On 25 October 2012, the same day that the K and A Local Waterway Partnership held its first moorings sub-group meeting to review the local mooring strategy proposals, CRT published plans to continue eroding the rights of CRT licence holders to use the waterways without a home mooring under Section 17 3 c ii of the 1995 British Waterways Act. The briefing paper was produced for the CRT Council meeting on 27 September 2012. CRT Council, which contains a minority of boater representatives most of whom have connections with the IWA, endorsed the plan. We reproduce the briefing below with our comments marked in bold.
COUNCIL MEETING – 27 SEPTEMBER 2012
Briefing Paper – NON COMPLIANT CONTINUOUS CRUISING
2. Licensing & moorings policy regulations – overview
3. Generic solutions
4. Current local projects
APPENDIX A – A SHORT CHRONOLOGY OF PAST CONSULTATION 2002 – 2012
APPENDIX B – LEGAL BACKGROUND – MORE CONTEXT
APPENDIX C – THE ENFORCEMENT PROCESS
APPENDIX D – HOTSPOT MAP OF PRIORITY NCCCs
This paper provides a briefing on our current policies for achieving fair sharing of increasingly scarce mooring space along the towpaths in ‘hotspot’ locations around the waterways. The British Waterways Act 1995 enables those using their boat ‘bona fide’ for navigation and not staying in a ‘place’ for more than 14 days to avoid the obligation to secure a home mooring – somewhere where the boat may lawfully be kept when not being used for cruising.
The British Waterways Act 1995 doesn’t enable people to avoid an obligation to have a home mooring, it is a simple either/or choice – either licence your boat under s.17 3 c i or 17 3 c ii. To present it as enabling people to avoid an obligation to have a home mooring misrepresents it and makes it look like not having a mooring is a loophole in the law when it is a clear entitlement on an equal footing with having a mooring. The time limit in the 1995 Act is 14 continuous days, not 14 days.
Since the passing of the legislation, the number of boat owners taking advantage of this provision grew steadily and has accelerated markedly since 2007.
Again, the use of the term ‘taking advantage’ conveys the false impression that s.17 3 c ii is a loophole in the law, when it is a clear legal entitlement.
One consequence is the emergence of informal residential boating communities along certain stretches of our towpaths in urban areas of the south and east, largely in response to the housing shortage.
There is nothing wrong with communities of residential boaters without home moorings, as long as individual boaters comply with the law, which the majority of us do.
We have put in place guidance for boaters without home moorings which make clear our interpretation of the legislation, but achieving satisfactory compliance with it is a goal that has persistently eluded us. The legal process is sound but extremely slow and costly.
Achieving compliance with unlawful guidance will always be a goal that is difficult to achieve because people will not comply with something that goes beyond what the law requires. However, the vast majority of boaters without home moorings comply with the law. CRT’s Guidance is unlawful because the test for compliance with s.17 3 c ii that was intended by Parliament is simply whether the boat has remained more than 14 continuous days in a place without a longer stay being reasonable in the circumstances. However CRT is applying a different test that involves assessing the distance boats travel and how often they return to places, even if their stays are not longer than 14 continuous days.
The problem has grown up over 15 years so that we now have substantial clusters of long term residents along some towpaths comprising people whose fundamental life style would be threatened by any change in our policies to tighten up implementation of the statute.
We don’t agree that there is a problem of the nature that CRT describe. It may be a problem to CRT that boaters will not comply with unlawful guidance, but the vast majority of boaters do comply with the law. If CRT/ BW had enforced the 14-day rule fairly and consistently from the start, there would not be a problem of overstaying, which is what most complaints to CRT about ‘continuous cruising’ are about. If CRT changes its policies in order to “tighten up implementation of the statute” then this would mean that it would be acting unlawfully.
The matter is now the cause of tension between the growing band of ‘non-compliant continuous cruisers’ and leisure boaters who report being deprived of the opportunity to tie up at popular short term moorings during their cruises.
Overstaying at visitor moorings has got absolutely nothing to do with compliance with s.17 3 c ii on the part of boaters without a home mooring. Boats that overstay on visitor moorings are just as likely to be boats with moorings, empty boats without moorings, or hire boats being stored by hire companies. To blame liveaboard boaters without home moorings for this is unfair, unjust and unsupported by evidence. Indeed, analysis by NABO in 2011 of BW enforcement statistics showed that boats with moorings were more likely to overstay both on visitor moorings and on the towpath. If there is a problem with overstaying on visitor moorings, this needs to be tackled by stricter enforcement of the time limits, not by blaming the problem, if it exists, on liveaboard continuous cruisers. Labelling boaters without home moorings as “a growing band” of “non-compliant continuous cruisers” is an underhand linguistic move designed to convey the impression that we are not legitimate users of the waterways; it is significant that the author of this paper does not refer to the “growing band” of “leisure boaters who report being deprived of the opportunity to tie up…” even though it would be logical to assume that if the first group referred to is increasing in numbers then the second group must also be increasing.
The Trust now needs to be clear on our way forward.
‘Solving’ a non-existent ‘problem’ is not a valid way forward. The ‘solution’ that is being presented is not really about ‘solving’ a real problem. It is about creating an impression that there is a problem that needs solving in order to justify bringing in measures that will increase the CRT’s income by pressurising more boaters to take moorings in order to shore up the failing marina business and protect CRT’s direct and indirect income from moorings. This is being done by eroding the right of boat licence holders to use and live on their boats without having a home mooring.
As well as setting out essential context, this paper outlines a number of generic options for dealing with problems locally. They focus on strategic management options rather than continued reliance on legal powers, although the latter will continue to provide the last resort credible sanction against non-compliance. They will require increased effort as we start to design and implement local mooring plans tailored to different areas and locations, and there may be short term cost implications. Some of the proposed measures would however be expected to generate new income. Brief summaries of how we are trying to apply solutions on the Kennet & Avon Canal and in London are set out and the paper ends with a short discussion of resource implications.
The ‘strategic management options’ that the paper outlines for dealing with the ‘problems’ locally are unlawful because they set restrictions on liveaboard boaters without home moorings that are above and beyond what the law requires of these boaters. As the paper states, the so-called ‘solutions’ are aimed at generating an income, not aimed at solving a real problem.
Income from boat licences, moorings and associated activities accounts for over 15% of our annual
turnover. It has been subject to strong growth over the past decade arising from both volume and above inflation price increases. The number of boats using our network on a long term basis grew at an average rate of c.825 each year in the decade from 2002 and now stands at nearly 35,000.
Growth in residential use of boats has been particularly strong. For many it’s a niche lifestyle choice and for others, the need to secure affordable accommodation in areas close to employment opportunities is the driving factor. As a navigation authority, we are not concerned with how people use their boats, only that they comply with licensing rules. Our job is to ensure that the navigation and associated facilities are available to all licence holders.
In that case, CRT is failing to ensure that the right of boat licence holders to use their boats without a home mooring is available to all licence holders who wish to licence their boats under s.17 3 c ii and who are prepared to comply with the law. If CRT is truly unconcerned with how people use their boats, then it is none of their business whether liveaboard boaters travel to work in one place from their boats; send their children to school from their boats, or form communities of boaters, as long as they comply with the law.
In much the same way as parking control is an essential feature of smooth operation of highways,
maintaining the amenity of the waterways requires some element of mooring control along the towpaths.
CRT already has powers to control mooring along the towpath, which it does not use regularly or consistently because the use of these powers does not generate an income; CRT enforcement staff have confirmed that this is the case in User Group meetings. What this really means is that CRT wishes to generate income from making mooring along the towpath more restricted.
Legislation in 1995 gave us powers to require that boats should have a lawful home mooring, unless they were used ‘bona fide’ for navigation. Shorthand for this is that they ‘continuously cruise’. The legislators decided (and BW agreed) that it was reasonable that boats engaged in continuous journeys did not need to have a home mooring.
BW sought legislation that would compel every boat to have a mooring, with steep criminal penalties for anyone caught living on their boat without a residential mooring and a houseboat certificate. Looking at the Minutes of Evidence of the Parliamentary Select Committees that drafted the 1995 Act, Parliament made no mention of continuous journeys. To portray this provision as a requirement for a ‘continuous journey’ is a gross misrepresentation. BW was forced to agree to legislation that allows boats to use the waterways without a home mooring because the legislators found BW’s original proposals draconian and excessive.
Precisely what was meant in the Act by ‘bona fide navigation’ and ‘without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances’ has been the subject of increasing and sometimes acrimonious debate within the boating community since 1995.
The reason for this is that BW and CRT have sought to place increasingly strict restrictions on the use of boats without home moorings that are above and beyond what the law requires. S.17 3 c ii was deliberately given a wide ambit to cater for different patterns of boat use. When the 1995 Act was passed BW did very little to enforce the 14-day rule because the provision in s.17 3 c ii gave boat owners the right to do something that BW had sought to prevent.
In 2007, we had approximately 3,200 boats licensed as continuous cruisers. In July 2012 the
figure was 4,400, an increase of 37%. This compares with a 12% increase in total licences
issued over the same period.
Continuous cruisers currently account for c.13% of all licences
Analysis of our dataset of all boat sightings between 1st Jan and 31st Aug 2011 suggested
that over 2,000 boats coded as continuous cruisers had moved less than 10km during the period.
These figures were collected over a period that included three winter months when boats would have been prevented from moving far by ice, severe weather and stoppages, and a period in summer 2011 when there were a number of restrictions on cruising in order to conserve water.
In spring 2012 we re-ran our analysis to concentrate on those boats which moved less than
5 km and we are now concentrating on approximately 600 boats which move the least and
are regularly sighted on visitor moorings. The appended map shows geographic concentrations
of these boats. The problem we face is in enforcing our interpretation of this widely drawn legislation, when the only sanction provided within our statutory powers is to remove the boat from the waterway. In the case of a residential boater, this would effectively mean loss of their home.
Since the legislation is widely drawn, it is not lawful for CRT to enforce a narrow interpretation of it.
We have no desire to make people homeless, but neither can we fulfil our statutory obligations of preserving waterway amenity for public benefit in the face of large scale disregard of our interpretation of the legislation (which court judges find reasonable).
The issue of whether CRT’s interpretation of the law is reasonable is still sub judice. The issue of preserving waterway amenity is more to do with CRT’s alignment with and promotion of the interests of hire boat companies and marina businesses, both of which exert significant leverage on CRT and in the case of the hire boat industry, CRT holds a direct interest in through its shareholding and directorship of Drifters Leisure Limited. CRT also has a statutory obligation to permit boats to be licensed without a home mooring for public benefit.
Tension has been rising across different sections of the boating community about the number of boats claiming ‘continuous cruiser’ status without appearing to be ‘bona fide’ navigators.
This tension has been manufactured by BW and CRT’s misrepresentation of the situation and its unlawful interpretation of the law. BW wanted boats to be prevented from using its waterways without a home mooring and BW and CRT have gone to great lengths over the years to restrict this use and to misrepresent boaters without home moorings as exploiting a loophole in the law and as getting something for nothing, in order to pressure the majority of boaters into taking moorings and in order to discourage use of their waterways without a home mooring. The result is that the majority of boaters with moorings believe that they are being treated unfairly. Most boaters without home moorings comply with the law as Parliament intended, travelling to a different place every 14 days and not spending more than 14 continuous days in any one place.
On the one hand, we have the (relatively new and small) National Bargee Travellers Association (NBTA) completely rejecting our interpretation of the legislation for operational management purposes. They believe that any boater has the right to settle on the towpath within a specific area without the need to secure a home mooring.
This is not true. The NBTA believes that boaters should travel to a different place after spending 14 continuous days in any one place and supports the interpretation of s.17 3 c ii that Parliament intended. It is not only the NBTA that holds this view; many boaters across the waterways, who are completely unconnected with the NBTA, also support this view.
Our attempts at constructive engagement with them to establish how they reconcile this unconstrained ‘right’ with our statutory duty to preserve wide public benefit and amenity have largely failed.
According to the NBTA, it is CRT which has refused to talk to the NBTA, whereas the NBTA has tried to continue to engage in dialogue with CRT and in addition, CRT has not attempted to hold this dialogue with the NBTA, perhaps because this is a misrepresentation by CRT of what the NBTA’s position is on this issue. The NBTA has never argued in favour of an unconstrained right to “settle on the towpath within a specific area without the need to secure a home mooring” because this would amount to not moving to a different place after spending 14 continuous days in one place. The operation of s.17 3 c ii in the way that Parliament intended would not have created such an unconstrained right, because boaters would still have to travel to a different place every 14 days.
Their activities include campaigning against our moorings policies on a number of niche websites and internet groups, submitting successive complaints and requests for detailed information (under FoI) and providing support to boaters who are within our enforcement process for failing to demonstrate compliance with mooring guidance.
These are all completely legitimate activities which are carried out by a wide range of people connected with the waterways, not just the NBTA. It is to CRT’s shame that it has on at least two occasions publicly urged people not to use the Freedom of Information Act to obtain information, detailed or otherwise, and has privately urged individuals not to use the FOI Act. Every waterway user has the right to use the CRT complaints procedure, and many people do. Boaters who have fallen victim to CRT enforcement have every right to support from others, and to deny them this effectively means that CRT believes they are guilty until proven innocent and should not defend themselves, which is completely against the principles of justice in a democratic society. Many boaters have fallen victim to CRT’s enforcement process because of errors in CRT’s boat sightings. Boaters within the enforcement process have received support from many organisations and individuals: NABO; lawyers; MPs; Citizens Advice and Friends, Families and Travellers, to name a few – are all these organisations doing something wrong in helping those boaters?
The 2,000 strong Residential Boat Owners Association also represents residential continuous cruisers (and those with a home mooring) and takes a constructive approach to the subject and has recently prepared its own document on the subject (http://waterwaywatch.org/rboa-produces-a-paper-on- continuous-cruising/
The Inland Waterways Association (representing c.27% of boat licence holders) is increasingly vocal in defending the rights of leisure boaters to enjoy access to towpath moorings for short periods during a cruise. They have recently called on us for “action on continuous moorers”.
The RBOA’s representative on the CRT Council, Ivor Caplan, is also an officer of the IWA. The IWA has demonstrated that it is implacably opposed to the interests of liveaboard boaters without home moorings.
Appendix A provides a short chronology of past consultation on the subject.
The full history of consultation on this issue is that BW and CRT have made successive attempts to restrict and erode the rights of boaters without home moorings since 2002 and many of these attempts have failed to gain any significant support, such as the draconian, unjust and unlawful “lock miles rule” proposal of 2002- 2003. BW/ CRT has been trying to put something similar into practice ever since, which is evident in its continued recycling of the same ideas in new and increasingly frequent consultations. The consultation processes have been severely flawed, for example the analysis of the 2009 consultations weighted responses according to how many people a response from an organisation represented and gave people with more than one role more weight while treating a large number of responses from boaters without home moorings as one response because the responses were all worded in a similar way. The conclusion from this flawed analysis was that the majority of respondents supported BW’s proposals, hardly a surprise.
2. LICENSING & MOORINGS POLICY/REGULATION – OVERVIEW
All boats must have a licence (average cost ￡700 p.a.) or river registration (average cost ￡400 p.a.) and EITHER a home mooring or be declared as a continuous cruiser in which case only the licence fee or river registration is paid. Licences are subject to contractual terms and conditions which are consistent with our interpretation of our statutory powers.
Section 17(3)(c) British Waterways Act 1995 states that BW may refuse a licence (“relevant consent”) unless (i) BW is satisfied the relevant vessel has a home mooring 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 continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances. The language of the Act is generic and, as with all statutes, requires interpretation. We therefore developed guidance for customers based on professional legal advice, including from Leading Counsel, which we believe reflects the correct legal interpretation of the Statute. The Guidelines updated in 2008 were considered in the Bristol County Court in 2010 in the case of British Waterways v Davies. The Judge expressly found that Mr Davies’ movement of his vessel every 14 days (whilst remaining on the same approximate 10 mile stretch of canal between Bath and Bradford on Avon) was not bona fide use of the vessel for navigation. We updated the guidelines in 2011 to reflect this judgement.
CRT’s guidelines do not reflect the intention of Parliament when it passed s.17 3 c ii. A correct interpretation of the statute needs to be a true reflection of the intention of Parliament.
In summary, the guidance says:
1. the boat must genuinely be used for navigation throughout the period of the licence.
2. 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);
3. it is the responsibility of the boater to satisfy CRT that the above requirements are and will continue to be met.
A more detailed treatment of the legal context including our interpretation of ‘navigation’ and ‘place’, which is critical for operational implementation of the legislation, is at Appendix B
Implementing the legislation – enforcement overview
We employ an enforcement team of 50 people at a cost this year of ￡2.18 million of which 69% are staff costs, 16% are contract costs (for ‘Section 8’ boat removals, storage and disposal) and 9% legal fees and court costs. The team’s primary function is to maintain a low level of licence evasion, which reached unacceptably high levels before 2009. Now that this is under control, greater focus is being applied to reduction of non-compliant continuous cruising. During August 2012, the enforcement team had some 640 NCCC cases in process. Because non- compliance is a breach of licence conditions, our standard remedy is to revoke the licence and remove the boat from the waterway. This is a long process which is further complicated when the boat is someone’s primary residence, in which case, we obtain a court order before taking possession in order to avoid claims of unreasonable behaviour.
“Taking possession” is inaccurate; a Section 8 order does not automatically give CRT possession or ownership of the boat.
We have never been refused such an order in respect of an NCCC,
This is not true. For example, a judge in Cheshire refused to grant BW a Section 8 order in winter 2010, saying that he was not prepared to make a person homeless in November.
although the number of cases reaching the final stage of process is small. Further detail of the
processes we follow, from gathering of evidence of movement patterns over a sustained period through to submission of cases to our solicitors is contained in Appendix C
3. GENERIC SOLUTIONS
We believe that our core policies and enforcement procedures are sound and based on good legal advice. However, while good enforcement is necessary for the credibility of our processes, it is not in itself sufficient to achieve the compliance levels we need to satisfy the great majority of our boating customers and to ensure the harmony amongst waterway users that’s needed to maximise public benefit. The process is unavoidably slow and expensive and can never be expected to achieve significant change in behaviour by the considerable number of boaters who appear to be disregarding our rules. We therefore need to expand our toolkit to address the long standing non-compliance by a sizeable cohort of continuous cruisers who have established their homes along the towpath in particular areas.
One implication of this last statement is that CRT cannot afford to take legal action against all of the boaters it describes above, however much it would like to.
Unofficial communities of residential boaters have taken root over the years because they observed that BW seemed unable or unwilling to take action to move them on.
This is not true. Many of them had read the law and knew they could comply with it by travelling to a different place every 14 days. It is not necessary to have the approval of CRT to form a community. As long as boaters comply with the law, it is none of CRT’s business whether boaters form communities or not. CRT has said in the context of boaters living on non-residential moorings that it is not concerned with how people use their boats, so why is it concerned with how boaters without moorings use their boats? It is a natural human characteristic to associate with others by forming communities, and CRT cannot stop people doing that. In any case, freedom of association is a right we all enjoy by virtue of Article 11 of the European Convention on Human Rights.
Some – or maybe many – of these do not see themselves as ‘boaters’ in the navigational sense – they have chosen to live on a boat not in order to navigate but to stay in the particular locality where their family, work and support arrangements are. Demanding that they follow mooring guidance at this late stage would be futile.
To demand that people follow unlawful guidance is undoubtedly futile. There is nothing in s. 17 3 c ii that prevents boaters from staying within reach of a place of work, education, health care or other support. CRT has already said that it is not concerned with how boaters use their boats in the context of residential use of leisure moorings, so why should it be concerned with how boaters without home moorings use their boats? This is a double standard. Its purpose is to convey the message that CRT will leave you alone if you take a mooring regardless of whether there is planning permission for residential use.
We have come to recognise over the past 18 months that constructive engagement with NCCCs will be an essential ingredient of sustainable solutions and we have started work in two waterway areas to try out slightly different approaches. These are summarised in section 5 below. The difference in approach arises from particular local circumstances, but both are likely to draw on at least some of the following generic solutions.
This has not been constructive at all. It has on the contrary been an attempt to impose draconian and punishing restrictions. It is not constructive to tell boaters who are complying with the law that they are “non-compliant”.
Perception (and reality) is that our only one to one communication with NCCCs has been through formal standard warning letters and notifications which of necessity set out the legal position. Only relatively recently have we introduced an initial, more informally worded letter, but even this is probably not the easiest of read for some boaters.
That’s not because boaters are stupid, it is because the letter sets out an unlawful interpretation of s.17 3 c ii and boaters know that. This is a reference to the Pre-CC1 letter; this letter is not much different from the others, in that it still threatens the boater with loss of their home.
To broaden understanding of the reasons for our rules, we need more face to face contact with the boaters concerned. We have a sadly poor understanding of NCCC demography because as licence holders, there’s a reluctance to respond to our annual boater survey (probably for (unfounded) fear of being identified.). Based on informal observation, a number of groups are identifiable, such as young families with insufficient income to afford conventional homes; singles of all ages and employment profiles but with possibly a trend amongst young professionals to choose a boat to live on as their first step on the housing ladder; and we appear to host a number of disadvantaged people struggling to ‘survive’ in today’s increasingly complex world and who see the waterways as an escape from rules and regulations. To support the latter, the Salvation Army has re-invented (after a 40+ year break) a Waterways Chaplaincy service in partnership with the charity, Workplace Matters. This has been operating successfully in the Hertfordshire area for the past 3 years, working closely with our local enforcement officers. In established NCCC hotspot areas, community support and engagement of the type provided by this chaplaincy service is likely to be an important component of any solution, albeit with a broader focus to include spreading understanding of the Trust’s position and explaining new mooring options designed to reduce non-compliance.
CRT has devoted a lot of resources to studying the demography of continuous cruisers in order to eliminate liveaboard boaters without home moorings who they consider to be non-compliant. Many of the survey questions were designed to this end, which is why boaters did not complete the survey and why some made complaints about it.
We need to be clearer through signage and leaflets about what it means to be a continuous cruiser in a particular hotspot area. Our generic guidance document is not locally prescriptive, but it is prescriptions that many boaters claim to need. To be enforceable, such local prescriptions must have the endorsement of our local partnerships.
The law cannot be different in different areas; the 1995 Act applies throughout CRT waterways in England and Wales and also to BW in Scotland. Just because something is endorsed by a local waterway partnership (that may not contain any representation of boat dwellers without home moorings), it does not mean that it is either lawful or enforceable. To be enforceable, any guidance must be lawful.
In engaging with existing NCCCs, we must be clear in developing customised arrangements, designed to enable them to continue living aboard in a particular area without a conventional home mooring, that we are offering this only to boaters already established as resident in the locality. It is not a policy option that should apply to new arrivals. Already established residents may be eligible to take up a newly defined ‘community mooring permit’ (subject to conditions), but the permit will not be assignable to any other person. By this means, over a period of, say, 10 – 15 years, the number of permits would be expected to decline naturally as people move on or into land based accommodation.
This has two aims; to reduce the numbers of boaters without home moorings and to produce an income by making people who do comply with the law pay to avoid having their boat seized. This is yet another example of the way in which CRT/ BW is bullying boaters into paying for moorings that they do not want or need.
In specifying this, we will of course continue to welcome genuine continuous cruisers providing they comply with mooring guidance. We recognise and value the benefits that occupied residential boats provide to the waterway scene. Generally, occupied boats are preferable to unoccupied ones as they add life and a sense of security to the area. But the continued ad hoc emergence of unofficial residential communities along lengths of towpath is something that we wish to avoid.
It is natural human behaviour to form communities and CRT can’t stop people doing this. There is nothing wrong with communities of liveaboard boaters along the towpath as long as each individual boater complies with the law. What this means is that CRT want to eliminate liveaboard boaters without home moorings in favour of occupied leisure boats belonging to people on holiday. This goes against the policy statement made by CRT on its launch in July 2012; its document Shaping our Future: Strategic Priorities states on page 10 CRT’s commitment to “Encourage an active community of boaters”.
Visitor moorings are differentiated from casual moorings along the towpath (where the time limit for staying in any one place is 14 days) by (as a minimum) welcome signs, shorter time limits and mooring rings. They are typically located at access points convenient for nearby shops and services. What they currently lack is an indication of permissible return times. This of course makes it difficult to enforce since boaters may legitimately move away for as little as 24 hours and then return.
If there is no law specifying how often you can return to a 24 hour mooring then returning to it is not unlawful and there is nothing to enforce.
We are planning new signage which will make clear the total number of days in a calendar month that a boater may make use of the visitor mooring.
Any such signs are advisory only; BW sought the power to enforce compliance with the signage on visitor moorings in the bill that became the British Waterways Act 1995 but Parliament did not consider such enforcement powers to be proportionate and so excluded that from the 1995 Act. BW consequently withdrew the draft clause that would have given it the power to erect signs of this nature.
Regardless of whether or not the boater has a home mooring, general respect for spirit of visitor mooring time limits is important as the number of boats increases and reports of congestion at these locations grows. With a total of some 870 visitor mooring sites around the country, the task of monitoring daily use as a credible deterrent to boaters from overstaying would require a substantial increase in data checker budgets. We did however complete consultation on the principle of extended stay charging in 2009 and are now in a position to introduce monitoring and invoicing for overstay permits in hotspot areas, if we increase our monitoring resources. We do not expect income from permit sales to match the monitoring costs. We have considered the possibility of seeking volunteers for this work but in hotspot areas, tensions amongst boaters would make this an unattractive volunteer proposition.
There are no powers in the legislation to enforce the collection of such charges. Head of Boating Sally Ash has already expressed doubt over whether boaters will pay these charges, which shows that CRT cannot rely on any lawful enforcement powers to collect the charges. See our article entitled Overstay charges: BW asks “WILL people pay?” published in May 2012.
Increased provision of long term residential moorings
A little under a third of continuous cruisers indicated in our recent national boater survey that they would like to secure a long term residential mooring. We briefed the BW board on this subject in July 2011 and Stuart Mills is now leading a project to develop additional sites in London and the South East. The planning environment has eased following a statement by the Housing Minister in August 2011 encouraging local authorities to grant consents, pointing out that these moorings would qualify for the New Homes Bonus (and therefore additional government grant to the authority).
Greater flexibility in mooring options
To cater for boaters who like to continuously cruise during the summer but remain in a fixed
location in winter, we have developed the practice of offering winter mooring permits bookable
by the month along up to 50% of the length of some visitor moorings between 1 November
and 31 March each year. Many commercial marinas of course also offer this facility, but tend
not to attract residential boaters. It is mooring along the towpath that tends to be the choice of
most continuous cruisers. For this reason, local solutions might also embrace the offering of
shorter term mooring agreements by our commercial moorings business, particularly as
demand for our three year and one year agreements has weakened with the onset of recession.
In other words, CRT is trying to recoup lost income by pressurising boaters who neither need nor want a mooring to take one by offering shorter contracts.
4. CURRENT LOCAL PROJECTS
London (Regents Canal, Hertford Union and lower River Lee) and the western section of the Kennet & Avon are the two largest hotspot areas where we have been seeking solutions over the past two years. Brief updates on these are below.
London and River Lee
We regularly observe around 550 boats without home moorings moored along the towpath of London’s waterways (Regents, Hertford Union and River Lee).
Our project objectives here are to achieve:
“A vibrant waterway, well served and well connected, with everyone getting on well.”
Changed mindsets: Better engagement and respect between users. A sense of the river as a
(collection of) neighbourhoods. Improved stakeholder perceptions of boating and boaters. Improved
perception of CRT as the navigation authority.
Fair sharing: Agreed understanding of what ‘capacity’ means and fair sharing of desirable space
between users and uses, leading to an improvement in mooring provision, quality and choice for
visitor, leisure and residential moorings.
Social enterprise: a new approach to improve facilities, meet needs and improve the river corridor
Overall cost reduction: Net reduction in costs for the Trust compared to current spend + liabilities.
Reinvestment of surplus into the project objectives and/or the Trust’s charitable objects.
We have retained social enterprise and community engagement specialists, Locality (formerly the
Development Trusts Association) to lead the supporting work programmes. Progress is being made, but is very slow, with an underlying difficulty being that of establishing an effectively constituted body which can speak for people whose motivations and objectives vary widely. As a means of building trust and understanding, we have recently entered into a short term ‘meanwhile’ lease for the (publicly funded) Waterside Centre at Stonebridge Lock on the Lee in Tottenham. Under this, London (residential towpath) boaters in partnership with three other local community groups will as tenants, develop a sustainable business plan for optimising use of the centre. A ‘listening’ programme is underway, led by community organisers funded through the government’s ‘big society’ programme with community conflict resolution techniques being applied. The disruption to mooring arrangements caused by the Olympics has slowed progress as many boaters moved away from the area, but we are hopeful that a London Boaters group will soon achieve incorporation and the capacity to start creating social enterprise ventures with continued help from Locality.
It’s hardly surprising that progress has been slow when the objective of CRT is to drive boaters without home moorings out of London. It is however completely contradictory that CRT states that boaters moving away from the area during the Olympics has slowed progress, when boaters moving out of London is what CRT want. But this briefing was written by Sally Ash, so what do you expect?
Kennet & Avon Canal (West)
We regularly observe approximately 150 boats without home moorings between Bath and Devizes who do not comply with our mooring guidance.
The vast majority of us comply with the law by travelling to a different place once we have spent 14 continuous days in a place.
Our framework plan issued in August has the following aims:
We have already analysed this plan, see our article Mooring Strategy consultation plans change again, published in September 2012.
a. To protect the amenity of the waterway for widest public benefit
b. To improve access to popular visitor moorings by boats being used for leisure and holiday purposes, and to stretches of ‘unmoored’ water by anglers
Most liveaboard boaters without home moorings prefer to be on 14-day stretches of towpath.
c. To provide a means by which boaters without a home mooring currently resident between Bath and Devizes may continue with their chosen lifestyle without the need to move every 14 days.
Most boaters comply with the 14-day rule and don’t need to stay longer than 14 days in a place under normal circumstances. There would be little demand from boaters to be excused from the 14-day rule.
d. To clarify local rules and achieve understanding and compliance through effective, positive, communications and support, reducing dependence on requirement for exercise of legal enforcement powers.
In this context, ‘clarify’ means finding new ways to pressurise people to comply with unlawful guidance and ‘positive communications’ means presenting the same unlawful guidance in a different way. It doesn’t mean that the underlying message will change.
Key elements within the plan are:
1. Designate visitor mooring stretches; sign them clearly at start and end points; specify ‘return rules’ in the form of max. x days within any calendar month.
2. Extended stay charges for breaching time limits at visitor moorings. Sufficiently frequent sightings by professionally recruited paid staff to support this – warning notes c. 24 hours ahead of when extended stay charge kicks in.
3. New type of “Community” mooring permit for continuous cruisers who have been recorded by the Trust as being resident on the towpath in July 2012. Approx. 20 locations each accommodating up to c.10 boats to be designated where permit holders can stay for up to 28 days at a time before moving on to another one – or any other length of towpath providing they comply with the rules for that location.
i. Subject to an annual fee pegged to a percentage of the average rate for our directly managed sites in the area.
ii. Permit holders will be treated as having a home mooring and permits will be subject to all applicable terms of the mooring agreement for our directly managed moorings.
iii. Eligible for a discount on winter mooring fee (i.e. where you can stay put for 5 months)
iv. Not assignable – only available to existing licence holders (not their boats) who have already established ‘residency’ in the area. Eventually, the number of ‘community’ berths will decline as people move away naturally.
4. Define neighbourhoods for boaters without home moorings and, using additional Trust resources,
enforce continuous cruising rules (14 day limit) using existing processes
5. Towpath presence – current enforcement processes apply but a community worker to be employed for a fixed term to help with communications and to support boaters to in resolving personal difficulties. (We are planning to support an extension the Waterways Chaplaincy and a temporary mooring warden for this purpose)
6. Signage, maps and other information published in paper and electronically. We have placed this framework plan on our extranet for the waterway partnership and navigation advisory group and have mailed it to national boating organisations and those involved in last year’s consultative process. IWA, RBOA and APCO had requested updates on progress prior to completion of the plan and we took those opportunities to share the detail before publishing. On the basis of these informal discussions, we believe that the approach, if we succeed in implementing it, will meet wide approval from traditional leisure boaters, the boating trade and many residential boaters.
Who are ‘traditional’ leisure boaters as opposed to non-traditional leisure boaters? Are they those who agree with CRT? CRT admits here that this plan will not find support from all residential boaters.
Implementation detail, particularly the decisions on zoning different stretches for visitor/community/no- moorings, is the next significant challenge. The waterway partnership has agreed to develop advice for us on these and other detailed aspects for which good local knowledge and perspectives are essential. It appears that the partnership will require support in the form of a professional facilitator for this work and we are in the process of appointing a suitable contractor.
We have committed 33k for the current year to consultancy and community capacity building for London, and a further sum (up to c.5k) may need to be committed for completing the implementation plan for K&A moorings. These sums are within current budget provision. Our Enterprise team will work with Workplace Matters to seek external funding for community support
work for the K&A during the implementation phase for the new mooring plan once it is confirmed.
Once we are ready to implement, signage costs will be the major item of expenditure but the scale of cost is dependent on the number of locations which is not yet known. Assuming that the uptake of the Community Mooring permit proposal is in line with our predictions, income from permit sales should more than cover these and other setup costs.
We anticipate that local partnerships may identify other problem areas needing specific NCCC strategies. Where the geographical scope is quite limited, a simple approach of updating visitor mooring signage and implementing extended stay charges may be sufficient. Elsewhere, there may be need for approaches akin to our two existing project areas. We need to factor in this contingency into the 2013/4 business planning round. We are not planning at this stage to cut the budget for legal fees associated with enforcement cases. Whilst we hope that the need for legal action will decline as the ‘softer’ initiatives outlined in this paper start to bear fruit, it is important to maintain the deterrent effect of legal enforcement.
APPENDIX A: CHRONOLOGY OF CONSULTATION ACTIVITIES, 2002 – 2012
With the passing of the British Waterways Act of 1995, BW was empowered to refuse to licence a boat which did not have a home mooring – unless the boat was used ‘bona fide for navigation’, ‘not staying in the same place for more than 14 days’.
Again, this is presented by CRT to convey a message that every boat should have a mooring, with a very few exceptions. The reality is that to have a mooring or not are equal choices which boat licence holders are entitled to make.
In signing a licence application, the boater confirms a commitment to “bona fide navigate” if there is no home mooring. Growth in residential boating had already started at this time, and establishment of small groups of boats within a limited area in London, on the western K&A, southern GU and other suburban areas was becoming a feature of the local canal landscape.
It is clear that CRT/ BW’s objective is to stem the growth in residential boating. This chronology of consultations omits many consultations that attempted to place restrictions or higher charges on boaters without home moorings between 2001 and 2012.
In 2004, following public consultation, we introduced mooring guidance for continuous cruisers which set out BW’s interpretation of the legislation to help those without home moorings to comply with the Act. The absence within the statute of clear definitions of ‘bona fide navigate’ and ‘place’ contributed to growth in non-compliant continuous cruising (NCCC) , as did growing evidence of a shortage of long term mooring provision.
It is not correct to say that there is no definition of ‘bona fide [for] navigation’ in the statute. For the purpose of s.17 3 c ii of the 1995 British Waterways Act, the definition of use of the boat bona fide for navigation is that the boat has not stayed longer than 14 continuous days in one place without a longer stay being reasonable in the circumstances. However, if it is true that there are no clear definitions in the statute, then boaters cannot be non-compliant.
As a possible means of stemming growth in NCCC, consideration was given in 2002/3, in 2005/6 and again in 2007 (by BWAF) to modifying the licence fee structure so that those without a home mooring would pay significantly more for their boat licence. No national boating organisation supported this approach in the associated public consultations and the plan was dropped. The shortage of affordable housing in the South East is a major driver to accelerating demand for boats for residential use, and people buy boats to live on without securing a home mooring because they know they can (usually) ‘get away with it’.
This is a gross slur on boaters without home moorings and is yet another example of the misrepresentation, misinformation and downright lies about them that it is CRT’s policy to spread. As stated above, it is not a question of ‘getting away with’ anything or of deliberately setting out to break the law; boaters without home moorings have read the law and know they can comply with it by travelling to a different place every 14 days.
We recognise the need for increased provision of long term residential moorings, and a statement by the housing minister in August 2011 was helpful in encouraging local planning authorities to take a more supportive stance, confirming that the New Homes Bonus is payable in respect of residential moorings. The property director is leading a project to create new residential moorings in London. We last consulted on this subject during 2009 and in 2010 updated our national moorings policies as a result. We then attempted to implement new moorings control processes as outlined in the policy through development of local mooring strategies for the western end of the K&A and the River Lee.
For the former, we established a steering group representing all types of local boater and parish councils. After nearly a year of discussions, there was little consensus, but we took useful outputs from their work and have recently published our framework plan on which Trustees were briefed during their July meeting.
In February 2011, in an endeavour to fast track progress in London, we presented for public consultation a tentative mooring plan which defined movement requirements for continuous cruisers in the Lee Valley. This triggered vociferous opposition by unaffiliated residential boaters living along the towpath and an effective PR campaign against our proposals. We shelved the proposals in August 2011 in favour of a strategy of engagement with boaters concerned with the aim of establishing a more effective social enterprise model for creating a happier environment for all on London’s waterways.
This is a long standing issue, but the leisure boating community, the boating trade and some land based communities are increasingly concerned about the impact on their enjoyment of boating of increasing number of residential boats tying up for long periods along the towpath in the same place in some areas of our network. There is an increasing polarisation of views and the creation of the Trust has raised expectations that policy will be developed to progress this issue.
This issue is a creature of BW/ CRT’s own creation. It exists because, due to misrepresentation of the law by BW and CRT, many leisure boaters and canalside residents do not understand the rights of boat dwellers without home moorings. We are entitled to moor for 14 continuous days in any one place, or longer if it is reasonable in the circumstances. If the same boats are in the same place for longer continuous periods without it being reasonable, then they are on the wrong side of the law. That is a failure of BW/ CRT enforcement, and yet BW and CRT have stated a number of times that enforcing the 14-day rule does not produce an income so it is not a priority. However, there is no restriction in s.17 3 c ii regarding how often a boat may return to a place, nor on the number of boats that are permitted to travel to a place and spend 14 days there. BW/ CRT has taken a lot of trouble to foster a feeling among leisure boaters that it is somehow unfair for a boater not to pay for a mooring and not receive the benefits and services of having a mooring. Canalside residents need to understand what the 1995 Act entitles boat dwellers without home moorings to do, and that they are not exploiting a loophole in the law in doing so, they are exercising their legal rights.
APPENDIX B: LEGAL BACKGROUND – MORE CONTEXT
Section 17(3)(c) British Waterways Act 1995 states that BW may refuse a licence (“relevant consent”) unless
(i) BW is satisfied the relevant vessel has a home mooring 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 continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.
The language of the Act is generic and, as with all statutes, requires interpretation. We therefore developed guidance for customers based on professional legal advice, including from Leading Counsel, which we believe reflects the correct legal interpretation of the Statute. The Guidelines updated in 2008 were considered in the Bristol County Court in 2010 in the case of British Waterways v Davies. The Judge expressly found that Mr Davies’ movement of his vessel every 14 days (whilst remaining on the same approximate 10 mile stretch of canal between Bath and Bradford on Avon) was not bona fide use of the vessel for navigation. We updated the guidelines in 2011 to reflect this judgement.
In summary, the guidance says:
1. the boat must genuinely be used for navigation throughout the period of the licence.
2. 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);
3. it is the responsibility of the boater to satisfy the Trust that the above requirements are and will continue to be met.
It provides definitions as follows:
“Navigation” means travelling on water involving movement in passage or transit. We put reliance on the meaning given to the word in the case of Crown Estate Commissioners v Fairlie Yacht Slip Limited. Whilst a decision of the Scottish courts, the English courts can, and have, taken the views of the Scottish Judge into account. In that case the basic concept and essential notion of the word “navigation” was said to be “passage or transit”, the underlying concept being one of movement.
“Place” means a neighbourhood or locality, NOT simply a particular mooring site or position. The Shorter Oxford Dictionary gives some 8 separate principal meanings for the noun ‘place’. Therefore the rules of legal interpretation require the meaning that most appropriately fits the context to be used.
Since ‘navigation’ means travelling by water and ‘travel’ means a journey of some distance, the word ‘place’ in this context is used by the Act to mean an “area inhabited or frequented by people, as a city, town, a village etc” (meaning 4b in the Shorter Oxford Dictionary). And the guidance which follows from the above is: to remain in the same neighbourhood for more than 14 days is not permitted. The necessary movement from one neighbourhood to another can be done in one step or by short gradual steps. What the law requires is that, if 14 days ago the boat was in neighbourhood A, by day 15 it must be in neighbourhood B. Thereafter, the next movement must normally be to neighbourhood C, and not back to neighbourhood A (with obvious exceptions such as reaching the end of a terminal waterway or reversing the direction of travel in the course of a genuine cruise).
What constitutes a ‘neighbourhood’ will vary from area to area – on a rural waterway a village or hamlet may be a neighbourhood and on an urban waterway a suburb or district within a town or city
may be a neighbourhood. A sensible and pragmatic judgement needs to be made.
t is not possible (nor appropriate) to specify distances that need to be travelled, since in densely populated areas different neighbourhoods will adjoin each other and in sparsely populated areas they may be far apart (in which case uninhabited areas between neighbourhoods will in themselves usually be a locality and also a “place”).
Exact precision is not required or expected – what is required is that the boat is used for a genuine cruise. Circumstances where it is reasonable to stay in one neighbourhood or locality for longer than 14 days are where further movement is prevented by causes outside the reasonable control of the boater. Examples include temporary mechanical breakdown preventing cruising until repairs are complete, emergency navigation stoppage, impassable ice or serious illness (for which medical evidence may be required) Such reasons should be made known immediately to local Trust enforcement staff with a request to authorise a longer stay at the mooring site or nearby. The circumstances will be reviewed regularly and reasonable steps (where possible) must be taken to remedy the cause of the longer stay – eg repairs put in hand where breakdown is the cause. Where difficulties persist and the boater is unable to continue the cruise, the Trust reserves the right to charge mooring fees and to require the boat to be moved away from popular temporary or visitor moorings until the cruise can recommence. Unacceptable reasons for staying longer than 14 days in a neighbourhood or locality are a need to stay within commuting distance of a place of work or of study (e.g. a school or college).
The law requires the boater to satisfy us that the bona fide navigation requirement is and will be met. It is not for the Trust to prove that the requirement has not been met. This is best done by keeping a cruising log, though this is not a compulsory requirement. If however, we gain a clear impression from our regular boat sightings that there has been limited movement insufficient to meet the legal requirements, we can ask for more information to be satisfied in accordance with the law. Failure or inability to provide that information may result in further action being taken, but only after fair warning.
Failure then to meet the movement requirements, or to provide evidence of sufficient movement when requested, can be treated as a failure to comply with s.17 of the 1995 Act. After fair warning the boat licence may then be terminated (or renewal refused). Unlicensed boats must be removed from CRT waters, failing which the Trust has power to remove them at the owners cost.
In any case where the boat is the licence holder’s primary residence, we seek a court order before exercising these powers. This provides the judge with the opportunity to consider the proportionality of the sanction in the context of the Human Rights Act. In the small number of cases that have completed the full course of our enforcement processes and reached the law courts, judges have always upheld our case.
APPENDIX C: THE ENFORCEMENT PROCESS
For the control of both licencing and mooring, all boats are monitored every 2-4 weeks regardless of their mooring status. ‘Data checkers’ walk each stretch of towpath at least twice monthly. A ‘sighting’ is recorded using GIS enabled hand-held devices – the boat’s index number, date and location is recorded. Sightings of boats without a home mooring are analysed regularly to build up a picture of their movements over time. In locations where the same boats are sighted repeatedly and consistently in the same place, more frequent visits will be made to help us form a view of whether the guidance for boats without a home mooring appear to be being breached .
Where a boat is left on inland waters owned or managed by the Trust without lawful authority, we have statutory powers to remove it. If the boat is sunk, stranded or abandoned on our waterways, a statutory notice can be served under Section 8 of the British Waterways Act 1983 permitting us to remove the boat after a minimum of 28 days’ notice. We can also serve notice under Section 13 of the British Waterways Act 1971 to remove a houseboat that is moored unlawfully or without a valid licence after a minimum of 28 days notice. The procedure that is followed in each case will depend on whether the boat is occupied (“liveaboard”) or not:
Our policy is to serve a series of letters on the owner/occupier warning them of the consequences of failure to remove the boat. This correspondence takes several months and gives the owner/occupier ample opportunity to remedy matters and discuss any queries with the Trust. If, despite the opportunities afforded, the boat remains on Trust waters without lawful authority, we will serve statutory notices under Sections 8 and 13 (see above). Upon expiry of the minimum 28 day notice period the Trust will notify the owner/occupier that the file is being transferred to solicitors to issue Court proceedings. Court proceedings are then issued for declaratory and injunctive relief and are served on the owner/occupier. The owner/occupier has then an opportunity to defend the case and have a fair trial on the merits. The Court can then review the procedure followed and determine
the scope (if any) of the relief granted to us. In most cases however, once the enforcement procedure commences the owner or occupier of the boat removes it from the water, obtains a mooring or starts to follow the mooring guidance before we reach the stage of issuing legal proceedings. Cases are generally labour intensive .
Where a boat is sunk, abandoned or otherwise not occupied, the Trust will serve a notice under Section 8 requiring removal from its waters within 28 days. If the notice is not complied with we can remove the boat from its waters without issuing Court proceedings. Both of these procedures are human rights compliant. The overwhelming majority of continuous cruiser enforcement cases which we open are resolved or closed without reaching court. We have sent a total of 19 cases to our solicitors since March 2009. Of these:
o 4 settled in court in our favour
o 4 awaiting hearing date
o 5 resolved without going to court
o 6 remain in process
o The average costs incurred for the 11 cases closed and billed up to July 2011 is
APPENDIX D: HOTSPOT MAP OF PRIORITY NCCCs