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NBTA 'Not Happy'


Alan de Enfield

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8 hours 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.

Thanks for the clarification. However, the bar is higher than merely "tacit consent" - privilege of consent has to be established by the defendant, to serve as a valid defence against trespass.

Edited by Paul C
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3 minutes ago, erivers said:

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.

I don't think we're disagreeing, possibly only on semantics. A PRN is effectively a form of easement, there are some areas where PRN doesn't apply but an easement exists over riparian land (eg navigations, man-made alterations to the river flow/path).

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1 minute ago, Athy said:

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.

Oh yes it is!  On much of the Middle Level the commissioners are the riparian owners but on the stretches where they are not the only remedy available to other private landowners now (and if the ML Bill subsequently passes into law) will be an action for trespass.

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3 minutes ago, Paul C said:

A PRN is effectively a form of easement, there are some areas where PRN doesn't apply

I disagree that a PRN is a form of easement for which individuals or authorities have any powers to amend.  It cannot be rescinded by anyone without a specific Act of Parliament.  A very recent High Court appeal judgement has demonstrated just how powerful a PRN (even a contested PRN) actually is .......... but that's another story!

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2 minutes ago, erivers said:

I disagree that a PRN is a form of easement for which individuals or authorities have any powers to amend.  It cannot be rescinded by anyone without a specific Act of Parliament.  A very recent High Court appeal judgement has demonstrated just how powerful a PRN (even a contested PRN) actually is .......... but that's another story!

Just to clarify, is the area under discussion tidal, or below the River Cam's natural upstream tidal limit?

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Absolutely certain.  It has a PRN established not only by way of use by vessels from time immemorial but also from Acts of Parliament of 1702, 1813 and 1922.

The short stretch not under the jurisdiction of the Cam Conservators has a historical PRN confirmed by the Anglian Water Authority Act 1977.

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3 hours 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.

The fact that the road is a RoW only extends to the edge of that road. Verges or fences to the side may not be a public RoW.

If there is a RoW to the river side of the railings then tying a rope across it is an obstruction, and therefore illegal

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2 hours ago, erivers said:

I disagree that a PRN is a form of easement for which individuals or authorities have any powers to amend.  It cannot be rescinded by anyone without a specific Act of Parliament.  A very recent High Court appeal judgement has demonstrated just how powerful a PRN (even a contested PRN) actually is .......... but that's another story!

An easement, or maybe better known as right-of-way, is something embedded in years of practice and is almost inviolable as you say. They are jealously protected  But a right of way can be rescinded if you can get everybody who uses it to agree.

But there are exceptions. A right-of-navigation exists here, but my license for my end-of-garden mooring gives me exclusive use of that piece of water at all times (subject to T&C's) and thus denies navigation to a passing boat at this precise spot.

I am afraid they didn't like it they would would have to move over a bit and use the remainder of the clear canal.

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14 hours ago, erivers said:

I disagree that a PRN is a form of easement for which individuals or authorities have any powers to amend.  It cannot be rescinded by anyone without a specific Act of Parliament.  A very recent High Court appeal judgement has demonstrated just how powerful a PRN (even a contested PRN) actually is .......... but that's another story!

PRN is certainly not the SAME as an easement, but for practical purposes it is very similar.

An easement gives rights to an individual or group of individuals over your land. It isn't something that you can unilaterally terminate, but it is something that you could extinguish by agreement with all those who benefit from it.

PRN is an easement where the "group of individuals" is "everybody", and as such can only be extinguished by agreement with "everybody", or in practical terms with the representatives of "everybody", namely Parliament.

Simple!

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