Nick Brown, claimant in the judicial review proceedings against Canal & River Trust (CRT) to decide whether the Guidance for Boaters Without a Home Mooring is lawful, today discontinued the action. He said “During the hearing it became apparent that this case could not after all decide on the lawfulness of the Guidance because I am not facing any enforcement action myself. Therefore the case should not continue”.
In his judgment Mr Justice Lewis stated:
”During the course of argument I raised a problem that is that the Courts are reminded of the undesirability of deciding an issue absent a proper factual context… the Court has warned against abstract actions and needs a proper factual matrix to assess cases… In the light of that there is very little purpose to this hearing as it would not resolve anything. CRT would prefer, as a responsible public body, to have a judgment that would allow it to discharge its duties in the right way but any judgment that I could give would be very little use on the ground.”
Mr Brown added “The arguments presented by my legal team will be of assistance to boaters who are subject to enforcement action”. He was represented by Chris Johnson of Community Law Partnership and Martin Westgate QC.
Lewis J raised a number of legal points that will be of no comfort to CRT. He found s.17 (3) (c) (ii) of the British Waterways Act unclear: “The more you look at the statute the weirder it becomes” he commented. He added that it would have been helpful if CRT had addressed this dispute by seeking new legislation. Mr Justice Hildyard also told CRT this in the Moore case in 2012.
Mr Justice Lewis agreed that as far as “bona fide navigation” was concerned, what was good for boaters with moorings was also good for those without. “An occasional trip down to the Dog and Duck” might very well be bona fide navigation whether this was from a marina or from a towpath spot.
Mr Justice Lewis also observed that “Place” could be as small as an individual boat length, by stating that the mooring or other “place” to keep a boat required by s.17(3)(c)(i) has the same meaning as the “place” used in s.17(3)(c)(ii).
Lewis J also stated that in his opinion, the Guidance took legislation that was already difficult to understand and did not make understanding it easier. Mr Brown observed that this means the Guidance is of little assistance to a boater seeking to ensure he is compliant with the British Waterways Act 1995. Contrary to CRT’s assertion that the Guidance remains “valid and applicable” it is now called into question.
Mr Brown was granted leave to proceed with the judicial review by Lord Justice Jackson in July 2013. Permission was confined to the issue of whether the Guidance accurately reflects s.17(3)(c)(ii) of the British Waterways Act 1995. This governs the obligations of boaters without home moorings. Non-compliance can result in the seizure and removal of the boat.
CRT attempted to claim costs in excess of £100,000. This could have deterred other challengers, but Mr Justice Lewis rejected CRT’s application and ruled that CRT would have to justify the amount claimed.