Update to club, fishery and trade members of Angling Trust and/or Fish Legal regarding the legal position about canoe access
Last year, Fish Legal, working closely with the Angling Trust, challenged the Canoe Governing Bodies (British Canoe Union/British Canoeing, Canoe England and Canoe Wales) to get them to change the information that they were publishing suggesting that the law regarding rights of access to rivers is unclear in England and Wales. This included reference to the academic works of Rev Dr Douglas Caffyn. We felt that this information was contributing to a widespread increase in unlawful canoeing.
We have spent many months of work and several thousands of pounds on this legal case and we are making slow but significant progress. This included commissioning an eminent QC to advise on the legal position and review the works of Rev Dr Caffyn. The QC’s Advice is very clear. The summary of the Advice is set out below and we aim to publish the full document (which runs to 19 pages) in the coming weeks after further discussion with the Canoeing Governing Bodies.
Thank you very much for your support.
1. There is no general Public Right of Navigation (PRN) on English and Welsh non-tidal rivers for canoeists.
2. A PRN can only be established by long use of vessels on the relevant stretch of river, fulfilling all of the criteria below.
3. That use must have been regular and habitual, and must have made the river of substantial practical value as a channel of communication or transport.
4. The time for which that use must be established is “time immemorial.”
5. The law is entirely clear on the above issues.
6. The law is, however, not absolutely clear on how long is required to establish “time immemorial”, but it is likely that between 60 to 80 years of use needs to be established by those who assert a PRN.
7. Additionally, the use must also not have been under protest from the riparian owners, or by permission from them. On the contrary, use cannot be established unless it is shown that the owners have acquiesced with the passage of canoeists or other vessels throughout the period of use.
8. A PRN, if established, does not entitle paddlers to walk on the soil of the river bed or indeed go onto the river banks, again unless long usage of either has been established as against the owners.
9. In the absence of a PRN established by use, and assuming there is no agreed access, express dedication, or a statutory PRN, canoeists will be trespassing when they paddle in non-tidal waters.