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Thread: Ea advice on the Wye

  1. #1
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    Default Ea advice on the Wye

    Read the whole document. Makes interesting reading. Especially the bit half way down


    https://www.gov.uk/information-to-he...-the-river-wye

  2. #2
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    I assume you're referring to this bit of total misinformation?


    Access upstream of Hay Bridge
    • there’s no established legal right of navigation upstream of Hay Bridge
    • during the summer water is often very shallow
    • you should always get permission from the owner of the river bed (usually the owner of the riverbank) before you access the river
    • permission to launch on a particular section doesn’t entitle boaters to pass over the bed of the river belonging to other owners downstream or upstream
    • there’s an arrangement to share access and river use between anglers and paddlers; please refer to the Wye & Usk Foundation for further details
    • the upper Wye isn’t recommended for beginners, or boaters who don’t have considerable experience of white water
    Covering as many malmiles as possible before being distracted by the pub!

    Paddle Points - where to paddle

  3. #3
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    indeedy..... Another questioning letter to te EA....

  4. #4
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    Under the heading 'Access down stream of Hay Bridge' it states ........
    The public right of navigation doesn't give a right of access to the river bank downstream of Hay Bridge.


    A couple of years back I posted a question on another Wye access thread asking what the access situation was regarding stopping on the river bank. Dugout canoe replied with this correspondence from Dane Bloomfield of the EA.

    An earlier email from Dane Broomfield of the Environment Agency, gave this answer:

    I'll try and deal with your queries in the order they arise in your email: (Dane Broomfield)

    I fail to see how the landowners can claim rights to obstruct the use of the banks. Own it or not, it is part of the Act. (My comment)

    The banks are private property. However, there is a right of use over those parts of the bank which are part of the principal rivers as defined in the Order. The Order defines the principal rivers as:


    • "the principal rivers" means -





    • (a) that part of the river Wye from the downstream face of Bigsweir Bridge (reference point SO 538051) to Hay Town Bridge (reference point SO 228426); and

      (b) that part of the river Lugg from its confluence with the river Wye to Presteigne Town Bridge (reference point SO 316646),



    and includes their beds and banks;
    The Order defines the banks as:


    • "bank" means so much of any bank, wall, embankment, fence, wharf, quay or other feature (whether natural or artificial) as confines the waters of the rivers up to the level and the point of their overspill into the flood plain of the rivers;


    Any reference to use in the river is also defined:
    (2) References in this Order to the use of the principal rivers shall be construed as meaning such use as is, according to the principles of common law, reasonably incidental to their navigation.

    Further guidance on how they may be used can be inferred from the offences created under Article 8 which states:
    8. - (1) A master who navigates or uses the principal rivers -

    (a) without due care and attention;

    (b) in a manner liable to injure or endanger persons, other vessels, the bed or banks of the principal rivers or any structure or installation in or beside the principal rivers; or

    (c) in a manner which does not show reasonable consideration for persons and property in, upon or about the principal rivers and their banks,

    shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.




    Whilst the Order does not prescribe the uses which could be regarded as compliant with or conducive to the right to navigate, it does provide a framework within which to assess whether this is likely to be the case. The answers to the following questions would be key pointers in making that assessment:

    1. Does the part of the bank being used fall within the definition of a bank over which the public has a right of navigation/use?
    2. Is the use reasonably incidental to navigation? Reference to the Common Law principle of reasonably incidental.
    3. Has the use been undertaken with due care and attention?
    4. Has the use been undertaken in a manner not liable to injure or endanger persons, other vessels, the bed or banks of the river or any structure or installation in or beside the principal rivers?
    5. Has the use been undertaken in a manner that shows reasonable consideration for persons and property in or about the principal rivers?

    If the answer to these questions is "Yes", it is likely that the use would be regarded as lawful and fall within the definition of a public right of navigation under the Order. As such, it is unlikely that a prosecution for trespass could be sustained, and any obstruction or impediment to that navigation may be subject to removal by the Agency. On the other hand, anyone navigating other than in compliance with these principles, may be vulnerable to an action for trespass, and it would be legitimate for that use to be prevented. (Dane Broomfield)

    In my opinion, "incidental use" where the navigator takes care not to cause damage or nuisance is observing the law and not trespassing. (My comment)

    Doug


    Just goin with the flow

  5. #5

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    It's my opinion that just like with a canal, they would have had to move the boats upstream with a horse on the bank when the river was used commercially. I can't understand how this right to the bank has been eroded.

  6. #6
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    Quote Originally Posted by The Lugg Birds View Post
    I can't understand how this right to the bank has been eroded.
    I hasn't been "eroded"! It is being "disputed". So it is for those proposing to bring an action for trespass to prove their case ........ if they can.

    The 2002 Wye Navigation Order repealed the rights of navigation conferred by earlier Acts of 1622 and 1695 "but not the portion of the Act set out in article 38(3) of this order to the extent (if any) that it applies to the upper rivers and the tributaries." It therefore recognised the evidence for public rights of navigation on the river above Hay and had no intention of ending them. http://www.legislation.gov.uk/uksi/2...chedule/2/made.

    Article 38(3) says
    The portion of the second enactment referred to in Schedule 2 (which is saved from repeal to the extent, if any, that it applies to the upper rivers and the tributaries) is the following portion of that Act appearing in the edition prepared under the direction of the Record Commission and dated 12th March 1831 immediately following the enacting formula and preceding the section numbered II, and which is given the marginal note “The said Rivers declared free and common Rivers”—

    “That the said Rivers of Wye and Lugg be and from henceforth be accounted deemed and taken to bee free and Common Rivers and Streams to and for all His Majesties Subjects freely to make use of for the carrying and conveying of all Passengers Goods Wares and Commodities by Boats Barges Lighters and other Vessells whatsoever.”

    Keith

  7. #7
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    "bank" means so much of any bank, wall, embankment, fence, wharf, quay or other feature (whether natural or artificial) as confines the waters of the rivers up to the level and the point of their overspill into the flood plain of the rivers;

    When I read the reference to 'banks' I understand these to be the vertical parts of land which enclose the river. Where the river 'spills onto the floodplain', the horizontal part, I see this as not falling within the terms of the Act.

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