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The lack of a common-law right does not make a deed unlawful

8th July, 2013

A person who owns a property where there is a watercourse within or adjacent to the boundaries of their property is a riparian owner.

In Moore v British Waterways Board [2013] EWCA Civ 73, the Court of Appeal held that the British Waterways Board (BWB) had no right to demand the removal of vessels moored to part of the canal bank adjacent to a riparian owner’s land.

For background, the BWB sought the removal of vessels moored at a tidal section of the Grand Union Canal adjacent to a riparian owner’s land. BWB relied upon s8 of the British Waterways Act 1983 (“the Act”) which at the time authorised the BWB to remove any vessel moored unlawfully without its authority.

The riparian owner claimed that riparian ownership had created a common-law right to moor permanently.

The case proceeded to trial and the High Court decided that the riparian owner did not have a right to moor vessels alongside his land except for the purpose of temporary access to his land.

The riparian owner appealed the High Court’s decision and the Court of Appeal found in his favour, deciding that the High Court had been influenced by the riparian owner’s claim to have a riparian right to moor vessels when it should have concentrated on the question of whether the riparian owner had moored the vessels unlawfully.

Whilst the presence of vessels at a permanent mooring is not unlawful, the Court of Appeal did agree with the High Court’s ruling that a riparian owner had no entitlement, simply by reason of that riparian ownership, to moor a vessel alongside their riparian land.

This decision highlights the fact that notices served under s8 of the Act must only be used where the vessels in question are moored unlawfully. Where the owner of the vessel is doing nothing wrong in mooring his vessel alongside his part of the bank, then he has acted within the law.

For more information on this or any other property dispute matter please contact Elizabeth Corcoran on 01244 405560 or email [email protected]

 

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