Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[bennygesserit]

From http://www.riveraccessforall.co.uk/what_is_the_evidence.php

I was asked by a member of "sotp" to post this , they had a problem doing it themselves ( no 5th columnist cracks please )

What's the evidence for a PRN?

We believe there is, and has always been, a general public right of navigation on all rivers in England and Wales, subject only to the physical constraints of the river and of the craft using them.

There is a great deal of evidence of such a right throughout our recorded history, from Roman Law to Saxon Charters, to Magna Carta, to the work of the Commissioners for Sewers who were charged with removal of obstructions to navigation, to the absence of the need to create specific rights of navigation within the Acts of Parliament creating statutory river navigations. The public right of navigation on all rivers capable of navigation was completely unquestioned for 1800 years.

Over the last 200 years a different view has been formed by some lawyers, landowners and fishing clubs based on riparian rights (rights associated with property bordering rivers). But it is an accepted principle of English law that such private rights are subservient to public rights.

In the case of Josie Rowland v Environment Agency, Mr Justice Lightman said 'Public Right of Navigation may only be extinguished by legislation or exercise of statutory powers or by destruction of the subject matter of PRN e.g. through silting up of the watercourse.'

Since the general public right of navigation has never been removed by statute or exercise of statutory powers, it must still exist today.

PRN - the detail

So what is the detailed evidence for a general public right of navigation (PRN)?
43 - 410
Following Roman law, a permanently flowing non-tidal river was regarded as public property (res publicae). Thus, any member of the public who could navigate the river had the right to do so.
(See The Institutes of Justinian - page 19, 1-4)
c. 850
"Undoubtedly, in these times, it was a natural and unquestioned practice to use the rivers of all parts of the country as a means of transport so far as their physical state rendered them capable of such use..."
Arthur Telling (Barrister) & Rosemary Smith (Solicitor) - The Public Right of Navigation, A Report to The Sports Council and The Water Space Amenity Commission - 1983
1215
Magna Carta (sealed by King John in 1215 and confirmed at least 44 times in the next 200 years) confirmed the public rights of navigation on "the Thames*, the Medway*, and throughout the whole of England" and ordered the removal of all obstructions. (* the Thames and the Medway had been subject to earlier charters).
(See text of Magna Carta section 33, 47 & 48 refer to rivers)
1472
Act for Wears and Fishgarths reconfirms (and clarifies) intent of Magna Carta;

"Whereas, by the laudable Statute of Magna Carta, among other Things, it is contained That all Kedels by Thamise and Medway, and throughout the Realm of England, should be taken away, saving by the Sea-banks, which Statute was made for the great Wealth of all this Land, in avoiding the straitness of all Rivers, so that Ships and Boats might have in them their large and free Passage..."
(See text of the Act)
c. 1450
"By the time of Henry VI riparian owners had come to own the bed of the river but, it is submitted, those owners took their new property subject to the public right of navigation over it that had existed from time immemorial."
J.H. Bates, Water and Drainage Law (London: Sweet & Maxwell, 1990), para 13.18
1423 - 1827
Between 1423 and 1827, 83 rivers were improved under Acts of Parliament. All but 2 of these have evidence of prior use (no evidence does not mean no prior use). Often the wording of the Act includes wording such as "an Act to improve navigation".

All of these rivers would need a right of navigation to allow ships/barges/boats to use them but most of the Acts do not confer such a right.

The inference is very clear - public rights of navigation already existed under common law. It was not the right of navigation that was being changed by the Acts but the capacity of the river to accommodate vessels of a particular size.

Whilst it was normal for riparian landowners to be compensated for any losses arising from these Acts of Parliament (such as land for structures and disruption to other activities) none of them was awarded compensation for the loss of the right to control navigation. Again the inference is clear - riparian owners did not have the right to control navigation and therefore couldn't be compensated for the loss of it!

 

[Paul Boote]

Seems that we're back to Daves and ideologically driven autmotata. Well before YouTube and broadband and the new Internut I posted a soundclip for DaveMc, Rad Paddler and Two Up To Anything and Anybody Who's Agin me - this: Open the Pod bay doors, HAL. - YouTube

Right then, right now.

 

[bennygesserit]

the sister thread to this on the canoeing forum "Song of the paddle" can be found at Angling Trust statement

 

[Terry wright]

The simplest answer to all of this is for Fish Legal to visit a stretch of river where it is alledged there is no Public Right Of Navigation. Photograph an illegal paddler. Charge them with ' Paddling where there is no PRN', produce the relevant legislation and the paddler will be convicted.

This charge has never been put before a court yet it would, if as stated the offence exists, be very easily proven.

Any ideas as to why Fish Legal have not tried the 'easy option' ?

 

[Fred Bonney]

Perhaps they have more important things at present to spend their funds on ?

Like pollution, and so called cheap "green" power projects!

 

[Poshpaul (Angling Trust and PaSC)]

Just a tiny legal point here (but it has niggled me throughout this thread) - trespass, as such, is a common law offence. Therefore the wrong has been decided through the development of case law not through legislation.

Aggravated trespass is a statute offence, made through legislation passed by Parliament - basically set up, amongst other reasons, to protect people pursuing their legitimate leisure activities from the criminal actions of those opposed to them.

So as such a trespass action has to be taken by an individual(person, company) against another in the civil courts.

I can see issues of identifying somebody who is acting unlawfully in certain recreational areas, less so ...of course for a legitimate angler who will have a paid licence , and probably a paid club card, to identify them!!

I've taught law for over 20 years now but I never claim complete accuracy;If I have erred in my explanation of the laws I'm sure Windy will put me right!

 

[geoffmaynard]

I've taught law for over 20 years now but I never claim complete accuracy;If I have erred in my explanation of the laws I'm sure Windy will put me right!

Agreed. Windy is the man for this stuff. Be nice to get his take on the situation.

 

[Paul Boote]

Whilst I have a lot of sympathy for canoeists (I did a fair bit myself in my teens on the River Wey above Godalming, water I also chub-fished a lot, occasionally successfully), I saw at first hand only a very few years later what the anarcho-paddler hardcore can be like - in Wales, as mentioned last night.

The river concerned had a "legit", gated, canoe slalom section even back then, a gorge section a few miles upriver from where I was living that attracted very fine canoeists from all over Britain, whom I'd watch of an early evening before putting up my pair of sea-trout fly rods by the pool just below the gorge and, together with other local angling club members, begin the night shift after "sewin".

However, the incident that coloured my opinion of paddlers - the Anarcho sort - happened at this time of year thirty-odd years ago when the salmon and sea-trout of a small tributary of the same river that ran through the farm on which I was living were packed into it in their salmon half-dozens and sometimes sea-trout hundreds, spawning.

I was walking my pair of dogs along the three hundred yards of main river then up the six hundred of tributary that lay on the farm when I encountered on the latter a pair of wet-suited canoeists dragging their canoes across and down the gravels - "redds" - that had been spawned in during a spate a few days before, gravels which were now only covered by a very few inches of fast-flowing water.

I didn't lose it, indeed I was smiling and charming - I just asked the two men to get out of the river, explaining to them that this ten-yard-wide (max.) brook was a spawning stream, that the big fish they had doubtless seen on their way down it from the roadbridge half a mile away where they had put in had swum all the way from Greenland to reach it and to breed.

I got a simultaneous cocky smile, scowl and smirk and "We'll paddle where we effin well like, chum!".

It was then that the sharper bitch of my pair of dogs, fireside-living, very child- and people-friendly Dobermans, did that thing when she curled up a lip, showed a fang and made a totally attention-grabbing, utterly blood-chilling little noise.

The two paddlers went at once and with them my opinion of such types forever.

 

[geoffmaynard]

The simplest answer to all of this is for Fish Legal to visit a stretch of river where it is alledged there is no Public Right Of Navigation. Photograph an illegal paddler. Charge them with ' Paddling where there is no PRN', produce the relevant legislation and the paddler will be convicted.

This charge has never been put before a court yet it would, if as stated the offence exists, be very easily proven.

Any ideas as to why Fish Legal have not tried the 'easy option' ?

Probably as Fred says they have had a lot of other things to do. It would seem from this press release they are now looking at the canoe problem so perhaps it's just a case of Watch this Space.

 

[chub_on_the_block]

I have some sympathy with the canoeists and the overall right of access issues. I suspect that ancient rights to access waters have indeed been lost, just as ancient rights to walk along or fish many rivers have also been lost as the banks have become developed or farmed more intensively than in the past. Its the way we seem to organise things here - anything with a potential market value that can be sold generally is - such as paying a landowner for access by a fishing club. What if landowners also started to sell canoeing licences?

Regulation is certainly needed to protect spawning areas from the type of activity Paul Boote has described - i would be surprised if it didnt already to be honest.

 

[bennygesserit]

Just a tiny legal point here (but it has niggled me throughout this thread) - trespass, as such, is a common law offence. Therefore the wrong has been decided through the development of case law not through legislation.

Aggravated trespass is a statute offence, made through legislation passed by Parliament - basically set up, amongst other reasons, to protect people pursuing their legitimate leisure activities from the criminal actions of those opposed to them.

So as such a trespass action has to be taken by an individual(person, company) against another in the civil courts.

I can see issues of identifying somebody who is acting unlawfully in certain recreational areas, less so ...of course for a legitimate angler who will have a paid licence , and probably a paid club card, to identify them!!

I've taught law for over 20 years now but I never claim complete accuracy;If I have erred in my explanation of the laws I'm sure Windy will put me right!

Posh this is what I posted on the song of the paddle thread , I must admit I am confused , is there a right to paddle anywhere or not ?

From the Trust website

THE LAW OF NAVIGATION ON FRESHWATER IN ENGLAND AND WALES
Introduction
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.
While the public has the right of navigation in tidal waters (e.g. Gann v Free Fishers of
Whitstable (1865) 11 H.L.Cas; Blundell v Caterall (1821) 5B & Ald. 268), this depends on the
presumption of the Crown’s ownership of the land beneath the water. This presumption is
rebuttable and there are some instances where the tidal riverbed is under private
ownership.
The presumption of rights of navigation on tidal rivers contrasts with the very limited right
on non-tidal rivers. The default position is that there is no such general right of navigation.
Above the flow of tide the land beneath a river or stream is privately owned so that while
the public can acquire navigational rights over such waters they cannot have them as of
right
It has been held that rights of navigation on inland waterways are not analogous to rights of
way on land (Wills’ Trustees v Cairngorm Canoeing and Sailing School (1976) SLT 162 and AG
ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton [1992] 1 All ER 230).
Acquiring rights of navigation
Post-Wills Trustees, 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. The basis of a public right of navigation in a non-tidal river should be treated as being
in a legal class of its own.
Of course, as is well recognised, a public right of navigation may also arise through statute.
This is the most common way in which such rights arise.
No right for use of banks
Even in the situations where the public has a right of navigation in a non-tidal waterway
(whether by grant, statute or immemorial user), this does not necessarily include the right
to moor or to make use of the banks of the waterway in gaining access to or leaving thewaterway. In A-G ex rel Yorkshire Derwent Trust and Malton Town Council v Brotherton
[1992] 1 All ER 230, L Jauncy commented, obiter, that “. . .the public have no right to use
the bed or banks of the river other than perhaps for anchoring in an emergency and for
landing at a place where they are entitled so to do”.
Therefore, to moor and access the river in such circumstances, canoeists would need the
permission of the owner of the river bank to avoid trespassing.
Remedies for the owners of fishing rights
In Rawson and Others v Peters (1972) 116 SJ 884; 225 EG 89, CA, the plaintiffs (claimants)
owned fishing rights on the River Wharfe but did not own the bed or bank. They claimed an
injunction and damages against defendant canoeists for interference with their rights. The
case was heard at the Court of Appeal where Lord Denning decided that it was possible for
an action to lie against the canoeists without proving damage to the fishing although this
was not, strictly speaking, trespass to land in the usual sense. Nominal damages were
awarded, with liberty to apply to the County Court for an injunction.
This case leaves fishing clubs with the remedy of an injunction against canoeists to restrain
them from trespassing where there is no right of public navigation.
End.

 

[Poshpaul (Angling Trust and PaSC)]

From the extract you have given it is quite clear that the basic presumption in law in there is no automatic right on navigation on inland waterways.

I've been looking around the law on criminal damage....and case law suggest that virtually no permanent damage need occur for an offence of criminal damage to have been committed.

see -

Samuels v Stubbs [1972] 4 SASR 200

The appellant trampled on a policeman's cap. The cap could easily be pushed back into place.

Held:

The actions did constitute damage.

Walters J:
"Damage is sufficiently wide in its meaning to embrace injury, mischief or harm done to property and in order to constitute damage it is unnecessary to establish such definite or actual damage as renders the property useless or prevents it from serving its normal function."


Now this is based on A level Criminal Law...but that in itself has to be based on the law as it exists...so if I am misleading I am sure my learned Welsh Barrister colleague will put me right. I'll give him a nudge to check.

 

[Jeff Woodhouse]

The simplest answer to all of this is for Fish Legal to visit a stretch of river where it is alledged there is no Public Right Of Navigation. Photograph an illegal paddler. Charge them with ' Paddling where there is no PRN', produce the relevant legislation and the paddler will be convicted. This charge has never been put before a court yet it would, if as stated the offence exists, be very easily proven. Any ideas as to why Fish Legal have not tried the 'easy option' ?

Terry, that type of approach can be more likened to PB's experience or similar, ie:

I got a simultaneous cocky smile, scowl and smirk and "We'll paddle where we effin well like, chum!".

I don't know if you're a car driver, but there are roads marked 'Private' and no right-thinking driver would proceed down them. Similarly there are public roads marked with prohibitions and weight limits, are you suggesting that truck drivers, motorists, and motorcycle riders ignore those also? You might argue that such restrictions are laid down in statute, but we know in many case they can be cheated - if no one sees, who's to tell?

If you're cyclist what would you do if there is a public footpath (there's a clue in the bold) and at its start there appears this sign -

​

Does it mean cycling IS allowed or prohibited? I had a case where walking along such a footpath a mounted cyclist behind me shouted "Get out the way!" and when I pointed to him that there are signs prohibiting his passage he told me unpolitely to "£*** off." Do you advocate this behaviour?

Ok, so you walk at least. Supposing you have a regular route to the local shops say and at one of the corners is someone's unfenced (by deed) garden where the occupier is trying to grow a nice lawn. There's nothing to restrict you cutting the corner by walking across his nice lawn. Would you really, or would you politely stick to the public footpath?

To me these are all the same. If a river runs through privately owned land and there is no right of navigation and the land owner doesn't provide permission it is rude to invade the owner's (or his tennants - if they are anglers) privacy. Would you appreciate being treated the same were it your land and river?

It all comes down to respecting other's rights to privacy. There's many thousands of miles of waterway that can be paddled in this country and just a few thousands that can't. Why not be happy with what you have?

Edit: Just wanted to add, you buy a rod licence, which entitles your to use a rod, but even you do not think that you can please yourself that you can fish anywhere you like, or do you? You buy club cards to gain access, or ask permissions from owners etc. Why can't this be the same for canoeists?

And saying all that, I still stand by and will fight for their rights to paddle where they allowed.

 

[The bad one]

Strange old world though, when the AT offers insurance indemnity to canoeists and kayak fishers sea and all running water don't you think?

 

[geoffmaynard]

Strange old world though, when the AT offers insurance indemnity to canoeists and kayak fishers sea and all running water don't you think?

Not really. Kayak fishing is getting quite popular. It's just a boat at the end of the day, and lots of anglers use them.

---------- Post added at 18:15 ---------- Previous post was at 18:13 ----------

Regulation is certainly needed to protect spawning areas from the type of activity Paul Boote has described - i would be surprised if it didnt already to be honest.

Of course it does. Disturbing spawning fish is an offence. Policing these laws is what seem to be lacking.

 

[Terry wright]

Many points raised.......

Paul..... Criminal Damage? I don't think there has been allegations of criminal damage. If this is in fact true then just call the police. Criminal Damage as you know is an Arrestable Offence and as such is far more serious than even alledged aggravated trespass. I believe the police only see a possible case of civil trespass dependant on the pointt of access. Hence why any prosecutions have been taken by Fish Legal and not the police.

Disturbance of spawing grounds I agree should be avoided this should include a total ban on fishing, paddling, use as a ford by horses and motor vehicles ( which I believe has happened).
I truely believe paddlers would never wilfully or knowingly disturb a redd.
One thing angling clubs should avoid is showing anglers fishing by wading ankle deep and casting to deeper water for Winter grayling in areas where the club claim paddlers were causing disturbance. Total ban on all activity and clear signage of the redds.

Damage/disturbance is debatable. I fish regularly from a kayak and have caught fish from right next to the kayak, Many kayak anglers and boat anglers troll lures behind their boats and regularly catch pike, perch, zander, trout and chub. The lure would be no more than 20 seconds behind the 'disturbance' so any adverse effect is short lived.
In 2000 the Environment Agency commissioned a report involving people and groups deened to be experts from, fishery management, angling clubs and organisations and paddling groups. The report conclusions would probably prevent a conviction and massive 50p damages as in the Rawson case.

Indeed the AT have seriously courted kayak anglers and I was involved in coming up with our code of conduct.


At this point I should say that throughout all my paddling either with or without a rod I have had nothing but good experiences with anglers. With sensible behaviour there is no reason we cannot share waters.

Oh dear just seen Central Tonight....forget canoes and kayaks.
The founder of the Midlands Stand Up paddle club has just said: 'We can do our sport anywhere canals, rivers or lakes!' My, oh my, another crowd wanting to share your waters.

 

[The bad one]

Sorry "it's just a boat" So is a canoe which is paddled the same way Geoff.
Is the argument not about access on none navigational river systems.
But because those in a kayak happen to have a rod with them, then it's ok for them to have access to a river but not those without a rod.

That is illogical thinking on behalf of the Trust, some may even say hypocritical.
Then there's the offer of indemnity for those that just canoe, what's that all about????????

A logical standpoint would be no craft of any kind at all on none navigational water course.

 

[Terry wright]

"none navigational water course".

I prefer to think that the phrase ' responsible access to suitable water' is more appropriate.

 

[geoffmaynard]

Damage/disturbance is debatable. I fish regularly from a kayak and have caught fish from right next to the kayak, Many kayak anglers and boat anglers troll lures behind their boats and regularly catch pike, perch, zander, trout and chub. The lure would be no more than 20 seconds behind the 'disturbance' so any adverse effect is short lived.

I disagree with most of your statements in that post Terry but this one I do agree with, to a degree. Some resident fish do get accustomed in some stretches to boat traffic though migratory fish never do; they bolt upstream as fast as possible until they find somewhere without the silhouette of a damn great shoal of shark passing over their heads.
Also when a flotilla of (generally) badly handled canoes is followed up 5 mins later by another armada, then another, and another minutes minutes later - sometimes a hundred in a few hours (no exaggeration, on some popular paddling rivers) then the disturbance does take an accumulative effect and even the resident fish stop feeding though the angler is usually unable to cast anyway without having his line snagged by a passing craft.

 

[Terry wright]

On that point I agree Geoff massed groups of inexperienced poorly guided are an issue that the local authority should address.
Not sure but perhaps it is the Wye you speak of. Unfortunately the most likely locations already have a Public Right Of Navigation and they are within their rights. Sadly these groups get the responsible paddler a bad name.
This is where codes of conduct need to be imposed on businesses and licences revoked for repeated bad conduct. The same can be said of canal boat companies that hire out barges for day trip ' booze cruises' along narrow canals with little or no training of the crew and no life jacket worn by the drunken idiots on board.