Why localised agreements on distance and place are dangerous

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. logo 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  nbtalondon@gmail.com if you are in this situation.

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Legal Rights Meeting

Following the success of the last Legal Meeting held late 2014. There will be further opportunity to know your legal rights on:

Thursday 26th February 2015

Unsure about your legal rights as a boater? Want to find out what the recent introduction of neighbourhood maps and minimum travelling distances could mean for you?

Boaters without a home mooring, especially those new to the water, need to understand their legal rights, and how these may differ from Canal and River Trust (CRT) guidance. At a time when CRT is increasing enforcement – and pushing new guidance in terms of maps and minimum travel distances – we all need to get knowledgable about what we should do if we receive a warning letter or are threatened with legal action.

The National Bargee Travellers Association (NBTA) has a wealth of knowledge to share on these issues, built up over many years advising boat dwellers and working directly with legal representatives. Click below to join us for a briefing in London on Thursday 6th November where you can learn about your legal rights and what to do if you encounter CRT enforcement, and put your questions direct to NBTA’s experts.

Legal & General Meeting (Mark 2) is here, book free here:

https://www.eventbrite.co.uk/e/meeting-legal-general-ii-tickets-15425159066

***THIS SATURDAY JOIN THE BOATERS BLOC!!***

Nbta London's photo.

Everywhere you go in London redevelopments are happening making the housing needs for people harder.

The waterways are not excluded from this. Around Central London there is pressure to move out boaters so that property prices are not negatively effected. However, we need more mooring rings.

The whole of the navigable waters of the Bow Back Rivers was taken from us for the Olympics. Now it is only open to some trip boats and with plans to turn it into just 24 hours moorings. This should be open again to all with 14 days moorings.

There has been great reduction of facilities across the waterways. In time where there is more boats, we need more facilities. Places like West London are lacking facilities. We demand more facilities now.

Let’s march on the City and alongside other housing campaigns let our demand be heard

More Mooring Spaces
Open the Bow Back Rivers
More Facilities

Saturday 31 January at 12 noon
St Mary’s Churchyard, Newington Butts, SE1 6SQ (Elephant and Castle tube/rail)
NBTA banner and boaters will be at the corner of St Mary’s Butts and Gun Street

***This SATURDAY join the BOATERS BLOC***

Nbta London's photo.

Everywhere you go in London redevelopments are happening making the housing needs for people harder.

The waterways are not excluded from this. Around Central London there is pressure to move out boaters so that property prices are not negatively effected. However, we need more mooring rings.

The whole of the navigable waters of the Bow Back Rivers was taken from us for the Olympics. Now it is only open to some trip boats and with plans to turn it into just 24 hours moorings. This should be open again to all with 14 days moorings.

There has been great reduction of facilities across the waterways. In time where there is more boats, we need more facilities. Places like West London are lacking facilities. We demand more facilities now.

Let’s march on the City and alongside other housing campaigns let our demand be heard

More Mooring Spaces
Open the Bow Back Rivers
More Facilities

Saturday 31 January at 12 noon
St Mary’s Churchyard, Newington Butts, SE1 6SQ (Elephant and Castle tube/rail)
NBTA banner and boaters will be at the corner of St Mary’s Butts and Gun Street

‘Hands Off Our Homes’ NBTA London public meeting

NBTA London; ‘Hands Off Our Homes’ public meeting

Date: Thursday 22 January at 7pm

Where: London Action Resource Centre, 62, Fieldgale Street, E1 1ES

logo

The Canal and Rivers Trust (CRT) is on a mission to make the lives of liveaboards with no homes moorings harder.

They have been meeting with boaters’ groups to try to get an agreement to a defined place and minimum distance that continuous cruisers must travel to comply with the guidance. This – with the lack of mooring rings and facilities – puts us on a path towards the destruction of our way of life. We must stop the CRT in making our lives harder. We need more mooring rings, more facilities and no more increase of mooring restrictions.

The National Bargee Travellers Association London is hosting a public meeting about the attacks on boater dwellers and discussion about what we should do about it. We have also invited some speakers from the wider housing movement so we can get ideas about what can be done to defend our homes.

All are welcome.

Get a ticket; http://www.eventbrite.co.uk/e/hands-off-our-homes-tickets-13484136415

CRT Hands Off Our Homes! Public Meeting, 22nd January 2015, London

The Canal & River Trust (CRT) is on a mission to make the lives of live-aboards without home moorings harder. CRT has been meeting with some boaters’ groups to try to get an agreement to an unlawful definition of “place” and an unlawful minimum distance that continuous cruisers should travel to comply with Section 17 (3)(c)(ii) of the British Waterways Act 1995. This, together with recently concreted towpaths without mooring rings that are impossible to moor boats on, and the lack of facilities like water taps, threatens our homes. We must stop CRT making our lives harder. We need more mooring rings, more facilities and no further mooring restrictions.

The National Bargee Travellers Association London is hosting a public meeting about these attacks on boat dwellers and discussion about what we can do about it. We have also invited some speakers from the wider housing movement so we can get ideas about what can be done to defend our homes. Join us at this campaign meeting to plan what action to take.

NBTA press release: distance not important in continuous cruising

NATIONAL BARGEE TRAVELLERS ASSOCIATION

PRESS RELEASE

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.

7.22.3
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”

that it

“therefore requires progression round the network or at least a significant part of it”

7.22.4
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.

7.22.5
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.

6.3
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, press@bargee-traveller.org.uk 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 [2001] 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


secretariat@bargee-traveller.org.uk
www.bargee-traveller.org.uk

Legal Rights Meeting 6th November 2014

For a number of reasons, the legal rights meeting planned for tonight is severely oversubscribed.  We have been overwhelmed by the response and if everyone who has booked turns up, it will simply not be possible for everybody to get in.

However, we are doing everything we can to make sure that we get the information to as many people as possible.  We are planning a second meeting for the new year, in a much bigger venue.  Also, we are going to broadcast the meeting on Ustream for anybody who cannot make it.  This will also be available online after the meeting.

The meeting is scheduled to start at 7pm.   To watch the live broadcast, go to http://www.ustream.tv/channel/nbtalondon

A volunteer organisation formed in 2009 campaigning and providing advice for itinerant boat dwellers on Britain’s inland and coastal waterways