Boaters complain to CRT about Trustees’ briefing document

Three boaters recently complained about derogatory language and inaccurate statements regarding boaters without home moorings in one of the Canal and River Trust’s briefing documents, TT06, which is on the Canal and River Trust’s web site. We publish their complaint below:

“Please treat this as a Level 1 complaint in line with the Canal & River Trust’s complaints procedure. There are two issues in this complaint:

1. The content of Paragraphs 2.1 to 2.3 of the Trustees’ briefing document TT06: Major Issues for the Trustees to Discuss at Future Meetings, covering “Continuous Cruisers”.

2. The refusal to admit us to the Trustees’ meeting in September when the issue of “Continuous Cruisers” will be discussed.

Issue 1: Paragraphs 2.1 to 2.3 of TT06: Major Issues for the Trustees to Discuss at Future Meetings.

We object categorically to the description of itinerant boat dwellers as “continuous moorers” or “CMs”. This is pejorative, prejudiced, derogatory and wholly inaccurate. We insist that it should be CRT policy to cease the use of the term “continuous moorers”, “CMs” and any other pejorative terms used to describe boat dwellers without a home mooring immediately. We recommend that the terms “boaters without a home mooring”, “boat dwellers without a home mooring” or “itinerant boat dwellers” are used instead.

We object to the overall slant of the information presented in paragraphs 2.1 to 2.3. The briefing is detrimental to our rights and homes and presents us as exploiting a loophole in the law. This is a misrepresentation. BW is responsible for creating this misrepresentation and has used it to  convince a substantial proportion of leisure boaters and canal-side residents that we are undesirable.

Below are extracts from TT06 and our detailed response, marked in italics, to the misinformation in this document.

TT06
TRUSTEES MEETING – 22 SEPTEMBER 2011 Major issues for the Trustees to address at future meetings

The fifteen issues set out below are ‘live’ in as much as they are either key concerns for
stakeholders or key business decisions that need to be resolved over the next 12-18
months.

Which stakeholders have expressed key concerns about “Continuous Cruisers”? As stakeholders ourselves, we wish the Trustees to register our concern about the fact that such prejudiced and derogatory views about us have been put forward for the Trustees to consider without any attempt to obtain our response or to correct such misinformation.

We have briefly summarised each issue to provide an overview and set out a date
(in Red) by which we believe it would be prudent for the Trustees to agree their position.
If these dates are agreed, we would plan for the Trustees to receive detailed briefings and
allocate time for discussion at future meetings to arrive at a policy decision within the time
frame.

2. Continuous Cruisers

2.1 Background

Under the 1995 BW Act boats on our network require a valid licence AND either a home mooring or to be ‘continuously cruising’ (CC).

There is no such thing either in law or in practice as “continuously cruising”. The term is a paraphrase of s.17 3 c ii of the 1995 British Waterways Act. We recommend the use of the term “boaters without a home mooring” in its place, as BW has indeed done itself in renaming the Mooring Guidance for Continuous Cruisers as Guidance for Boaters Without a Home Mooring.

Our Guidance document on defining CC summarises:

If a boat is licensed without a home mooring it must move on a regular basis. This Guidance
seeks to explain in day to day terms the nature of the movement that must take place.
There are three key legal requirements:-

the boat must genuinely be used for navigation throughout the period of the licence.
unless a shorter time is specified by notice the boat must not stay in the same place for
more than 14 days (or such longer period as is reasonable in the circumstances); and
it is the responsibility of the boater to satisfy BW that the above requirements are and will continue to be met. This definition has long been a point of contention between us and some boaters. However in a recent court case our definition was upheld

BW’s definition of “continuous cruising” was not upheld. HHJ O’Malley stated in the judgement in British Waterways v Davies on 31 March 2011 that “I think it right to say however that my decision is not to be taken as fully endorsing the board’s guidance. It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)(c)(ii)”.

as being in accordance with the Act and we have taken the opportunity that this brings to revisit precise wording of the Guidance with boating organisations (especially the National Association of Boatowners) to gain greater acceptance without any substantive change in the definitions.

There was a substantive change in the definitions, in that BW removed the requirement in its previous Guidance which stated that “The law requires a genuine progressive journey (a cruise) around the network or significant part of it”. This was removed because of the statement above by HHJ O’Malley.

In recent years there has been a steady growth of boaters claiming to CC

This implies that boaters without home moorings are not genuine. The vast majority of boaters without home moorings comply with s.17 3 c ii. To label us as “claiming” to do something is inherently prejudiced and dishonest. It accuses us as a group of contravening the law which amounts to finding us guilty until we are proven innocent, a fundamental breach of the principles of natural justice. This collective and unfounded accusation implies that collective punishment is acceptable. In other contexts, collective punishment is a crime.

and thereby avoid the cost of a mooring.

We are not avoiding the cost of a mooring, because we are not getting the same service in return for our licence fee as the service that is received by boaters who pay for a mooring. If you have a mooring, you receive services and benefits that boaters without home moorings do not get. In particular you can moor your boat in one place all year round if you wish. You are also able to avoid the bullying and harassment that BW directs towards boaters without home moorings. The cost of a licence without a home mooring is proportionate to the benefit that boat owners receive in return for their expenditure. The ability to cruise the waterways without a home mooring is an entitlement of all BW boat licence holders conferred by s.17 3 c ii of the 1995 British Waterways Act.

Very many of these people do not comply with our definition of CC

BW’s definition of “CC” is at odds with that intended by Parliament, which did not set any minimum distance to be travelled but intended that the test for whether a boat was being used bona fide for navigation is simply whether the boat has stayed for longer than 14 continuous days in one place without a longer stay being reasonable in the circumstances.

and moor up at convenient places along the network (near bridges, shops, schools)

There is nothing wrong with mooring at a place that is convenient; all boaters are entitled to have a free choice of where they moor, whether this is to visit a tourist attraction or to be close to a school or a shop.

for long periods of time.

s.17 3 c ii prohibits boaters without a home mooring from remaining for more than 14 continuous days in any one place and allows a longer stay if it is reasonable in the circumstances. There is no prohibition on returning to a place provided that the continuous stay under normal circumstances is not longer than 14 days. There is no definition of what circumstances make it reasonable for a boater to stay longer; this is discretionary and by implication should be taken on a case by case basis. If boats are moored for periods of time longer than 14 days without the longer stay being reasonable in the circumstances, this is a failure of BW’s enforcement and the remedy is to change the enforcement priorities to focus on overstaying. At present the enforcement priority after unlicensed boats (we agree that it is valid to prioritise licence evasion) is focused on the distance that boats without home moorings travel. This is clearly not proving to be effective in reducing overstaying. In addition, it must be recognised that boats with home moorings are just as likely to overstay. An analysis by NABO of BW’s enforcement statistics in 2011 demonstrated that boats with home moorings accounted for a greater proportion of overstaying.

Many of them have jobs or children at school in these locations.

This implies that boat dwellers without home moorings should be denied the family life, the economic well-being and the participation in society that everyone else enjoys and takes for granted. This is fundamentally unjust and is a clear breach of our rights under Article 8 of the European Convention on Human Rights; the right to respect for our homes, family and private life.

They have become known as continuous moorers (CM).

This term is pejorative, prejudiced, derogatory and wholly inaccurate. We insist that it should be CRT policy to cease the use of the term “continuous moorers”, “CMs” and any other such derogatory label. We recommend that the terms “boaters without a home mooring”, “boat dwellers without a home mooring” or “itinerant boat dwellers” are used instead. In 1995 BW referred regularly both in print and in meetings to itinerant boat dwellers as ‘Water Gypsies’. NABO objected and in response BW ultimately stopped using the term. We rarely see it today, when yesterday it was common parlance. It is  irresponsible and unprofessional for either a public body or a charity to refer to its customers in derogatory terms and we are surprised that BW and the CRT have not learnt from past experience.

The heaviest concentrations of CMs are on the Kennet& Avon Canal (western end in particular) and more recently on the River Lee and the Regent’s Canal.

The boat licence entitles boaters to travel where they choose on BW waterways. There is no legal mechanism whereby BW can limit the numbers of boats in any particular area, whether or not they are licensed under s.17 3 c ii.

The issues around this type of CM are:

leisure boaters become unhappy when they cannot access popular mooring spots and support facilities

BW has not presented any evidence to show that this is the case. This is an unfounded accusation. If it is true, then it is the result of a failure of enforcement of overstaying on visitor and facilities moorings. It is unfair and unjust to blame and scapegoat us, without any evidence, for a failure of BW to get its enforcement priorities right. Overstaying is the issue about which BW receives the most complaints. A recent study by NABO showed that boaters with home moorings were proportionally more likely to overstay on visitor moorings. Boaters without home moorings prefer on the whole to stay in places where they can moor for 14 days.

local communities and local authorities can be in conflict with concentrated communities when the consequent increase in demand puts pressure on (for instance) rubbish collection or car parking.

Rubbish collection from boats is provided by BW; there is no reason for boaters to use local authority rubbish collections. However, boat dwellers without home moorings have every right to use local services, including parking their vehicles on the public highway as any other citizen is entitled to do, and to be included in planning for those services. Visitors to local authorities are not prohibited from using such services. This must in any case be taken in proportion. There are 3,800 boats on the BW system without home moorings. They represent an estimated 5000 to 10,000 boat dwellers scattered around the UK. This is a very small number of people and the level of objection to us by BW is vastly out of proportion. Local authorities are required to include other travelling and nomadic communities in such planning and are beginning to include itinerant boat dwellers. Wiltshire and Bath and NE Somerset Councils are leading the way in this respect. Local authorities and canal-side residents need a better understanding of the rights of itinerant boat dwellers (and other travelling communities) which is not being provided by BW; to the contrary, BW is actively encouraging prejudice against us, for example by the use of terms such as “continuous moorers” and by its methodology of harnessing canal-side residents and parish councils to take part in local mooring strategies that are detrimental to the rights and needs of itinerant boat dwellers..

leisure boaters who pay for moorings resent the ‘free ride’ the CMs seem to them to have

It is very important in the development of any policy that a clear distinction is made between perceived unfairness and actual unfairness. To take action to address perceived unfairness would be wasteful of resources, discriminatory, irrational and unjust. We have had enough of being scapegoated in this way. We do not have a free ride; boaters who pay for moorings receive benefits that we do not.

CM communities do not have planning permission

Mooring boats temporarily in the course of navigation is, in planning terms, inherent to the use class and planning purpose of the canal and therefore does not constitute a change of use, regardless of whether they are lived on. Therefore the 28-day limit on change of use of land is irrelevant here. The Planning Inspector’s decision in January 2007 in the case of moorings at Ladies Bridge, Wilcot, Pewsey, Wiltshire (APP/E3905/C/06/2019638) confirms this. Other planning decisions in the East Riding of Yorkshire in 2011 and South Bucks in 1990 have additionally found that permanent residential moorings for canal boats do not require planning permission.

Over the past 12-18 months, after having successfully reduced general licence evasion, we have begun to enforce our CC definition on the Kennet & Avon Canal and this led to the court case referred to.

We have also recently turned our attention to CMs on the River Lee and Regent’s Canal and consulted on proposals to introduce strictly enforced zonal mooring and overstaying charges. This consultation and our enforcement of our CC interpretation has been vigorously opposed by CMs although the boating movement generally is supportive (but not vocally).

It is not correct to say that the boating movement is generally supportive. A section of boaters, including the IWA, is supportive because BW has successfully misrepresented boat dwellers without home moorings as exploiting a loophole in the law rather than as having an entitlement to use their boats in the way that they do. BW’s own independent analysis of the River Lee and Regents Canal consultation responses (http://www.britishwaterways.co.uk/media/documents/Lee-consultation-summary.pdf) contradicts this statement:

“1.4 There was overwhelming opposition to the proposals amongst Continuous Cruisers (93%), Cyclists (96%), Canoeists (100%), Local Residents (89%), Residential Boaters (86%) and Visitors to Lee Valley Park (97%). There were no respondents in the Cyclist, Canoeist or Visitor to Lee Valley Park categories that expressed support for the proposals.”

2.2
Current Position

In the light of the recent court case we have revised our CC definition and now have all the major boating organisations to agree them. This is a major step forward as we have never had this uniform agreement in the past. A relatively new organisation The Bargee Travellers Association representing many CMs vigorously opposes these new guidelines.

The correct name is the National Bargee Travellers Association.

We have recently reported back on the River Lee consultation exercise with a
decision to to explore the potential of a new model for managing demand for
residential boating there. Following feedback from waterway users and local
authorities, we will explore the potential for establishing a new facilitating body, such
as a social enterprise, to help achieve a more sustainable model for residential
boating on the Lee & Stort Navigations. This could allow a greater degree of boater
involvement and generate much-needed revenue for the waterway whilst satisfying
demand in a way acceptable to most people involved.

This omits to inform the Trustees that opposition to the draconian, unjust and discriminatory proposals for the Lee and Stort navigations were opposed by a wide cross section of society,  including boat owners with moorings, local boat clubs, local rowers and canoeists, local residents and towpath walkers, MPs, local councillors, church ministers and local authority housing and equality officers. This is why the original proposals were dropped.

2.3
Future Action

We will continue to enforce our guidelines

By definition, guidelines are not enforceable. Guidelines are not the law. CRT can enforce the law but it has no power to enforce guidelines; indeed, this was recognised by BW in Note 2 which states that the Guidance does not have the force of law.

explore the social enterprise model and……
if the model proves successful extend it to other areas
encourage local authorities to give consent for residential berths in marinas (we
recently persuaded them to extend New Homes Bonus for this purpose)

Position Date: October 2012.

Issue 2: The refusal to admit us to the Trustees’ meeting in September when the issue of “Continuous Cruisers” will be discussed.

On 17 July 2012, Lynne Berry [Deputy Chair of the Trustees] wrote to us in response to our letter to her objecting to the content of Section 2.1 to 2.3 of TT06 regarding which we have laid out our formal complaint above. We requested entry to the Trustees’ meeting at which “Continuous Cruising” is scheduled to be discussed. She stated: “we will not be asking representatives of any of the points of view to attend in person … I have read your attachment and passed it to the management team who will make sure the issues are considered as part of Trustees’ briefing on policy related to continuous cruising.”.

If this refers to the management team who wrote the briefing in TT06 in the first place, if this team is to present the issues we raised with Ms Berry at the Trustees’ briefing, we have no confidence in their ability to do that in a balanced and impartial fashion. We require admittance to the meeting in order to counter the biased and prejudiced content of the original briefing.

Ms Berry also stated in her response to us that: “I can assure you we want to manage our canals and rivers in a way that commands the support and adherence of as many people as possible and that is in the best interests of the waterways and those who use them”. We qualify as “those who use them”  Making life more difficult for us with additional rules and costs flies in the face of her assurance that the Trustees want to “manage our canals and rivers in a way that commands the support and adherence of as many people as possible”.

In addition, in July 2012 CRT made the public statements below in Shaping our Future: Strategic Priorities:

“We welcome new people and  new ideas – and we are transparent in all that we do” (p5).

“One of the six strategic priorities is inspiring more people to enjoy the canals
and rivers and support our work” (p8).

It made a commitment to “Encourage an active community of boaters” (p10).

“We need to grow awareness, understand the needs of local canal and riverside communities, work with others and open not only the waterways but our minds to new people, new ideas and new uses; To inspire more people to enjoy the waterways and support our work we will: Work even more closely with local and national stakeholder groups to combine our knowledge, resources and enthusiasm for mutual benefit; Encourage more people from ethnic minority and socially disadvantaged groups to discover and enjoy their local canals and rivers” (p11).

“Our charitable status means that everything we do must be for the public good and our charitable objectives are entirely about improving the lives of others through the upkeep and use of our waterways” (p13).

“The Trust is proud of its origins but also wants to differentiate itself from the past – creating a different, more inclusive and ultimately more sustainable approach to safeguarding our waterways”; it made a commitment to “Seek to engage everyone and every organisation and community that has an interest in our work to develop common understanding and common goals” (p15).

In addition, the Minister for Natural Environment and Fisheries Richard Benyon MP stated in a private letter to the National Bargee Travellers Association on 26 June 2012 that: “I would strongly encourage you to engage constructively with the governance structures of the new charity, whether at Board or Council level or in the Waterway Partnerships”.

Boat dwellers without home moorings are socially disadvantaged in that they have no security of tenure and no legal recognition for their homes. In view of the public and private statements we refer to above, and since the proposals in section 2.1 of TT06 will have a disproportionate adverse impact on us, potentially including the forcible removal of our homes from us, we believe that it is appropriate regardless of whatever other groups may or may not be represented, that we attend the meeting in order to counter the misinformation in the briefing and ensure that the Trust is effective in pursuing its objectives of improving the lives of others and engaging everyone and every community that has an interest in its work.

Remedies sought

To remedy part 1 of our complaint, please firstly correct paragraphs 2.1 to 2.3 of TT06 with the information that we have provided in italics; secondly please confirm that the CRT will not attempt to enforce the Guidance for Boaters Without a Home Mooring in future and thirdly, please cease the use of the terms “Continuous Moorer” and “CM” and use one of the terms we have recommended instead.

To remedy part 2 of our complaint, please ensure firstly, that we are admitted to the September Trustees meeting in order to correct the misinformation contained in Paragraphs 2.1 to 2.3 of TT06; and secondly, that a mechanism is put in place to ensure that before any new policy or practice on enforcement, licensing and mooring is implemented that affects boat dwellers without home moorings, it is evaluated against the declared objectives of Ms Berry of “managing our canals and rivers in a way that commands the support and adherence of as many people as possible” with our user group as a scrutineers on such matters.

We would appreciate it if you would expedite your adjudication of this complaint in order to complete the process before the date of the Trustees’ meeting in September.

Thank you.

Yours sincerely

Three Boaters Without Home Moorings”

You can download the original briefing TT06 here TT06-Major-Issues-for-the-Trustees-to-address-at-future-meetings

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