SE VISITOR MOORINGS – NABO RESPONSE TO THE CANAL AND RIVER TRUST (CRT) REPORT ON THE PUBLIC CONSULTATIONS OF SPRING 2013
CRT has confirmed that it was taken aback by the strength of boaters opinions: for example 700+ signed a spontaneous online petition spread by word of mouth against the proposals (not the principle of consulting as implied in the CRT report). Some 360 boaters wrote feedback in response to the CRT email, of which at least 50% was negative. In addition both NABO and RBOA, representing many thousands of members wrote detailed feedback, again rejecting specific aspects of the proposal. CRT decided to focus on the minority that gave positive feedback as the green light to proceed.
In the report CRT states “Many people felt that we should have provided specific evidence of there being a need for a site by site review of stay times. We were ‘caught on the back foot’ in this respect because our assumption had been that with the growth in boating over the past 20 years, it wasn’t unreasonable to re-visit stay times and rules as part of our legitimate navigation authority function.”
NABO acknowledges that it is entirely reasonable for CRT as a navigation authority to review stay times and rules. This would have more credence if it was coupled, for example, with a review as to whether the current provision of visitor moorings was sufficient for the increasing number of visiting boats. With an increase of 10,000 license holders in the last 10 years or so it is obvious that additional visitor moorings are needed. Where this is a challenge due to location then dredging at the end of the existing visitor moorings to enable boaters desiring a longer stay is strongly recommended, yet not included in these changes.
For a consultation process to be credible and to engage the considerable goodwill extended to CRT by boaters it was reasonable to expect CRT to have provided some evidence to support current usage of the highlighted visitor moorings to justify the need for change. The consultation lacked legitimacy in many boaters eyes as no evidence was produced to validate the need for change in any of the moorings referred to. It would have been easy for CRT patrol officers to have sampled the eight trial sites and validated that overstaying was a real issue as opposed to a wider lack of available visitor moorings. Recent increased CRT activity to manage overstaying has had a noticeable effect in many areas.
CRT states ” Lots of doubt was cast on our future ability to monitor visitor moorings effectively, so creating new rules would be a waste of time. Our answer to this is that the rules, as they stand, cannot be meaningfully enforced because they do not tell you how frequently you can return.”
NABO’s opinion is that CRT cannot just invent new rules if it finds that the existing legislation does not enable it to introduce a new policy. There is no specific power for the introduction of the right of “no return” and we know that BW was refused these powers in the build-up to the 1995 Act. There has never been a satisfactory explanation of the need for this. CRT should expect to be challenged.Use of the 1962 Transport Act has to be proportionate and in the case of no specific evidence and demonstration of the need, NABO rejects this as inappropriate.
There are many circumstances where returning in less than a month is reasonable, for instance: share boaters and those who cruise locally from their home mooring will be disadvantaged by inflexible no-return rules. Why should a boater be constrained from his chosen navigation pattern.
However where boaters return to the same moorings solely with the intent of avoiding a home mooring, who are clearly not ‘bona fide navigating’, CRT should use this as evidence in a prosecution, but only as part of their evidence showing a pattern of wider behavior. We appreciate that evidencing patterns of behavior is time-consuming, but are concerned that blanket rules are a disproportionate response to the problem and will adversely affect the majority of boaters whose boating patterns are legitimate.
With regard to the introduction of a £25 service charge “We genuinely believe that a clear deterrent in the form of an extended stay charge makes sense.” It would appear that CRT accepts that the £25 in question is not a service charge but a penalty fine. NABO does not believe that CRT has the legal authority to levy a fine. NABO’s own legal advisers have confirmed that “It is a general principle of law that public authorities require express statutory authority to levy charges (McCarthy and Stone Developments Ltd v Richmond upon Thames LBC (1992) AC48). Section 43(3) of the 1962 Act provides a power to demand charges for BWs services but this is not the same thing as the power to fine.” (Blackstone Chambers).
Specifically with regard to the workshops, NABO members attended both workshops and noted that there were two common areas of agreement that were acknowledged at the time by all the CRT representatives present together with Trustee John Dodwell.
1. The maximum number of days allowed should be per 28-day period and not per calendar month.
2. Without exception the eight working groups that discussed the eight pilot visitor moorings saw no need for any change to the “maximum stay” rules during the winter months.
NABO acknowledges that current CRT systems cannot process data on a 28-day system. However NABO was surprised when being subsequently consulted, that CRT had decided in principle that seasonality of the proposals was to be dropped and the new rules are to be introduced on a year-round basis. We are pleased that CRT has, as a result of pressure from NABO and others, agreed to relax the new restrictions out of season.
In NABO’s view the following questions have still to be answered satisfactorily:
· How will a boater know that he is about to be charged?
· What form will the evidence of overstaying take?
· What is the appeal process?
· How would a boater who has lent his boat to a family member for a brief holiday be able to discover if he is about to contravene any of the ‘no-return’ or overstaying rules? Is CRT going to publish a number for the boating community to be able to call and check?
NABO is not convinced that volunteers should be used for enforcement purposes when it involves levying fines with the potential legal consequences that may ensue.
In conclusion NABO believes :
The consultation was flawed in principle in that no effort was made to provide any evidence of overstaying in the eight pilot areas concerned – hardly a major exercise.
The current emphasis on overstaying has resulted in many more boat movements. Recent NABO observations have shown that this has resulted in greater availability of the visitor moorings included in this scheme.
We believe that the ‘no-return’ rule and the deterrent charge are outside CRT’s legal ability to enforce and we shall be taking further legal advice specifically on this.
In conclusion NABO believes :
The consultation was flawed in principle in that no effort was made to provide any evidence of overstaying in the eight pilot areas concerned – hardly a major exercise.
The current emphasis on overstaying has resulted in many more boat movements. Recent NABO observations have shown that this has resulted in greater availability of the visitor moorings included in this scheme.
We believe that the ‘no-return’ rule and the deterrent charge are outside CRT’s legal ability to enforce and we shall be taking further legal advice specifically on this.
We also believe that once introduced, the no-return rule and deterent fine could be extended throughout the canal system as a means of controlling lawful navigation and boating activity and should be resisted.
The CRT consultation final report can be read here.
