Resist CRT’s changes to boat licence conditions: respond by 31st March

On 30th January, CRT announced changes to the boat licence terms and conditions which it claims are not “a significant change of policy by the Trust”. However, many of these changes seek to unlawfully remove the rights of boaters contrary to the British Waterways Act 1995. To the extent that the changes are unlawful, they also fall foul of the Consumer Protection from Unfair Trading Regulations 2008, and some of the proposed changes breach the Data Protection Act 1998.

CRT has stated that these new conditions will come into effect from 1st April 2015 and invites boaters to “get in touch if you have any comments you’d like to share with us”. We urge boaters to object to these unlawful, excessive changes which NABO has described as “aggressive and unreasonable” and “not the way in which you might expect an organisation to welcome new and retain existing customers”. Please write to CRT before 31st March explaining why you object to these changes. Send your comments to licensing@canalrivertrust.org.uk

Below is an example response to the new Terms and Conditions which you can also download here Example consultation response CRT 2015 licence T&C

You can read CRT’s statement here https://canalrivertrust.org.uk/boating/licensing

You can download the table of the proposed changes here 8375-table-of-changes-to-boat-licence-terms-and-conditions-jan-2015

You can download the proposed new Terms and Conditions in full here draft-boat-licence-terms-and-conditions-revised-jan-2015

You can read NABO’s statement here http://www.nabo.org.uk/index.php/reference-section/crt/675-nabo-s-comments-on-proposed-changes-to-crt-s-licence-terms-and-conditions

See also http://kanda.boatingcommunity.org.uk/using-the-bw-complaints-process/

Example response to consultation on proposed changes to CRT boat licence terms and conditions.

Numbering refers to proposed paragraphs in CRT’s document entitled Amendments to General Terms and Conditions of Boat Licences Shown in Tabular Form (with plain English descriptions), January 2015.

General points

The general trend is to force boaters without home moorings to take moorings. The proposed changes impose equivalent restrictions on those with moorings, which will serve to squeeze live-aboard boaters off CRT waterways, which is a violation of Article 8 of the European Convention on Human Rights (the right to respect for one’s home).

To the extent that these proposed conditions are beyond CRT’s powers conferred by the 1962 and 1968 Transport Acts and the 1971, 1983 and 1995 British Waterways Acts, they go beyond CRT’s role as navigation authority. This implies that anything beyond the navigation authority role is a commercial contract and is therefore subject to the Consumer Protection from Unfair Trading Regulations 2008. The proposed conditions breach these regulations.

The consultation has not been properly carried out. Too little time has been given for boat licence holders to give proper consideration to the proposals. The consultation has not been publicised widely but has only been advertised on CRT’s own web site. Individual boat licence holders have not been contacted, even though CRT has the names and addresses of all the people who will be directly affected. The deadline for consultation responses is 31st March and CRT has declared that the new terms and conditions will be effective from 1st April. This does not give time for proper consideration of the consultation responses by CRT or for the consultation responses to be properly taken into account. It is clear that CRT intends to impose these draconian new terms and conditions on boat licence holders regardless of any “comments” from boaters. The contract will therefore be imposed under duress rather than freely entered into by both parties, and is therefore open to challenge. The duress exerted by CRT in this instance is its power under Section 8(2) of the British Waterways Act 1983 to seize and remove an unlicensed boat.

Specific points

1.5 This is unworkable. What if your mooring agreement is due to expire during your licence period and you plan not to renew it and become a cc’er? Or if your mooring agreement is unexpectedly terminated or not renewed? Or if it simply does not run concurrently with the licence? This clause removes your right to license your boat with a home mooring and then give up the mooring and become a cc’er and is therefore beyond CRT’s powers to enforce because there is nothing specific in the legislation that states that you have to keep the same licence status (17 3 c i or 17 3 c ii) for the whole of the licence period.

1.9 This is unworkable and unjust – many boaters now have tenders that are over 3m long. Will all these 3+m tenders be seized and removed? This would breach Article 1 Protocol 1 of the European Convention on Human Rights, the right to peaceful enjoyment of one’s property.

1.10 There is a difference between owner and master/ skipper regarding licensing liability. CRT does not have the power to impose joint and several liability on a person who is not named on the boat licence.

2.1 This appears to remove the right to keep a boat out of the water.

2.2 ‘Seek to verify with third parties’ implies a breach of the Data Protection Act. CRT only has the right to get information from third parties for law enforcement purposes, and these are restricted to other law enforcement bodies (such as navigation authorities). The third party has an obligation and a right not to disclose any personal information if it is not for the purpose of law enforcement.

2.3 CRT has no power to set or enforce mooring time limits of less than 14 days. BW sought these powers in 1990 but the 1995 Act does not confer them, and in the Select Committees BW confirmed that any such signs were ‘advisory’ and therefore they remain advisory to this day.

3.1 and 3.2 These are beyond CRT’s powers to enforce. s. 17 3 c i of the 1995 Act does not require a boat licensed under that section to move to a different ‘place’ after 14 days and it does not require boats licensed under s.17 3 c i to be used bona fide for navigation. This is, in essence, an attempt to impose travel requirements on all boats, both with and without moorings, similar to the ‘Lock Miles Rules’ that BW proposed 2003 and dropped following a Letter Before Action by NABO.

In the existing and proposed conditions, Schedule 2 Item 3 uses the word ‘location’ to refer to the applicability of the 14-day limit to boats licensed under s.17 3 c i. This means that, according to the conditions they are not obliged to move to a different ‘place’ after 14 days but can stay in the same ‘place’ as long as they are in a different ‘location’ after 14 days. These two conditions contradict each other. In any event, s.17 3 c i contains no provision for CRT to enforce a 14-day limit on boats with home moorings.

In 3.1, ‘cruise’ and ‘cruising’ are not defined but a CRT response to a FOI request stated that ‘cruising’ in the context of boats with home moorings means bona fide navigation. This is unlawful, as boats licensed under s.17 3 c i are only required not to be houseboats, that is, not to be static when away from their home mooring.

3.4 This removes the right to decide to give up your home mooring. It is unworkable, disproportionate and unjust.

4.1 To carry out enforcement based on the Trust’s ‘understanding’ of what is required to comply with the 1995 Act is beyond CRT’s powers to enforce.

6.4 If you are not licensed you are not required to pay; CRT has no authority to recover sums equivalent to the licence fee pro rata. Sections 17(4) and (5) of the 1995 Act provide for 28 days for the boater to remedy a breach of the Act and the 1983 Act gives CRT powers to remove unlicensed boats but that is all.

6.5 (i) Only the courts can order the recovery of legal costs from the boater; this is beyond CRT’s powers to enforce.

6.5 (ii) Overstaying charges are beyond CRT’s powers to enforce. CRT has no power to impose or enforce them. BW sought such powers in the 1990 Bill and they were not granted by Parliament, therefore time limits of less than 14 days are advisory only. Section 17 3 c ii entitles boats licensed under this section to stay longer than 14 days if reasonable, therefore this cannot be charged for: it is a right conferred by the licence.

6.5 (iii) and 8.6 If a boat is moved under Section 8(5) of the 1983 Act, CRT has no power to recover its costs. It can only recover costs if a boat is removed under Section 8(2) of the 1983 Act. Articles 6 and 8 of the European Convention mean that if you live aboard CRT is forbidden from removing the boat without due process.

6.5 (iv) CRT has no power to recover the costs of third parties, it is for the third party to do so. This also raises a Data Protection issue.

7.1 The master/skipper has sovereignty and no-one can board the boat without the master’s permission.

7.2 See 2.3 above.

7.6 How can you prove you have taken reasonable steps to prevent your visitors causing a nuisance? This gives CRT carte blanche to terminate licences unjustly. ‘Nuisance’ is undefined which adds to the possibility of this clause being used in a disproportionate and oppressive way. In any case, ‘nuisance’ requires proof of damage (Booth v Ratté [1890]).

7.7 (i) and (ii) The 1995 Act Part II deals with CRT’s powers of access over private land. These powers are for planned and emergency maintenance of the waterways. It does not confer an entitlement to access over private land in order to affix notices, correspondence etc on a boat. Only CPR Part 55 permits this. CRT cannot lawfully enter or step on your boat: the skipper/ master has sovereignty.

7.9 and 7.10 These clauses imply breaches of the Data Protection Act, unless the information is shared for law enforcement purposes and then only with other law enforcement bodies, not with private contractors, mooring providers etc.

7.12 What about licences in two names (Schedule 4 allows this). What if one of the joint licence holders dies, or they get divorced? This is completely unjust.

8.3 Internal investigations are unlawful because the person under investigation has the right not to incriminate themselves. See Blunt v Park Lane Hotel Ltd [1942]; s.14(1) of the Civil Evidence Act 1968; Heaney and McGuinness v Ireland [2001] paragraph 40 and JSC BTA Bank v Ablyazov & ors [2009]. Internal investigations violate the boater’s Article 6 rights by conducting what is effectively a criminal investigation in the context of the civil terms and conditions of the boat licence.

8.4 This is beyond CRT’s powers to enforce; you still have the right to re-apply since termination of the licence may be disputed.

8.5 This is beyond CRT’s powers to enforce. CRT is obliged to license a boat of the conditions in s.17 (3) (a) to (c) are met.

8.6 See 6.5 (iii). s.17 (4) and (5) of the 1995 Act provide for 28 days notice of removal; a requirement to remove the boat immediately is beyond CRT’s powers to enforce. Can CRT limit its liability for damage in this way? This gives them carte blanche to be negligent in removing or moving boats. This is unreasonable.

8.7 This is beyond CRT’s powers to enforce.

10.1 To deem you have accepted contractual changes by keeping your boat on the waterway contravenes the Consumer Protection from Unfair Trading Regulations 2008 as the boater has no opportunity to negotiate the terms of the contract.

11.1 Third parties’ lack of rights to enforce these terms and conditions conflicts with clause 7.10 regarding sharing information with contractors etc.

11.5 What about Wales, there are CRT waterways there.

Schedule 1: Where a craft is new (including self-build implemented under the Recreational Craft Directive) the craft is CE-labelled upon completion, having met the essential requirements during its construction. A vessel licensed by CRT must have a BSS certificate. However where a vessel is CE-labelled the licensee signs off a BSSC dispensation on the grounds of CE-labelling. Once a product is CE labelled it is unlawful for anyone (including a member state) to interfere with the fact that the product (the vessel) is deemed to meet the essential requirements and thus can be traded under the EU Trading Regulations. For a member state to impose conditions on the trading or use of CE-labelled products in fact gives rise to an offence. Therefore CRT not only has no power to insist on “spot checks” on CE-labelled products (for the period for which the exception is valid) but is in fact also committing an offence. It follows that CRT need 3 safety status modes: (1) verified by BSSC (2) exempt because of an absence of hazardous devices (gas appliances, petrol or diesel engines, solid fuel burner etc) and (3) BSS not applicable because the vessel is CE-labelled in accordance with the essential requirements of the RCD. It is important to note that the self-declaration scheme under the RCD was cast specifically to permit construction in this context and CRT is therefore seeking to subvert EU regulations. CRT has in the past done exactly this including requiring audit by a surveyor (cost obviously borne by the owner).

Schedule 2: This appears to remove the right to have a home mooring that is not on CRT’s jurisdiction. See above regarding the loss of the right to give up a mooring during the licence term.

The wording of the Guidance for Boaters Without a Home Mooring is beyond CRT’s powers to enforce: ‘Reasonable’ cannot be defined in advance, see Moore v British Waterways [2013] EWCA Civ 73 (quoting from Original Hartlepool Collieries Company v Gibb (1877).

Schedule 3: It is discriminatory not to issue 3-month licences to boaters without home moorings. What about a boater who had a 12-month licence and wanted to leave CRT waterways after a further 3 months? Or a boater who wanted to come on to CRT waters for three months from another navigation authority where they did not have a mooring? This is beyond CRT’s powers to enforce. Boats without home moorings are not required to ‘genuinely navigate for an extended period around the network’; they are required to be used bona fide for navigation throughout the period that the consent is valid. The 1995 Act does not provide for a limit on the length of time that the consent is valid. As long as they are used as such throughout the period of the licence, they are complying.

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