Thursday, March 31, 2011

Court finds in favour of BW in K&A Continuous Cruising case

In a landmark decision today at Bristol County Court judgement was given in favour of British Waterways' interpretation of Section 17 of the British Waterways Act 1995 relating to Continuous Cruising in the case of Kennet & Avon Canal boater, Paul Davies.

K&A boater, Paul Davies who could be made 
homeless by today's court decision.
Picture by Bob Naylor
Deputy Judge O’Malley found that the defendant Paul Davies had not complied with the requirements of the 1995 Waterways Act and that British Waterways was justified in bringing the legal proceedings against him.

In court it was claimed that Davies kept his boat on the Kennet & Avon Canal in the Bradford upon Avon area and did not respond to BW’s repeated warnings that his boat movement was not sufficient to meet the licensing requirements.  

BW claimed that to qualify for a BW boat licence, a boat must have a home mooring, which they defined as somewhere that it may be lawfully kept when not being used for cruising but they did accept that an exception is made for boats which they describe as ‘bona fide’ navigating throughout the period of the licence.  

The court accepted that Davies did not move sufficiently or agree to comply with BW's other terms and conditions. Consequently BW refused Davies' application to license his boat  and because the boat is his home BW followed its usual procedure of asking the Court to decide on the case.

There was little or no dispute as to the extent of Davies’ boat movements and central to the issue considered by the court was the meaning of the term ‘bona fide navigation’. 

Judge O’Malley noted that Davies’ purpose in keeping the boat on the short stretch of canal between Bath and Bradford upon Avon was so that his home was within convenient distance of his place of work and his social circle, and that his purpose in moving the boat was to avoid the requirement to have a permanent mooring.  

The Judge said, “What is clear to me is that the defendant who is clearly living on the boat cannot successfully claim that he is using it ‘bona fide for navigation’ by moving it every so often up and down a short stretch of canal.”

This is the first time that the legal requirements for continuous cruising have been tested in court and BW say that they welcome the judgement saying that it includes helpful comments which have enabled them to refine the Mooring Guidance.

Following the decision Davies has three months — until 30 June 2011 — according to the interpretation that BW have put on the judgement , to remove his boat from their waters.

This is not the view taken by either Paul Davies or his legal representatives who understand the judgement to say that he has that period of time to 'regularise' his mooring situation. Which they take to mean that in that time he must find a permanent mooring.

Sally Ash, Head of Boating at British Waterways, said, “Today’s decision is a great help in bringing greater clarity to a subject which has caused much debate and difficulty within the waterways community.  We very much welcome continuous cruising on our canals and rivers and are, as a result of the Learned Judge’s findings, refining our Mooring Guidance. 

"The refined Guidance which is based on professional legal advice, including  that from Leading Counsel, will be published on our website and we will be inviting representatives of national boating user groups to discuss these.” 

Note:  
The decision in the case of British Waterways v Davies does not  set a binding legal precedent but it can be persuasive on courts of equal or lower standing.


More on this story: K&A Canal Boating Community website


Comments:  KAcanalTimes welcomes comments on all postings, however one comment on this story has been removed on legal advice because it could be construed as encouraging or assisting crime under the Part 2 of the Serious Crime Act 2007 which came into force on 1st Oct 2008


See comments below:

6 comments:

  1. Let's hope this means that the continuous moorers on the K.& A. will finally be dispersed and that visitors will be able to find somewhere to tie up in the area.

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  2. The ruling handed down in bristol by district judge o'malley sets no precedent and refers only to paul. Interestingly, the judgment stated that a continuous journey is NOT required - a journey and navigation are two very different things. Hence bw seek to amend licencing terms and conditions. This brings into question bw's interpretation and use of section 43 of the transport act that permits bw to make reasonable terms and conditions as they see fit... Counsels for bw and paul both agreed that section 43 cannot be read in isolation and must refer to subsequent legislation - none of which require a journey (or fines for 'excess mooring'). The routes used by bw to get paul into court also raise concern. 1st a licence was refused because of a verbal challenge to an excess mooring fee (later withdrawn by bw). 2nd for not continuously cruising the network (judgment denied this) and finally, for not bona fide navigating (bfn) because paul's cruising pattern was geared around maintaining access to water and work between bath and bradford on avon (upheld) where no suitable moorings exist. In conclusion, Judge o'malley credited bw for using the court process to seek clarification of bfn and warned bw that all future enforcement should be conducted through a court. Enforcement was stayed for 3 months to permit paul to find a mooring mr to bfn. Judgment was handed down without order to costs.

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  3. its a pity mr davies contracted with british waterways in the first place by buying a licence.you have a common law right to travel freely without hinderance.providing you dont break the common law.its not british waterways property,it belongs to the people.now that british waterways have refused to contract with mr davies by granting him a licence,any attempt to remove mr davies boat from the water without his consent, will be in direct contravention of common law. anyone comitting this crime or aiding and abeting this crime can be arrested.

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  4. This comment has been removed by a blog administrator.

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  5. National Bargee Travellers Association

    News Release
    3rd April 2011

    British Waterways v Davies:
    BW to Revise Continuous Cruising Guidelines

    But live-aboard boaters’ homes now at risk
    from court judgement

    The judgement in British Waterways v Paul Davies handed down on 31st March 2011 in Bristol County Court could have serious consequences for all continuously cruising live-aboard boaters. However, the outcome also means that British Waterways (BW) is to redraft the Mooring Guidance for Continuous Cruisers. In particular BW is likely to drop the requirement to make a progressive journey and to travel around a significant part of the canal network.

    The judgement was sealed in the County Court and therefore only refers to Mr Davies. It does not create a formal legal precedent, but it is clear that BW will try to rely on it in future cases.

    The judgement ruled that Mr Davies, who works, socialises and navigates in the 10 mile stretch between Bath and Bradford on Avon, was not using his boat bona fide for navigation. This aspect of the judgement did not consider the right to respect for his home, family and private life conferred by Article 8 of the European Convention on Human Rights. As a consequence of this judgement, many live-aboard boaters may be rendered homeless by BW.

    The judgement on the meaning of “bona fide for navigation” appears to suggest that a live-aboard boater without a home mooring must genuinely intend to navigate the canal system and not move simply to comply with the law.

    Nick Brown, the Legal Officer of the National Bargee Travellers Association (NBTA), said “This really does pave the way for social cleansing. The judgement defined ‘bona fide for navigation’ as the intention to navigate in good faith. According to this logic, if you drove at 30 miles per hour in a 30 MPH zone you would be prosecuted for speeding if you were simply observing the speed limit in order to comply with the law, rather than because you believed that 30 MPH was the appropriate speed to drive at. This would make BW the ‘Thought Police’ “.

    On the positive side, any live-aboards subjected to Section 8 action by BW must be given the opportunity to defend themselves in court.

    What BW is glossing over is that although the court found that Mr Davies was not using his boat bona fide for navigation, the judgement envisaged a use of the boat that falls short of the Mooring Guidance for Continuous Cruisers but would still comply with the legislation. In consequence, BW has now accepted that it does not have the power to enforce the continuous cruising guidelines in their present form.

    The NBTA is taking legal advice.

    --- ENDS ---

    NOTES FOR EDITORS
    About The National Bargee Travellers Association

    Established in 2009, The National Bargee Travellers Association represents and advises Bargee Travellers (itinerants who live on boats) in particular in relation to their housing needs and in defence of their rights under the European Convention on Human Rights. It is a networking organisation that helps vulnerable boat dwelling communities protect themselves.

    The NBTA also liaises with the settled community and works with public sector bodies such as British Waterways and the Environment Agency in formulating policy and legislation.

    For more information contact:
    WWW www.bargee-traveller.org.uk
    E-mail: press@bargee-traveller.org.uk
    Tel: +44 (0) 7867 75 70 95
    Fax: +44 (0) 870 288 9520

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  6. ...by the way, the court got me on intention - that my primary objective was to maintain my home and access to work when my intention should have been to navigate in good faith. Following this logic, one has to look at the primary intention of the Transport Act and section 43 upon which bw claim their guidelines are built. I'd say that the primary intention of the Act is to regulate vessels used for transportation, and has nothing to do with guidelines that have no force of Law. Neither can a licence be demanded under s.43 when licencing is regulated by the BW 1976 general Canal byelaws. Thats £m's unlawfully demanded and paid unnecessarily by boaters. Took me 6 months to find another job... Bargee Association favour bw's use of section 43, so beware

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