Article 8 and canal boats

Friday 31 March 2017

Jones v Canal and River Trust [2017] EWCA Civ 135, 7 March 2017.

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Jones v Canal and River Trust [2017] EWCA Civ 135, 7 March 2017

The Appellant, Mr Jones, lived on his canal boat on the Kennet and Avon Canal, near Bradford on Avon. The Respondent, the Canal and River Trust, managed and controlled this section of inland waterway, pursuant to statutory powers under the British Waterways Acts of 1971, 1983 and 1995.

Mr Jones had a licence to use his boat on the waterways which had been granted by the British Waterways Board, the predecessor of the Respondent. It was a condition of the licence that boats should be used for genuine navigation on the waterways and should not remain in the same place for more than 14 days. The Respondent revoked Mr Jones’ licence in January 2013 having decided that Mr Jones was in breach of this condition having confined his boat to the same 5km stretch of canal between October 2011 and January 2013. Mr Jones was given 28 days to remove his boat from the waters owned and managed by the Respondent. He failed to do so.

The Respondent commenced possession proceedings in the county court at Bristol. Mr Jones sought to defend proceedings arguing, among other things, that he had a physical disability which impeded his progress around the Kennet and Avon, that he had not broken his licence conditions and that the Respondent had failed to have regard to its duties under the Equality Act 2010 and Article 8 ECHR.

Upon the Respondent’s application, the Article 8 element of the defence was dismissed summarily. The judge purported to follow the guidance set down by the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 6, and London Borough of Hounslow v Powell [2011] UKSC 8, [2011] 2 AC 186 to the effect that where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the request of the local authority landlord, will be supported by the fact that it would serve to vindicate the authority's ownership rights and would enable the authority to comply with its duties in relation to the distribution and management of its housing stock.

These legitimate aims should be taken as ‘given’ and would not need to be pleaded and proved expressly. Meaning that in the majority of cases where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. Mr Jones’ appeal to the High Court was also dismissed.

Mr Jones appealed to the Court of Appeal. He sought to argue that the Respondent was not in an analogous position to a local housing authority, that the housing cases such as Pinnock and Powell were exceptional and and that the now customary four-part structured approach to proportionality, epitomised by Lord Sumption’s judgment at [20] in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 38, should have been adopted.

The Court of Appeal allowed Mr Jones’ appeal. As with housing cases, in cases such as the present one, the court will usually be able to proceed on the basis that the waterways authority has sound management reasons for wishing to enforce rigorously its licensing regime, without those reasons being expressly pleaded and proven.

The authority’s management duties and ownership rights will generally be taken as ‘given’. Likewise, as in housing cases, the court cannot make the judgment of how best it is for the Respondent to manage the waterways. However, unlike housing cases, the relative weight of the competing interests of the occupier of the boat, using his or her vessel as a home, may not always be readily apparent.

In addition, the Pinnock line of cases did not represent a true exception to the structured approach to proportionality. Rather, housing cases provided an instance where the assessment of proportionality is more amenable to summary disposal. Summary disposal may be appropriate in some waterways cases but not others. The fact that this might impose an additional burden on the court system was one that would have to be shouldered from time to time.

Mr Jones’ defence raised issues, yet to be determined, as to whether he had breached his licence conditions and whether there had been a breach of the Equality Act 2010.  In addition, the Respondent sought extensive relief requiring Mr Jones to remove his boat from the Kennet and Avon and stopping him from using it on any of the extensive network of waterways which it controlled. The Article 8 defence could not be determined without considering these issues and was not suitable for summary disposal.

Click here for the judgment.


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