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NBTA 'Not Happy'


Alan de Enfield

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AIUI, unlawful means any action which renders you liable to court action, either civil or criminal. An illegal act is one expressly  forbidden in statute or by order of the court, a crime rather than a civil wrong.

But it's not clear cut as some criminal acts are a matter of common law rather than statute. If all was clear in the law, how would lawyers make any money?

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If Nigel did not have his hands full of all sorts of indescribable stuff at the moment, I think he might be inclined to remind us of the quote by Lord Justice Jackson in his successful appeal against BW:  http://www.bailii.org/ew/cases/EWCA/Civ/2013/73.html

I am alerted to the possibility that the claimant was not committing any wrong by a pithy observation of Sir Robert Megarry V.-C. in Metropolitan Police Commissioner [1979] 1 Ch 344 at 357C:-

"England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden."
As FadetoScarlet correctly points out, until very recently when the owner was identified there was no one to 'expressly forbid' mooring at Cambridge Riverside.  Neither were there any relevant byelaws except perhaps those concerning obstruction to navigation which was generally not the case here.
Edited by erivers
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10 minutes ago, erivers said:

If Nigel did not have his hands full of all sorts of indescribable stuff at the moment, I think he might be inclined to remind us of the quote by Lord Justice Jackson in his successful appeal against BW:  http://www.bailii.org/ew/cases/EWCA/Civ/2013/73.html

I am alerted to the possibility that the claimant was not committing any wrong by a pithy observation of Sir Robert Megarry V.-C. in Metropolitan Police Commissioner [1979] 1 Ch 344 at 357C:-

"England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden."
As FadetoScarlet correctly points out, until very recently when the owner was identified there was no one to 'expressly forbid' mooring at Cambridge Riverside.  Neither were there any relevant byelaws except perhaps those concerning obstruction to navigation which was generally not the case here.

 

See previous post - how does not knowing who owns the land, translate into that person not existing?

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Well of course Cambridge City Council existed.  It's just that they didn't know they were the relevant land-owners at Riverside and, in fact, spent many years and not a little cash trying to disclaim ownership.  In those circumstances they were clearly unable to forbid mooring and neither did anyone else claim a right to do so.

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I think its down to the interpretation of the "expressely permitted" vs "expressely forbidden" applicability. For example, it is well understood that roads have speed limits. So,if you pulled out of a housing estate onto a road, and didn't see/pass any speed limit signs, your argument of "its not unlawful because its not expressely prohibited" wouldn't work because the average person knows that roads have speed limits of some kind or other in this country, even if the exact speed limit for each exact stretch of road isn't immediately known due to the frequency of the signage.

Similarly, the view could be taken that everyone knows moorings are not a "free for all" and that on rivers, there is always a riparian owner and there is always the need to obtain permission to moor (unlike canals, where the towpath is blanket permitted except for areas clearly signposted as no mooring). There is not a requirement for signage saying "no mooring" along a river every millimetre, or every boat length, or even every 100yds or 400yds or whatever. Indeed, such signage would be viewed dimly as spoiling the view, I'm sure, by some.

The fact that the land was disputed in ownership (rather perverely, the non-ownership was disputed - kind of like a "Bir Tawil" of rural England) adds an interesting twist to the situation but I don't think it has enough weight to override the above paragraph. One could say, during the dispute of non-ownership, whichever landowner would have claimed they wouldn't have allowed free moorings, had they conceded they owned that land. And that the non-signage was related to the dispute of non-ownership (a sign erected, could have been evidence of ownership or used against their existing arguments etc).

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On 26/03/2017 at 08:14, FadeToScarlet said:

Oh, and the Council have had to apologise for calling mooring on the Railings (the area in dispute) "illegal", as mooring there has never been illegal- it's a grey area but it certainly isn't illegal to moor there.

Even if the weak argument holds up, you could only say "it wasn't illegal to moor there". Going forwards, now that ownership of land has been clarified and some boats are moored without permission, one could quite reasonably say those are illegally moored now.

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11 minutes ago, Paul C said:

Similarly, the view could be taken that everyone knows moorings are not a "free for all" and that on rivers, there is always a riparian owner and there is always the need to obtain permission to moor

Really? 

There is nothing illegal or unlawful about mooring to riverbank in private ownership.  Doing so may be considered a trespass but any remedy is actionable only by the landowner.  If the landowner chooses to say or do nothing then there is no other legal remedy. 

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Just now, erivers said:

Really? 

There is nothing illegal or unlawful about mooring to riverbank in private ownership.  Doing so may be considered a trespass but any remedy is actionable only by the landowner.  If the landowner chooses to say or do nothing then there is no other legal remedy. 

 

Trespass is a civil offence. There is a (legitimate) debate on whether the term "illegal" is correct nomenclature for civil wrongs, but in my eyes unlawful = illegal and this covers both civil and criminal offences. And its not necessary for it to have been tried in a court of law - for example if someone shoots past me on the motorway at 110mph I can say he was driving illegally even if the police don't catch him speeding.

And in a similar vein to the "landowner chooses to do nothing" - the police don't normally prosecute motorists who do 76mph, but the speed limit remains 70mph on motorways.

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On 26/03/2017 at 12:53, Mike Todd said:

I thought that you had to have the riparian owners consent in order to moor legally. If you don't know who the riparian owner is, how can you obtain their consent?

I think it is more a case of landing. Getting off the boat to tie up. Even if you know the owner do you need  permission to stop. Perhaps by dropping anchor?

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Paul C,

Both of the driving situations you describe are offences with penalties prescribed by law.  Once committed they cannot be 'undone' even where the authority fails or chooses not to prosecute.

Mooring to private riverbank without permission from the landowner is not an offence and there are no penalties prescribed by law.  Any trespass is 'undone' when you move away if requested to do so by the landowner.  There is no 'offence' to prosecute.  It is possible that a landowner could seek an injunction against an individual preventing future trespass by that person to his riverbank.

It may not be 'right' but that is more a question of morality.  It is not illegal or unlawful.

Edited by erivers
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1 minute ago, erivers said:

Paul C,

Both of the driving situations you describe are offences with penalties prescribed by law.  Once committed they cannot be 'undone' even where the authority fails or chooses not to prosecute.

Mooring to private riverbank without permission from the landowner is not an offence and there are no penalties prescribed by law.  Any trespass is 'undone' when you move away if requested to do so by the landowner.  There is no 'offence' to prosecute.  It is possible that a landowner could seek an injunction against an individual preventing future trespass by that person to his riverbank.

It may not be 'right' but that is more a question of morality.  It is not illegal or unlawful.

 

If you concede its trespass, then we're in 100% agreement. I don't understand your concept of "undoing" a trespass once its been done though. The "trespass" is complete simply by being there. A previous trespass still occured even if you've subsequently vacated.

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It may well be trespass but that is actionable only by the landowner and only where it continues after the landowner has ordered you to move. Once you do so, the trespass is removed and there is no cause for action or any prescribed 'penalty' for the 'previous trespass'.

You will recall the position with squatters in domestic properties where, in the absence of forced entry or criminal damage, there was little or nothing the authorities could do to assist property owners until the law was changed in 2012.

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50 minutes ago, erivers said:

It may well be trespass but that is actionable only by the landowner and only where it continues after the landowner has ordered you to move. Once you do so, the trespass is removed and there is no cause for action or any prescribed 'penalty' for the 'previous trespass'.

You will recall the position with squatters in domestic properties where, in the absence of forced entry or criminal damage, there was little or nothing the authorities could do to assist property owners until the law was changed in 2012.

No worries, I think we're pretty much in agreement except for details. However it is these details which would clarify the "grey area", to make it more black-and-white. Trespass is a civil offence, and like any other civil offence the police don't get involved (except for things like, when a breach of the peace occurs etc). There are two parties, and its up to one party to take action against the other. The fact that a law is difficult to enforce, doesn't nullify it.

In any case, its a bit of a side issue because I believe Cambridge County Council aren't taking action retrospectively before the 2014 clarification of the land ownership - they are only tooking at the situation forwards from this point. And since its been clarified, and that its clearly traspass (since its not simply a person entering the land; boats are being moored on it) the debate could move on from this point.

 

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39 minutes ago, Paul C said:

 believe Cambridge County Council aren't taking action retrospectively before the 2014 clarification of the land ownership - they are only tooking at the situation forwards from this point. And since its been clarified, and that its clearly traspass (since its not simply a person entering the land; boats are being moored on it) the debate could move on from this point.

 

It's the City Council, rather than the County, who have taken ownership.

 

Prior to 2014, as there was no clear owner, there was no aggrieved party who could claim the boats are trespassing.

 

Now that ownership has been asserted, the boats have tacit consent to be there, whilst the Council were consulting and deciding what to do- so again, not illegal. No one has been evicted or charged with trespass.

 

Since the decision made on 20th March, where they stated 7 boats would be allowed to remain, they could choose to start proceedings against the ones they don't want there- but, again, they're doing nothing at the moment, apart from giving tacit consent to moorings.

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9 minutes ago, FadeToScarlet said:

It's the City Council, rather than the County, who have taken ownership.

 

Prior to 2014, as there was no clear owner, there was no aggrieved party who could claim the boats are trespassing.

 

Now that ownership has been asserted, the boats have tacit consent to be there, whilst the Council were consulting and deciding what to do- so again, not illegal. No one has been evicted or charged with trespass.

 

Since the decision made on 20th March, where they stated 7 boats would be allowed to remain, they could choose to start proceedings against the ones they don't want there- but, again, they're doing nothing at the moment, apart from giving tacit consent to moorings.

That sounds reasonable and logical, but I wonder:

 - As the boats are on water (for which they have licences), how can they be trespassing on anyone's land?

- Is the land on the other side of the railings a public right of way, such as a footpath or road? If so, the boaters won't be trespassing even when they leave their boats and step on to the land.

So, in what way is trespass being committed? I am not saying that it isn't, but just that I don't see how.

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10 minutes ago, Athy said:

That sounds reasonable and logical, but I wonder:

 - As the boats are on water (for which they have licences), how can they be trespassing on anyone's land?

- Is the land on the other side of the railings a public right of way, such as a footpath or road? If so, the boaters won't be trespassing even when they leave their boats and step on to the land.

So, in what way is trespass being committed? I am not saying that it isn't, but just that I don't see how.

A well rehearsed argument - see various threads going back over time! Partly, a boat ties up to the land above the water (ie the river bank) and thus is trespassing,l but also the riparian rights extend to mid stream, so it is trespass over the land under the boat. But Nigel M is the expert!

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3 minutes ago, Athy said:

That sounds reasonable and logical, but I wonder:

 - As the boats are on water (for which they have licences), how can they be trespassing on anyone's land?

- Is the land on the other side of the railings a public right of way, such as a footpath or road? If so, the boaters won't be trespassing even when they leave their boats and step on to the land.

So, in what way is trespass being committed? I am not saying that it isn't, but just that I don't see how.

Cambridge City Council has now registered its ownership of the riverbank in question.  As riparian owners they also own the bed to the centre of the river.  Any claimed trespass is therefore to their land covered by water.    

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Just now, erivers said:

Cambridge City Council has now registered its ownership of the riverbank in question.  As riparian owners they also own the bed to the centre of the river.  Any claimed trespass is therefore to their land covered by water.    

Hmmm, I see. We are riparian owners and own the river bed to the centre of our river, but I am not sure that we have any power to stop boats going over/through our bit.

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Just now, Athy said:

Hmmm, I see. We are riparian owners and own the river bed to the centre of our river, but I am not sure that we have any power to stop boats going over/through our bit.

 

Probably not but you DO have a right to stop people from attaching their boats to your land, I'd have thought.

But IANAL, as you well know!

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Just now, Mike the Boilerman said:

 

Probably not but you DO have a right to stop people from attaching their boats to your land, I'd have thought.

But IANAL, as you well know!

Probably yes. What has Ianal got to do with it, sorry I don't follow that? Has he had a similar problem?

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1 minute ago, Athy said:

Hmmm, I see. We are riparian owners and own the river bed to the centre of our river, but I am not sure that we have any power to stop boats going over/through our bit.

No doubt there is an easement to allow boats to "use" the river by travelling over the various parcels of land owned by the riparian owner. This easement, I suspect, does not allow boats to moor though - just to pass over it in the course of a journey/cruise. Of course....its wording would be crucial. I don't even think they'd need to be attached - otherwise everyone would use anchors etc. to get round this rule.

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No, if 'your' river has a Public Right of Navigation (as most certainly do) then you cannot prevent navigation over your land (covered by water).  You may take injunctive action in the county court for trespass against owners of boats moored to your land without your consent.  That's all.  No one else can take action unless there are other factors such as obstruction to the navigation covered by byelaws.

Edited by erivers
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1 minute ago, Paul C said:

No doubt there is an easement to allow boats to "use" the river by travelling over the various parcels of land owned by the riparian owner. This easement, I suspect, does not allow boats to moor though - just to pass over it in the course of a journey/cruise. Of course....its wording would be crucial. I don't even think they'd need to be attached - otherwise everyone would use anchors etc. to get round this rule.

 

How does one use an anchor to moor without attaching it to the riverbed (owned by that nice Mr Athy)?

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1 minute ago, Paul C said:

No doubt there is an easement to allow boats to "use" the river by travelling over the various parcels of land owned by the riparian owner. This easement, I suspect, does not allow boats to moor though - just to pass over it in the course of a journey/cruise. Of course....its wording would be crucial. I don't even think they'd need to be attached - otherwise everyone would use anchors etc. to get round this rule.

Yes, it's an interesting situation, in which I suppose the laws will allow reasonable solutions, as they usually do.

In our case, the Middle Level is not officially a navigation, so any lawyer who wanted to get on his hind legs and contest boats' right to go over his land could have some fun.

1 minute ago, Mike the Boilerman said:

 

How does one use an anchor to moor without attaching it to the riverbed (owned by that nice Mr Athy)?

Throw it up into a tree, of course. Oh hang on, it's our tree too...

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