We have just sent BW the message below in response to its draft policies for mooring along the banks of BW waterways.
The rationale behind the policies on short-term towpath mooring is to force boaters without moorings to pay more. BW makes this clear in its response to proposals by BWAF on revenue generation dated August 2010. In response to BWAF’s proposal for “Continuous Cruisers to pay more”, BW replied “The new approach to local mooring strategies is the beginning of this process. It is a top priority to develop this and the involvement of user groups including those represented on BWAF is vital”.
The fact that most of the proposed changes are not included in the local mooring strategy but in the national policies means that the local strategy will not be local but imposed from above. If implemented, the new policies affecting liveaboard boaters without moorings will result in large-scale homelessness.
Long Term Moorings:
Under Strategic Aims, add: Work with local authorities to lobby the DCLG to change the Planning Use Class of residential boat moorings.
2 (v) and 3. The radius for reducing online moorings must take into account the number of locks as well as linear distance. Replacing online moorings with marina moorings is not replacing like for like. Some boat owners will not choose to moor in a marina, some will not be able to afford the increased costs, and some will not be accepted by the marina even if they can afford the mooring.
Short-term towpath mooring:
a) This should be re-worded as “..to meet the needs of cruising boaters, holiday makers and liveaboard boaters”
b) The only type of “unauthorised mooring” on the towpath is that not authorised by the 1995 British Waterways Act, ie in excess of 14 days by a boat without a home mooring, where it is not reasonable to stay longer in the circumstances.
c) The involvement of local communities must not have a disproportionate adverse impact on the lives of people who live on boats without a home mooring. Otherwise it is a charter for prejudice. “Local communities” should include the boating community.
13.2 Enforcement must be within the powers granted to BW by the 1995 British Waterways Act. Terms and Conditions which are outside the powers granted by the Act are not enforceable.
13.3 Local authorities would be acting ultra vires in a joint working arrangement with BW regarding enforcement; they do not have the legal powers to carry out enforcement on BW waterways. The legal implications for volunteer rangers are considerable. In the event that a court action (to remove and seize a boat) resulted from the reports by a volunteer ranger, he/she would be subject to subpoena by the court to verify the sightings made and would be open to cross examination as to his/her character and his/her motivation in becoming a volunteer ranger.
14. Many of the proposed policies in this section would have a disproportionate adverse impact on the lives of liveaboard boaters without moorings if they were implemented, and so would not comply with Schedule 1A of the Race Relations Act 1976 as amended in 2000, with the Equality Act 2010 or with the Human Rights Act 1998.
BW does not have the power to levy fines. Calling it an overstaying charge does not mean it is not a fine. Charges for staying longer than 14 days are outside the powers granted to BW by the 1995 Act, which entitles boats without moorings to stay for 14 days “or such longer period as is reasonable in the circumstances”. The Act does not provide for a charging regime for staying longer periods. The 14-day rule does not apply to boats with moorings.
14.3 The imposition of designated no-mooring stretches for reasons other than safety, and restrictions on return frequency, are ultra vires the 1995 British Waterways Act. The Act does not specify a particular cruising pattern as long as boats without moorings do not remain in any one place for longer than 14 days. A proposed restriction on return frequency was dropped when the Act was drafted; the intention of Parliament was that there should be no restrictions on return frequency. BW does not have the power to enforce this.
14.7 Requiring payment of outstanding charges for overstaying before a licence is renewed is unlawful. The 1995 British Waterways Act specifies the circumstances in which a licence application may be refused, and these do not include the payment of other debts owed to BW. Any debts of this nature should be recovered through the Small Claims Court as a separate matter.
15, 15.1 and 15.2 These proposals amount to an invitation for local settled communities to persecute liveaboard boaters without moorings. They are driven by prejudice.
15.3 (a) The boating community will not support any reduction in the amount of 14-day mooring space on the towpath.
15.3 (b) Defining what is a ‘neighbourhood’ on the K&A so that BW can define how far a boat without a mooring should move to comply with the Mooring Guidance for Continuous Cruisers is ultra vires. The 1995 British Waterways Act does not specify any particular cruising pattern or minimum distance and BW does not have the power to enforce cruising patterns.
15.4 If it is the case that there is mooring congestion, and we do not accept that there is, then BW should carry out dredging, maintenance and vegetation cutting to bring more of the waterway into use for mooring that is currently not possible to moor on due to shallow edges, underwater obstructions or overhanging vegetation. BW should remember that a busy canal is a successful canal earning revenue from a range of different boat licence types and associated activity.
16.1 (c ) This does not recognise the needs of people who live on their boats and do not have moorings who need to stay in the same place for 14 days. This is a legitimate reason for a boat to stop in a particular place. Excluding this reason implies that BW wishes to exclude liveaboard boaters without moorings from its waterways.
17. The 1995 British Waterways Act entitles boats without moorings to do what the proposed Transient Mooring Permit would allow.
17.1 The use of the term “unauthorised long term mooring” is both offensive and inaccurate. The only such thing in the context of short-term mooring on the towpath is mooring by boats without home moorings for longer than 14 days in any one place without good reason to stay longer.
17.2 Council tax can only be levied on domestic property. It cannot be levied on a boat, only on a permanent mooring that has planning permission for residential use.
17.5 “Reasonable movement rules in the summer” is ultra vires the 1995 British Waterways Act for the reasons stated above.
17.6 Berths for licensed roving trading boats: all trading boats are different and have different needs regarding where to moor to attract customers. Prescriptive rules about where roving trading boats can moor could adversely affect the business of some while unfairly favouring others. This could be open to challenge under BW’s own fair trading policies.
Explanatory notes to policies:
1. Overview of BW’s Statutory Framework. BW is also bound by the Race Relations Act 1976 as amended in 2000, the Equality Act 2010 and the Human Rights Act 1998. BW does not have the power to revoke licences when boaters breach terms and conditions that are in excess of what is required by the law, in this case the 1995 British Waterways Act.
2.3 General principles underlying boating and mooring policies. Fostering shared responsibility amongst local communities means, in practice, inviting and encouraging prejudice towards liveaboard boaters.
3.1 The policy of reducing online moorings is driven by pressure from the commercial sector, that is, private marinas. It is not a policy that has been developed in response to a genuine need or problem.
3.2 The AINA document ‘Residential Use of Waterways’ has not been published. BW, as the dominant and largest member of AINA, has blocked it by not endorsing it, despite promises in the consultation document of November 2009.
3.3 The 1995 British Waterways Act does not prohibit boats without home moorings settling in a small area. The dropping of the restriction on return frequency proposed in 1991 was dropped when the Act was finalised; the intention of Parliament was that there should be no restrictions on return frequency and that boats without moorings were not prevented from following a cruising pattern that suited their particular circumstances. Paying Council tax is not a pre-requisite for accessing local services and it is irresponsible of BW to encourage this opinion as it is based on inaccurate information and prejudice. Similarly, BW must distinguish between perceived unfairness and actual unfairness. Those boaters who pay for moorings get benefits that those without moorings do not. Most of what is stated in this section is pure prejudice and a public body such as BW should not encourage such harmful attitudes. It should be BW’s responsibility to dispel such prejudiced perceptions, not to encourage them.
5.3 The 1995 British Waterways Act does not give BW powers to set local movement requirements for boats without home moorings or to enforce a “progressive journey”.
5.4 Bargee travellers do not expect BW to be a housing authority. This is a wilful misunderstanding of Section 225 of the Housing Act 2004. We already have homes. Local authorities are required to assess and make provision to meet the needs of travellers under Section 225 and this includes travelling boat dwellers. In our case this means acting to prevent BW from carrying out unlawful enforcement that would result in travelling boat dwellers having their licences terminated and their homes seized by BW.
Mooring consultations report.
The splitting of responses into individual and group responses and the weighting of responses in favour of those by groups on the grounds that they represented more people was not made clear at any stage of the consultation process. For BW to claim that the consultation responses endorse its proposals is to completely misrepresent the nature of the responses. We believe that BW decided to introduce this method of weighting into the analysis once it became clear that a majority opposed the majority of BW’s proposals in both of the consultations. To dismiss responses on the grounds that they were verbatim copies of other responses, and to count twice responses from other individuals who fall into the categories of boater, canalside resident and/or representative of an organisation is completely dishonest.
See our August 31st article BW say policy changes won’t be up for discussion in Local Mooring Strategy for BW’s draft policy documents.