| Topic: | Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Re:Navigation impediment | |
| Posted by: | Nigel Moore | |
| Date/Time: | 21/01/11 12:38:00 |
| Indeed. On a point of accuracy, it was not that I lost the appeal but was refused permission to appeal. That was based on certain legal principles that I still have not quite got my head around. Basically, the latitude granted to the Secretary of State’s planning inspectors is such that, according to Lord Justice Sullivan, regardless of whether, as I was arguing, she had made a bad decision, unless in doing so she had made an error in law, then that decision was unimpeachable. So for as long as she had acknowledged all the salient points made by all parties, then whatever she decided would have to stand, and no argument as to the perversity of that decision could be entertained. I did put forward an additional legal point claiming the irrationality of granting consent for an “inevitable nuisance” in obstructing a public navigable river. It was an argument the judge found “attractive”, but which he dismissed on the basis that whether a thing constituted an actionable nuisance was a matter for determination, and that the inspector’s acceptance that the pontoons were safe constituted such a finding that they were not a nuisance. I don’t believe that he is correct in his analysis, but I did not have the relevant case law to hand in the appeal bundle in order to demonstrate that. I do not believe either, that the inspector’s findings on safety constituted a relevant finding as to whether the pontoons were a statutory nuisance – but so far as any member of the public such as myself is concerned, this hearing was the end of the road. For any further action a statutory body would have to be involved, and thus far they have either been an interested party in favour of the pontoons, or otherwise disinterested. The only time a member of the public would be enabled now, to bring an action, would be in the event of an accident occurring by reason of collision with the structure. In that event an action would lie on the grounds of the criminal act of installing the structure absent Parliamentary approval [which has been the expressed intention], and the question of whether the structure amounted to an unauthorised obstruction and/or a nuisance would probably lie with a jury. What has been obscured by reason of the initial argument that was formulated by the Environmental Law Foundation [which concentrated on the planning policy issues to do with maintaining freight potential], is the fact that the safety issues affect any vessels using the navigation - which are primarily private pleasure boaters. They are the ones that will have to exercise even greater care entering the canal from the Thames from now on, with so much less manoeuvring room than hitherto. It is perhaps timely to remind people that the BCC did not disapprove moorings per se, nor even moorings along this stretch of the Brent – but was rather disapproving of the moorings extending so close to the confluence with the Thames, for reasons obvious to boaters experienced in making this passage. But once again, despite legitimate concerns for public safety, a property developer has successfully appropriated public domain for private profit; this final decision of the appeal court judge cannot gainsay that, nor does our failure to have the Council’s decision upheld mean that the attempt was not worthwhile. |