19th November 2012
IWA’s calls for Canal & River Trust to firmly deal with overstaying moorers on busy waterways have been given a further legal boost with an application for judicial review challenging CRT’s legal powers being thrown out of court and substantial costs awarded against the applicant.
In a renewed application for permission to apply for judicial review of guidance first published by British Waterways (now Canal & River Trust - CRT) in 2004, then revised in 2011, concerning their interpretation of s.17(3)(c)(ii) of the British Waterways Act 1995. The Claimant, Nick Brown's renewed application followed the previous refusal on the papers by Mr Justice Eder, who considered that there was no arguable merit in any of Mr Brown’s grounds and noted that the claim was, in any event, lodged out of time.
The previous case upon which the appeal was based was centred around whether moving a vessel every 14 days on a 10 mile stretch of canal between Bath and Bradford on Avon was or was not ‘use of the vessel bona fide for navigation’, and whether this was permissible under CRT rules.
The essence of this new case was that Mr Brown although wishing to stay in and maintain his connections with the local area, stated that he was effectively being required by CRT "to make a progressive journey throughout the canal network". While he was on waters within the jurisdiction of CRT he was required to observe mooring time limits of less than 14 days or else pay a penalty at certain locations. This made finding a mooring more difficult, especially in popular locations. The costs of having to move his boat every 14 days were also significant, in terms of the necessary fuel. The sanction for failing to move was the removal of the relevant boat and his expulsion from the jurisdiction of CRT.
The main issue raised was whether waterways owned or managed by CRT could be used without having to comply with the terms and conditions set by CRT and, in particular, without having to purchase a home mooring.
Mr Brown’s essential challenge, was that the lawfulness of CRT’s decision to publish the revised 2011 Guidance which, he argued, misstated the correct legal interpretation of s.17(3)(c)(ii) of the 1995 Act. He argued further that s.43(3) of the Transport Act 1962 did not permit the CRT to impose terms and conditions which go beyond the requirements of s.17(3). He also alleged that CRT may, at some point in the future, be in breach of the rights of boaters, of which he was one, under Article 8 of the European Convention on Human Rights. Finally, he argued that in publishing the 2011 Guidance CRT acted in breach of the Equality Act 2010.
Mrs Justice Cox in a detailed written judgement on 16 November 2012 stated that:
“The 1995 Act also requires that the bona fide navigation is "throughout" the period of the licence. This will be for at least three months and will usually be for a period of 12 months, emphasising the requirement for a genuine passage or transit for the entirety of the licence period. S. 17(3) (c)(ii) also includes a requirement that the vessel does not remain continuously in any one place for more than 14 days. In contrast to the word "mooring", the word "place" clearly indicates, in my view, that Parliament did not intend the words to be limited to a vessel remaining on the same mooring for a period of more than 14 days. As the 2011 Guidance states, in my view correctly,
"'Place' in this context means a neighbourhood or locality, NOT simply a particular mooring site or position …
What constitutes a 'neighbourhood' will vary from area to area – on a rural waterway a village or hamlet may be a neighbourhood and on an urban waterway a suburb or district within a town or city may be a neighbourhood. A sensible and pragmatic judgement needs to be made.
It is not possible (nor appropriate) to specify distances that need to be travelled, since in densely populated areas different neighbourhoods will adjoin each other and in sparsely populated areas they may be far apart (in which case uninhabited areas between neighbourhoods will in themselves usually be a locality and also a 'place').
Exact precision is not required or expected – what is required is that the boat is used for a genuine cruise."
She further stated that: “The consequences, if the Claimant's arguments were correct, militate against the Claimant's suggestion that the relevant statutory provision should be given the wide meaning for which he contends. If he were right it would be unnecessary for a boater to obtain a home mooring, which would plainly encourage people who currently hold "off line" moorings to remain on the inland waterways and cause congestion in popular areas. Further, there would be substantial interference with those cruising from mooring during the course of their cruises, in particular near popular places and various attractions. Mr Steele [CRT] also draws attention to the serious financial consequences that would flow from decreased income if home moorings were not obtained.”
The Judge rejected all parts of the appeal and supported CRT’s costs in full.
Speaking on behalf of IWA, Les Etheridge, national chairman said:
‘IWA continues to support continuous cruising throughout the system. We therefore welcome the clarification of the validity of the CRT Mooring Guidelines and of the rejection of bankside shuffling within a close geographical location every 14 days as bona fide navigation. I hope that this will encourage CRT in its efforts to resolve the overstaying problem on our waterways, so that all those making progressive journeys and other leisure users may also have equal access to moorings in busy areas of the system.’