nearby the river Brent,BWBs argued for their strictly temporary existence and those arguments

likewise were rejected by the judge. In the light of these findings which were

most strenuously argued against by BWB, there is no logical way that issue (i)

could possibly be considered as a finding in BWBs favour.


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65. The simplest encapsulation of the issues was in fact presented to the judge byMr Stoner (on page 8.14-17): When one looks at the particulars of the claim,

Mr Moores pleading is very clear, the original pleadings are plain. He says

there were certain public rights of navigation and riparian rights and they

have not been affected by the 1793 Act It is to be presumed that the last was a

slip of the tongue and that he meant to refer to the 1968 Act; otherwise there is

nothing to fault in this summary. The public right of navigation being found to

be not affected, and the riparian rights found to be not affected - despite

BWBs argument to the contrary on both counts - I submit that issue (i) was

found in my favour by implication as the judge phrased it, and ought to have

been clearly declared so that implication was unnecessary.

66. The discussion as to costs became somewhat surreal. The judge said itappears to me that you have not succeeded on the preliminary issues. You

have succeeded, in so far as it remained an issue in establishing that public

navigation rights continue to subsist. But, as I understood it, it was not being

contested that those public navigation rights did continue to subsist (my

underlining).I am totally at a loss as to how such an understanding could arise

following 18 months of dispute in pleadings and two days of argumentation at

the hearing - predominantly on these issues, as the judge acknowledged:

Issue (i) took up the bulk of the time. (page 15.26)

67. Mr Stoner submitted that there is no doubt that my client has won issues two,three and four (page 14.23-24). He noted that the riparian rights issue took

a very different form following the previous December judgment (page 15.2-


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3), and characterised the core point on public navigation rights as being the

right to permanent moorings (page 15.5-6). He claimed that the only relevant

right to be determined from the 1793 Act was the right which the judge

determined to have been abolished (page 15.7-9). There is only one point from

all that which was true that BWB had won issue (iii). The rest is false.

68. The judge however went along with most if not quite all of that, in saying: itappears to me the extent it was an issue whether the public right of navigation

continued to subsist notwithstanding the Transport Act 1968 that Mr Moore

has won on that point, but that he has lost on all the other points and issues

(page 15.22-25).

69. First of all it was wrong to say that BWB had won against me on issues (ii)and (iv) when I had agreed those issues and even advanced argument in their

favour. The only issue lost was issue (iii).

70. In respect of the question of riparian rights Mr Stoner was wrong to say thatthe previous land ownership case had altered the direction of that issue. The

only matter relevant to this action arising as a consequence of that former

action was the admission by BWB that they could claim no documentary title

to the Bank. The judge was similarly wrong to follow BWBs lead in that

respect when his own analysis acknowledged the rights of mere occupiers.

71. Mr Stoner was equally wrong to claim the public right of navigation point,the core point was, that it doesnt include a right to permanently moor (page


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15.5-6, my underlining). I believe that I have clarified the issue sufficiently in

my arguments above. I had rejected outright in the most emphatic words

socially acceptable, that I was in any way imaginable, claiming a mooring

right ancillary to the navigation right. The reverse was in fact the case, as

evidenced by the case law that I advanced on the point. The core point with

respect to the public right of navigation was the right to keep and use a boat on

the relevant stretch of water. The mooring issue had nothing to with public

rights of navigation as I have advanced ad nauseam.

72. Mr Stoner is wrong again to claim any possible relevance to the issue, of theconstrued supplemental private rights of navigation. There is no conceivable

way in which such supposed rights could be relied upon in support or rejection

of any partys position.

73. There was further comment by the judge referring to the bulk of time takenwith exploring the historical background, concluding (incomprehensibly to

me) which plainly involved an examination of how the private right impacted

on a public right and as to why there needed to be a private right in all the

circumstances (page 16.2-6). What the judge is talking about here is beyond

my understanding. He may be alluding to his construed, implied

supplementary private rights of navigation, but I could not hazard any guess

as to that. From my point of view there needed to be no consideration of

private rights of navigation. These were redundant in light of the public right

of navigation and irrelevant to the private wharf-owner rights.


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Summary

74. BWBs summary of my pleadings was accurate. BWB had argued againstthose pleadings. The judge found in my favour on those pleadings (regardless

of his opinion as to whether they would assist me in the end-game). It must

therefore be found that, despite BWBs arguments, the judgement was against

them on those points and in my favour on issue (i).

75. The end result is one issue each; the legality of the section 8 notices as thejudge recognised, primarily resting upon the outcome of mine, and the bulk of

the time having been spent on consideration of mine.

76. Leaving aside any confused elements within the judgment, the Order as toissue (i) ought, so far as was relevant and necessary from the matters discussed

within the judgment, be simply answered Yes.

77. If the judge had wished (as he obviously did!) to incorporate a perceivedexception, then the Order should most properly have read: Yes, except for

those supplemental private rights of navigation granted over the new cuts.

In considering the effect upon costs, this interpolated exception would need to

be recognised as an irrelevant issue to either party.

78. An even more acceptable alternative would be an elaboration upon the judgesown suggested potential formula posited by him as the result of the judgment.

The answer would then be: The public rights of navigation remain in force


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and are not affected by the Transport Act 1968; such supplemental private

rights of navigation as were granted over the new cuts were repealed by the

Transport Act 1968; the private riparian rights remain in force and are not

affected by the Transport Act 1968.I cannot see why BWBs agreement to

such variation was required in the face of the judges straightforward statement

that this was essentially the effect of his judgment.

79. Whichever of the above formula might be adopted by way of variation of theOrder paragraph 1(i), it must, I submit, be accepted that I have, even upon the

judges own findings, won against BWB on issue (i). Paragraph 4 of the Order

as to costs ought as a consequence to reflect the fact that the primary issue was

found in my favour while the secondary issue was found in BWBs favour.

Nigel Moore

Ridgeways Wharf

Brent Way

Brentford

Middlesex

TW8 8ES

Documents

Moore v BWB, Appeal Skeleton against Mann Judgment on Prelim. Issues