Your right of navigation on UK tidal waters
We often get asked “where can I use a hovercraft?” by potential buyers. The answer is simple enough and very few of our owners have any issues using their hovercraft. Drive sensibly, with due respect to other water users and public, follow our code of practice, understand what you can and can’t do, where you can and can’t operate your hovercraft - and you should be safe in the knowledge you are breaking no laws.
What we’re looking at here is what your rights are when you occasionally run into an over-officious warden or harbour master who will cite a bye-law or rule which means you should not be operating on ‘his’ patch. To avoid an argument, or being ‘bullied’ it’s wise to be ready with the facts.
Now – we’re not lawyers, let’s be clear about that. But the basis in law of our answer ‘anywhere you can use a boat’ can be simply broken down into a couple of points.
In the UK, we have a Public Right of Navigation (PRN) using a vessel in tidal water.
Hovercraft are vessels, just like boats (Jetski’s aren’t – legally speaking)
The ongoing battle between (primarily) kayakers and fishermen with rights to fish non-tidal rivers is a separate matter altogether (even though it’s proven that the kayaks don’t disturb the fish, but that’s another matter…) But, the PRN in tidal waters an uncontested right. For sure, no cases have been found which disputed the existence of a public right of navigation on tidal waters.
However, there are one or two places around the country where hovercraft have been ‘banned’ using a local bye-law. We strongly contend that this is not legal because the law of England is that public rights can only be extinguished in three ways.
- Statute (ie an act of parliament.)
- Statutory Authority,
- Conditions changing so that the right cannot be exercised,
In 2002, Mr Justice Lightman said “PRN may only be extinguished by legislation or exercise of statutory powers” (Josie Rowland v Environment Agency – 2002.)
A byelaw is NOT a statutory law – therefore it cannot be used to remove a PRN.
For rivers, the normal reason that the right cannot be exercised is that the river has silted up and is no longer passable by conventional boats - but public rights are not extinguished by non-use for any period of time. This means that even if a boat hasn’t used / cannot use a tidal river, the right still exists. Lord Lindley in the House of Lords who said “the doctrine ‘once a highway always a highway’ is, I believe, as applicable to rivers as to roads.”
The foreshore is the area between the high water mark and the low water mark. When the tide is in there is an absolute right to navigate through the water (although not necessarily a right to land a boat or launch one) and so it is not possible to fence off foreshore areas, as this would limit navigation. All foreshore belongs to the Crown unless it has in the past been sold or given away. This has occurred in a few places and there are often bylaws prohibiting bait digging on or near the foreshore, which is probably the most common reason for people to use such areas. In any case such activity is usually prohibited by law in protected areas. However, this activity is clearly a separate matter to the PRN which exists.
The Crown Estate gives what it calls a ‘general permissive consent’ for ‘non-commercial public access’ along the foreshore it controls. Approximately half of the UK foreshore and around half of the tidal riverbeds are owned by the Crown and managed by The Crown Estate, in addition to virtually the entire UK seabed out to 12 nautical miles. The Crown Estate is a landowner and not a regulatory authority and ostensibly the owner of the foreshore by virtue of prerogative right. The same applies to the seabed, being land below mean low water. This, in effect, means that the Crown owns all of it unless it has in the past given it away or sold it.
Other owners of foreshore include, for example, the Duchies of Cornwall and Lancaster, Local Authorities, RSPB, National Trust, MOD and some is in the ownership of private individuals. Beaches are owned, although almost all beaches allow public access, often because of the practical impossibility of preventing it. Ownership does not necessarily revoke the PRN. The judge in the 1864 case of Gann vs Free Fishers of Whitstable said that “The foreshore is owned by the Crown except in those places where the ownership has passed to an individual by grant or adverse possession. Where this has happened the grantee takes it, in general, subject to the public right of navigation.”
While we’re on that, it’s worth mentioning that the judge also ruled that ‘constructed’ pits where the owner has dug out an area which fills with tidal water are legally designated as privately owned. He mentioned gravel pits, but bringing that forward to today, inland waterways constructed to give ‘river’ frontage and inland marinas which are controlled by tidal/sluice gates etc – for instance the Sovereign Marina, Eastbourne (look it up on Google Earth) - may well not have a PRN.
Low water, and travelling over mudflats.
There’s lots of court cases which firmly set the precedent that you have a PRN even when the tide is low and you are navigating over foreshore or seabed – some of which I’ll quote here. Lord Widgery : ‘The public right of navigation in tidal waters is a right given by the common law which extends to the whole space over which the tide flows and is not suspended when the tide is too low for vessels to float.’
This was supported by Sir James Hannen, ‘The rights of all vessels are not co-extensive. It may be reasonable and right that a small vessel should go up to the farthest point she can reach in order to give the public the benefit of the public way.’
Lord Denning, ‘There are many cases where people with canoes have a right to take their canoes up and down a river. They certainly have such a right in tidal waters. The right of soil in arms of the sea and public rivers must in all cases be considered as subject to the public right of navigation”
More recently Park J said, ‘There is a right to navigation over all tidal waters, even where at certain states of the tide the water may disappear from the particular place where the navigation is taking place.’
Interestingly, in 1990, Brotherton Vinelott J held that on a section of the river Derwent which was probably tidal there was no public right of navigation. This part of his judgement was effectively reversed by the parties to the action who, when the case came to the Appeal Court, stated that it was agreed by the parties that there was a right of navigation from Sutton to Stamford Bridge. No reasons were recorded. This would seem to mean that the decision of Vinelott J on this matter is void of any authority. As stated previously, no cases have been found which disputed the existence of a public right of navigation on tidal waters.
Hovercraft frustrate authorities due to their ability to operate at low water, over mudflats and to access areas they hadn’t ever considered would be available to recreational ‘boaters.’ That’s not our fault - or problem. We’re boats remember. We have a right which we exercise in accordance with the law and if they prevent such, they are potentially committing a criminal act. Back to what I said at the beginning of this article - behave responsibly, in accordance with the code of practice and I honestly cannot imagine any authority would wish to challenge such operation in court. However, this is our advice only – we’re not lawyers and this case has never been tried. To be fair, it’s never come even remotely close to that in 35 years of hovercrafting!
- Stand firm!
- You have a right of navigation on tidal water.
- A bye-law is not a statutory law and cannot, therefore, remove that right.
- It is uncontested that the right includes use of a vessel.
- Hovercraft are legally categorised as vessels.
- The PRN extends to the foreshore and seabed.
There’s two other issues that you need to consider. A harbour master can control access and behaviour within his area of authority. Nothing here is meant to suggest otherwise and you should and must act in accordance with local bye-laws. So, it may be that you need to observe speed limits or request permission to pass through the harbour to avoid conflict with (for instance) commercial traffic or lifeboat operations. Council’s may decide to restrict your ability to launch from their slipways. However, you have an ancillary right to exercise your PRN, and if they control the access and prevent you from launching, they are likely committing a criminal offence in doing so.
The other issue is your legal right to operate in protected areas such as RAMSAR sites, SSSI’s (and a million acronyms!) which are mostly administered by Natural England, and organisation with a huge history of Ultra Vires behaviour. We’ll look into that in a future article.
If, as a hovercraft operator, you do run into any issues where your PRN is challenged, do please let us know.