MOORE V BRITISH WATERWAYS BOARD

[2010] EWCA Civ 42, Court of Appeal (Civil Division), Lord Justice Mummery, Lady Justice Arden and Lord Justice Elias, 5 February 2010

River navigation - Right to moor a houseboat to or alongside the banks of a stretch of the Grand Union Canal - British Waterways legislation - Grand Junction Canal Company Act 1793 - Transport Act 1968

M had challenged the validity and enforceability of notices served on him by the British Waterways Board (BWB) in relation to five houseboats owned by him and moored to pontoons in the river, and a further one on which he lived (Platypus), which was moored to the bank. The notices required removal of the boats because they were moored without lawful authority, failing which they would be confiscated. M said that he was entitled to moor them by virtue of common law rights, basing his case notably on the preservation of pre-existing rights and/or the grant by the Grand Junction Canal Company Act 1793 of private, as well as public, rights of navigation and of private riparian, non-navigational rights, including the right to moor vessels to the banks of the GUC without objection from the owners of the banks. BWB relied not on any rights in or possession of the river, but on its position as statutory navigation authority quipped with statutory regulatory and management powers, including the power to issue notices. The status under the Transport Act 1968 of common law rights preserved by the 1793 Act was in dispute between the parties. The Deputy Judge at first instance had addressed several preliminary issues and in particular the question at issue on appeal had been answered in the following terms: "The issue of whether the rights concerning the waterway between Bax's Mill and the River Thames, as described in [the 1793 Act] remain in force and unaffected by the provisions of the Transport Act 1968 ("the 1968 Act") is answered (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far as is necessary) in the following terms: the private right of navigation granted by section 43 of the 1793 Act was repealed by the 1968 Act". M appealed. BWB accepted that something "had gone wrong" with the judge's response to this issue.