No free pass for canoeists, warns lawyer

Image courtesy of Patrick Bell

Image courtesy of Patrick Bell

AFTER occasional tensions between anglers and other river users, the Angling Trust has welcomed a formal legal opinion which advises that there is no general public right to navigate non-tidal rivers in England and Wales.
Barrister David Hart QC was asked to advise Fish Legal, the legal arm of the Angling Trust, on the legality of river access by canoeists and other paddle sport enthusiasts on rivers. His response rejects the idea of a general Public Right of Navigation (PRN) on English and Welsh non-tidal rivers for canoeists, in the absence of long use of vessels on the relevant stretch of river. That use must have been regular and habitual, for as far back as anyone can remember, and sufficient to establish the river as being of substantial practical value as a channel of communication or transport.
The Trust says that Mr Hart’s advice has already helped secure victory in the most recent legal clash between anglers and other river users, when a paddle-boarder backed down from contesting an injunction that would have restrained him from exceeding the permissive access arrangements pertaining to part of the River Dee in north Wales.
Mr Hart’s advice was most recently sought after canoe campaigners had briefed their own lawyer to provide clarity on the strength of their position. Her advice confirmed that Hart had correctly reflected the law as it stands but she also suggested that interpretative differences existed from which a court might reach a different conclusion.
Having analysed her arguments, however, Hart advised Fish Legal that he still maintained that the courts would be highly unlikely to accept the notion of a public right of navigation and that in the absence of long-term use for navigation, or consent from riparian owners, canoeists and the like will be trespassing.   
““We encourage our member clubs and fishery owners to provide more access to canoes and other water craft,” said the Angling Trust & Fish Legal chief executive Mark Lloyd, “but the canoeing governing bodies in England and Wales have made this very difficult by irresponsibly suggesting that paddlers may go where they like without permission and refusing to accept reasonable conditions within access arrangements.”
Guidance on the British Canoeing website at the time this article was written states, “If you are paddling where there is no identified public right of navigation without permission, then you may be trespassing…If you are accused of trespass, refuse to admit trespass under any circumstances. There is no case if you can prove that you are within your rights or have permission.”