K and A mooring strategy consultation plans changed despite BW statement

CRT’s plans for the consultation on the K and A Local Mooring Strategy have changed again. A sub-group of the Local Waterway Partnership (formerly the Partnership Board) will review the mooring strategy and will decide what consultation is required. CRT claims this sub-group will be “independent”. At the final meeting of the Local Mooring Strategy Steering Group in October 2011 it was agreed that the Local Waterway Partnership would review the mooring strategy. BW then unilaterally disbanded the Local Mooring Strategy Steering Group before its work was complete. However, at that point BW still intended to carry out a full public consultation.

In a response to a Freedom of Information request BW stated on 4 April 2012 that “We will be running a formal public consultation. Hopefully this will start at the end of May and will run until the end of September. There is a passage at the bottom of page 5 of the attached Code of Practice on Consultation that could, potentially, alleviate us from the need to consult. In summary it says that formal consultation is not the only way to get feedback, other methods are available (the embedded link in the attached is to www.peopleandparticipation.net– and the method we’ve used on the K&A is classed as deliberative workshops). However, we haven’t used this method to get all the way to an agreed conclusion (as we don’t believe this would happen) so therefore a formal consultation is appropriate.

The reason we are consulting for longer than 12 weeks is that, as per Section 2.2 on page 8 of the attached Code of Practice, if a consultation exercise is to take place over a period when consultees are less able to respond, e.g. over the summer or Christmas break, or if the policy under consideration is particularly complex, consideration should be given to the feasibility of allowing a longer period for the consultation.” At that time, BW was bound by the Government’s Code of Practice on Consultation, which sets out how public bodies should run consultations. Arguably, since this concerns the management of the waterways, one of CRT’s statutory functions, the Code of Practice still applies.

According to its web site, CRT also plans to begin a review in autumn 2012 of Policies for Moorings along the Banks of our Canals and Rivers, developed by BW in 2009 following a previous consultation, which introduced the policy of local mooring strategies in the face of considerable opposition and following what appeared to be an analysis of the consultation responses that was biased against the views of boaters without home moorings (see previous articles on this web site with the tag Moorings Consultation).

In August, Sally Ash (CRT Head of Boating) circulated a document entitled Plan for resolving mooring conflicts on the Kennet & Avon Canal west of Devizes to the ex-members of the disbanded Local Mooring Strategy Steering Group, many of whom have remarked that this plan bears little resemblance to what they agreed. The Steering Group was disbanded by BW just as it seemed to be reaching consensus on many points. Notably there was agreement between unaffiliated boaters, boating user groups and the hire boat trade representative that fair and consistent enforcement of the 14-day rule would solve any problems that exist, as opposed to unfairly targeting liveaboard boaters without home moorings, which many of BW’s proposals appeared to do.

Sally Ash’s latest Plan also targets this minority (only 10% of boats do not have moorings) and re-introduces proposals for roving mooring permits and “no mooring” zones that the Steering Group rejected. It is hard to escape the conclusion that BW disbanded the steering group because it did not produce the outcome it wanted of eroding the rights of itinerant boat dwellers under s.17 3 c ii of the 1995 British Waterways Act, and so BW would not be able to claim that its planned erosion of our rights was supported by the boating community on the K and A. We do not know whether the Local Waterway Partnership’s review of Sally Ash’s Plan for resolving mooring conflicts on the Kennet & Avon Canal west of Devizes will include a public consultation. She did not circulate the complete plan; there are four supporting schedules which have not been sent out. A Freedom of Information request has been made for these. In the meantime, we publish the Plan without the Schedules below, with our analysis of its legality and feasibility marked in bold.

Plan for resolving mooring conflicts on the Kennet & Avon Canal west of Devizes

This makes the assumption that there are real conflicts, as opposed to conflicts manufactured by BW/CRT to further their own agenda.

Contents 1. Introduction 2. Aims of the plan 3. Key features at a glance 4. Current status of the plan 5. Role of the waterway partnership 6. Plan detail 6.1 Visitor moorings 6.2 New mooring designation for community boaters 6.3 Definition of ‘places’ (neighbourhoods) 6.4 ‘Breathing spaces’ 6.5 Towpath presence, communications & enforcement Supporting schedules (to follow) 5.4.1. Visitor mooring locations, maximum stay times and extended stay charges 5.4.2. New permit locations 5.4.3. Qualifying criteria, fees and terms for new permits 5.4.4. Neighbourhood (place) definitions

1. Introduction The plan outlined in this document has been shaped very much by the painstaking work of the Mooring Strategy Steering Group (MSSG) which met 8 times between August 2010 and October 2011. We are grateful to all those who contributed to this. This plan constitutes our response to their proposals.

2. Aims of the plan

To protect the amenity of the waterway for widest public benefit

That would mean reducing the numbers of hire boats, as they use the waterway most intensively and do most damage. What this really means is protecting the waterway amenity for the hire boat trade.

To improve access to popular visitor moorings by boats being used for leisure and holiday purposes, and to stretches of ‘unmoored’ water by anglers

There is no legal provision for visitor moorings or ‘no mooring’ stretches that are not justified by navigational safety. When the 1995 British Waterways Act was being drafted in Parliament between 1991 and 1994, Parliament would not allow BW to have powers that would allow it to fine people for infringements of mooring time limits or ‘no mooring signs’. BW therefore withdrew the clauses that would have given it the power to signpost mooring restrictions, saying these powers were meaningless without the criminal penalties. A BW witness had previously confirmed to Parliament that the existing signs in 1993 were ‘advisory’ and therefore not compulsory. Therefore any such signs remain advisory to this day.

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.

Boaters without home moorings do not have a problem with moving every 14 days and would be very unlikely to pay 80% of the cost of a permanent mooring in return for the ability to stay 28 days in certain places, because the 1995 Act already allows them to stay longer if this is reasonable in the circumstances. If the 14-day rule was enforced, instead of an arbitrary and unlawful minimum distance being the trigger for enforcement action that is unlawful, then this would solve any problem that may exist with boats that do overstay. The  focus of enforcement should be on the 14-day rule, not on other issues that CRT have no authority in the 1995 Act to enforce. When the 1995 Act was drafted in Parliament, officers of BW gave evidence that the 14 days was intended as the test for whether a boater was complying with s.17 3 c ii of the 1995 Act or not, and Parliament intended that this should be the test for compliance, not any minimum distance. Enforcing the 14-day rule would gain the maximum acceptance amongst boaters without home moorings because it is clearly part of the law and is not ultra vires (“ultra vires” means outside the legal powers of the body attempting to enforce it). The 1995 Act does not contain any provision for extending a stay to 28 days unless it is ‘reasonable in the circumstances’, so a 28-day permit would be unlawful.

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.

Any local ‘rules’ would be unlawful if they differ from the entitlements in the 1995 Act. Therefore enforcement of local rules could be challenged. The only way that local ‘rules’ could be complied with would be if they were presented not as ‘rules’ but as a voluntary code of conduct that boaters are being asked to comply with out of goodwill. If a voluntary code is drawn up that is over and above the requirements of s.17 3 c ii then boaters could be encouraged to comply with it by being offered a small reward, not by punishment for breaching it. Punishment that ultimately results in boaters losing their homes or being evicted from the entire CRT waterway system for ever would be entirely disproportionate for minor infringements such as returning from B to A when you have recently left A. The reward could be something like a £5 discount voucher off your next licence fee.

3. Key features at a glance Relevant plan aims 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.

Any ‘return rules’ are contrary to s.17 3 c ii which merely prohibits spending more than 14 continuous days in any one place under normal circumstances.

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.

As stated above, extended stay charges are unlawful because CRT does not have the power to impose fines. They are fines even if given another name, if the amount of the charge is disproportionate compared to the actual cost of providing the service and/or the normal charge for a similar type of mooring.

3. New type of mooring permit (‘community’?) for boats 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.

See above. In addition, this looks like other waterway users will have less space to moor, especially in areas where large stretches of the towpath are not usable for mooring due to shallow water, lack of maintenance, etc.

3.i. Subject to an annual fee pegged to a percentage of the average rate for our directly managed sites in the area. 3.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. 3.iii. Eligible for a discount on winter mooring fee (i.e. where you can stay put for 5 months) 3.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) strictly.

Defining neighbourhoods would be unlawful for the reasons stated above.

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 6. Signage, maps and other information published in paper and electronically. 4. Current status of the plan The aims and key features of this proposal have been endorsed by the Trust’s directors and trustees. Trustees will be considering the subject in greater detail at their September meeting, when they might conclude that the model outlined could be applied at other locations on the network which are currently subject to localised pressure on moorings.

So the Local Waterway Partnership sub-group will not be independent at all. What evidence is there that there is a localised pressure on moorings? This is a problem that has been manufactured in order to justify the solution. The question is, what does CRT gain from the ‘solution’, and who else stands to gain from it?

We are now seeking advice from the Kennet & Avon Waterway Partnership on the details of the plan and how implementation might work. To assist with this, we are separately presenting some possible draft schedules for (a) visitor mooring locations and maximum stay times, (b) new ‘itinerant’ mooring zone locations, (c) terms and fee for the new permit, and (d) neighbourhoods. Our suggestions for these are mostly based on discussion within the mooring strategy steering group (2010/11), but since the group did not achieve consensus on these, we are asking the Partnership to review and make the case for any amendments to the draft schedules through a process of further local discussion.

The Mooring Strategy Steering Group could have achieved consensus if the group had not been unilaterally disbanded by BW.

While the Partnership proceeds with this final phase of consultation, the Trust’s environment, heritage and planning experts will assess the draft schedules against relevant statutory and operational requirements. We will keep the Partnership informed of any problems that they might identify.

There is a statutory requirement for an Equality Impact Assessment as well, which was accepted by BW in the Mooring Strategy Steering Group. BW also informed the Steering Group that it would carry out a public consultation on the entirety of the proposals in line with the Government’s Code of Practice on Consultations. When one of the members of Steering Group made a FOI request about the plans for the consultation, BW told them that a 4-month consultation would take place.

5.5. Role of the waterway partnership 5.1 We are pleased that the Partnership has agreed to set up a sub group of 6 people representing the groups with particular interest in moorings arrangements. These are expected to be as follows:

Local government – Ken Oliver (Wilts CC Canal Officer)

Ken Oliver was a member of the Steering Group, it is inappropriate to include one person in both committees.

Parish Councils – appointment pending Anglers – TF (partnership board member and officer of Devizes Angling Association) Boating Trade – EF (partnership board member and representative of Kennet & Avon Canal commercial boat and moorings businesses) Residential boaters without home moorings – AH (partnership board member and residential boater) Leisure boaters – appointment pending from Canal Taverners Boat Club (Bradford upon Avon).

5.2 Terms of reference for the group’s work are as follows: a. The purpose is to consider the above plan and associated draft schedules; to arrange such local consultation as the group feels appropriate and to document advice in the form of constructive feedback on the proposals. b. Membership of the group is by invitation from the Partnership Chair and its size is to be kept deliberately small and focussed so that business can be conducted efficiently. Additional appointments will be subject to the approval of the Partnership Chair. The group will elect its own chair at the first meeting c. A work plan and associated timetable is to be set at the first meeting of the group which we hope will take place before the end of August 2012. We ask that the advice is delivered before the end of November 2012, earlier if possible.

It would be impossible to carry out a 4-month public consultation in that timescale

d. The group will operate independently of the Trust’s management team, but staff will help by providing such information as is readily available to answer relevant queries. The group will present its advice to the Partnership Board for endorsement before it is formally submitted to the Trust’s management. The boating management team will comment informally on draft advice if asked to do so. e. The final decision on the plan rests with the Trust who will in due course advise how it intends to take the plan forward and explain the reasons behind its decisions.

So the Local Waterway Partnership sub-group will not be independent

5.6. The plan detail 6.1 Visitor moorings Visitor moorings are an established feature around the network. They are primarily locations which are in popular demand and particularly important for leisure visitors and tourists. Time limits should be determined according to the particular location – a stretch of towpath close to important access points, local services etc. where people might typically want to tie up for a couple of hours or overnight should have a lower maximum stay time than a less busy site. It is many years since time limits were reviewed, and this plan provides the opportunity to revisit the established locations. What has been missing in most cases from our time limits is any indication of how soon a boater may return. This has hampered our ability to enforce the stay limits.

As stated above, no-return-within time limits are unlawful

Time limits and return rules Setting maximum stay times is effectively meaningless without clarity on rules for frequency of return to the location. In determining the best approach for implementing this, we needed to make the rule simple and unambiguous for boaters, and it needs to be practical to implement by ‘back office’ systems. This led us to discard the option of a ‘no return within x days’ approach in favour of a ‘maximum x days within any one calendar month’ rule. Boaters wishing to stay longer may purchase daily extended stay permits. Our boat data checker will post a note onto the boat with at least 24 hours’ warning of when the extended stay permit requirement starts, and the amounts accruing will be invoiced by post to the licence holder’s address with an alert being sent by text message. Debts will be pursued in the first instance through normal collection procedures, but if these remain unpaid, we may decline the renewal of the boat’s licence.

It is unlawful to refuse to renew a boat licence for non-payment of a debt that is not owed for the licence fee and especially since the fines would be imposed without lawful authority

New signage at each site will make the rules clear. We will employ sufficient data checkers to monitor each visitor mooring site on a daily or near-daily basis. Maximum total days limits will not apply to properly registered hire boats whose crews typically change weekly or more frequently

Hire boats are heavily dependent on VMs and other casual lengths (not otherwise designated for longer term use) but their crews change at least weekly. Because we are proposing no return rules in terms of ‘no more than x days in any calendar month’, it is possible that a hire boat might exceed this limit – if for example the boat is let out for say 6 different trips (some week, some shorter breaks) during the month and on every trip the crew ties up for a couple of days at the same time limited location, then it’s possible that they’d exceed the monthly total allowance. It would not be reasonable to apply an extended stay charge to the hire boat operator in this circumstance.

This is evidence of a disproportionate bias towards the hire boat industry. It is not justified – there is plenty of space for all, and if the non-return limits and overstay fines do not apply to all boats equally, they should not exist at all.

6.2 ‘Community’ moorings At the core of the plan is a new 12 month Kennet & Avon (West) ‘community’ mooring permit (other name suggestions can be considered during consultation). It will be available to any boater consistently sighted between Bath and Devizes over the last two years and resident on the towpath in July 2012. The annual fee will be payable in monthly instalments if preferred. 10% discount if paid in full in advance. We propose maintaining the fee at 80% of the average for our directly managed moorings in the area. This would work out at around £23 per week for a 13 m boat. The average mooring fee paid by boaters purchasing one of our long term mooring permits (applicable at places such as Bradford Lock, Avoncliffe, Dundas, Claverton, Bathampton) is £1,228 per year (around £23 per week in 2012). Primarily they are purchasing the security and convenience of a mooring arrangement; facilities vary so that the actual fees vary from the equivalent of £25 per week at Avoncliffe East (where there are minimal facilities) to £34 per week at Dundas (where facilities are more extensive). For mooring fees generally, the component attributable to facility provision is generally relatively small – it is the scarcity of space that contributes the majority of the fee. The fee % can be subject to further discussion and analysis during the consultation period (and will be referenced as such in the relevant schedule), but to set it significantly lower than £23 per week would not be fair to the boaters in the area who pay the going market price for a mooring, whether to the Trust or to private moorings operators. The primary purpose of the fee is not to raise revenue (although this is greatly needed to maintain the waterway on which boaters depend). Rather, it’s a means of stemming continued growth in demand for towpath space by continuous cruisers wishing to remain in a limited area and of improving the sense of fairness for other boaters.

This is clear evidence that the plan targets boaters without home moorings. In talking about ‘stemming demand’, CRT is attempting to prevent boaters from exercising the right to use the waterways without having a home mooring. Boaters without home moorings are entitled to remain within a limited area if they choose, by virtue of s.17 3 c ii of the 1995 Act. No minimum distance or specific cruising pattern is prescribed over and above the 14-day rule. It is very important in the development of any policy that a clear distinction is made between perceived unfairness and actual unfairness. To take action to address “a sense of unfairness” would be wasteful of resources, discriminatory, irrational and unjust. Boaters who pay for moorings receive benefits that boaters without moorings do not. As stated above, boaters without home moorings are just as entitled to use the towpath as other boaters. This is all about making more space for hire boats. There has been a threefold increase in the number of hire boats based between Devizes and Bath in the last 9 years (from about 36 in 2003 to about 92 now).

The benefits enjoyed by the permit holder will be as follows: Permission to stay for up to 28 days on any designated ‘community’ permit holder site on the Kennet & Avon Exemption from the requirement to comply with mooring guidance for continuous cruisers 25% discount on the purchase of a winter mooring permit Participation in a consultative forum dedicated to the needs of ‘community’ permit holders. We do not expect Council Tax to be payable but this would be a matter for the local authority Conditions of the ‘community’ permit will include: There will be no booking system for use of the locations, but we will not rule out endorsing any fair self-management arrangement proposed by permit holders collectively. Any such arrangement must be discussed with us and we will not withhold agreement unreasonably. It must have the support of at least 75% of permit holders. Permit holders must abide by signed time limits at all other short term moorings along the towpath and comply with ’max number of days’ restrictions It is not assignable to another person upon sale or transfer of the boat or under any other circumstances There must be regular movement between different ‘community’ sites. On leaving a site, the boater may not return to the same site for at least 28 days No more than (say) 140 days may be spent on any one site during the 12 month permit period (this figure to be subject to consultation). Most clauses of our Standard Mooring Agreement will apply, notably nos. 6, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 If we notice any apparent breach of any condition, we will write and let the permit holder know and give them a reasonable period to put things right. They will have the opportunity to discuss the problem with us, but if it persists, we will terminate the agreement and the status will revert to that of continuous cruiser. The permit fee paid is not refundable.

Refusing to refund on termination for breach is unlawful

Planning status of the new sites We have consulted Wiltshire County Council on this subject and on the basis of the feedback, we will not be applying for planning permission for ‘community’ mooring locations. ‘Community’ mooring locations In considering the locations to be included in schedule 2, we have tried to apply the following criteria. Located in the general vicinity where residential boaters currently tend to moor But not so close to the popular locations on which the leisure boating business depends Reasonable proximity to access points and facilities But avoiding access points where boaters may be tempted to park in narrow lanes and cause inconvenience to local residents No more than 10 boats at any one site with breathing spaces in between Meeting them all is not easy, and we have had to form a balanced judgement in specifying sufficient capacity between Bath and Devizes. Further detail will be contained in Schedule 2.

Many of these sites are likely to be places where all boaters want to moor, and so will actually create a sense of unfairness.

6.3 ‘Place’ definitions These are needed to provide the local context to our guidance for boats without a home mooring. Continuous cruisers without one of the new ‘community’ mooring permits must comply with these. The list in Schedule 4 draws on work of the MSSG.

As stated above, this is ultra vires the 1995 Act

6.4 ‘Breathing spaces’ The schedules need to allow for some lengths of towpath where no mooring is permitted – this is for the benefit of anglers and to enhance the general visual landscape amenity. Boats are an attractive feature, but not if they are moored almost nose to tail over long distances.

As stated above, this is ultra vires the 1995 Act. In any case, breathing spaces occur naturally as boats move. Enforcing the 14-day rule is the best way to ensure this happens.

6.5 Towpath presence, communications and enforcement (a) Towpath presence There was much discussion and support within the MSSG about the benefits of a dedicated towpath ranger/lengthsman to help boaters to understand and comply with the rules. Sadly this is not affordable as a permanent proposition, but we are making provision for deployment of community workers for a fixed period whose role will be to (a) promote understanding of the moorings plan so that when the time comes, individual boaters can make informed choices about whether to continue to try to comply with the guidance for boats without a home mooring (i.e. become a ‘genuine’ continuous cruiser within a context of much clearer definition of ‘place’), or whether to purchase a Community mooring permit; and (b) mitigate stress and difficulties to vulnerable boaters, whether or not these arise from the new plan.

Boaters without home moorings are not required to ‘comply’ with ‘Guidance’. What they are required to comply with is the law , ie s.17 3 c ii of the 1995 Act. The Guidance sets requirements over and above the law. To imply that boaters who do not comply with the Guidance are not “genuine continuous cruisers” is a misrepresentation of what is required to comply with the law.

The model that we are currently considering for this work is likely to be based on the Waterways Chaplaincy service currently active in the Watford area. Their chaplains work with our local enforcement officers and succeed in alleviating difficulties faced by vulnerable live-aboard boaters. We are grateful to the Salvation Army for their enthusiasm in responding to our proposal for extending this service to the Bath area and discussions on the practicalities are underway.

We wonder what the Chaplaincy Service and the Salvation Army think of CRT’s unlawful enforcement of Guidance that is over and above what the law requires. Many Christians believe in resisting oppression and would be horrified by the amount of bullying and harassment of boaters without home moorings by BW/ CRT.

(b) Communications New signage will show very clearly what mooring rules apply at individual locations, and we will publish a towpath moorings map and information leaflet where possible drawing on a locally driven code of conduct. This will be made easily available along the canal. With this greater clarity, we hope that greater voluntary compliance will reduce the need for expensive and unpleasant enforcement action.

This assumes we are happy for any local boaters’ code of conduct to be co-opted by CRT. We may not want it to be used in CRT’s enforcement activities, as it could destroy boaters’ trust in our community group – which is probably what CRT want. The type of voluntary compliance described above is not truly voluntary at all if it is backed with enforcement action

(c) Enforcement The plan is designed to support and encourage voluntary compliance and shift the balance away from the enforcement ‘stick’. In particular, the provision of community moorings, greater clarity of continuous cruising rules based on locally defined neighbourhoods, and improved mechanisms for engaging and communicating with boaters will, we hope, bring about a new culture of self-regulation.

We don’t think it will, because self regulation is voluntary. This is not voluntary.

The plan includes provision for more frequent compliance monitoring. If this and other elements within the plan are successful in achieving greater self-regulation, the number of cases which need to be pursued using our legal powers will reduce. This can only be good for the well-being of the waterway, and all those who use or live on it.

As above – self-regulation is voluntary.

Sally Ash
Head of Boating
3 August 2012

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