A legal challenge to BW’s revised Mooring Guidance for Continuous Cruisers is expected after BW rejected a “letter before claim” from boater Nick Brown. It is likely that Mr Brown will issue Judicial Review proceedings on the grounds that the revised guidance is ultra vires, in other words BW does not have the legal power to enforce it, and that it does not reflect the meaning intended by Parliament of Section 17 3 c ii of the 1995 British Waterways Act.
BW presented evidence to the Select Committee that drafted the Act in 1993 stating that the test for whether a boat without a home mooring was being used bona fide for navigation or not, was simply whether it had stayed for more than 14 continuous days in one place without a valid reason. The BW representative expanded on this by explaining that if the unreasonable overstaying was an isolated occurrence the boat would probably be considered to be complying with the law, but a pattern of persistent overstaying would mean that the licence may not be renewed.
BW had the opportunity to re-write the Mooring Guidance for Continuous Cruisers in line with the intention of Parliament in June this year but despite being urged to do so, the new Guidance for Boaters Without a Home Mooring does not reflect the intention of Parliament to protect boat dwellers from homelessness. Mr Brown is concerned that BW has failed to correct these defects and that boat dwellers who do comply with the 14-day rule will still be at risk of losing their homes.
Tags: 14 day rule, bona fide navigation, continuous cruising, liveaboards, Section 17, Waterways Act 1995
Paul Griffin said at the last Local Mooring Strategy meeting that boat checks are sometimes done fortnightly and sometimes more often. Looking back at several people’s boat sighting records contained from BW under the Data Protection and FOI Acts, the checks on the K&A have been done weekly, twice-weekly and fortnightly in the past two years or so. I believe that both the local mooring strategy and enforcement activity are not driven by an intention to enforce the law but by an intention to extract as much cash as possible from boaters, which includes pressurising legitimate, law abiding boaters to take a mooring. If this was not the case, BW would prioritise enforcing the 14-day rule. Most complaints are about overstaying boats, yet very few actually get patrol notices. BW does not use the powers at its disposal effectively, otherwise it would be issuing patrol notices to boats that stayed beyond 14 days. On the other hand it attempts to enforce “rules” which are beyond the powers it has at its disposal.
I agree. In 7 years without a home mooring, I have collected two tickets, one due to the previous owner’s behaviour, and another amicably disputed.
BW have seemed quite reasonable in my dealings with them, and the enforcement staff seem happy to make reasonable allowances for mechanical woes etc. Their enforcement staff are just doing a difficult job with a lack of resources. They have no personal vendetta, and if you are fair and professional with them, you will get the same back. The serious problems are at the top of the BW Hierarchy, and the issues there affect all canal users, including their staff.
How hard is it to move every 14 days? Really? I do not find it hard, and yes I will even admit to sometimes over staying the odd day or week here and there, when there are partys or boaters gatherings. I have had no problem with patrol officers, nor with locals. I believe all in all it is quite simple, move on every couple of weeks and stop somewhere new and exciting and dont take the piss and BW will not get on your back.
This has never been about not wanting to move every 14 days. Many boaters who DO move every 14 days have had letters from BW saying that they are not complying with the law, but the law does not specify any particular cruising pattern apart from the limit of 14 continuous days in any one place. BW is imposing extra rules for boats without moorings that are not specified within the 1995 Act – this is what many of us have been challenging them about over many years. As far as I know, most boaters don’t have a problem with moving every 14 days and we know that if we don’t, we are on the wrong side of the law unless we can show that it is reasonable in the circumstances for us to stay longer. However, rather than enforcing the 14-day limit, BW policy seems to be about trying to enforce a cruising pattern that is above and beyond what the law requires. One of the consequences of this is that boats that do stay longer than 14 days without good reason have no action taken against them. This is just bonkers!
I agree that BW’s application of the 1995 act is, at best, a complete farce. However, it is best not to assume for malice that which can be better explained by incompetence.
My point is only that this is just one of many areas where BW senior management is failing to manage the waterways effectively. The 1995 act does make reference to ‘bona fide’ cruising, as opposed to occasional moving in order to avoid paying mooring fees, which does appear to be a practice amongst a minority of boaters.
Therefore, taking every opportunity to convince enforcement staff that you are moving within the spirit of the Law is a good strategy. The stupidity of initiatives such as the reduction of mooring spaces on the K and A will be brought into sharper relief by this method, and the goodwill of enforcement staff can be utilised long term to isolate and neutralise the mismanagement at the top of BW. Just some thoughts.
N
I don’t think it’s just explained by incompetence. The enforcement staff are managed centrally and their priorities decided according to BW Head Office policy.
BW did not want to let people live on the waterways without a mooring but Parliament decided that we should be allowed to. BW has been trying to make this as difficult as possible ever since by setting requirements beyond what the 1995 Act requires.
BW’s original Bill presented to Parliament in 1990 had a clause stating that every boat should have a mooring with criminal penalties for anyone caught living on their boat without a mooring and a houseboat certificate. This is where BW is coming from.
While that may be the case Panda, they still seem woefully unable to police boating to any degree. License evasion, lack of insurance/boat safety as well as flagrant abuses of the cc’ing regulations are on the increase as a result of inadequate monitoring and enforcement.
The recent presentation by BW at the last MSSG where it was stated that the canal is checked only every two weeks would explain why. My point is that the higher echelons of BW seem unable or unwilling to do anything but line their own pockets, and all sections of those involved with canals are suffering, including frontline staff.
If BW were able to fairly and consistently enforce with the powers at their disposal, all legitimate boaters would be better off.
My only point is that there are larger issues at stake here than just continuous cruisers, and it would perhaps be wise to use the divisions within BW to our advantage to build a better future for all paying users of the canal.