Issue date: 5th August 2013
IWA has called upon Canal & River Trust to be steadfast in its resolve to sort out the misuse of visitor moorings by boaters, many without home moorings, who occupy such popular spots on a near continuous basis. The call comes in the wake of a ruling by Lord Justice Jackson to allow a judicial review sought by Mr Nick Brown, who is claiming that Canal & River Trust has misinterpreted section 17(3)(c)(ii) of the 1995 British Waterways Act in its moorings guidance. This is the latest in a long list of legal attempts by Mr Brown to challenge Canal & River Trust’s ability to manage visitor moorings.
IWA believes the essence of Mr Brown’s claims is that any boater should be able to moor wherever he or she wants, shuffling short distances within a small area every 14 days, for as long as they want, on a first come, first served basis, regardless of popularity or demand for visitor moorings. IWA believes that such a ‘free-for-all’ would not be in the best interests of most boaters and points to overcrowded moorings in London and the western end of the Kennet & Avon Canal where some boaters, including some residentials, have monopolised many visitor moorings to the exclusion of genuine visiting boaters.
Les Etheridge, IWA National Chairman, said “Canal & River Trust has a duty to manage visitor moorings in the best interests of the whole boating community. We are disappointed that Mr Brown’s actions will require CRT’s charitable funds to be used to re-examine the facts yet again, and that Lord Justice Jackson has acceded to the application. These funds would be much better spent on maintenance.
IWA has a heavy postbag from boaters concerned at the visitor moorings situation, with the vast majority of boaters wanting CRT to take fair, but tough, action against those who are abusing the rules who seem to have little regard for the wider boating community. IWA fully supports and encourages residential boaters provided they act responsibly, and IWA believes that those who have established lifestyles as a lack of past enforcement by CRT and its predecessor British Waterways need to be treated with sympathy and fairness; but a judicial review of the moorings guidance will simply risk further frustration amongst a majority of boaters about an increasingly unsatisfactory position.”
Canal & River Trust has acknowledged that the Judicial Review of its Guidance does not prevent any ‘section 8’ enforcement proceedings continuing, as the courts will decide on whether the requirements of s.17 (3)(c)(ii) have been met by reference to the facts of each individual case. This is already stated in CRT’s Guidance.
On 23rd July 2013, at the Court of Appeal, Lord Justice Jackson confirmed the decisions of three previous judges not to give permission to argue four out of the five issues raised by Mr Nick Brown in his claim for a judicial review of the Canal & River Trust’s ‘Guidance for boaters without a home mooring’. Lord Justice Jackson acknowledged that the interpretation of one sub-section of the British Waterways Act (s.17(3)(c)(ii)) was not an easy matter and might benefit from further consideration.
Mr Brown raised his claim for judicial review in early 2012 but in litigation of this type the claimant has first to get the permission of the courts to take it forward. Such permission has been refused to Mr Brown on three previous occasions, but at the fourth time of asking the Court of Appeal has given permission for arguments to be heard, on strictly limited grounds, on just one of the issues that he put forward. Mr Brown had sought in his claim to argue:
a. that it was unlawful for the Trust to issue any guidance on the issue of boaters without a home mooring
b. that the Guidance misinterprets s.17(3)(c)(ii) of the British Waterways Act 1995;
c. that the Trust may not use s.43 Transport Act 1962 to impose certain terms and conditions;
d. that the Trust might be in breach of boaters human rights under Article 8 of the European Convention on Human Rights; and finally
e. that in publishing the Guidance the Trust (or its predecessor British Waterways) was in breach of the Equality Act 2011.
Of these Lord Justice Jackson has only given limited grounds to consider claim (b).