Last Request of retiring Head of Boating: our analysis of the K&A Interim 12-month Local Plan

Here we bring you our analysis of the K&A Interim 12-month Local Plan. We start with the issue of what will happen when the 12-month trial period ends on 1st May 2015, because CRT’s statements about this indicate that something is amiss with the policy of Local Mooring Strategies. Sally Ash has been attempting unsuccessfully to establish Local Mooring Strategies in many areas of the waterways since 2009. She devised the idea with help from Bathampton Parish Council and former BaNES Councillor Ian Dewey, a resident of the village. The K&A Interim 12-month Local Plan is the only such Local Mooring Strategy that has been implemented.

What happens after the trial 12 months and why?

CRT has stated in correspondence to the K&A Boaters Action Group that “Following the interim 12 month local plan period boaters will be required to follow national guidance to boaters.” When asked for a copy of this “national guidance to boaters”, Matthew Symonds, Boater Liaison Manager (South) whose responsibility it is to implement the K&A Plan, sent a copy of the existing Guidance for Boaters Without a Home Mooring published in October 2011 and revised in August 2012. Mr Symonds also stated on 30th April that CRT had no plans to extend the Local Plan east of Devizes, despite this being a declared intention of BW in the Local Mooring Strategy Steering Group in 2010-2011.

This strongly indicates that CRT has received legal advice to the effect that CRT would be legally obliged to offer the same deal to boaters on the rest of its waterways if the K&A Interim 12-month Local Plan  was implemented permanently on completion of a trial. This is not surprising given that earlier this year CRT was forced to drop the proposed Roving Mooring Permits in Uxbridge and Gloucester, which Sally Ash had expended so much time and CRT/BW money on, when legal advice confirmed that they could not be offered to selected groups of boaters in one or two locations but would have to be offered everywhere.

It would have saved BW and CRT a lot of money if this legal advice had been obtained in 2009, but then this is Sally Ash, who in a meeting of the K&A Local Mooring Strategy Steering Group on 21 September 2010 said “forget about the law” and stated that she would not allow the group’s task of producing the Local Mooring Strategy to be constantly disrupted by references to the law.

We have serious concerns about CRT’s statement in its report on the Towpath Mooring Plan consultation that “the purpose of the 12 month period is to enable those boaters without a home mooring based in this area a period of time to regularise their movement so that, after this, they can then comply with the relevant legislation and the Trust’s Guidance”. This implies that the K&A Interim 12-month Local Plan is a precursor to the introduction of draconian, unlawful enforcement of Section 17 3 c ii of the 1995 British Waterways Act that will cause homelessness amongst boaters without home moorings.

Inadequate communication to boaters

CRT had given an undertaking that the Towpath Mooring Plan would be communicated comprehensively to all those who would be affected by the plan. However it has been communicated to boaters at the last minute (on 29th to 30th April) and in an ineffective and half-hearted way. The only communication has been publication on the CRT web site and emails to those boaters whose email addresses are held by the CRT Boat Licensing Team. As far as we know it has not been sent by post, even though many boaters received the consultation by post in September 2013 and the Boat Licensing Team has postal addresses for a majority of boaters. Notices have not been put up on all CRT notice boards on the K&A, only on one or two. The consultation proposed handing out leaflets to boaters which also seems not to have happened. Taken with CRT’s statement on what will happen after 1 May 2015, this begs the question whether the policy of Local Mooring Strategies is being quietly dropped. Sally Ash, 63, who joined BW as a researcher in 1976, has announced that she will retire this June.

Introduction of elements not in the consultation: progressive journey through designated neighbourhoods

The finalised K&A Interim 12-month Local Plan confirms the legal requirement to move to a different place after remaining in one place for 14 days. This is what we all know we have to do anyway, because it is clearly set out in Section 17 3 c ii. However what the Plan does not state is that it is completely lawful to remain in one place dis-continuously for more than 14 days as long as you have travelled to a different place in between.

More insidiously, the Plan also introduces a requirement to travel progressively and evenly through 12 out of 14 designated “neighbourhoods” over 12 months and 6 of these over 3 months. Not only was this not mentioned in the 2013 consultation, it is also completely unlawful. The requirement for a “progressive journey” was dropped from the Guidance for Boaters Without a Home Mooring following the judgement in 2011 in BW v Davies on the basis that the Judge decided that this requirement in the former Mooring Guidance for Continuous Cruisers went beyond what the law required. CRT does not have the power to set such detailed, prescriptive travel requirements. The prescriptive nature of this requirement is materially the same as the punitive “lock miles rule” or Trial Moorings Code that BW tried to impose in 2003. The 2003 Trial Moorings Code was dropped by BW in early 2004 following a Letter Before Action by NABO who threatened to bring a Judicial Review on the basis that the Trial Moorings Code went beyond BW’s legal powers for a number of reasons including that BW did not have the power to set such prescriptive travel requirements. It met with overwhelming objection from boaters with and without home moorings.

In addition, to set a requirement to achieve a minimum cruising range of 20km as well as to travel through a set number of “neighbourhoods” and amounts to setting a minimum distance. This is not required by Section 17 3 c ii of the 1995 British Waterways Act and it is unlawful for CRT to set a minimum distance that boats without home moorings must travel in order to comply with the law. Indeed CRT itself confirmed that it would be unlawful if it set a minimum distance in its November 2012 Towpath Mooring Q and A written by Sally Ash.

The use of the term “neighbourhood” rather than “place” unlawfully changes the meaning of a statutory word, something that CRT also does not have the power to do. The meaning of “neighbourhood” implies a larger area than “place”. In addition, the list of “neighbourhoods” is inaccurate. It excludes some places, such as Limpley Stoke, that exist on the map, and it draws many boundaries wrongly, such as the boundary between Bathampton and Claverton.

Boat sightings

As well as an unlawful requirement to travel through 6 “neighbourhoods” in 3 months and 12 “neighbourhoods” in 12 months, the K&A Interim 12-month Local Plan states that your boat must be sighted in these “neighbourhoods”. The frequency and accuracy of CRT’s boat sightings is not within the control of individual boaters and therefore this is a completely unjust imposition. CRT has stated that “Our checkers record the location of each boat at least once every 14 days and our analysis of the resulting data shows us the extent to which you have met the terms of the plan”. Taking sightings every 14 days is not frequent enough to record every neighbourhood that a boat has moored in. In order to guarantee that your boat is sighted in every “neighbourhood” that you visit, you would have to spend more than 14 days at a time in one place. This is self-defeating and shows that the Plan is so riddled with internal inconsistencies that it is unworkable.

Voluntary or compulsory?

The plan introduces requirements that boaters between Bath and Foxhangers must follow if they are to avoid enforcement over the 12 months from 1st May. This is contrary to the Local Waterway Partnership’s statement that the Towpath Mooring Plan is a voluntary agreement which guarantees boaters freedom from enforcement if they follow it.

When the Kennet and Avon Waterways Partnership drew up the Towpath Mooring Plan in 2012-2013, it proposed a voluntary agreement which if followed provides a guarantee that you will not be subject to enforcement (in relation to your cruising pattern as opposed to other non-compliance such as not buying a licence). This was confirmed as recently as Wednesday 23rd April by Rob Dean, a member of the Kennet and Avon Waterways Partnership, in the K&A User Group meeting in Devizes. However this does not feature in CRT’s post-consultation version of the K&A Interim 12-month Plan nor has it since been confirmed by CRT.

However there is no indication of the consequence of not navigating in accordance with the K&A Interim 12-month Local Plan. All that one can say for certain is that if enforcement action is entered into solely because of non-compliance with the K&A Interim 12-month Local Plan, this is beyond CRT’s legal powers to enforce and may be rigorously defended if the enforcement action reaches the stage of formal court proceedings. If enforcement action is entered into in which it is alleged that, additionally, the defendant also did not comply with the K&A Interim 12-month Local Plan, then this may be of no interest to a court. This is because the court is only interested in the law which in this case is Section 17 3 c ii of the 1995 British Waterways Act.

The obligations of boaters without home moorings in law (as opposed to in a voluntary agreement; ‘rules’; ‘guidance’ or ‘guidelines’, none of which are the same as law) are defined in Section 17 3 c ii of the 1995 British Waterways Act. The key elements in question are “bona fide navigation”, “place” and “reasonable”. There is no requirement for a progressive journey nor a given cruising range in a given time period. There is nothing in law that prevents boaters without a home mooring from having a job, sending their children to school or accessing health care.

CRT has attempted to overlay on the 1995 Act its own interpretation of the law by way of the Guidance for Boaters Without a Home Mooring and also by means of coercion. In the discontinued Judicial Review Brown v CRT  in February 2014, High Court Judge Mr Justice Lewis stated that Section 17 3 c ii of the 1995 Act was “jolly weird”; that the Guidance wasn’t much help at all as guidance and in any event the key parameters of “bona fide navigation”, “place” and “reasonable”, being undefined, would be resolved on a case-by-case basis, that is, in the process of stating one’s defence in a Section 8 action. It is therefore absolutely clear that the K&A Interim 12-month Local Plan is a voluntary agreement only.

Introduction of elements not in the consultation: application to boats with home moorings

Nothing in the original plan, the consultation questionnaire or in the CRT’s response to the consultation published on 13th March 2014 makes any reference to its applicability to boats with home moorings apart from the visitor mooring time limits and “extended stay charges”. This has been added at the very last minute without any discussion with the Kennet and Avon Waterways Partnership or any consultation with boaters. Boaters with home moorings on the western K&A are understandably incensed that they are being “asked” to return to their home mooring when they are not cruising, rather than mooring for up to 14 days on the towpath as they are entitled to do and then continuing their journey. Many are furious that they will be effectively forced to do the same repetitive cruise weekend after weekend from their marina as far as they can go in two days and back to the marina, rather than being able to explore the waterways at their leisure, complying with the 14 day rule.

There is no legal requirement set out in Section 17 3 c i of the 1995 British Waterways Act for boats with home moorings to spend any specific amount of time on or off of their home mooring. The only requirement is that there is a home mooring or other place where the boat can reasonably be kept and lawfully be left. In fact, there is no requirement in Section 17 3 c i of the 1995 British Waterways Act for boats with moorings to move to a different place every 14 days, but that is a different argument which we will not pursue in this article. To “ask” boats with home moorings outside the western K&A to follow the K&A Interim 12-month Local Plan while they are in the area is equally unlawful. Given the half-hearted way that this Plan has been communicated by CRT, it is unlikely that they will know what they have to do to follow the Plan anyway.

“Reasonable in the circumstances”

The restriction in the Plan of “or such longer period as is reasonable in the circumstances” to short-term periods is unlawful as there is case law (Moore v British Waterways [2013] EWCA Civ 73) stating that “reasonable” cannot be defined in advance. Issuing permission to stay longer is also unlawful because permission is not required by Section 17 3 c ii, only that the longer stay is reasonable; the House of Commons Select Committee that drafted the 1995 Act actually rejected the requirement for BW’s permission to stay longer than 14 days.

Similarly, CRT has no power to impose visitor mooring time limits, maximum stays per month or “extended stay” charges; BW provided evidence to the Select Committee that drafted the 1995 Act that all such signs were advisory at the time, and they remain advisory to this day because the legislation regarding visitor moorings and overstaying fines that BW wanted was denied by the Select Committee.

The needs of anglers

The requirement to leave space for anglers is completely unworkable which is why the FAQs to the Plan states that this should be done “where possible”. It would be impossible to tell which boat failed to leave a gap as boats move around all the time; this just cannot be enforced. Here we suggest our own guidance for dealing with anglers: once a week, offer an angler a cup of tea, and that should help to resolve any conflicts.

Grant my last request … Sure I can accept that we’re going nowhere” Paolo Nutini 2006.

See also

http://kanda.boatingcommunity.org.uk/interim-12-month-local-plan-for-western-ka-starts-today/

For a full analysis of the legality of visitor mooring time limits and “extended stay charges” see http://kanda.boatingcommunity.org.uk/se-visitor-mooring-consultation-example-response/

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