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QC's legal advice proves there is no general public right to navigate non-tidal rivers in England and Wales

24.01.17

Angler with canoes

David Hart, a leading QC, has provided unequivocal legal advice which confirms once and for all the position about the lawfulness of canoeing and other paddlesports on rivers. The advice could not be any clearer that there is no general public right.       

This confirmation helped win a recent legal case by Llangollen Maelor Anglers and Midland Flyfishers, both represented by Paul Stafford of Dispute Support Solicitors, Pershore, and supported by Fish Legal. The case was against Mr. Andy Povey, a canoeist and stand up paddleboarder.

Mr. Povey had paddled through waters controlled by those fishing clubs and outside of the terms of a permissive access arrangement granted by Welsh Dee Partnership on behalf of those fishing clubs and several other angling clubs and riparian owners which allows access 365 days a year to one of the best stretches of white water in Europe on the River Dee in North Wales. Mr Povey, when challenged by anglers, refused to say he would not trespass again and later boasted about his trespass online.

An application for an injunction to restrain Mr Povey from paddling outside the terms of the permissive access was sought in the High Court. However, after some initial resistance, Mr Povey decided he did not wish to fight the application and has undertaken to the High Court to stick to the terms of the permissive access and to contribute towards the clubs’ legal costs.          

This follows a court case in 2011 and 2012 in which Mr. Andrew Biddulph issued a court claim against a Fish Legal member club claiming £4,000 in damages for what Mr Biddulph appeared to portray as interference with his right to navigate the River Dove. However, his court claim made little sense and after an application to the court by Fish Legal, Mr Biddulph was ordered by the court to rewrite his claim or withdraw it and pay legal costs. He withdrew and was later ordered by the court to pay over £10,000 to Fish Legal in legal costs, some of which he continues to pay by monthly instalments.    

David Hart QC’s full legal advice – commissioned by Fish Legal – is available for download in the notes below, but the first 5 points of his summary could not be any clearer:

  • There is no general Public Right of Navigation (PRN) on English and Welsh non-tidal rivers for canoeists.
  • A PRN can only be established by long use of vessels on the relevant stretch of river, fulfilling all of the criteria below [these are set out more fully in David Hart QC’s ‘full’ Advice of September 2015].
  • That use must have been regular and habitual, and must have made the river of substantial practical value as a channel of communication or transport.
  • The time for which that use must be established is ‘time immemorial.’
  • The law is entirely clear on the above issues.
Canoe campaigner Reverend Dr Douglas Caffyn (who is not a lawyer) has claimed publicly since 2004 that there is a general public right of navigation, based only on the conclusions of his Masters thesis. Rev Caffyn commissioned legal advice of his own from Lisa Busch QC in August 2016 in response to David Hart QC’s advice.

Although Lisa Busch QC’s advice raises the possibility that a court might reach a different conclusion on the issue in future, she concedes repeatedly that David Hart QC is right about the current law. Further advice from David Hart QC for Fish Legal confirms that none of the points raised by Lisa Busch QC successfully undermines the long held position of Fish Legal and the Angling Trust (consistent with all legal commentators, textbooks and decided case law) that there is no general right to take boats or other water craft onto non-tidal rivers in England and Wales without the permission of the riparian owner(s).
       
The Angling Trust, the representative and national governing body for angling, together with Fish Legal, has been pressing British Canoeing (formerly the British Canoe Union or BCU) to accept the clarity of the legal position for many years. The canoeing governing bodies in England and Wales have repeatedly published statements that there might be a general right of navigation on all rivers, that the law is unclear generally and has even advised paddlers how to evade land and fishery owners when paddling without permission.  

Many angling clubs and fishery owners have in recent years suffered a steady increase in unlawful canoeing throughout England and Wales which has often prevented them fishing in peace, with many paddlers quoting the canoe governing bodies and/or Rev Dr Caffyn as their justification for doing so.    

The Angling Trust & Fish Legal have long supported (and continue to support) the use of voluntary access agreements –  made locally by those who know the water best – to provide managed access to rivers in ways which do not interfere with angling or cause damage to often fragile water environments. However, British Canoeing has often refused to sign up to such agreements and has discouraged paddlers from considering them, unless they offer access at all times and water heights. In doing so, they have fundamentally undermined such local arrangements by repeatedly refusing to accept the law.

Mark Lloyd, Chief Executive of the Angling Trust & Fish Legal, said: “We encourage our member clubs and fishery owners to provide more access to canoes and other water craft, but the canoeing governing bodies in England and Wales have made this very difficult by irresponsibly suggesting that paddlers may go where they like without permission and refusing to accept reasonable conditions within access arrangements.         

"We hope that David Hart QC’s very clear legal advice and the costly experiences of Mr Povey and Mr Biddulph will now lead to a more sensible position from the canoeing governing bodies and the small minority of individual paddlers who have taken a militant approach to this issue in recent years.”     

The Angling Trust & Fish Legal have written to the Canoeing Governing Bodies demanding that they:
  1. Recognise and accept the law as it is (rather than as they would prefer it to be);
  2. Recognise the clear legal rights of our members;
  3. Stop (wrongfully) asserting that the law is unclear;
  4. Stop discouraging paddlers from considering or entering into voluntary access agreements or arrangements;
  5. Stop encouraging paddlers to ignore the legal rights of others, commit trespass, and obstruct water bailiffs, anglers, fishery owners and riparian owners;
  6. Contribute constructively to a position in which there are more opportunities for people to go paddling, while respecting our members’ lawful rights.
Notes:

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