Legal definition of "navigable"

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damppaddler
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Legal definition of "navigable"

Post by damppaddler »

I had another encounter today with what I presume was a water bailiff

After 20mins of me refusing to get out and a long discussion on our differing opinions on the law, he walked back towards his mates that where waiting downstream for me, so I paddled back upstream and left.

One thing he did say which I would like more information on is what actually legally defines a river as navigable or not?

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Re: Legal definition of "navigable"

Post by edhunter »

As a non legal type, and being clueless I always interpreted "navigable" to mean can you navigate down it? When talking about waterways i just assumed can you navigate it in the water? If yes then its navigable. However if you have to portage a rapid is this no longer navigable and would your right not stand? Or would the water up to the obstruction be considered navigable and as such be a legal right and the water directly after be considered navigable but not the portage? Or would the whole section be considered unnavigable?

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Re: Legal definition of "navigable"

Post by Keith Day »

Douglas Caffyn considers this in some depth in The Right of Navigation on Non-tidal Rivers and the Common Law, 2004. (pages 39-41). In legal documents and texts it has a number of different meanings depending on context. He sums it up in this paragraph:-
Among the many possibilities reference to a ‘navigable river’ may mean (1) that the river is tidal, (2) that there is a legal right of navigation for the public, (3) that a boat is physically able to pass up and down the river, (4) that a boat is physically able to pass down the river, but not up, or any combination of these.
On page 135 when dealing with the case of A-G v Simpson, Douglas Caffyn reports
First, it was held by Farwell J, and confirmed by the House of Lords, that there was a public right of navigation on the relevant section of the river despite the fact that there were six weirs obstructing the navigation which, until the locks were constructed, required users of the river to either carry their boats, or the goods in the boats, over or round the obstructions.

That would seem to conclusively deal with the question of weirs.

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Re: Legal definition of "navigable"

Post by Torridon »

hey,

heres the big problem, the term navigable dates back to boats and commerce and was linked to tides and esturaires and thus canals and thus the term. It was in place to give people the right to travel along rivers etc so that they could trade hence their right to be on it. however it has stayed put and has been kept in a lot of legal terminioglogy, a good document to read is http://webjcli.ncl.ac.uk/2006/issue2/grant2.html & https://www.waterways.org.uk/pdf/restor ... estoration and basically refers to boats and by what i mean by boast its not ours but the big ones. we also have an issue that so many rivers in england are 'owned' or have been 'owened' and many have had their own bylaws placed on them and as such they still exsist even though they may have been created 50-100-150+ years ago but as we all know the joke that is the access code here in england completly missed this little but very important detail, however i am sure there are some who knew all about it but just happen to forgot to mention it at the the time.

as such if a river does not have the term navigable attached to it then as per usual things become difficult as there can be many other little bylaws attached to said river that people can throw at us, and they are legal albeit yet to be legaly challeneged in a modern court in modern times.

In short navigable is for boats and ships that mostly linked to trade.

Please bear in mind i am no legal person and this simply what i have taken from reading stuff so please use it as a stepping stone and not a full stop on the question as i am sure there are many more poeple out there with far greater knowledge on the subject.

Cheers Chris
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ion
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Re: Legal definition of "navigable"

Post by ion »

Whilst this is all US centric (Where the definition of Navigability changes state by state) you may find some nuggets in here to ponder:
http://www.americanwhitewater.org/conte ... vigability

Especially the section titled "Using recreation to demonstrate navigability"

Note also the historic references to English Common Law

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Re: Legal definition of "navigable"

Post by scottdog007 »

I think Rev Douglas Caffyn was talking about non-tidal rivers, so the inner rivers of our land.

For me if you can get on a river via public land or footpath or via permission of a land owner and you can travel down the river without any obstructions so without walking around a waterfall etc, then you get off on public land or footpath or via landowners permission, then this river is "navigable", you are allowed to be on that river, even if it passes through private land.

If you do need to get out to cross a grade 5 for example and this grade 5 is on private land and you do not have permission from the riparian land owner, then you will be trespassing, this river is "not navigable".

This is how I see it.

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Re: Legal definition of "navigable"

Post by Strad »

To me the point is at some point in time the term navigable has been incorrectly taken to be around only large vessels / vessels carrying goods (as mentioned already). The guy in a coracle collecting pondweed (or whatever), the locals going for a swim, etc got forgotten about - the fact this was forgotten is where the issue is. To me it means quite clearly, as Caffyn states, there is a long term right to use our rivers that has never been revoked.
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Re: Legal definition of "navigable"

Post by heybaz »

scottdog007 wrote:I think Rev Douglas Caffyn was talking about non-tidal rivers, so the inner rivers of our land.

For me if you can get on a river via public land or footpath or via permission of a land owner and you can travel down the river without any obstructions so without walking around a waterfall etc, then you get off on public land or footpath or via landowners permission, then this river is "navigable", you are allowed to be on that river, even if it passes through private land.

If you do need to get out to cross a grade 5 for example and this grade 5 is on private land and you do not have permission from the riparian land owner, then you will be trespassing, this river is "not navigable".

This is how I see it.
Hi Peter

I fully accept your view on trespass; that if you are private land without permission then you are trespassing. However IMHO this has absolutely nothing to do with the question of navigation and only helps to confuse the matter. For example, does your view on the navigability of your hypothetical grade 5 change if I choose to run the waterfall?

According to Caffyn, we have a public right of navigation on any river provided that it can physically be navigated and that the right of navigation has not specifically been removed (extinguished) by legislation or statute. Of course, this does not mean that we can tramp all over private land to get to the river, get off the river or inspect a rapid on the river.

One outcome from the recent barbed wire incident on the river Kent was that a local police officer wrote to me confirming that, having looked at Caffyn's work, he (though he couldn't speak for Cumbria Constabulary) accepted that the public right of navigation does exist on the Kent. Time will tell whether this proves advantageous to other river users.

Regards

Barry

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Re: Legal definition of "navigable"

Post by Keith Day »

Torridon wrote:In short navigable is for boats and ships that mostly linked to trade.
From Wills’ Trustees v Cairngorm Canoeing and Sailing School Limited, 1976. Lord Wilberforce said,
A distinction was sought to be introduced from the fact that the use for floating was commercial and that for canoeing recreational and that the admission of the former did not therefore admit the latter. But, even if one puts aside the mixed quality of the use in this case (since the respondents at least are a commercial organisation) it is in my clear opinion that once a public right of passage is established, there is no warrant for making any distinction, or even for making any enquiry, as to the purpose for which the right is exercised. One cannot stop a canoe, any more than one can stop a pedestrian on a highway, and ask him what is the nature of his use. The question is purely one of the capacity of the river.

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Re: Legal definition of "navigable"

Post by Adrian Cooper »

I think misunderstandings arise because of the implementation of navigation acts.

‘Navis’ is a latin word which means ‘ship’. Acts of parliament were introduced to allow a river to be ‘made navigable’. Now this was not just to allow craft to travel, it was to permit the introduction of weirs and locks so that water levels could be maintained allowing sufficient depth for the heavily laden craft.

We should all know by now that, since time immemorial, the authorities had been waging a constant battle with riparian owners who were constructing weirs to facilitate powering of water mills. The crown was forever trying to get these removed, did you ever wonder why?

‘Navigable’ is a term which have been used and misused in a number of contexts. The logic of Douglas Caffyn’s work is not that a river is necessarily navigable but that it is able to be used to travel on; to navigate.

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Re: Legal definition of "navigable"

Post by dougdew99 »

Damp paddler
Did the so called water bailiff make threat or implied threat of violence, from him and/ or his mates?

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Re: Legal definition of "navigable"

Post by damppaddler »

No threat at all - very early in our conversation he asked me if the camera on my helmet was recording everything, which it was. He asked me repeatedly to turn it off but I politely declined each time. He even said it was illegal to film him as I was on private land. (I understand you can legally film on a public foot path on private land, so as I was on a PRN I assume I am free to film anything from the PRN)

I can't see why he would position 2 people downstream where it was much shallower if they didn't have some plan to forcibly drag me out - I could be wrong on this though

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Re: Legal definition of "navigable"

Post by Karnalipaddler »

Hi damppaddler,
Although I have only encountered an upset fisherman once it was not a nice situation so I know how you feel. I believe there is no point in debating such topics in depth with these type of people as they have already made their mind up and discussion at the riverside will not change it. I was polite but put my point across once and then refused to discuss it any further and continued on my journey, and I will take the same approach again. It sounds as if they were behaving in a threatening way to you which may be something that should be reported to the Police,

regards,

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Re: Legal definition of "navigable"

Post by banzer »

If / when I ever encounter an irate person like this I intend to point out (as others have) that my daughter is 1 1/2 and is learning how to share.... and enquire how old they are? Then invite them to go figure. Then film them if they are getting aggressive / threatening / call the cops. Let's get some video evidence people, after all we've all got GoPros now haven't we?!
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Re: Legal definition of "navigable"

Post by Keith Day »

Karnalipaddler wrote:It sounds as if they were behaving in a threatening way to you which may be something that should be reported to the Police,
... and/or recorded as an incident on the Access Map

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Re: Legal definition of "navigable"

Post by Chris Bolton »

damppaddler wrote:I had another encounter today with what I presume was a water bailiff
There are two kinds of people who call themselves "water bailiff" in England and Wales. Those appointed by the Environment Agency have the legal powers of a constable in relation to the Salmon and Freshwater Fisheries Act 1975. See http://en.wikipedia.org/wiki/Water_bailiff Most of these powers relate to fishing, although I would expect that they also apply if anyone is damaging or suspected of willfully damaging spawning grounds. Such bailiffs will carry a warrant, like the police do, and should be prepared to show it to demonstrate their authority. It's a criminal offence to pretend to be an EA baliff, equivalent to impersonating a police officer.

People authorised by fishing clubs to protect the interests of their members also tend to call themselves bailiffs. They have no legal powers, and don't carry warrants.

If you are approached by a "bailiff", find out which of these he/she is!

Chris

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Re: Legal definition of "navigable"

Post by scottdog007 »

Chris Bolton wrote: ....."water bailiff" in England and Wales. Those appointed by the Environment Agency have the legal powers of a constable in relation to the Salmon and Freshwater Fisheries Act 1975.
Chris
I was wondering about this; what powers does a bailiff have? I will read up more on this. Do they truely have the powers of a policeman?

I say thank you to Barry (heybaz) and Adrian for clarity in earlier posts relating to mine.

Editied- From Wikipeadia
In Scotland Although not police officers, they have certain statutory powers of entry, search, seizure and arrest under the Act. It is an offence to obstruct them.

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Re: Legal definition of "navigable"

Post by damppaddler »

I read the Salmon and Freshwater Fisheries Act 1975 last night

How come we seem to be allowed to play below weirs without falling foul of this clause? Or does (2) exclude the weirs we play on?

17 Restrictions on taking salmon or trout above or below an obstruction or in mill races.
(1)Any person who takes or kills, or attempts to take or kill, except with rod and line, or scares or disturbs any salmon or trout—
(a)at any place above or below any dam or any obstruction, whether artificial or natural, which hinders or retards the passage of salmon or trout, being within 50 yards above or 100 yards below the dam or obstruction, or within such other distance from the dam or obstruction as may be prescribed by byelaw; or
(b)in any waters under or adjacent to any mill, or in the head race or tail race of any mill, or in any waste race or pool communicating with a mill; or
(c)in any artificial channel connected with any such dam or obstruction,
shall be guilty of an offence.
(2)Nothing in this section shall apply to any legal fishing mill dam not having a crib, box or cruive, or to any fishing box, coop, apparatus, net or mode of fishing in connection with and forming part of such a dam or obstruction for purposes of fishing.
(3)Where a fish pass
[F38(a)approved by the Agency, or
(b)constructed and maintained by the Agency in accordance with section 10(1) above,]
is for the time being attached to a dam or obstruction, this section shall not be enforced in respect of the dam or obstruction until compensation has been made by the water authority to the persons entitled to fish in the waters for that right of fishery.

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Re: Legal definition of "navigable"

Post by Strad »

damppaddler wrote:I read the Salmon and Freshwater Fisheries Act 1975 last night

How come we seem to be allowed to play below weirs without falling foul of this clause? Or does (2) exclude the weirs we play on?

17 Restrictions on taking salmon or trout above or below an obstruction or in mill races.
(1)Any person who takes or kills, or attempts to take or kill, except with rod and line, or scares or disturbs any salmon or trout—
(a)at any place above or below any dam or any obstruction, whether artificial or natural, which hinders or retards the passage of salmon or trout, being within 50 yards above or 100 yards below the dam or obstruction, or within such other distance from the dam or obstruction as may be prescribed by byelaw; or
(b)in any waters under or adjacent to any mill, or in the head race or tail race of any mill, or in any waste race or pool communicating with a mill; or
(c)in any artificial channel connected with any such dam or obstruction,
shall be guilty of an offence.
(2)Nothing in this section shall apply to any legal fishing mill dam not having a crib, box or cruive, or to any fishing box, coop, apparatus, net or mode of fishing in connection with and forming part of such a dam or obstruction for purposes of fishing.
(3)Where a fish pass
[F38(a)approved by the Agency, or
(b)constructed and maintained by the Agency in accordance with section 10(1) above,]
is for the time being attached to a dam or obstruction, this section shall not be enforced in respect of the dam or obstruction until compensation has been made by the water authority to the persons entitled to fish in the waters for that right of fishery.
Because kayakers, unless they are angling, don't disturb fish! Despite all the claims otherwise from anglers, the EA research concluded that we don't (plus if we did how would kayak fishing work???)
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Re: Legal definition of "navigable"

Post by Adrian Cooper »

Do fish get scared?

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Re: Legal definition of "navigable"

Post by Chalky723 »

Adrian Cooper wrote:Do fish get scared?
You'd assume not, otherwise they'd get scared of worms with hooks in them after the first couple of times!!

Like most animals they act on instinct - shadow above, hide. Shadow goes, come out & carry on. A lot of the time they don't even bother to hide as the kayak/canoe doesn't fit the "predator profile"....

C
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Re: Legal definition of "navigable"

Post by NathanE »

The initial episode makes me think that it is probably always worth having a gopro with me when I paddle. I'm sure that these folk will behave differently if they know/believe that they are on camera.

However I will look a bit of an idiot with a helmet mount as I pootle down gentle G2/3 so I might have to work on alternate mounts!

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Re: Legal definition of "navigable"

Post by Big Henry »

NathanE wrote:However I will look a bit of an idiot with a helmet mount as I pootle down gentle G2/3 so I might have to work on alternate mounts!
Why? Aren't paddlers who don't go for the hard gnarr entitled to video their own experiences?
Chalky723 wrote:
Adrian Cooper wrote:Do fish get scared?
You'd assume not, otherwise they'd get scared of worms with hooks in them after the first couple of times!!

Like most animals they act on instinct - shadow above, hide. Shadow goes, come out & carry on. A lot of the time they don't even bother to hide as the kayak/canoe doesn't fit the "predator profile"....

C
Having a couple of aquaria of tropical fish, I can definitely say they can get scared/spooked. In fact I've read about certain types of fish that are so nervous simply the sudden turning on of their lights is enough to shock them to death!

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Re: Legal definition of "navigable"

Post by Chalky723 »

Big Henry wrote: Having a couple of aquaria of tropical fish, I can definitely say they can get scared/spooked. In fact I've read about certain types of fish that are so nervous simply the sudden turning on of their lights is enough to shock them to death!
Oh yes, they get scared & dart off - but 2 minutes later they're back. They don't generally suffer from PTSD. Mine would dash away from the cleaning syphon & then come back & nose it later on.

I've heard stories of the extremely delicate ones, but we're talking about UK fish here, they live in a fast moving water environment that will often chuck trees and other debris at them, something that slides over in the top 6 inches won't cause many heart attacks!

The whole "9 second memory" thing, while not wholly true, is generally accurate. I think people confuse "instinct" with "thinking", most of these animals have brains smaller than an acorns & aren't really programmed for much more that eat, swim, mate, survive....

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Re: Legal definition of "navigable"

Post by damppaddler »

Chalky723 wrote:
Big Henry wrote: The whole "9 second memory" thing, while not wholly true, is generally accurate. I think people confuse "instinct" with "thinking", most of these animals have brains smaller than an acorns & aren't really programmed for much more that eat, swim, mate, survive....
C
Are we still talking about fish or have we moved on to fishermen?

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Re: Legal definition of "navigable"

Post by Chalky723 »

**like**
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Re: Legal definition of "navigable"

Post by Big Henry »

Chalky723 wrote: Oh yes, they get scared & dart off - but 2 minutes later they're back. They don't generally suffer from PTSD. Mine would dash away from the cleaning syphon & then come back & nose it later on.

The whole "9 second memory" thing, while not wholly true, is generally accurate. I think people confuse "instinct" with "thinking", most of these animals have brains smaller than an acorns & aren't really programmed for much more that eat, swim, mate, survive....
Sorry but I'm going to object to this. Goldfish, that are incorrectly often thought to have a 3 second memory, have been shown to actually have memories of up to 18 months. You are confusing instinctive flight (or swim!) behaviour with memory. Knocking/tapping on a tank or sticking hands/syphon tubes/nets into a tank, which is enclosed, is of course completely different to a river situation and boats being paddled down it.

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Re: Legal definition of "navigable"

Post by Chalky723 »

Big Henry wrote:
Chalky723 wrote: Oh yes, they get scared & dart off - but 2 minutes later they're back. They don't generally suffer from PTSD. Mine would dash away from the cleaning syphon & then come back & nose it later on.

The whole "9 second memory" thing, while not wholly true, is generally accurate. I think people confuse "instinct" with "thinking", most of these animals have brains smaller than an acorns & aren't really programmed for much more that eat, swim, mate, survive....
Sorry but I'm going to object to this. Goldfish, that are incorrectly often thought to have a 3 second memory, have been shown to actually have memories of up to 18 months. You are confusing instinctive flight (or swim!) behaviour with memory. Knocking/tapping on a tank or sticking hands/syphon tubes/nets into a tank, which is enclosed, is of course completely different to a river situation and boats being paddled down it.
Fair enough, the example you gave of one being frightened to death is restricted to tanks too, the fact remains that fish in the wild suffer no lasting trauma or damage when a boat that they may or may not notice is paddled above them & you'd be hard pushed to convince me otherwise.

I think we're getting away from the OP's topic though...

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Re: Legal definition of "navigable"

Post by Big Henry »

Chalky723 wrote:Fair enough, the example you gave of one being frightened to death is restricted to tanks too, the fact remains that fish in the wild suffer no lasting trauma or damage when a boat that they may or may not notice is paddled above them & you'd be hard pushed to convince me otherwise.
I wouldn't try to convince you otherwise because I completely agree with you. (I was just giving an extreme example.)
Chalky723 wrote:I think we're getting away from the OP's topic though...
I blame Adrian!
Adrian Cooper wrote:Do fish get scared?
My thoughts on the OP:

If someone can physically paddle along any section of river then it is navigable. If there is a (for example) waterfall that cannot be paddled, then that waterfall (and only the bit you can't paddle) is not navigable. The fact that you may have to get out onto private land at the start of a unpaddle-able section does not stop the river up to that point (and below that point) being classed as navigable. Whether it is morally acceptable to actually go and paddle that section and have to get out onto private land is a question for the individual to consider.

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