Seeking agreement on access to unregulated non-tidal rivers

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John Saunders
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Seeking agreement on access to unregulated non-tidal rivers

Post by John Saunders » Mon Nov 14, 2011 1:23 pm

Seeking agreement on access to unregulated non-tidal rivers

The implication by the Angling Trust that the historic understanding of the law relating to access to non-tidal rivers is incorrect makes possible agreement on the use of rivers by canoeists and other river users.

Where there is a public right of navigation “agreements”will normally be in the form of a Statement recommending when the river should not be used for environmental reasons and providing suitable launching sites and portage routes. Otherwise a right of navigation may be dedicated to the public permanently.

Where there is no public right of navigation “agreements”will be in the form of Licences from the owners of the banks permitting the use of the rivers at various times.

The problem is to determine where there is a public right of navigation and where there is not.

I have written to the Minister for the Natural Environment, the Minister for Sport, the Angling Trust, Canoe England, the chairmen of all the English River Trusts and other organisations asking them for their understanding of the basis of the law relating to the creation of a public right of navigation. A copy of the letter follows.

I also invite those with a knowledge of the law to write to me giving their opinion as to the correct basis of the law.

Douglas Caffyn.


255 Kings Drive
Eastbourne
East Sussex BN212UR

9 November 2011

Dear Sir,

The Government and the Angling Trust seek to improve access for the public to the unregulated rivers by means of “access agreements”. However less that 0.5 per cent of the unregulated rivers are covered by “agreements” because the parties are not agreed as to where there is a common law public right of navigation.

On sections of rivers where there is a public right of navigation an “agreement” is normally in the form of a Statement as to when the river should not be used for environmental reasons. Where there is no such right an “agreement”is normally in the form of Licences granted by the riparian owners similar to those for permissive footpaths on land. Lack of certainty of the legal basis of the common law public right of navigation means that interested parties cannot know which type of “agreement” should be used.

The recent Press Release by the Angling Trust (11/10/2011) implies that the Trust accepts that the old understanding of the law was wrong. This may make it possible for us to establish the legal basis which determines where there is a public right of navigation. It should then be possible to negotiate more“agreements”. A clear understanding of the legal basis will also reduce riverbank confrontations.

Since I seem to be the most active person working in this field I am writing to you to ask for your help in resolving this impasse. I will collate your reply with others and,hopefully, an agreed understanding of the legal basis can be established.

I would be grateful if you could tell me:- (a) if you agree with the legal basis asstated in my thesis; or (b) if you have a different understanding of the legal basis and if so what that understanding is; or (c) that you consider that the legal basis is not known.

Please reply by 1st February 2012 when I hope to collate thereplies.

Yours sincerely,

Douglas J.M. Caffyn (Rev’d Dr.)

Enclosed the following statement:-


A statement by The Rev’d Dr Douglas Caffyn. 9/11/2011.

I welcome the press release by Angling Trust of 11/10/2011 concerning the proposed protest paddle on the Salisbury Avon

In this statement I consider the common law right for the public to use boats on non-tidal, unregulated rivers in England. This same law applies to unregulated rivers now and applied to regulated rivers prior to the relevant Navigation Act being passed.

There was a public right for small boats to use nearly all, or all, of the rivers for which Navigation Acts were passed prior to the date of the relevant Acts. The Navigation Acts were passed, not to create a public right of navigation, but to increase the size of vessel which could use the rivers. (Appendices A and D of my thesis for the degree of Doctor of Philosophy ‘River Transport 1189-1600’. University of Sussex. 2011. available at caffynonrivers.co.uk)

I understand that the following matters are agreed by the Angling Trust and myself.

1.There is a public right to use some sections of unregulated rivers but no such right on other sections. (Implied by the Angling Trust Statement.)
2. “The legal basis of a public right of navigation in a non-tidal river should be treated as being in a legal class of its own.” (Angling Trust Statement.)
3.“The public acquisition of a right to navigate on a non-tidal waterway cannot be based on the usual arguments used for “immemorial user” for rights of way on land.” (Angling Trust Statement.)
4.The public right of use of a river cannot be created by dedication. (Attorney-General, ex rel Yorkshire Derwent Trust Ltd v Brotherton and others. 1 AC 425 per Lord Oliver p 435; Lord Jauncey p 444 and 446; Lord Lowry p 447)
5.It follows from paragraphs 3, 4, 5 that the legal basis of the law relating to the acquisition of a public right as stated in the standard legal texts is incorrect since they claim that a public right of navigation is created in these ways. (Woolrych, Coulson & Forbes, Wisdom, Halsbury)
6.The law of England relating to the use of rivers is fixed and it is assumed by the courts that the law is known by the public. (There is no such thing as an unknown law in England.) It is for the courts to apply that law.

However it appears that the Angling Trust and I do not agree on the legal basis.

I consider the legal basis to be:-

1.From 1189 to 1600 there was a public right of navigation on all rivers which were physically usable.
2.Rivers were more navigable in the period 1189 to 1600 than they are now.
3.A right of navigation can only be extinguished by statute, statutory authority or the section of river becoming un-navigable.
4.There is, therefore, now a public right of navigation on all unregulated rivers which are physically usable.

This is explained more fully in my thesis ‘River Transport1189-1600’.

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Mark R
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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Mark R » Mon Nov 14, 2011 10:36 pm

I'm slightly befuddled by this statement; what it's trying to say, and what the purpose of it is.

Anyone want to paraphrase it for me?
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andya
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Re: Seeking agreement on access to unregulated non-tidal riv

Post by andya » Mon Nov 14, 2011 10:51 pm

Great work as always, look forward to reading what sort of replies you get.

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Big Henry
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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Big Henry » Mon Nov 14, 2011 11:34 pm

Mark R wrote:I'm slightly befuddled by this statement; what it's trying to say, and what the purpose of it is.

Anyone want to paraphrase it for me?
As I read it I was thinking that someone was asking questions at an official level which were detrimental to the access debate as far as paddlers were concerned, then I saw Rev Caffyn's name attached to it. It seemed to me that he had changed his mind over the legitimacy of access along rivers, and that he was mostly in agreement with the Angling Trust, but for some technicalities. Then I got to the end and he re-stated his previously published belief that all rivers have legal access along them unless there is a specific statute stating this.

Confused also!

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Jim Pullen » Tue Nov 15, 2011 12:08 am

He's trying to trip the Angling Trust up by using their own statements against them.
Done any NE/NW rivers not on the site? PM me!

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Adrian Cooper » Tue Nov 15, 2011 9:32 am

The law of England relating to the use of rivers is fixed and it is assumed by the courts that the law is known by the public. (There is no such thing as an unknown law in England.) It is for the courts to apply that law.
This is one of the reasons why I think it is highly detrimaental for the BCU to keep saying the law is unclear. It is up to each individual to investigate what the law is and to act accordingly. If there is a statute, that's clear cut, if there is not, one must do what one considers to be correct, surely no court could condemn you for doing this if you could demonstrate that you had taken reasonable steps to aquaint yourself with the law.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by otherted » Tue Nov 15, 2011 11:10 pm

Doug

I hope the response you get from the Angling trust is mote in depth than they sent me. I had asked

"Can you tell me what constitutes "illegal canoeing" as stated on your news page (Angling Trust call on British Canoe Union to condemn mass trespass protest). I was unaware that canoeing or kayaking were crimes. I also note in your article you state that "The current position of the law is settled in that no general public right to navigate in non tidal rivers exists in England and Wales." I do not believe this to be the case and wonder if you are aware of the work of Rev Caffyn. You may find the attached article most informative http://www.caffynonrivers.co.uk/_resour ... _again.pdf. I look forwards to your response."

After some chasing they responded as follows :

We are very aware of the Reverend Caffyn's work because it is the only piece of work which challenges everyone else's understanding of the law and it has been widely promoted by those who continue to campaign for universal access to rivers. The law is clearly stated in our recent press release and the Reverend Caffyn's work is a complete red herring. The Government's lawyers, the Environment Agency's lawyers and our own brilliant team of in house lawyers at the Angling Trust's legal arm Fish Legal all know this. It would be much more productive to focus on working up sensible access agreements on rivers where canoeing and angling can co-exist, rather than trying to deny the realities of the law.

Strange if they are so confidant that your work is open to challenge that they have not let you know....

Ted

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by otherted » Tue Nov 15, 2011 11:31 pm

Have just asked Mark at the Angling trust the following:


Do the "brilliant team of in house lawyers at the Angling Trust's legal arm Fish Legal" have any evidence to support Marks view that " the Reverend Caffyn's work is a complete red herring " as my understanding is that Rev Caffys work is neither an attempt to divert attention away from an item of significance or a strongly smoked kipper but a serious work and Thesis for the degree of Master of Laws at the University of Kent ?

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Big Henry » Wed Nov 16, 2011 2:04 am

otherted wrote:Have just asked Mark at the Angling trust the following:


Do the "brilliant team of in house lawyers at the Angling Trust's legal arm Fish Legal" have any evidence to support Marks view that " the Reverend Caffyn's work is a complete red herring " as my understanding is that Rev Caffys work is neither an attempt to divert attention away from an item of significance or a strongly smoked kipper but a serious work and Thesis for the degree of Master of Laws at the University of Kent ?
My understanding of the work is that it was an investigative review of statute AS IT STANDS, and it doesn't matter a fetid dingo's kidneys what the majority may or may not think, it is the law of this land.

Also, to Jim Pullen, I don't think we should be assuming what might have been the evidence that sank the case, but what it actually was, even if you turn out to be correct.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Adrian Cooper » Wed Nov 16, 2011 9:22 am

The trouble with Fish Legal and the Angling Trust is that they will state what they think the law is but will provide absolutely no structured argument to support it. If I say to you that theft is legal, this is the law and everyone knows it, you would probably disagree. I would guess you would have a structured argument (The Theft Act might be relevant) which would shoot me down but if you just say 'you are wrong', it becomes nothing more than a playground dispute.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by otherted » Wed Nov 16, 2011 9:53 pm

Big Henry wrote.
My understanding of the work is that it was an investigative review of statute AS IT STANDS, and it doesn't matter a fetid dingo's kidneys what the majority may or may not think, it is the law of this land.
Sorry what is your point ? Are you saying that the Law is clear in respect of access and that Reverend Caffyn's work is accepted by all ?

My point to the Angling Trust is that if they do not agree that there is, therefore, now a public right of navigation on all unregulated rivers which are physically usable. What is the legal basis of their argument ?

Mark Lloyd from the Angling Trust has replied to me this morning and has advised that:

"Thank you for your e-mail. We are going to reply to Reverend Caffyn’s recent letter to our Chairman. The law is clear as set out in our statement attached. I wrote a masters thesis for my MSc, but that doesn’t make it a reliable source of information! The case law in our attached document carries far more weight. All best wishes,"

The attached document was the Angling Trust's A STATEMENT ON INLAND NAVIGATION Released 12 May 2009 (sorry don't know how to put the PDF file up to be viewed).

This document goes on to state the following cases as evidence of the legal position "Rawson and Others v Peters (1972)" "A-G ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton
[1992]" "(Wills’ Trustees v Cairngorm Canoeing and Sailing School (1976)".

This unfortunately has not answered my question I have asked Mark to clarify this for me.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by chrism » Thu Nov 17, 2011 9:39 am

otherted wrote:The attached document was the Angling Trust's A STATEMENT ON INLAND NAVIGATION Released 12 May 2009 (sorry don't know how to put the PDF file up to be viewed).
I do wonder what their team of brilliant lawyers gets up to all day if that's still the best they can come up with. I suspect most of us have already seen that, as it appears to accompany every comment they make on navigation rights. Shame the case law cited doesn't even support the argument they make. Mark also appears to be conveniently ignoring the point that case law doesn't supersede statute law.

Maybe I'm being a bit unfair on their brilliant lawyers though, as clearly they appear to have advised the AT that they don't stand a chance of winning if they ever try to take paddlers to court.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Keith Day » Thu Nov 17, 2011 10:26 am

otherted wrote:The attached document was the Angling Trust's A STATEMENT ON INLAND NAVIGATION Released 12 May 2009 (sorry don't know how to put the PDF file up to be viewed).

This document goes on to state the following cases as evidence of the legal position "Rawson and Others v Peters (1972)" "A-G ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton
[1992]" "(Wills’ Trustees v Cairngorm Canoeing and Sailing School (1976)".

This unfortunately has not answered my question I have asked Mark to clarify this for me.
The Angling Trusts statement can be downloaded here

As I understand it the Derwent Trust case was resolved when the parties agreed there was a right of navigation on the Derwent and Wills Trustees was the case that ruled there was a right of navigation on the Spey which extended to all craft including canoes based on the fact that logs had been floated downstream only (navigation is now up, down and sideways).

Rawson & Others V Peters was the infamous case that (on appeal) ruled that canoeing disturbs fish and therefore fishing even when no one is fishing. It awarded nominal damages of 50P. Current evidence from the Environment Agency would seem to contradict the assumption that canoeing must disturb fish. There was no claim by the defendant that there was a right of navigation and since the case does not deal with this right reference to it in this context is clearly a red herring. Lord Denning, in giving his judgement, is reported as saying that where a right of navigation does exist that the owners of the fishing rights must allow navigation and put up with any disturbance to fishing.

Rev'd Dr D Caffyn deals with all three cases here.

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Big Henry » Thu Nov 17, 2011 11:43 am

otherted wrote:
Big Henry wrote.
My understanding of the work is that it was an investigative review of statute AS IT STANDS, and it doesn't matter a fetid dingo's kidneys what the majority may or may not think, it is the law of this land.
Sorry what is your point ? Are you saying that the Law is clear in respect of access and that Reverend Caffyn's work is accepted by all ?
I was referring to comments made above:
John Saunders/Doug Caffyn wrote:6.The law of England relating to the use of rivers is fixed and it is assumed by the courts that the law is known by the public. (There is no such thing as an unknown law in England.) It is for the courts to apply that law.
otherted wrote:...After some chasing they responded as follows :

...The Government's lawyers, the Environment Agency's lawyers and our own brilliant team of in house lawyers at the Angling Trust's legal arm Fish Legal all know this.
Since (I believe that) Rev Caffyn's work was "simply" an investigation and report of what certain laws on the statute books actually are, and whether they have been repealed (they haven't). And if there is no such thing as an unknown law, what the majority (The Government's lawyers, the Environment Agency's lawyers and...Fish Legal - as well as a lot of anglers) may think is in effect irrelevant. I'm saying the law is clear, but too many are ignorant of it, and don't believe they are wrong; that Rev Caffyn pointed this out, and to apply a quote from Hugh Laurie on House: "if you could reason with religious people there would be no religious people".

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Runty » Fri Feb 17, 2012 2:25 pm

Does anyone know where I can access the press release by the angling trust (11/10/2011)?

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Keith Day » Fri Feb 17, 2012 3:15 pm

Runty wrote:Does anyone know where I can access the press release by the angling trust (11/10/2011)?
The links page on the Access Map has a link to it

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Re: Seeking agreement on access to unregulated non-tidal riv

Post by Runty » Wed Feb 29, 2012 1:28 pm

Thanks very much :)

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