Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[twotrucks]

Not just to show I am impartial but if you
need a canoe England license and that is only for nominated waterways
that implies you need permisson

I need to pay a fee for those canals and (mainly canalised) rivers that
are covered by the EA and C&RT licence because the government has passed
a law that says that failing to do so is an offence.

These laws (Navigation Acts) were generally originally passed piecemeal
in favour of usually private canal companies as a quid-pro-quo for the
substantial sums of capital that were spent creating a man made
navigation or canalising a river. Incidentally the wording of some of
these navigation acts is one of the pieces of evidence of an existing
general public right of navigation as they often talk about
extinguishing existing public navigation rights on these improved waterways.

These days they have all been amalgamated together and the right to
establish by-laws and regulations (including the need to pay) vest in
the Canals and Rivers Trust (ex BW) and the EA because Government has
passed a law that says so.

how do you paddle waterways outside that
license, are there any ?

There are a very few regulated navigations for which a Statutory Navigation Act
exists which controls navigation (i.e. makes it an offence to navigate
without permission), but which aren't included in the licence. The
Chesterfield Canal and the River Cam spring to mind but I may not be
correct.

How do you have the right to paddle there
if its outside your CE license ?

If a law has been passed for a navigation making it illegal for me to
use it then I expect to pay or come to some other group arrangement in
order to do so.* As I said, this only affects a few 10s of miles of
navigation in the UK that I know of that aren't covered by the licence
that I do pay for and I have no problem with this because at some stage
someone has spent their money on making them navigable but for whatever
reason of historical accident or intent they have never been lumped in
with the big navigation authorities.

For all of the other non-regulated navigations then if no law exists to say that I may not do something then it is a principle of English law that I may. This is the situation on the vast majority of non-improved navigations and I feel especially safe in this conclusion when combined with documentation of historic right to use by people like. Caffyn or indeed other historical precedents with respect to river use.

---------- Post added at 12:10 ---------- Previous post was at 11:41 ----------

No, you don't have the right. You just think you do, you've just said it yourself. It isn't about an EA fishing licence, that doesn't give you the right to fish anywhere. It's club/syndicate fees and daytickets that give the right to access the waters.

Sam, you seem to be confusing access with fishing. You pay club/syndicate fees to fish the waters. These go presumably to pay for activities around developing and policing the fishery or simply act to manage demand for very popular bits of river.

This seems to be a rather common thread so I wonder if there is some basis to it in something that I am not aware of. Does it say for example on your day ticket or your club's agreement with you that you are paying for something more exclusive or wider than simply the right to fish?

 

[Poshpaul (Angling Trust and PaSC)]

Does it say for example on your day ticket or your club's agreement with you that you are paying for something more exclusive or wider than simply the right to fish?

Yep...for many many clubs it also includes the access to and right to enter strictly private land. This right often exists for club A but not club B. Landowners will give right of access to anglers but not beekeepers (or indeed vice versa). And quite a few clubs own the land and the fishing rights

 

[geoffmaynard]

If a law has been passed for a navigation making it illegal for me to
use it then I expect to pay or come to some other group arrangement in
order to do so.

A law could only be passed which would allow you to use it, not the other way around! i.e. you have no right to navigate anywhere unless you have the permission of the owner to do so.
If you too want to try the Act for Wears and Fishgarths 1472 as a counter to this statement, perhaps you should first peruse this:
http://andybiddulph.co.uk/ESW/Files/Case_for_Claimant.pdf
(And this guy used every argument in the book, much respect to him!)
As for your expectations; if the owner forbids Navigation there is nothing which forces him to accept your money and agree to your demands. NO, often in my experience means exactly that.

---------- Post added at 21:49 ---------- Previous post was at 21:46 ----------

Yep...for many many clubs it also includes the access to and right to enter strictly private land. This right often exists for club A but not club B. Landowners will give right of access to anglers but not beekeepers (or indeed vice versa). So, indeed, wider than just the right to fish.
_

And often bestows the power of bailiff on the purchaser to help protect the water from illegal activities which could damage the fishery in some way.

 

[Poshpaul (Angling Trust and PaSC)]

And often bestows the power of bailiff on the purchaser to help protect the water from illegal activities which could damage the fishery in some way.

Indeed, one or two from my club are regulars on here - and they use their legitimate powers in legitimate ways!

 

[sam vimes]

Sam, you seem to be confusing access with fishing. You pay club/syndicate fees to fish the waters. These go presumably to pay for activities around developing and policing the fishery or simply act to manage demand for very popular bits of river.

This seems to be a rather common thread so I wonder if there is some basis to it in something that I am not aware of. Does it say for example on your day ticket or your club's agreement with you that you are paying for something more exclusive or wider than simply the right to fish?

I'm not confusing anything. Without legal access, fishing rights mean diddly squat. Plenty of fishing rights have gone by the wayside over the years because of access squabbles between different landowners.
Just the same for paddlers. If the premise that you have the right of navigation is correct, it still means diddly squat unless you have access rights, given the assumption that most paddlers can't fly.

 

[waterways]

This could be settled by Fish Legal suing a canoe paddler for trespass. Why haven't they saved us a lot of trouble by doing that?

 

[Jeff Woodhouse]

If any of the paddlers posting on here is in any doubt that where they have a navigable right I would fight their case 100%, then look no further than Abingdon. There is a proposal to install Archimedes screw turbines to generate electricity and as part of the objections I listed was the fact that canoeists facilities would be restricted.

Now I am glad to see that Sport England have also lodged an objection stating the very same restrictions as reason for objecting to the proposals. I also went for Green Belt development.

Us anglers aren't all that bad...

Bit of their text -

Paragraph 74 of the Government’s National Planning Policy Framework states that;
‘Existing open space, sports and recreational buildings and land, including playing fields, should not be built on unless…’
Sport England is concerned that the above proposal may affect the flow over Abingdon weir and therefore restrict opportunities for local canoeists and kayakers to enjoy this important water sports resource. Sport England notes that Canoe England has already raised concerns in relation to the above proposals and Sport England supports their objection.
In light of the above and the lack of evidence of any other exceptional circumstances Sport England objects to the proposal.

---------- Post added at 22:32 ---------- Previous post was at 22:31 ----------

This could be settled by Fish Legal suing a canoe paddler for trespass. Why haven't they saved us a lot of trouble by doing that?

That's the 'catch-me-if-you-can' tactic... Very clever? I don't think so.

 

[geoffmaynard]

This could be settled by Fish Legal suing a canoe paddler for trespass. Why haven't they saved us a lot of trouble by doing that?

Hello Waterways and welcome. Please read the previous 18 pages, this question and most others have already been answered.

 

[Neil Maidment]

"Originally Posted by twotrucks
Does it say for example on your day ticket or your club's agreement with you that you are paying for something more exclusive or wider than simply the right to fish?"

Yep...for many many clubs it also includes the access to and right to enter strictly private land. This right often exists for club A but not club B. Landowners will give right of access to anglers but not beekeepers (or indeed vice versa). And quite a few clubs own the land and the fishing rights

In addition, typically the negotiated leases paid for by angling clubs specify that the agreement applies only to members, not guests of members (paying or otherwise), specific access points and pathways to the fishery, limited specific parking access, access times and sometimes limits on the numbers of members fishing at any one time and/or specific times of the year.

All before any actual angling is even considered.

 

[Windy]

Windy,

You may be interested to read the wealth of painstaking research at Caffyn on Rivers - Home Page for a Master of Laws in 2004 and a Phd in 2010. The conclusions of both are exactly contrary to your assertion above. After you have done this, please come back and tell us if you are still able to make the quoted assertion.

I spent a large part of Saturday and the whole of Sunday devoted to little else. It is not the work of a moment to plough through 600 odd pages of theses and appendixes.

I find the Reverend Mr. Caffyn's analysis of the facts and law applicable to be deeply flawed and unsatisfactory.

I have made a start on drafting a comprehensive analysis of his views and the law applicable. However I also have to make a living. My time between now and Christmas, indeed, into the New Year is effectively fully committed. So pardon me if I decline the invitation to go off half cocked with an inadequate summary.

In the meantime I find it very strange indeed that I am quite unable to establish just who the Reverend Caffyn is, his background and qualifications.

His own website (and the recitals in both theses) are completely (and unusually) completely silent about any biographical details, his career or qualifications.

A google search suggests (unless there is another Reverend with exactly the same name ? seems unlikely...) that he was born in 1936 and, until his retirement in 1999, was most recently the Executive Director of a family car sales company and the Director of another car sales company. Thereafter he seems to have interested himself in retirement in a deaf school for children. Presumably in a Trustee or Charitable capacity in retirement ?. Equally the internet record appears silent in relation to which church he is ordained in.

What qualifications he has as a lawyer or actual experience in practice I simply do not know.

Submitting a thesis for a degree is one thing. Being awarded that degree is another. Was either a Masters or Doctorate actually awarded to the Reverend on the basis of either thesis ?

Any light you can cast on this gentleman's background and qualifications would be appreciated The qualifications of a suggested expert are of obvious relevance to the weight and credibility to be attached to any suggested analysis by that person.

Equally I find it difficult to understand why the BCU, CE and other paddling bodies (if I may summarise them as such) have not published any document of their own setting out their case for (essentially) a universal right to paddle anywhere based upon the advice of an eminent Junior, if not Q.C. specialising in the field.

I have no doubt whatsoever that they will have taken such advice. As, I am equally sure, will Benyon. If they have and it is in positive terms then shouldn't it be published in their member's interests ?

Equally I would have expected them to take steps to seek the obvious remedy of a declaration to protect and enforce those rights. Expensive no doubt, but manifestly in their member's interests if merited. It would save all that trouble, wrongful Section 5 arrests and the rest.

But they don't. The inference to be drawn is, I think, pretty clear.

Put up or shut up may not be an elegant way of putting it. However it seems to me to summarise the position.

Nite all.

 

[The bad one]

Oh Jeff it's so easy mate on that great northern River The vehicles with trailers are all parked up where they haul out. Vid em unloading and going in up river, and they use the same place every time. Creatures of predictable habit Jump in the car. The Highways Agency has even put a straight fast road in over the last 10 years. Vid em going through you "none navigational" lengths. Back in the car and Vid em hauling out down river and loading up. £2 50p reg check with the DVLA, bang to rights. Them will be for the rights they don't have
And why is as Windy has said, if they are so confident they have the rights on all rivers, why have they not applied to the courts for a "Determination" of those rights?
Apologies Windy for misquoting you twice "Declaration" good Sir.

 

[waterways]

Hello Waterways and welcome. Please read the previous 18 pages, this question and most others have already been answered.

I can't find any answer to this question... It seems really simple to me... If canoeing is trespassing, sue them... One case should settle the argument...

 

[Windy]

One case should settle the argument...

Simplistic and nonsense.

As I think you well know the issue on that particular case would only decide the position in relation to that particular water on that particular day in the particular area of complained of trespass. Secondly and in the absence of proof of substantial damage the costs of such an exercise would be ludicrously disproportionate and unlikely to be recoverable. Not that such substantial damage might not be caused and proved in the right circumstances, but it is a legal mine field in its own right.

Legally the burden of proof is generally upon the party who makes an assertion. The radical paddlers cause claims that a right of navigation exists everywhere you could have floated a boat back in 1189 and before, subject to subsequent statutes only. So go get that declaration. Put up or shut up. Prove your right or accept that you are just trespassing.

An interesting exercise: visit almost any canoeing or paddling forum and put the word "toff" into the search engine. The results are not a little revealing and unedifying.

 

[waterways]

Windy
I am not sure why you make such a disrespectful and aggressive reply.

However, my idea is that if it is demonstrated on one river, that the principle applies and most people would accept that it is generally applicable to other rivers without the bother of suing on lots of other rivers. I am no lawyer...l just applying common sense...

 

[Poshpaul (Angling Trust and PaSC)]

Waterways - I can see where you are coming from....but Windy is quite right...it is highly highly(add a few more highly's here) unlikely that the law would establish a point of precedent on a single case. And I'm afraid that "common sense" regularly has a coach and horses driven through it when measured against the law (for good and bad!).

 

[waterways]

Waterways - I can see where you are coming from....but Windy is quite right...it is highly highly(add a few more highly's here) unlikely that the law would establish a point of precedent on a single case. And I'm afraid that "common sense" regularly has a coach and horses driven through it when measured against the law (for good and bad!).

Thanks Paul...

It seems wierd to me that canoeists can use rivers without any fear of being sued for trespass, whatever the law is... Where do we go from here? As I understand it, the canoeists say voluntary agreements are rubbish and they don't need them and the Angling Trust says they are breaking the law but won't sue them... And Benyon won't answer the direct question "Are they breaking the law?" ... What a mess! All this speculation by Barrack Room lawyers here just makes me laugh... None of it matters a bean if no one gets sued... And every time Martin Salter opens his mouth on this issue he seems to put his foot in it...

Perhaps Windy can tell us what to do next... Maybe the Anglers Trust and the Canoeists can get together and lobby the Government to sort out this mess... Both sides would have to compromise, no doubt

 

[Poshpaul (Angling Trust and PaSC)]

I am aware a significant discussion of the issue is on it's way. Please be patient, the author is giving up significant amounts of his time whilst working at one of the busiest times of the year for his employer. (Be interesting if this author could offer an idea of a "ball park figure" of the cost of advice and guidance, that's been generously freely offered, at current market rates!! - that's up to him -).

All I know is that my significant other was using barristers to read and comment on papers 6 years ago -( at rates of around £2,000 per hour!) - and just to make you feel better..it was public money!

 

[bennygesserit]

No matter what the outcome of the legalities it would be nice if all governing bodies concerned would propose more of a conciliatory tone , I know the Trust has removed some hollow threats to canoeists from its facebook page - well done. I know sensationalist views from the Trust might attract attention but serve no purpose to me other than to inflame people and give some the idea that its acceptable to physically deter canoeists , no one wants to see some kid out canoeing catapulted with shot do we ? Or some angler having his cay ruined by a militant canoeist practising eskimo rolls in his swim because he thinks , and that isn't certain , that he has the legal right to.

To me , and again I don,t fish rivers , a bit of compromise and better publicised guidelines from all bodies could make this issue dissappear.

 

[sam vimes]

To me , and again I don,t fish rivers , a bit of compromise and better publicised guidelines from all bodies could make this issue dissappear.

For the more mederate paddlers that might be the case. Sadly, it would appear that the more militant just want concessions from anglers and landowners. They don't want compromise at all, they just want their own way. The way it is now is a compromise. They do what they want and know damned well that, regardless of the law, there's very little that can actually be done about it.

In some respects it's similar to the foxhunting debacle. A small vocal minority wanted their own way and, in that instance, got it. However, the current reality is the law is unenforceable. Drag hunting goes on, the odd fox gets in the way and there's very little that can be done about it.

 

[Fred Bonney]

I am aware a significant discussion of the issue is on it's way. Please be patient, the author is giving up significant amounts of his time whilst working at one of the busiest times of the year for his employer. (Be interesting if this author could offer an idea of a "ball park figure" of the cost of advice and guidance, that's been generously freely offered, at current market rates!! - that's up to him -).

All I know is that my significant other was using barristers to read and comment on papers 6 years ago -( at rates of around £2,000 per hour!) - and just to make you feel better..it was public money!

Perhaps the RSPCA would be the people to ask about costs?