Our take on BW’s revised Guidance

BW’s revised Guidance for Boaters Without a Home Mooring follows a meeting with user groups on 23 June. BW has stated that there will be no further consultation or review of this guidance. Guidance for Boaters Without a Home Mooring differs from the draft revision published by BW in April following the judgement in the BW v Davies case. The term “continuous cruiser” is largely replaced by “boater without a home mooring”. This is a welcome change, which reflects the fact that in law there is no such thing as “continuous cruising” and also that “continuously” in Section 17 3 c ii of the 1995 British Waterways Act refers to the length of time a boat is moored. BW has also dropped the reference to “bridge hopping”. There is no mention of a requirement for “a journey of some length” which in the April 2011 draft replaced the original 2004 requirement for a “progressive journey around the network or a significant part of it”. Instead the guidance emphasises that “short trips within the same neighbourhood, and shuttling backwards and forwards along a small part of the network do NOT meet the legal requirement for navigation throughout the period of the licence”. The reference to a “smaller” part of the network seen in the April 2011 draft is replaced with reference to “a small part” of the network.

However, a requirement for a progressive journey is implied in the paragraph stating “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”. BW also continues to maintain that it is unacceptable to stay in one place for longer than 14 days in order to maintain access to work or education. The guidance refers to the BW v Davies case and also to a Scottish case, Crown Estate Commissioners v Fairlie Yacht Slip Ltd. However, the BW v Davies judgement is a County Court judgement and therefore is not case law, because the County Court cannot create a legal precedent. In addition, the case has not been reported (published in law reports); only reported cases can be used as authorities in other cases. The judgement may well be persuasive on other judges at any level but that is all.

The reference to the Fairlie Yacht Slip case is misleading. This judgement said that navigation does not include mooring. However, this was in the context of defining whether a public right of navigation included the right to install permanent mooring equipment or structures on the sea bed. There is no public right of navigation on canals as such, and Section 17 3 c ii concerns the act of tying a boat up to the bank for a temporary period, not installing permanent mooring structures.

Both the BW v Davies judgement and the revised guidance contradict the intention of Parliament when it passed 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 – and that a boater could appeal to the Ombudsman against a refusal to renew the licence. This is clearly not BW’s policy or practice now, so there is room for a legal challenge.

Detailed, verbatim minutes of all the House of Commons and House of Lords Select Committees on the 1995 British Waterways Act exist. These are available for the public to consult and photograph in the Parliamentary Archives, located in the House of Lords. See www.parliament.uk/archives Or you can contact us if you want to know more about the archive material.

See our previous article for details of the 23 June meeting

http://kanda.boatingcommunity.org.uk/wordpress/%ef%bb%bfbw-director-denies-wishing-to-enforce-like-mussolini/

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