The Law on Moorings

A note by David Harris, The Crown Estate’s Legal Adviser.
It gives his overview of the topic, and should not be relied on as legal advice to the reader.

The main legal point which is of interest on moorings is whether the moorer needs anyone’s consent to lay a permanent mooring. For this purpose we can consider as permanent any mooring with ground tackle which is not intended to be, and cannot conveniently be, taken on board by the vessel using it in the ordinary course of use. This establishes a distinction from anchoring.

For the purposes of this account, I will concentrate on marine, rather than inland, waters.

Statutory Consents

It is generally thought that a single mooring laid for recreational purposes does not require planning permission.

Under Section 5 of the Food and Environment Protection Act 1985, a “FEPA Licence” from DEFRA is needed to deposit articles in the sea or under the seabed. Under Section 34 of the Coast Protection Act 1949, a “Section 34 consent” is required to deposit any object on the seashore below mean high water, if likely to result in obstruction to navigation. Both these consents are now dealt with by the Marine Consents & Environment Unit of DEFRA. In principle, both apply to moorings. However, where a harbour authority’s consent is also needed under local harbour legislation, the need for a FEPA Licence and a Section 34 consent is normally subsumed within that, so that the consent of the harbour authority alone is sufficient. (This applies to the mooring itself. Any ancillary structure such as a pontoon might still require departmental consent.)

Harbour legislation and the land owner

One of the complications which bedevil the topic of mooring is that local harbour legislation comes in all shapes and sizes – it has been enacted up and down the country over several centuries, and there is great diversity in the way it is drafted. Nevertheless, most if not all harbour authorities will have wide powers to regulate moorings, for obvious reasons.

The next question is whether the mooring needs the consent of the owner of the foreshore or bed where it is laid. Again, harbour legislation has an influence in statutory harbour areas, so let us look at the situation outside harbour areas first. Here, there can sometimes be local authority bye-laws governing the use of beaches and other coastal areas, about which, again, one cannot generalise. But if there are no harbour regulations and no relevant bye-laws, the position will be covered by the common law.

The common law established some centuries ago that there is a public right of navigation for vessels in tidal navigable waters. It also established that anchoring in the course of navigation is part of the public right. The case of Fowley Marine v Gafford (1967) considered the issue of whether mooring permanently might also come within the public right of navigation, and decided that it did not. In Scotland, Fairlie Yacht Slip v The Crown Estate (1979) confirmed that also to be the law there. There has always been a degree of legal controversy as to whether Fowley Marine was rightly or wrongly decided, in the light of historic nautical practice and old case law. It has however defined the law in a reasonably clear way for over 35 years. Harking back to what may, or may not, has been the situation in historical times is becoming increasingly a sterile exercise. I will return to that point later.

The effect of permanent mooring not being part of a public right is that, to place tackle in land owned by someone else, one needs the consent of the owner. This is true for dry land, for land intermittently covered by water (tidal land) and for land permanently covered by water (the seabed).

Almost all the seabed within United Kingdom territorial waters is managed by The Crown Estate on behalf of the Crown. The Crown Estate also manages about 55% of foreshore (the tidal land between mean low water and mean high water). But some 45% of foreshore is in other hands. This is because, whilst the foreshore of all the Kingdom originally belonged to the Sovereign by Crown prerogative, over time a good deal of it has been granted to other parties, such as by Royal Charter. An example of this is foreshore in the Orwell Estuary, which is now owned by Ipswich Borough Council.

In 2000, the case of Ipswich v Moore and Duke held that Ipswich Borough Council, in its capacity of landowner, had been deprived by the provisions of the Ipswich Dock Acts of the right to consent to, and to charge for, moorings on the Orwell. But the particular provisions in those Acts are not typical – indeed, because of their link with the history of the port of Ipswich, it can safely be said that the exact form of words used will not occur anywhere else. Part of the reason for the provisions was probably the fact that Ipswich Borough Council was already a constituent member of the Ipswich Port Authority, which had the role of regulating moorings along with its other harbour functions.

The important point here is that, very often (though not necessarily always), the legislation covering a particular harbour area will, unlike at Ipswich, have been written in terms expressly preserving the rights of the landowner. An example of the rights of the landowner continuing to exist alongside the statutory powers of the harbour authority came up in a 2003 case, Dart Harbour and Navigation Authority v DTLGR.
Where The Crown Estate has retained foreshore and seabed in a harbour area (not the case at either Ipswich or the Dart), the harbour legislation normally has a Crown saving clause, preserving its landowner rights. So a moorer in one of those areas will need the consent of both the harbour authority and the Crown (which in practice is given as part of the harbour authority’s mooring licence.)

Long usage

Harbour legislation is therefore one factor complicating the legal position on mooring. The other is the issue of long usage. It is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue. Unfortunately, it is very unclear how this principle would be applied by the courts in relation to moorings – the case law is hazy and sometimes contradictory. These are the main possibilities:-

· Customary rights. Something which has been practised since time immemorial by reference to a particular locality may acquire the legal status of a custom, which is a form of local law. But there are two major obstacles to establishing mooring as a custom of a given place. First, the legal criteria defining a custom are very precise and quite difficult to meet. Secondly, most of the places where the local inhabitants have moored continuously for very many years are probably within harbour areas, where it is likely that legislation will have overridden any customary rights which might once have existed.

· A prescriptive easement. An easement is a right enjoyed over one property for the benefit of another, such as a right of way. The property which enjoys the right must be “capable of benefiting” in the eyes of the law, which usually means being contiguous with, or close to, the land over which the right is claimed. I would say that mooring in the sense of tying up a vessel to one’s own adjacent land is well capable of being an easement, in which case it can be acquired by prescription – that is, 20 years’ continuous usage without objection or consent. But that will not be the case where a mooring is offshore and therefore some distance away from the moorer’s property.

· Adverse possession, or squatter’s rights. If you “possess” someone else’s land without objection or consent, after a certain time you can acquire a squatter’s title which supersedes the title of the original owner, but it is highly dubious that laying a mooring can amount to possession of the land where it is laid – case law would certainly suggest that it is not.
In summary, it is probably legally possible to acquire a right to moor by long usage in some circumstances, but the tests are quite obscure and complex. The Crown Estate will however always consider a properly presented case on its merits and is prepared to recognise rights where a legal case is made out. From experience, I would say that it is relatively unlikely that a claim would succeed without engaging a lawyer to present the case clearly, in legal terms.

Fortunately, only a comparatively few of the many thousands of moorings around the country are affected by this difficult long usage issue.

The law today

I suggested earlier that querying the present law in reliance on historic nautical practice and old case law (which is pre-20th Century, besides being uncertain in its meaning) is a sterile exercise. The reason I say this is because the marine world has changed a great deal since the 19th Century, and what might have seemed reasonable then, may not be today.

It is claimed that judges in AG v Wright (1897) intended to express as the law that mooring was legally no different from anchoring. Whether they did or not is a matter of some doubt. Many believe that, if they did indeed mean to express that view, they were taking a seriously wrong direction. It is obvious in these more congested times that mooring permanently raises issues quite distinct from anchoring. Anchoring tackle is something a vessel carries while it is navigating normally; mooring tackle has to be laid as a separate operation. If one parks a vessel on a mooring for, let us say, 6 months, without moving at all, how can that be navigating? How can the bed owner have no right to disturb a moorer, who is otherwise effectively claiming the exclusive use of a bit of his land on a permanent footing? Such concerns were being expressed by legal commentators on AG v Wright a long time before Fowley Marine.

If each person has the right to lay moorings as a public right, what limit is there to the number of moorings a person can lay? One may legitimately have a fleet of vessels, and a need for a destination mooring as well as a starting out one. And what is to stop that person charging others for the use of their ground tackle? There surely cannot be many boat owners today who would seriously argue that anyone should be free to lay multiple moorings for rent outside harbour areas, as part of the right of navigation.

Of course, in theory the issues arising from changing the law could all be resolved by further new law – but at what cost in terms of public and private money and time?

The Crown Estate believes that amending the public right of navigation cannot serve the public interest in the conditions of 21st Century Britain. And that is why it is best if we stay in legal terms where we got to in 1967.

A final point about The Crown Estate. All our profit goes to the Exchequer. So if our charges for moorings are unpopular with some, at least it can be said that we ultimately represent the tax payer, i.e. all of us. The public at large might not be in too much of a hurry that we should give away an asset of undoubted financial value to individual boat owners for nothing. We will however strive to be reasonable and open in the way we arrive at our mooring charges for different localities, and to give a fair hearing to any local concerns.

D HARRIS
August 2004 (updated August 2005)

Moorings Law Note:
The statutory consenting regime is likely to change under the remit of the Marine Management Organisation, created by the Marine and Coastal Access Act 2009.

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