What to do if CRT tell you that you have incurred a £25 extended stay “charge”

A number of boaters have received letters from CRT alleging that they have overstayed on Visitor Moorings and either demanding £25 per day “extended stay charge” or stating that CRT could have imposed a charge of £25 per day but it was waived it in this instance as the Local Plan has not been in place for very long. We recommend that anyone who receives one of these letters makes a formal complaint. You can use one of the example complaint letters below. It is advisable to carry out all correspondence in writing if you can do so, and to keep copies of the letters or emails. The text of the letter that CRT has sent to some boaters is at the end of this article.

Here are the example complaint letters to download

Example complaint re £25 VM charge if you did NOT overstay or CRT got wrong details

Example complaint re £25 VM charge if you overstayed

The text of these complaint letters is at the end of this article.

CRT does not have the legal power to collect these overstaying charges, and nor does it have the legal power to designate mooring time limits of less than 14 days. CRT cannot prevent you from renewing your boat licence if you do not pay these extended stay charges. There are only three lawful reasons that CRT can refuse to renew a boat licence; these are set out in Section 17(3) (a) to (c) of the British Waterways Act 1995. They are (a) if there is no insurance; (b) if there is no Boat Safety Certificate and (c)(i) if CRT is not satisfied that there is a home mooring or (c)(ii) if CRT is not satisfied that you will “continuously cruise”.

It is unlawful for any organisation to take money that you have paid for one purpose, such as your boat licence renewal, and use it towards a debt incurred in a separate matter. In all the cases that we know of where boaters have challenged overstaying charges, CRT (and BW before it) has backed down and has not taken action to recover the alleged debt. If CRT had a lawful right to collect an “extended stay charge” debt, it would have to make a Small Claim against you in the County Court; this is the normal procedure for recovery of debts less than £5,000.

CRT has stated that it will no longer allow boaters to stay at Visitor Mooring free of charge for longer than 48 hours if they need road access or a hard edge for repairs to be carried out. However, a boater who was unable to move her boat because she was alone with two small children and it was not safe to move the boat until her partner had returned was treated more sympathetically. She was told that this was an acceptable reason for overstaying, but later received a letter waiving the £25 per day “charge”.

Please contact info@boatingcommunity.org.uk or 07928 078208 if you would like help with making a complaint. See our article on using the CRT complaints procedure here

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

See also

http://kanda.boatingcommunity.org.uk/last-request-of-retiring-head-of-boating-our-analysis-of-the-ka-interim-12-month-local-plan/

http://kanda.boatingcommunity.org.uk/se-visitor-mooring-consultation-example-response/

http://kanda.boatingcommunity.org.uk/overstay-charges-bw-asks-will-people-pay/

Here is the text of the example complaints:

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Example complaint if you did NOT overstay or CRT got the wrong details etc

To kamooring@canalrivertrust.org.uk

Dear Sir or Madam

Level 1 complaint: Visitor Mooring “extended stay” charges

Boat name: XXXXX Reg no: XXXXX

This is a Level 1 complaint in line with the CRT complaints procedure. I am not satisfied with your letter dated XX XX XXXX regarding charges for alleged overstaying on the Visitor Mooring at XXXX.

DELETE ONE OF THE SENTENCES BELOW AS APPLICABLE:

EITHER

I did not stay longer than 48 hours on the Visitor Mooring at XXXX. I arrived at XXXX hours on XX XX XXXX and I left at XXXX hours on XX XX XXXX. I am not therefore liable to pay an extended stay charge.

OR:

The sign on Visitor Mooring at XXXX says 72 hours, not 48 hours. I arrived at XXXX hours on XX XX XXXX and I left at XXXX hours on XX XX XXXX.

[OR include any other complaint here such as sending you a letter with the wrong boat name or number, etc]

I am not therefore liable to pay an extended stay charge. In any event the charges and mooring time limits are unlawful and I view your letter as harassment.

CRT does not have the legal power to set mooring time limits of less than 14 days, to set “no return within” or “maximum days per month” time limits; to erect signs denoting mooring time limits of less than 14 days or to impose fines or charges for the infringement of mooring restrictions. In doing so you are acting outside your legal powers.

CRT’s lack of power to take this action is evidenced by the Minutes of the House of Commons Select Committee on the British Waterways Bill, 1993-94. CRT has the power under s.43 of the 1962 Transport Act to make charges and set conditions for such services and facilities for which the original canal companies provided and were enabled to make charges for under the original canal Enabling Acts (such as the 1793 Grand Junction Canal Act). However, BW confirmed to the House of Lords Select Committee on the British Waterways Bill in 1991 that it had no statutory powers to enforce such mooring restrictions or charges, and this is still the case today.

The judgement in Moore v British Waterways [2013] EWCA Civ 73 confirms that CRT does not have the power to impose the restrictions you have accused me of breaching and the charges that you are attempting to levy. It confirms the public right in common law to do anything that is not expressly forbidden by statute. CRT does not have a statutory power to prevent boats from exceeding the time limits on visitor mooring signs; it does not have a statutory power to prevent boats from returning within a specific period, and it does not have a statutory power to impose fines for exceeding such time limits or charges for staying longer.

In Moore v British Waterways [2013], CRT argued that s.43 of the 1962 Act gave it authority to impose whatever restrictions it wished. This argument did not succeed. In the case of Mr Moore, there is no other legislation that provides CRT with the power to restrict mooring. The inference is that s.43 of the 1962 Act can only be construed to ride on top of some other statutory power available to CRT at any given time. The judgement clarified that in a democratic society, a citizen’s rights include a general right to do something unless it is restricted or prohibited in statute. There is nothing in the British Waterways legislation that prohibits mooring and therefore it must be assumed that there is a right to moor. The judgement also stated that this right does not include the right to moor indefinitely, but the root of that conclusion lies elsewhere in common law.

Further to this, in the 1990 Bill that became the 1995 British Waterways Act, BW sought powers to impose fines for a breach of a mooring restriction. BW also sought powers in the 1990 Bill to erect signs designating mooring restrictions. Parliament forbade BW to impose fines for violation of a mooring restriction. As a result of this, BW withdrew the wording relating to the erection of signs designating mooring restrictions. BW had previously presented evidence that stated that its signs for mooring restrictions were advisory in nature. BW also withdrew the wording relating to the designation of mooring restrictions. Therefore, signs denoting visitor mooring time limits remain advisory to this day and not compulsory. The only mooring time limit that CRT has the statutory power to enforce is the 14-day limit applying to boats without home moorings in s.17 3 c ii of the 1995 British Waterways Act.

The Commons Select Committee also rejected any “no return within” restrictions (House of Commons Select Committee on the British Waterways Bill, 1993-94). As a consequence this means that any “no return within” or “maximum days in any period” restrictions also remain advisory and not compulsory.

The judgement in McCarthy and Stone (Developments) Ltd v Richmond upon Thames LBC [1989] UKHL 4 in which reference is also made to the authority given in Attorney-General v Wilts United Dairies Limited [1922] 38 TLR 781 (HL) further underlines the principle that a body exercising statutory powers such as CRT may not make a charge unless there is express authorisation in statute to provide the service which is being charged for and to make the charge.

In addition, the level of the charge at £25 per day bears no relationship to any proper charge for the use of the waterways nor to the actual loss or costs associated with overstaying. It is therefore in the nature of a fine or penalty. The fixed daily element is inconsistent with a calculation of the cost of enforcement because such costs cannot increase in this way and cannot realistically be considered to do so. The charge is fixed at a level to make it impossible to stay for any extended period. It amounts to £9,125 per annum compared to an average annual mooring fee of around 30% of that sum. This makes it a fine and not a charge. BW conceded in 2009 (for example in an email from Sally Ash to Keith Rossiter of Bathampton Parish Council) that it does not have the power to levy fines for overstaying. It is therefore outside the powers in s.43 of the 1962 Transport Act. Any inclusion in the terms and conditions of the boat licence of a requirement to pay such charges does not bring these charges within the powers available to CRT under s.43 of the 1962 Transport Act.

The 1962 Act allows for charges to be made for services and facilities and this is clearly intended to cover reasonable remuneration for those services. However, the charge must relate to the value of what is provided or other associated costs incurred by CRT. As regards the use of land the value is the value of the occupation or the consequential damages (see the judgement in MOD v Ashman [1993] 25 HLR 513).

CRT and BW have in the past asserted that they may levy such charges simply by virtue of their rights as landowner. This is misleading because a body exercising statutory powers cannot rely on the common law rights of a landowner to empower it to levy such charges (see for example the judgement in Swan Hill Developments v British Waterways Board [1997] EWCA Civ 1089). However, in such cases, the charging regime is a matter of contract between CRT and a licence holder. The overstaying charge is a liquidated sum payable in the event of breach of contract and the amount amount must be a genuine pre-estimate of loss (see for example the judgement in The Paragon [2009] 1 CLC 379) which in this case it is not since it is a flat-rate daily amount.

Your letter regarding the £25 per day charge amounts to harassment. To remedy my complaint please do the following:

1. Correct your records of your sightings of my boat and provide me with written assurance that you will keep accurate and correct records of my boat movements in future.

2. Provide me with written assurance that you will cease and desist from harassing me.

Thank you. I look forward to your reply within 15 working days.

Yours sincerely

Harassed Boater

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Example complaint if you DID overstay

To kamooring@canalrivertrust.org.uk

Dear Sir or Madam

Level 1 complaint: Visitor Mooring “extended stay” charges

Boat name: XXXX Reg no: XXXX

This is a Level 1 complaint in line with the CRT complaints procedure. I am not satisfied with your letter dated XX XX XXXX regarding charges for overstaying on the Visitor Mooring at XXXX. The charges and mooring time limits are unlawful and I view your letter as harassment.

CRT does not have the legal power to set mooring time limits of less than 14 days, to set “no return within” or “maximum days per month” time limits; to erect signs denoting mooring time limits of less than 14 days or to impose fines or charges for the infringement of mooring restrictions. In doing so you are acting outside your legal powers.

CRT’s lack of power to take this action is evidenced by the Minutes of the House of Commons Select Committee on the British Waterways Bill, 1993-94. CRT has the power under s.43 of the 1962 Transport Act to make charges and set conditions for such services and facilities for which the original canal companies provided and were enabled to make charges for under the original canal Enabling Acts (such as the 1793 Grand Junction Canal Act). However, BW confirmed to the House of Lords Select Committee on the British Waterways Bill in 1991 that it had no statutory powers to enforce such mooring restrictions or charges, and this is still the case today.

The judgement in Moore v British Waterways [2013] EWCA Civ 73 confirms that CRT does not have the power to impose the restrictions you have accused me of breaching and the charges that you are attempting to levy. It confirms the public right in common law to do anything that is not expressly forbidden by statute. CRT does not have a statutory power to prevent boats from exceeding the time limits on visitor mooring signs; it does not have a statutory power to prevent boats from returning within a specific period, and it does not have a statutory power to impose fines for exceeding such time limits or charges for staying longer.

In Moore v British Waterways [2013], CRT argued that s.43 of the 1962 Act gave it authority to impose whatever restrictions it wished. This argument did not succeed. In the case of Mr Moore, there is no other legislation that provides CRT with the power to restrict mooring. The inference is that s.43 of the 1962 Act can only be construed to ride on top of some other statutory power available to CRT at any given time. The judgement clarified that in a democratic society, a citizen’s rights include a general right to do something unless it is restricted or prohibited in statute. There is nothing in the British Waterways legislation that prohibits mooring and therefore it must be assumed that there is a right to moor. The judgement also stated that this right does not include the right to moor indefinitely, but the root of that conclusion lies elsewhere in common law.

Further to this, in the 1990 Bill that became the 1995 British Waterways Act, BW sought powers to impose fines for a breach of a mooring restriction. BW also sought powers in the 1990 Bill to erect signs designating mooring restrictions. Parliament forbade BW to impose fines for violation of a mooring restriction. As a result of this, BW withdrew the wording relating to the erection of signs designating mooring restrictions. BW had previously presented evidence that stated that its signs for mooring restrictions were advisory in nature. BW also withdrew the wording relating to the designation of mooring restrictions. Therefore, signs denoting visitor mooring time limits remain advisory to this day and not compulsory. The only mooring time limit that CRT has the statutory power to enforce is the 14-day limit applying to boats without home moorings in s.17 3 c ii of the 1995 British Waterways Act.

The Commons Select Committee also rejected any “no return within” restrictions (House of Commons Select Committee on the British Waterways Bill, 1993-94). As a consequence this means that any “no return within” or “maximum days in any period” restrictions also remain advisory and not compulsory.

The judgement in McCarthy and Stone (Developments) Ltd v Richmond upon Thames LBC [1989] UKHL 4 in which reference is also made to the authority given in Attorney-General v Wilts United Dairies Limited [1922] 38 TLR 781 (HL) further underlines the principle that a body exercising statutory powers such as CRT may not make a charge unless there is express authorisation in statute to provide the service which is being charged for and to make the charge.

In addition, the level of the charge at £25 per day bears no relationship to any proper charge for the use of the waterways nor to the actual loss or costs associated with overstaying. It is therefore in the nature of a fine or penalty. The fixed daily element is inconsistent with a calculation of the cost of enforcement because such costs cannot increase in this way and cannot realistically be considered to do so. The charge is fixed at a level to make it impossible to stay for any extended period. It amounts to £9,125 per annum compared to an average annual mooring fee of around 30% of that sum. This makes it a fine and not a charge. BW conceded in 2009 (for example in an email from Sally Ash to Keith Rossiter of Bathampton Parish Council) that it does not have the power to levy fines for overstaying. It is therefore outside the powers in s.43 of the 1962 Transport Act. Any inclusion in the terms and conditions of the boat licence of a requirement to pay such charges does not bring these charges within the powers available to CRT under s.43 of the 1962 Transport Act.

The 1962 Act allows for charges to be made for services and facilities and this is clearly intended to cover reasonable remuneration for those services. However, the charge must relate to the value of what is provided or other associated costs incurred by CRT. As regards the use of land the value is the value of the occupation or the consequential damages (see the judgement in MOD v Ashman [1993] 25 HLR 513).

CRT and BW have in the past asserted that they may levy such charges simply by virtue of their rights as landowner. This is misleading because a body exercising statutory powers cannot rely on the common law rights of a landowner to empower it to levy such charges (see for example the judgement in Swan Hill Developments v British Waterways Board [1997] EWCA Civ 1089). However, in such cases, the charging regime is a matter of contract between CRT and a licence holder. The overstaying charge is a liquidated sum payable in the event of breach of contract and the amount amount must be a genuine pre-estimate of loss (see for example the judgement in The Paragon [2009] 1 CLC 379) which in this case it is not since it is a flat-rate daily amount.

DELETE ONE OF THE SENTENCES BELOW AS APPLICABLE:

EITHER

Your attempt to impose a £25 per day charge on me amounts to harassment. To remedy my complaint please provide me with written assurance that you will cease and desist from harassing me.

OR

Your statement that you will waive the £25 per day charge in this instance amounts to a threat. To remedy my complaint please provide me with written assurance that you will not harass me in future.

Thank you. I look forward to your reply within 15 working days.

Yours sincerely

Harassed Boater

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Below is the text of the letter that CRT has sent to some boaters:

“Visitor Mooring – extended stay charge

From 1st May 2014, as part of the interim 12 month local plan, visitor moorings on the Kennet & Avon Canal between Bath and Foxhangers have been designated as 48 hours free mooring. Boats that stay longer than this will be subject to a daily £25 extended stay charge.

You may use a particular visitor mooring for a maximum of 7 days in a calendar month. Exceeding this will also incur a daily £25 extended stay charge.

Our sightings indicate that you have been moored for longer than the free period at the visitor moorings at ____________________. For each additional day that your boat is moored you are now be subject to the daily £25 extended stay charge. We will send you an invoice for the total amount at the end of the month, and payment is due within 28 days.

We appreciate that the local plan has only been in place for short time and you may not have familiarised yourself with the new arrangement, so on this occasion only, we will waive the charges accrued so far providing you move your boat away from the visitor mooring site right away.

Yours sincerely

Debbi Figueiredo

Boating Co-ordinator”

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One Response to “What to do if CRT tell you that you have incurred a £25 extended stay “charge””

  1. Phil MonsterID Icon Phil says:

    I am currently on the Grand Union canal, near Milton Keynes. I recently noticed there are signs at Cosgrove saying that you cannot moor there for more than 14 days per YEAR! Is that legal? I have never seen this anywhere else on the system. (I have not moored there yet) 🙁

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