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Everything is Lawful that is not Unlawful

barges on canalA boat dweller has triumphed in an epic fight to moor his vessels on a stretch of the Grand Union Canal after the Court of Appeal emphasised that ‘it’s a free country’ and that everyone can do whatever they like – so long as they do not act unlawfully. The permanent presence of the vessels was prohibited neither by statute nor common law and was thus inevitably lawful.

Nigel Moore has been at loggerheads with the British Waterways Board since 2007 when he was ordered to remove four boats from the bank of a semi-tidal stretch of the canal in Brentford, West London. Mr Moore, who lives on one of the boats, has pursued his case through the courts ever since the board – which was in 2012  re-named the Canal & River Trust – accused him of mooring the boats ‘without lawful authority’ and issued notices under section 8 of the British Waterways Act 1983 requiring their removal within 28 days.

The stretch of the canal concerned was subject to public rights of navigation, however, at first instance, a judge dismissed Mr Moore’s challenge to the notices, ruling that he had failed to establish any entitlement to moor the boats permanently, rather than temporarily for access, loading or unloading purposes.

Allowing his appeal, the court compared Mr Moore to the fictional ‘tireless litigant’ portrayed in a 1937 legal spoof, who argued: ‘This was a free country and a man could do what he likes if he does nobody any harm’. Declaring the notices invalid, the court said a detailed review of the law had revealed no prohibition on the vessels’ permanent presence which was, therefore, lawful.

Although it was not disputed that Mr Moore was in lawful possession and control of the canal bank, he failed to persuade the court that he enjoys a ‘positive riparian right’ to moor vessels alongside the waterway. However, the court ruled that the absence of such a right did not necessarily connote the commission of a wrong and the presence of an unlawful mooring.