We have submitted information on the situation, rights and needs of liveaboard boaters for the Core Strategies being drafted by Bath and NE Somerset and Wiltshire Councils.
What’s the Core Strategy? It’s the policy that guides local planning over the next 20 years or so. A boater met with one of the planning officers involved in drafting Wiltshire’s strategy, and a written response has gone to the public consultation on the BANES core strategy. This was done in response firstly to a proposal by Wiltshire’s Canal Officer that the Local Mooring Strategy should be written into its Core Strategy, and secondly because Bathampton and Claverton Parish Councils have responded to the BANES consultation with proposals that would have an adverse impact on liveaboard boaters.
Photo: Bob Naylor KAcanalTIMES.co.uk
Wiltshire’s Core Strategy will go out to consultation soon so there will be another opportunity to put our views. The BANES Core Strategy is more or less completed, subject to the results of the consultation (and we all know how one public body deals with consultation responses).
Bathampton and Claverton Parish Councils want the BANES strategy to include the following statement on planning policy:
“Management of the Kennet and Avon Canal is a significant BANES/Wiltshire cross-boundary G1 issue. The canal is a unique and important heritage feature; with a large section located within The City of Bath World Heritage Site and its landscape setting, including that part which is designated as Cotswolds Area of Outstanding Natural Beauty. As a founding member of the Kennet and Avon Canal Partnership, BANES recognises that, since the adoption of the 2000 Conservation Plan, there has been a significant increase in the number of boats using the western end of the canal and a step change in the recreational use of the waterside path and environs. It also accepts that a small section of the boating community will continue to choose to live on the canal. BANES accepts the MSSG Vision of the Kennet and Avon Canal and will play an active role in the re-energised Partnership Board to ensure that (a) British Waterways fulfils it statutory responsibilities for managing the canal and protecting the attractive waterside and landscape environs and (b) all canal users comply with planning policy and environmental health legislation.”
The MSSG Vision referred to is the Vision Statement drafted by the Valley Parishes Alliance (which includes Bathampton and Claverton) for the Local Mooring Strategy Steering Group and adopted as the vision for the mooring strategy, despite objections from the boaters on the steering group.
Below is the boaters’ submission to BANES. The meeting with Wiltshire covered the same issues. You can find the BANES draft strategy documents on the Council’s web site here:
Bath and NE Somerset Council Core Strategy Consultation Response
Briefing on the needs and rights of travelling boat dwellers, to be disseminated to the Spatial Planning Team to be used as part of the evidence base in the preparation of the Bath and NE Somerset Core Strategy and relevant Local Development Documents.
This briefing relates to the policy areas of Equality, Communities, Housing, Affordable Housing, Gypsies and Travellers, Planning and Tourism. I am a travelling boat dweller and a member of the British Waterways (BW) Local Mooring Strategy Steering Group for the Western Kennet and Avon canal. I am concerned that the rights and needs of boat dwellers have not been considered in the Core Strategy currently being drafted by Bath and NE Somerset Council and I wish the Core Strategy to address the issues I raise in this briefing. In addition I am concerned that both British Waterways and the Valley Parishes Alliance are lobbying to get policies included in the Core Strategy that would result in boat dwellers becoming homeless. I seek an assurance that this will not be allowed to happen, as there should be no policy that will result in people becoming homeless.
Housing and Homelessness
One of the most important things to understand from the outset is that people who live on boats have a home. This home is their boat. Understanding this is central to understanding the concerns that people living on boats have about the proposed changes to mooring policy on the Kennet and Avon canal (and other BW waterways). Liveaboard boaters are concerned that BW and the Valley Parishes Alliance want measures written into the Core Strategy that would make boat dwellers homeless.
There are three main types of boat dweller:
1.Those with a Permanent Mooring with residential planning permission. They may have a BW Houseboat Certificate, if they are on a BW mooring, which entitles them to limited security of tenure. Houseboat certificates are rare; there are only 83. There are very few residential moorings on the Kennet and Avon canal and as far as I know, no boats with Houseboat Certificates.
2.Those with a permanent mooring without residential planning permission (usually called a leisure mooring). These are on the line of the canal, or in marinas, boatyards, either private or BW; this includes end-of-garden moorings. Some people live on their boats and have leisure moorings but whether the mooring (as opposed to the boat) is used as their main home depends on how much time they spend cruising away from the mooring.
3.Those with no mooring. They are entitled to cruise the canal without a mooring, according to Section 17 (3) (c) ii of the 1995 British Waterways Act. They are not allowed to stay in one place for more than 14 days unless a longer stay is warranted by the circumstances – in practice this will be engine breakdown or illness. The law does not specify any particular cruising pattern, minimum distance or prohibition on returning to the same place. This probably represents the majority of those who live on the canal and river in the B&NES area. They may or may not travel outside the B&NES area.
Travelling boat dwellers are concerned about changes to mooring policy being imposed by British Waterways through the mechanism of the Local Mooring Strategy. The needs and rights of boaters are being ignored in the Local Mooring Strategy process despite the presence of a number of boaters on the Steering Group. The fundamental issue is that the change in mooring policies will result in many boat dwellers becoming homeless.
If the changes British Waterways are proposing are implemented this could result in an estimated 500 to 1000 people being made homeless along the entire Kennet & Avon Canal, a large proportion of whom currently reside within the B&NES area or have a local connection due to being employed within B&NES.
Travelling boat dwellers and the 2004 Housing Act
The Department for Communities and Local Government (DCLG) ruled in April 2009 that ‘bargee travellers’, that is, travelling boat dwellers without a permanent residential mooring, are covered by Section 225 of the Housing Act 2004 which defines who is a traveller. This is legally binding, in other words it places a statutory obligation on BW or a local authority.
I understand that B&NES is to include boat dwellers in its future Gypsy and Traveller Accommodation Assessments (GTAAs). There is currently no reliable figure for the exact number of boat dwellers. All policies drawn up by B&NES must therefore be consistent with Section 225 of the 2004 Housing Act and must not result in homelessness for travelling boat dwellers. The current needs of travelling boat dwellers in B&NES relation to Section 225 are that we need BW to adhere to the law and to drop unlawful enforcement activity and unlawful new rules proposed through the Local Mooring Strategy and we need the assistance of the local authority in ensuring that our legal rights to follow the cruising pattern of our choice, subject to the 14-day rule, are upheld.
The DCLG guide of May 2007, Local authorities and Gypsies and Travellers: a guide to responsibilities and powers states regarding Section 225 of the 2004 Housing Act that: “the system will work as follows: the Housing Act 2004 requires local authorities to assess the need for Gypsy and Traveller accommodation in their areas at the same time as they assess the housing requirements of the rest of the population. Local authorities must then develop a strategy which addresses the need arising from the accommodation assessment, through public or private provision… The duty to conduct accommodation assessments came into force on 2 January 2007… As elected members, local councillors have a duty to represent the interests of resident Gypsies and Travellers as well as the settled community.”
We believe this means that, at the very least, local authorities should be working with BW (and other navigation authorities such as the EA and Broads Authority) to ensure the adequate provision of 14-day moorings – the bargee traveller’s equivalent of a transit site – rather than acting with BW on local mooring strategy groups to reduce the amount of 14-day mooring space. It is in the councils’ interests to address our concerns, because reducing this mooring space will result in boaters becoming homeless and becoming a burden on council services whereas at present we are self sufficient.
The Human Rights Act
Through the Human Rights Act, Article 8 of the European Convention on Human Rights entitles everyone in the UK to respect for their home, family and private life. This includes the homes (ie the boats) of people who live on boats. Interference with one’s home is a violation of these rights and is viewed as a very serious matter by the European Court (see for example Kay and others v UK 2010). Local authority policies must comply with the Human Rights Act.
Ultra Vires enforcement by BW
BW is attempting to enforce (by threatening to terminate boat licences) a different interpretation of Section 17 (3) c ii through the ‘Mooring Guidance for Continuous Cruisers’. This guidance does not have any status in law. It attempts to define the requirement on boats without moorings to use the boat “bona fide for navigation” to fit the notion of “a progressive journey throughout the canal system”. It is beyond BW’s powers to enforce a “progressive journey”.
The sanction to enforce this rule (and others) is primarily the seizing of boats under Section 8 of the 1983 British Waterways Act, following termination of the boat licence by BW. This is different to the situation of a boater not buying a licence in the first place, as it is BW which ends the licence as a sanction rather than the boat owner not bothering or being unable to afford to buy one. Therefore without a licence residents are very likely not only to become homeless, but also to be deprived of the only asset that they own. This is clearly unjust.
The National Association of Boat Owners (NABO) obtained a Legal Opinion from senior barristers in 2009 which confirmed that enforcement of the Mooring Guidance for Continuous Cruisers (ie terminating a boat’s licence for not following the Guidance) by BW would be ultra vires.
Concerns about BW’s analysis of the 2009 consultation
BW drafted new policies and set up the Local Mooring Strategy Steering Group in response to its two parallel 2009 consultations on mooring policies. We have carried out our own analysis of the responses to the consultation on Moorings Policy for England and Wales (the national consultation) and the consultation on Developing Local Mooring Strategies. The responses to the national consultation show a majority opposed to local mooring strategies. Of 161 responses, 88 were against local mooring strategies, 48 in favour, and 25 either did not answer the question or were neither in favour nor against. The responses to the consultation on local mooring strategies (which was also a consultation on a national level) showed 73 out of 98 responses opposed to local mooring strategies. BW justified going ahead with the local mooring strategy by saying that many of the consultation responses were from groups and so these responses were treated as being from the total number of their membership rather than one response. I believe that this completely discredits the consultation process. BW did not make clear at any stage of the process that responses from groups would be treated differently to responses from individuals. There was no point delivering a letter about the consultation on local mooring strategies to every boat between Devizes and Bath when our responses were just going to be ignored.
Damian Kemp, the BW staff member heading the project to implement these proposals on the Kennet and Avon canal, inadvertently admitted in a User group meeting in April 2010 that there is a discrepancy. He told the meeting at one point that the consultation results from individuals were given less weight that those from groups, yet a few minutes later he contradicted himself by saying that the results were not weighted. In addition, BW’s report on the consultation analysis states in footnotes that some responses were counted more than once as people put themselves in more than one category, such as boat owner and canalside resident, but at the same time states that there was some duplication in responses from boaters and a number of identical responses were received.
We have not had adequate answers from BW as to why responses from groups were given more weight than those from individuals when the replies were analysed, since this was not made clear to anyone at the time of responding to the consultation. We think that BW decided to introduce this factor into the analysis once it became clear that a majority opposed local mooring strategies in both of the consultations. This is despite the fact that one major boating organisation, the RBOA, expressed opposition to the local mooring strategies in its response and NABO, the IWA and the RYA were all critical of the idea and only expressed qualified support for the proposal. A large number of responses pointed out that BW cold resolve any problems with mooring by actually enforcing the 14-day rule, something it has the legal power to do by virtue of the 1995 British Waterways Act. However BW has stated many times that enforcing the 14-day rule does not generate income.
Changes in mooring policy proposed by BW through the Local Mooring Strategy
The new policies proposed by BW are designed to implement changes which are inconsistent with the 1995 Act, for example charging for overstaying, non-return policy and no renewal of the annual boat licence unless any overstaying charges are paid to BW. The sanctions for non-compliance in any of these new policy areas is ultimately the removal of the licence, which in turn could lead to a seizure of the boat and result in homelessness.
The non-return policy and the other changes such as reducing the amount of 14-day mooring space proposed by BW means that boat dwellers without moorings will be compelled to travel much further than the 1995 British Waterways Act requires of them. This ignores the fact that many residents have jobs and many children are enrolled in local schools. The non-return policy and possible reduction in 14-day mooring space will present travelling boat dwellers with an impossible choice between the threat of losing their boat licence and therefore their home, and staying in employment or maintaining their children’s education.
We are concerned that the true agenda of BW is to force boats without moorings to pay more or to pressurise them into taking moorings or leaving the waterways, and that the proposed policy changes are primarily about achieving this, rather than solving a genuine problem. BW has publicly stated that the western Kennet and Avon canal is a “problem area” but we believe this means in practice that BW objects to the presence of liveaboard boaters without moorings who are exercising their legal right to navigate within the parameters of Section 17 (3) c ii of the 1995 British Waterways Act.
The 1991 House of Lords Special Report on the Waterways Bill
When it drafted the 1995 British Waterways Act, Parliament specifically rejected the idea of forcing boats without moorings to be on a “progressive journey”. Additionally, in 1997 BW issued a policy document stating that residency on boats was not a problem for BW.
The House of Lords Special Report from the Select Committee on the British Waterways Bill dated 6 June 1991 states on page 15 in Appendix II (Amendments Agreed by the Committee):
Page 8, line 30, after “(a)” insert “the applicant for the relevant consent satisfies the Board that”.
Page 8, line 34, delete paragraph ( c) and insert:
“( c) either-
i) the Board are satisfied that a suitable permanent mooring or other place where the vessel can lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or
ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining in any one place for more than 14 days in any calendar year” (my italics).
The 1995 British Waterways Act became law after a further round of amendments between 6 June 1991 and 16 January 1995 when the Act was passed. Section 17 (3) ( c) (ii) of the Act states:
ii)the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances”.
This shows that the intention of Parliament was not to force boats without moorings to cruise long distances, unable to return to their starting point until a year had elapsed, as they would have had to if Section 13 had been passed in the final Act. Section 17 (3) (c) (ii) of the 1995 Act does not say anything about not being able to come back to a place within one calendar year. This demonstrates that the intention of Parliament was therefore to allow boats to follow a cruising pattern of their own choice as long as they did not spend more than 14 days in one place; the requirement not to return within one calendar year, which would have statutorily enforced a “progressive journey” if it had been passed, was dropped. The rider “or such longer period as is reasonable in the circumstances” further reinforces the point that the intention of Parliament in passing the 1995 Act was to allow boat owners to follow a cruising pattern of their choice, appropriate to their individual circumstances.
This supports my view that reason for the existence of Secion 17 (3) ( c) (ii) was to prevent the estimated 5-10,000 people living on boats without residential moorings from being made statutorily homeless. It also supports my view that there is no requirement in law for a boat without a mooring to be on a progressive journey. Therefore, British Waterways desire to enforce the Mooring Guidance for Continuous Cruisers and to implement the new policies drafted in 2010 is contrary to the 1995 British Waterways Act. All that would achieve will be to make people homeless.
Costs to the local authority
Any increase in homelessness caused by the change in mooring policies will place increased pressure on social housing and other associated welfare benefits, particularly housing benefit. It could also lead to an increase in claims for jobseekers’ allowance for those who remain on their boats but comply with mooring rules that take them too far away from their workplace to be able to travel to work. The local authority should realise the potential financial implications of the proposals and unlawful enforcement by BW, as well as social and economic costs.
The planning inspector’s decision in the Ladies Bridge appeal (APP/E3905/C/06/2019638) confirmed that planning permission is not required for the permanent mooring of boats which are not lived on. This appeal decision also confirmed that the temporary mooring of boats in the course of navigation, including boats without moorings that are lived on, is intrinsic to the planning use of the canal and in planning terms is not classed as development.
Statutory Instrument (SI) 418b (Permitted Development Rights) confirms that the mooring of boats along a canal is not regarded as development except where a mooring is created for permanent residential use.
The Kennet and Avon Conservation Plan 1995 (updated 2000) did not set a capacity limiting the number of boats on the canal although it did project an increase in boats on the canal from 1600 in 1995 to 2400 in 2005. Mark Stephens, the Manager of the Kennet and Avon canal confirmed in November 2010 that the number of boats on the canal is around 2000: significantly less than the projected increase.
Travelling boat dwellers are not liable to pay council tax as a boat is a chattel in law not domestic property, and council tax is only levied on domestic property. Council Tax cannot be levied on a boat alone. Boaters receive water, sewerage and refuse disposal from BW through the payment of the boat licence fee and do not use local authority water, sewerage or rubbish disposal. Payment of Council Tax is not required in order to access local services or education, and an informal survey by a boater showed that most boaters without moorings were unable to use or did not need about 80% of local authority services. Council Tax is only payable on moorings, and only when the mooring is a permanent residence. BW has misrepresented the situation in its 2010 mooring policy documents by claiming that travelling boat dwellers should be paying Council Tax.
Equality issues and prejudice
Many instances of prejudice against travelling boat dwellers have been endorsed by BW or by parish and county councillors. For instance the minutes of a meeting in June 2009 between BW, B&NES Cllr Ian Dewey and parish councillors made many references to “illegal liveaboards” despite the fact that most boat dwellers do obey the 1995 British Waterways Act. Another example is a question and answer session in Bathampton in August 2009 where a local resident expressed objection to boaters’ children attending local schools and the reply from BW supported this attitude. BW’s misrepresentation of the Council Tax situation is also exacerbating prejudice against us. Local authorities are bound by the 2010 Equality Act to ensure that minority groups such as travelling boat dwellers are not subject to prejudice or discrimination.
Increase in hire boat numbers
The number of hire-boats has increased from 36 (2003) to at least 84 (2011). This increase has not been matched by increasing the number of visitor moorings (24/48/72 hours limit with a hard edge, deep water and rings to tie ropes to which are easy for inexperienced boaters to use), which is where people on hire boat holidays wish to moor, therefore it is not surprising that they complain to the hire company of lack of mooring space. The hire boat companies blame this problem on travelling boat dwellers rather than accepting that it is the result of the increase in hire-boats. Generally, liveaboard boaters do not use visitor moorings, preferring to use unrestricted ie. 14-day mooring space.
The immediate priorities and demands of travelling boat dwellers.
1.That British Waterways enforce the 14-day rule, which is a clearly set out in law, fairly and consistently, which it has not done to date, thus failing to address with its statutory powers any perceived problems of mooring congestion. Currently BW is not effectively enforcing the 14 day rule.
2.That the current policy changes and local mooring strategy be dropped.
3.That there is no reduction in 14 day mooring space.
4.There is a need for additional facilities to be provided on the Kennet and Avon canal including sewage and waste disposal and water .Such facilities are provided by BW through the licence fee but need to be more widespread. In particular, within B&NES, a sewage disposal point should be provided at the Bath lock flight.
5.There is a need for extra facilities such as showers and launderettes. Such facilities are provided on other BW waterways but not on the Kennet and Avon.
6.The Core Strategy should not result in any decrease in the rights of boat dwellers .
7.The Core Strategy should comply with Article.8 of the Human Rights Act with regard to travelling boat dwellers and recognise that the “progressive journey approach” is contrary to this.
8.The Core Strategy should be compliant with the 2010 Equalities Act and deliver the obligations identified in S.255 of the Housing Act 2004 with regard to travelling boat dwellers.
9. BW should improve the maintenance of the canal by dealing with overgrown areas and increase the dredging of the canal to enable more boats to moor. This will and provide more space along previously unused parts of the canal rather than the same busy locations.