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Post by NigelMoore on Nov 9, 2016 12:15:17 GMT
Probably overshadowed by international news, but it is worth noting the most recent CCJ yesterday, in the EA’s fight against Alistair Trotman. Some background can be read on this Local website: - www.friendsofhurstpark.org.uk/UnauthMooring.html Now I appreciate that there will be many boaters who will applaud the result, but there are very worrying overtones here. The press release sent to the Richmond Society last night read: NO LONG-TERM UNAUTHORISED MOORING ALLOWED ON THAMES
A landmark judgement today (8 November 2016) at Kingston County Court confirmed that the navigation licence fee payable by boat owners relates only to the right to pass along the River Thames, including anchoring or mooring for a reasonable time to facilitate passage. It gives no right to long term or permanent mooring.
Two cases of trespass were brought by the Environment Agency against Alastair Trotman, owner of the so-cal...led “Slumboat” currently moored just downstream of Molesey Lock and three other boats illegally moored upstream of Teddington Lock. In both cases the court granted possession orders to the Environment Agency as owner of the sites in question.
This means that Mr Trotman is obliged to move the vessels immediately. In the case of “Slumboat”, this is a barge with no engine and the judge ruled that for reasons of safety officers of the EA escort the defendant while it is removed, given the complexities of tides and currents. The logistics will be negotiated between the EA and Mr Trotman.
The original “Slumboat” summons related to trespass on land alongside houses in Hampton Court Crescent and the adjacent Octagon head office. Having been issued with the summons Mr Trotman pulled “Slumboat” downstream on 3 November to the lock entrance area and subsequently through the lock to its present position near the boat hire business. Last weekend he manhandled his supply vessels through the lock also.
In court the EA pointed out that this was a move of only some 100 metres and the judge allowed the reference on the possession notice to be altered to the present location.
Mr Trotman’s main defence was that the EA is not a freeholder and therefore cannot bring a case of trespass. He argued that public bodies do not have access to common law and only have the statutory powers they are given by the state. This was dismissed by the judge who said that Land Registry documents show the EA to have title absolute over the lands in question and have the same rights of protection from trespass as any other landowner.
The defendant also argued that to bring a case of trespass the EA must show that it requires the land back “for its exclusive possession” but again the judge ruled this irrelevant. She also dismissed the argument that the navigation licence gives a long-term right to moor.
Mr Trotman asked for leave to appeal the County Court’s judgement but this was refused. He was ordered to pay court costs for each case, amounting to £710 in all, to be paid by 29 November.
This is largely hyperbole of course – no CCJ can be a “Landmark Judgment”, as it is of persuasive value only, even amongst peer level courts – but the erosion of a basic principle of protection for the people against authorities created by Statute to govern them, is a worrying trend [if trend it is]. There can be no argument that there is no right under common law to anchor to the bed of a navigable river for any longer than circumstances might dictate as necessary [and the Thames Conservancy Acts specifically limited such rights to what might be deemed “reasonable”.] The legal question raised in the Trotman case is: what powers do the successors to the Thames Conservancy have, to enforce against mooring for longer than reasonable, in the bed of the river? The EA, in this instance, were not relying on statutory powers, they relied on the common law right of landowners [and there can be no dispute that for a natural person holding the ownership of a riverbed, they are entitled to bring action for trespass if their riverbed is interfered with, beyond what the public right allows.] Leaving aside the questionable esotericism of Mr Trotman’s argument as to ownership, the real point of law is whether a statutory body can exercise those common law rights in the absence of express grant from the Parliament that gave them birth. At this level, thankfully, the judge’s opinion is of little moment to anyone other than Mr Trotman – but if it goes higher up the judicial ladder, and the tenor of the day is for authoritarian enlargement of powers, then that bodes ill for all of us.
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Post by geo on Nov 9, 2016 13:12:38 GMT
One hopes that Trotman has the staying power to persuade the appeal court to hear an appeal. I know little about the statutes that govern EA. But I would guess the appeal would be that the EA cannot use common law.
My mind is asking what recourse do EA have to enforce the reasonable mooring time rule/statute. Now if it is a statute that suggests to my mind there should be an enforcement clause in the statutes.
Could be interesting if he gets heard.
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Post by NigelMoore on Nov 9, 2016 14:09:44 GMT
One hopes that Trotman has the staying power to persuade the appeal court to hear an appeal. I know little about the statutes that govern EA. But I would guess the appeal would be that the EA cannot use common law. My mind is asking what recourse do EA have to enforce the reasonable mooring time rule/statute. Now if it is a statute that suggests to my mind there should be an enforcement clause in the statutes. Could be interesting if he gets heard. There is definitely something in the statutes Geo; I was going through a lot of Alistair's stuff a year ago, but cannot recall the relevant bits, nor do I have the time just now to go looking. It is distinctly odd that the EA chose the tactic they did [but apparently they were not even invited to speak], and it is that principle re: common law powers that bothers me. It seems the new young judge gave little if any time to reviewing the case law and Parliamentary Memorandums on the subject. As usual in the County Courts, she simply assumed that the EA would know what they were entitled to do, and rubber-stamped that. If that IS an accurate portrayal of her adjudication, then Alistair has sufficient grounds in that alone - but as I have told him, he really needs to get a transcript of the proceedings, and get to review that in the cold light of day instead of relying on emotionally tinged memory. As usual though, I have advised on the escalation of costs liabilities should he go the appeal route and lose. I am also not that happy that such an important legal principle should go before the Courts without the right level of very competant representation. Regardless, of course, for Alistair it would just be fighting a delaying action; he really needs to keep the boats moving on a regular basis, which is all too difficult given what they are. It could buy him time to sort things out if he appealed then eventually dropped that when/if the boats were disposed of. I do not see what he has been doing as a viable long-term business model, apart from anything else!
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Post by Deleted on Nov 9, 2016 14:20:49 GMT
Not sure how much money he's made over the last 8 years or so but -if- he had gathered enough money to buy a riverside plot (this seems very likely I would say) and put the boats on there I wonder what the legal status would then be if he was the freeholder and wished to continue with this modified business model ?
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Post by NigelMoore on Nov 9, 2016 14:31:10 GMT
Not sure how much money he's made over the last 8 years or so but -if- he had gathered enough money to buy a riverside plot (this seems very likely I would say) and put the boats on there I wonder what the legal status would then be if he was the freeholder and wished to continue with this modified business model ? It would become a far more viable option, with freedom from EA attack - but would need to then comply with the Local Planning Authority regulations on business use and other planning considerations. Possible theoretically, but rather on a higher budget level than present operations.
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Post by Deleted on Nov 9, 2016 15:11:34 GMT
Which brings me to the obvious question - have any local planning authorities had anything to say about the present operations ?
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Post by NigelMoore on Nov 9, 2016 16:38:07 GMT
Which brings me to the obvious question - have any local planning authorities had anything to say about the present operations ? Bizarrely, I replied to this awhile back, and here it isn’t. That will teach me to type directly into the site boxes. I will never repeat the lucidity of a once lost reply, but the answer is ‘no’ – not in this immediate instance. The LPA’s were involved in previous proceedings; the Trotman boats were amongst those in both Kingston and Richmond, which aroused the ire of each of those authorities. However, it should be noted that planning issues per se did not enter that picture; the objection was not over the use to which boats were put, but the overstaying and hogging of moorings meant to be available for all visiting boats. The boats there were mooring to the bank owned by the Council. Richmond’s response to the situation was the textbook correct one: apply – with all due public consultation - for approval of a specific byelaw addressing the problem, with specific and appropriate remedies. It worked – and it worked lawfully. Did not take more than about a year, and the problem is solved from here on in.
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Post by peterboat on Nov 9, 2016 17:05:20 GMT
He could really do with powered vessels, then he could move easily maybe negating the problem with EA
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Post by Deleted on Nov 9, 2016 17:10:49 GMT
"Hogging of moorings meant to be available for all visiting boats" Yes I know the background but I was not aware that LBRUT had succeeded in making those moorings available to visiting boats. I thought (perhaps wrongly) that the mooring just upstream of teddington lock cut lay by (an area I have been familiar with since I was 13 in 1987) has now been declared "no mooring". If this is not the case then that's great and i will moor there next time I am passing as it is a pleasant mooring. but if it is the case then I don't think LBRUT have succeeded at all to be honest. River bank is an amenity. Boats moored for the night then moving on is an important part of that amenity. IMO
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Post by Deleted on Nov 9, 2016 17:14:18 GMT
He could really do with powered vessels, then he could move easily maybe negating the problem with EA Not sure if you have seen the boats but even with a motor its not going to be easy to move them. One of them is a motor barge (ex dutch water authority or something) but at least two are unpowered lighters. The idea is accommodation not cruising
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Post by NigelMoore on Nov 9, 2016 17:25:57 GMT
Yes I know the background but I was not aware that LBRUT had succeeded in making those moorings available to visiting boats. . . . Boats moored for the night then moving on is an important part of that amenity. Absolutely agree with your last. I cannot go looking it all up just now, but the Richmond Park banks have been designated 48 hour moorings I believe? A new offence committed every 24 hours if remaining after that. Say about £1,000/day penalty. When that byelaw was passed by the Secretary of State, it concentrated all the boaters’ minds wonderfully. They did try moving a few yards out into the river using scaffolding poles, but it was not a viable solution. It is awhile since I passed through there, whether by land or water; I don’t recall ever using the moorings myself. It would be interesting to hear from those who have, to discover whether the initiative has been successful in practice.
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Post by Deleted on Nov 9, 2016 18:29:15 GMT
I'd be very happy if I can overnight there next time I'm up that way that will be in 2017. Must say I thought mooring had been completely banned by Richmond. 48hr stops would be very good news.
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Post by Deleted on Nov 9, 2016 18:34:24 GMT
When you say Richmond park - does that have a river bank? I'm talking about Ham riverside which is just above Teddington Lock on the towing path side and is owned by London Borough of Richmond Upon Thames afaik ?
I think the teddington recreation ground on other bank is also LBRUT and that was badly squatted for a while - perhaps that comes under the new bye law. When I was a lad I lived near the rec and it was always no mooring there but started to become squatted late nineties or early noughties. If it comes under the same byelaw then it Mmight have gone from being no mooring to being 48hrs? Pretty sure its still no mooring though and the railing is a pain to climb over anyway.
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Post by Deleted on Nov 9, 2016 18:38:17 GMT
Last time I passed the Ham Riverside moorings at beginning of september it was empty and there were some fairly technical looking signs. We were not staying overnight but taking the tide to Brentford followed by Limehouse the next morning so I wasn't that bothered but being in spitting distance of the lock while avoiding the £7 a night fee in the lock cut is always welcome if I do need to stay the night !
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Post by tonyqj on Nov 9, 2016 19:00:08 GMT
Pretty much OT but I lived in Kingston as a lad between '62 and '66 and many days during school holidays and many weekends were spent 'helping' the lockie at Teddington. I got very fit spinning those big white wheels.
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