Environment Agency v Trotman

Not only that, but even where/when they can legitimately levy a charge, they are supposed to enshrine the levels of those charges in a byelaw. Has anything more recent been passed in that respect?

The Thames Conservancy Act 1932, s.79 provides:



“(2) The right of navigation in this section described shall be deemed to include a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by byelaws determine and the Conservators shall make special regulations for the prevention of annoyance to any occupier of a riparian residence by reason of the loitering or delay of any house-boat or launch and for the prevention of the pollution of the Thames by the sewage of any house-boat or launch”.
 [my emphasis]


That all reads so clearly pertinent to the case. It would appear, however [without my checking it out just now], that neither the Conservators nor their successors have ever created the necessary byelaws to comply with this provision. If they had, then the solution to the Trotman situation would have been to prosecute for the offence. Instead, the EA relied in their argument on s.79(2) immediately following the section of that I have quoted, which reserved the rights of private riparian land owners to take their own actions for trespass!



[This section alone calls into question the legality of the Land Registration of the riverbed to the EA, but this is not the topic I want to pursue here and now. The clause above suffices to demonstrate in my opinion, that there was a clear distinction to be drawn between the common law rights of private owners, and the steps the Conservancy needed to take to acquire similar powers.]



The July EA Skeleton moved on from its February version. In reliance on their dubious registration of the riverbed, they claimed: “It would be illogical that the Claimant can own land [which they can of course], but cannot take any action in respect of protecting the land from trespass or adverse possession, for example.”



What that completely ignores, is that express provision for acquisition of any necessary powers was granted to them, regardless of whether they owned land or not!



The argument that I cannot now find in either of those Skeletons, which I am sure I read in some of their submissions [it may just have been within pre-trial correspondence between the PLA solicitors and Alistair], was, on the other hand, also very much to the point respecting already existing powers. I find it so strange why they did not use them:



Under the 1932 Act, for the purpose of conferring powers on the Conservators for regulating navigation etc, the provisions of the 1847 Harbours Act were incorporated “and shall apply to the Thames as if the Thames were a harbour by this Act authorised . . .”



Hence, s.82 provided that “The Conservators may from time to time by resolution under common seal authorise any one or more of their officers to assist any harbour-master in the exercise of his duties or may authorise any such officer to exercise alone all or any of the powers contained in the provisions of this Act relating to harbour-masters and those provisions shall be read as if the expression “harbour-master” wherever therein appearing included any officer so authorised.”



The powers involved, as instantly relevant, were:



s.83 "Any harbour-master may give directions for all or any of the following purposes (namely) :- For regulating the time and manner in which any vessel shall enter into go out of or lie in the Thames and the position mooring or unmooring placing or removing of any vessel within the Thames;”



s.84 provided for a daily fine of £5 for failure to comply with the harbour-master’s directions;



s.85 provided further that in continued breach “such harbour-master may cause such vessel to be moored unmoored place or removed according to the directions aforesaid and employ a sufficient number of persons for that purpose and the expenses thereby incurred shall be paid by such master [of the vessel] and may be recovered summarily as a civil debt or as a debt in any court of competent jurisdiction.”



Job done, I would have thought? I suspect that they did not wish to go that route because the onus would have been on them to find somewhere to move the boats to.
But they are going to have to oversee and escort the boats a bit further on now anyway.

It is a very sad reflection on the perceived imperatives and priorities of the navigation authorities. When the provisions are there for them to accomplish what is necessary lawfully, it is absurd to take any other course; it just has to derive from something other than acting only in pecuniary interests surely? There were none involved in moving Trotman on after all; if anything, they are going to lose out on his registration fees.

I had almost forgotten the YBW Forum; it is a long time since I posted there, last time was over the first Wingfield kerfuffle. Must go look again.



edit to add: looked just now and see that this thread has been linked to!

Yes - I put it on ybw Thames forum as someone recently asked about one of the boats being below (not above) Molesey Lock.

Thames Forum is currently very quiet but I saw no harm in linking to this thread as in the past people have been interested to know what's happening.

Yes I passed the boats several times this year and over the last 8 or so years I have noticed them as a very obvious feature of the lower part of the non tidal Thames.

The whole thing is an intriguing story. In a way I quite like the return to "Houseboating" on the River but these boats, while perhaps being a little reminiscent of the old days, were a bit too "shanty" in appearance and bound to draw attention.

I used to go down in my dinghy to Teddington Lock from Hampton Wick (where I lived) in the 80s very regularly and there was only one or two boats on the mooring above the lock cut.

Things have changed dramatically in the last 30 or so years. I would like to see more residential moorings constructed on the River as I like boats but I doubt it will happen.

Was very glad to find that I am allowed to stop the night at Ham - that is a Good Thing as far as I am concerned.

For the benefit of those who will understandably not wish to take my word for it, respecting the limitation on Statutory bodies, and who do not have the time or inclination to trawl back through all the CWDF posts I have made on the subject, a law firm article that was recently drawn to my attention, neatly encapsulates the general position in law.



Analysing the impact on local authorities of the Localism Act 2011, the author explains why the very first section of this Act was considered necessary [it gives a limited power to local authorities [which are creatures of statute], to act as a natural person]. She writes:



“Traditionally, while an individual may do anything that is not prohibited by law, the opposite is true for public bodies: they can only do what they have been authorised to by law. Any act or decision that goes beyond those powers is unlawful (or ‘ultra vires’).



Section 1(1) of the Localism Act 2011 (LA 2011) gives local authorities (LAs) the power to do anything that individuals may do – a ‘general power of competence’ (GPC). The GPC, therefore, reverses the presumption that any decision will be unlawful unless expressly permitted, and allows LAs to conduct their affairs with a greater degree of flexibility, providing them with new opportunities.” [my bold]


www.bwbllp.com/file/p-r-spring-2015-general-power-of-competence-article-pdf


It follows, given that no such empowerment has been granted to the EA [or CaRT, or any statutory bodies other than local authorities], that bringing the action that the EA did, in reliance only on the assumed rights of a natural person, was ultra vires.