CRT today published its final decision on the Towpath Mooring Plan for the K&A between Bath top lock and Lower Foxhangers (Devizes). The finalised plan includes a number of unlawful elements and others that contradict CRT’s stated aim of providing clear local mooring guidance. In addition, following the logic of the roving mooring permit debacle, CRT will be legally obliged to offer the same deal to boaters on the rest of its waterways if the Towpath Mooring Plan is implemented permanently once a trial has been completed. The plan introduces requirements that boaters between Bath and Foxhangers must follow if they are to avoid enforcement over the 12 months from 1st May. This is contrary to the Local Waterway Partnership’s statement that the Towpath Mooring Plan is a voluntary agreement which guarantees boaters freedom from enforcement if they follow it.
The key requirements are:
A schedule of “neighbourhoods” to “clarify” movement requirement after 14 days
A fair and consistent approach to handling applications for “exceptional overstays”
Move every 14 days or such longer period as is reasonable in the circumstances
Moor in different “neighbourhoods” and no bridge-hopping
A range of movement exceeding 20km in a licence year and movement should be broadly progressive through “neighbourhoods”
Fair consistent enforcement of the 14 day rule
Further investigation of a ‘points’ system similar to that used in driving licences
All visitor mooring maximum stay times at 48 hours/2 days in the area, pending a fuller review of visitor moorings over the coming year
Maximum of 7 days per month at any visitor mooring
Imposition of extended stay “charges” at £25 per day
Unpaid extended stay “charge” debts will not prevent the renewal of a boat licence but will be collected through normal debt collection processes
Local guidance to encourage consideration of anglers’ need for pegging space and space between boats when mooring on the towpath
New signage, boundary markers and maps where necessary
Reporting anonymised overall cruising patterns
Customer access to own cruising records on request
Sharing of performance monitoring
A number of these requirements are unlawful. Firstly CRT has effectively re-introduced a requirement for a “progressive journey”, which BW dropped from the Guidance for Boaters Without a Home Mooring following the judgement in 2011 in BW v Davies. Secondly, a minimum distance is not required by Section 17 3 c ii of the 1995 British Waterways Act and for CRT to set one would be unlawful, something that CRT itself confirmed in its December 2012 Towpath Mooring Q and A.
The use of the term “neighbourhood” rather than “place” unlawfully changes the meaning of a statutory word, something that CRT does not have the power to do: the meaning of “neighbourhood” implies a larger area than “place”. In addition, the list of “neighbourhoods” is inaccurate. It excludes some places, such as Limpley Stoke, that exist on the map, and it draws many boundaries wrongly, such as the boundary between Bathampton and Claverton.
The restriction of “or such longer period as is reasonable in the circumstances” to short-term periods is unlawful as there is case law (Moore v British Waterways 2013) stating that “reasonable” cannot be defined in advance. Issuing permission to stay longer is also unlawful because permission is not required by Section 17 3 c ii, only that the longer stay is reasonable; the House of Commons Select Committee that drafted the 1995 Act actually rejected a requirement for BW’s permission to stay longer than 14 days.
Similarly, CRT has no power to impose visitor mooring time limits, maximum stays per month or “extended stay” charges; BW provided evidence to the Select Committee that drafted the 1995 Act that all such signs were advisory at the time, and they remain advisory to this day because the legislation regarding visitor moorings and overstaying fines that BW wanted was denied by the Select Committee.
The requirement to leave space for anglers contradicts CRT’s aim of providing clear local mooring guidance. It will be impossible to tell which boat failed to leave a gap as boats move around all the time; this cannot be enforced fairly.
We have serious concerns about CRT’s statement that “the purpose of the 12 month period is to enable those boaters without a home mooring based in this area a period of time to regularise their movement so that, after this, they can then comply with the relevant legislation and the Trust’s Guidance”. This implies that the Towpath Mooring Plan will only be a 12-month trial and that it is a precursor to more draconian changes after 12 months that will cause homelessness amongst boaters without home moorings.
The final report also confirms that CRT has placed far more weight on the consultation responses of “membership organisations” that “expressed reservations about some aspects of the proposal” compared to the majority of the individual respondents who gave wholehearted support to many of the key consultation questions.
There is still no sign of the accompanying Equality Impact Assessment of the Towpath Mooring Plan that CRT was legally required to carry out and claimed to have done.
You can download CRT’s final report here CRT Final Report K&A Towpath Mooring Plan