Notes from meeting between CRT and NABO held on 14th Jan 2014
Present: Richard Parry (RP), Jackie Lewis (JL), Mike Rodd (MGR), Mark Tizard (MT), Geoffrey Rogerson (GR).
The thrust of the meeting revolved around the NABO legal review which has been prepared and was due to be sent to members with the December issue of NABO News. This was held back in view of this present meeting.
MGR emphasised at the outset NABO’s desire to assist CRT in finding solutions to existing problems. He expressed NABO’s deep concern that certain of CRT /BW statements and policy documents were, in the view of NABO’s legal advisors, either illegal or illegitimate, and either without statutory power or exceeding statutory power. In particular, NABO’s view is that section 43 of the Transport Act 1962 does not enable CRT to impose licence terms and conditions which go further than what is set out in section 17 of the British Waterways Act 1995.
JL stated that section 17 of the British Waterways Act 1995 and section 43 of the Transport Act 1962 work together with section 43 enabling CRT to impose terms and conditions on the licence granted in accordance with the provisions of section 17. Neither section took precedent over the other. NABO did not accept this catch-all carte blanche power which if true would have made subsequent Acts otiose. The ’95 Act made specific requirements, particularly as far as licensing is concerned.
Although subsequent discussions were wide-ranging and general, these notes endeavour to deal with NABO’s legal review as presented.
1. NABO confirmed that its legal advice was that the no return rules and limited days mooring within a month at a particular area, were illegal. Apart from any illegality they would require constant tow-path patrolling and supervision which at the moment is not happening. It was stressed that NABO would like to see this quietly dropped from CRT’s visitor mooring strategy. JL confirmed that these requirements were issued using section 43 of the Transport Act 1962. However, the question of the legality of any measure was entirely separate from the question of the practical implications. RP said he would take this point away and discuss it with CRT’s Enforcement team to establish and understand the reasons behind these rules.
2. JL confirmed that CRT did not have the power to issue fines. For this reason, she confirmed that the signs illustrated in NABO’s legal review were inaccurate. The payments made in these contexts were over staying charges, not penalties. NABO pointed out that BW’s Head of Boating had been informed about this many times over the years with a request that the wording of the signs should be changed, but to no avail.
NABO are quite happy that CRT should charge for the service or facility of staying an extra day or two on a visitor mooring similar to that charged on the Llangollen, if CRT feel that a charge is justified by the demand. NABO also accepts that such a charge should be commensurate and proportionate to the needs of the particular area. NABO also believes that a boater should be able to pay any such charge in situ by contacting CRT or directly to a CRT official. Such charging would be a policy decision for CRT. In addition NABO would expect this to be implemented in a similar manner to the Llangollen i.e. a boater should be able to pay any charge in situ by contacted CRT or to a CRT official directly such that is not perceived as a penalty.
NABO expressed its strong objection to the many references in CRT documents to ‘deter new arrivals’ which NABO feels is an ethos incompatible not only with BW but particularly with a charity. In addition NABO does not accept that non-payment of the service or facility charges could result in withdrawal of a licence. NABO’s position, confirmed by its legal advisors, is that so long as boaters conform to the requirements laid down in the ’95 Act then CRT has to grant a licence.
3. RP wished to know NABO’s attitude to the proposed roving mooring permits (RMP). Putting the legal arguments to one side, NABO, as a policy decision, are happy for the pilot operation to proceed and will monitor a) its success and b) its effect, if any, on other boaters and the availability of moorings. NABO feels that at least a roving mooring permit is a compassionate attempt to resolve a problem which has been allowed to get out of control. NABO will at this time raise no legal objections during this process but would suggest that the effectiveness of the RMPs is monitored at 6 and 12 months intervals and NABO would like to be party to the findings.
4. Place. NABO believes it is not possible under existing legislation for CRT to define “place”. However, as part of the original K&A local mooring strategy group NABO had supported the pilot work which resulted in the tabled map dealing with Bath to BoA, which was generally accepted by the original group. This original group, incidentally, and unlike the follow-up group appointed by the Partnership, consisted of members of the major boating organisations, Wilts CC and individual boaters. It is NABO’s belief that such a definition of “place”, which can only be used as guidance, would over time become acceptable as “custom and practice” and accordingly achieve some legal standing. JL noted that the guidance which deals with the term “place” is intended to be CRT’s interpretation of section 17 of the 1995 Act. Everyone accepted that only a court could provide definitive interpretation of a statutory provision.
5. Continuous Cruiser Guidelines. NABO has already accepted the current guidelines and as far as “bona fide navigating” is concerned, it seems to NABO that it is readily evident to the patrol officers those boats which manifestly do not, and have no intention of, bona fide navigating. Accordingly NABO’s feeling is that through regular and consistent enforcement, many of the proposed rules, whether legal or illegal, would be unnecessary. Everyone agreed that Sections 17 iii (c) i and ii of the ’95 Act are either/or and thus mutually exclusive. However common sense accepts a requirement for all boats to conform to the 14 day rule. The discussion moved on to discuss the issue of boats with “ghost” moorings. MGR mentioned that there is strong evidence of boaters claiming in their licence renewal process to have a home mooring, whereas this had in fact ceased to be true. It would seem to NABO that not having a proper validated mooring would be a fraudulent declaration and accordingly a licence could be withdrawn. JL confirmed that where this could be proved, then it was correct to say the licence could be revoked. NABO believed this to be much preferred than trying to penalise the vast majority of boaters through unacceptable and, indeed illegal, proposals like “no return” rules.
MGR expressed NABO’s willingness to participate in any review of the current Continuous Cruiser Guidelines.
6. The question of new legislation was discussed and NABO accepts the inherent difficulties as far as cost and time and uncertainty are concerned but would ask CRT to nevertheless to consider this as a long-term possibility to solving existing problems, these having arisen through the enormous growth in the number of boats in the last decade.
7. MT made reference to the problems caused by recently-introduced restrictions particularly at Stoke Bruerne and Foxton where local pubs are complaining that boaters are unable to stop prior to going through the flight, etc. These are covered in more detail in a separate document with NABO’s comments on the visitor mooring discussion document and the recent NAG meeting.
8. MT queried whether when a boat was under Section 8 procedures, it was apparently not allowed to have a winter mooring. JL said that she would look into this point.
POST MEETING NOTE: Further research shows that this was changed from the initial winter mooring plan and the current published plan. Currently someone within the section 8 process is only allowed to buy a three or five month winter mooring permit and not a one month permit available to other boaters. NABO queries whether encouragement to comply by buying a one month permit with a visit from a patrol officer encouraging them to buy another month near the expiry, rather than being asked to move, might encourage future compliance.
9. In the light of these positive discussions RP requested that NABO holds fire on the distribution of their legal review pending the result of a judicial review due in February and a subsequent meeting between NABO and CRT, to include the Head of Boating. On behalf of the NABO Council, MGR agreed to this.
Note: CRT has agreed with these meeting notes and recognises that on some issues they take a different view to NABO and have not necessarily added any comments where the notes reports NABO’s views. Thus the absence of any alternative CRT view should not be read as implying that CRT necessarily agrees with NABO’s views.
15th January 2104