- OFFICIAL - Regulation 28 to Prevent Future Deaths - The Late Mhlanga-Veira Date: 21 January 2022 Mrs Heidi J Connor Senior Coroner for Berkshire Sent via Email only Response to Regulation 28 PFD Report from the National Trust
1. The National Trust (“The Trust”) is a registered charity incorporated by statute. It is a membership organisation and works to preserve places of historical interest and natural beauty in England, Wales, and Northern Ireland. The Trust facilitates access to such places for the benefit of the nation.
2. We would once again like to express our sincere condolences to Jordan`s family and friends.
3. The Trust was not an Interested Person to the inquest touching on Jordan’s death and did not receive disclosure in advance of the inquest. However, to assist HMSC, the Trust provided statements from , Operational Senior Risk Business Partner and , General Manager for the Cliveden portfolio, which includes the area of the Thames at Cock Marsh where the accident occurred. These statements set out details of the Trust’s approach to water safety on the land it owns along the coastline and near inland waterways and details of the specific risk assessment and control measures in place at Cock Marsh. Both statements were admitted in evidence under rule 23.
4. HMSC requested the attendance of a witness from the Trust to assist in her consideration of Regulation 28 issues, specifically with regards to signage and water safety issues at Cock Marsh.
5. This response to the Regulation 28 report should be read with the statements of and .
6. As a responsible landowner with many miles of coastline and waterways, the Trust takes its responsibilities very seriously including the safety and wellbeing of visitors. The Trust is a longstanding member of the Visitor Safety Group (VSG) a partnership organisation concerned with visitor safety. Other members of the group include British Waterways and the Environment Agency. The Trust adopts the VGS’s guiding principles that emphasise the importance of conservation, access and personal enjoyment of the countryside and need to find balance between safety and its wider objectives. The principles also underpin the balance between the personal responsibility of visitors and responsibility of the landowner.

7. In this response, The Trust addresses the 2 areas of concern set out in paragraph 5 of the Regulation 28 report. The responses follow discussions with the Environment Agency.

8. The Trust also outlines below the main legal duties and case law relating to water safety risks and the issues relating to the land at Cock Marsh.

9. HMSC heard evidence from as part of her consideration for making a Regulation 28 report. gave evidence (also contained in his statement) that the Trust owns parts of the land known as Maidenhead and Cookham Common. Cock Marsh forms part of that area. The land at Cock Marsh is registered as Common under the Common Land Registry. The Trust has a specific statutory duty to keep common land unenclosed and unbuilt on as open spaces for the recreation and enjoyment of the public. It is not within the power of the Trust as landowner to fence or obstruct the public or commoner’s access to the area. The Trust as landowner must take account of commoner’s rights while managing common land. It is not possible, practicable or desirable to restrict public access to the river in this area of land.

10. A landowner of one side of the bank of the river, may have riparian ownership of the riverbed to the middle of the watercourse where generally the ownership would transfer to the opposing bank landowner a full review of title deeds of any landowners would be needed in order to ascertain the riverbed ownership at any particular point. The Trust understands the Environment Agency is the authority with specific powers and duties in relation to the River Thames and navigation at this location.

11. The Regulation 28 report refers to evidence heard at the inquest about the differences between tidal and non-tidal waters in terms of safety. HMSC heard evidence from from the Kingston Marine Volunteer Service and from the Environment Agency that suggested there were differences between coastal waters and inland waterways in terms of safety arrangements.

The Legal Framework and Relevant Guidance

12. The relevant statutory and common law provisions apply equally to coastal and inland waterways. The applicable law for landowners can be found within the Occupiers’ Liability Acts and for employers, the Health and Safety at Work etc. Act 1974. Neither of the statutes impose a duty on the landowner to guard against an obvious hazard such as a water course or provide risk mitigation measures for those who choose to undertake activity not being promoted or organised by the landowner or employer’s undertaking. The application of these statutory provisions and of the common law has been clearly and authoritatively stated by the High Court, Court of Appeal and the House of Lords.

13. In Darby v National Trust [2001] PIQR P372 the claimant's husband was tragically drowned while swimming in a pond on the National Trust estate at Hardwick Hall. The pond was owned by the National Trust. At trial there was uncontradicted evidence which the judge accepted that the pond was unsuitable for swimming because it was deep in the middle and the edges were uneven. It was submitted that the National Trust should have made it clear that swimming in the pond was not allowed and taken steps to enforce the prohibition. Allowing the appeal of the National Trust May LJ giving the judgment of the court of appeal rejected that submission (emphasis added): “27. [Counsel for the claimant] submitted that there was no proper correlation between the risk of swimming in this pond and the risk of swimming in the sea or other open water. I do not agree. It cannot be the duty of the owner of every stretch of coastline to have notices warning of the dangers of swimming in the sea. If it were so, the coast would have to be littered with notices in places other than those where there are known to be special dangers which are not obvious. The same would apply to all inland lakes and reservoirs. In my judgment there was no duty on the National Trust on the facts of this case to warn against swimming in this pond where the dangers of drowning were no other or greater than those which were quite obvious to any adult such as the unfortunate deceased. That, in my view, applies as much to the risk that a swimmer

might get into difficulties from the temperature of the water as to the risk that he might get into difficulties from mud or sludge on the bottom of the pond.”

Darby was cited with approval by the House of Lords in Tomlinson v Congleton Borough Council [2004] AC 46. There was debate about whether the claimant in that case was a trespasser, but the case did not turn on that factor. The claimant ignored warning signs and dived into a lake that had formed in a disused quarry owned and managed by the defendants. He suffered grave injury. His claim for breach of statutory duty and at common law failed. The reasons included that the risk was attributable to the conduct of the claimant, not the state of the premises (paragraphs 27 and 34) and the following (emphasis added): “Free will”
44. The second consideration, namely the question of whether people should accept responsibility for the risks they choose to run, is the point made by Lord Phillips of Worth Matravers MR in Donoghue v Folkestone Properties Ltd [2003] QB 1008, 1024, para 53 and which I said was central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk…
45. I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalist view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.

Further, Lord Hutton stated: “59. … it is contrary to common sense, and therefore to sound law, to expect an occupier to provide protection against an obvious danger on his land arising from natural features such as a lake or a cliff and to impose a duty on him to do so …”

14. The same considerations apply to the duty under the Health and Safety at Work Act 1974 and associated Regulations such as the Management of Health and Safety at Work Regulations 1999, see R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930.

15. Relevant guidance to landowners such as the National Trust is to be found in Managing Visitor Safety in the Countryside, now in its third edition. This is produced by the Visitor Safety Group, comprised of a number of organisations that own and manage land and property with day-to- day experience of visitor management as well as the national policy makers and specialist safety advisors. The guidance is endorsed by the Health and Safety Executive in the following terms:

“The HSE supports the VSG’s commitment to promoting a sensible and proportionate approach to managing safety in the countryside. The guidance provides a valuable framework for managing risk to visitors which is sensitive to the intrinsic value of the landscape and does not unduly restrict public access”

16. The Trust applies the VSG guiding principles through its process of site-specific risk assessments. In particular, the Trust aims to take account of conservation, heritage, recreational and cultural landscape objectives and aims to avoid taking away people’s sense of freedom and adventure. This approach also balances the individual’s free choice with the suitability and practicability of any risk reduction measures while not curtailing the freedoms of all.

Prevention of Future Death Report

17. The Senior Coroner has set out two matters of concern.

18. The first of these concerns relate to safety measures specifically in relation to Cock Marsh. The second area of concern relates to inland waters more generally with consideration to approaching safety in relation to non-tidal waters in the same way that tidal waters are dealt with.

19. At Cock Marsh, the Trust produced a detailed risk assessment for a large area of open common land with multiple points of entry. This included the access to the River Thames. The Trust neither owns nor has control of the River Thames. The Trust does not prohibit or promote or encourage swimming.

20. The Thames itself is an obvious water course with a marina opposite and boats and watercraft of various sizes operating throughout the day. The water must be of sufficient depth for boats to use the river. In addition to the risk of drowning there is the additional hazard of moving craft. Both risks are plain and obvious.

21. As a landowner with extensive ownership of inland waterways and coastal areas and with many millions of visitors a year, it is not reasonable or practicable to patrol all areas where visitors may choose to take risks at any time of the day. There is no requirement for landowners to safeguard all possible risks that visitors choose to undertake including entry into the water.

22. Following discussions with the Environment Agency, the Trust acknowledges that stretches of the Thames can become deep suddenly, and that water visibility is generally insufficient to the depth of hazard beneath the surface, and it can be difficult to establish the speed of the flow. All these factors can be influenced by meteorological events including the amount of rain further upstream which make hazards variable in nature. This further detailed information will be considered in the risk assessment.

23. The Trust is very grateful to the Senior Coroner both for her suggestions and her recognition that there are competing considerations which do not lend themselves to clear or easy answers.

24. Buoys. The Trust does not own, operate or control the River. It is not within its power to unilaterally place buoys in the water. However, even if it was, the Trust would have a very serious concern that the presence of buoys would indicate by implication that areas of the River were safe to swim in and thereby encourage people into the water. That would be contrary to the Trust’s overall approach to water safety and the relevant guidance. Further, buoys would, as the Trust understands it, interfere with the legitimate rights of users of the river. The Trust understands this is also the position of the Environment Agency.

25. The position of throw ropes. The Trust does not generally provide throw ropes. It does not believe the specific rope referred to was located on National Trust land. Experience tells us that equipment such as throw ropes is often stolen and/or vandalised. The Trust’s experience is that the provision of public rescue equipment creates an inducement for either misuse or a perception of safety.

26. Signage. The Trust and the Environment Agency have concerns around the effectiveness of signage measures and its environmental impact. That is especially so where, as here, there are multiple routes to the water.

27. Nevertheless, the public access risk assessment covering Maidenhead and Cookham Common including Cock Marsh was reviewed by the Operational Risk Business Partner

as soon as the Trust was made aware of the incident. Following the conclusion of the inquest, an urgent review was undertaken whether the site posed any specific extra risk at that time. The Trust’s Legal and Operational risk team discussed and considered the matter and concluded that factors such as the time of year and weather meant that the site was unlikely to be at any increased risk at that time.

28. Following your report, it was agreed as a priority the General Manager , Lead Ranger, and Head of Compliance would visit the site and review the current risk assessment and consider whether further reasonably practicable and effective measures could be put in place to reduce the risk associated voluntarily accepted by those who chose to swim in that area of the Thames.

29. The risk assessment was reviewed fully during the site visit in January 2022. It is anticipated the following steps will be implemented:

i) Following the site visit and review of the current visitor risk assessment, which covers a large area of land and a number of other visitor risks, the area known as the beach and other potential similar locations at Cock Marsh will be separately drawn out into a distinct visitor risk assessment specially to consider drowning risk.

ii) This new risk assessment document will provide a fuller description of the area and further details of control measures already in place together with reasoned consideration for the approach to any hazards that are not obvious.

iii) A signage pilot will commence prior to the early spring Bank Holiday to test the location, wording and effectiveness of such measures at the specific location warning of depth, strong currents, and hidden obstacles. The risk assessment will also consider the location of existing lifesaving equipment and whether further provision should be made.

30. There are plans for the Property Team to share this information Jordan`s family. The Trust would also propose reviewing website visitor information and content for this property to consider reflecting any additional information informed by the risk assessment / signage pilot.

31. The Trust has carefully considered the second matter of concern within the Regulation 28 report. For the reasons set out above the Trust does not believe there is any legal distinction between non-tidal and tidal waters or coastal or inland waterways. As such, the same legal duties apply to both coastal waters and inland waterways and tidal and non-tidal waters. The Trust does not make any specific distinction between coastal waters and inland waterways as far as water safety is concerned and undertakes risk assessments with annual reviews that consider visitor safety on the land it owns along the coastline and next to inland waterways. In both cases it applies the VSG Guidance.

32. It remains the view of the Trust that the best control mechanism for the risks associated with Coastal and Inland Waterways and tidal and non-tidal water courses is better education. The Trust recently contributed the National Water Safety Forum consultation on improving water safety and noted with interest at the recent conference the planned adoption of new water safety messaging and campaigns for 2022.

Assistant Director. Cc. Director General’s Office for National Trust.

Dear Samantha, Environment Agency Response to Regulation 28 Coroners (Investigations) Regulations 2013 Report following the Inquest into the death of Jordan Shaun Mhlanga-Veira at Reading Town Hall on 4th November 2021 On behalf of the Environment Agency, and particularly those staff involved in the Inquest and the writing of this response, I would like to send our sincere condolences to Jordan’s family at this tragic time. I address the following Matters of Concern that you asked us to consider– Matter of concern 1. Whilst it is not a matter for the coroner at an inquest to recommend particular safety measures, I ask that safety measures at the site be reviewed urgently, to include consideration of warning signs, position of throw ropes, and consideration of buoys in the water (at the point where it becomes deep). I appreciate that many of these measures will contain both advantages and disadvantages, and this will be a matter for debate amongst the appropriate agencies1 referred to in this report.
1. Our response has been prepared following discussions with the National Trust. The National Trust is the landowner at Cockmarsh Field, Cookham and

therefore controls the access point by which members of the public are able to enter the Thames from ‘the beach’ at the location in question. As such, the National Trust has health and safety responsibilities towards those persons, which may include warning signs and rescue devices based upon risk assessment.

2. The Environment Agency is the navigation authority for the River Thames, the Medway, the River Wye and for Anglian Waterways (Ouse, Nene and Stour). We are also harbour authority for Rye Harbour. Our primary function as a navigation authority is the regulation of the waterways in accordance with the applicable legislation.

3. For the purposes of this response, we concentrate on our responsibilities in relation to the River Thames. The Environment Agency is the navigation authority for the whole of the non-tidal part of the Thames, ending at the tidal boundary at Teddington Lock, at which point the navigation authority becomes the Port of London Authority. The main navigation powers for the Thames are set out in the Thames Conservancy Acts 1932-1966 (‘TCA’), and in the Thames Navigation Licensing and General Byelaws 1993 (‘the Byelaws’) which are made under the TCA. Also of relevance is the Inland Waterways (Environment Agency) Order 2010, an overarching piece of legislation covering Thames, Medway and Anglian waterways.

4. As navigation authority for the Thames, we have a duty to manage water levels (s73 and s76 TCA). We also have various powers (but no duty) to remove obstructions in various places along the Thames (s104-107 TCA) to ensure navigation is not interrupted.

5. Under Byelaw 63(b) it is an offence to bathe in the Thames where the Environment Agency has put up a sign forbidding it. However, our powers to erect a sign in our capacity as navigation authority are limited to circumstances connected to navigation itself, not recreation. For example, under Byelaw 63(b), we could erect a sign to prohibit swimming in order to prevent interference with the public right to navigate the Thames, but not to prohibit swimming generally.

6. Similarly, the Environment Agency has limited powers to cordon off sections of the Thames. We may restrict the general public’s right of navigation, under section 79 of the TCA for purposes connected with maintaining a navigable waterway - for example, in order to carry out repairs to locks or weirs. However, we do not have the power to cordon off an area of river to create a swimming area. In any case, we would be reluctant to cordon off sections of the river as it could be seen as an encouragement to swim, suggesting the area is safe for swimming.

7. We are not generally the riparian owner of the bed of the river Thames and so our ability to place buoys or other items connected the riverbed are bound by our navigation powers, not influenced by our ownership of the riverbed. We are not the riparian owner of the section of riverbed next to Cockmarsh Field.

8. In relation to health and safety, there is a duty placed on the navigation authority under the Health and Safety at Work Act 1974 to (within the parameters of its powers and duties as navigation authority), ensure that those that navigate the waterway are not exposed to risks to their health and safety ‘so far as it is reasonably practicable’. Every vessel navigating the Thames must be navigated with care and caution and at such speed and in such manner as not to endanger the lives or cause injury to others (s97 TCA).

9. It is part of the Environment Agency’s general obligations with respect to water “generally to promote”, “to such extent as it thinks desirable”, “the use of waters and land for recreational purposes”. This duty to promote recreation must be consistent with the Environment Agency’s duties under the law, for example, consistent with the duties of a navigation authority to maintain the public right of passage along the river (s7(4) Environment Act 1995) and our duties under the Health and safety at Work etc. Act 1974 (‘the HSW Act’).

10. For the reasons stated above, the Environment Agency has very limited capacity to introduce safety measures in relation to swimmers entering the water at Cockmarsh Field.

11. The Environment Agency nevertheless takes very seriously the matter of water safety in relation to its land and assets. We are a member of the National Water Safety Forum, which is hosted by the Royal Society for the

Prevention of Accidents (‘RoSPA’) and supported by the Royal Life Saving Society UK (‘RLSS UK’). We support and follow its published guidance, ‘Managing Safety in Inland Water Sites’

waters.html , guidance which was drawn to the attention of the Coroner, by , during Jordan’s inquest. The guidance provides valuable advice for those in control of sites where members of the public have access to water.

12. We publish advice for the public on how to stay safe while visiting waterways:

information campaigns to raise awareness of water safety around our assets and landholdings. We focus our attention on those assets which are known to be popular swimming or canoeing spots, for example, Teddington Lock. For example, in June 2021, in partnership with local representatives of other agencies with water safety roles and responsibilities on the river Thames – Royal Berkshire Fire and Rescue Service, Thames Valley Police, Royal Borough of Windsor and Maidenhead Council – we carried out a patrol in the Boulters Lock and Ray Mill island areas of Maidenhead, engaging with members of the public about the risks posed by swimming in the Thames and other waterbodies.

13. The Environment Agency is also an active member of the HSE approved Visitor Safety Group https://www.visitorsafety.group/, which also works in this area of public safety. Other members of the group include the National Trust and British Waterways.

14. The Environment Agency will continue to work with the National Trust so far as our powers and duties as a navigation authority allow, to ensure the safety of the public visiting the Thames.

Matter of concern 2. Consideration should be given to approaching safety in relation to non-tidal waters in the same or similar way that tidal waters are dealt with. Whilst some proportionality will of course be required, it may be that there is some predictability to areas of particular danger in inland waters,

for instance where these are regularly used by members of the public (as was the case here), and with reference to weather, and bank holidays.
1. We note the Coroner’s comment that there is ‘currently no statutory framework around safety measures applied to inland waters’ and we do not feel that this is the case. There is established legislation and case law concerning public safety, which applies to all waters, both tidal and non-tidal.

2. The Environment Agency is responsible for safety on waterside assets it owns, operates or occupies (such as locks, weirs and bridges). In the case of Cockmarsh Field, the scope of our role is as navigation authority for the stretch of river. We do not own or occupy the land and have no assets positioned there.

3. Under criminal law (the HSW Act and associated regulations) employers are under a duty to ensure, so far as is reasonably practicable, that in the course of carrying out their undertaking (their work), members of the public are not put at risk. This includes the management of land and assets that are owned or occupied by that employer. Specifically, section 3(1) of the HSW Act establishes a duty on an employer to - ‘conduct his undertaking in such a way, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety’.

4. Where the Environment Agency owns or occupies a site and it therefore forms part of our undertaking, we are under a duty to assess the risks our assets and landholdings pose. We do this by carrying out a public safety risk assessment which identifies measures to take to reduce risk to its staff and to the public. The risk assessment will address factors such as popularity of use and the factors which influence that popularity, such as weather and bank holidays. It will also take into account factors that may be influenced by the tidal or non-tidal nature of the water body. Taking all relevant factors into account, we then take all steps that are reasonably practicable and that we are empowered to take, to reduce and control those identified risks. Reasonable steps might include, for example, putting up warning signs on a weir to warn against or inform of the risks to swimming or canoeing. We continue to inspect regularly those assets to ensure the provided risk control

measures are well maintained and remain appropriate. Depending on the levels of risk associated with a particular asset, we also review our public safety risk assessments at suitable intervals.

5. In addition to our duties under the HSW Act, under civil law the occupier of land or an asset has responsibilities under the Occupiers Liability Acts of 1957 and 1984 (‘the Acts’) to ensure the safety of visitors and the uninvited to those premises. The Environment Agency adopts a wide definition of ‘occupier’ and ‘occupation’; if we are responsible for the maintenance of an asset, or if we are the landholder (subject to any lease or licence) we arguably have sufficient control of the area to fall within the remit of ‘occupier’. As such, we may have a duty under the Acts to take reasonable steps to keep people visiting the area safe and/or to ensure they do not suffer injury on the premises by reason of the danger concerned.

6. There is a large body of case law which considers the balance between responsibilities of owner/occupiers of land and those of persons entering upon land to undertake, in some cases, dangerous activities. I refer the Coroner to Tomlinson v Congleton Borough Council and Others 31 July 2003, Staples v West Dorset Council 1995 and Duff V East Dunbartonshire Council and Others [1999]. The case law points to an approach towards safety, whereby people take on a degree of responsibility for their own actions when carrying out potentially dangerous activities.

7. We note the Coroner’s comment that further consideration should be given to developing water safety. Policy decisions on the matter of inland and coastal water safety are the responsibility of central government, including the Cabinet Office and the Department for Environment, Food and Rural Affairs.