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:

K&A Canal lock gates... 'FRAGILE' handle with care

It is less than two weeks since the Caen Hill Flight was re-opened following major winter works that included the replacement of seven pairs of wooden lock gates — and already there is an emergency stoppage to replace another pair of wooden lock gates on the Devizes Flight on the Kennet & Avon Canal.

A P Herbert Lock (46) Devizes will be closed 

for the wooden bottom gates to be replaced.

Picture by Bob Naylor

The Devizes Flight lock gates were made between 1987 and 1989 and fitted by early 1990 — just in time for the Queen’s visit to re-open the canal.

Following a five week stoppage after a lock gate failure on Caen Hill in the Summer of 2006, Mike Lee, the Canal Trust Hon Engineer said of the locks on the K&A Canal, “There were a number of deficiencies, some poor quality oak being the main one and the fitting of straps instead of steel caps on the mitre posts; a recipe for the start of rot. 

“The normal life of a pair of timber gates is about 25 years but unfortunately the Caen Hill bottom gates and all the Crofton Flight gates will not last that long as serious rot is developing in the timber and they will all need replacing within the next 2-3 years.

“There are many other gates which also need replacing, but hopefully over a longer time span. “We could reduce the risk of gate failure by more careful boat handling.

“It is a case of treat the gates with care and try to ensure that other users do the same”, he concluded.

Mike Lee's time forecast has passed and because of shortage of money there are still gates that have not been replaced — and  if the K&A is to be kept open for navigation then boating on the canal has got to become a 'non-contact sport' so that a the ageing lock gates can last a few more years.

Mike's sentiments were echoed by Mark Stephens shortly after he took over as waterway manager on the Kennet & Avon Canal.  Speaking at a Canal Users' Forum meeting in Devizes he called for experienced boaters to set a good example by opening both gates when entering and leaving locks to minimise damage to them. 

He said that whereas experienced boaters can get through one gate without making contact — if this becomes seen as normal practice less skilled boaters will, unfortunately, try to do the same and over time the lock gates will suffer.

One of the bottom gates on Lock 46, 

fixed in position so that it cannot be used.

Picture by Bob Naylor

A P Herbert Lock (46) above the Caen Hill Flight and just before Prison Bridge in Devizes will be closed from Tuesday 5 April until Thursday 14 April to have the bottom gates replaced. These gates have had extensive plating work to try to keep them in service but the wood is in such a poor state that they are now beyond 'patching up'. 

The worst of the two lock gates has been fixed in position so that it cannot be used and until the work begins on the 5th of April narrowboats can use the lock — with care.  Wide beam boats will have to contact BW to arrange for an assisted passage. 

The galvanised metal top gates on the Devizes Flight were installed before the wooden gates  — and they are still in very good condition with many years service left in them.

Is it time to revisit the idea of metal or composite gates which clearly have a far longer life with less maintenance?

Stoppage:

AP Herbert Lock (46) closed from Tuesday 5th April to Thursday 14th April 2011.

Wide beam boats ring BW on: 07920824310 to arrange assisted passage until the 5th.

Froxfield Middle Lock stoppage & Oakhill Down Lock stoppage extended

The stoppage at Oakhill Down Lock 68 has been extended again and will re-open at 4pm on Monday 4 April this is to allow repairs to gate quoins time to strengthen.


While this lock is closed BW are taking the opportunity to make a plating repair to Froxfield Middle Lock (69).


Both locks will re-open at 4pm on Monday 4 April 2011.

Defra ask for waterway users' views on BW Trust plans

Defra has started a three month consultation today to gauge the feelings of waterway users to their proposals to turn British Waterways into a charitable trust in England and Wales.

The reasoning behind moving waterways out of the public sector and into a new civil society organisation is outlined in the consultation along with the principles which will guide the Government in deciding on the way forward.

Defra say that the creation of a new waterways charity will give waterways users, and their local communities, a greater involvement in how the waterways are managed. The proposal will also help the waterways to be more financially sustainable, as the new charity will have access to new sources of commercial and private income, and fundraising, including legacies and donations. It will create the opportunity to grow a strong base of volunteers who can help maintain a range of waterways assets, through their knowledge, expertise, passion and commitment.

BW Chairman

Tony Hale

BW Chairman, Tony Hales,  said, “The consultation is an important step forward in achieving a long held vision among waterway supporters.  Having set out our proposals in 2009 for a ‘national trust’ for the waterways, the Minister is now embarking upon the biggest shake-up of the waterway governance since nationalisation in 1948.  I believe the proposals will build upon the recent waterway renaissance to ensure they never again revert to the dereliction and decline that saw part of the network abandoned and filled in during the 20th century.

“Caring for a 200-year old network requires intense management and significant funding. The consultation is an important part of establishing the best framework for the long term security for our canals and rivers, which harnesses community enthusiasm to deliver local priorities.  I would encourage all those who have an interest in the nation’s magnificent former industrial waterway network to take part.”

The consultation starts today (30 March 2011) and ends 30 June 2011

The consultation document is available at:  www.defra.gov.uk/consult/waterways-1103/

Work (with pay) on the K&A

British Waterways is looking for a seasonal lock keeper to work on the Caen Hill Flight in Devizes from April to October this year

Caen Hill Flight. Picture by Bob Naylor

Job Spec:

The work requires a high degree of customer interaction; involves marshalling boats through the historic flight and locking up at the end of the day.

The successful applicant needs to be able to work independently with a high regard for personal safety and the well-being of others.

Work pattern: Saturday and Sunday 12pm-8pm, Monday to Friday 4pm to 8pm,alternating one week on and one week off.  Full training provided.

This is an opportunity to work in a beautiful and historic environment of great local and national importance.


Closing date for applications: 6 April 2011.

Apply in writing to: The Waterway Manager, Kennet and Avon Canal, British Waterways, Bath Road, Devizes SN10 1QR.  
or email: jenny.maxwell@britishwaterways.co.uk

Wiltshire police pay compensation to journalist after unlawfully detaining him and preventing him from reporting

Wiltshire Police have paid damages and apologised to photojournalist, Bob Naylor, following an incident that happened when he went to report on a fatal fire onboard a narrowboat at Honeystreet near Pewsey on the Kennet & Avon Canal in May 2009

Bob Naylor in handcuffs on the ground at Honeystreet.

Picture by Diane Crofter-Harris HNA Media

The statement from Wiltshire Police says:

“On 22 May 2009 well-respected photojournalist Bob Naylor was reporting at a crime scene of a fire on a canal boat.

"Wiltshire Police have accepted that Mr Naylor was prevented from taking photographs and unlawfully detained and that his Article 10 rights under the European Convention on Human Rights were breached.

"Wiltshire Police apologise for this and have paid compensation and given this apology.

"Wiltshire Police confirm its recognition that freedom of the press is a cornerstone of democracy and that journalists have a right to report freely.

"Wiltshire Police recognise that on 22 May 2009 they failed to respect press freedom in respect of Mr Naylor contrary to Wiltshire Police’s own guidelines for working with members of the press.”

The attack on Bob Naylor happened when he attended a canal boat fire in which someone had died. He approached a police sergeant at the scene on the Kennet and Avon Canal at Honeystreet in Wiltshire and said he wanted to take a picture of the general scene. The policeman refused him permission, saying only that he ‘was in charge and would not allow it’ and eventually saying that this was  ‘out of common decency and respect for the deceased’.

Naylor decided it was pointless remaining at the scene and began to go back to his car, intending to call the Police Press Office to resolve the problem. As he was doing so he was seized from behind, forced to the ground and handcuffed and told that he was being arrested for breach of the peace.

Naylor was kept handcuffed on the ground for a considerable time before eventually being released.

Naylor’s solicitor, Chez Cotton of leading civil rights law firm Bindmans LLP, said: "It is crucial in a democracy that the police respect and support a free press. Mr Naylor was working in his capacity as a professional journalist and seeking to taking photographs of an incident of legitimate public interest. Despite the police being fully aware of the accredited journalist status of my client and his right to photograph, they refused to allow him to work, threw him to the ground and then handcuffed him, and all in the most public and humiliating of ways. This sort of violence against journalists is unacceptable and cannot be tolerated. It is right that the Wiltshire Police have apologised and properly compensated Mr Naylor for their treatment of him.

"Mr Naylor was working in a professional capacity reporting an incident where there had been a fatality following a fire on a canal boat. Despite being out of the way and not interfering in any way with any police operation, Mr Naylor was forbidden to take photographs and then, as he was walking to his car to leave, forced to the ground by a number of officers and handcuffed. 

"The incident took place on a public highway and in full view of members of the community to which Mr Naylor belongs. As well as paying compensation and his legal costs, the Chief Constable of Wiltshire Police has also apologised to Mr Naylor for the treatment he received and has confirmed the force’s recognition that journalists have a right to report freely.

Roy Mincoff, the National Union of Journalists Legal Officer said: “This was an outrageous and utterly unwarranted way for a police officer to behave to an ordinary member of the public, let alone a professional photographer properly identifying himself. Bob Naylor’s rights were seriously violated. Members of the media have a duty and right to report and photograph events. 

"They are the public watchdog. We hope Wiltshire Police have learnt from this and ensure all its officers are aware of the Police/Media Guidelines and of the legal rights of the media. The NUJ welcomes the award of compensation and the apology to our member.”

Bob Naylor said, "This happened two years ago when photographers were all too often being attacked whilst going about their lawful work.  I have worked with Wiltshire and other Police Forces for decades and I have never had cause to take issue with them until this incident. It was clear that neither the Sergeant nor the Inspector at the scene were aware of the Chief Constable's guidelines for working with the press. Not only was I stopped from doing my job but the violent treatment meted out to me was wholly unacceptable.  

"I understand that the necessary training has now been given to all members of Wiltshire Police and cannot imagine that an incident like this would happen in the future. The NUJ has been working with the Metropolitan Police and other forces to help to improve the working relationship between the police and the press with, I believe, great success."

Police guidelines for working with the press

Guidelines adopted by the Association of Chief Police Officers (ACPO) in 2007 and by the Wiltshire Police Chief Constable state: 

“Members of the media are not only members of the public… It is important that we build good relationships with them, even when the circumstances are difficult. They have a duty to report many of those things that we have to deal with – crime, demonstrations, accidents, major events and incidents. Members of the media have a duty to report from the scene of many of the incidents we have to deal with.

“We should actively help them carry out their responsibilities provided they do not interfere with ours.

“Members of the media have a duty to take photographs and film incidents and we have no legal power or moral responsibility to prevent or restrict what they record. It is a matter for their editors to control what is published or broadcast, not the police. Once images are recorded, we have no power to delete or confiscate them without a court order, even if we think they contain damaging or useful evidence.

“If someone who is distressed or bereaved asks for police to intervene to prevent members of the media filming or photographing them, we may pass on their request but we have no power to prevent or restrict media activity. If they are trespassing on private property, the person who owns or controls the premises may eject them and may ask for your help in preventing a breach of the peace while they do so. The media have their own rules of conduct and complaints procedures if members of the public object.

“To help you identify genuine members of the media, they carry identification, which they will produce to you on request. Members of the media do not need a permit to photograph or film in public places. “


More at:
The Guardian
Hold the Front Page
Press Gazette 
The Media Briefing
Bindmans LLP
National Union of Journalists

Canal Trust trip boat needs crew

If you want to help to crew a public trip boat on the Kennet & Avon Canal in Devizes — then the local canal trust will welcome you — and give you any training you need.

The K&A Canal Trust trip boat Kenavon Venture moored in front of the Devizes Wharf building it is soon to vacate.
Picture by Bob Naylor

The Kennet & Avon Canal Trust that operates the Kenavon Venture from Devizes Wharf is now looking for more volunteers to help to crew it and has organised a public meeting at the Canal Centre on Devizes Wharf for Thursday 31 March to recruit new members.

The desperate financial situation at the K&ACanal Trust was not improved last year when this trip boat only managed to break even and the Trust say that to operate it this year a further 20 volunteer are needed to help the existing group of 30 members.

This call for help comes as the Trust has announced its departure from the iconic canalside former warehouse on Devizes Wharf that has been home to its offices and museum since the 1980s.

The Trust's worsening financial situation caused by falling membership numbers, a total failure to win funding from grant giving bodies and the poor performance of its trading arm has left it unable to afford to stay there.

K&A Canal Trust Enterprise Ltd have three other volunteer run trip boats that do make money but the Trusts cafés at Bradford on Avon, Newbury and Aldermaston have now been put in the hands of commercial operators with no Trust volunteer involvement with them now.

No place for big fish in small pond

British Waterways is relocating over half a tonne of fish from the side ponds of the Caen Hill Flight of locks on Devizes Flight of the Kennet & Avon Canal to improve conditions for wildlife. 

A pike removed from Caen Hill.

This relocation follows a successful trial project in 2009 when a tonne of fish that included large tench, carp, bream, roach, perch and pike were removed from the ponds.

The large number of boats that move through the Caen Hill locks stirs up silt and, surprisingly, so do large fish feeding on the bottom of the ponds. This stirring of the silt releases nutrients into the water and causes the growth of algae and makes the side-ponds less suitable for invertebrates such as dragonflies and damselflies — as well as rare aquatic plants that need clear-water to thrive.

And by removing the large fish a more natural balance is created in the ponds because there are fewer predators to feed on the younger and smaller fish and invertebrates.

Carp removed from Caen Hill. 

BW ecologist, Oda Dijksterhuis said, "In 2009 we removed the first batch of big fish from the ponds and installed silt screen curtains. The results of this habitat management work have been fantastic with aquatic plants, such as the rare potamogetons and hornworts returning to the ponds that we haven’t had in the waterway for years. In addition to these plants we have seen an increase in dragon and damselfly populations, the ponds are now teeming with diverse dragonfly larvae and other invertebrates such as the water scorpion."

Many of the fish will be relocated along the Kennet & Avon Canal and a proportion will go to Toddbrook Reservoir in the Peak District which needs restocking following works at the site.

Brand new homes beside a brand new canal in Swindon

New canalside houses in Swindon. Picture by Bob Naylor

Barratt Homes are holding a BBQ beside the new arm of the Wilts & Berks Canal in Swindon this weekend to promote their range of new one to five bedroom canalside homes.

If you are interested in buying a canalside house – or are just want to see this newly created stretch of canal at Whichelstowe in the area of Swindon known as the town's 'front garden' head along there on Saturday afternoon between 2 and 4pm.

For more information phone: 01793 394186

or visit: Barratt Homes Website
Directions: How to get there

Related Wichelstowe stories:
Wichelstowe canal festival

New Swindon Canal Branch in water

No access to the Thames from the K&A until further notice

This work is now completed and the lock is back in action (PM Monday 28 March)


Work is taking place on a submerged power cable about 35 feet upstream of Blake's Lock (107) in Reading.
There will be no access to the River Thames from the K&A Canal from today (Monday 28 March 2011) until further notice.

Man charged with murder of Sian O’Callaghan

Christopher John Halliwell, aged 47, of Ashbury Avenue, Swindon, was charged with the murder of Sian O’Callaghan by Wiltshire Police late yesterday evening (Saturday 27 March 2011). Simon Brenchley, District Crown Prosecutor, CPS Wiltshire said, “I have been working closely with Wiltshire Police and now have authorised them to charge Christopher Halliwell with Sian O’Callaghan’s murder. “Having reviewed the evidence, I am satisfied that there is sufficient to charge him, and that it is in the public interest to do so. "I must remind the media to take care in reporting events surrounding this case. Mr Halliwell has been charged with a serious offence and is entitled to a fair trial. It is extremely important that nothing should be reported which could prejudice any trial. “I will keep liaising closely with the police as their investigation continues.” Halliwell remains in police custody at Gablecross Police Station in Swindon. He is due to appear before Swindon Magistrates Court tomorrow morning, Monday 28th March 2011.

Reward offered in hunt for missing Swindon woman

K&A weekend Diary Sat 26 & Sun 27 March

Saturday 26 March 2011

Dorset Boat Jumble

Open 10:00. 

Canford Park Arena, Magna Road, (A341), Wimbourne, Dorset, BH21 3AP. 

Admission £3.50, accompanied children and car park free. 

Tel: 023 92381405 or 07887 771451 

Sunday 27th March

The NABO road show

In Pewsey with a panel of experts to answer your questions about our waterways.

This free event is being hosted by Pewsey Wharf Boat Club in the Bouverie Hall, Pewsey from 2pm to 4pm.


Don't forget — clocks  will have gone forward 1 hour from midnight 

Full diary at: K&A Canal Diary 

Cruiseway Status for K&A Canal

The dreams of canal restoration pioneers are realised

The Kennet & Avon Canal will finally achieve full Cruiseway status from April 18, 2011—realising the dream of the countless enthusiasts who fought firstly to prevent the closure of the canal and then to work to bring the canal back to full use.

Despite spending £29m of Heritage Lottery Fund money on the canal the holy grail of those early pioneers was not achieved, but after several false starts British Waterways recently went ahead with an application for a ministerial order to reclassify the 'remainder' sections of the Kennet & Avon Canal to make them 'cruising waterways' despite the objections of two influential organisations.

Secretary of State for Environment, Food and Rural Affairs, Caroline Spelman has now announced that she has approved the application.

Disease kills swans on the K&A Canal

A killer bacterial disease that is made worse by cold weather has been taking its toll on swans on the Kennet & Avon Canal and the River Thames this winter. 

Wendy Hermon of the Eton-based Swan Lifeline says that more than 150 swans have died on the Thames and the K&A Canal this year. "It is the first time we have seen deaths from necrotic enteritis (NE) which is a bacterial disease made worse by cold weather," she said, "It is just so sad, we are picking up swans that we have known for years. We go out and find three or four swans floating on the water. In all the years I've worked here I've never seen anything like it —  It's just so upsetting".

Fire gutted K&A Canalside pub to re-open

Black Horse hosts, Glynis and Terry Hillier.
Picture by Bob Naylor©

The Kennet & Avon Canalside pub, The Black Horse, that was gutted by fire in August last year is to re-open on April 28th — and with landlady and landlord Glynis and Terry Hillier who have run the pub for more than 21 years back behind the bar.

The fire at the Black Horse last August is brought 

under control. Picture by Peter Cole, Wilts Fire Service©

This news has been welcomed by canal users as well as local residents who feared that their local pub might be turned into a high priced canalside eatery. And not only is the Black Horse going to remain a traditional pub — but the skittle alley is being kept. This is good news for the local canal trusts and boat club who regularly use it for their social events.

Police search Savernake Forest area for missing woman

Sian O'Callaghan

Police are becoming increasingly concerned for the safety of Sian O’Callaghan, 22, who has not been seen or heard from since 2.50 am on Saturday morning when she left Suju nightclub in Swindon. 

A team of more than 60 police officers led by Detective Superintendent Steve Fulcher are trying to establish Sian’s movements between 3:15 am and 4:00 am on Saturday morning in the area of Savernake forest near Marlborough.

If anyone saw her or any vehicles in the area of Savernake Forest at a time when there is unlikely to have been much traffic they are asked to contact the police.

Sian is described as white, 5’3” tall, of medium build with brown asymmetric hair and green eyes. When last seen she was wearing a grey dress, black bolero style jacket, dark coloured tights and flat boots. She was carrying a dark handbag which had a beige flower attached.

DS Fulcher said, "I know that people can sometimes think that small bits of information are not important and they don’t want to bother the police but that small bit of information may be vitally important and I ask that you tell us. It is very important that anyone who knows of Sian’s whereabouts or of any reason for her to stay away contacts us immediately."

Anyone with information should contact Wiltshire Police on 0845 408 7000 or Crimestoppers on 0800 555 111 where information may be left anonymously if preferred.

Bath river search continues for missing student

A Police underwater team is continuing a search of the River Avon in Bath city centre for missing Bath Spa University student, James Bubear,  who was last seen walking along the riverside towards his flat in the Lower Bristol  Road on Sunday night.

Police have also released new CCTV images of James they and are appealing for a woman to come forward who spoke to him on the street on the night he was last seen.

James, 19, disappeared after leaving the Vodka Revolution club in George Street on Sunday, March 13, where he'd been at a fancy dress party with friends.

CCTV cameras in the city centre captured him walking alone along James Street West, outside the Odeon cinema.

A short time later, just after 11pm, he is seen talking to a young woman at the junction of James Street West and Charles Street, opposite Green Park Station.

They were together for around five minutes, after which the woman went off and James sat down in a nearby doorway. His mobile phone and passport were found there by a street cleaner the next morning.

Police say they are increasingly concerned for James's safety, as his disappearance is totally out of character and because he has now been missing for so long.

Chief Inspector Simon Ellis said: "It's very important that the woman seen with James contacts us immediately. We believe she may have important information about how James was that night, what his immediate plans were and perhaps which way he was thinking of walking home.
     "From the CCTV images it seems that they knew each other and spent about five minutes talking. At one stage they hugged before the young woman went on her way, and James sat down in that doorway for around 15 minutes."

Police say that James is distinctive, tall and slim, and on the night had had his face and eyes coloured by make-up by friends in the club.  

Anyone who saw James in the city centre on Sunday night is asked to contact the police on: 0845 456 7000," said Ch Insp Ellis.