Rivers Orwell/Gipping

[toyboy]

Somehow I don't think so, but please take note of the comments from FullCircle if you intend to continue, also, the ECF is well known for being the more polite of the forums, please, let's keep it that way. To use a tennis analogy, few like those who play like McEnroe (not a tennis follower but I understand he was a trifle aggressive)

The reason this is a good and polite forum is because we don't talk down down our nose at people and many of us will just say, "Sorry, I got that wrong rather than continuing to post nonsense and sticking to it come what may even when the original wrong poster admits they are wrong. Fortunately we don't have many people like that in our forum do we?

 

[Bru]

Nearly all of what I have posted has been tested in Law except for navigation rights on non tidal waters as far as I know and I think I could make a case myself which would establish that ....

The case law for navigation rights on non-tidal waters is extensive and I'm afraid you'd be banging your head against a brick wall

We nearly bankrupted the Inland Waterways Association fighting the case for the ancient right of navigation on the River Derwent and ultimately, despite fighting it all the way through the courts and, along with partner organisations spending well into six figures, we lost. And that case was unencumbered by any revocation order, the navigation had simply fallen into disuse

Unlike public rights of way on land and the general right to navigate freely through tidal waters (which, by the way, can be and usually is superceded by Acts and orders related to ports ad harbours, do not make the mistake of thinking it applies within the confines of Ipswich docks, it almost certainly doesn't), there is no general legal right of navigation over non--tidal waters

The case law established in the Derwent case means that you also cannot apply general rights of way legislation to non-tidal waters

And in any case the making of an Act for the improvement of a river into a navigation, such as the Act made in regard of the Gipping in the 1700s, (normally - it does depend upon the wording of the Act) supercedes any pre-existing ancient rights. The later revocation of that Act does not reinstate older rights. Again, this has been established in case law

There is an outside chance the Gipping Act(s) did not formally extinguish existing rights, if indeed there were any (I'd be surprised but I haven't perused said Acts and don't intend to). If that were the case and if you could find earlier charter documents etc that formalised a general public right of navigation you'd maybe have a chance. However, such grants and charters were not usually worded in such a way as to grant a general public right. The rights were, in my experience, always granted to a specific body corporate or individual in which case they are of no help

Simply proving that the river was used for navigation in ancient times is of no use. There is no legal framework comparable to the 1953 Public Rights of Way Act et al by which such "customary rights" (rights gained through use and custom) can now be formalised. IWA were, in the Derwent case, reduced to attempting to get the courts to apply the said1953 Act to inland waterways and the courts ruled against us. It was a long shot and a lot of people within and without IWA (myself included) felt it was a waste of money to attempt it but it was the last faint hope after all else had failed

Trust me, you're on a hiding to nothing with this one! The British Canoe Union has been fighting the case for decades, as I mentioned above the Inland Waterways Association threw the kitchen sink at it twenty odd years ago and it's pretty much done and dusted

Restorations such as the work being carried out by the River Gipping Trust (a now independent offshoot of the Inland Waterways Association Ipswich branch) are now reliant on gaining agreements from the riparian owners of river navigations. In some areas (and I believe the Gipping is one of them but bear in mind I've never been personally involved with that project and I've been out of the game for getting on for fifteen years) these agreements are forthcoming, in others (the Severn and the Derwent are two examples) the riparian owners are actively opposed and the law, as it stands, is heavily weighted in their favour

Ultimately, IWA etc, would love to see a legal framework to protect and re-instate such navigations to give them the same status and protection as PRoW on land. This would require an Act of Parliament and every effort has been made to get the necessary clauses instated in an appropriate Act over the years without success

 

[toyboy]

This is the work of Douglas Caffyn who is still working on it;
http://www.caffynonrivers.co.uk/_resources/cms/pdf/once_a_pron.pdf
The legal status of the River Gipping was a navigable waterway before the Stowmarket Navigation Act and I contend that when the navigation was abandoned the right to navigate it remained. However I have my hands full at the moment and I will not be following this through to Stowmarket unless I absolutely have too. Rev Douglas Caffyn is very much into the fresh water issue and I am not getting in his way.

 

[Kurrawong_Kid]

I have found this a most informative and fascinating thread conducted in a correctly argued disputative manner. I can't resist saying my sympathies are with Toyboys efforts. Although the IWA has failed in the Derwent case and efforts of enthusiasts have so far stalled on the upper Severn, there have been cases where success, against the odds, has been achieved in restoring navigations, such as The Warwickshire Avon and the Droitwich Barge canal. Each case is different in the application of various legal considerations but the one constant in successful restorations has been the enthusiasm and fanaticism of individuals, such as Barwell and Hitchens. Keep at it Toyboys!

 

[Bru]

This is the work of Douglas Caffyn who is still working on it;
http://www.caffynonrivers.co.uk/_resources/cms/pdf/once_a_pron.pdf
The legal status of the River Gipping was a navigable waterway before the Stowmarket Navigation Act and I contend that when the navigation was abandoned the right to navigate it remained. However I have my hands full at the moment and I will not be following this through to Stowmarket unless I absolutely have too. Rev Douglas Caffyn is very much into the fresh water issue and I am not getting in his way.

Don't get me wrong, I wish hiim and you luck on this. I haven't time to read the link thoroughly but at a quick glance two immediate flaws in his thinking jump out

The first is that the he, like you, seems to assume that there was a right of navigation over these rivers prior to the Acts of parliament. In most cases there was not

The second, and the reason why I won;t spend any more time on the document, is that within a few paragraphs he begins to quote Highways and Public Rights of Way case law as it if applies to rivers and waterways and yet a search for the word "Derwent" turns up zero results. He is therefore ignoring case law which blows his argument out of the water

The judgement in the Derwent case was that rights of navigation are beyond the scope and intent of laws regarding highways including public rights of way. Case law can be overturned but only if a subsequent action in the High Court or Supreme Court leads to the judges in the later case deciding the original judgement was wrong in law. Counsels advice in the Derwent case was that this was extremely unlikely.

You also have another problem which I alluded to earlier. Even if you could find documentary evidence of a formal right of navigation on the Gipping before the 1700s Acts creating the navigation, that evidence would only be applicable to the river as it then was. The derelict navigation is not the river that preceded it. It would certainly not be applicable to the lock cuts and canalised channels built during the construction of the navigation. Whether it would still be applicable to water courses that no longer followed the original route is doubtful (and the only case law I know of which could be applicable for guidance is Highways law, ugh (!), which would indicate that the answer is probably that it would not be applicable if the same principal was applied)

Good luck with it anyway but my final suggestion is that you talk to the Trust before embarking on any one man band attempts to restore some putative ancient "right". The Trust appears to be happy with the position they are in vis the riparian landowners (in so far as I can find no suggestion that there is any problem with the landowners in regard of restoring the navigation) and if the navigation can be restored on that basis there seems little point in upsetting the apple cart

 

[Bru]

I have found this a most informative and fascinating thread conducted in a correctly argued disputative manner. I can't resist saying my sympathies are with Toyboys efforts. Although the IWA has failed in the Derwent case and efforts of enthusiasts have so far stalled on the upper Severn, there have been cases where success, against the odds, has been achieved in restoring navigations, such as The Warwickshire Avon and the Droitwich Barge canal. Each case is different in the application of various legal considerations but the one constant in successful restorations has been the enthusiasm and fanaticism of individuals, such as Barwell and Hitchens. Keep at it Toyboys!

I second your sentiments (with the rider of as long as it does good rather than harm, see above)

 

[LONG_KEELER]

Have to say that this has been a good thread.

Personally, I feel that the Ipswich Dock regeneration following the loss of old industries
and increased ship sizes is a great success. Lots of risks were taken by both councils and developers including the current developer who has purchased the "Wine Rack" tower block.

I take no sides in the various points of view submitted but would like to thank all contributors and Toyboy for his efforts to try and maintain access for us where possible.

It does seem a shame that I can no longer walk or take my bicycle over the Wet Dock lock from north of the river at Holywells to the south. Not many years ago you could actually drive a car across too. Am a bit mystified why this happened because every one used to use it. Also helped to
relieve the town from traffic.

Perhaps Toyboy could let us know.

 

[toyboy]

I have found this a most informative and fascinating thread conducted in a correctly argued disputative manner. I can't resist saying my sympathies are with Toyboys efforts. Although the IWA has failed in the Derwent case and efforts of enthusiasts have so far stalled on the upper Severn, there have been cases where success, against the odds, has been achieved in restoring navigations, such as The Warwickshire Avon and the Droitwich Barge canal. Each case is different in the application of various legal considerations but the one constant in successful restorations has been the enthusiasm and fanaticism of individuals, such as Barwell and Hitchens. Keep at it Toyboys!

Many thanks, I am trying not to stray into what the Rev Douglas is doing although the last time we communicated is a few months ago. He is primarily interested in the River Stour but the Gipping has cropped up in communications. His main interest is in rights for canoes and kayaks while mine is in rights of way on land. My strong point is my local knowledge and although I have travelled the Gipping when I was a sea scout my knowledge in mainly of East Ipswich and of course these days I am but one man. My main effort right now is in the rights of way around Ipswich Dock but as I sail on the River Orwell I also have an interest there

 

[Daydream believer]

If my house was in danger of flooding I would call for barriers across the mouth of the Crouch, Blackwater & just upstream of Felixstowe Docks.
Not across some tiny stream
That would be the most economical way of protecting miles of coastline

 

[toyboy]

The case law for navigation rights on non-tidal waters is extensive and I'm afraid you'd be banging your head against a brick wall

There is plenty of case law that the Rev has listed. Although I do not want to go there it has to be recognised navigation rights have always existed on the Gipping before the Stowmarket Navigation Act and case law also established the when the course of a river changes those rights are transferred too.

We nearly bankrupted the Inland Waterways Association fighting the case for the ancient right of navigation on the River Derwent and ultimately, despite fighting it all the way through the courts and, along with partner organisations spending well into six figures, we lost. And that case was unencumbered by any revocation order, the navigation had simply fallen into disuse

Caffyn would have us accept rights can never be lost by disuse. The courts have upheld this view and I also subscribe to it. Caffyn is going for his Masters Degree and as yet I don't even have a BoA degree so I do not argue law with him

Unlike public rights of way on land and the general right to navigate freely through tidal waters (which, by the way, can be and usually is superceded by Acts and orders related to ports ad harbours, do not make the mistake of thinking it applies within the confines of Ipswich docks, it almost certainly doesn't), there is no general legal right of navigation over non--tidal waters

Ipswich Dock is tidal and I believe the rights you refer to do actually exist.

The case law established in the Derwent case means that you also cannot apply general rights of way legislation to non-tidal waters

And in any case the making of an Act for the improvement of a river into a navigation, such as the Act made in regard of the Gipping in the 1700s, (normally - it does depend upon the wording of the Act) supercedes any pre-existing ancient rights. The later revocation of that Act does not reinstate older rights. Again, this has been established in case law

No, just the opposite actually and of course we have to refer to the Ipswich Royal Charter which gives ownership of the River Orwell to IBC. Now check back on the Stowmarket Navigation and the name before then was the River Orwell as far as Stowmarket and from there it was the Gipping. There are many exciting eventualities for Caffyn to look at but it is beyond my experience.

There is an outside chance the Gipping Act(s) did not formally extinguish existing rights, if indeed there were any (I'd be surprised but I haven't perused said Acts and don't intend to). If that were the case and if you could find earlier charter documents etc that formalised a general public right of navigation you'd maybe have a chance. However, such grants and charters were not usually worded in such a way as to grant a general public right. The rights were, in my experience, always granted to a specific body corporate or individual in which case they are of no help

Yes, I am much too busy myself to go there. It is best left to Caffyn but I read it as saying the bed of that river also belongs to IBC but they are afraid of that responsibility.

Simply proving that the river was used for navigation in ancient times is of no use. There is no legal framework comparable to the 1953 Public Rights of Way Act et al by which such "customary rights" (rights gained through use and custom) can now be formalised. IWA were, in the Derwent case, reduced to attempting to get the courts to apply the said1953 Act to inland waterways and the courts ruled against us. It was a long shot and a lot of people within and without IWA (myself included) felt it was a waste of money to attempt it but it was the last faint hope after all else had failed

I know nothing about the Derwent or even any other rivers but we must not ignore Case Law and that holds rights of navigation existed long before roads were built but I am not going there.

Trust me, you're on a hiding to nothing with this one! The British Canoe Union has been fighting the case for decades, as I mentioned above the Inland Waterways Association threw the kitchen sink at it twenty odd years ago and it's pretty much done and dusted

Restorations such as the work being carried out by the River Gipping Trust (a now independent offshoot of the Inland Waterways Association Ipswich branch) are now reliant on gaining agreements from the riparian owners of river navigations. In some areas (and I believe the Gipping is one of them but bear in mind I've never been personally involved with that project and I've been out of the game for getting on for fifteen years) these agreements are forthcoming, in others (the Severn and the Derwent are two examples) the riparian owners are actively opposed and the law, as it stands, is heavily weighted in their favour

I believe I "could" prove IBC to be the ripairian owner in respect to the Gipping but I would rather not interfere there.

Ultimately, IWA etc, would love to see a legal framework to protect and re-instate such navigations to give them the same status and protection as PRoW on land. This would require an Act of Parliament and every effort has been made to get the necessary clauses instated in an appropriate Act over the years without success

Yes it is not straight forward. I have been fighting for RoW in Ipswich since I became disabled in 2000 and it just becomes more complex. The more I learn the more I realise I didn't know :-(

 

[toyboy]

Have to say that this has been a good thread.

Personally, I feel that the Ipswich Dock regeneration following the loss of old industries
and increased ship sizes is a great success. Lots of risks were taken by both councils and developers including the current developer who has purchased the "Wine Rack" tower block.

I take no sides in the various points of view submitted but would like to thank all contributors and Toyboy for his efforts to try and maintain access for us where possible.

It does seem a shame that I can no longer walk or take my bicycle over the Wet Dock lock from north of the river at Holywells to the south. Not many years ago you could actually drive a car across too. Am a bit mystified why this happened because every one used to use it. Also helped to
relieve the town from traffic.

Perhaps Toyboy could let us know.

This is one of my greatest regrets. I did try to get that route opened and I believe I will eventually but I was overwhelmed by SCC trying to hijack my claims by over laying many of their own claim upon mine and then failing to make their case adequately. They allowed the 1918 Ipswich Dock Act to be accepted as having been complied with whereas in fact it never was. They also removed my claim going from Foundry Lane to Bridge Street and I never realised until it was too late but as no judgement was made on that bit of my claim I will push for it to still be registered as a claim. I have informed IBC planning of this and they are preparing plans for the area which of course I will oppose. As far as I am concerned the route over the lock has never been lawfully closed. However ABP have recently erected another barrier on the Island which is closed between 5pm and 7am and I expect the local lads will soon destroy that regardless of all the CCTV.

 

[toyboy]

If my house was in danger of flooding I would call for barriers across the mouth of the Crouch, Blackwater & just upstream of Felixstowe Docks.
Not across some tiny stream
That would be the most economical way of protecting miles of coastline

Yes but the EA only pay lip service to stopping floods. They and our local MP are much more interested in spending vast amounts of money enriching the £5billion "offshore" ABP. I wonder why?

 

[Bru]

Just one final point - I say again that Caffyn makes no mention whatsoever of the Derwent case law and the Derwent case law is absolutely fundamental to any future legal case about navigation rights on non-tidal waters. That case law is even more crucial given that Caffyn seems to be basing his case on existing highways law. That is precisely the point upon which the Derwent case was finally lost. Either he is unaware of this vital piece of the jigsaw or he is choosing to ignore anything that does not support the case he is building

And I'll further return to the point of asking just what is the point? Since it seems that the Gipping Trust are happy that they can reach agreements with the riparian landowners (and I seriously doubt that IBC own the river bed all the way to Stowmarket) why risk upsetting the apple cart?

 

[toyboy]

Just one final point - I say again that Caffyn makes no mention whatsoever of the Derwent case law and the Derwent case law is absolutely fundamental to any future legal case about navigation rights on non-tidal waters. That case law is even more crucial given that Caffyn seems to be basing his case on existing highways law. That is precisely the point upon which the Derwent case was finally lost. Either he is unaware of this vital piece of the jigsaw or he is choosing to ignore anything that does not support the case he is building

And I'll further return to the point of asking just what is the point? Since it seems that the Gipping Trust are happy that they can reach agreements with the riparian landowners (and I seriously doubt that IBC own the river bed all the way to Stowmarket) why risk upsetting the apple cart?

That is a seriously good point about the work being done by the Gipping Trust and indeed I have no wish to become involved but my fear is an attempt is being made to stop people navigating the Gipping by building a barrier across the man made entrance at the New Cut in Ipswich.

 

[Bru]

That is a seriously good point about the work being done by the Gipping Trust and indeed I have no wish to become involved but my fear is an attempt is being made to stop people navigating the Gipping by building a barrier across the man made entrance at the New Cut in Ipswich.

Yes but that isn't a fixed barrier is it? It's a flood barrier that will only be raised when needed.

 

[toyboy]

Yes but that isn't a fixed barrier is it? It's a flood barrier that will only be raised when needed.

As you must know, when a landowner wants a RoW closed the first move he makes is to obstruct it so people don't use it. Then after a few years he claims it is no longer used and it would be better diverted etc etc.

 

[ianc1200]

As Bru has mentioned the Derwent, that was such a pity the navigation was lost, we (The Tuesday Night Club, narrowboats going places narrowboats shouldn't go) went up the Derwent a couple of times once in flood conditions and later height of summer, getting to Stamford Bridge lock, a very beautiful river.

 

[Bru]

As you must know, when a landowner wants a RoW closed the first move he makes is to obstruct it so people don't use it. Then after a few years he claims it is no longer used and it would be better diverted etc etc.

But I ask again, is the proposed barrier a fixed obstruction or not?

And once again were talking about RoW which is irrelevant to what happens on the water

 

[Bru]

As Bru has mentioned the Derwent, that was such a pity the navigation was lost, we (The Tuesday Night Club, narrowboats going places narrowboats shouldn't go) went up the Derwent a couple of times once in flood conditions and later height of summer, getting to Stamford Bridge lock, a very beautiful river.

Gawd, ain't they locked you lot up yet?

(I hadn't made the connection before! )

 

[toyboy]

But I ask again, is the proposed barrier a fixed obstruction or not?

And once again were talking about RoW which is irrelevant to what happens on the water

The barrier is supposed to be flat on the river bed unless activated but the problem experienced somewhere else was having the barrier in the raised position when the flood was actually fluvial and the electricity needed to lower the barrier was not available because the electric sub station was flooded and so the actual flood was far worse than if the EA had never become involved. There is much case law now where the right to navigate on water is addressed and many Judges are now appearing to make the case that rights of way on the water is far superior to lad based rights of way as they are often much older. Without wishing to labour the issue I must point out that nobody owns the water in a river NORMALLY. The bed of a river can be owned as can fishing rights and the bank etc but rainwater belongs to nobody "normally" and especially in the case of the River Orwell (which I know) and the River Gipping which I am not so familar with. With land based RoW the land being walked upon belongs to someone usually and that person can claim to be protecting his property. That is not the case when on rainwater even if the river bed and fishing rights belong to an owner.