QC's legal advice proves there is no general public right to navigate non-tidal river

[thecrow]

What is british canoeing's response to this? seeing as they are the governing body for canoeing in the uk

Nothing about it on Song of the Paddle so maybe the BC are not yet aware of it.

 

[The bad one]

I think we might be missing a trick here on this subject.
That trick being in seeking eminent legal advice from QC Hart, I suspect ATr are looking at another route to tackling the problem. For those that have followed the saga from the ATr’s point of view, they have attempted to get the BCU to withdraw its mistaken advice to its members about national PRN. Now could it be that the route based on this learned opinion, is to go down the criminal incitement route?
If this is the strategy it’s looking at, it would be something of victory to have them criminally prosecuted in the courts and could make it easier to take on the errant paddlers and get that all important case precedent we all believe is need to start to rid us of the problem.
Maybe there’s more than one way to skin a cat in this case?

 

[greenie62]

.... Now could it be that the route based on this learned opinion, is to go down the criminal incitement route?
If this is the strategy it’s looking at, it would be something of victory to have them criminally prosecuted in the courts and could make it easier to take on the errant paddlers and get that all important case precedent we all believe is need to start to rid us of the problem...

I like your thinking there, Phil - the only snag is that it needs the CPS to be involved - and they haven't exactly covered themselves in glory in the selection of cases to pusue!

 

[thecrow]

I would love to see a court case against an illegal paddler, my only fear is how they would be caught as if a boat were used wouldn't that boat be breaking the law as well, maybe a grappling hook from the bank or a bridge would help

 

[Peter Jacobs]

Before any "criminal" case can be brought the legal precedent needs to be set and that would require the actual law to be agreed in court.

Once established as "law" then illegal paddlers can be prosecuted accordingly.

 

[Windy]

Canoeists protest their rights to a GRN on the M1....

Canoe in M1 outside lane stops traffic flow - BBC News

Must confess, wouldn't mind reading a copy of said QC's opinion to see how far my pathetic Junior dabblings may have gone right or wrong. Anyone got a copy ?

 

[binka]

Must confess, wouldn't mind reading a copy of said QC's opinion

At the bottom of the link in the original post there are three PDF's, the bottom is a ten page document and is the most recent if that helps at all Windy?

Regarding the canoe on the M1 the paddlers are probably trawling the Magna Carta right now to try and come up with some sort of bizarre, ancient right which supposedly allows them to be there mg:

 

[sam vimes]

Must confess, wouldn't mind reading a copy of said QC's opinion to see how far my pathetic Junior dabblings may have gone right or wrong. Anyone got a copy ?

David Hart QC’s Further Advice 8th January 2017

 

[thecrow]

Good link, I particularly like the headline on the right

 

[binka]

This is very bizarre.

To save you having to refer to the previous page in this thread I contacted Canal and River Trust with the following question:


Dear Canal & River Trust,

I would like to draw your attention to the recent advice published by David Hart QC on the subject of Public Rights of Navigation on non-tidal waterways in relation to illegal paddlers using canoes and kayaks, details of which may be found here:

QC's legal advice proves there is no general public right to navigate non-tidal rivers in England and Wales - The Angling Trust

I will be lobbying the Angling Trust and Environment Agency with regard to carrying out actual enforcement work and prosecution of offenders.

I would be grateful if Canal & River Trust would clarify their position on the following:

1) Do Canal & River Trust acknowledge this advice?

2) Will Canal & River Trust be advising canoe & kayak users accordingly and if not what advice will Canal & River Trust be issuing with regard to Public Right of Navigation?

I appreciate your cooperation.


This is the response I've received:


Thank you for your email. All craft on our waters are required to have a licence, which includes canoes, kayaks, rowing boats and paddle boards. Lots of information can be found on our website about this so people should be aware of what is required. We do also get a number of telephone enquiries to check what they need.

Our Enforcement officers and data checkers patrol the waterways checking that boats have the correct licences, but due to limited resources this is done on a weekly or fortnightly basis, so it is a case of catching people using the waterways to check these. Prosecution is always a last resort as can be timely and expensive so we would give the offenders opportunity to purchase a licence before we would consider this action. Being a charity we would hope that people respect this, and act fairly to those who do pay for their licence.

Kind regards

I have responded to point out that my enquiry was in relation to Public Rights of Navigation and not licensing, and have again asked Canal & River Trust to clarify their position on the matter specifically in relation to the questions posed in the initial enquiry.

By way of an update I have received a further reply from CaRT, I am still digesting it and as suggested I have had a (albeit brief) look on their website without finding the answer to my second question which I am told has been answered.

This is their reply...


I am writing in reply to your e-mail of 24 January below.



In relation to your first question, the Trust’s understanding is that section 105 of the Transport Act 1968 provided that statutory rights of navigation would cease to be exercisable in relation to any inland waterway comprised in the undertaking of British Waterways (as it then was, the statutory predecessor to the Trust). We cannot rule out there having been public rights of navigation over certain rivers which pre-dated any such statutory rights, and that these might have survived until today, but the onus would be on the person seeking to rely upon them to prove that that is the case.



With regard to the use of the Trust’s waterways for canoeing and kayaking, please see this link to the Trust’s website https:​//canalrivertrust.​org.​uk/enjoy-the-waterways/canoein​g-and-kayaking - I think that the “FAQs” and “Getting Started” sections will be of particular relevance.



The second question in your original e-mail has already been answered in ********** e-mail of 25 January.



Kind regards.


Personally I think it's far removed from a straight answer.

I will digest the reply further before likely pressing again for a straight yes or no answer as to whether CaRT acknowledge and agree/disagree with David Hart QC's advice along with pushing for clarification on that second question, namely how CaRT will be advising paddlers with regards to PRN if I cannot find anything specific on their website.

 

[binka]

Well...

It's not for the lack of trying believe me but if there are answers in that reply I must be missing them somewhere along the line.

To which I have responded...


Dear ------------


Thank you for your email.


Whilst I appreciate the interpretation which you have supplied in relation to what appears to me to be Canal and River Trust's current stance on Public Right of Navigation on inland waterways, I strongly feel that it stops some way short of answering the original questions in specific relation to and in consideration of the most recent advice published by David Hart QC and which was commissioned by the Angling Trust with regards to what is widely considered to be illegal and troublesome passage of canoes and kayaks on said waters where riparian ownership exists.


This original first question was:


1) Do Canal & River Trust acknowledge this advice?


The question refers specifically to the most recent advice published by David Hart QC which was linked to in my initial enquiry and not Canal and River Trust's existing interpretation based on what is currently the status quo.


If this advise is consistent with Canal and River Trust's current position and policy please confirm this and if it is in conflict with Canal and River Trust's current/future position and policy please confirm and clarify on what basis any conflict/s arise.


In relation to the second question, I have reviewed the initial reply to my enquiry which -------------- kindly supplied but I can find nowhere in it which refers me to the answer.


This question was:


2) Will Canal & River Trust be advising canoe & kayak users accordingly and if not what advice will Canal & River Trust be issuing with regard to Public Right of Navigation?


For clarity, 'accordingly' refers once again to the most recent advice published by David Hart QC with regards to Public Right of Navigation on inland waterways.


I have browsed the website from the link which you kindly supplied but cannot find any reference to any advise on the matter.


From my own interpretation of the advice it would appear to me that paddlers using canoes, kayaks, etc. cannot assume navigation rights where riparian ownership exists and as such would be committing the civil offence of Trespass which, from personal experience then escalates to the criminal offence of Aggravated Trespass due to what are frequently vitriolic and offensive/threatening responses when the perpetrators are confronted.


If you would be kind enough to respond directly to both of these specific questions and clarify Canal and River Trust's position and policy, particularly moving forwards in respect of and consideration of this most recent advice, I would be very grateful.


I firmly believe that it would be in all parties best interests if Canal and River Trust could confirm their clear position on the two specific questions I raise and clarify the matter once and for all.


Please find attached the most recent publication referred to throughout this enquiry along with two preceding publications on the matter.


Kind Regards,



I shall keep you posted.

Apologies if I appear to be like a dog with a bone on this issue but I think it would be a huge step forward if all the agencies involved were singing from the same hymn sheet and ironing out any conflicts between them will cut off the exits in the long run, imo, and prevent a pass the book style blame game from developing between the Angling Trust, Canal and River Trust and the Environment Agency.

I honestly thought that if any had a strong enough will they would be taking this coordination on and not leaving it to an individual

 

[geoffmaynard]

Well done Binka, good effort but you are probably tilting at a windmill.

I have spent years now complaining to the EA and it's welsh counterpart NRW and it soon becomes very apparent there is a distinct pro-canoe/anti-angler agenda firmly in place with its champions in high places i.e. at the very head of the departments we complain to. These individuals are supported in turn by their masters in govt. There is no forward route by awaiting a response from the EA, they will spend ten times as much effort in doing nothing as they will in doing something. They are masters at prevarication, procrastination and job-avoidance, using every arcane item of small print to justify their positions. If you ask them how many canoe-people have been prosecuted - or even charged - with spawning ground offences in the last 30 years, there will be none. There will also be zero complaints recorded against the canoes because the complaints only get recorded if they follow the EA procedure, via the not-fit-for-purpose (iMO) telephone reporting system... So if there are no complaints recorded, there cannot be a problem... ;(

 

[binka]

Thanks Geoff.

I must admit, that's the opinion I'm already beginning to form following my dealings to date with CaRT.

Not that I am going to give up as ultimately someone has to be responsible.

If CaRT refuse to confirm their position then we have to put pressure on the Angling Trust and ask what good did commissioning expensive legal advice do and what are they going to do in terms of action at ground level to justify the spend?

If the Environment Agency fail to acknowledge legal advice we have to put pressure on the Angling Trust to hold the EA accountable.

Squeeze all the pips hard enough and one will fly out, it just depends which one is going to give.

 

[thecrow]

If the Environment Agency fail to acknowledge legal advice we have to put pressure on the Angling Trust to hold the EA accountable.[/quote]

I fear that is going to be nigh on impossible considering the financial hold the EA have over the Angling Trust.

 

[floatfish]

Maybe going over old ground,apologies if so, but the tolerance of the authorities in favour of the Canoes is evident on the Yorkshire Derwent. Boat/vessel Navigation from Stamford Bridge via Howsham and Kirkham to Malton was proposed some years ago by a consortium headed by the local landowners for two or three Marina type developments and berthing. Locks to be built at the weirs. This project was taken through all the courts ending up in the Lords. Navigation was rejected as there had never been any recorded Navigation rights on the River above Stamford Bridge.. So the scheme was abandoned .
Yet to this day canoes are still to be seen going up and down that River with no let or control attempted.And probably will continue to do so into the foreseeable future.

 

[thecrow]

We cannot rule out there having been public rights of navigation over certain rivers which pre-dated any such statutory rights, and that these might have survived until today, but the onus would be on the person seeking to rely upon them to prove that that is the case.

Right there is the answer I think, they don't know but wont say so and are unwilling to say either way preferring to let someone else sort this mess out (the trust the EA or Bcu)
seems to me they don't want to get involved

 

[Neil Maidment]

Right there is the answer I think, they don't know but wont say so and are unwilling to say either way preferring to let someone else sort this mess out (the trust the EA or Bcu)
seems to me they don't want to get involved

Quite probably.

A QC's opinion is a very powerful piece of the overall weight of "evidence" to the case of anyone considering taking a matter to court. The stronger that total weight of "evidence" the more likely they'll consider doing just that. In my limited experience of such things (in a previous life), a "reasonable prospect of success" was the absolute minimum required before we considered any further action. Occasionally we sought "Leading Counsel's Opinion" to reinforce the position. A lot more expense and, in the end, the decision to proceed or not was down to our own in-house legal experts. That was when they really started to earn their money

 

[binka]

Well...

As suspected I today received what I consider to be a completely evasive reply as per:



Dear ---------------


Thank you for your e-mail.



In relation to your first question, we do not think it would be appropriate for the Trust to comment in detail on the advice of David Hart QC. The Trust’s general approach to the question of public rights of navigation is as I have set out below. If any specific instance were to arise involving any part of the Trust’s waterways, the Trust would in any event almost certainly seek its own legal advice on those particular circumstances.




With regard to your second question, the Trust does not propose at this stage to issue any advice in relation to the general question of public rights of navigation.



Kind regards.


I shall have a good think about how I reply, I'm not walking away from it that easily.

I think a line in to the Angling Trust to state Canal and River Trust's apparent refusal to acknowledge David Hart QC's advice and advise paddlers accordingly, will be a good start with a further request that the Angling Trust also take up the matter directly with Canal and River Trust.

I'm very surprised and disappointed that a Trust which controls and governs the waterways of England and Wales does not have any set policy or guidance with regards to the issue particularly as it is keen to promote kayaking and canoing via its website.

I wonder if there is some sort of negligence angle on this, perhaps owing to an obligation to advise users of the law with regards to PRN?

 

[thecrow]

You would think that this "charity" with an income of almost £188 million last year would be able to fund a court case to prove this one way or another.

 

[chris osborne 2]

While it would be good to get a reply from the canal & river trust, why not contact canoe England, the governing body for the sport?