The Kennet and Avon Local Mooring Strategy steering group held its eighth meeting on 9 May 2011. The National Bargee Travellers Association (NBTA) had written to the steering group and to BW stating that research has shown that BW does not have the legal power to set mooring restrictions of less than 14 days or to erect signs specifying compulsory mooring restrictions; that BW therefore does not have the power to compel boaters to pay overstaying charges, and that it does not have the power to impose fines for overstaying. The full letter and BW’s response is below.
BW has already conceded that it does not have the legal power to impose fines for overstaying – in fact Sally Ash reminded Bathampton Parish Council of this fact in 2009 in an email (see our 2009 posts about Bathampton). However, it continues to use notices referring to a “penalty fee” or an “excess mooring fee” of £25 rising to £50.
As a result, the meeting discussed whether any mooring restrictions it designated would be statutory or just advisory. Damian Kemp of BW stated that the steering group’s work was advisory to BW and BW would have the final say on any proposals.
Most of the meeting was spent discussing and finalising mooring restrictions as a result of the towpath walks carried out in March. These restrictions are likely to considerably reduce the 14-day mooring space between Bath and Dundas. The most significant changes proposed are to extend the 72 hour moorings at Darlington Wharf by 100 metres towards Folly footbridge and to put permament moorings on the concrete stretch east of Bathampton swing bridge (opposite Jenks’s). Some 14-day space would be gained west of Avoncliff by changing the 48 hour moorings to 14 days, but the canal is very shallow here and mooring is difficult. However, the west corner of the aqueduct would be made “no mooring” for safety reasons. Other proposals include making two boat lengths at Easter Spot (bridge 174) 24 hours; putting a water tap and 4 boat lengths of permanent moorings west of Smelly bridge (bridge 173) and extending the 24 hour moorings at Semington to 120 metres. It was also proposed to do away with 48 hour moorings and make them either 24 or 72 hours.
People who know the canal well pointed out that much of the unrestricted space east of Hilperton is not physically possible to moor on, as it is too shallow. Mark Stephens, the K and A manager, said that if he can’t open up space east of Hilperton then restricting the 14-day space to the west would be an issue. He said he wanted to look at “easy wins” where he could open up space for a few more boats by spot dredging, rather than having to do major work.
The meeting had planned to discuss enforcement, but ran out of time. Two proposals for enforcement had been submitted to the group, from unaffiliated boaters and the NBTA. The proposals are below. We will publish the minutes when they are available. The next local mooring strategy meeting will be during the week beginning 13 June in Devizes.
Here is the letter from the NBTA
This is an Open Letter
I am writing to you in your capacity as the Chairman of MSSG and Officer of BW.
I am writing because of evidence that has recently come to light and events that have unfolded in the last week. I must stress that these issues have a direct impact on the work product of the Group. Subject to the conclusion of appropriate review of the evidence (which may very well have to be and certainly in part will be judicial) it will invalidate the work product of the Group. In anticipation of that possibility we have a responsibility to consider its impact and conduct ourselves appropriately now, given the implications.
The first concern relates to participation in K&A MSSG. NBTA has a great concern not only for ourselves but the other participants of the Group. Some members have quite rightlyexpressed great concern in their own right in relation to the voluntary effort committed to the group combined with the instance where BW might not accept the work product of the Group. If we are correct about this evidence then the work product of the Group (in its present form) will be inherently negated thus wasting this committed effort.
Secondly we have a concern about being engaged in a process which appears to be legally in contempt of Parliament. As a product of having sight of counsel’s opinions and the draft judgement in BW v Davies, Panda Smith and I have been researching material in the Parliamentary Archives, specifically the background behind the BW Act 1995. It is also incumbent on me personally to understand this data as I have been asked to represent a party in an action bought by BW against another boater. On 4th May the Court authorised me to act as advocate in this matter. I have outlined the evidence and the legal basis for the negation that stems from it below. In the circumstances I believe that we should commence the meeting tomorrow by considering whether the work of the K&A MSSG should continue. If we should continue, we must consider the implications of this evidence and how we should amend our own brief if the evidence holds true.
Nick Brown, Legal Officer, NBTA
BW enjoys a “catch all” power under s.43 of the 1962 Transport Act in relation to its management of the waterways. However it is reasonable to conclude that subsequent legislation modifies this “catch all” accordingly. Further, legislation that acts as an “override” (eg the Human Rights Act and the Equality Act) further qualify this “catch all”. We are all aware of the British Waterways Act 1995. The bill behind the 1995 Act was drafted by BW and introduced in the House of Lords in 1990 as a Private Bill (the “1990 Bill)”. The 1990 Bill was considered by a Select Committee in the House of Lords (“HLSC”) in 1991 which made a number of amendments.
The 1990 Bill was then considered by a Select Committee in the House of Commons (“HCSC”) in 1993 and 1994 which also reviewed the 1990 Bill and made further amendments. There was then a debate, it went to division and it finally passed into law after Royal Assent in January 1995. The minutes of both Select Committees are in the Parliamentary Archives. It is these documents that constitute the evidence that I am referring to. My understanding from law is that where a judge is performing adjudication he applies the law as written (“off the page”) but overlays the “Will of Parliament” especially where there is ambiguity. Obviously he also takes into account any parallel legislation or any overrides (as above) and his obligations under Halsbury’s Rules relating to Private Acts.
In the instance of the 1995 Act the Will of Parliament is defined by the work product of the HCSC as this was the last stage of decision making in its drafting (resulting in any material change) before becoming law. It follows that the minutes of the HCSC are decisive in determining the Will of Parliament. In this instance this means that the Will of Parliament (as documented in the minutes of the HCSC) has an overriding effect over s.43 of the 1962 Act (in relation to matters considered by the HCSC). In this instance this has direct bearing on the imposition by BW of statutory mooring restrictions.
In the original 1990 Bill BW had wording that referred to the ability to impose fines for a breach of a mooring restriction. BW also had a provision in the 1990 Bill to post signs designating mooring restrictions. In the HCSC sessions the HCSC forbade BW to impose fines (apart from in the most extreme of cases – specifically where a perpetrator was guilty of executing a dangerous act or was impeding navigation (itself a dangerous act). This included the right to fine for a mooring restriction violation.
Secondly as a result of this, BW withdrew the wording relating to the posting of signs designating mooring restrictions. BW had previously presented evidence that stated that signs designating mooring restrictions were advisory in nature. Thirdly BW also withdrew the wording relating to the designation of mooring restrictions. Fourthly BW had laid out in the wording an offence for failing to abide by an instruction of a BW officer. This was also denied by the HCSC.
As a consequence this meant that BW was confirming that any mooring restriction would remain as “advisory” and not “obligatory”.
The HCSC also considered wording proposed in an amendment by the HLSC relating to “no return within” in the context of “bona fide for navigation” by itinerants without permanent moorings. “No return within” restrictions were rejected by the HCSC.
As part of the same evaluation the question of “bona fide for navigation” (“BFN”) was also discussed. What was concluded was that BFN is defined not by the distance travelled when navigating or the manifestation of a progressive journey. Instead BW confirmed in its own evidence that BFN is defined by the time spent not navigating. The proposed amendment by the HLSC referred to above proposed that BFN was determined by not remaining in any one place for more than 14 days in any one calendar year. The HCSC rejected this and confirmed “continuously in any one place for more than 14 days” (ie removing the “calendar year” criterion and adding “continuously” meaning that boats could return to the same place).
In addition BW presented evidence that the test of a boat being used BFN, was that the boat had remained continuously in one place for 14 days or fewer unless it was reasonable to stay longer. It is of note that BW presented this on the basis that BW believed that it was a simple and easy way for the itinerant boater to know that he was complying with the proposed legislation.
A further principle in law is that legislation is written in “living words” and the meaning of the words does not change with changing circumstances. If the circumstances change then it is incumbent on the sponsor of the legislation (or another party who has concern for the context that is no longer met by the legislation) to make advances to Parliament (ie with a fresh bill) for new legislation either to repeal the legislation that is no longer fit for purpose or to make amendments as appropriate. In the interim the prevailing legislation is binding and must be interpreted in the courts in line with the original meaning of the words and the original Will of Parliament.
These factors combine to provide an override over s.43 so as to prevent BW from designating statutory mooring restrictions and from setting movement rules.
This is Sally Ash’s reply:
This is your personal view Nick. It is unlikely that our lawyers would agree. We have a pressing need to develop new management guidance, which is what we have invited all you to assist with. This guidance can of course IN DUE COURSE, be legally challenged by the BTA if they wish to do so, using normal judicial process.
Here are the unaffiliated boaters’ proposals for enforcement and the definition of “place”
Enforcement of the 14 day rule
Redefine “Enforcement Officers” as “Cruising Liaison Officers” or “Lengthsmen/ women”. Trained with communication skills and manual boat movement techniques, they will be able to approach non-movers to ask the reasons for non-movement and assess whether these are valid reasons for allowing a longer stay. They will also advise on bow-hauling, poling, towing etc and could assist anyone ill or inexperienced to move a short distance. They will also approach owners of unlicensed boats and enquire if licence payment is late due to temporary financial problems, and use their discretion in deciding whether to continue negotiation or start enforcement. BW will issue guidance to boaters about when to ask for a longer stay than 14 days, emphasising that this is discretionary and will depend on individual circumstances.
Cruising Liaison Officers or Lengthsmen maintain an awareness of Section 17 (4) of the 1995 British Waterways Act, which states that any notice requiring an overstaying boat to move must give 28 days or more to comply.
BW officially log notification of non-movement in exceptional circumstances (pregnancy, illness, holiday, repair etc) and generate a “Cruising Dispensation Notice” to be displayed on the boat in question. This notice will also carry a date of expected movement eg “This boat “boat name” will be moved on or around date”.
BW drops the role of boat checker and hands that function to the Cruising Liaison Officers/ Lenthsmen, who carry out weekly patrols using a van and two bicycles, as follows. Starting at Devizes for example, one boat checker cycles to Seend while the other drives to Seend and meets him/ her. The second boat checker then cycles to Bradford while the other drives the van there, etc. Each week, patrol notices are prepared for boats logged the previous week as overstaying more than 14 days without permission, as well as for unlicensed boats where the owner is not in negotiation with BW over payment. Every boat that is still there after 21 days or still unlicensed gets a patrol notice. If the boat has moved or is licensed, no action is taken and the patrol notice is withdrawn. The Cruising Liaison Officers/ Lengthsmen have the ability to check with the central licensing records on the spot to see if a licence has been paid for but not received (perhaps using an Andriod phone with the app which we understand is being developed for the purpose of checking boats).
BW to provide noticeboard space for displaying directory of local mechanical services (engineers, spares etc) and offers of tows to encourage cruising plus display of “help wanted” notices so that solutions can be found. To be administrated by Cruising Liaison Officer. We would not recommend replicating this on the web, as many boaters still do not have their own reliable internet access, or a reliable mobile internet signal.
Definition of “Place” for the purposes of enforcing the 14 day rule
The definition of “place” must take into consideration the practicalities of boat life, access to education and health care etc. As a pointer, 1 mile between places is ample; Bathampton to Claverton is 2.5 miles; Claverton to Dundas is 1 mile; Dundas to Limpley Stoke is 1.5 miles. We broadly accept BW’s definition of place as being not simply a particular mooring site but as a village or hamlet, a suburb or district within a town or city, or a specific, uninhabited area that is a geographically distinct from another uninhabited area. We do not favour the creation of artificial “neighbourhoods” or “localities” because this will not make sense to many people. We do not favour the use of parish boundaries, firstly because there may be more than one place within a parish boundary and secondly because of its associations with the Vagrancy Act and Poor Laws.
Guidance to boaters about when to ask for a longer stay than 14 days
This would include accidents, illness, pregnancy, family emergency, bereavement, holiday, and mechanical breakdown, but other circumstances may also validate a longer stay. We recommend that BW make it clear that boats are not expected to comply with the 14 day rule when ice or navigation stoppages prevent this, but that boaters should also inform BW of these circumstances if they prevent movement. We wish to make it clear that it is up to the boat owner/ skipper to assess navigational safety and make decisions about whether it is safe to travel in poor weather conditions, having regard for the safety of their own and of other boats. We also note that BW has in the past recommended that boats do not move in ice due to the risk of damaging other boats.
Here are the NBTA’s proposals on enforcement