What to do if CRT tell you your boat has not been sighted in enough “neighbourhoods” in three months

This month, many boaters received a letter from CRT alleging that their boat was sighted in less than the “required” number of “neighbourhoods” between Bath and Foxhangers during the three months from June to August 2014. These letters amount to harassment. The K&A Interim 12-month Local Plan was proposed and consulted on as a voluntary agreement, and therefore CRT cannot now state that boaters are “required” to travel through a specific number of “neighbourhoods”. One of the letters is pictured below.

20140917_Local_Plan_Letter2

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Many of the boaters who received these letters have travelled much further and have moored in many more places than CRT has alleged. This is because CRT’s system of taking boat sightings once every 14 days cannot record boats in places where they have stayed for 14 days or less. This system will inevitably include multiple errors and according to a professor of statistics quoted by NABO, the statistical probability of any accuracy in recording boat movements is likely to be zero. Errors will also occur if a boat has spent time west of Bath or east of Foxhangers. In addition, boats that have moved to a different place after 14 days or less are being treated as not having moved if they are sighted in the same “neighbourhood”, even though they are complying with the law by travelling to a different place (as opposed to only moving a few hundred metres).

In addition, there is no clarity over the number of “neighbourhoods” that CRT is “requiring” boats to be sighted in over three months. The K&A Plan states that it is six “neighbourhoods” in three months but the Summary report on the K&A Local plan for 1 May to 31 July states that it is four “neighbourhoods”. Other sources have stated that the benchmark is five “neighbourhoods” in three months.

We recommend that if you receive one of these letters that you make a formal complaint, in writing, in line with CRT’s complaints procedure. You can download and read an example letter of complaint below. Why complain? Bullying and harassment cannot be stopped by ignoring it. We also recommend that you also keep detailed records of your own boat movements, if possible by logging the GPS co-ordinates (this can be done with a smart phone) of each place that you are moored and the dates that you arrived and left, including brief stops to use facilities or to turn round.

CRT does not have the legal power to define statutory words such as “place” in Section 17 (3) (c) (ii) of the British Waterways Act 1995. Neither does it have the power to delete places from the map or to designate “neighbourhoods” or boundaries that boats must travel through in order to be deemed to have travelled to a different place. Nor does CRT have legal the power to set distances that must be travelled in order to comply with Section 17 (3) (c) (ii) or to specify any particular travel pattern beyond what is stated in Section 17 (3) (c) (ii). In addition, CRT does not have the legal power to define when a stay of longer than 14 days is or is not “reasonable in the circumstances” or to grant or withhold permission for a longer stay. In setting such requirements in the K&A Interim 12-month Local Plan and in purporting to enforce these requirements, CRT is acting outside its legal powers.

“Let us be quite clear, neighbourhoods do not define place. It is quite legitimate for a boater to spend up to 14 days twice in the same neighbourhood” Geoffrey Rogerson, NABO Council Member for Legal Affairs (who received one of these letters and complained about it).

You can download the example complaint here Example complaint re 3 month neighbourhood letter

You can read the example complaint below.

See also

http://kanda.boatingcommunity.org.uk/what-to-do-if-crt-tell-you-that-you-have-incurred-a-25-extended-stay-charge/

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/boater-writes-cruising-log-app/

http://kanda.boatingcommunity.org.uk/crt-releases-first-report-on-ka-interim-12-month-local-plan/

http://kanda.boatingcommunity.org.uk/crt-places-maps-were-leaked/

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

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

Example complaint:

To kamooring@canalrivertrust.org.uk

Your Ref: KA4N/

Dear Sir or Madam

Level 1 complaint: Kennet and Avon Interim 12-month Local Plan: 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 alleging that my boat has been sighted in less than the required number of “neighbourhoods” between Bath and Foxhangers during the three months June to August 2014 and that my boat movements do not meet the requirements of the K&A Interim 12-month Local Plan.

In the four months between May 2014 and August 2014 I have travelled between XXXX and XXXX [INSERT PLACE NAMES AND RETURN JOURNEYS IF YOU HAVE TURNED ROUND] on the Kennet and Avon canal. I have moored my boat in XX [INSERT NUMBER] different places. I have not remained for longer than 14 days in any one place during this period, except when it was reasonable in the circumstances to stay longer than 14 days.

I have therefore complied with Section 17 (3) (c) (ii) of the British Waterways Act 1995. Any requirement that you have set, such as the K&A Interim 12-month Local Plan, to do more than what is stated in section 17 (3) (c) (ii) is unlawful and I am not obliged to comply with it. I therefore view your letter as harassment and I require you to cease and desist from harassing me. If you send me any further letters I will report you to the Police for contravention of the Protection from Harassment Act 1997.

CRT does not have the legal power to define statutory words such as “place” in Section 17 (3) (c) (ii) of the British Waterways Act 1995. Neither does it have the power to delete places from the map or to designate “neighbourhoods” or boundaries that boats must travel through in order to be deemed to have travelled to a different place. Nor does CRT have legal the power to set distances that must be travelled in order to comply with Section 17 (3) (c) (ii) or to specify any particular travel pattern beyond what is stated in Section 17 (3) (c) (ii). In addition, CRT does not have the legal power to define when a stay of longer than 14 days is or is not “reasonable in the circumstances” or to grant or withhold permission for a longer stay. In setting such requirements in the K&A Interim 12-month Local Plan and in purporting to enforce these requirements, you are acting outside your legal powers.

CRT’s lack of power to enforce the criteria for boat movements set out in the K&A Interim 12-month Local Plan is evidenced by the Minutes of the House of Commons Select Committee on the British Waterways Bill, 1993-94. The Select Committee rejected the “no return within” restrictions proposed in an amendment (House of Commons Select Committee on the British Waterways Bill, 1993-94). As a consequence this means that any requirement to travel through a specific number of places or “neighbourhoods” is unlawful. The Select Committee also rejected any requirement for a boater to have BW’s permission to stay longer than 14 days if it is reasonable in the circumstances.

CRT cannot enforce compliance with additional conditions such as the K&A Interim 12-month Local Plan that extend the effect of Section 17 (3) (c) (ii) of the British Waterways Act 1995 by exercising any powers under Section 43 of the Transport Act 1962. Section 43 of the 1962 Act cannot be used to circumvent Section 17 (3) (c) (ii) of the 1995 Act due to the doctrine of implied repeal by subsequent legislation. The British Waterways Act 1995 restricts CRT’s ability to revoke or refuse licences to the three conditions set out in Section 17 of the 1995 Act. Any former legislation that is incompatible with the British Waterways Act 1995 is automatically deemed abolished under the doctrine of implied repeal. I refer you to the authorities of Vauxhall Estates v Liverpool Corporation [1932] DC and Ellen Street Estates Ltd v Minister of Health [1934] CA.

The authority of Moore v British Waterways [2013] EWCA Civ 73 also confirms that CRT does not have the power to impose the restrictions you have accused me of breaching. It confirms the public right in common law to do anything that is not expressly forbidden by statute. In the Moore case, CRT/BW argued that Section 43 of the Transport Act 1962 gave it authority to impose whatever restrictions it wished. This argument did not succeed. 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 no legislation that prohibits me from using my boat in the way that I have stated above and therefore CRT does not have the statutory power to prevent me from doing so.

In addition, it is a fundamental principle of British law that a body that exercises statutory powers cannot do anything that is not authorised by statute. If an action is not authorised by statute, the body exercising statutory powers is forbidden to take that action. Enforcement of the K&A Interim 12-month Local Plan is not authorised by statute. Therefore CRT is forbidden from enforcing it and it remains advisory only. I refer you to the authorities of Swan Hill (Developments) and Others v British Waterways Board [1997] EWCA Civ 1089; McCarthy and Stone (Developments) Ltd v Richmond upon Thames LBC [1989] UKHL 4 and Proprietors of the Stourbridge Canal v Wheeley [1831] 2 B & Ad 792.

You have alleged that my boat has been sighted in less than the required number of “neighbourhoods” between Bath and Foxhangers during the three months June to August 2014. However you have not told me how many “neighbourhoods” my boat has been sighted in, and you have not provided me with a copy of your records of your sightings of my boat. To make an allegation without providing any exact evidence is additional harassment.

As I have already stated, I have moored my boat in XX different places during the months from May to August. If your system of logging boat sightings has not recorded all the places my boat has have travelled through or has been moored, then the system that you are using is inherently unfair, unjust and unfit for purpose. Any enforcement that you carry out as a result of such incomplete records of my boat movements will be open to challenge by a court.

In any event, because I have moored my boat in XX places during the period May to August and have travelled between XXXX and XXXX over this period, I have in fact met the criteria for boat movements that you advise in the Kennet and Avon Interim 12-month Local Plan.

[INCLUDE ANY OTHER COMPLAINT HERE SUCH AS SENDING YOU A LETTER WITH THE WRONG BOAT NAME OR NUMBER, GETTING YOUR NAME WRONG, ETC]

Finally, you have not sent me a copy of the Kennet and Avon Interim 12-month Local Plan. [DELETE THE ABOVE IF CRT DID SEND YOU A COPY]

Your letter of XX XX XXXX therefore 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, correct and complete records of my boat movements in future.

2. Withdraw the letter dated XX XX XXXX and mark it as “created in error” on your records.

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

I would add that my fees for consultation are £75 per hour. I shall bill CRT for any further time that I am required to spend on this matter at this rate. Should I receive further correspondence from CRT alleging that my boat movements do not meet the requirements of the K&A Interim 12-month Local Plan or the requirements of the British Waterways Act 1995, I shall deem this as acceptance by CRT of agreement to be billed.

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

Yours sincerely

Harassed boater

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