Mooring Law
Laying of Moorings in Tidal Water
The foreshore, namely the ground between high water and low water, and the seabed extending twelve miles out to sea is primarily owned by the Crown Estate Commissioners (CEC), unless a statute, Royal Charter or lease has vested interest in the seabed, the fundus, in another party. The CEC retain ownership of a little less than 50% of the foreshore and estuarial waters used for moorings.
The current law is generally interpreted to mean that the owner of the foreshore and seabed may charge for the laying of moorings on their property. Prior to 1968 there is little or no evidence of landowners charging commercial rents for mooring rights on their fundus. In Fowley Marine (Emsworth) Limited v. Gafford (1968) 2 QB 618 however it was held that there was no common law right, therefore no public right, to lay or maintain permanent moorings, since it would be little less than fantastic that, in the absence of statute or proved local custom, the law should allow anyone navigating a ship or vessel, including every amateur yachtsman, to place bulky objects on another person s land without permission and to retain them there, presumably forever, as being an ordinary incident of navigation . Although this judgment has been subject to some criticism in recent years (see below) the practice has developed in nearly all mooring areas, between 1968 and the present, of landowners demanding, and mooring holders paying, mooring rents.
Trespass
A person laying and maintaining a permanent mooring without permission may be trespassing and accordingly liable to the owner of the seabed, riverbed etc. on or in which the mooring is placed.
The Crown Estate Commissioners, the Duchy of Cornwall and the Duchy of Lancaster may bring an action for the recovery of land in the foreshore at any time before the expiration of sixty years from the date on which the right of legal action accrued, namely the date from when the mooring was laid without permission. Other owners of the foreshore and seabed must bring any legal action for the recovery of the property within twelve years of the legal action accruing.
Methods of dispossession
As already stated, the current understanding is that there is no public right to lay and maintain moorings on another person's land without their permission. Such a right may possibly be acquired by lost modern grant, a type of legal fiction which assumes that at some time in the past a document granting the right may have been in existence but has now been lost or forgotten.
A person may also seek to prove local custom on the grounds that everybody has done it over many years and nobody has complained.
The dispossession of the original owner's right may also be given by statute. An example of this is the Water Act 1973 which gave to Regional Water Authorities considerable rights previously owned by others. Recently, in the case of Ipswich Borough Council v Moore and Duke (2001) EWCA Civ 1084, the Court of Appeal recognised that although the Council owned the soil under the water, any right to charge rent for moorings which the Council may have had in that soil had been vested by in the Port of Ipswich Authority. The Court of Appeal held that where a mooring holder had received a mooring licence from a harbour authority acting under its statutory powers, the owner of the fundus was not entitled to charge any rent. It was held that the Ipswich Borough Council had wrongly been charging yachtsmen for laying and maintaining moorings and the Council was required to refund all mooring holders who could be traced.
It is likely that a similar judgment would be given in any other case where a harbour authority issues licences for moorings and landowners charge rent. The only exception is likely to be where the local harbour act specifically preserves the rights of the landowner. In practice the position of the CEC is specifically preserved in many local harbour acts.
Practical steps to legally lay moorings
Clubs seeking to lay moorings for its members should first identify whether the water in which they intend to lay the moorings falls within a statutory habour authority area. If the water is not regulated by a harbour authority, then the club should contact the Crown Estate Commissioners to identify whether the water is controlled by them or has been leased to a tenant. Further, the club should identify any local statutes, regulations or practices which may cover the intended mooring site.
Having clearly identified the status of the intended mooring area, the club will then know whether they must seek permission from an authority to lay and use the moorings. The owner of the seabed will usually demand a fee for permitting the moorings to be laid on his property. Advice may be gained from the RYA Legal and Government Team as to the level of rent which the club should expect to pay.
The club may need to seek authority to lay the moorings from more than one body, namely the harbour authority, if within a harbour area, otherwise the CEC or private owner, and the club may need to seek further consent from the Planning Authority and the Department for Transport.
Department for Transport
Section 34(1)(b) of the Coast Protection Act 1949 prohibits persons, without written consent of the Secretary of State for Transport, to deposit any object or any material on any such part of the seashore, this being the area of fundus from the high water to a distance of six miles from the low water mark. Material is defined as being minerals and turf, including coal, stone and any metallic substance. Persons in breach of this statute will be liable to pay a fine.
Therefore, the club should consider very carefully the type of mooring tackle which they intend to lay and what effect that tackle would have on navigation.
Within a harbour area, the requirements of s.34 Coast Protection Act 1949 may be supervised by the harbour authority.
Planning Authority
The laying of a mooring can sometimes amount to development and therefore fall within the jurisdiction of the Planning Authority. Therefore, a Planning Authority may prevent a person from laying a mooring by serving an Enforcement Notice. Local Government areas are fixed by the Local Government Act 1972 and include every accretion from the sea, whether natural or artificial, and down to the medium low water mark. The medium low water mark is calculated to be the point of low water at a date halfway between neap and spring tides. An area may also be included within the parish either by historical settlement or because the natural line of a watercourse has changed. It is possible to check parish boundaries on some charts.
The case of The Fagernes (1927) 96 L.J.P. 183 considered the question of what land lay within the British jurisdiction. The court took into account the historical method of determining whether navigable water fell within a parish boundary, namely that the water will be within a county if a person standing on the shore can see what is done on the opposite shore.
That arm or branch of the sea which lies within the fauces terrae, where a man may reasonably discerne between shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner.
Where different parishes are on the opposite shores, then, unless by other historical settlement, the boundary line extends to the middle of the water. However, the onus of proof that water falls within the planning authority will rest on the person asserting the fact. The recipient of a Local Council notice, such as an Enforcement Notice, may call upon the Local Council to prove that the fundus does come within their jurisdiction.
Development is defined in the Town and Country Planning Act 1990 section 55 as the carrying out of building, engineering, mining or other operations in, over or under land. The digging into the fundus of a concrete block or disc with an anchor bar to which the mooring line is fixed may be considered to be a development. The issue may not arise where the mooring rests on the fundus.
Harbour Authorities and marina owners
Harbour Authorities may derive their powers over harbour waters from Private Acts of Parliament or from the Harbours Act 1964 or both. Such Acts generally direct the Harbour Authority to regulate moorings and anchorage, and to charge for moorings. Therefore, the Harbour Authority will have the right to prohibit the laying of unauthorised moorings.
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