River Access for All

Don't landowners own rivers?

The Landowners own the rivers and control how they are used. Why don't we just get permission and paddle when and where we are allowed?

Riparian landowners may own the banks and beds of a river but they cannot own the flowing water itself.

Ownership of the land does not give landowners any power to control rights of passage over it any more than ownership of a field through which a public footpath passes allows landowners to control the use of the public footpath.

Prior to Revd. Dr Caffyn's research, the British Canoe Union and Canoe England spent 50 years attempting to gain agreement with landowners and angling interests to shared use of rivers with no significant gain. Such agreements as were reached were typically highly restrictive.

No statute or court case has been found limiting the exercise of a public right of navigation to those situations where riparian landowner or angling group permission has been obtained.

Claimed rights

My local angling club claims that they have "exclusive sporting rights" on parts of the local rivers. How does this affect canoeist's rights?

In this article in Sporting Life, the solicitor Elizabeth Earle says:-

'Sporting rights' is rather a vague term, but was described in the 19th century as the right to; 'hawk, hunt, fish and fowl'

It doesn't affect the public rights of navigation at all. The angling club will have purchased or rented/leased their rights from the riparian landowner who had no right to control the exercise of public rights of navigation in the first place. As with any other case where anyone purchases something that the vendor didn't have the right to sell, the purchasers should take up their grievance with those who they feel sold them something they didn't own.

Public rights of navigation can only be extinguished (or otherwise interfered with) by legislation or exercise of statutory powers. These will be a matter of public record.

Unless the landowner can show there is no public right of navigation the angling club will have no more right to obstruct passage on the river than on a footpath that runs alongside it.

Dealing with access in other countries

We can't be the only country to have these problems. How do they deal with it elsewhere?

See the website section that deals with this.

The Environment

How about damage to the environment. Don't canoeists have a responsibility to limit their paddling to avoid damage to fish stocks and other animal and plant life?

Most canoeists will recognise the need to balance their rights with the rights of others and the needs for sensible protection of the environment where possible.

The Environment Agency has investigated the risk of damage by canoeing to fish stocks and fish breeding and concluded

The general conclusion from this study is that canoeing is not harmful to fish populations"- EA Report W266 Effects of canoeing on fish stocks and angling.

A Memorandum of Understanding between Canoe England and English Nature (a forerunner of Natural England) agreed

English Nature and the BCU agree that there is unlikely to be any significant impact on or lasting disturbance to wildlife and the water environment from the passage of canoes.

That was in 2003 but we are aware of no new evidence which would revise this assessment.

The Canoe England publication You, Your canoe and the Environment provides useful guidance on good practice on using your canoe in a responsible and appropriate manner.

DEFRA statements

Defra say that there are many miles of canals and major rivers that are already available for canoeing. Why isn't this enough? Why do you want to come and disturb our river?

There are many types of canoeing, requiring different types of water.

For example, white water is required for slalom, flat water for touring and sprinting and a coastal environment for sea kayaking. Suggesting that such a variety of needs can be met within the limitations of the regulated canal and river system shared with motorised vessels makes as much sense as suggesting that the needs of walkers can be met by the road system or fishermen's needs by trawlers.

DEFRA and PRN

Why haven't Defra looked at the evidence for a public right of navigation and made a decision on behalf of all river users?

They say that they cannot justify such expenditure from the public purse and in any event only a court may authoritatively make such a decision.

We believe that an authoritative investigation by Defra or an appropriate select committee of parliament would provide sufficient clarity to end the recurring conflict on many rivers.

In Scotland the situation was resolved by the introduction of the Land Reform (Scotland) Act, 2003 supported by a code of conduct. In 1973, the Select Committee of the House of Lords on Sport and Leisure said

The legal question of rights of way over water must be settled. A number of different legal interpretations of this right of way have been referred to in evidence and it is time for these to be resolved..

We can see no good reason why Defra should disagree.

Established rights of navigation

Weren't rights of navigation established for barges and large freight carrying craft? How can these rights be applied to canoes for pleasure purposes that weren't even thought about when the rights of navigation were established?

There is no evidence of any public rights of passage (including navigation) ever being confined to specific types or sizes or craft other than on the basis of possibility (large craft cannot have a right to go where it is impossible for them to go).

In his work "The Right of Navigation on Non-tidal Rivers and the Common Law" (see page 141), Revd. Dr Douglas Caffyn says (referencing the case of Yorkshire Derwent Trust Ltd and another v Brotherton and Others) :-

Balcombe LJ then stated that he considered that there was also a public right of navigation for pleasure boats.

The reasons he gave included the fact that at common law rivers are either publicly navigable or not navigable at all; that on land the classification of a public right of way by one type of user has always implied use by a less burdensome user, eg pedestrians may use a carriageway; dedication may be made for a less intense use but it is not possible to dedicate for use by a section of the public.

His final reason was that the fact that some vessels paid tolls did not preclude free use by recreational craft since pedestrians were allowed to use turnpike roads without the payment of tolls.

In Wills’ Trustees v Cairngorm Canoeing and Sailing School Limited (1976) Lord Wilberforce said:

As a matter of principle, it is my opinion clear that this public right [the right to float timber] can include and accommodate a right of passage by canoe: the canoe draws only six inches of water and the use made of the stream – i.e., of passing down the stream – is similar in character. A distinction was sought to be introduced from the fact that the use for floating was commercial and that for canoeing recreation and that the admission of the former did not therefore admit the latter. But, even if one puts aside the mixed quality of the use in this case (since the respondents at least are a commercial organisation) it is in my opinion clear that once a public right of passage is established, there is no warrant for making any distinction, or even for making any enquiry, as to the purpose for which the right is exercised. One cannot stop a canoe, any more than one can stop a pedestrian on a highway, and ask him what is the nature of his use.

Lord Hailsham said:

A second contention of the appellants which I equally find it necessary to reject was that, assuming that a public right of navigation is found to have existed in the Spey, it was limited to use for serious transportation or commerce and could not extend to canoeing purely or mainly for recreation. I find this wholly unacceptable. Canoeing as such is well within the use I have found to be established on the Spey. Except in shape a canoe is not distinguishable in principle from a curragh, any more than a mule would be distinguishable from a horse where what is in question is the use of a bridle way. I can find no authority for saying that the use of a right of way on land or water can be made to depend on purpose for which, as distinct from, the manner in which or the vehicle on which it is used, and in principle I find the suggestion that it can be so limited most unattractive. Once a right of way is established for horses, carts or foot passengers on land, or for rafts or canoes on water. I cannot see that it can possibly matter whether the use is for recreation, business or the commercial carriage of goods or persons.

Lord Salmon said:

But once a river is found to be a navigable public river and to have been so used for a very long time I do not think that the public’s right to navigate can be restricted to navigation for any particular purpose or by any particular type of curragh or raft; certainly, in the present case, canoes cannot be excluded. There is no authority which suggests that a public navigable river may not be used by the public for purposes of exercise and recreation as well as transport and commerce so long as it is not used emulously.

Lord Fraser said:

It was proved that the Spey had been used on an extensive scale for floating large rafts which must have drawn at least several inches of water, and in my opinion there can be no doubt that the right to pass such rafts down the river is amply wide enough to include the right to pass canoes, which are much smaller, and draw less water, than the rafts.

Such comments leave no room for the suggestion that a right of navigation could be created based on commercial need but to the exclusion of recreation.

Do rights lapse?

Surely if you can't show that a right of navigation has been regularly used in recent times it can be considered to have lapsed?

In the case of Josie Rowland v Environment Agency, 2002. (Case No: HC 0102371.) Mr Justice Lightman said

RN 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.

So public rights of navigation that existed in antiquity (in practice 1189 or after) still exist, unless it can be shown that the right has been ended by legislation or the exercise of power delegated by legislation.

If silting makes it impossible for large craft to navigate but it is still possible for canoes and other small craft to do so, the public right of navigation persists for those craft capable of exercising it.

Revd. Dr Douglas Caffyn covers this subject fully in his work "Once a Public Right of Navigation, Always a Public Right of Navigation"

PRN and Great Rivers

I have heard it suggested that public rights of navigation in the medieval period were confined to the "Great Rivers" - specifically The Thames, The Trent, The (Great) Ouse and The Severn. Where weirs were removed on other rivers under the 1472 Act for Wears and Fishgarthes or the many other similar Acts, it is suggested that this was nothing to do with navigation - it was to preserve fish stocks. Can you disprove this?

There is a great deal of evidence to show this proposition is incorrect. Here is enough to disprove the theory.

The Lisle Letters is a revealing historical record in the form of correspondence to and from the Lisle family. On page 140 there is reference to an order for destruction of a weir at Umberleigh on the River Taw in 1535 and the fact that the king himself spent time in Hampshire making sure that similar orders were complied with there.

None of the supposed "Great Rivers" is in Hampshire.

On page xii in the Foreword, the historian Hugh Trevor Roper confirmed this was part of a general purge of removal of weirs on navigable rivers.

A letter illustrates further steps taken to protect navigation other than in the proposed "Great" rivers.

"852. [Sir] Peter Philpot to Cromwell.

Your commandment for the weirs of Kyrcheche (fn. 7) shall be accomplished as soon as possible. Mills, weirs, and fishgarths are being plucked down, and by Whitsuntide next every man that hath any ground adjoining to the river shall cut the trees away, "and the shelpis to score," so that a boat may have free passage.

Kyrcheche is Christchurch in Dorset and Shelpis are shallow areas in rivers that needed scouring.

These extracts from THE NAVIGATION OF THE RIVER LEE (1190 - 1790) published by Edmonton Hundred Historical Society, confirms the use of the river for navigation (referencing Hunt, "History of Ware" p.17. and V.C.H. Herts. Vol III pp.380-91 and p.383. as the sources)

The Lady of Ware and her bailiffs were accused of neglecting the weirs, even of altering them in such a way that boats were unable to pass, to the great annoyance of the people of Hertford...

This was by no means the end of the matter and wrangling continued. The lord of the manor of Ware in 1275 was again accused of intercepting the shipping as he had erected a weir between Ware and Hertford."

Fisheries and mills were not the only impediments to a free navigation, The Prior of the hospital had made "a new bridge over la Hegh Legh with 12 piles under it...

In spite of these recurrent problems the Lee formed one of the main routes into London and there is abundant evidence of trade on the river in the thirteenth and fourteenth centuries, chiefly corn and malt."

The Angling Trust

The Angling Trust has referred to the court case where a canoeist dropped a claim asserting a public right of navigation on all rivers "apparently accepting his case was without any merit." If this case was without merit why are similar claims for the existence of a public right of navigation still being made?

Details of the case, the case for the claimant, the case for the defence and the notice of withdrawal are all shown on this website.

The claim was withdrawn not because of any lack of evidence to support the claim of a public right of navigation but because no member of the public has the right to bring an action in the courts defending a public right. The right to bring such an action is reserved to the Attorney General.

The Angling Trust/Fish Legal statement is here.

Launching from private land into navigable water

Can I launch my canoe from private land into navigable water, whether its tidal or non tidal?

Only if you are launching from somewhere where you have a right to pass...

Only if you are launching from somewhere where you have a right to pass and re-pass such as a public highway, public footpath, common land or public access land under the Countryside Rights of Way Act, 2000. Other than such land you will need the permission of the riparian landowner.