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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Environment Agency (Thames Region) v John Bushnell Ltd [2001] EWCA Civ 517 (28 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/517.html Cite as: [2001] EWCA Civ 517

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(His Honour Judge Catlin)

		Royal Courts of Justice Strand London WC2 Wednesday 28 March 2001

March 2001

1. LORD JUSTICE MANCE: This is an appeal from His Honour Judge Catlin, sitting in the Reading County Court on 14 February 2000, when he gave judgment against the defendants/appellants for £3,842.36 plus interest and costs. He heard the case and gave judgment on that day. Although it concerns in appearance a simple debt claim, it raises some interesting points under the Thames Conservancy Act 1932 and under express or implied licence arrangements (known as "accommodation licences") made between the parties.
2. The claimants have since 1995 been the statutory successors in title of the Conservators of the River Thames referred to in the 1932 Act. The intermediate successors have been, first, the Thames Water Authority ("TWA") and then the National Rivers Authority ("NRA").
3. Section 60 of the Act provides:

"1. The Conservators may from time to time for a fair and reasonable consideration (such consideration to be either a sum in gross or an annual rent or partly a sum in gross and partly an annual rent and so far as a sum in gross to be paid at the time of granting the licence) and upon such terms and subject to such restrictions as they think proper grant to any owner or occupier of any land adjoining the Thames a licence for all or any of the following purposes (namely):-

(a)For the making of any dock basin pier jetty wharf bank quay or embankment wall or other work immediately in front of his land and into the body of the Thames;

(b)For the formation of such recesses docks or beds for boats and barges and dwarf wharfing and for the driving of such piles and for such stone pitching and other works as the Conservators deem necessary or proper for the convenient use protection and improvement of his land and the placing and mooring of vessels in such line and at such levels as appear to the Conservators necessary or proper for the trade and convenient enjoyment of his land without injurious interference with the navigation or its future improvement;

(c)For the erection at the places where the piers or landing-places by this Act authorised to be erected are to be erected of piers or landing-places in such positions and of such form and construction as the Conservators shall consider most advantageous to the public and as causing the least obstruction to the navigation and for the driving of piles and the formation of dwarf wharfing ways and other conveniences to his land."

4. The defendants are a company still owned by the Bushnell family, which has operated a water-based business on the Thames since 1860, first at Richmond and since 1917 at Wargrave. Their premises at Wargrave are on the bank of a creek and they own the creek-bed and the part of the island, opposite their premises, which forms the creek. The waters of the creek fall within the claimants' jurisdiction and, so far as navigable, also constitute a public right of navigation within section 79(1) of the 1932 Act, which provides:

"Subject to the provisions of this Act it shall be lawful for all persons whether for pleasure or profit to go be [sic] pass and repass in vessels over or upon any and every part of the Thames through which Thames water flows including all such backwaters creeks side-channels bays and inlets connected therewith as form part of the said river".

5. With the claimants' or their predecessors' consent, the defendants have constructed berths or stages (a) on the mainstream (that is the outside of the island) and (b) in the creek on the inside of the island and on the bank on which their main premises stand. They have further constructed a footbridge connecting their main premises with the island. A railway bridge also crosses the creek and the island, marking the inward end of the defendants' mainland and island premises. Beyond the railway bridge, the creek becomes very shallow up to the point where it rejoins the main river.
6. To maintain the depth and viability of the facilities constructed in their part of the creek, the defendants have regularly to dredge their part of the creek. On the last occasion that this took place (in 1997, or possibly early 1998), the defendants engaged the claimants to undertake the dredging at a cost of £18,612 including VAT. The cause of the present case is to be found in this regular burden, which the defendants submit should be reflected in the charges they pay to the claimants for the facilities erected in the creek.
7. The original licence arrangements are lost in the Thames mists. The one licence agreement now to hand is dated 17 August 1959. It provided as follows:

"The Conservators hereby agree to grant permission to the Licensee(s) to place and retain the works described in the First Schedule hereto . . . in front of land owned or occupied by the Licensee(s) and in the River Thames shown on the plans referred to in the First Schedule . . . Upon the terms and conditions hereinafter contained.

1.That the Licensee(s) hereby agree with the Conservators as follows:-

(i)To pay to the Conservators. . . the annual sum of eight pounds. . . yearly in advance on the 29th day of September in every year so long as this agreement remains in force the first payment of the said annual sum and amounting to eight pounds to be due and made on the signing hereof and to be in respect of the period ending the 29th day of September 1959 Provided always that the amount of the said annual sum may at any time and from time to time be re-assessed by the Conservators And from and after the expiration of one calendar month from the date of any or every such re-assessment the Licensee(s) shall and will pay to the Conservators the annual sum thereby determined in lieu of but at the like times and in the like manner as the annual sum theretofore payable hereunder."

8. This licence related to only four lay-byes (on the mainstream), two slipways (up the creek), one raft (movable) and the footbridge; this is despite the probability, confirmed by photographs from 1961, that there were already further berths or facilities on both sides of the creek before 1959. The £8 per year agreed in 1959 was a sum presumably considered appropriate by both sides at that date, although the licence agreement provided for any re-assessed annual sum to be determined not by agreement, but by the Conservators. However, the licence agreement was made in the context of, and contains a number of express references to, s 60 of the 1932 Act. It was clearly implicit that any re-assessed annual sum determined by the Conservators would be a "fair and reasonable consideration".
9. In late 1979, the defendants obtained permission to install a further seven stages on the mainstream. At about the same time, TWA notified the defendants through surveyors (Weatherall Green & Smith - "WSG") that they assessed a fair and reasonable rent for the then total of 24 stages in the creek as £360 per year.
10. That assessment was immediately challenged by the defendants through solicitors on the ground that the creek was heavily silted, and that TWA should either dredge it or not charge for the stages. In a reply signed by Mr Richard Baldwin for Mr Chapman, WSG accepted that it would be open to the defendants to argue that, because of the silting, the 24 stages were of lesser value, and asked for information if this was the case. There the matter rested, so far at least as the correspondence now available shows; but this is not surprising from the defendants' viewpoint, since TWA and NRA continued to charge them only £8 per year in total until, it appears, September 1994.
11. In 1986-87 TWA instructed WSG to undertake a full re-assessment of all accommodation licences on the River Thames. The evidence is that there were then about 275 in all (and that this figure had reduced by the time of trial to about 250). The surveyor or assessor was Mr Baldwin, and his re-assessment of the defendants' facilities led him to a figure of £1,330 per year plus VAT. By an oversight no attempt was made to communicate this figure to, or to claim it from, the defendants. Mr Baldwin does however appear to have been told by the TWA that a further seven stages had been built in the creek, and asked to make a further re-assessment in this light. It is not clear that he ever did.
12. In 1988 there was further correspondence about silting between the defendants and TWA, and on 12 September 1988 TWA wrote to Mr Paul Bushnell saying this (page 172):

"So far as the depth of water in the backwater off your yard frontage is concerned I am sorry to inform you that it will almost certainly continue to reduce due to natural accretion unless regularly dredged. As requested I have brought your need to regularly dredge this channel to the attention of the Assessor so that he may, if he considers it appropriate, take this into consideration when assessing the fee for your accommodations."

13. Again, since the defendants were only being charged £8 per year, it is not surprising from their viewpoint that the matter was not followed up.
14. On 19 August 1994 the claimants wrote again, referring to the re-assessment carried out in 1986-87 and informing the defendants that they now re-assessed the rent due "under the terms of your licences [sic] dated 17 August 1959" as £1,827.63, made up of £1,330 plus an adjustment according to the Retail Price Index. The defendants immediately responded on 22 August 1994 by asking for a copy of the assessor's report and of a recent river bed survey indicating the depth of water at the relevant berths. Despite a reminder by the defendants in November 1994, NRA only replied to the defendants' letter of 22 August 1994 on 3 August 1995.
15. The issue which came ultimately before His Honour Judge Catlin thus arose. The defendants' stance was that they were by the 1990s having to incur very substantial dredging costs every five years or so (as instanced by the costs of £18,612, including VAT, paid in 1997-98). NRA in reply made their stance quite clear, in for example their initial letters dated 3 and 14 August 1994. Licence charges were required by law to be fair and reasonable; an outside assessor had been engaged to ensure that they could "be proved to be objectively so, if necessary to the satisfaction of the Courts"; the assessor "does not take into account the depth of water at the site because maintenance dredging of commercial moorings is a matter for the moorings operator to undertake (subject, of course, to obtaining NRA consent to carry out dredging operations)"; the "whole aim of the exercise has been to keep the charges well within the bounds of what is fair and reasonable towards the Licensee, while keeping the Assessor's own costs to a minimum"; and, for good measure, "the annual charge of £1,827.23 being demanded for the year ended 28 September 1995 still amounts to only a very small fraction of the total annual value of your private moorings in the public river space". On 31 October 1995 the defendants paid the sum of £700, their estimate of an appropriate charge based on their mainstream stages.
16. Further correspondence with NRA and then the claimants in the next years did not bring the opposing positions any closer together; and the claimants on 22 May 1998 issued a final invoice claiming "commercial accommodation charges" consisting of the balance of £1,827.23 for the year ended 28 September 1995 and sums increased in line with the RPI for each of the next three years. In consequence of further payments by the defendants intended to relate to the mainstream stages, the sum claimed as outstanding when proceedings were issued on 7 October 1998 was £6,494.97, and the sum in which judgment was eventually entered was £3,842.36.
17. The first matter which arose for consideration before the judge was the nature of the relationship between the parties, bearing in mind the limited scope of the written licence agreement dated 17 August 1959. Counsel for the defendants ultimately conceded that the position must be viewed on the basis that there was an unwritten licence relating to all the defendants' moorings and stages extending into the Thames. Whether this licence arose by separate implication or by implied extension of the original licence is unnecessary to consider. However, no very close attention appears to have been given below to the precise terms of such implied licence, so far as concerned the fixing of the "fair and reasonable consideration" that the Conservators and their successors were bound to exact under s 60 of the 1932 Act.
18. Did the implied licences simply require payment of a fair and reasonable consideration from time to time, to be fixed by the court if need be? Or did they mirror the express licence of 17 August 1959 by requiring the defendants to pay such sum as the Conservators and their successors might from time to time re-assess, provided always that that sum was fair and reasonable as required by s 60?
19. The difference is small, but clear. In my judgment, the latter analysis applies, and that is not really in question before us today. Section 60 contemplates a consideration in a definite amount. It is open to question whether it would permit a licence at a "fair and reasonable" rate which could only be fixed, in case of doubt, in court; but, whether it does or not, the latter analysis enables the Conservators and their successors to fix a fair and reasonable sum from time to time and clearly gives greater definition to the parties' agreement, as well as reflecting the express licence. The natural assumption would be that any implied licence would mirror or parallel the terms of the express licence.
20. So it was, under both the express licence and under any implied or extended licence or licences, the entitlement and, indeed, the obligation of the claimants in the first instance to assess a fair and reasonable consideration. This necessarily gave them some flexibility. In the assessment of a fair and reasonable consideration there is some room for different approaches and different results. The context of this flexibility is an express or implied contractual licence, albeit one granted under a statutory power. The flexibility can therefore be regarded as arising under ordinary contractual principles, applicable whenever one party is given a power exercisable within reasonable bounds - for example, to fix a reasonable price, see for example Benjamin's Sale of Goods, 4th edition, paragraph 2-044 and the cases cited there in footnote 14. A possible alternative analysis, bearing in mind ther terms and limitations of the claimant's statutory power to grant licences, may be to relate the flexibility to public law authority such as Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. But on either analysis any assessment could still only bind the defendants if the result fell within the outer bounds of what might in context be regarded as fair and reasonable.
21. In the present case, the defendants submit, the assessment did not fall within those bounds because it ignored a basic factor, namely the regular incidence of heavy dredging costs, which were necessary to ensure that the facilities inside the creek were viable and usable at all. The judge dealt with this issue by saying that

". . . there is nothing in the correspondence or in the evidence which suggests to me that this valuer would not have taken into account - even if it means by leaving it out of account - the fact that these defendants had incurred dredging charges."

22. A little later, after referring to the 1979 correspondence, he said,

"Apparently as far as anyone knows there was no response to that letter, but there is everything to suggest and nothing to support the proposition, that this valuer did not take into account all the matters which he should properly have taken into account [sic]".

23. He went on to say that the fees being charged had been fixed reasonably and fairly,

". . . because the claimants have asked for advice from independent expert valuers [and] they have acted on that advice".

24. Finally, he concluded by saying:

"What I have to consider is whether the decision that the claimants have made on fees, based on the advice that they received from their expert with the update, based also on the views of the association to which many of the people operating these sort of operations on the river belong, which these defendants once belonged to and do not now, which was supportive of the type of method of assessment which is being employed, and of course taking into account, but clearly rejecting it, the arguments put forward on behalf of the defendant that dredging fees should be taken into account [sic]. They have taken all those matters into account and they have decided to charge, as they have, and in my judgment the result of their decision is to fix a fair and reasonable fee for the works in question."

25. Two preliminary observations may be made about these four passages. First, if and so far as the judge was suggesting in the first passage quoted that the assessor, Mr Baldwin, may in 1986-87 have made some positive allowance for the dredging burden, that suggestion would be contrary to all the evidence and probabilities. NRA said clearly in correspondence that no account had been taken of dredging costs (see, for example, Mr Nicol's letter dated 14 August and Mr Christie's letter dated 19 October 1995), and Mr Christie's witness statement and evidence in the present proceedings were also that no such allowance was made. The alternative contemplated by the judge, and said in the fourth passage quoted "clearly" to represent the position, was that dredging costs were not taken into account in the original valuation of 1986-87 and were deliberately rejected as a material factor from 1995 onwards by NRA and the claimants. This represents the actual position.
26. Secondly, the judge put some weight on the fact that the claimants had engaged reputable professional surveyors to assess a fair and reasonable consideration. The issue is not, however, whether the claimants acted carefully or reasonably. It is whether the assessment which was made was within the objectively assessed bounds of the fair and reasonable. The responsibility for achieving this rested with the claimants and was not delegable. It is therefore appropriate (a) to examine the method of assessment used, (b) to consider whether it was fair and reasonable and (c) then to consider whether its result in the particular case was fair and reasonable. The critical issue is of course raised by (c). It is, in theory at least, possible that an unfair and unreasonable method of assessment may still lead in a particular case to a fair and reasonable result. For example, picking figures out of a hat might - conceivably - lead to the right result. But the key to (c) will more usually be found in (a) and (b). If (a) and (b) are satisfied, then (c) should be.
27. The method of assessment was set out by Mr Baldwin in a very full letter to Mr Christie at NRA dated 25 March 1988 (page 162-165):

"Further to your letter of 4 March and our subsequent meeting, I am, as promised, writing to explain the basis on which I have assessed the fees to be paid for licences of various accommodations in the River Thames. I would be very happy for you to pass copies of this letter to representatives of the Thames Ship and Boat Builders Association, the Amateur Rowing Association or to any other licensee.

It is perhaps worth restating that the purpose of my appointment is to determine the proper licence fees to be charged to the occupiers under the provisions of the Thames Conservancy Act 1932. That provides that in respect of licences for accommodations below Teddington Lock I shall assess 'the true and fair worth or value thereof to the person obtaining such licence'. In all other cases I am to assess a 'fair and reasonable consideration'. In the absence of any guidance as to why a different form of words should have been used I have interpreted those clauses as meaning the same thing and have attempted to determine in all cases what is fair.

I take the view, as did my immediate predecessor, that my task is to act independently and to be seen to be fair as between your Authority and the various licencees and indeed, as between one licencee and another, by implementing the provisions set out in the Act and not to represent the interests of either side.

I am sure that your licensees will sympathise that this is no easy task. Valuers normally rely upon evidence of similar transactions and, of course, in most cases one has market evidence on which to base an opinion. That is not the case here and I have, therefore, taken the view that it is fair and reasonable to continue the basic approach which has been adopted by various partners of my firm who have been undertaking this task since at least the end of the last war, albeit that as you are now undertaking a thorough review of all licences it is possible to update the values and ensure consistency.

As you know all of the survey work to identify the extent of the accommodations was carried out by your River Inspectors and their staff and I was provided with a plan showing the works. You tell me that this plan will be attached to the revised licence and therefore, if there are any material errors presumably this will be brought to your notice and the assessment can be changed. Either I or a member of my staff has had a sight of each of the accommodations and we have taken photographs showing the use of all of them. In order to carry out those inspections as quickly and economically as possible we did not call on each licencee but, where possible, looked at the works from the public towpath.

My basic calculation and the one which has been adopted for many years is to apply a rate per square foot to the area covered by the physical works and to add a rate per square foot for the length of mooring which is available. This seems to me to be a realistic method of charging to reflect the extent of the use which is or can be made of the River. I then apply adjustments to take account of individual circumstances. Such adjustments would include for the following:

a.A surcharge is appropriate where the bed of the River is owned either by your Authority or the Crown and not by the licensee.

b.Allowance is made for casual or occasional use or where the occupier is, for example, a school or a rowing club which is not exploiting the accommodations for commercial purposes.

c.Where a very large number of accommodations are licenced and this gives rise to a fee in excess of £1,000 per annum then I apply a discount to reflect quantum.

d.In view of the costs of collection I have fixed a minimum assessment of £50, except in a limited number of cases where the accommodation is not really a full commercial one, (a footpath over the river would be a good example) where I fix a minimum of £25.

In view of the difficulty arising from the lack of market evidence it seems to me that this is a pragmatic approach which does provide by and large for a higher fee for a more intensive use of the amenities provided by the river.

I have thought whether there would be other alternatives and my predecessor did discuss briefly with the Members of the Association whether it would be appropriate to charge by reference to the income which their members generate from the accommodations but this did not elicit a very favourable response. It would also be possible to argue assessments individually with both sides putting their case to me so that I could act as an arbitrator but that would make this a very expensive exercise which is not in anyone's interest.

. . .

Both I and my predecessor have stressed the importance of more regular reviews of the rents and I notice that a suggestion has been made that there should be annual indexing with five yearly reviews to reflect changes in real values. Having undertaken this work to try to bring things on to a sensible footing it is important to think about the future and adopt some such basis.

I trust that this will convince the licensees that I have approached this task fairly and conscientiously and that the fees determined are reasonable. Obviously if there are any errors of fact as evidenced by the plans attached to the licence then I would be only too happy to review the figures."

28. Mr Baldwin was therefore ready to "apply adjustments to take account of individual circumstances". He then went on to say "Such adjustments would include for the following", and gave four examples: (1) a surcharge where the bed of the river was owned by the conservators or their successors or the Crown, rather than the licensee; (2) an allowance for casual or occasional use or where use was for non-commercial purposes; (3) a discount for very large numbers of accommodations; and (4) a minimum charge of £50. The list he mentioned was however inclusive, not exclusive. TWA in their later letter dated 12 September 1988 also acknowledged, in effect, that Mr Baldwin might regard dredging costs as a further individual circumstance meriting an adjustment.
29. In view of the claimants', and to some extent the judge's, reliance on the involvement of certain Thames River associations in the whole exercise of assessment, it is also worth reading the understanding of The Thames Ship and Boat Builders' Association (to which at the time the defendants belonged) following a meeting in early 1988 (pages 158 and 59):

"Dear Member

Thames Water Authority Accommodation Charges

You will recall that your committee made strong representation to the Thames Water Authority over the Memberships concern at the increases in accommodation charges as a result of the Authorities recent assessments by their independent surveyors. Our letter registering our concern, dated 1st December 1987, is attached for your information.

We invited Dr Giles Phillips, the Rivers' Control Manager, to our Associations Christmas Meeting and, as a result of this, a meeting was arranged between Mr Les Jones, Divisional Manager Rivers Division, Dr Giles Phillips, Tom Christie, the Navigation Secretary and John Airey MBE, Chief Navigation Inspector, all of Thames Water Authority and Jeremy Monk, John Crevald, Tony Hobbs, Peter Bowles, our secretary, andy myself representing our Association, at Nugent House on Friday, 29th January 1988.

A very lengthy and cordial meeting was held where the Authority explained their need for price increases and they pointed out that, in the majority of cases, there had been no increases for a number of years. Whilst agreeing that increases were due and in order, we strongly pointed out that, where the Authority had failed for a number of years, to keep their house in order, it was unfair and totally unreasonable to expect the 'Trade' to resolve their 'shortfall' in one foul swoop. We also tried to ascertain what 'yard stick' had been applied by their assessors in order to arrive at the invoices now being sent out. This they were not in a position to be able to do but promised that they would enquire of the assessors and inform us accordingly. They also acknowledged the fact that, in some cases, there might be a need for further discussions, as there are so many irregularities and non-conformities throughout the River that may not have been taken into account.

The main concession that we achieved at the meeting was that, where rent demands for accommodation are £400.00 and above, and where the increase is in excess of 100% of the original agreement, the new rent would be phased in over a three year period. They also agreed that, in future, the Authority would make at least bi-annual assessments with regard to future increases if dictated by inflation, in order that a similar situation would not arise int he future.

We would therefore ask the following of all Members:-

1.That new agreements received in excess of 100% of the original not be agreed to until we have confirmation of the three year phasing from Thames Water.

2.Study carefully the layout of your respective frontages on what the new assessment is based to insure they are correct. Bear in mind that in many cases there will be additions and changes to the original agreement that will have been taken into account.

3.Check that 'Service Piers' and the like, where permanent income eg mooring fees are not derived have been taken into account and reductions made accordingly.

4.In some cases accommodations are not available, or useable, for the full twelve months of the year. Check that these facts have been taken into account by the assessors.

5.Remember, if you are in dispute, you can always seek to ratify the new assessment with Thames Water direct. However, if the services of the Assessor are required again in accordance with the previous agreement entered into, you will be liable for the Assessors fees.

6.If you have any doubts or queries that you may wish to raise, your committee will endeavour to advise you as to what course of action should be taken. However the final negotiations will lie between you and the individual 'Trader' and the Thames Water Authority.

In conclusion, we feel that we have arrived at a reasonable compromise to a situation that was a great threat to many of us. We also feel that, through our negotiations, we have established a relationship and rappour [sic] with the Authority and an open door for future discussions, as and when the occasion may arise."

30. It seems apparent that dredging costs were not specifically identified as a problem at this time. The claimants have argued - at least below, since before us Mr Smithers for the claimant did not really pursue this argument – that this shows that there was no call for any specific allowance. In my view that does not follow. It is equally, and on the evidence far more, likely that the reason why river associations did not specifically highlight this point is that dredging costs are, even if not a unique burden, then a burden falling on only a relatively small number of riparian licensees. The defendants sought before us to introduce fresh evidence to show that the burden of dredging costs falling on them was unique. But, quite apart from the question whether such evidence might not have been adduced at trial, it cannot matter in my judgment whether dredging costs were unique or simply a burden on a number of riparian licensees. The evidence at trial certainly established that they were not common. In other words, there was no possibility that every single licensee had to incur them and, if they merit special consideration when fixing the level of charges, it cannot matter whether they fall on only one or on only some of a number of riparian licensees. Ultimately that was, I think, accepted by both Mr Herbert for the defendants and by Mr Smithers for the claimants.
31. Despite TWA's later statement to the defendants in the letter dated 12 September 1988 that they would mention the defendants' exposure to dredging costs to Mr Baldwin so that he could take them into account if he considered it appropriate when assessing the defendants' accommodation fee, Mr Baldwin was not ever, so far as appears, asked to re-assess the defendants' position. So, even if he was ever told of the dredging costs, he had no occasion to decide whether to take them into account or not after 1986-87. In the correspondence from September 1995 onwards, the claimants have however made clear their current position, that dredging fees were left out of account and that this was and is entirely justifiable. It is, they say, impossible to cater for every variable and they were and are entitled to adopt a simple, relatively economic method of arriving at fees across the board.
32. In order to consider whether this method can or will lead to a fair and reasonable result, it is necessary to examine more closely the nature and purpose of the licensing system introduced by s 60 and the purpose of charging a "fair and reasonable consideration".
33. The licensing system under s 60 is aimed at (a) enabling riparian owners and occupiers (and no doubt their invitees) to erect facilities to enable them to access and use the Thames for navigational purposes and (b) ensuring that such facilities are appropriate and not injurious to the navigation or future improvement of the Thames and, in the case of piers and landing places, are "most advantageous" in position, form and construction. A fair and reasonable consideration is required because of the benefit so conferred on a licensee and to contribute to the claimants' costs of fulfilling their statutory functions under s 49, particularly, no doubt, those relating to the maintenance and improvement of the Thames' navigation. The position was, it seems to me, neatly summarised by NRA in their memorandum headed "Licensing of private works installed in or over the River Thames" as follows (page 211):

"The purpose of the licensing legislation is twofold. First it enables the navigation authority to control, by licences issuable at its discretion, the installation and continuity of any works affecting the public river; its bed, banks and moorings. Secondly it enables the authority to raise much-needed revenue towards the cost of maintaining the river for public navigation.

The cost of maintaining the Thames Navigation to a proper standard far exceeds the income which we receive from boat registrations and from licenses for landing stages, rubbing posts, bathing ladders etc. The shortfall of income over expenditure has to be met by Government grant from public taxation. Clearly, we have a duty to minimise our calls on the public purse by seeing that we collect proper dues from all river users, including everyone who is licensed to keep a private structure in or over the public river space."

34. The memorandum then continued:

"Charging policy

It will be noted that bank protective works and other on-shore improvements are legally liable for annual charges as well as any moorings structures such as jetties and booms in or over the public water of the river itself.

However, for many years it has been the policy of the NRA and its predecessors not to raise annual charges on riparian owners for what are purely bank protection consents ie where the works will not involve any structural encroachment into the river and none of the campshedding piles driven into the water at the bankline is left standing tall enough to serve (or be capable of serving) also as a mooring post or rubbing pile to accommodate boat mooring.

The present long-established policy is therefore to confine charging to those moorings facilities, bathing ladders, landing steps and other amenity accommodations which actually stand in or over any part of the public water of the Thames Navigation. . . . "

35. The first point to note when construing s 60 is that the licensing system under it operates on an individual basis. Section 60 contemplates individual licences considered and granted for an appropriate consideration individually to individual riparian owners or occupiers. This is not as unrealistic as might at first sight appear. There are, as I have stated, now only about 250 or so licences on the whole Thames and, as a matter of fact, only two-thirds of these are now under the assessment system, rather than under the new "tariff" system (with which this appeal is in no way concerned and about which we have heard no argument).
36. The fair and reasonable treatment of any individual case is not however a matter that can be approached in isolation. Here, as in other fields of the law, fair and reasonable treatment of an individual case involves treating like cases alike, distinguishing differences between types of case that may be material, having regard to the particular (here statutory) context and purpose, and avoiding disparities that would create a legitimate grievance. For these and reasons of practicality, the Conservators and their successors were entitled, and it seems to me almost bound, to wish to develop general principles or guidelines to assist them in any individual case. This is also the general approach that Mr Baldwin set himself. He was, however, further prepared to consider adjustments to meet individual circumstances.
37. The aims of s 60 suggest that the consideration required for any licence should be related to (a) the extent of the invasion of the river and (b) the extent and viability or usefulness of the facilities from a purely navigational viewpoint, as well as (c) other river-related factors, such as, for example, the extent to which the facilities impacted adversely on navigation or on the maintenance or improvement of the river for navigation.
38. Mr Baldwin's general approach was entirely consistent with this, since he started by taking the extent of the physical works and the length of the mooring. He then made certain adjustments for individual circumstances, particularly ownership of the river-bed and casual or occasional use by non-commercial organisations, as well as very large operations (to which he gave a "bulk" discount). He also fixed a minimum fee. The admissibility and reasonableness of his approach in these respects seems to me unquestionable. However, his general approach did not expressly identify the depth of a mooring or the extent to which its existence depended on dredging costs as a relevant factor, although the correspondence, both in 1979 and in 1988, indicates that he would, if asked, have been prepared at least to consider applying an adjustment for a factor of this nature. As I have said, it appears that he was not asked to consider whether to do so by NRA when the point first emerged in 1988.
39. Should there then have been either a review of the general method or, at least, a review of the defendants' particular position, either when their exposure to dredging costs was identified in 1988 or, at latest, in 1994-95 when the claim for increased charges was first advanced? The judge thought not. He took the view that, if one went into dredging costs, there would be no stopping. That is essentially the view Mr Smithers has urged on us today. The claimants would, for example, have to look at the attraction and profitability of particular sites. Mr Christie gave evidence identifying the differing attractiveness of a public house with a landing stage on the mainstream and a public house with such a stage on a backwater.
40. I would not wish to prejudge any issue arising in any other case. But, in my view, there is a clear distinction between, on the one hand, matters of mere attractiveness or profitability and, on the other hand, factors bearing on the extent of the invasion of the river, the extent, viability or usefulness of the facilities from a purely navigational viewpoint, and other river-related factors. The licensing system was related to the latter factors. The fairness and reasonableness of any consideration falls, in my judgment, to be assessed in any individual case by taking into account factors of the latter nature.
41. Here, the dredging costs which the defendants regularly incur are required to be incurred in order to ensure that navigation into and out of the creek and to and from the stages in the creek is possible at all. Without regular dredging, the whole creek would either cease to be accessible at all or become navigable (as at its other end, past the railway bridge) only by very small craft indeed. That claimants have the power to dredge but choose not to, since this is not the main channel and, we are told, they lack the finances to do so. The defendants' exposure to dredging costs is, of course, incurred in their own commercial interest. But it is a feature of the river and of the facilities in the creek which make the defendants' facilities inherently less valuable. A feature of this kind, directly bearing on the navigability of the relevant part of the river, cannot in my judgment be ignored. Any sensible assessment of a "fair and reasonable" consideration for the licence can and should in my judgment take it positively into account. Indeed, Mr Smithers appeared at one point in argument before us minded to accept that if the effect of siltation had been to render the berths in the creek of very limited, if any, use, then a lower fee would have been in likelihood appropriate. But it seems to me that that conclusion could in effect confirm that if, at considerable cost to themselves, parties in the defendants' position avoid the berths in the creek becoming useless, that is a factor which can and should be taken into account in assessing a fair and reasonable consideration for the erection and continued use of such facilities.
42. For these reasons, in my judgment, the method of assessment adopted by the claimants erred, and errs in principle, in insisting on the assessment made in 1986-87 as the basis (taken together with an added RPI uplift) for the licence charges fixed for the years 1995-99. That assessment was made without considering or taking into account the actual and necessary incidence of dredging costs in the creek. The claimants from 1995 onwards have declined to take them into account. The result treats as alike facilities which have unrestricted access to the mainstream navigation, and facilities off the mainstream whose viability and access to the navigable river depends upon the regular incurring of heavy dredging costs. This is a disparity of direct relevance in the context of, and for the purposes of, s 60 and the licences, and it was and is one too great to be ignored without leaving a justifiable sense of grievance. Had the burden of dredging costs been recognised as a factor which needed positively to be taken into account, there would have had necessarily to have been differentiation between the charges for mainstream facilities and the charges for creek facilities which depended on regular dredging at the licensees' expense for their viability and usefulness. On the face of it, any charges assessed on the defendants in respect of the creek facilities would have had to have been lower than the charges for mainstream facilities.
43. I must, however, address an argument apparently advanced in some of the correspondence, namely that licence fees overall are so low that all of them must be regarded as fair and reasonable in amount, even if some of them (the defendants') are less favourable than others. There are a number of answers to such an argument. First, Mr Baldwin, NRA and the claimants have in correspondence repeatedly asserted that the general level of charging corresponds with the fair and reasonable. Secondly, it may well be the case, as stated in NRA's summary of the licensing position (which I have read) that the cost of maintaining the Thames navigation to a proper standard far exceeds the income received from boat registration and licences. We know nothing however about the basis of charging for boat registrations. More fundamentally, even today, I do not think that a "fair and reasonable consideration" for a particular licence, or even for the totality of all licences, bears any necessary mathematical relationship in the case of a public utility to the total costs of that utility. I note that NRA received a Government grant, and the claimants presumably continue to do so. Thirdly, even if the point were otherwise good, the disparity resulting from treating dissimilar cases alike would still remain. That itself would still involve evident unfairness in a commercial environment.
44. In my judgment the judge erred in concluding that the charges assessed on the defendants were assessed by a fair and reasonable method and in concluding that they were, as a result, fair and reasonable. Nether the method nor the result was, in my view, fair and reasonable. Positive allowance was required for the burden of dredging, which, on the evidence, was necessary in respect of creek facilities in order for them to remain viable. The defendants maintain that they should not have to pay for such facilities at all, in view of the level of dredging costs. That may well go too far. Indeed, on my view, on the face of it it does go too far. It is, presumably, worth their commercial while to dredge and to operate these facilities and the use of the creek facilities involves consequential use of the mainstream navigation by vessels moored at such facilities. The judge refused, however, to be drawn into invitations to consider what charges might be appropriate, if he was otherwise in the defendants' favour.
45. We have heard argument on what course we should take if we were to come to such conclusions as I now have. In my judgment, and in the light of what has been agreed between counsel before us today, we should grant a declaration to the effect that the basis of assessment adopted was not fair and reasonable because it involved a refusal to take into account the incidence of dredging costs, and we should grant a declaration that the assessments made in respect of the four years ending in September 1995, 1996, 1997 and 1998, with which this litigation is concerned, should be re-undertaken by the claimants in accordance with the principles stated in this judgment, taking positive account of the instance of dredging costs necessary to maintain the viability or usefulness of the creek facilities.
46. That leaves open for consideration the position in relation to such further charges as will prove due, in all likelihood, in respect of these years. Again, there is effective agreement between counsel that the right course would be to enable any further claim, if necessary, to be pursued in further proceedings and that in that context no point would be taken either that such a further claim was precluded by the outcome of these proceedings or by limitation. However, in order to foreclose any conceivable doubt on that score, I for my part would give liberty to apply, if necessary, to reopen the present proceedings. I would however express the hope (no doubt shared by both parties in court) that there will be no need for any further proceedings, in particular once the matter goes back to the claimants for them to reassess the appropriate charges. In the light of the guidance given in this judgment, I would hope, and indeed contemplate, that the reassessment would be one which was acceptable, or at least acceptable after further negotiation, and that there will be, as I have said, no further need to trouble any court with this matter.
47. LORD JUSTICE SIMON BROWN: I agree with my Lord's judgment on all points. I myself think the river authority, when determining "a fair and reasonable consideration" for a licence granted under section 60 of the 1932 Act, is exercising a public law power as a statutory body. I think, therefore, that the exercise is indeed subject to Wednesbury principles. But, of course, the result is the same even were one to adopt what my Lord suggests is an alternative private law analysis.
48. It was unlawful for the respondent here, in determining the consideration, not to take into account the fact that the backwater moorings were viable only as a result of the substantial and recurrent expense of dredging the creek. This expense was plainly a material consideration which could not properly be regarded merely as an individual commercial circumstance, and therefore ignored. Going as it does to the navigational usefulness of the backwater moorings, it is necessarily a material consideration in fixing the charge. It is quite distinct from factors such as the general profitability of a licensee's business or the expense of his land-based operation; or, indeed, the general cost of his moorings' upkeep.
49. The appropriate course now, therefore, is that indicated by my Lord. The matter will have to go back to the respondent authority for the consideration for the licence to be redetermined, this time regard being had to the lesser navigational value of the backwater moorings. I agree with the form of order proposed by my Lord.
ORDER: Appeal allowed with the appellant to have his costs here and below. Declaration granted to the effect that the basis of assessment adopted was not fair and reasonable because it involved a refusal to take into account the incidence of dredging costs. Declaration granted that the assessments made in respect of the years ending in September 1995, 1996, 1997 and 1998 should be re-undertaken by the claimants in accordance with the principles stated in this judgment, taking positive account of the instance of dredging costs necessary to maintain the usefulness of the creek facilities. Liberty to apply, if necessary, to reopen the present proceedings. (Order not part of approved judgment)