BW recently released a draft summary of the Local Mooring Strategy proposals to the Steering Group and the representatives of unaffiliated boaters on the Group responded to these draft proposals this week. BW has asked for responses from Steering Group members prior to putting the finalised proposals out to consultation. Watch out for boaters’ meetings soon to make sure you have your say about it. BW’s summary of the proposals and the unaffiliated boaters’ response is below. These documents are in reverse order. You can download both of them or read them below.
Unaffiliated boaters response to summary of proposals
Summary_of_proposals_from_MSSG_members_FINAL
Unaffiliated boaters’ response to Summary of Proposals
1 More frequent BW bankside presence
There is more than enough surveillance of boats without home moorings by BW – the data checkers record our boat locations every week. We do not support a move to an even greater level of surveillance of our homes and our lives. Such a high level of surveillance would be a breach of our rights to privacy under Article 8 of the European Convention on Human Rights. Checking Visitor moorings should be quite frequent but 14-day moorings are already checked enough. We are concerned that boat locations were recorded by the data checker on 8 February even though the canal was frozen and there was no possibility of boats moving to a different place. In addition, we are concerned that a responsible employer should not be sending staff out on bicycles in icy conditions when the wind chill factor is -10 degrees.
1 B
Not all licence terms and conditions are lawful and therefore not all are enforceable. Only those with enforcement powers in the legislation are enforceable.
It is up to BW to enquire into the reasonableness of a longer stay, not for BW to tell boaters that they have overstayed. Boaters should be advised that it is a matter of courtesy to inform BW, not a legal requirement.
1 C
See our response to 2
1H
It is not lawful to specify the circumstances in which a longer stay is or is not reasonable. Section 17 3 c ii of the 1995 British Waterways Act does not specify any circumstances, only that the longer stay should be reasonable. There is no such thing as a full list of circumstances under which Cruising Waiver notices should be issued; the provision in the Act is discretionary which means it should be applied on a case-by-case basis.
2 Clearly designate and communicate “places”
This is unlawful as it is beyond the scope of section 17 3 c ii because “place” is not defined in the Act. In addition, any list of places that excludes identifiable places that exist consequently puts boaters at risk of having their boat licence terminated and so losing their homes; this would be arbitrary, unreasonable and unjust as well as being unlawful. We do not support any rigid definition of “places”.
3 Change style of communication/interaction from enforcement to supportive/informative (only reverting to enforcement as a last resort)
The aim of this is stated as being “so that the [boating community] can better understand the movement requirements”. This is highly misleading as some of the movement requirements stated by BW are beyond what is required by Section 17 3 c ii of the 1995 British Waterways Act. Communication will never be either supportive or informative if it involves misleading boaters about what boat movement is required of them and what BW’s legal powers are. Misleading boaters in this way can only worsen the relationship between BW and its customers. We understand the requirement – we have to travel to a different place after 14 days unless it is reasonable to stay longer. It is BW that lacks an understanding of the 1995 Act.
3 C
See our response to 1H
4 Implement a process to issue displayable ‘Cruising Waiver Notices’
See our response to 3C and 1H. It is not up to BW to give permission for a longer stay, it is up to the boater to justify the reasonableness of a longer stay. We support the idea of the boater generating their own pre-formatted cruising waiver notice. There is no need to inform BW that they have done so; in any case, once the notice is visible on the boat the situation is self-evident.
5. Consistently and fairly levy ‘overstay’ charges…
Overstay charges were neither proposed in any meaningful detail nor agreed by the Local Mooring Strategy Steering Group. In fact on 28 January 2011 Damian Kemp told the Steering Group that overstay charges would not be levied on 14-day moorings. In any case BW does not have the power to either enforce mooring time limits of less than 14 days or to levy charges for overstaying, regardless of whether they are referred to as charges, penalty fees or fines. There is nothing in the legislation that permits BW to levy such charges and this is proven by the fact that BW is still seeking powers to enforce mooring time limits in articles 51 and 52 of its proposed draft byelaws dated February 2010.
It is unlawful for BW to withhold the renewal of a boat licence for the non-payment of any other debt to BW. Section 17 (3) (a to c) of the 1995 British Waterways Act specifies the reasons why BW may refuse to license a boat and the non-payment of a debt is not one of these reasons.
6. Mitigate impacts during a transitional strategy implementation phase…
This implies that the Local Mooring Strategy proposals will have an adverse impact on boat dwellers such as homelessness following enforcement action by BW; forcing us to give up our homes for fear of enforcement action or forcing us to choose between keeping their homes and other essentials that we can normally expect in a civilised society such as having a job or sending our children to school. We do not and cannot support any action by BW that has the potential for any of these adverse impacts on us. In addition we see any strategy which is aimed at reducing the numbers of boat dwellers without home moorings in any area as arbitrary, unjust and unfair. This also begs the question of what will happen to the boat dwellers who are still living on the K&A after 2 years. Will BW forcibly evict them?
The law allows us to live on our boats within a relatively small area. A roving mooring permit or anything similar that expects us to purchase a permit to do what the law already allows us to do would not be lawful and would in effect amount to BW demanding money with menaces.
Enabling us to “remain in the area while searching for a residential mooring” is a nonsense because the law does not prohibit us from remaining in an area. “Searching for a residential mooring” is in itself a fantasy because of the absence of residential moorings on the K&A and the excess of demand over supply nationally.
General
We would support the introduction of a voluntary code of conduct incorporating some of these measures that boaters can sign up to.
BW’s Summary of proposals, submitted by members of the Mooring Strategy Steering Group, for managing moorings on the Western end of the Kennet & Avon Canal (Bath to Devizes)
Introduction
The following proposal (and separate series of 21 mooring zones maps) is a composite picture of the views and suggestions of the Mooring Strategy Steering Group. The membership comprised:
British Waterways
Valley Parish Alliance
Inland Waterways Association
Association of Pleasure Craft Operators
National Association of Boat Owners
Unaffiliated Boaters (representing live-aboard boaters on the Western K&A)
Residential Boat Owners Association
Association of Waterway Cruising Clubs
Wiltshire County Council
National Bargee Travellers Association
Kennet & Avon Canal Trust
Not every member formally submitted a contribution to each distinct part of the proposals but general views across all topics were given by all members during the course of meetings. This summary is not designed to assign opinions to individuals but should be seen as reflecting the broad range of views held within the group. Therefore, when reading, it should not be assumed that all members endorse every aspect of this proposal.
Strategy development process
It was BW’s initial intention to ask group members to agree Terms of Reference and then disperse to work with the stakeholders they represented to formulate a strategy that reflected their ‘ideal outcome’. BW then intended to draft, and publicly consult on, a strategy based on common aspirations within the submitted proposals. At the inaugural meeting BW was informed by the whole group that this was not their preferred method and, moreover, there should be a series of roundtable meetings chaired by Sally Ash (Head of Boating Business) to agree the strategy. BW agreed to this request and a series of monthly meetings began. In total, eight meetings lasting an average of three hours were conducted. Outside of the meetings, group members also conducted a ‘towpath survey’ to assess and gather information for proposing mooring zones. In June 2011, Damian Kemp (Project Officer), then Chair of the group, suffered a lengthy illness which unfortunately stalled the work for some three months. The final meeting of the group was held in October 2011 and a request was made for any outstanding submissions to be sent in by the end of November. During December and early January 2012 all submissions were considered and the decision was made to create two documents – this one, summarising the proposals received from group members, and a response paper, setting out BW’s recommended way forward.
Common themes – summary
Seven common themes were proposed by more than one stakeholder group. Details of each of these are given in the following section. In summary the themes are:
1. More frequent BW bankside presence – especially for visitor moorings with shorter stay-times. The title ‘Lengthsman’ was used by many to describe this increased presence but the proposals detail a wider scope than that traditionally associated with this title.
2. Clearly designate and communicate ‘places’
3. Change the style of communication/interaction from enforcement to supportive/informative (only reverting to enforcement tone as a last resort)
4. Implement a process to issue displayable ‘Cruising Waiver Notices’ where BW agrees to permit a boater to stay on one mooring for more than 14 days because of exceptional circumstances.
5. Consistently and fairly levy ‘overstay’ charges on boaters who stay for more than 14 days in a neighbourhood or exceed the signed (or default 14 Day) mooring time limit without prior agreement with BW.
6. Mitigate impacts during a transitional strategy implementation phase for those already living aboard their boat enabling them to remain in the area while searching for a residential mooring
7. Work with local authorities to create residential moorings (or adapt existing offline moorings)
Common themes – detail
1. More frequent BW bankside presence
The most widely suggested proposal was for a greater BW bankside presence. Most groups used the ‘Lengthsman’ title as shorthand for this proposal but also suggested that the role be broader than that usually associated with Lengthsman. For clarity, and for the rest of this document, this new role will be referred to as Towpath Rangers (TR’s). A TR should be assigned a specific stretch of canal which they would get to know intimately along with local users. They would report in to the K&A Waterway Supervisor but retain a functional link to the central enforcement team. The range of suggested duties are:
A. Create a co-operative relationship between BW and all waterway users using a fair and consistent approach.
B. Use informative, non-threatening communication (face-to-face, letters, notice boards, SMS texts, emails) to let boaters know if they’ve overstayed or if they’ve breached any other term or condition of their licence. More generally try to work to resolve whatever problem has occurred – including helping boaters move their boat.
C. Ensure that all water and towpath users on his/her patch are aware of their responsibilities (including ensuring that all boaters understand what is defined as a ‘place’ for the purposes of the Guidance for boats without a home mooring and what this means for them).
D. Manage information boards (including a section where boaters in need of help can post requests)
E. Record sightings of boats
F. Report maintenance and operational issues to K&A maintenance team.
G. Preferably daily circuits of all mooring sites but at the very least visit mooring sites on a frequency proportionate to its stay-time (for example, 24 hour mooring sites should be visited daily, 72 hour sites at least every three days and 14 day sites at least fortnightly).
H. Issue ‘Cruising Waiver Notices (CWN)’. A CWN to be issued to a boater in exceptional circumstances where they are unable to move their boat (such as mechanical breakdown). The full list of circumstances under which they can be issued to be clearly communicated to all boaters (possibly including the situation detailed in the next bullet point). The CWN will be dated with an ‘expected to move on or around the Xth of XX’ and must be clearly displayed in a window of the boat facing the towpath.
I. During ‘peak season’, manage demand at popular visitor moorings. One suggestion was that the TR could liaise with boaters without a home mooring to request that they avoid high-demand visitor moorings during peak season.
It should be noted that no proposals were made for the TR to be responsible for collecting ‘overstay’charges.
2. Clearly designate and communicate ‘places’
There was a huge difference in opinion in what should be considered a ‘place’ on the Western stretch of the K&A. Some representatives suggested that the strategy area should be divided into three neighbourhoods while others proposed as many as 18. There was, however, agreement that ‘places’ should be clearly, and physically, demarcated as well as being broadly communicated. It was proposed that it be a vital part of a TR’s role to ensure that every boater in the area understood what the ‘places’ were on the Western K&A. They would issue hard copy maps depicting the ‘places’ every time a boater new to the area entered his or her patch. The maps would also be available to download, posted on notice boards and available from local
outlets (such as marinas or boatyards). Another suggestion is that, alongside the actual depiction of the ‘places’, there would be a clear, non-threatening, explanation of what is expected, in terms of movement, from the boater. In a more informal way, boats that have been recorded as overstaying would be reminded of their cruising responsibilities and, if necessary, issued with another map. The proposals for dealing with overstaying are covered in more detail in section 4. Although not a ‘place’ there were also calls for better signage at all short term mooring sites.
3. Change style of communication/interaction from enforcement to supportive/informative (only reverting to enforcement tone as a last resort)
The current enforcement function is seen as adversarial from the outset and jumping too quickly into the enforcement process. There was almost unanimous agreement that, in a minority of cases, there may come a time (such as repeated breaches of licence terms and conditions) when this firmer
tone of communication is needed. It was felt that TR’s should undertake some training in communication and customer service. Ultimately it was suggested that a big part of the TR’s job is to form stronger, more supportive, relationships with the boating community so that they better understand the movement requirements and, in turn, prevent most, if not all, from entering the formal enforcement process or incurring overstay charges. There was some agreement that a clear distinction should exist between TR’s and the enforcement process, with patrol notices still being raised and actioned by Enforcement Officers. There was support for communications materials that:
A. Explain, in a non-threatening way, what constitutes good and bad boating behaviour.
B. Unequivocally list what actions (or series of actions) trigger the enforcement process and what the potential ramifications are.
C. Described when, and who, to ask for a ‘Cruising Waiver Notice’ (inc. ice/bad weather).
D. Explained the message of “more happy hire boaters = more repeat business for hire companies = more revenue for BW = more maintenance budget = more 14 days mooring space”
The general view was that the role of the TR should not be limited to resolving boat-related problems. The remit should include education of all waterway users to encourage greater harmony based on some form of Code of Conduct. This code could also be included with licence discs and listed on Ramblers, Angling and Sustrans websites (and BW’s).
4. Implement a process to issue displayable ‘Cruising Waiver Notices’ where BW has agreed to an extended stay for exceptional reasons. As mentioned in 1.H and 3.C, most representatives in the strategy group support a process of visibly displayed notices that inform other waterway users of a boats’ permission to stay longer than is usually permitted at a mooring site. The term ‘Cruising Waiver Notice (CWN)’ is used here. The majority view was that, in exceptional circumstances (such as illness and mechanical breakdown), the boater would request a CWN from BW and, if issued, the notice would be displayed with reason and expected departure date stated. The possession of a valid CWN would temporarily exempt the boat in question from any enforcement processes associated with non-movement. There are varying views on when and how this should be done – some suggested that it’s at the
boaters’ discretion to decide if they have a reasonable cause to stay longer than 14 days. In this instance the boater would generate their own, pre-formatted, CWN and inform the local TR that they have done so (and the reason for the extended stay).
5. Consistently and fairly levy ‘overstay’ charges on boaters who stay for more than 14 days in a neighbourhood or exceed the signed (or default 14 Day) mooring time limit without prior agreement with BW. Up to this point the proposal has detailed constructive ways in which a proposed TR would help
boaters comply with local rules. Most, if not all, members believe that it’s only a small minority of boaters that will not respect mooring time limits – regardless of how much effort is put into education and support. Therefore some representatives suggested a process for dealing with overstaying, and charging overstay fees. A flowchart on the following page broadly outlines this process and is a composite of proposals made by representatives.
FLOWCHART:
Boat is sighted longer than the permitted stay time
on a particular mooring or for more than 14 days in
any one neighbourhood.
Does the boat have a valid Cruising Waiver
Notice?
No
No immediate
action required
Yes
TR issues advice note*1 and
ask if there is a reason for
non-movement. Offer to
help move boat or post a
‘help wanted’ notice in
local notice boards.
Dispense Cruising Waiver
Notice if necessary.
Is this the 1st, 2nd or 3rd time that the boat has
overstayed (in strategy area) in the last 12 months?
Yes
No
Inform boater that, as advised on previous 3 occasions, they are now incurring overstay charges* 2. A ‘How to pay, and prevent further, overstay charges’ leaflet issued to boater (inc. amount currently outstanding)
*1. The advice note would explain, in a non-threatening and clear way, what movement is expected and what to do if you are unable to move your boat. It would also explain why it is necessary and what the ramifications of non-movement are.
*2. TR’s would not be responsible for collecting monies. This would be done centrally by BW’s administrative support team.
Additional suggestions
Cold weather – During particularly cold weather, when surface ice forms on the canal, boats will not be expected to move and will be exempt from overstay charges. Licenses to be withheld if there is non-payment of overstay charges.
Pricing
The following premise for pricing is taken almost exclusively from the submissions of the IWA and the K&ACT. The maxim adopted in Construction disputes is that for charges to be enforceable they have to be seen to represent a loss for which a reasoned calculation can be provided. If this criteria is not met and a figure in excess of such calculated figure is used then this is deemed to be “Penal” and in consequence not enforceable. This criteria is used when calculating suggested overstay charges. If the average cost of a permanent towpath mooring were, for an average length boat, £2,000.00 per year then the marginally rounded up daily charge would be £5.50. Short term mooring charges are always notionally more expensive than those for a year committed to and paid for in advance thus a notional 10% increase would give, in round figures, a daily charge of say £6.00. The cost of administering is difficult but unlikely to be less than 25%. The result is that the daily charge would be £7.50. By way of justification the EA on the River Thames charge this for an overnight stop on their Lock Landings. The £7.50 daily overstay charge would be based on the charge being paid within 30 days of the date when it was notified. If the charge was not settled within this period, and possibly not until the next
License renewal application was made, then to cover additional administration costs a further surcharge would be imposed raising the daily overstay rate to £10.00.
6. Mitigate impacts during a transitional strategy implementation phase for those already living aboard their boat enabling them remain in the area while searching for a residential mooring.
It was broadly accepted that some boaters without a Home Mooring have immutable land-ties in the strategy area. It is also accepted that it would be unfair to expect them to simply ‘move on’ when the strategy is implemented. Therefore a transitional period of 2 years has been proposed, although support from the entire group is not likely. To achieve this, the mechanism most commonly proposed was that of something akin to a Roving Mooring Permit (RMP). The basic premise is that those with strong land-ties, e.g. children attend local schools, would be able to purchase a permit that entitled them to stay within a relatively small area with the proviso that they continued to move every 14 days. The specifics of what constitutes a small area are not proposed and the only suggested fee for this permit is £500.
7. Work with local authorities to create residential moorings (or adapt existing offlinemoorings)
The dearth of residential moorings on the Western end of the K&A was considered a contributing factor to recent issues. While there was little enthusiasm within the group to commit to establish more residential moorings (due to the incredibly long lead time), some members have acknowledged in their proposals that BW should be engaging with the local authorities to this end.
DK 01/02/2012
Tags: 14 day rule, continuous cruising, Damian Kemp, liveaboards, Local Mooring Strategy, Section 17, Waterways Act 1995