Voluntary agreements between boating groups and the Canal and River Trust can be legally significant to the detriment of all boaters, says London NBTA.
There have been cases in the past where the Canal and River Trust has put pressure on local boater community organisations and boaters representative meetings to ‘fix’ the definition of ‘place’ in the 14 day limit legislation and to define the amount of distance a boat needs to move to avoid enforcement. Currently the 14 day limit in the 1995 British Waterways Act should be the legal underpinning of any enforcement that CRT take against boats without a home mooring. The main legal powers available to CRT amount to Section 17 (ii) of the BW Act, which states that CRT must licence boaters with no home mooring as long as they use it “bona fide for navigation (for the period of the license) without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.” In other words, boats without a home mooring have to move to a new place at least every 14 days.
However, CRT often act to undercut this basic rule. One of the ways they have done it in the past is by supplementing ‘guidance’ to the rule, by agreeing definitions of distance and place with both individual boaters and groups of boaters and, it appears, more recently by adding terms and conditions to the boat licence that are potentially beyond what the law says is required. Currently, in the London area, we have had the trial ‘place’ maps proposed and rejected by Boaters groups involved in CRT ‘Better Relationships Meetings’, and – more recently – by agreeing individual bespoke ‘cruising plans’ with boaters who are threatened with enforcement and having their license terminated. The problem is that such agreements and possibly long standing and unchallenged licence terms and conditions, – even though they may be localized and agreed by both parties – can have an knock on effect on legal cases and could affect all boaters.
The following hypothetical case study could illustrate why: Boaters on the river Ooze and CRT have a nice cup of tea together and a local voluntary agreement is made that boaters need to clock up at least 24 miles a year with no return to any given place more than twice a year. Places are voluntarily defined, marked on a map and are roughly about a mile long.
However, Boater A, on narrowboat ‘Kropotkin’, does not agree with voluntary agreements about distance, 24 miles is too far for her because she has no car, just a bicycle, and has to get her child to primary school and hold down a part time job anyway. she decides to ignore the voluntary agreement, she wasn’t invited to the meeting anyway, and follows her usual pattern. In one year, she moves 12 miles, moving at least every 14 days, logs her movements and returns to one place three times.
Unfortunately, she gets enforced, and CRT applies to the County Court for confirmation that their section 8 powers to remove the boat may be exercised in the circumstances, to allow them to haul her boat out of the canal. Boater A (or their lawyer) argues that the guidance is voluntary and she chose to ignore it as she didn’t consider it to be a fair interpretation of the 1995 BW Act and would also have found it hard to get her kids to school. CRT’s lawyer argues to the judge that their interpretation of the BW 1995 Act Section 17 (3)(c)(ii), – AKA ‘the 14 day rule’ – in this particular case, is an extremely reasonable one, is actually less than the act requires and is based on the voluntary agreement made between themselves and “reasonable” boaters on the River Ooze. Other “reasonable” boaters, they say, some of whom have kids, are abiding by this voluntary agreement with no problems, but boater A is a troublemaker and is abusing both the law and the goodwill of the other boaters, they say. If the judge does not grant the order, they say, he will be disregarding the wishes of the “reasonable” boaters and endangering CRT’s ability to manage the canal. (yes I know claimant goes first – but give me a narrative break!)
The judge considers the arguments and grants the order. Boater A can either appeal or loses her home. She may even be chased by CRT for costs. If she appeals and loses, then, depending on the wording of the judgement and the rank and self-importance of the judge, the guidance may even set legal precedent. This legal precedence can then ‘fix’ the interpretation of the legislation for County courts and be used by CRT lawyers as a very very strong steer in other appeal cases, and not just on the river Ooze, but nationally.
According to a senior lawyer experienced in boaty legal cases, this case study “illustrates the danger of the knock on effects of local voluntary agreements.” He added that: “A county court or high court decision is strictly speaking, not a precedent, albeit it may be ‘persuasive’. CRT like to try and rely on BWB v Davies (a previous court case that explored distance and place) even though that is only County Court and the judge specifically refused to pass comment on the continuous cruising guidance. ”
London NBTA is compiling research on bespoke individual agreements made with individual boaters under threat of non-licence renewal or other penalties. Please get in touch with us in confidence at NBTA London firstname.lastname@example.org if you are in this situation.