Environment Agency v Trotman

[NigelMoore]

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: -

 

http://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? 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 the nature of the EA ownership, the point of law of real interest is whether a statutory body can exercise 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.

[dmr]

I am generally a lefty sort of person but do feel that long term mooring needs to be controlled for the benefit of all boaters so I find it hard to get upset about this ruling. We have just had a week on the Thames and wanted to stop to visit friends in Oxford. The entire bank opposite the University boathouses is now 100% squatted by long term moorers leaving no space at all for visiting boats to stop. Thames moorings are already limited and finding moorings unavailable at the end of a long day cruising is potentially dangerous.

I also noticed an increase in rather downmarket plastic cruisers hiding in the undergrowth, and in a few cases sunk. There are a lot of wealthy and influential people living on the Thames and if boaters take the p*ss it will be all boaters who will suffer.

 

................Dave

[PaulG]

Sounds as if this person was lucky he wasn't in court on manslaughter charges.

"The boat has been advertised on AirBnB and can accommodate up to ten tenants. A BBC mini-documentary screened earlier this year, with a reporter and insurance expert staying aboard for a night, showed something of the interior of the boat and the state of its toilets. The expert described the vessel as a fire trap."

[NigelMoore]

I am generally a lefty sort of person but do feel that long term mooring needs to be controlled for the benefit of all boaters so I find it hard to get upset about this ruling.

 

Nor am I against control over moorings; quite the opposite [general availability of visitor moorings is crucial to the viability of a waterway] – but it must be done the right way by the right people.

 

Where the riverbank is owned by private persons, they are the ones to bring actions against trespassers; where the riverbank is owned by statutory bodies such as Borough Councils, then they must follow Richmond’s example, and obtain approved byelaws for the purpose of controlling those moorings [if they do not have them already].

 

The latest action was taken [i was led to believe] against the boats where they were NOT moored to the riverbank, but out in the river, anchored.

 

I have not taken the time to look into the land registration process on the upper Thames; the riverbed ownership ought to have vested in the riparian owners, and IF there has been the same sort of fraud with the EA as there was with BW, then they were placing themselves in a foolishly parlous situation. Ownership is not, in any event, relevant to the powers they can exercise; that is down to what they are given by Parliament and can over-ride land owner rights.

 

Nonetheless, the same applies to the EA as it does with the LPA’s – if the need was seen for more control than was available under their primary legislation, then the answer was/is to apply for the requisite secondary legislation, be that Statutory Instrument [as they did in 2010] or additional byelaw. I am not so sure, as it happens - without double-checking - that they do not already have statutory powers to move boats on in these circumstances, but that was not relied upon in this case anyway.

 

My concern is with the disregard of legal process; the decision to operate upon unilaterally assumed powers rather than bother getting Parliamentary approved ones.

[NigelMoore]

Sounds as if this person was lucky he wasn't in court on manslaughter charges.

 

Such targets are a large part of the problem that I am seeing, viewing that from a perspective differing from most. Setting aside all dispute over whether he serves a need, or does so safely, or artistically, or even lawfully, there is no question but that his operation has been generating ‘bad press’ from both landlubbers and boaters, not helped by the general appearance of his creations.

 

It is this fact that leads to the popular reaction on what are then seen to be desirable outcomes – that it really does not matter so much HOW it was accomplished, the only important thing is that it was. When the popular reaction is that the end justifies the means, the authority’s choice of target [and there are very many more untouched ones out there] can be recognised as very astute.

 

In the meantime, while many congratulate the successful use of any tactic against a deemed undesirable, it tends to be overlooked that the same tactic can then be successfully used in areas you would not wish it be. We have a system of government that relies on the rule of law; when that get shrugged aside we will not continue to live in the same social environment we currently enjoy.

[Mike Todd]

As far as I can see, public bodies, such as EA, are in general subject to common law duties as much as anyone else, except that the founding statute may exempt them from certain common law provisions. (If not specified then they apply)

 

The responsibilities of EA are in part common law duties (such as relating to flooding) and in part statutory ones, alongside statutory rights - permissions - to act.

 

I assume that it would inequitable to say that common law applies in respect of duties but not in respect of rights. I have not looked, but your argument would require you to demonstrate that the EA statue specifically excepted them from benefiting from the rights of beneficial land owners to seek remedy for trespass.

 

If this analysis is correct then the EA action - in this case anyway - does not amount to an extension of powers as they existed already. Even if not frequently used.

[NigelMoore]

I am not so sure on the liability of statutory bodies to common law obligations; that would open them up, as you say, to inequities of position. I am not taking a positive stance on that in view of my ignorance.

 

It IS a fact though, that creatures of statute are limited by the terms of that statute; it is long established law and the canal companies played a large part in judicial assertions to that effect.

 

Taking just the broad strokes picture – if common law rights of a property owner were available to them, none of the canal companies would ever have needed legislation granting powers to charge for use of their property, and powers to create byelaws controlling use of that property. Any ordinary person has that right under common law.

[dmr]

 

Nor am I against control over moorings; quite the opposite [general availability of visitor moorings is crucial to the viability of a waterway] – but it must be done the right way by the right people.

 

Where the riverbank is owned by private persons, they are the ones to bring actions against trespassers; where the riverbank is owned by statutory bodies such as Borough Councils, then they must follow Richmond’s example, and obtain approved byelaws for the purpose of controlling those moorings [if they do not have them already].

 

The latest action was taken [i was led to believe] against the boats where they were NOT moored to the riverbank, but out in the river, anchored.

 

My concern is with the disregard of legal process; the decision to operate upon unilaterally assumed powers rather than bother getting Parliamentary approved ones.

 

You know much more than me about this, but is not much of the law relating to waterways rather inadequate for controlling the current desire of many people to live almost static and low cost lives on the water? This leads to people and organisations rather stretching and bending the existing laws to achieve what they believe to be right and just. Its rather like the police planting a bit of evidence to secure a conviction against somebody who they are sure is guilty but suspect will otherwise not be convicted in court. Its all the slippery slope but I can see why it happens.

Another issue is the huge and increasing expense of using the legal system. If a group of boats moor against or over somebodys land they might cause an issue to other boaters but might not inconvenience the landowner. Can we expect that landowner to fund the cost of legal action knowing that even if he wins he will get no money from the boaters to cover his costs, and a whole new set of boaters will probably turn up a few weeks later. The various waterway authorities will be the ones expected to control the waterways.

 

I feel the laws relating to the waterways needs a significant overhaul and clarification, but I suspect this won't happen soon so stretching the existing laws will continue.

 

You mention boats at anchor, last year I did spot a community of boats rafted together and anchored somewhere between Brentford and Teddington. I wonder if these have moved up river?

 

................Dave

[Guest]

I am generally a lefty sort of person but do feel that long term mooring needs to be controlled for the benefit of all boaters so I find it hard to get upset about this ruling. We have just had a week on the Thames and wanted to stop to visit friends in Oxford. The entire bank opposite the University boathouses is now 100% squatted by long term moorers leaving no space at all for visiting boats to stop. Thames moorings are already limited and finding moorings unavailable at the end of a long day cruising is potentially dangerous.

I also noticed an increase in rather downmarket plastic cruisers hiding in the undergrowth, and in a few cases sunk. There are a lot of wealthy and influential people living on the Thames and if boaters take the p*ss it will be all boaters who will suffer.

 

................Dave

Here here, I reported on here recently about the problems we had going through London and along the LEE BOAT PARK. Only to be shouted down by some on here, we had nowhere to stop over night, 'told we could raft up' why should we have to just because some want to flout the rules to satisfy their own self centred attitude, some sign a document to CC but have no intention of doing so. I have no sympathy for those now having to move.

[NigelMoore]

I have no sympathy for those now having to move.

 

You do not have to have sympathy for those having to move; you can be as triumphantly vitriolic as you like about it for so long as the removal is according to law. As I mentioned previously, I have personally done as much myself on occasion; I anticipate having to do so again. My issue is with authorities acting on powers they do not have, and succeeding because the County Court judges cannot see past the assumed probity of the authority, while the general public applaud for so long as it works in their favour.

Lawful solutions to problems can be found, where there is respect for the law and the will to implement it. Richmond showed how it could be done; the EA is no stranger to even stronger legitimate measures. Those who cheer the short-cutting of the law are very short sighted.

 

[Arthur Marshall]

 

Those who cheer the short-cutting of the law are very short sighted.

That's the nub of the problem. Laws are essentially set up by rich people to protect their property. Any that actually work to the benefit of most of the rest of us have had to be fought long and hard for, and waving them goodbye for a short term or specific gain is likely to be a disaster.

[hounddog]

Thus taking the diametrically opposite view to that you took in the lightship dispute in Liverpool.

 

May I be the first to applaud your change of heart.

[Geo]

Thus taking the diametrically opposite view to that you took in the lightship dispute in Liverpool.

 

May I be the first to applaud your change of heart.

 

I think you have misunderstood Nigel's position both on this matter and on the Lightship's removal. In both cases he has I believe no objection to lawful removal. What he objects to is removals that do not follow the processes laid down in the law and the navigation authorities making their own laws and those self-made laws being accepted by junior judges because of a lack of knowledge but believing that the navigation authority must know the law as it applies to them.

Edited November 9, 2016 by Geo

[NigelMoore]

Nicely put Geo - but when I read hounddog's post, I did not take it as applying to me [could be wrong of course].

[Geo]

Nicely put Geo - but when I read hounddog's post, I did not take it as applying to me [could be wrong of course].

 

Well as I could not find anyone else on the thread that had any involvement with Planet and the EA matter I felt it was being directed at thou. But of course I am human and could be wrong

[NigelMoore]

I took it as applying to the immediately preceding post. It was posted 3 quarters of an hour after Arthur's post after all.

[Arthur Marshall]

I took it as applying to the immediately preceding post. It was posted 3 quarters of an hour after Arthur's post after all.

Definitely applying to me. The usual deliberate misinterpretation of what anyone that he disagrees with posts. I can assure him that my position re the purpose of the law hasn't changed in years.

[Geo]

Definitely applying to me. The usual deliberate misinterpretation of what anyone that he disagrees with posts. I can assure him that my position re the purpose of the law hasn't changed in years.

 

Ah one of those Scandinavian things maybe

[NigelMoore]

. . . is not much of the law relating to waterways rather inadequate for controlling the current desire of many people to live almost static and low cost lives on the water?

 

I do not believe so. Where there are areas that the current laws do not assist, then the option is there to get new ones. The EA did this by what they call a “Statutory Instrument” when they wanted to extend the registration scheme to boats merely moored on the river, even though they never used it for navigation. Richmond Council employed their ability to create appropriate byelaws, and got those approved to meet the immediate need for controlling boats moored to their land.

 

“If a group of boats moor against or over somebodys land they might cause an issue to other boaters but might not inconvenience the landowner. Can we expect that landowner to fund the cost of legal action knowing that even if he wins he will get no money from the boaters to cover his costs, and a whole new set of boaters will probably turn up a few weeks later. The various waterway authorities will be the ones expected to control the waterways.”

 

If the landowner gives consent, where is the problem? The public right of navigation gives no right whatsoever to attach to the riverbank – that right is in the gift of the landowner. If he allows boats to remain moored to his land then that is his right, unless some statute over-rides that. How can that interfere with any rights of other boaters? Those he wishes to leave, he can remove as trespassers, but nobody else can, without his authority.

That applies, of course, to natural persons having ownership of the riverbank; creatures of statute must seek governmental approval of management powers to do the same, if they have not been given those powers to start with. That is what Richmond Council did.

[NigelMoore]

This is slightly oblique to the topic, but some may find it of interest to see exactly what Richmond Council obtained. The limit on visiting boats mooring against Council riverbank is 24 consecutive hours in any 48.

 

http://www.richmond.gov.uk/sealed_mooring_byelaws.pdf

 

The above lists all the relevant sites to which the byelaws apply. Further particulars –

 

Confirmation of Mooring Byelaws

 

On Thursday 12 February 2015 the Council received confirmation from the Secretary of State that the Byelaw outlined below will come into force one calander month after the date of confirmation.

 

From 13 March 2015 a criminal offence will be committed if any vessel is moored for longer than permitted without the written consent of the Council. The details of the restrictions are detailed in the documents below.

 

The offences associated with this byelaw are criminal offences which are punishable upon summary conviction with a maximum fine of £500 per contravention. Both the owner and the master of a vessel may be prosecuted.

 

· Byelaws Relating to Mooring(pdf, 1624KB) (excluding maps)

· Mooring Byelaws Borough-wide Plan(pdf, 467KB)

· Mooring Byelaws Detailed Plan 1 to 6(pdf, 1586KB)

· Mooring Byelaws Detailed Plan 7 to 12(pdf, 2301KB)

· Mooring Byelaws Detailed Plan 13 to 18 class=fileTypeIcon v:shapes="_x0000_i1029">(pdf, 2287KB)

· Mooring Byelaws Detailed Plan 19 to 24(pdf, 1913KB)

· Mooring Byelaws Detailed Plan 25 to 30(pdf, 2414KB)

· Mooring Byelaws Detailed Plan 31 to 37(pdf, 2779KB)

 

Full details, historic and current, from which above is copied: -

www.richmond.gov.uk/byelaws_and_local_legislation

[magpie patrick]

 

 

 

In the meantime, while many congratulate the successful use of any tactic against a deemed undesirable, it tends to be overlooked that the same tactic can then be successfully used in areas you would not wish it be. We have a system of government that relies on the rule of law; when that get shrugged aside we will not continue to live in the same social environment we currently enjoy.

 

The highlighted bit is crucial - that's why the end doesn't justify the means - because once established the means can be used again and again...

[Mike Todd]

Nigel: are you conflating two different situations:

 

1. Where a public body does not have powers given by statute or by other means such as being a beneficial owner, it then needs to seek statutory powers (as in the Richmond situation)

 

2. Where a public body was not given specific powers nor did it have general (eg common law but not exclusively) rights removed by statute, it can continue to act as the beneficial owner (as in the case of Trotman)

 

I'm not commenting on the merits of either case but they do seem to me to have crucial differences.

[NigelMoore]

Nigel: are you conflating two different situations:

 

Those are indeed two separate situations Mike, but I am not conflating the two because I do not recognise that a statutory body has any rights other than those granted. The idea that it might have common law rights &/or others additionally to the statutory ones - and that removal of these must be expressly imposed if it is to be argued that they do not have them – is utterly foreign to my understanding.

 

If you can enlighten me with case law or treatise commentary I would be most interested, because that would run counter to everything I have read on the subject hitherto. My understanding is that both Richmond and the EA must seek specific powers to accomplish their purpose if those are not already provided for in their statutes. They are the same situation. I am preparing some comment on the Thames Conservancy Act 1932 - as referred to by the EA in their Skeleton - which might clarify the point.

[NigelMoore]

As to my previous comment respecting TC powers, the TC 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”.

 

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.

Edited November 11, 2016 by NigelMoore

[NigelMoore]

"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."

 

 

As an example of how twisted a small-time judge can get things – this presupposes that the report above is accurate of course – what is said there runs directly counter even to what the EA argued!

 

In the first place, there is no such thing as an EA licence for the Thames; as with the CaRT scheduled rivers, because of the PRN there are only pleasure boat certificates of registration, with all the implication that the differing vocabulary conveys.

 

This is one area where the EA barrister got things exactly right. An element of the Trotman argument ran that as his boat was registered, the EA was not entitled to renege on the “permission” they had thereby given him to both “use” the river, and to “keep” his boat thereon.

 

The EA response is one Leigh Ravenscroft has cited in his pleadings in his CaRT case: -

 

“The payment of the licence [sic] fee is a legal requirement under the Environment Agency‘s (Inland Waterways) Order 2010 and does not confer a right to be on the River Thames, such right being derived from the non-tidal public right of navigation pursuant to s.79 Thames Conservancy Act 1932.” [my bold]

 

I had hoped to have a published judgment agreeing with the EA point, but if the account above is correct, she messed that up comprehensively.