2012-13 case summaries

This is the complete list for the year

During the year the previous Ombudsman (Hilary Bainbridge) retired and was replaced by the current one (Andrew Walker). Those cases completed by Hilary Bainbridge are indicated with her initials in the case heading line.

Case No 696 – unauthorised fishing

Mr N’s house and garden back onto a towpath at a wharf in a town. He complained about anti-social behaviour and ignoring of the fishing ban by youths, particularly in school holidays. Although the Trust said that it did not have the resources to deal with such situations where there was public access, Mr N’s view was that that it could not ignore the Government’s anti-social behaviour legislation, and regarded the Trust’s approach as complacent. The Trust had offered to work with the police and local authority, and to examine whether there was any scope for the local angling club to take over the fishing rights in the wharf. I did not find evidence of maladministration, but in to try to achieve a satisfactory outcome for Mr N I recommended that the Trust carry out the actions it had offered to do.

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Case No 695 – refusal of mooring right outside house at a BWML marina

Mr M lives in a property, which had previously been owned by his parents, adjacent to a BWML marina, and maintained that an easement in the deeds to his property gave him the right to moor a boat there. He complained that the Trust had refused to allow him to moor a boat, and had continually refused to set out its reasoning why he may not do so. He also complained that the Trust had tried to force him to deal only via a solicitor, and had delayed dealing with his complaint.

I first considered declining to consider the complaint on the basis that it was best dealt with by the courts or another body, but decided to accept it with the proviso that I may not be able to obtain a conclusive outcome. The details of the case were very intricate, but in essence Mr M’s right to moor a boat outside his property depended on his being able to prove that such a right, which appeared at one time may have existed, was transferred from a previous landlord to a successive landlord. I relied on a careful assessment by solicitors acting for the Trust, who concluded that even if such a right was validly granted it was not included in the transfer of the title to Mr M’s parents. I found no evidence that such a right or easement definitely did exist, and I did not uphold the principal part of the complaint. In respect of any delays by the Trust in dealing with the complaint, I concluded that in view of the detailed nature of the complaint the delay did not seem unreasonable.

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Case No 684 – failure to act on action promised re disabled access for fishing

Mr L is a disabled angler. He said that since the Trust had made over the fishing rights at a marina to the marina’s boat club, he and others had been prevented from enjoying fishing there.

The Trust had assigned the fishing rights to the boat club for a period of five years. It understood that the boat club was less interested in fishing than in preventing others from doing so because of historic problems with irresponsible and illegal angling. Given that it had insufficient resources to exercise control over the fishing it felt that it had been correct in assigning the rights to the boat club. It accepted that the situation was far from ideal, and while it had tried to resolve the problem it had no powers to require the boat club to allow Mr L to fish at his preferred location.

Mr L was able to fish from a different location at the marina, but this was not acceptable to him. I did speak to the Trust to see whether there may be scope for a solution, but it was clear that while the boat club retained the fishing rights there was not. The Trust could not require the boat club to allow Mr L to continue fishing from his favoured location, and as I had no jurisdiction over the boat club there was nothing that I could do.

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Case No 676 – briefing of Trustees and refusal of admittance to a meeting (HB)

A group of people complained about two issues, which were (a) the content of paragraphs 2.1 to 2.3 of the Trustees’ briefing document TT06, about the Trustees’ meeting on 22 September 2011, in relation to “continuous cruisers” and (b) to the refusal of the Trust to admit them to the Trustees’ meeting on 22 September when the issue of continuous cruisers would be discussed.

In response to the complaint, the Trust disagreed that the term “continuous moorer” was pejorative, derogatory or inaccurate, and did not accept that anything should be withdrawn or rewritten. In respect of the refusal to admit the complainants to the meeting, the Trust stated that it was for the Trustees to decide how to conduct their meetings and who to invite. It added that the views of the complainants were very well known to the Trustees and that they had decided not to invite them. The Trust went on to explain that it sought a consensus wherever it could but on occasion it was not possible.

Among their points the complainants argued that the Trust had failed to deal with the majority of the issues they had raised, that it was a gross assumption that the Trustees already knew their views, that in their absence they would not be able to ensure that the debate was balanced rather than prejudiced, and that it was entirely unacceptable that any organisation should refer to any group of people in derogatory terms.

Having read the briefing document the Ombudsman said that it did not seem to her that the term “continuous moorer” was being used to refer to all boats without a home mooring, but only to such boats which the Trust believed were not complying with the continuous cruising guidelines. Even then, she noted that since many would not be mooring continuously, the term was arguably not entirely accurate, but could see why the Trust would need a shorter term to refer to such boats. She did not consider the term to be so inaccurate as to make its use unreasonable, nor did she consider its use as being derogatory, and she did not uphold that element of the complaint.

On the issue of the refusal of the Trustees to admit access to their meeting, the Ombudsman was not aware of any reason why they were under any obligation to do so, any more than the complainants would be obliged to allow the Trustees to attend any meeting they might have. It also seemed to her that the complainants had put forward their views by other means, but that if they wanted to submit any further views they did so in writing straight away. She said that she had no basis for concluding that the refusal of the Trustees to admit access to the meeting amounted to maladministration or unfairness, and did not uphold that element of the complaint.

On the complainants’ point that the Trust had not responded in detail to the all the issues of their complaint, she noted that many were more in the form of statements rather than detailed points of complaint.

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Case No 675 – refusal to allow vehicular access along the canal bank (HB)

Mr K lives in a property near the Gloucester and Sharpness Canal. Access to the property, and a number of others, is by a canal bridge. When he moved into the property the bridge was in the process of being converted from manual to electric operation, during which time he and other residents accessed their properties via a 300m stretch of the towpath, he said with no problem. On one occasion in May 2012 the bridge was out of operation for what he said was about two hours, but that by that time vehicular access to the towpath had been barred by a locked gate. Mr J said that at the time of the incident there were two people, one on either side of the bridge, who had medical conditions, but that the Trust had not addressed their situations. In his view access to the towpath should be granted to vehicles, as it had in the past.

The Trust said that its service standards required it to respond to an “emergency” within two hours, but that the bridge, which had failed at 12:25, was once again operational at 14:40 on the same day. The Trust explained that it had a well-established protocol with the emergency services whereby they would let it know if the bridge needed to be made available. It said that vehicular access to the towpath had been closed because of safety risks, particularly given that the adjacent section of the canal was deep. The Trust said that the bridge did not have a history of regular breakdowns, but acknowledged that it was inconvenient when the bridge failed, and did not agree that vehicular access to the towpath should be reinstated.

The Ombudsman noted that Mr J did not have a formal right of access to the towpath, and did not accept that he should have been consulted before the gate was locked. She did not think that there was any particular risk that the bridge would be maintained less well. She stressed that it was for the Trust to weigh up the risk of vehicles using the towpath, noting that there had been incidents when vehicles had fallen into canals from towpaths. In respect of the need for anybody to gain access to medication, she took the view that in case of an emergency, access could be achieved on foot, or if necessary the emergency could take appropriate steps to gain access by one means or another. She understood why the Trust had stopped vehicular access to the towpath, and did not uphold the complaint.

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Case No 666 – failure to maintain towpath adequately (HB)

Mr J’s complaint was about the state of a section of the towpath of the Rochdale Canal. In essence, he complained that the problem with the towpath was beyond a temporary solution, that it was a busy thoroughfare for local residents, that the blocking of the towpath by safety barriers meant that people were forced onto the grass, creating a muddy path over adjacent land, that the failure of the Trust to take action had resulted in the wash wall collapsing into the canal, and that the condition of the towpath had a detrimental effect on the residents of the local estate.

The Trust accepted that the towpath was not in an acceptable state, but stressed that the restoration of the canal by volunteers around the year 2000 was, with hindsight, done at the expense of a stable edge to the towpath, that the situation had been exacerbated by the wash from passing boats, and that this had resulted in the towpath at one point collapsing. The Trust explained that the towpath was beyond a quick repair, but that it had put in place a temporary solution for a safe towpath pending a long term project to reinstate the whole towpath. The Trust said that a longer term temporary repair was planned, but that although a more permanent repair was planned it had limited funds and had to prioritise its works.

The Trust recognised that the towpath was well-used by local residents. It upheld a number of the points of Mr J’s complaint, and apologised for the inconvenience caused both to him and to other users of the towpath, but concluded that with limited funds it was unable to effect a permanent repair more quickly.

The Ombudsman stated that the Trust had limited funds and that she could not insist that the Trust give priority to a large scale permanent repair, particularly in light of other repairs elsewhere in the country which may be at least as important or pose greater risks to public health and safety. She concluded that as long as the Trust took action to ensure that the area was safe, and enabled access to a useful part of the towpath, she could not insist that it do more, and she did not uphold the complaint.

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Case No 665 – licence renewal prompt payment discount (HB)

Mr and Mrs H said that they had not received the renewal notice for their boat licence, which the Trust said was generated automatically on 16 March 2012. They did not renew the licence by the due date of 1 April, and lost the entitlement to the prompt payment discount. Once they became aware that the renewal date had passed, they contacted the Trust on 3 May about the lack of a renewal notice, and asked that they be allowed to benefit from the prompt payment discount, but the Trust refused. The Trust explained that renewals were issued to assist customers in renewing their licences, but that it remained the customers’ responsibility to manage their licences. The Trust referred to its terms and conditions, which state that its rules apply whether or not it had sent a reminder.

Although the complainants stated that the renewal date was in fact 1 May and not 1 April, the Ombudsman noted that they had not enquired about renewal before 1 May, and were not entitled to the prompt payment discount. The Ombudsman stressed that it was the owner’s responsibility to ensure that the boat was licensed. She concluded that there was no evidence that the inability of the complainants to renew their licence in sufficient time to obtain the prompt payment discount arose from any maladministration or unfair treatment by the Trust, and did not uphold the complaint.

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Case No 662 – vegetation management (HB)

Mr G lives in a property adjacent to a canal. He complained about what he said was the poor record of the Trust over a number of years in managing the vegetation on the land bordering his property. He explained that the Trust used a strimmer to clear the ground, rather than a mower, which meant that cuttings were not collected and furthermore were spread onto his own land, causing weeds to spread. He added that there was also weed infestation from under the fence between his property and the Trust’s, as well as an overhanging hawthorn hedge, which together led to a loss of amenity to that part of his garden. There was also a loss of amenity in Mr G’s front garden because of pine needle drop from some very large trees overhanging his property.

The Trust did accept that management of part of the area was sub-standard, and would ask for action to be taken, but it generally considered the maintenance to be adequate. The Ombudsman explained that the Trust had a basic right to manage its own land as it saw fit. She added that if the land had been so badly managed as to cause a statutory nuisance she might be able to do something, but she did not consider that this was the case, and did not uphold the complaint.

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Case No 655 – BWML mooring charges

Moorers at a marina in the London area owned and operated by BWML complained about the new pricing structure for residential moorings and widebeam boats.

BWML had served notice of its intention to apply a widebeam surcharge for boats wider than 3m, and also to introduce a higher rate for boats used for a residential, rather than leisure, purpose. In respect of the application of the widebeam surcharge it explained that the ability do so was provided for within its terms and conditions, but that it had not previously applied it. In respect of the new residential rate it said that it had been challenged by some local authorities about customers residing at its marinas. It wished to provide residential moorings for those who wanted them, and to avoid being prosecuted for breach of planning law.

BWML’s terms and conditions lacked clarity on the space taken up by a boat, stating that it reserved the right to charge for the number of berths used. It was clear that in this marina few or no boats took up more than one berth. The terms and conditions also gave BWML the right to levy between 30% and 100% surcharge for “inland craft” wider than 3m. I challenged the Trust on the definition of a berth, but it argued that its definition was based on water area occupied, and that the pontoon layout was adjustable and its configuration could be changed. While it might seem a difficult task to do so, I accepted that it was possible.

Even if there was a lack of clarity about the definition of a berth or the water area taken up by a boat, and which could be successfully challenged, the Trust would be free to amend its terms and conditions to introduce a more rigorous definition, and then apply a widebeam surcharge. In respect of the Trust’s right to apply a widebeam surcharge, I did not uphold the complaint.

I did recommend that BWML should as a matter of urgency consider revising the definitions in its terms and conditions relating to whether a marina was coastal/non-coastal or inland/non-inland, and also the definition of a berth.

On the issue of the introduction of residential moorings, BWML’s terms and conditions stated that the owner shall not live permanently on board the vessel without the prior written permission of BWML. Some boat-owners do live on their boats, and stated that it was with the permission of the Trust, and furthermore that they had paid a £500 annual premium for the right to do so. I could not consider whether this was a fair price, but it seemed reasonable for boat-owners to conclude that payment of the premiums entitled them to live aboard their boats.

Although I had little doubt that BWML was aware that moorers were residing on their boats, I accepted that this did not prevent it from later introducing a full residential product at its own rate. In respect of BWML’s right to introduce a residential product and to charge a higher rate, I did not uphold the complaint.

Many of the moorers were on three year fixed price leisure mooring contracts. BWML was converting 50% of the moorings to full residential status. In setting a new residential mooring rate, it set a deadline for those wishing to convert to a residential mooring, after which it could not guarantee that they would be able to have one.

Some of the three year contracts were not due to expire until after the deadline for converting to a full residential mooring, and the Trust would have required those moorers to terminate their three year contracts before their natural end date. I concluded that a unilateral decision to terminate a contract in this was likely to be unfair, but the Trust accepted that such contract-holders could remain on their three year contracts, at the prices agreed at the start of those contracts, until their original end-dates.

The moorers considered that in applying higher charges for both widebeam and residential purposes, BWML was breaching competition law by abusing a dominant position in the marketplace. I explained that as an Ombudsman, and not a market regulator, I could not consider such issues, nor could I take a view on whether prices were fair or reasonable.

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Case No 646 – access to waste disposal facilities (HB)

Mr F moors his boat in a private marina which has no waste disposal facilities. After boat trips he had been taking the toilet cassette in his car to a British Waterways marina for emptying, but one day found that it had then stopped allowing access to the facilities by road. Although British Waterways understood Mr F’s predicament, and accepted that he was a genuine boat customer, it explained that provision of the facilities, which were expensive to maintain, had been abused by others, and it had taken the decision to prevent continued access by road, although it continued to make the services available to people arriving by boat. The Ombudsman accepted that Mr F felt frustrated, but explained that possession of a licence did not provide an entitlement to such services, adding that he did not moor at a British Waterways site. The Ombudsman concluded that there was no evidence of maladministration, and she did not uphold the complaint.

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Case No 642 – failure to deal properly with claim for cost of repairs for a leased property

Organisation E is a yacht club which leases a property from the Trust. In 2006 the Trust replaced the roof of the property. On top of the building is a clock tower which for historic reasons is owned by the local authority and not the Trust. In subsequent months there were two leaks, which damaged the club’s property. In respect of the first leak, the Trust made a payment of £1,800, but which it said was on a without prejudice basis and without admission of liability. A contractor for the Trust had concluded after an inspection that the source of the leak was the clock tower, and advised the club to seek compensation from the local authority. However, the authority did not admit liability, nor did the club’s own insurers.

I concluded that it was not possible to reach a firm conclusion on what caused the leak or how responsibility should be apportioned, and felt that the most likely chance of resolution lay in a mediated settlement. The club stated that the cost of the damage was £6,000, but it accepted in full and final settlement an offer from the Trust of £3,000 on a without prejudice basis and with no admission of liability.

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Case No 640 – trees adjacent to property (HB)

Mr D lives in a property adjacent to a canal. He said that there were trees on British Waterways’ land which were overgrown and which were blocking out light, but which it had refused to prune, even though neighbours had told him that it had previously done so. The Ombudsman explained that although British Waterways seemed to accept the trees were on its land, it had concluded that they were healthy and did not intend to prune them. She said that British Waterways was under no obligation to prune the trees even if it had previously done so, adding that Mr D was entitled to do so himself. She found no evidence of maladministration and did not uphold the complaint.

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Case No 639 – mooring charges

The bulk of this complaint was the same as case number 655 and my decisions for the common issues were almost identical in wording. The summary for the common issues is set out in the summary of case number 655, but there were additional issues in Mr C’s complaint, which are set out here.

Mr C has two boats in a BWML marina. He had let one the boats to a friend, and assisted boat-owners in selling their boats, for a fee. Clause 3.1 of the terms and conditions states that a boat-owner shall not use the marina for a commercial purpose. While Mr M said that he had the oral agreement of the marina manager to the letting of his boat, BWML sent him warning emails about compliance with the terms and conditions, which require the boat-owner to seek written consent for such purposes. The situation was resolved without my involvement, but I did not find evidence of maladministration and suggested that in future Mr M formalise any commercial arrangements.

Mr M had sold, and was selling, boats for other boat-owners in the marina on a commission basis. BWML’s terms and conditions state that an owner shall not offer a vessel for private sale without its written consent. In that case, the owner must either use BWML’s brokerage service or pay a Sale on Berth fee. BWML has an exclusive agreement with a brokerage firm, and I was not aware of any reason why it may not do so. I did not find evidence of maladministration, and did not uphold this part of the complaint.

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Case No 633 – tree adjacent to home (HB)

Ms B lives in a house adjacent to a canal. One of the trees on British Waterways’ land overhangs Ms B’s garden. She complained that the tree restricted the enjoyment of her property and infringed her human rights, and although she did not want it cut down she did want it cut back. She also felt that the tree was dead or dying. In dealing with the complaint British Waterways surveyed the trees and also visited Ms B. It concluded that the tree was not causing any damage or posing a risk to the property, nor was there evidence that the tree was dead or dying.

The Ombudsman did not consider that in the strict legal sense the tree could be regarded as causing a nuisance, nor did she consider that there was evidence that the tree was posing a significant danger. She explained that she did not have the power to overrule a decision by British Waterways not to prune the tree, but pointed out that Ms B was entitled to have any overhanging branches pruned at her own expense. She found no evidence of maladministration or unfairness and did not uphold the complaint.

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Case No 625 – wrongful charging of VAT on licence (HB)

Mrs A lives on a houseboat. From 1993 British Waterways added VAT to her licence fee and continued, although HMRC rules state that the licence fees on a houseboat are exempt from VAT. Although the rules of the Waterways Ombudsman Scheme stated that the Ombudsman could not consider a complaint going back more than 36 months before the complaint was first made to British Waterways, Mrs A did say that she had been complaining, without result, since at least 2002. British Waterways initially stated that it had paid the VAT to HMRC and could only recover it for the previous four years, but it argued that in any case Mrs A was legally entitled to recover the amount owing for a period of six years.

British Waterways initially offered compensation of £2,500, which Mrs A did not accept. After she provided a copy of a letter sent in 2002, which showed that she had at that time raised the VAT issue, British Waterways made a revised offer of £5,200, which Mrs A accepted.

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