tag:blogger.com,1999:blog-35622188192376551182024-02-20T15:45:01.256-08:00Rivers and the right to navigateBrevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-3562218819237655118.post-18334244762870275642014-06-20T06:21:00.000-07:002014-06-20T06:21:42.613-07:00What happens in the rest of the world?<h3>
Scotland</h3>
Scotland has public use of inland water subject to a code of conduct. There have been some issues related to heavy use of certain rivers for paddling and fishing.<br />
<br /><br />
<h3>
United States</h3>
Example of the <a href="http://www.songofthepaddle.co.uk/forum/showthread.php?29131-A-good-example-of-getting-along&p=324811#post324811" target="_blank">Au Sable river, Michigan</a><br />
<br />Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-86918544605277351312014-06-20T05:33:00.003-07:002014-06-20T05:33:55.922-07:00How can I get involved in looking after my local riverPaddlers can get involved in looking after their local river in a number of ways<br />
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<ul>
<li>Litter removal</li>
<li>Removing invasive weeds</li>
<li>Habitat improvement</li>
<li>Repairing bank erosion</li>
<li>Surveying flora and fauna</li>
<li>Removing obstructions (to boats and fish)</li>
<li>Becoming members of wildlife and rivers trusts</li>
</ul>
<div>
</div>
Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-9841191753793037092014-06-20T05:25:00.003-07:002014-08-17T06:37:53.658-07:00Why do paddlers want Volountary Access Agreements?<p dir="ltr">Some paddlers do make agreements with local landowners over when and where paddling takes place.</p>
<p dir="ltr">The stability achieved the allows both groups to plan their activities and invest in their development. This is probably good for paddling clubs and commercial providers who need regular planned use of a defined area of water for club sessions and courses.</p>
<p dir="ltr">However those paddlers in less formal groups (or none at all) tend not to plan trips so far in advance, but rather need access to the right type of water at the time they wish to paddle. This could be locally, or further afield. </p>
<p dir="ltr">Clubs need regular (usually weekly) access to a local stretch of water for members to meet and pracytce  plus places to visit for other types of paddling.</p>
<p dir="ltr">My own feeling is that having more agreement over use of water would enable better development of river sports - but that will only be achieved if those agreements provide suitable opportunities for the majority. </p>
<p dir="ltr">I do not believe it is necessary to have the ability to paddle anywhere at any time provided it is possible to paddle the right type of water at any time, somewhere that can easily be reached (e.g. locally if conditions permit).</p>
<p dir="ltr">It should be possible to group rivers in s locality and have up to half available for paddling at any one time and still keep others availble for fishing only at that time.<br></p>
Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-20238700519505810392014-06-19T05:37:00.000-07:002014-06-20T01:50:57.210-07:00Magna Carta and Navigation<span id="internal-source-marker_0.4510352285934043" style="background-color: transparent; color: black; font-family: Arial; font-size: 11pt; font-style: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;">Clause 33 of the Magna Carta of 1225<br />All kydells shall be removed from all rivers</span><br />
<br /><br />
<span style="font-family: Arial;">It is argued that this only applied to the 'Great Rivers' of England - Thames, Severn, Humber, Ouse. The clauses of Magna Carta have anyway since been repealed.</span><br />
<span style="font-family: Arial;"><br /></span><br />
<span style="font-family: Arial;">Evidence does exist that shows Navigation of other rivers - e.g. in Sussex </span><br />
<span style="background-color: transparent; color: black; font-family: Arial; font-size: 11pt; font-style: normal; font-weight: normal; text-decoration: none; vertical-align: baseline;"><br /><br />The king against clark.<br /> Information for building locks on the river Thames. An information was filed against Clark for building of locks on the river Thames, to the obstruction of navigation. And per Holt, Chief Justice, to hinder the course of a navigable river is against Magna Charta,</span><br />
<span style="font-family: Arial;"><br /></span><br />
<span style="font-family: Arial;">A <a href="http://www.songofthepaddle.co.uk/forum/showthread.php?45583-Wales-Open-for-Canoeing&p=535676#post535676" target="_blank">comment</a> on the Magna Carta from Song of the Paddle</span>Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-11558453355363234202014-06-19T05:36:00.001-07:002014-06-19T05:36:25.630-07:00Legal Case comment - Yorkshire Derwent Trust V Brotherton et AlIn this case, the Yorkshire Derwent Trust sought to be able to repair a set of locks on a cut on the river, thus re-enabling navigation. The owners of the land on which the locks stood (Brotherton and others) objected. The Trust sought to use the 1932 rights of way act to establish a right of way existed over water, as on land. This argument was rejected by the court which said the act did not apply to waterways.<br />
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Many commentators quote this case when saying that there is no public right of Navigation on inland waterways. However what the court decided was that a public right to navigate could NOT be claimed under the 1932 highways act as a river is not a highway as defined in that act.<br />
<br /><br />
However the court did confirm that a Navigation Act did create a public right to navigate a river, subject to tolls if carrying cargo.Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-56795176943234260862014-06-19T05:33:00.003-07:002014-06-19T05:33:40.238-07:00Itchen Navigation Case StudyThe Itchen Navigation (Hampshire) is a good illustration of how unclear it can be if a right of Navigation exists. What I will do here is to highlight information relevant to that issue. <br />
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<b>WARNING</b> The final decision on any legal right of Navigation can only rest with a court. I can take no responsibility if you do not check the legal validity of what is posted here and you get arrested or sued as a result.<br />
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This will be presented as a reverse timeline, most recent events first.<br />
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<br /><br />
1992 - 15th July, <a href="http://hansard.millbanksystems.com/written_answers/1992/jul/15/itchen-navigation#column_769w#column_769w">House of Commons debate</a> (Recorded in Hansard)<br />
The Secretary of state for transport is asked about the protection for the public rights of access and passage to and along the Navigation during construction works for the M3. He states the government <br />
<blockquote>
is advised that the Navigation is in law a Navigable Waterway, and that the diversion works would enable it to be made navigable in future, and this would adequately protect the public rights</blockquote>
1874 Hargreaves V Diddams (Court Case)<br />
A public right to fish in the Itchen was claimed - the court ruled there was no right to fish. Even though the Navigation Act of George 3rd had created a public right to navigate the river (as a highway), the ownership of the soil (and rights to fish) remained in the owners of the adjacent land.<br />
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1662Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-64714553684215045932014-06-19T05:29:00.001-07:002014-06-19T05:29:06.619-07:00Navigation Acts show ancient public right of NavigationSince the 1600's there have been many acts of parliament passed (and repealed) for the purpose of 'making rivers navigable'.<br />
<br />
Why would you need to pass a law to alter the river in order to carry out works to make to make it navigable, and to levy charges?<br />
<br />
There are two reasons<br />
<ol>
<li>Firstly the rivers were the property of the crown, upon which the subjects of the realm had free passage, as on a highway. To make any work which would obstruct this right, or to charges tolls, required Royal Consent, as given in an act of Parliament. This was the same when bringing in turnpikes, where charges were made for roads, and both navigations and turnpikes were for a time treated equally.</li>
<li>Magna Carta had outlawed obstructions to the free passage of vessels (and later fish) in all rivers. To place a lock or weir would be an obstruction and illegal without an act authorizing it.</li>
</ol>
<br />
Certainly to raise the tolls to pay for the works, certainly to overcome the loss to landowners should the works affect their property, but one other interesting reason is quoted in 'Wisdom's law of waters (5th Edition 1992)' Obstructing a navigable watercourse by creating a lock or weir was illegal on any river because of a clause in the Magna Carta of 1225 as contested in the King V Clark (1702). The clause (33) in the charter was for the removal of all fish weirs except on the coast. A later revision only permitted those that had been present in the reign of Edward 1st. So in the 1600's and later if you wanted a new weir or lock to make the river passable for larger vessels, it would have to be legislated for to avoid breaking this ancient law.<br />
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<br />
Why did the Magna Carta call for such action? To enable the passage (navigation) of vessels without obstructionBrevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-73382844029713790912014-06-19T05:26:00.002-07:002014-06-19T05:26:50.606-07:00What's it all about then?Navigation on a river is passing along the waterway (in either direction), usually in a boat.<br />
It is different to accessing a river, which is crossing land to reach the water.<br />
Unfortunately 'access' is used to refer to both.<br />
<br />
<br />
<br />
<span style="font-weight: bold;">What is the issue?</span>In England and Wales it has been <span style="font-weight: bold;">generally believed</span> that the owners of the land next to a river or lake have the right to prevent any use of the water without their permission, and that if anyone does use the water without permission, it is trespass, and those responsible can be taken to court for damages.<br />
<br />
See <a href="http://www.riversaccess.org/">http://www.riversaccess.org/</a><br />
<br />
<br /><br />
This of course, does not apply where there is a legal right of Navigation. This is only clear for 4% of inland waterways in England and Wales.<br />
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More recently evidence has been presented that historically use of rivers for navigation by the public was not disputed (it was a common right) and that right still exists.<br />
<br />
<span style="font-weight: bold;"><br /></span><br />
<span style="font-weight: bold;">What is my interest?<br /><span style="font-weight: bold;"><span style="font-style: italic;"></span></span></span>I paddle canoes so have an interest in being able to use waterways for that purpose. I believe that water sports contribute to keeping people fit and active, and enable people to gain an appreciation of our environment by getting them out in it. <br />
Any activity in a shared environment of course has to take into account the needs of other users and the protection of the environment itself.<br />
<br /><br />
I also beleive that in the past, rivers were open to the public to pass along, and until relatively recently, there was not a legal issue over this. I hope to provide people with more information about both side of the debate.<br />
<span style="font-weight: bold;"><br /><span style="font-weight: bold;"><span style="font-weight: bold;"></span></span></span><br />
<span style="font-weight: bold;"> </span><span style="font-weight: bold;"><span style="font-weight: bold;"></span><br /></span>Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-18600110764519631252014-06-19T05:17:00.001-07:002014-06-19T05:17:58.486-07:00River use before Navigation ActsIt is argued by some that navigation of Inland rivers in England requires an Act of Parliament - A Navigation Act. Navigation acts mostly date back to the the period of the industrial revolution (The earliest from the 16th C concern the rivers Lea and Thames).<br />
<br />
However if there is evidence of river Navigation can be found which either pre-dates a Navigation act, or is for a river for which there is no Navigation act, then where does the right to Navigate come from? <br />
It must come from a historical and public right.<br />
<br />
For example, take the River Monnow in South Wales. In 2003 a dig at the site of the castle at Skenfrith<br />
found evidence of a wharf probably dating back to the re-construction of the castle around 1220. No Navigation act exists coverng this section of the Monnow.<br />
<br />
Another example is Beverley in Yorkshire - again there is evidence for a Wharf at Beverley which pre-dates any Navigation Act which may have applied to that water. <br />
<br /><br />
In the Cairngorm Sailing School Case appeal, the river Spey was found to be navigable as prior to 1782 the river had been used for the transport of timber rafts, and thus a public right of navigation was acquired through long user (One of the means by which a right can be established)<br />
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<br />Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-62451764636570834372012-07-31T05:50:00.000-07:002012-08-07T09:11:46.416-07:00Laws about Fishgarths show Right of NavigationDo Medieval Laws introduced to control the nuisance of Weirs, Fishgarths (a type of fish trap staked into a river) and other impediments record the existence of an ancient public right of Navigation on rivers (PRON)?<br />
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For example consider a 1531 Fish Act enacted on behalf of the people of York and the surrounding areas. Part of their reason for asking the King to enact the law was the interference <br />
"upon the <strong>common</strong> Passage for Ships, Keyls, Cogs, Boats, and other Vessels, ... in the said River of <em>Ouse</em> , and Water of <em>Humber"</em><br />
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There are earlier legal references to this nuisance - A 1472 Act, and revisions to the Magna Carta.<br />
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By contrast the first <strong>Navigation</strong> act concerning the river Ouse is in 1793.<br />
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It is argued that there is no ancient public right of Navigation on Inland Waters in England and Wales, and that this right is only created where a Navigation Act is passed. If this were true, <br />
<ul>
<li>There would be no right of passage for vessels to be impeded by the Weirs, Fishgarths and other structures placed in the river (presumably by those who own the land adjacent). </li>
<li>There would be no need to legislate to remove these impediements or to provide the right to obstruct the river by building weirs and locks to make them navigable for larger vessels (the purpose of the early Navigation Acts)</li>
</ul>
Recently a paddler took a case to prevent an Angling Club intefering with his right to navigate a river based on the 1472 Act for Wears and Fishgarths, stating that it confirms a Public Right of Navigation on Inland waters. (See <a href="http://www.songofthepaddle.co.uk/forum/showthread.php?35057-Legal-Opinions-on-Dr-Caffyn-s-Work&p=416656#post416656" target="_blank">Song of the Paddle</a>)<br />
The outcome would appear to support the case for the existence of an Ancient Public Right of Navigation <br />
<br />
<div class="GKY2L2ICBB">
There are accounts from the time of Henry VIII of the actions to remove illegal weirs. The Lisle letters (1480-1592)refer to the weirs on the estate of Honor Lisle (at Umberleigh, on the River Tawe, North Devon) and also the fact the King had ridden throughout Hampshire to see himself the statutes were being obeyed. on <a href="http://riveraccessrights.blogspot.com/2012/07/laws-about-fishgarths-show-right-of.html" target="_blank"><span style="color: #1155cc;">Laws about Fishgarths show Right of Navigation</span></a></div>
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</div>
<div class="GKY2L2ICBB">
The Henry Percy, The 4th Earl of Northumberland was on a commission to deal with them on the rivers around York in 1484. Another reference specifically refers to the Bishop of York taking up the issue of one (Golden Garth) on the river Aire, which was removed (A history of the City of York, Gareth Brunton Knight, 1944)</div>Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com1tag:blogger.com,1999:blog-3562218819237655118.post-31895002067563004832010-11-17T12:51:00.001-08:002011-01-04T08:05:46.467-08:00Acts and Cases relating to inland water NavigationI have been collating a list of the cases and acts which have relevance to the Navigation of Inland waters and presented them as a timeline, starting with the present and going back.<br /><br />I've linked to a document below which I will update as I find out more.<br /><iframe width=100% height=560px frameborder=0 src=https://docs.google.com/document/d/1oCb_bhvzpwzLjCW3-86T-zcDvcf6JziP1h-ZzJu1L8U/preview?authkey=CKaQkTM&hl=en></iframe><br /><br />BrevanBrevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0tag:blogger.com,1999:blog-3562218819237655118.post-1832495533529471812010-10-27T13:03:00.000-07:002014-06-19T05:21:33.699-07:00A confusion of meaningsThe legal system has not helped in the debate over public rights of navigation by its confused use of terms.<br />
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In the debate about access, much is made over the terms used to describe waterways.<br />
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You will find tidal waters referred to as 'Navigable' and inland waters as 'Non-navigable' and 'Private'. At first glance these terms would seem to clearly refer to the right to pass along the water in a vessel such as canoe.<br />
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<span style="font-weight: bold;">navigable </span>is used in 3 different ways in legal cases.<br />
<ol>
<li>To distinguish between tidal (<span style="font-weight: bold;">navigable</span>) waters where the soil under them is in the possession of the crown, and there are public rights of fishing (in general) AND non tidal waters (<span style="font-weight: bold;">non-navigable</span>) where the soil is generally in the possession of the owner of the adjacent land, and with it the rights to fish, extraction and use of the water and banks (the 'Riparian rights')</li>
<li>To describe if a river is physically capable of navigation. Acts of parliament have been passed giving powers to 'make rivers navigable' and provide compensation to the owners of the land for any losses by such works.</li>
<li>To describe if the river may be navigated or not in a legal sense.</li>
</ol>
You can probably see where the problem lies, if all the rivers described as non-navigable under meaning 1, were then interpreted as being non-navigable under the third meaning. All non tidal waters would not be legally navigable.<br />
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Cases up until Bourke V Davis (1890) did not discuss 'navigation' of inland waters but if the river was 'navigable' in relation to ownership of the soil, so that ownership of disputed rights to fish could be determined.<br />
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<br />Brevanhttp://www.blogger.com/profile/11641710155699693985noreply@blogger.com0