Case will not resolve lawfulness

NICK Brown, claimant in the judicial review proceedings against Canal & River Trust (CaRT) to decide whether the Guidance for Boaters Without a Home Mooring is lawful, yesterday afternoon discontinued the action, as reported in narrowboatworld, and now writes:

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.

Abstract actions

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. CaRT 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 judgement that I could give would be very little use on the ground."

The arguments presented by my legal team will be of assistance to boaters who are subject to enforcement action.

A 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 stating:

"The more you look at the statute the weirder it becomes."

Should seek new legislation

And added that it would have been helpful if CaRT had addressed this dispute by seeking new legislation. Mr Justice Hildyard also told CaRT 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, adding:

"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 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 CaRT's assertion that the Guidance remains 'valid and applicable' it is now called into question.

I 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.

CaRT attempted to claim costs in excess of £100,000. This could have deterred other challengers, but Mr Justice Lewis rejected CaRT's application and ruled that CaRT would have to justify the amount claimed.