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The Crown Estates Commission and the RYA both obtained leave to intervene in the case, which could be an important one for yachtsmen generally.
Note by Bruce Grant, Newcastle Law School - 5 August 2001
The Ipswich case is reported at [2001] EWCA Civ 1273. The decision turns on the wording of the Ipswich Dock Act 1950, sections 12 and 28. Section 12 provides the Ipswich Dock Commission "may from time to time on such terms and conditions as they shall think fit grant licences to any person to place lay down maintain use and have existing and future moorings in the port ..." Section 28 provides "Save as respects the powers conferred on the Commission by sections 12 [...] of this Act nothing in this Act shall affect prejudicially any of the rights, interests, privileges, powers or authorities of [Ipswich Borough Council] under any charter in force at the passing of this Act."
Chadwick LJ cited a dictum of Bowen LJ in Mayor and Citizens of the City of Manchester v. Lyons [1882] 22 ChD 287, 310:
"When there is a franchise created by charter, and the Legislature afterwards operates upon it, it is obvious that the Legislature can do exactly what it pleases. It can either leave the old franchise standing, and place a new parliamentary right beside it, or it may leave the old franchise standing and incorporate certain statutory incidents into the old franchise, provided it makes its intention clear; or it may extinguish the old franchise, either expressly or by implication, and substitute in its place, not a franchise properly so called, but parliamentary rights and obligations as distinct from a franchise. We must therefore in each case look at the statute itself to see what the Legislature has chosen to do..."
By the Ipswich Dock Act 1950, the legislature had expressly declared the Borough's rights as owner of the bed and foreshores of the river were subject to rights granted by the Ipswich Dock Commission to moorings' licensees.
Subject to an appeal to the House of Lords, this decision is authoritative upon the meaning of the Ipswich Dock Act 1950. Will it have any wider application? Many harbours' statutory powers to regulate moorings are derived from the Harbours, Docks and Piers Clauses Act 1847, section 52 of which provides:
The harbour master may give directions for all or any of the following purposes; (that is to say,)I believe the owner of land covered by the sea within the area of a harbour who wished to assert the right to refuse consent (or give consent only on payment of a license fee) to moorings directions lawfully given by a harbour master, would be hard pressed to argue that was what Parliament intended. It must always depend upon the precise wording of the Act in question, but it is always possible the limitation on the landowner's rights is to be implied from the language Parliament has used.
For regulating the time at which and the manner in which any vessel shall enter into, go out of, or lie in or at the harbour, dock, or pier, and within the prescribed limits, if any, and its position, mooring or unmooring, placing and removing, whilst therein...
The intervention of the Crown Estates Commission and the Royal Yachting Association in the Ipswich Case was to present argument on an issue which had been raised at the trial viz: whether the right to lay and use deep water moorings was an incident of the public right of navigation in tidal waters. In the event the court found it unnecessary to consider this point. It is the subject of potentially conflicting authority in England and Scotland, and of the English Court of Appeal and High Court.