The National Association of Boat Owners (NABO) have given us permission to publish the following extracts, first from the Chairman’s editorial in the latest edition of NABO news, secondly their complaint to British Waterways about their continual ‘interpretations’ of the various laws.
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In previous issues I have written about the need to take legal advice over a variety of BW licence conditions. We went ahead and spent a considerable sum on this during the summer.
The legal team have now given us some 20 pages of close-typed wisdom, which will help us to understand the Acts and gain an insight as to what a senior Court might say. It has been very revealing and not surprisingly, there is a range of opinion that does not match up with the interpretation by BW over very many issues.
So what to do next?
The benefit of such advice is not gained by publishing it all. The issues are opinion and in any future court case or discussion with BW it does not help if we show our hand. BW has a lot at stake with this and can be expected to try and outgun us with legal teams all paid for, at least in part, with licence money. So we have to be a bit more subtle. We made a start by making a formal complaint to BW over four well-known licensing issues.
BW have interpreted these in their licence conditions when common sense says that they are wide of what is reasonable, and our legal advice is that, in their opinion, is not in accordance with the law. The letter is included elsewhere in this edition.
As I write, we have just received their response. Have they rolled over and agreed with us? Of course not, and we will have to take it further.
In summary, they say that the Transport Act of 1962 gives them wide discretionary powers and they can do as they think fit with licence conditions, not withstanding the wording of later Acts. I wonder why Parliament bothered with Acts such as 83 and 95? They might just as well have left it all to BW. Oh dear, we are going to be unpopular again.
More generally on licence and moorings issues, BW is taking action on the K & A in a major way. And about time too many will say. Some cases are very clear, but others less so and of course there are innocents caught up in the excitement.
Council members have been involved to try and understand what is happening and ensure that members have the necessary knowledge to respond to BW, to correct them when they are clearly in the wrong, and present their own information when this has not been taken into account. This is NABO at its best, and the legal opinion helps Council to better understand the law, where it is hard, and where it is opinion.
BW would have us believe that its opinion is the law, but in fact this can only be tested in court. I think this is really important for all boat owners.
BW cannot manage the waterways on the basis of its own legal opinion.
The text of the letter to British Waterways follows;
GENERAL TERMS AND CONDITIONS FOR BOAT LICENCES
Formal complaint re British Waterways exceeding their powers under existing legislation
Following the revision to General Terms and Conditions for Boat Licences in October 2008, NABO has received questions and complaints from the membership about aspects of the document which appear to be at variance with the written law. Accordingly we have sought legal guidance through our solicitor, Shakespeare Putsman, and legal Counsel. We list below the key issues of our complaint.
- British Waterways may not legally deny or withhold a licence if a boater breaches the continuous cruising guidelines which do not have the force of law but are stated as a requirement in the Terms and Conditions.
- Boats with a permanent mooring under BW Act 1995 section 17 iii (c) (i) contrary to the wording of the Terms and conditions are not bound by, or subject to, the 14 day rule.
- BW do not have general authority to remove boats over-staying mooring time limits under the 1983 Act s 8 (5) nor can such boats be regarded as an obstruction to navigation.
- BW do not have general powers to interpret the law, and specifically not in the case of BW Act 1995 s 17 (c) (ii) to define navigation.
NABO considers that BW does not have the freedom to introduce changes to the terms and conditions including the moorings guidelines and thus the way in which the law may be applied to boat owners. In consultation, BW staff have stated to NABO that BW have additional rights as a land owner which are over and above the conditions governed by Act of Parliament. NABO understands, following legal advice, that BW’s powers are limited and conditioned by its statutory powers and there are no other special powers available.
NABO has always been entirely supportive of strong and well understood licence terms and conditions, underwritten by legislation, to support the current critical situation on the towpath.
NABO observes that British Waterways:
- Fails to acknowledge the written law.
- Takes upon itself to interpret the law.
- Takes action against users with interpretations masquerading as law.
- Makes no effort to remedy the situation by introducing legislation to empower the management of the waterways.
This is an unsatisfactory situation, unclear and unfair to boaters, and open to misinterpretation by enforcement staff and the courts.
Please record that as a formal complaint in your procedure. We look forward to your reply within 21 days. Any response should be to the writer at the above address or email address.
for and on behalf of the council of the National Association of Boat Owners.
Geoffrey Rogerson, Council member.
As stated above in the Chairman’s Column BW have replied. We cannot publish the full text of this reply as it will have to be released to NABO members first.
NABO has just had a resonse to this letter from Jackie Lewis, BW’s ‘Legal
Head’, claiming BW has powers under the 1962 BW Act Section 43(3) to
set conditions ‘as it thinks fit’. NABO will investigate further as to how a
Court of Law might accept these powers.