Friday, June 20, 2014

What happens in the rest of the world?


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.

United States

Example of the Au Sable river, Michigan

How can I get involved in looking after my local river

Paddlers can get involved in looking after their local river in a number of ways

  • Litter removal
  • Removing invasive weeds
  • Habitat improvement
  • Repairing bank erosion
  • Surveying flora and fauna
  • Removing obstructions (to boats and fish)
  • Becoming members of wildlife and rivers trusts

Why do paddlers want Volountary Access Agreements?

Some paddlers do make agreements with local landowners over when and where paddling takes place.

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.

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.

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.

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.

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).

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.

Thursday, June 19, 2014

Magna Carta and Navigation

Clause 33 of the Magna Carta of 1225
All kydells shall be removed from all rivers

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  The clauses of Magna Carta have anyway since been repealed.

Evidence does exist that shows Navigation of other rivers - e.g. in Sussex

The king against clark.
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,

comment on the Magna Carta from Song of the Paddle

Legal Case comment - Yorkshire Derwent Trust V Brotherton et Al

In 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.

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.

However the court did confirm that a Navigation Act did create a public right to navigate a river, subject to tolls if carrying cargo.

Itchen Navigation Case Study

The 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.

WARNING 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.

This will be presented as a reverse timeline, most recent events first.

1992 - 15th July, House of Commons debate   (Recorded in Hansard)
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
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
1874 Hargreaves V Diddams (Court Case)
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.


Navigation Acts show ancient public right of Navigation

Since the 1600's there have been many acts of parliament passed (and repealed) for the purpose of 'making rivers navigable'.

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?

There are two reasons
  1. 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.
  2. 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.

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.

Why did the Magna Carta call for such action? To enable the passage (navigation) of vessels without obstruction