Forum Topic

“Without Lawful Authority” - Canal & River Trust Cannot Evict Our Boats

Following from the TW8 article of Feb 12 [Challenge in Royal Courts of Justice], some may be aware that judgment was handed down last Thursday by Lord Justice Mummery of the Court of Appeal, declaring that the “eviction notices” served on my boats by the then British Waterways Board were invalid. The authority has been ordered to pay 75% of my costs at Appeal and in the Court below.The significance of the ruling goes way beyond waterways legislation, because the victory was based – not on waterways legislation per se, but – on the true interpretation of the phrase “without lawful authority”.I claimed that the High Court judgment last year, regardless of any findings on common law riparian rights or mooring rights from whatever source, was constitutionally unsound, because it violated a central foundation principle of the free, libertarian society that our constitution purports to provide for.My argument was that the phrase “without lawful authority” could only apply with reference to some law that was being breached; the High Court judge disagreed. The Appellate Court has now agreed with me that his finding on this was wrong. Lord Justice Mummery quoted from Sir Robert Megarry V.-C in a 1979 case saying: “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 some legal websites have commented, the affirmation of this constitutional principle affects the understanding of the thousands of Parliamentary Acts that  incorporate the same, common phrase. Hopefully the decision will assist in preventing continuing abuse of authority perpetrated by those in power who forget that they, also, are constrained by the Rule of Law, quite as much as we the governed. They will no longer be able to pretend that their whim has the status of law.A certain ruefulness creeps into consideration of the fact that it has taken 6 years for the court system to acknowledge and confirm so basic a right of the citizen. It is also sobering to reflect on all those prior cases where the authority succeeded in unlawfully evicting private boats in furtherance of their own financial schemes – it is contrary to natural justice that such abuse should have succeeded against anyone less “stubborn & relentless”, as I was described by the judge below!

Nigel Moore ● 5001d18 Comments

Well done, Nigel!

Iain Muir ● 5000d

Nice clear write up and glad you got the right result. Where does it go from here?

Ian Silver ● 5000d

Well done Nigel

Paul Fisher ● 5000d

So pleased for you Nigel.I wonder, will the chap who keeps painting a line where his boat should be moored, be able to place it back there?

Sarah Felstead ● 5000d

Fantastic news, and a superb victory over arrogance and the assumption some have that because they have achieved a certain level of success in society that they are in some above the law.Your stubbornness and relentlessness has paid off, and we as a community are all the stronger for it.  Well done for persisting with this, where many would long have thrown in the towel.

Phil Andrews ● 5000d

Thanks for the good wishes. Where does it go from here? If you mean the ‘situation’ vis-a-vis the waterways authority, then that will be up to them. Parts of the judgment concede that another tack could be taken by CART, but that opens up a whole can of worms they just might prefer to keep a lid on. The remote possibility exists theoretically, that they might decide to do what they should have done in the beginning, which was come and have a chat about it civilly. Then again, that may no longer be possible for them. [I get the feeling that they are in some sort of corporate shock just now!] They don't need to chat of course, they could just leave me alone as I asked in the first place.The “chap who keeps painting a line” is currently scratching his head as to his potential courses of action. This judgment confirms that the eviction of his and other’s boats on the same grounds, before my time, was ultra vires and in fact criminal. The criminal element may be that which allows them to bring an action against the waterways authority, which otherwise might by now have been disallowed due to the Statute of Limitations. I personally think they should bring some sort of wrongful action suit against the particular persons responsible rather than the organisation. I tried to do that in part of my action, but the courts just brushed that element 'under the carpet'. My argument went that for so long as individuals operated without sanction under a corporate cloak, then such individuals would continue to abuse their position with such behaviour; it would only stop if & when they were held personally accountable.I have the Hounslow planning and legal department to fight now, in the Public Inquiry a few weeks hence. I had applied for a Lawful Use Certificate early last year, in order that I could produce it in the Appeal Court as evidence, however unnecessary, of a source of “lawful authority” – but BW as statutory consultee objected vehemently, the Council refused to disclose the BW submission, so I had no way of countering whatever they’d come up with, nor was I given any indication of what questions might have wanted answering – they just refused it. Disgusting.

Nigel Moore ● 5000d

I'm afraid, Nigel, that this local authority always errs on the side of the big guns.  Its entire handling of the Mogden planning application demonstrated that.  I think it just follows from an assumption that the small man (or woman of course) does not and cannot understand technical points or complex legal issues.  Your victory will have come as quite a shock to them, as indeed did ours over Thames Water.

Phil Andrews ● 5000d

Sadly true Phil, but I am still bemused that the legal department is coaching the planning department how best to counter the indefensible. All Hounslow had to do once they realised the mass of evidence I could produce in support of the facts they wanted, was agree a Statement of Common Ground conceding those facts. Then we need not have had a full-blown Public Inquiry, we could have let the Planning Inspectorate agree to grant the Certificate based solely on that written statement. I suppose accepting fault sticks in their craw too much - but what a waste of public money for the sake of official amour propre. And how do they not realise that this course of action will only lead to more embarrassment anyway?

Nigel Moore ● 5000d

Nigel, congrats on winning the fight. It's good to see all your hard work has paid off. I'll raise a glass to you in OZ.

Neil Chippendale ● 4999d

"Stubborn & relentless"? What a cheeky Judge Nigel!Anyway congratulations on a mammoth effort and result.Quite brilliant really.

Jim Lawes ● 4999d

Really well done, I admire you for standing up to the legions of bullies who these huge consortiums and organisations hire to do their dirty work.And quite right too.I think you should have got more than 75% back more like 100% plus interest.After all, all their lawyers will still be going home with their huge fees intact having made a nice little earner.Maybe when you've had a rest you would like to take on Hounslow council for using similar tactics over use of allotted amenity space being built on. !!It's a shame that the only way common sense and defending against greed and bullying is a long hard slog in the courts at huge cost in time and money.The odds are stacked against one but too win means so much.No doubt they will attack again.

Anthony Waller ● 4999d

The costs issues are one of the blatant injustices in the whole process; the Court was not prepared to face up to former failures to apply just cost rulings, and continued throughout to misrepresent aspects of my case. Having misrepresented my argument and found against their “straw man” version, the judges considered I had not won everything I had ‘burdened’ the courts and poor defendant with, so the costs Order was meant to reflect that.I am already taking on Hounslow Council, with a Public Inquiry in less than a few weeks’ time – as noted in the news item and my previous posts. By refusing to engage with me as an applicant in defiance of the Planning Inspectorate guidance, I was prevented from counter-acting the nonsense they’d been fed with – leading directly to Refusal, and consequently to a wholly unnecessary PINS appeal.Although I later goaded them into a face to face meeting, subsequent to which I made a second, simpler application, they were determined not to grant the certificate in time for my court date, and used the same threat of adverse costs in attempting to dissuade me from the appeal.It is, as I said to Mr Gruet early on, disappointing to find myself in this position when I have ‘gone to bat’ for the Council as much as I have over the years, in previous Public Inquiries where they faced massive cases against them by huge developers. I am hoping that a little public embarrassment might prompt some reform. It would be good to see an improvement in the competence, helpfulness and professionalism of both legal and planning officers.Neil, I look forward to sharing that pint when next you visit!

Nigel Moore ● 4998d

Fair play to you Mr Moore. This story had completely passed me by until today. It's always good to hear of a victory against the bully boy corporations and their armies of lawyers.

Peter McGovern ● 4998d

The Canal & River Trust Press Release on the judgment should be read also – if for no other reason than to appreciate just how ingrained the institutional dishonesty is, that they have has failed to shake off despite their vaunted new status.http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=19&cad=rja&ved=0CGMQFjAIOAo&url=http%3A%2F%2Fcanalrivertrust.org.uk%2Fmedia%2Flibrary%2F2729.docx&ei=mNAoUYX5NKOe0QWwzYCYAw&usg=AFQjCNGwWLPLHUb6QhxTxoBiSUryuysQ2Q&sig2=o5iuhUHFKBpF_I5jBVrASQIt’s all of 3 short sentences, each re-iterating the same point: that the judgment has effect ONLY on this tiny section of the canal system, as a result of which they will have to look only at how they treat boaters here differently.It is an entirely false representation. The Statement would have been an appropriate response to last year’s judgment of Mr Justice Hildyard, but it has no possible relevance to the latest judgment.The only way in which CART needs to treat boaters here differently is in respect to demanding boat licences to traverse and be on the tidal stretch [by no means a unique feature either, although rare]. But the Appeal judgment does not address this topic at all, the relevant finding having been accepted by BW last year, in not seeking to appeal that part of last year’s judgment.The Appeal Court judges chose to deal with only one aspect of positive rights, effectively: what right does BW have to demand a grant of their permission to moor boats where BW own neither bed nor bank of a natural river? It is all the more outrageous that BW had for years published their considered view on the matter, agreeing that their permission in such circumstances was not required- and yet still chose to argue the opposite point in fighting my appeal. “Where BW is navigational authority but does not own the bed of the river, a boater needs a licence from BW to cruise the river. However, the boater does not need to pay BW a mooring fee as well because BW does not own the river bed.”[ http://www.cutweb.org.uk/bw/eogmooring.pdf ]The above quote omits to mention, of course, that a boater does NOT need a licence from BW to cruise the river if it is not included in the scheduled rivers as per the 1971 Act. But that was the "shake-up" they suffered in the Hildyard J judgment. Their press release then, claimed victory on all counts!So the judgment just decided is no surprise to them; it has just been an understandable surprise that for maybe the second time in about 15 years, a court has found that they do NOT have the extra-statutory powers claimed, and that they have construed their own private Acts of Parliament wrongly.Their Press Release seeks to minimise the importance and general applicability of the result of their 6 year attempt to be rid of us; the hugely expensive debacle has resulted, however, not merely in a disgraceful waste of national resources, it has firmly put in their place all authorities seeking to assert unlawful power – CART first and foremost – and that is a lesson of universal application, not limited to Brentford.

Nigel Moore ● 4996d

Mr Moore you are a true inspiration.  It's men like you that keep us all free. You won because you are a better man. Enjoy your victory and I hope you crush the council!  Good luck.

Ryan Thomas ● 4996d

Just came across this again after 2 years!Response to last post – yes, I did win against the council, who had employed a barrister to trawl all the way from one of the southern counties just to fight the case.The strange thing was, that in the pre-trial conference with me it transpired that she had not been informed by the council of the recent Appeal Court decision, and recognised that that changed everything!What she did not at first understand, when I told her that the Lawful Use Certificate was, as a consequence of the judgment, no longer necessary to me, was why I was pursuing this appeal anyway – I had to say that I had been forced to pay the council over a thousand pounds for the refused application in a grotesque inflation of the standard fee, and besides feeling a right to that for which I had paid so much, I was incensed at the idea that the council should get away with treating me as they did.She was a smart lady, and took some [considerable] time to persuade the council officers of the wisdom of conceding the primary aspects of the appeal. We ended up with a farcical hearing over whether the flower pots could be considered something that had been used as a garden for 10 continuous years, and as a sop to the council it was decided that using the garden as a garden was not established!So I got my Certificate, and as we had agreed to no order as to costs, the council were only a few thousand pounds out of pocket for the barrister.As to the other ramifications of the Appeal Court win, the Canal & River Trust have been having to fork out tens of thousands of pounds reimbursing those other boats on the Brent for the Pleasure Boat Licences they had been illegally extracting from them!So far, they have been doing so only for the prior 6 years worth, in line with the Statute of Limitations, although even further financial upset could be caused if any of the longer-term boaters were prepared to suggest that there is no Statute of Limitations on the proceeds of crime, which [in the circumstances of unlawfully extracting tolls for the use of a public highway], the demand for licences where not required amounts to.

Nigel Moore ● 4282d

Interesting stuff Nigel.You may remember I moored my boat on the Brent for a number of years... any ideas whether I could claim back any licence fees paid to BW?  Hope you're well.Lydia

Lydia Fowles ● 4280d

Crumbs – so sorry Lydia, once again I have only just now come across this thread again, and read your post for the first time.The answer is yes; you are fully entitled to reclaim all the licence fees you paid while moored on the Brent below the Gauging Locks – provided that you did not actually use the licence to trip up beyond the Gauging Locks at any time during that period. You are entitled to interest on the sums owed also. Everyone that I know of who has applied for these refunds has received them – with interest – so it is worth pursuing. CaRT have paid out tens of thousands of pounds already, you may as well benefit too.I do not have your email any longer on the current laptop, but will try sending a message via this Forum. If you need any help with this, just let me know.I am well [and hoping the same is true for you] and still battling on various fronts with various authorities. I don’t know what has happened to my goal of growing old gracefully and peacefully . . .

Nigel Moore ● 3801d