Rivers Access News
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In 1892 the House of Commons passed a Resolution on the need for legislation for the purpose of securing the right of the public to enjoy free access to uncultivated mountains and moorlands especially in Scotland, subject to proper provisions for preventing any abuse of such right.  In Scotland there is now the Scottish Land Reform Act (2003) which enshrines the right of access to land and water.

           

However, a Government report in December 2001 indicated that on some 42,700 miles of rivers in England and Wales, less than 1,400 miles have formally established navigation rights providing secure rights of access.  In the last 40+ years only 500 miles of highly restrictive access agreements have been achieved, some are for as little as one day per year.  As there are some 2.5 million canoeists, as well as other recreational users, the need to make further progress in strengthening and clarifying public rights of responsible access to water is clear.

 

In 1947 a Special Committee reported to the Minister for Town and Country Planning that ‘As a contribution to healthy recreation and the full enjoyment of the countryside we strongly recommend the provision of public access to inland water in all suitable cases’.[1]  Since that date the recommendation has been accepted but no action has been taken.  All who are interested in the recreational use of the unregulated[2]non-tidal rivers of England would like to see certainty as to where and when boats may be used.  This paper seeks to provide a way forward.

 

Since 2006 Government policy has been that separate arrangements should be made for each river rather than by overriding legislation.  No progress has been made because the parties do not know which sections of rivers are public and which are private.  Arrangements for access on private rivers are by means of a licence granted by the riparian owner.  Arrangements for access on rivers on which there is a public right of navigation are by a statement of the public right and appropriate limitations for environmental reasons.

 

The Law

 

The Law Books written between 1830 and 1990 assumed that the law relating to access on rivers was the same as for highways on land.  In 1991 the House of Lords stated that this was not correct.[3]  Thus a correct understanding of the law can only be obtained by reference to the statutes and cases at Common Law.[4]

 

The many statute laws are best summarised by the Act of 1472: "Whereas, by the laudable Statute of Magna Carta, amongst other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the Straitness [obstruction] of all Rivers, so that Ships and Boats might have in them their large and free Passage..."[5]

 

These Acts were limited by the courts to rivers which were physically usable by boats.[6]  Thus by statute there is a public right of navigation on all rivers which are physically usable by boats. 

 

This is the law which the courts have applied.

 

The court found that the Yorkshire Derwent was not physically usable by boats of three tons at the start of legal history, 1189, and thus that there was no public right of navigation on the river for boats of that size.[7]

 

It was held that the Mole was not naturally physically usable and thus that there was no public right of navigation on the river.[8]

 

A court held that there is a public right of navigation on the usable river Trent to its source.[9]  Another court held that there is a public right of navigation on the usable river Wensum upstream of Norwich.[10]  The House of Lords held that there had been a public right of navigation on the usable section of the Great Ouse between the dams.[11]

 

Courts gave instructions that sections of many rivers previously usable should be cleared so that they could again be used by boats.[12]  On other rivers, like the Kentish Stour at Canterbury,[13]there was a requirement that bridges be built high enough to allow boats to pass.[14]

 

At Abingdon on the Thames it was held that where the river had been improved for the benefit of the users of boats a toll could rightly be charged while use of the rest of the river was free.[15]

 

On the Severn where the channel had become unusable by the natural change in the river channel it was held that there was no public right of navigation at that point but by implication such a right did exist on the rest of the river.[16]

 

In Scots Law it was held that there was a public right of navigation on a river which was only physically usable downstream.[17]

 

Again in Scots Law where only one channel in the river was physically usable for part of the year it was held that the public right of navigation was limited to this usable channel.[18]

 

It should be noted that in the case Rawson v Peters the existence of a public right of navigation was not discussed.[19]

 

It has recently been reconfirmed that where there was once a public right of navigation that right still exists unless it has been extinguished by legislation or the channel has become unusable.[20]

 

Thus the courts have consistently held that there is a public right of navigation on physically usable rivers with a right for riparian owners to levy a toll where the river has been improved for the use of boats, as on the regulated rivers.

 

Physical usability of a river always depends on the size of the boat.  It also depends on the depth of the river on a particular day and this depends on the flow.  Some rivers are obstructed by the growth of vegetation in summer.

 

The Way Forward

 

Canoe England calls on the government to develop the recreational use of rivers by boaters, swimmers and paddlers by:-

 

(a)    state clearly that it accepts the law as set out in the statutes and applied by the courts;

 

(b)    stating under what conditions a physically usable river should not be used for environmental reasons, eg depth required above spawning beds;

 

(c)    establishing suitable access points to the river:

a.       Public - From highways and footpaths which cross or are adjacent to the river;

b.      Private - By licence from the riparian owner;

c.       Regulated -  By a Local Planning Authority Agreement or Order[21]or by dedication;[22]

 

(d)   establishing appropriate portage routes round obstructions.  It has always been the law that ‘an obstruction in a public place does not become legal no matter how long it has been in place’.  On rivers the best way to ensure continuity of passage is either for a ‘boat channel’ to be created or for a suitable portage route to be provided.

 

(e)    A Code of Conduct for all users of non-tidal rivers should be produced.

 

There has been much talk about the Olympic Legacy for increased physical recreation. Canoeing is an ideal sport for many people with restricted mobility.  Canoe England believes that a clear lead is needed from the Government to provide certainty regarding the use by the public of rivers which is at present restricted by a misunderstanding of the law.

 

Fuller details are available from Canoe England at 18 Market Place, Bingham, Nottingham  NG13 8AP and are also set out in Boats on our rivers again by Rev’d Douglas Caffyn available from Canoe England and caffynonrivers.co.uk

 

 



[1]Ministry of Town and Country Planning, ‘Footpaths and Access to the Countryside’.  Report of the Special Committee.  Command Paper 7207.  September 1947. Para 217.

[2]An unregulated river is one where there is no active navigation authority.

[3]A-G ex rel Yorkshire Derwent Trust Ltd v Brotherton [1992] AC 425.

[4]See O’Connell etc. v The Queen (1844) XI Clark & Finnelly, 155, 373.

[5]1472 12 Edward IV c.7  An Act for Wears and Fishgarthes.

[6]Rolle v Whyte (1868) 3QB 286

[7]A-G ex rel Yorkshire Derwent Trust Ltd v Brotherton (1988) 59 P&CR 60

[8]Bourke v Davis [1889] 44 ChD 110

[9]‘Royal Commission to inquire into Obstructions of the course of the Trent at Colwick.’ (1383) In W.V. Steveson, Editor, Records of the Borough of Nottingham. Volume I  Nottingham: Corporation of Nottingham.  1882.

[10]Haspurt v Wills  (1671)  1 Ventris 71

[11]A-G v Simpson [1901] 2 Ch 671

[12]See D.J.M.Caffyn, ‘River Transport 1189 – 1600’  A thesis presented to the University of Sussex 2011.  Appendix A.

[13]Calendar of Patent Rolls, 1258-66, 342.

[14]For example Wrangle Drain. See H.E. Hallam, Settlement & Society. Cambridge: Cambridge University Press. 1965, 171.

[15]Chron. Mon de Abingdon, I, 480-1.  Quoted in R.H.C. Davis, ‘The Ford, The River and The City.’  Oxoniensis.  Volume 38. (1973), 258-267, 263.

[16]Williams v Wilcox (1838) 8 Ad & El 314

[17]Wills’ Trustees v Cairgorm Canoeing and Sailing School Ltd  1976 SLTR 162

[18]Colquhoun’s Trustees v Orr Ewing and Co 1877 4th Series SC 344

[19]The Times, 2 November 1972.

[20]Rowland (Josie) v The Environment Agency, [2003] 1 All ER 625

[21]Under Clause 16 of the Countryside Act 1968

[22]Under Clause 15 and 16 of the Countryside and Rights of Way Act 2000