Friday, June 20, 2014
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 The clauses of Magna Carta have anyway since been repealed.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,
A comment on the Magna Carta from Song of the Paddle
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,
A 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.
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
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.
1662
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 rights1874 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.
1662
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
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
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
- 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.
- 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
What's it all about then?
Navigation on a river is passing along the waterway (in either direction), usually in a boat.
It is different to accessing a river, which is crossing land to reach the water.
Unfortunately 'access' is used to refer to both.
What is the issue?In England and Wales it has been generally believed 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.
See http://www.riversaccess.org/
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.
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.
What is my interest?
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.
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.
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.
It is different to accessing a river, which is crossing land to reach the water.
Unfortunately 'access' is used to refer to both.
What is the issue?In England and Wales it has been generally believed 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.
See http://www.riversaccess.org/
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.
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.
What is my interest?
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.
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.
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.
River use before Navigation Acts
It 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).
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?
It must come from a historical and public right.
For example, take the River Monnow in South Wales. In 2003 a dig at the site of the castle at Skenfrith
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.
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.
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)
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?
It must come from a historical and public right.
For example, take the River Monnow in South Wales. In 2003 a dig at the site of the castle at Skenfrith
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.
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.
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)
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