NATIONAL BARGEE TRAVELLERS ASSOCIATION
8th December 2014
DISTANCE NOT IMPORTANT IN CONTINUOUS CRUISING: THE COURT JUDGEMENT CRT TRIED TO HIDE
A recent judgement in a Section 8 case confirms that it would be unlawful for Canal & River Trust (CRT) to set a minimum distance that continuous cruisers must travel to comply with the law.
The judgement in the case of CRT v Mayers states that repeated journeys between the same two places would be “bona fide navigation” if the boater had specific reason for making repeated journeys over the same stretch of canal. HHJ Halbert also stated that any requirement by CRT to use a substantial part of the canal network was not justified by Section 17(3)(c)(ii) of the British Waterways Act 1995 because the requirement to use the boat bona fide for navigation is “temporal not geographical”.
In addition, Judge Halbert determined that a boat with a permanent mooring is not required ever to use its mooring. Indeed, during the course of argument CRT conceded that if Mr Mayers acquired a home mooring, he would be left undisturbed even if he did not use the mooring, provided that he did not exceed the limit of 14 days in one place.
The judgement was handed down in November 2013 but CRT has not published it, unlike other judgements in Section 8 cases. Yet despite knowing about this judgement for a year, CRT is currently attempting to set a minimum distance that continuous cruisers must travel in order to comply with the law.
CRT held two meetings with boating user groups on 22nd September and 3rd November 2014 in which it tried to persuade the groups to agree a minimum distance that boaters without home moorings must travel every three months and over their licence year to avoid enforcement action. CRT did not disclose this judgement at either meeting.
In 2011, BW re-wrote the Mooring Guidance for Continuous Cruisers to remove the words “the law requires a genuine progressive journey (a cruise) around the network or a significant part of it” as a result of the judgement in British Waterways (BW) v Davies. The guidance was renamed Guidance for Boaters Without a Home Mooring.
In 2003, British Waterways tried to introduce the Draft Moorings Code or Lock Miles Rules, which would have required continuous cruisers to travel at least 120 different lock-miles every three months without using the same stretch twice. This draconian proposal was dropped by British Waterways following the threat of legal action by a boating user group and in 2004 the Mooring Guidance for Continuous Cruisers was published instead.
In spite of this judgement CRT started court action in early 2014 against a boat dweller who did not use his home mooring. It has now dropped the Section 8 claim against liveaboard Tony Dunkley.
The relevant paragraphs of the CRT v Mayers judgement are reproduced below.
I consider the requirement imposed by CRT that a substantial part of the network is used cannot be justified by relying solely on section 17(3). That section requires “bona fide navigation throughout the period of the licence” not “bona fide navigation throughout the canal network”. The requirement is temporal not geographical. In my view it does NOT follow from:
“Such journey or cruise must take place “throughout the period of the licence”
“therefore requires progression round the network or at least a significant part of it”
If a person who lived permanently on his or her boat had specific reason for making repeated journeys over the same stretch of canal between two points sufficiently far apart to be regarded as different places, it would in my view be purposeful movement by water from one place to another and hence “bona fide navigation”. In the course of argument I used the example of someone who lived on his boat but was also using the vessel commercially to move coal from a mine to an iron foundry only a few miles away and then returning empty for another load.
To take an extreme example, in its heyday, the Mersey Ferry operated continuously to and fro over the same stretch of water which is less than a mile wide. No one would ever have accepted the suggestion that the ferry boats were not bona fide used for navigation throughout the period of their operations.
There are clear anomalies in both positions. CRT clearly regard the occupation of moorings by permanently resident boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. A boat which has a home mooring is not required to be “bona fide used for navigation throughout the period of the licence” but neither is it required ever to use its home mooring. The Act requires the mooring to be available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places. If those who are causing the overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet and Avon canal near Bristol and the home mooring could be in Birmingham and totally unused.
You can download the judgement here http://www.bargee-traveller.org.uk/?page_id=23
NOTES FOR EDITORS
1. For more information contact the National Bargee Travellers Association, email@example.com or 0118 321 4128
2. The National Bargee Travellers Association (NBTA) is a volunteer organisation that campaigns and provides advice for itinerant boat dwellers on the UK’s inland and coastal waters.
3. Boats can be licensed to use Canal & River Trust’s waterways without a permanent mooring under Section 17(3)(c)(ii) of the British Waterways Act 1995. This section states:
(ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.
4. The Court granted a Section 8 order to CRT on the grounds that Mr Mayers had deliberately not navigated at all, in breach of the 14-day rule, and had therefore not complied with Section 17(3)(c)(ii).
5. The CRT v Mayers and BW v Davies judgements are County Court judgements. The County Court is not a Court of Record and therefore its judgements do not form case law or create legal precedents. However, County Court judgements can be persuasive to other judges. The Practice Direction on the Citation of Authorities  1 WLR 1001 states that County Court judgements may be cited in a County Court “in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available”. No other decisions apart from these exist at a higher level regarding the issue of the interpretation of Section 17(3)(c)(ii) of the British Waterways Act 1995.
6. Normally when CRT wins a Section 8 case against a boater it publishes the judgement (where there is one) and the order herehttps://canalrivertrust.org.uk/publication-scheme/publication-scheme/court-action-to-remove-boats-from-our-waterways
National Bargee Travellers Association
30, Silver St, Reading, Berkshire, RG1 2ST
0118 321 4128