2013-14 case summaries

This is the complete list for the year

Case No 762 – Mile End Floating Market July and August 2012

Mr Q complained about the lack of facilities at the market, and that he had suffered a loss because of the lack of availability of water, because of inadequate mooring facilities, and because of the lack of accurate and timely publicity. He also argued that because he had not signed the mooring contract, no such contract existed.

I was satisfied that even though Mr Q may not have signed the contract, it could be deemed to exist, and indeed that if it did not the rest of his complaint would fall. The Trust had admitted that the facilities were not as he could reasonably have expected, and had offered a reduction in mooring fee from £582.35 to £360, which was the level for a non-trade mooring. In my view the Trust’s offer was fair and reasonable and I concluded that it should maintain it.

Back to top

Case No 745 – loss of prompt payment discount

The licence on Mr P’s boat became due for renewal on 1 April 2012. He said he had not received the renewal notice in time to benefit from the discount. He also complained about the lack of availability of contractual documentation, the Trust’s website management, and its complaint handling, as well as loss of use of the canals while he was trying to renew his licence.

Mr P’s view was that it was up to the Trust to ensure that customers received renewal reminders on time. The Trust said that the renewal letter was generated and printed on 15 February 2012, but that in view of the volume of letters it sent out it did not keep a certificate of posting. Given that Mr P had had a boat for some years, I saw no reason why he should not have been aware of the impending deadline, and take action if he received no renewal. Although he said that website information was difficult to find, I found it quite easy to locate. When he did try to renew online, Mr P experienced difficulties, but by that time he would not have been able to benefit from the discount.

In respect of Mr P’s argument that he temporarily lost the use of the canals, I doubted that in this situation the Trust would have applied sanctions, especially if he had let the Trust know beforehand, and I did not accept that he had suffered any injustice or material detriment.

I did not uphold the complaint, but in response to a request from Mr P after I had concluded my investigation, that the Trust consider referring on its renewal form to where the terms and conditions could be found, the Trust agreed to do so.

Back to top

Case No 742 – marina sanitary facilities

Mrs O had a long-term mooring at a marina. She complained about what she referred to as the filthy conditions of the showers, saying that she had made many phone calls to the Trust but without success. She had asked for £1,400, comprising £800 for full reimbursement of her mooring fees for a period of 21 months, £100 for sundry expenses, and £500 compensation for stress and inconvenience, as well as an apology.

The Trust agreed that the state of the shower trays was unacceptable, and that they would be properly cleaned and probably replaced after a survey. Mrs O did not think that the trays needed replacing, but my view was that it is up to the Trust to decide what to do with its own property. I upheld the complaint in part, and decided that the Trust should make an award of £125 to reflect the stress and inconvenience, as well as any costs she may have incurred. I recognised that this was a fairly modest award, but said that it did take into account the fact that Mrs O had been abusive to Trust staff.

Back to top

Case No 738 – Mile End Floating Market July and August 2012

Ms N had paid for a permit to moor at the 2012 Olympic floating market, and operate a catering business from her boat, but said that the Trust had breached its terms and conditions by not providing a water tap and other services. In her view she was not liable to pay for the permit, and she had refused an initial offer by the Trust of £100 as a goodwill gesture. In her complaint Ms N said that among matters there had been a lack of promotion of the event, a lack of media presence, poor waste disposal facilities and poor water availability.

The terms and conditions of the permit did not specify the level of media presence or promotional activity so I could not consider these issues. There was also no evidence that she had raised with the Trust the matter of waste disposal, so again I could not consider it. The terms and conditions stated that the Trust would not be liable for the failure of any utility, which I interpreted as including water even though it was not specifically mentioned. Although water was available it was at some distance and difficult to access, and in any case unless the water tap was located next to her boat Ms N would have had to collect water or move her boat.

The Trust accepted that the situation was not ideal, but Ms N has not provided evidence that it had a detrimental impact on her business. The Trust later increased its offer, to reducing the mooring fee by £172, from £532 to £360, bringing it into line with the non-trade mooring fee. Although I requested it, Ms N did not provide evidence that any losses may have exceeded £172, and in any case the terms and conditions did not cover liability for loss of business, or consequential losses from failure to perform the contract. Legally, the Trust was not obliged to make any offer of payment, but did so on a goodwill basis. In my view the Trust’s offer was fair and reasonable and I concluded that it should maintain it.

Back to top

Case No 724 – car parking permits at a marina

Mr M moored his boat at a marina with a car park. Until 2012 use of the car park had been free but a private company took it over and converted it to pay and display. Moorers who had been customers since 2008 were issued with two free parking permits, but others received only one. Mr M felt that in being given only one free permit he had been treated unfairly.

The Trust said that some long-standing moorers did have permission to park two cars prior to the introduction of the current pay and display system, and that it was judged that to have removed this permission would have been unfair. It added that the auction description for the moorings did not include free parking.

Whatever the Trust did was likely to have been viewed by some as unfair. I was satisfied that there was an objective basis for the different allocation of free permits depending on how long moorers had been there, and I did not uphold the complaint.

Back to top

Case No 722 – Trust misrepresentation of a boaters’ organisation

Mr K, on behalf of Organisation L, representing boaters without home moorings (BWHM), complained that the Trust had published statements which had contained allegations and inaccuracies about the organisation, as a result of which it had suffered injustice, and that continuous cruisers had been discouraged from becoming members. The statements were included in the Trust Council Meeting briefing paper of 27 September 2012 on non-compliant continuous cruising, and the Trust document “Towpath Mooring – Q&As”.

There were six issues in the complaint. In the first, in respect of the Trust’s statement in the Q&As that Organisation L had argued passionately that it was a basic human right to live on a boat without any restriction on mooring, Mr K said that the organisation had never argued this. I upheld this element of the complaint, and recommended that the Trust publish a correction.

In the second and third issues, again in respect of the Q&As, the Trust had stated that the High Court had conducted two hearings of the organisation’s application for judicial review of its interpretation of the relevant legislation on continuous cruising. The Trust went on to say that it had no reason to think that the appeal would change anything. Mr K pointed out, first, that it was he and not the organisation who had brought the action in a personal capacity, and second that to predict that the appeal would fail was a further attempt to discourage boaters from becoming involved with the organisation. I upheld these two elements of the complaint, and recommended that the Trust published corrections.

In the fourth issue, also in respect of the Q&As, the Trust referred to Organisation L as being “relatively new and small”. Mr K argued that to make such an allegation was a further attempt to discredit it and to discourage boat dwellers from becoming involved. I regarded the statement as objectively justifiable and I did not uphold this element of the complaint.

In the fifth issue, the Trust briefing paper referred to Organisation L as having rejected the Trust’s interpretation of the legislation, and as believing that any boater had a right to settle on the towpath within a specific area without the need to secure a home mooring. It added that the Trust’s attempts at constructive engagement with the organisation on such matters had largely failed. Mr K said that the organisation had never argued in favour of an unconstrained right to settle, and that the Trust had made no attempts at constructive engagement with the organisation. He added that the statement that such attempts had failed further compounded the injustice to the organisation. I noted in my report that the relationship between Organisation L and the Trust seemed frequently to be difficult, and also that the organisation had used various channels, such as the courts, and FoIA requests, in dealing with the Trust, but also noted that there had recently seemed to be an improvement in dialogue. I did not uphold this element of the complaint.

In the sixth and final issue, the Trust briefing paper had stated that Organisation L’s activities included such issues as campaigning against the Trust’s mooring policies on niche websites and Internet groups, submitting successive complaints and FoIA requests, and providing support to boaters within the Trust’s enforcement process for failing to demonstrate compliance with mooring guidance. Mr K argued that they were all legitimate activities. I could find nothing in the Trust’s statements that suggested that it regarded such activities as not being legitimate, but I did accept Mr K’s point that Organisation L had never in its own capacity made an FoIA request, even if some of its members had. I upheld this element of the complaint in part, and recommended that the Trust publish a correction.

Back to top

Case No 719 – smoke from boats moored outside apartment

Mr J lives in an apartment at the side of the Regent’s canal. While there had not previously been problems, the erection of new buildings on the other side of the canal had created a canyon effect, meaning that emissions from canal boats came in through open windows, which gave him and his family headaches. He said that there was also noise pollution.

The Trust explained that the powers of it and the local authority to deal with the problems were very limited and that in practice enforcement was difficult. It proposed a number of measures to alleviate the problems, including the issuing of patrol notices about smoke nuisance, the putting up of signs, investigating whether moorings rings could be installed nearby to encourage mooring elsewhere, and writing to Mr J to explain what he could do when a particular problem occurred.

Mr J suggested that the moorings could be de-designated, but the Trust did not wish to do so, and as this was a policy matter I could not require it to take such a measure. I did accept that Mr J’s situation was very difficult, but there was nothing significant that I could do that would prevent the problem occurring in the first place. I recommended that the Trust take the steps it had already proposed, and also to write to him to explain why it could not de-designate the moorings.

Back to top

Case No 713 – poor customer service from the Trust following an accident

Mrs H has a boat which at the time of the events giving rise to this complaint was on the Kennet & Avon Canal. She does not declare a home mooring and therefore licenses her boat on the basis of continuously cruising. She explained that she had an accident in December 2012 which, while not serious, meant that she had to remain in a particular location for two to three weeks, which would have meant her overstaying beyond the 14 days permitted. Mrs H said that in discussions with the Trust, a staff member had behaved unprofessionally and inappropriately.

The complaint seemed to me to be at least partly about perception of attitudes. There were references in the Trust’s evidence to Mrs H overstaying on previous occasions, or moving insufficient distances. It may have been that what the Trust regarded as statements of fact, Mrs H may have regarded as threatening and bullying language. I accepted that Mrs H may have felt bullied, but it did seem to me that discussions had been coloured by previous events and that a conversation may not have developed as it did had Mrs H had a flawless record of moving her boat. There did appear to have been scope for the Trust member of staff to handle things better, but the Trust had apologised and did not consider further action necessary.

Back to top

Case No 710 – rubbish in the River Soar at Thurmaston

Mr G said that the Trust was failing to keep the river clean, and that rubbish, including traffic cones, furniture and logs had accumulated at a weir. He felt that there should be a grid under the nearby foot to catch the rubbish. While the Trust had said that a grid would cause the river to flood, Mr G said that it flooded anyway.

The Trust accepted that there was a genuine problem but that it did not have the resources to remove all the rubbish. It had created links with other organisations, and had also created volunteer groups, in the area to try to stop the problem happening in the first place, but stressed that it would not happen overnight. The Trust said that there were no grilles at other weirs, and did not consider that this was a solution to this particular problem. I concluded that the Trust was already doing as much as it could and that there were limits to what it could do. I did not uphold the complaint.

Back to top

Case No 709 – the Trust’s seizure of a boat

Mr F owns a property next to the Kennet & Avon Canal on the offside, adjacent to a lock. He owns a boat, which he moored outside the property on what he said was a historic mooring. The Trust removed the boat under section 8 of the British Waterways Act 1983, and in doing so broke a padlock to gain entry to it. He made a large number of points in his complaint, most of which I could not consider either because they were matters of policy or because they had already been considered in previous complaints. The issues which I did investigate were whether the Trust’s entry to the boat was unlawful, and whether its policy for entering boats was set out in any corporate documents.

Mr F argued that there was no lawful authority permitting the Trust to break into boats during the course a section 8 removal, and maintained that it should have given him 24 hours’ notice. The Trust was satisfied that there had to be an implied right to use forcible entry, in order to give proper effect to the legislation. Mr F pointed out that s.7(2)(b)(i) of the 1983 Act made it clear that the Trust may enter a boat only with 24 hours’ notice, but the Act states that the giving of such notice is in accordance with s.7(2) of the Act, and the boat was impounded under section 8. I could not reasonably conclude that the Trust had unlawfully entered Mr F’s boat, and I did not uphold this part of the complaint.

In respect of whether there were any documents setting out the Trust’s policy for entering boats, the Trust said that there were not. Even if any information had not been available it did not seem to me that events would have taken a different course, and noted that at the point where such information became important matters were likely to have already reached an advanced stage. I did not uphold this part of the complaint.

Back to top

Case No 702 – trading from moorings on the Macclesfield Canal

Ms E wished to trade from moorings on the Macclesfield Canal. While she had been offered locations at certain points, she regarded these as unsatisfactory for various reasons. She felt that she had been treated unfairly and inconsistently in comparison with other trade boats, and said that she had had difficulties in dealing with the Trust. She pointed out that there was space at the end of the long term leisure moorings and saw no reason why she could not trade from there, adding that occupancy of the moorings was low.

The Trust explained that Ms E had a business licence for her boat to operate on a roving basis, and that although she had a home mooring she was not permitted to trade from it. It was not prepared to allow her to trade from the long term moorings.

I could consider only whether there may have been maladministration in the way that the Trust had dealt with Ms E, even if there was a suggestion or indeed evidence that it may not have been enforcing its terms and conditions in respect of other trade boats. The Trust is not obliged to allow trading from leisure moorings. This is a policy matter, which I cannot influence, and on this issue I found no evidence of maladministration. As to the allegation of inconsistency and unfair treatment, there did appear to be some evidence, but the Trust said that it would consider what to do about the other traders. I did not uphold the complaint, but I did recommend that the Trust explain to Ms E whether the current low level of occupancy of the long term moorings may be likely to affect its decision not to allow her to trade from there.

Back to top

Case No 700 – assistance to a boater following a canal breach

As a result of breach on the Trent and Mersey Canal at Dutton at the end of September 2012 Mr D was unable to return directly to his home mooring on the Bridgewater Canal at Runcorn. He said that the only route home for which the Trust was willing to provide assistance was by joining a convoy travelling west on the Manchester Ship Canal to Ellesmere Port, but which entailed a long and circuitous route of nearly 100 miles with 108 locks. He was willing to travel east on the Manchester Ship Canal and then transfer to the Bridgewater Canal to return to his home mooring. He said that the Trust did not assist him, but that by his own perseverance he did eventually manage to travel on his preferred route. Mr D wanted the Trust to reimburse his additional fees for using the Manchester Ship Canal, of £138.

The Trust explained that the breach affected around 500 boats, 50 of which needed to be moved to other parts of the network. It pointed out that it was an emergency situation and that it had concentrated its resources on the route favoured by most boaters, via Ellesmere Port. It added that under its terms and conditions it had no statutory obligation to keep the waterways open at all times, and that its licence fees reflected this fact. The Trust had reimbursed the £28 Manchester Ship Canal fees payable by those travelling via Ellesmere Port, and offered the same amount to Mr D, plus a goodwill payment of £50.

I had no reason not to accept in good faith Mr D’s comments that the Trust had made it difficult for him to use his referred route, which involved such matters as getting a seaworthiness certificate, and it did seem to me that the Trust may have provided less assistance to him than to other boaters. The Trust was not obliged to reimburse Mr D his full Manchester Ship Canal transit fee, and I decided that its offer of a payment of £28 was fair and reasonable. However, I did accept Mr D’s argument that the Trust had not been as helpful as it could have been, and recommended that it increase its goodwill award from £50 to £100, bringing the total award to £128. In doing so I upheld the complaint in part.

Back to top

Case No 687 – renewal of boat licence

Ms C’s boat licence was due to expire at the end of August 2012, but she did not receive renewal paperwork. She did not need a licence for her boat at its usual mooring in London, but had one for when she went cruising on other waterways. There was some confusion about the status of her mooring, and whether it could be regarded as a home mooring, and therefore whether she was to be regarded as a continuous cruiser. In the delays arising from the confusion, her boat was for a period not licensed, and she said that because of the risk of enforcement proceedings being taken in this period she was unable to go on trips up the Grand Union Canal.

The Trust explained that in light of a court case it became aware of inaccuracies about the information it held for Ms C’s boat, in that it had incorrectly recorded the boat as a continuous cruiser, and had placed a block on the account which meant that Ms C did not receive a reminder. It wanted confirmation that the boat still had a home mooring before it would process the application, but Ms C said that all the Trust required was confirmation that she still held the same mooring which had formed the basis of her application, and did not see why she needed to complete a new application.

I could find no reason why the Trust may not have a legitimate reason for being confused about the status of Ms C’s mooring, and I could see no ulterior motive in it wanting to consider the matter in more detail. In respect of whether Ms C had a legitimate concern about the Trust taking enforcement action had she taken her unlicensed boat cruising on the Grand Union Canal, the Trust told me that it would not have impounded the boat or impeded its movement without issuing a statutory 28 day notice. It seemed to me that Ms C had a good understanding of the waterways, and I could not reasonably conclude that any fears she may have had about enforcement action were justified. The Trust said that Ms C had not indicated a sense of urgency in renewing the licence, and the only evidence that she provided to me that she had notified the Trust about her wish to go on holiday was in an email to Trust after the holiday had been cancelled.

The Trust did accept that there were some shortcomings in its process, and had already apologised. Other than that, I could find no evidence of maladministration. In my view it was Ms C’s decision to cancel the holiday, and I did not uphold the complaint.

Back to top

Case No 679 – the Trust’s interests in an organisation representing commercial boat hire companies, and Trust staff involvement in the organisation

Mr B, on behalf of an organisation representing boaters without home moorings (BWHM, also known as continuous cruisers), complained that the Trust’s interests in, and involvement with, the organisation representing boat hire companies amounted to maladministration and led to potential injustice to BWHM. The approach I adopted was to consider whether there had been any detriment, and if so whether this was the result of the alleged maladministration.

Mr B argued, among other matters, that the interests amounted to conflicts of interest, that they led to benefits to the Trust in terms of indirect revenue and political influence, and that the Trust had given preference to hire boat companies over and above other boaters.

In terms of detriment and injustice, Mr B said that targeted action by the Trust against BWHM was disproportionate in comparison with their numbers. He said that there was evidence showing that boat hire companies were calling for stricter enforcement against BWHM and for increases in BWHM licence fees. In Mr B’s view the total number of BWHM boats, taken across the whole network, meant that there was not a problem.

Mr B also referred to the Trust Council Briefing paper of 27 September 2012, on Non-Compliant Continuous Cruising (NCCC), which he said among other measures proposed a policy of breaking up BWHM communities. He said that that the briefing took up many of the measures put forward in trade meetings. He noted that the document created the impression that the Trust did not already have sufficient powers to control towpath mooring.

I pointed out that the organisation on behalf of which Mr B submitted the complaint did not comprise all BWHM, so I could not consider whether there had been any detriment to BWHM who were not its members. I accepted that there may be some detriment to BWHM, but noted that the Trust had for many years had a policy on continuous cruising, and was now seeking to increase its level of enforcement. I did not accept that any potential detriment or unfairness was the result of any maladministration or unfairness, as much as the enforcement of the Trust’s policies.

I added that it seemed unlikely that the alleged maladministration may have been likely to influence the way that the Trust applied its rules and policies. Although Mr B provided many examples of what he considered to be detrimental effects, it did not seem to me that there was a clear connection between the alleged maladministration and any detriment. I did note that it was theoretically possible that the alleged maladministration had had a pervasive effect on the implementation of the Trust’s policies, but that no immediate connection was visible. I added that the policies had been, and could be, tested in the courts. I did not uphold the complaint.

Back to top

Case No 670 – refusal of a mooring

Mr A bought a business in a town centre, and wanted a permanent mooring a few yards away on the adjacent canal. He said that he was given conflicting information about whether or not the mooring was included as part of the building lease, but that in any case he signed the building lease in February 2011 on the basis of his understanding that he would be able to have the mooring.

It was clear from the evidence that Mr A was provided with conflicting information; indeed even during the Trust’s complaints process it initially supported the decision not to grant a mooring, then reversed the decision only to reverse it again. It was clear that there was not universal agreement within the Trust about whether Mr A should be able to have the mooring. Mr A argued that although there may have been problems with the mooring and the water depth, he regarded it as satisfactory and said that the Trust had permitted such moorings in other locations. The situation was further complicated by the fact that the mooring had been used by a Trust boat, and also that there appeared to be strong and opposing local interest in Mr A having the mooring. At best, therefore, there was uncertainty when Mr A signed the lease that he would be able to have the mooring, and the Trust eventually decided on practical and policy grounds not to allow him to have the mooring.

I concluded that the Trust had failed to deal adequately with the situation, in particular that it had twice changed its mind during the complaints process and had previously provided conflicting information. However, what was clear was that at the time Mr A signed the building lease there was no guarantee that he would get the mooring, and indeed over two months before he did so he was told that he would not be able to have it.

I did not consider that the Trust should allow Mr A to have the mooring, but I did conclude that there had been maladministration in the way that it had dealt both with the issue of the mooring and the handling of the complaint. I therefore upheld the complaint in part, and recommended that the Trust make a further apology to Mr A and make a compensation payment of £150.

Back to top