Challenge in Royal Courts of Justice
They used to boast that they had never lost a Section 8 case, but the Canal & River Trust now have suffered a significant setback with regard to the extent of their claimed powers over boaters.
On Thursday 14 February 2013 Lord Justice Mummery handed down the Appeal Court’s Judgment in the six year long case of Moore v British Waterways Board.
BW’s case had been, according to the judgment, “that it had power to require the removal of the claimant’s vessels, as they were permanently moored without any common law right to do so or without any permission granted by it and therefore ‘without lawful authority’.”
However despite upholding Hildyard J’s findings on common-law riparian rights, the Appeal Court came to the unanimous conclusion that his ruling on the effect of Section 8 of the BW Act of 1983 was in fact constitutionally unsound.
Section 8 of the British Waterways Act 1983 gives BW/CART the powers to demand removal of a boat from the waterways in their control if the boats are left or moored therein without lawful authority. Failure to comply within 28 days enables them to seize the boat, and in due course destroy it or sell it out from under you to cover the extravagant costs claimed for removal/storage. They can do that even if it’s your home [they just have to go to a court to get the power upheld].
They claimed that all boats need their permission to moor wherever, even against private land – that is an unwarranted extension of powers they actually have and would have been a matter for concern for any boater.
In finding that the mooring of Mr Moore’s boats was lawful, the Court declared that “the law allows him to do what it did not prohibit at common law or by statute.”
They stated “In this appeal the position simply is that on the agreed facts . . . BWB had no power under s.8 to require the claimant to remove vessels the mooring of which was lawful, as their presence was not unlawful: BWB is unable to support its notices on the basis that the mooring of vessels by the claimant was ‘without lawful authority’ within s.8.”
The notices were therefore invalid; the relevant sections of Hildyard J’s Order set aside, and CART has been ordered to pay 75% of Mr Moore’s costs of both the Appeal Court hearing and that of the court below.
In stark contrast to the usual phalanx of their legal team attendance at previous judgments, not a single CART representative was prepared to show their face for this one.
February 20, 2013