Bylaw Validity

January 31st, 2017 by James Goudie KC

The issue in the unsuccessful appeal by way of case stated in Akerman v Richmond LBC (2017) EWHC 84 (Admin) was as to the validity of bylaws made by the Council under Section 235 of the Local Government Act 1972 making it a criminal offence to moor a boat against specified land for longer than a maximum period specified.  The appellant contended that the bylaw is unlawful at common law because it was made for an improper purpose and was irrational. It was submitted on his behalf that the material generated by the consultation process showed that the basis for making the bylaw was anti-social behaviour but the bylaw did not address such behaviour and was such an excessive response to the evidence of that behaviour that it was ultra vires at common law. It was also submitted that making the bylaw was a disproportionate infringement of his rights under Article 8 of the ECHR.
The questions the district judge stated for the Divisional Court were:-

“1.  Did I err or was I irrational in deciding that the byelaws were “good” law and were neither irrational nor illegal?
2. Did I err in finding that Article 8 rights to respect for the home were not engaged or that if they were the byelaws were a proportionate and necessary step for the council to take to ensure good rule and government and the suppression of nuisance in the borough?
3. Did I err in not requiring evidence of individual anti-social behaviour by the appellant in reaching my conclusion that the byelaws were “good” law and that the prosecution case against Mr Akerman was properly brought?
4.  Was my decision “Wednesbury unreasonable” being one that on the evidence and proper application of the law no reasonable tribunal could have reached?”

Beatson LJ said:-
“15. It is axiomatic that the application of the established common law public law principles may result in a subordinate legislative instrument such as the byelaws in this case being ultra vires or an abuse of power: see for example the discussion in Wade and Forsyth, Administrative Law 11th ed., 2014 p 737-742, 743-746. The challenge may be direct or collateral, as where, as in this case, the invalidity of a byelaw is raised as a defence to criminal or civil proceedings: Boddington v British Transport Police [1999] 2 AC 143, 163 and 173. In this case the byelaws are not said to be ultra vires because they are on their face outwith the enabling power in section 235 of the 1972 Act or because their meaning cannot be ascertained with reasonable certainty. The common law challenge before the judge below and in this appeal is based on impropriety of purpose, failure to take account of a relevant consideration and Wednesbury unreasonableness or irrationality.”
“27. The way both the improper purpose and the irrationality points were advanced sought to proceed without addressing the fact that there is no right for the owner of a house boat to moor wherever or whenever he or she chooses. There is a public right of navigation on the River Thames, and those exercising their right of navigation are entitled to moor vessels to the river bed temporarily from time to time: see section 79 of the 1932 Act and Couper and others v Albion Properties Ltd, Port of London Authority and Hutchison Whampoa Properties (Europe) Ltd [2013] EWHC 2993 (Ch) at [529]) and [530]. But such persons are not entitled to obstruct the river. In Attorney General v Terry (1874) 9 Ch. App 243 at 431 Lord Cairns said that, while an encroachment may be so trifling that the court would not interfere, a subtraction of 3ft from 60ft is a tangible and substantial interference with the navigation which ought to be challenged and restrained by the court. Potentially, permanent mooring of boats such as the appellant’s which obstruct free access from the riparian land to the river constitutes both a private and a public nuisance: see Couper’s case at [525] ff. Similarly, in Moor v. British Waterways Board [2013] EWCA Civ 73, [2013] Ch 488 it was held that even a riparian owner who was not the owner of a navigable river bed, did not at common law have a positive right to moor a vessel alongside his land permanently.

28. … The nature of the rights of riparian owners and others to moor boats is a relevant consideration when considering the rationality and legality of public law acts such as these byelaws, which regulate and restrict a person’s ability to moor a boat without committing an offence. In my judgment it was legitimate for the respondent to regulate the way in which the appellant and others occupy the river bank, land held for the benefit of the whole community, to the detriment of other uses of the land and river bank.”

The questions posed were answered in the following way:-
“Question 1: The District Judge neither erred nor was irrational in deciding that the byelaws were “good” law and were neither irrational or illegal. By “good” I take it that she meant “valid” since we are concerned with legal validity rather than the issue of whether the byelaws are good or desirable in any other sense.
Question 2: I incline to the view that: (a) the District Judge erred in finding that a right under article 8 of the ECHR to respect for the home was not engaged in the circumstances of this case; but (b) the judge did not err on concluding that, if they were, the byelaws were a proportionate and necessary step for the respondent to take to ensure “good rule and government and the suppression of nuisance in the borough”.
Question 3: The District Judge did not err in stating that evidence was not required of individual anti-social behaviour by the Appellant in order to conclude that the byelaws were “good”, i.e. “valid” law and that the prosecution against the Appellant was properly brought.
Question 4: It follows from the answers to questions 1-3 that the District Judge’s decision was not “Wednesbury unreasonable”.”

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