NABO comments on the recent legal action between NBTA and CRT
We ask has this muddied the waters further or has CRT succeeded in getting formal legal support for their ‘guidance for boaters without a home mooring’ ?
Mr Brown was granted leave to proceed with the judicial review by Lord Justice Jackson in July 2013. Permission was confined to the issue of whether the Guidance accurately reflects s.17(3)c(ii) of the British Waterways Act 1995. This governs the obligations of boaters without home moorings, non-compliance can result in the seizure and removal of the boat.
We understand that Nick Brown was forced to withdraw his case as the Judge ruled that he would be unable to rule on the lawfulness of the Trusts guidance because Mr Brown was not personally facing any enforcement action. In other words the Judge felt that the hearing would not resolve anything unless he could rule on a specific case.
Immediately the case was withdrawn CRT rushed out a press release that is repeated below in its entirety.
CRT’s press release
“Nick Brown, the legal officer of the National Bargee Travellers Association, today abandoned his claim for judicial review of Canal & River Trust’s ‘Guidance for Boaters Without a Home Mooring’.
At the end of the first morning of the two day hearing at the High Court, after comments from Mr Justice Lewis in respect of the case put forward by Martin Westgate QC (representing Mr Brown), Mr Brown applied to discontinue his claim for judicial review. The Judge accepted the application and awarded substantial costs to be paid by Mr Brown to the Trust.
Having received permission at only the fourth attempt to take forward just one limited aspect of his claim (namely, whether the Trust’s Guidance accurately reflected the requirements of the British Waterways Act 1995), Mr Brown abandoned this final aspect, even before the Trust had presented its own arguments.
The Trust’s legal team has always viewed this claim as misconceived and confirms that the Guidance remains valid and applicable for boaters without a home mooring.”
Note: A NABO representative who was at the hearing thought the Judge made a particularly pithy comment when CRT’s QC made a formal request to continue with the case despite Nick Brown’s decision to withdraw, to the effect of 'you should bear in mind you might not be entirely pleased with the outcome if you did'. Our representative thought that was a pretty uncoded warning to CRT.
Nick Brown of the National Bargee Travellers Association subsequently issued a press release which is repeated below
NBTA press release
“JUDICIAL REVIEW DROPPED: ABSTRACT CASE WILL NOT RESOLVE ISSUE OF LAWFULNESS OF GUIDANCE
Nick Brown, claimant in the judicial review proceedings against Canal & River Trust (CRT) to decide whether the Guidance for Boaters Without a Home Mooring is lawful, today discontinued the action. He said “During the hearing it became apparent that this case could not after all decide on the lawfulness of the Guidance because I am not facing any enforcement action myself. Therefore the case should not continue”.
In his judgment Mr Justice Lewis stated:
”During the course of argument I raised a problem that is that the Courts are reminded of the undesirability of deciding an issue absent a proper factual context… the Court has warned against abstract actions and needs a proper factual matrix to assess cases… In the light of that there is very little purpose to this hearing as it would not resolve anything. CRT would prefer, as a responsible public body, to have a judgment that would allow it to discharge its duties in the right way but any judgement that I could give would be very little use on the ground.”
Mr Brown added “The arguments presented by my legal team will be of assistance to boaters who are subject to enforcement action”. He was represented by Chris Johnson of Community Law Partnership and Martin Westgate QC.
Lewis J raised a number of legal points that will be of no comfort to CRT. He found s.17 (3) © (ii) of the British Waterways Act unclear: “The more you look at the statute the weirder it becomes” he commented. He added that it would have been helpful if CRT had addressed this dispute by seeking new legislation. Mr Justice Hildyard also told CRT this in the Moore case in 2012.
Mr Justice Lewis agreed that as far as “bona fide navigation” was concerned, what was good for boaters with moorings was also good for those without. “An occasional trip down to the Dog and Duck” might very well be bona fide navigation whether this was from a marina or from a towpath spot.
Mr Justice Lewis also observed that “Place” could be as small as an individual boat length, by stating that the mooring or other “place” to keep a boat required by s.17(3)©(i) has the same meaning as the “place” used in s.17(3)©(ii).
Lewis J also stated that in his opinion, the Guidance took legislation that was already difficult to understand and did not make understanding it easier. Mr Brown observed that this means the Guidance is of little assistance to a boater seeking to ensure he is compliant with the British Waterways Act 1995. Contrary to CRT’s assertion that the Guidance remains “valid and applicable” it is now called into question.
Mr Brown was granted leave to proceed with the judicial review by Lord Justice Jackson in July 2013. Permission was confined to the issue of whether the Guidance accurately reflects s.17(3)©(ii) of the British Waterways Act 1995. This governs the obligations of boaters without home moorings. Non-compliance can result in the seizure and removal of the boat.
CRT attempted to claim costs in excess of £100,000. This could have deterred other challengers, but Mr Justice Lewis rejected CRT’s application and ruled that CRT would have to justify the amount claimed.”
SO WHERE DOES THIS LEAVE US
We await the Judges transcript to fully understand exactly what he said and whether it clarifies or gives legal support to CRT’s guidelines . It looks a bit like a score draw, CRT’s guidelines remain in place yet it is likely that any further legal challenge may make use of the Judges observation as to the meaning of “place” and “bona fide” navigation.
In summary the judge would appear to have raised some points that both sides will continue to suggest supports their view. This points are taken directly from the relevant press releases
* There was little objection offered by Mr Brown’s counsel to the wording of the Guidance, which the Judge clearly viewed as a legitimate interpretation of section 17 of the British Waterways Act 1995. (CRT boaters update 28 Feb 14)
* Lewis J also stated that in his opinion, the Guidance took legislation that was already difficult to understand and did not make understanding it easier(NBTA press release)
* The Judge said that all section 17 meant was that a boater without a home mooring must continuously cruise around the network: he did notendorse Mr Brown’s barrister’s assertion that the Trust should be seeking further legislation to clarify the issue. . (CRT boaters update)
* Justice Lewis added that it would have been helpful if CRT had addressed this dispute by seeking new legislation (NBTA press release)
* The Judge accepted that what was bona fide navigation in a particular case was difficult to say in the absence of the specific facts of the case, although he did agree that a boater couldnotsimply “shuffle” between one place and another nearby place for the purposes of section 17, and that the Davies case was helpful in this regard. . (CRT boaters update)
* Mr Justice Lewis also observed that “Place” could be as small as an individual boat length, by stating that the mooring or other “place” to keep a boat required by s.17(3)©(i) has the same meaning as the “place” used in s.17(3)©(ii).(NBTA press release)
* Mr Justice Lewis agreed that as far as “bona fide navigation” was concerned, what was good for boaters with moorings was also good for those without. “An occasional trip down to the Dog and Duck” might very well be bona fide navigation whether this was from a marina or from a towpath spot.(NBTA press release)
Of further interest NABO noted that http://canalrivertrust.org.uk/media/library/4434.pdf paragraph 57 under the heading “Throughout the period … without remaining continuously in any one place for more than 14 days …”
CRTs legal team stated : 57. Section 17(3)(c)(ii) of the 1995 Act additionally requires that the “bona fide navigation” is “throughout” the period of the licence, which would ordinarily be for a period of 12 months, but will be for at least 3 months. This again emphasises the requirement of a genuine passage or transit for the entirety of the duration of the licence.
In NABO’s view the above defence would appear to strongly argue against the case of the introduction of Roving or Community Mooring Permits as advocated by CRT or indeed Towpath Winter Mooring Permits.
In NABO’s view CRTs sometimes threatening language language and uneven enforcement policy is unhelpful. “Enforcement of ‘bona fide’ navigation will be stepped up in the area to support the permit scheme.” (Towpath Mooring Management Report ) NABO would like to see enforcement that is consistent and even handed across the system and not just as tool to support specific initiatives.
A key aspect of the evidence submitted by the Trust explains that use for navigation is a charitable public purpose but anyone who uses the waterways for their (floating) home without continuously cruising is deriving personal benefit which is a misuse and abuse of charitable property without a fair payment in return. The recently updated Charity Commission guidance on the issue of personal benefit makes this clear
NABO raised this at a recent meeting with CRT and was advised that it would have little implications in how CRT managed the canal system but as this was advanced by CRT in its legal arguement NABO will seek further clarification and asks that CRT clarifies the implications as it sees it of this requirement.
SO WHERE DO WE GO FROM HERE?
Well hopefully the Judge’s transcript will be published and we can see his comments in context. CRT and NABO has agreed to meet to review the legal implications and also discuss further the issues raised in the initial legal review meeting held in January so that we can discuss the legality of things like “no return” rules further.
In the meantime here’s a thought, To enforce its rules CRT like any civil service based organisation creates more rules, rather than investigating the scale and scope of the problem. These additional rules which affect all boaters not just those they are designed to affect and so the disconnect between boaters and CRT grows.
We have seen this recently with visitor moorings. Most would applaud additional moorings being made available, most would understand some reduced stay times in high volume areas assuming the need is proven. Imposing penalty fines and trying to introduce no return rules rather than manage the very small number of boaters who overstay here or elsewhere is just overkill for little purpose other than to affect the boating pattern of many.
Enforcement to work needs to be even handed AND effective. But the best enforcement of all is peer pressure (think of people's attitude to drink and driving or smoking now compared with 20 years ago) and for this CRT we suggest you need to bring us all with you, boating organisations to individual boaters.