This is the complete list for the year
Case No 888 – CRT refusal to issue licence without evidence of home mooring
Organisation Q had a boat moored on a canal. As a member of a boat club it was able to benefit from a group mooring arrangement, under which boats owned by members of the club could get preferential mooring rates. The moorings were regarded by the Trust as home moorings, and so the organisation was able to licence the boat under section 17.3(c)(i) of the British Waterways Act 1995 (“the Act”).
Since early 2013 the Trust had had concerns about the boat’s mooring status, having received from the club a list of boats which did not include Organisation Q’s boat. The Trust asked for further information, and received a document confirming that the boat did not have a lawful mooring at the club. The Trust decided that under the circumstances it was not appropriate for it to issue a licence for the boat as the necessary conditions had not been met.
The complaint was primarily about the refusal by the Trust to issue a licence for the boat, on the basis that it did not have a home mooring.
The Trust argued that it was up to Organisation Q to comply with the legal requirements of the licence application process, either by providing evidence to verify the claim of having a mooring, registering as a continuous cruiser and complying with the relevant guidance, or removing the boat from Trust waters.
Organisation Q said that the boat club had not confirmed or denied its continued mooring entitlement, and that it was therefore unable to provide the “proof of mooring” which the Trust required to issue a licence. It argued that this could not be regarded as being its own fault. The organisation wanted clarification from the club of whether the mooring rights had been withdrawn, and that if so it was a group decision at a minuted meeting of the club in line with its constitution.
There seemed to have been a breakdown in relationships between the organisation and the boat club. It was unable to get information about its membership directly, but the organisation would not allow the Trust to get further information from the boat club without the organisation’s permission, which could only be agreed at a meeting at which legal advice would be needed. The cost of arranging the meeting would be £200, which it asked the Trust to pay. The Trust did not agree, and I did not see why it should be expected to fund a meeting of the organisation to discuss the issue.
The key questions for me were whether Organisation Q was still a member of the boat club and whether, as the organisation suggested, the Trust should have to provide evidence that the boat did not have a home mooring, or whether the organisation should have to prove that it was a member. If it was not, the Trust could legitimately refuse to issue a licence unless there was evidence that the boat was continuously cruising. The Trust said that its sightings evidence over a lengthy period showed that the boat had not been seen at the boat club mooring.
My view was that it was primarily for the organisation to show that it was a club member and had a home mooring, and not for the Trust to have to prove the converse, particularly in light of the information it had already received. However, I was prepared to ask the club for further information. The organisation was not content for me to ask the boat club to send any information directly to me, but I could ask it to provide it to the organisation, which would pass it on to me. I contacted the Secretary of the boat club, having been given the name and contact details by the Trust. Although I did ask it to respond to the organisation, it responded to me, confirming that the organisation had not been a member of the club since October 2012 and was not entitled to use the club’s moorings.
I was satisfied that the information from the boat club was from an authoritative source, and that the organisation was not a member of the club and had no moorings rights with it. I concluded that the Trust was entitled to refuse to issue a licence under section 17.3(c)(i) of the Act, and I did not uphold the complaint.
Although the organisation wanted more detailed information from the club, I explained that my role was to resolve the complaint by it about the Trust, and that I had no remit to intervene in the relationship between it and the club. The club had provided me with the information I needed to resolve the complaint before me, and I could not require it to do anything to assist the organisation.
The organisation said that the mooring contract was between it and the boat club, and not the Trust, and that the Trust had no interest in that contract. I did not disagree, but I said that the Trust did have an interest in whether such a contract existed in the first place, because that affected the type of licence which it issued.
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Case No 889 – Disclosure of location of boat and consequences
Mr P has a boat, which he moored at a BWML marina. He didn’t have a residential mooring, but stayed on his boat a few times each week, partly to reduce commuting times and costs.
He was on his boat one evening when a person he did not know banged on it and shouted his name several times. This person remonstrated with Mr P about a certain issue, but although he was angry he was not aggressive or threatening. The person had gained entry to the (gated and locked) marina by coming in behind somebody who had a key. A member of BWML’s staff had disclosed the whereabouts of Mr P’s boat.
In view of the fact that the location of his boat was known, Mr P was sufficiently concerned for his safety and that of his boat that he moved it to a (non-BWML) marina some distance away.
The Trust accepted that the complaint was wholly justified, and that the circumstances giving rise to it should never have happened. It apologised on its own behalf and that of BWML for the incident, and the anxiety it had caused Mr P.
As a resolution, the Trust said that BWML would hold open Mr P’s berth for up to six months for him to return, and that the first three months of his next annual contract would be free of charge. To reflect six months of additional travelling and associated costs the Trust made an offer of financial compensation to ensure that Mr P was not financially disadvantaged by the situation, and calculated that the additional costs would be £400.
Mr P did not accept this, noting that the situation had caused him emotional stress and had had a major effect on his family and friends. He said that he did not plan to return to the BWML marina, which meant that there was a larger financial impact than he had anticipated.
He explained to me that he did not think it reasonable for him to return, and wanted a larger compensation payment to reflect additional travelling and other costs, although he did accept that the Trust would not pay his additional costs indefinitely.
The Trust had accepted that it was reasonable for Mr P to have moved his boat, at least temporarily. The key point I considered was whether it was unreasonable to expect Mr P to return with his boat to the BWML marina, and whether if so the Trust should increase its compensation to reflect the additional travelling costs.
I accepted that Mr P was very concerned about a possible threat to him and/or his boat, but I did not consider that his concerns were fully justified. I accepted that any risks could not entirely be ruled out, but I did not feel that his only reasonable recourse was to stay away permanently. The marina does have a locked gate, and any future risk of a member of staff disclosing Mr P’s whereabouts must be regarded as having been reduced. I noted that any future damage to the boat, or threat of physical violence, must potentially be regarded as criminal acts, for the police to deal with. I also noted again that even in the situation which gave rise to the complaint, the person had not been aggressive or threatening.
While I did not consider that Mr P’s safety would be so severely compromised that it would be unreasonable to expect him to return to the BWML marina, the Trust had offered to hold open the berth for up to six months, and the first three months of his next annual contract would be free.
My view was that the Trust’s offer of resolution, of a payment of £400 plus three months’ free mooring at the BWML marina, was fair and reasonable. However, by moving his boat to another marina he would not be able to benefit from the offer of three months’ free mooring. On this point I did not think that Mr P should lose out financially as a result of his decision to move away, and I decided that the Trust should reimburse him the equivalent of three months of the first year’s annual mooring cost for his boat at the new marina, as long as it did not exceed the BWML marina costs.
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Case No 892 – no 25% discount for boats on the connected Montgomery Canal
Mr O has a home mooring on the connected section of the Montgomery Canal, just below Frankton Locks. The southern section of the canal has no connection to the main network, and moorers who exclusively use that section benefit from the Trust’s 25% disconnected waterways discount off the licence fee. Mr N explained that he and other moorers below Frankton Locks had previously benefited from the discount, but that the Trust had decided to remove it. His view was that as the locks could be used for only two hours per day, moorers should still benefit from the full discount, or at least a reduced discount to recognise the fact that access to the rest of the network was restricted to certain times of the day.
I accepted that access was limited to certain time periods, but my view was that this limitation, together with the need to book ahead (which could be done as late as 10am on the day of travel), was not so onerous as to effectively sever the section of the canal from the rest of the network.
Moorers on disconnected sections of the network benefit from the discount only if their boats remained exclusively on those sections. If they move their boats temporarily to another part of the network (a task which would be regarded as onerous because it would entail craning the boat out of the water), they become liable for the full licence fee. Even if moorers on the connected section of the Montgomery Canal which is below Frankton locks were granted a 25% discount, they would still become liable for the full fee if they were to go through the locks even once in a year.
The decision by the Trust to charge the full fee is a matter of policy, and I could find no evidence of maladministration, injustice or unfairness in the policy or the way that it had been set.
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Case No 881 – grounded boat on the Ribble Link
Mr N was travelling south from the Lancaster Canal via the Ribble Link. The link connects canals on opposite sides of the River Ribble near Preston, which is a tidal river so crossings can be made only during certain periods which are determined by tide heights and times. The route south from Lancaster Canal is via the Savick Brook, which is a tidal waterway. The level of water in the Savick Brook is maintained by a rotating sea gate which is about one kilometre north of the River Ribble. Looking upstream, just before the sea gate is first, a holding pontoon where boats tie up while waiting for the sea gate to be opened, and second, the Blackpool Road Bridge, which is impassable at high tide because of insufficient air draught.
On his way down the Savick Brook, Mr N’s boat was temporarily grounded as he rounded a bend, and the time he lost freeing the boat meant that because of the rising tide he was unable to pass under the Blackpool Road Bridge. Mr N said that he was told by Trust staff to tie up just before the bridge, although this was later denied by the Trust.
Looking downstream, there is a right hand bend immediately before the bridge. During my investigation I visited the site, and it was clear that it would not have been possible to tie up on the inside of the bend. On the outside there are rushes at the water’s edge, and Mr N tied up there to wait for the water level to drop so that he could get under the bridge. He was not aware that there were submerged steel pilings about a metre from the water’s edge, and when the water level dropped his boat was stranded on them. Trust staff altered the River Canal Rescue (RCR). The Trust said that it told Mr N that there would be a £950 charge, but Mr N insisted that he was not told; indeed that if he had been told there would be a charge he would have refused the rescue. With the RCR’s assistance Mr N managed to free his boat the next afternoon.
Although the Trust said that the pilings were indicated by marker poles, Mr N said that he did not see any in the place where he tied up. The Trust did accept that one of the poles was missing, but a photograph which Mr N provided showed no evidence of any poles in the central section of the pilings and it did not seem to me that this was because they had been demolished by Mr N’s boat. On my visit I could see that there were five white-tipped marker poles, which all looked fairly new, and were all weathered a similar amount, and the tips of all were visible at high tide on that day. In the central section, where Mr N was stranded, there were no old poles but there was evidence of several stubs where they had broken off.
This case was not clear-cut. The Trust told me that there had been no similar incidents in the past five years, and after a reasonable Internet search I could find no evidence of any such events. This was the first time Mr N had navigated the Ribble Link, and the Trust said that he was a new licence-holder. It seemed to me that it was possible that the initial reason for Mr N’s delay in going down the Savick Brook, i.e. the temporary grounding, was possibly his lack of experience, although this was not a major factor in my analysis. Once he had lost time, my view was that he had little choice but to tie up before the bridge.
It was impossible to be sure whether he had been told of the RCR call-out cost, but short of leaving his boat to the vagaries of the tidal flow he had little choice but to accept the rescue. Mr N said that at the time he had been told that the sea gate was slipping and letting out water. Mr N argued that this was the cause of the initial grounding, but when I asked the local supervisor he said that while it did drop fractionally it would have made little or no difference to the water level higher upstream.
The Trust’s loss adjusters had offered Mr N 50% of the call-out charge, i.e. £475. For a number of reasons I did not consider that the Trust should accept full responsibility for the charge, but I did conclude that once Mr N reached the Blackpool Road Bridge he had little choice but to tie up there, notwithstanding the Trust’s statement that it had not told him to do so. I increased the compensation to £775 in my final report, or about 82% of the call-out charge (the Trust would have to pay the difference of £300), to reflect the lack of certainty about what happened and what was said but leaving the balance of probabilities in Mr N’s favour.
Mr N was concerned that this could happen again to another boat, with potentially serious consequences. I said that I had seen no systemic evidence of a problem, but I did draw his concerns to the attention of the Trust.
After I issued my final report, and after he had accepted it, Mr N submitted further photographs which in his view showed that the water level in the Savick Brook was too low for unimpeded transit. I explained to him that this was evidence which was already in his possession, and which he could have submitted after my draft report, but had not, and I could not now re-open the investigation and consider the evidence.
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Case No 842 – BWML customer service and contract issues
Mr M had a mooring at a BWML marina. He and his business partner entered into a 12 month mooring contract with BWML, from 1 October 2013 to 30 September 2014. There were several aspects to his complaint: what he regarded as a BWML staff conspiracy to try to evict his business partner from the boat and to seize it illegally; intimidating and bullying behaviour by the site supervisor and the actions of the senior finance officer; the state of the facilities at the marina; health and safety issues; and the flouting by BWML of many of its terms and conditions. Mr M was seeking compensation for his costs and for the way he had been treated, apologies, and urgent correction of the contractual problems.
Mr M said that although he had made legitimate complaints about a number of issues, he had been treated very badly with regard to those complaints, and had also been lied to by senior Trust and BWML staff about the contractual terms and conditions. He said that there had been a complete lack of communications between Trust and BWML staff, and that he had incurred significant expenses during the course of his complaint, including seeking Judicial Review, the higher cost of temporary moorings after his contract was terminated, and the necessity of having to sell his boat “canalside”, at a lower price, without a resident’s mooring.
The origin of the complaint seems to have been a problem about a misallocation of payments of mooring fees (which was in due course corrected), as well as mooring fee arrears, and while such matters are often resolved amicably, this broadened into other issues. The arrears led to a “lien” being placed on his boat, in effect seizing it as security for outstanding payments. Mr M argued that the use of the term “lien” was legal jargon and rendered the contract illegal, affecting not just him but 2,500 other BWML customers.
During the first half of 2014, Mr M had been corresponding with BWML about mooring fee arrears. BWML was partly responsible, because it had incorrectly allocated payments made by Mr M to an account for the previous holder of the mooring. Even once this was corrected there were still arrears, and BWML then placed a lien on the boat. From July 2014 the positions of the parties became more confrontational, after Mr M set out his list of complaints.
In respect of the allegations of bullying and intimidating behaviour by BWML staff, my view was that in a dispute such as this it may be a matter of subjective opinion as to whether a person had been simply making a position clear or had been using inappropriate behaviour. BWML’s view was that the behaviour of its staff was not inappropriate, although Mr M disagreed. I had no records of any discussions, and there was insufficient evidence for me to reach a conclusion on this issue.
BWML seemed to have accepted that the marina facilities were in a poor state, because at one point it commissioned a full clean and survey of the drains. On the safety issues to which Mr M referred, a Council inspector visited and tested ladders but found that they were adequately fixed (although this was not an issue in the original complaint). On both issues, Mr M said that he continued to visit people at the marina and therefore had a continuing interest. However, as he no longer had a mooring at the marina I could not consider the issues further.
The term in BMWL’s terms and conditions, which Mr M complained about, stated:
“BWML reserves the right to exercise a general lien upon any vessel and/or other property belonging to the Owner whilst in or at the Marina until such time as any money due to BWML [is paid] by the Owner.”
As an ombudsman I cannot decide whether or not a contractual term is unfair. Guidance published by the Office of Fair Trading (now part of the Competition and Markets Authority) states that the term “lien” is legal jargon and should be avoided in consumer contracts, noting that alternative wording is possible. In its terms and conditions dated 1 October 2015, BWML added a footnote explaining what a lien is.
It was not clear that the wording would have rendered the contractual term unfair or was in any way illegal, even before the footnote was introduced, but I considered that the footnote was helpful. I said that even if the use of the word “lien” could be regarded as unfair it would not affect the rest of the contract. It did not seem to me that Mr M had been disadvantaged specifically by the use of the word, and it was clear that he was aware, even if not at first, what a lien is.
Mr M was separately pursuing this aspect of his complaint with three local authorities, for where he lives, where the marina is located, and Leicestershire County Council (BWML’s Home Authority). However, there seemed to have been no evidence found of significant consumer detriment and as I understand it no enforcement action was taken.
As to whether BWML had inappropriately placed a lien on Mr M’s boat, his account was in arrears, and I had no reason to suspect that it had. At one point period Mr M refused to pay his outstanding fees until the problems were resolved, but did pay a short time later.
In view of the events BWML decided not to renew Mr M’s mooring agreement. He stayed for a short time longer, on a short term mooring basis until the end of the notice period, before leaving.
This was a long-running complaint, which took a considerable amount of time of the parties’ involved and cost both sides money. The issues were not without some merit; for example, BWML inserted a clarificatory footnote explaining what a lien is; BWML did initially misallocate some payments; and the Trust did apologise regarding some points.
Mr M asked me to consider the costs he had incurred, but my view was that he could probably have avoided the breakdown in relations which led to BWML terminating the mooring agreement, and the situation reaching the point that it did, in which case he would not have incurred the costs he listed. I was not satisfied that the costs were necessarily incurred, nor did I conclude that there was evidence of maladministration or unfair treatment by the Trust, and I did not uphold the complaint.
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Case No 819 – the removal from use of Bollington Wharf on the Macclesfield Canal as a winding location
Mrs L complained about the closure of a winding hole (a place for turning boats) at Bollington Wharf on the Macclesfield Canal. She questioned why it had been closed, what consultations had taken place, where the location of the replacement would be, and when it would become available.
The Trust said that although the site had been used as a winding hole it was not recorded in its operational records as being one. It explained that the site had been closed to allow a company to install a pontoon to operate a day boat business, and that local operators had been consulted informally. It added that insofar as the Transport Act 1968 may apply, the removal of the opportunity to turn did not make the canal unsuitable for navigation, and it was not required to keep the space usable as a winding hole.
I accepted that the site had customarily been used as a winding hole, but it was not recorded as such in the Trust’s operational records as one. Its status as a winding hole seemed to be a matter of some debate. I was told that Nicholson, which is generally regarded as an authoritative guide, does refer to the wharf as being a winding hole, and various Internet websites showed it both as being a winding hole, and not.
The Trust did say that had it officially recognised the wharf as a winding hole it would not have considered allowing a pontoon to be installed there, although in my view there was no doubt that the Trust was aware that it was used as a winding hole, and it had anticipated a number of complaints.
Mrs L’s view was that the Trust has disregarded its own consultation policy, as published on its website. She considered that alterations to winding holes were matters of national concern and that full public consultations should be held. I agreed that it was a matter of concern but was not persuaded that it was a national issue.
There are winding holes within a couple of miles north and south of the wharf, but it is not clear whether they can accept the longest narrowboats, and the removal of use of the wharf to wind boats would certainly have caused difficulties for some boaters.
On the basis of the information provided to me, I did not think that there was evidence of maladministration, or consequent injustice or unfairness which would have justified me recommending that the Trust require the wharf to be reinstated to its former state.
Towards the end of my investigation, Mrs L said that concerns had escalated, and that the Trust’s Chief Executive, Richard Parry, had taken a personal interest in the matter. Her view was that there was little point in my investigation continuing until such discussions had been completed. I closed the investigation, pending further developments, on the understanding that I would re-open it if appropriate. Discussions are still continuing, and I shall update this summary with any significant changes.
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Case No 875 – damage to a car from a barrier at a swing bridge over a canal
In June 2015 Ms K was driving in her car towards Theale in Berkshire, and was about to cross the swing bridge over the Kennet & Avon Canal. The bridge needs to be opened to allow boats to pass, and this is done by a key-operated operating panel which also initiates the sequence of traffic lights and barriers including the sounding of an alarm. There are in-road sensors which manage the traffic light sequence based on the position of vehicles approaching the bridge. The barrier will be lowered only after a signal is sent from the traffic light control system that all lights are at red. The Trust issues boaters with keys to use the operating panel. The barriers continue to descend only as long as the boater keeps the button pressed.
As Ms K was approaching the bridge, a boater had just stopped to open it. Ms K said that there was no audible warning, and that she was unaware that the bridge was about to be opened until the barrier came down on her car, causing further damage as she reversed. She said that even though the person operating the bridge saw her, she kept the button pressed. Her view was that the Trust was at fault because the alarm did not sound, and she also questioned whether there was a sufficient time delay to allow vehicles to cross the bridge. Staff from the Trust visited the site, observed the bridge-opening procedure and concluded that it was working satisfactorily. The Trust said that the traffic light control system was not managed by it but by the local Highways Authority.
Although the boater operating the bridge should have been able to stop the sequence, she didn’t, but she can probably not be identified. Whether the audible warning was working on the day of the incident can almost certainly never be known, but it was working at the time of the Trust visit. I was satisfied with the Trust’s explanation that the traffic light sequencing was the responsibility of the Highways Authority, and did not see how the incident could have arisen as a result of an act or omission by the Trust. Although Ms K suggested that the Trust should have a tighter procedure for distributing keys, and should provide safety training, I have seen no evidence of any systemic problem and this would not have been a proportionate measure. I made no recommendations.
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Case No 862 – increases in widebeam charges at a BWML marina
This complaint was about mooring charges at a marina in London owned and operated by British Waterways Marinas Limited (“BWML”). In 2012-13 I investigated a complaint about the charges for this marina (Case No 655 - BWML mooring charges). Mr J complained that BWML had, one year into a 10 year contract to cap any year-on-year increase in mooring fees at 3%, reneged on its agreement by issuing an invoice which increased the mooring fee by over 12% on the previous year. He also complains about BWML's actions when the issue was first raised, such as terminating the agreement and issuing threats while the invoiced amount was in dispute.
In 2013 BWML introduced a new residential fee structure at the marina. At the same time it introduced a widebeam surcharge, which was provided for within the terms and conditions but which BWML had not hitherto applied. The provision in the terms and conditions permitted BMWL to levy a widebeam surcharge of between 30% and 100% of the Length Overall (LOA) charge for boats wider than 3m, and BWML decided to set the surcharge at 30%. Rather than introduce the full 30% surcharge immediately it would do so in three 10% increments.
Moorers could opt into a new residential mooring agreement, under which for the first three years BWML said that increases would be capped at 3%. Mr J said that the way the contract was worded made it clear that the whole charge, taking into account the LOA charge and widebeam surcharge, would be subject to the 3% cap. He also said that it was his understanding that this had been BWML’s intention.
The Trust accepted that there had been an administrative error in the way that BWML had drafted the residential mooring licence, but considered that the complaint was otherwise broadly groundless. Its view was that the available information about mooring fees made it clear that the price cap applied to the LOA charge and not to the widebeam surcharge. It has since changed the wording of the licence to make it clear that the 3% cap applies to the LOA charge and not to the composite charge which includes the widebeam surcharge. The effect is that although the LOA charge cannot increase by more than 3% in each of the first three years, the total charge will increase by a greater amount because the widebeam surcharge will be a percentage of the LOA charge, i.e. 10% in the first year, 20% in the second year and 30% in the third year.
If I were to take a literal interpretation of the original licence wording it would mean that even as the widebeam surcharge was phased in, the total mooring fee increase could not exceed 3%. When investigating the complaint in Case No 655 my understanding had been that there would be two elements to the mooring fee, and that only the LOA charge would be subject to the price cap (although given that the widebeam surcharge is a specified percentage of the LOA charge it would maintain a constant relationship with the LOA charge). In considering complaints I must take into account the interests of both parties, as well as the principles of fairness and natural justice. In light of my understanding of the new mooring fee arrangements in 2013, I did not consider that BWML should be required to adhere to the literal interpretation of its initial licence wording.
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Case No 860 – frost damage to a boat while in the care of British Waterways
In March 2009 the Trust’s predecessor, British Waterways (BW), had seized Mr I’s boat under Section 8 of the British Waterways Act 1983 and taken it to a boatyard some distance away. BW continued to be responsible for the boat until March 2010. There had been a prolonged very cold spell between December 2009 and January 2010, which the Met Office had described as being the most widespread and prolonged spell of this type across the UK since December 1981/January 1982. Shortly before the cold weather started Mr I had emailed both BW and the boatyard asking them to ensure that his boat was fully winterised. Mr I did not finally visit his boat, with the aim of getting it back, until March 2015, at which point he discovered that there had been several burst pipes and other leakages. It seemed that the engine coolant had been drained, but the freshwater systems had not. Repairing the damage necessitated the removal of much of the internal fittings, and took Mr I and his family many weeks, as well as the direct costs of new parts and fittings.
The Trust said that Mr I became responsible for the boat in March 2010 and that it could not be known whether the frost damage had occurred in the first winter or in any of the subsequent five winters. Having read the Met Office summary for December 2009 to January 2010, I concluded that even if subsequent winters were likely to have been cold enough to cause pipes to burst, it was highly probable that the damage had occurred during the winter of 2009/10 while the boat was in the care of BW.
I did not consider exactly where the fault lay, but it was clear to me that the boat had not been fully winterised. I was satisfied that the responsibility for the care of the boat was ultimately that of BW, and decided that the Trust should make a payment to Mr I of £11,500 to cover the costs of making good the damage.
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Case No 856 – the right to assign a houseboat certificate and mooring on sale of a boat
Mr H moors a boat on the Regent’s Canal. Although he used to have a houseboat certificate for the boat, at the time of the issues giving rise to the complaint he did not, and he wanted the Trust to issue him with one which could be assigned to a purchaser of the boat. The Trust, in responding to Mr H’s complaint, explained that he could not have a houseboat certificate because he did not have planning consent for a residential mooring. However, the Trust later sent him a letter saying that he should have a houseboat certificate as his boat fell within the statutory definition of a houseboat under the British Waterways Act 1971 (“the 1971 Act”) as it was not used bona fide for navigation. However, the Trust said that this would not give him the right to assign the certificate on sale of the boat.
Having established that the Trust was prepared to issue Mr H with a houseboat certificate, I decided that whether it would be assignable should be determined by the Trust’s own rules and policies. There are certain conditions under which a houseboat certificate would not be assignable, but there was no suggestion that any applied to Mr H, nor did the Trust rely on any of them as a justification for not allowing a certificate to be assignable, so my view was that the Trust should issue Mr H with a houseboat certificate and that it should be assignable.
Prior to some point in 2012, houseboat certificates issued before 31 July 2010, and assigned to a new owner, could be automatically renewed on expiry, but in 2012 the Trust changed its policy such that while the unexpired portion could be assigned, they could not be automatically renewed on expiry. Although Mr H had wanted any houseboat certificate to be assignable and to be renewable indefinitely, the 1971 Act provides only for a houseboat certificate to be transferred for the unexpired portion of the current certificate. My view was that there was no basis on which I could decide that an assigned certificate should be renewable indefinitely.
To alleviate the possibility that Mr H’s existing mooring permit would not have the same end date as the new houseboat certificate, the Trust proposed that it issue a new mooring permit at the same time as the houseboat certificate, and this became my recommendation. The unexpired portions of both could then be assigned to a new owner.
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Case No 839 – advance booking of the Liverpool Link and a Liverpool mooring
In May 2015 Cunard held a 3 Queens event in Liverpool, where three of its liners would be present at the same time. Mr G had previously been a Cunard customer, and received notification of the event from Cunard in May 2014. He and his wife very much wanted to attend what they felt would be a popular and prestigious event, and realising that they would be away in December 2014 and January 2015 they submitted an application in person at the Trust’s Wigan office in March 2014, for a crossing on the Liverpool Link and a mooring in Salthouse Dock. At the time bookings for 2015 were not available, so they used a 2014 booking form and amended the year by hand at the top of the form. The Trust did receive the application, and provided me with a copy.
Mr G said that he heard nothing more until he and his wife returned home from holiday on 9 January 2015 to find that an application pack about booking the Liverpool Link had been posted to him. The Trust had also emailed him on 6 January (using the correct email address). Mr G submitted a new application form but was too late to get a confirmed booking and was put onto a waiting list.
The Trust explained that it did not take advance bookings, and opened bookings for each year in January. It said it would accept bookings only on current paperwork so that boaters were aware of the arrangements in the year they used the link.
There were many aspects of the case that I could not reconcile. Although Mr G said that he had delivered a booking form by hand and had no doubt that the Trust had accepted it as such, he did not immediately contact the Trust when he found the new application form on 9 January 2015 to query whether they had recorded his original booking, but sent a new application. The Trust emailed him on 19 January to say that the bookings were full, at which point Mr G’s wife telephoned the Trust. Mr G did not say whether he had received the Trust’s email of 6 January, but he had not replied to it. If he had seen the email soon enough, even though he was away he could have booked a crossing online.
The Trust explained that its Wigan office had a very stable staff, who would have known that they could not accept bookings as early as March 2014. However, it did accept that there was some room for doubt and offered Mr G a crossing in June 2015 for the departure of the Queen Mary 2, as well as £50 spending money. I did not consider that it could be established exactly with any certainty what had happened, and my view was that the Trust’s offer was fair and reasonable. As Mr G said that he would be cruising at the time I decided instead to recommend that the Trust make a goodwill award of £75, but Mr G did not accept it.
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Case No 838 – the Trust’s actions in the section 8 removal and subsequent sale of a boat
Note: Although the earlier events in this complaint took place before the functions of British Waterways were transferred to the Trust, I have for convenience referred in all cases to the Trust.
Mr F moored his boat at a Trust canal mooring from around 2001. In 2008, after a period in hospital, he went into arrears on his mooring account. He did not pay off the arrears, and the Trust eventually terminated his mooring agreement and also refused to issue him with a new licence, because he did not have a home mooring, which meant that his boat was unlicensed. As it was unlicensed, the Trust issued a removal notice under section 8(2) of the British Waterways Act 1983. It eventually seized and sold the boat, and paid Mr F the balance after deducting its costs.
This was a complex case, with the positions of the parties being largely irreconcilable. Mr F said that the Trust had failed to reply to many of his letters, or had no record of having received them. He alleged that the Trust had acted illegally, for example breaching English Common Law, or Articles of the European Convention on Human Rights.
Mr F accepted that he owed money, but maintained that the Trust had agreed to allow him to pay future charges as they accrued on the understanding that he would pay the main debt when he sold his boat. I could find no evidence that the Trust had agreed to this, and indeed at one point it wrote to him to say that it would not allow the debt to remain unpaid.
The earliest evidence that Mr F had told the Trust that he intended to sell his boat and would pay off the debt with the proceeds was in a letter in January 2010. In a further letter in May 2010 he stated that on his return from absence in June 2010 he would put up the boat for sale. In August 2011 he again stated that the arrears would be paid off when the boat was sold. The Trust issued a section 8 notice on 8 November 2011, and a seven day notice on 8 February 2012, and eventually removed the boat in September 2012 while Mr F was away. It subsequently obtained an independent valuation of the boat, sold it, and sent Mr F the balance after deducting its costs, which included licence and mooring fee arrears as well as boat removal and storage costs. Mr F argued that the sale price was far short of the boat’s true value. During this period the Trust moved the boat at the mooring to a position where it was underneath pine tree branches, as a result of which there were pine resin stains on the boat as well as pigeon droppings. I was not satisfied that the Trust provided a clear explanation for the moving of the boat.
I was satisfied that Mr F could have been in no reasonable doubt about the Trust’s intentions, both in respect of the arrears and the threat of removal of the boat were the arrears not paid off. It seemed to me that Mr F had allowed the situation to develop, and that despite his statement that he intended to sell the boat he had not taken steps to do so. He maintained that the Trust had refused a face to face meeting, but I did not consider that even if there had been such a meeting it would have been pivotal in influencing the development of the situation. He also maintained that the Trust had failed to respond to correspondence, and although it did not respond to a number of letters it was far from clear in most cases that a reply was expected. The Trust did apologise for a failure to respond in a timely manner where appropriate, and in one case it did not respond at all to a legitimate question about the charges which had been deducted from the proceeds of the boat sale, even though it dealt with other points made in the same letter.
I concluded that Mr F had had adequate opportunity either to pay off the arrears, if necessary by selling his boat, but that he had not done so. I had no reason to question the independent valuation of the boat obtained by the Trust (the eventual sale price was £1,000 lower than the valuation). I could find no evidence of a clear explanation for the Trust’s moving of the boat at the mooring, and was satisfied that it had not replied to a direct question about the Trust’s deductions from the boat sale price. In view of these two issues I recommended that the Trust make a goodwill award of £100, but Mr F did not accept it.
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Case No 836 – whether the Trust should apply a 25% Disconnected Waterway discount for moorers on the Lancaster Canal
Mr E moors his boat on the Lancaster Canal, which is connected to the main canal network only by the Ribble Link. He argued that because the Link is open only on some 100 days each year, and even then only at certain times and not navigable by some boats, moorers on the Lancaster Canal should benefit from the 25% discount which applies to boat-owners on certain disconnected waterways, i.e. those which do not have a connection to the main network.
The Trust’s boat licence terms and conditions state:
“Disconnected Waterways - 25% discount if the boat has a long term mooring, and will remain exclusively on one of the following waterways: Bridgwater &Taunton, Monmouth & Brecon, stretches of the Montgomery Canal not connected to the main network, River Tees.”
Mr E argued that the Trust’s failure to make it clear on the licence application form, that somebody with a home mooring on the Lancaster Canal is not eligible for the 25% discount, breached the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Although the Waterways Ombudsman is not an enforcement body for the CPRs, I said that it did not seem to me that the Trust had sought to mislead or deceive. I was not provided with evidence that anybody buying a licence for a boat with a home mooring on the Lancaster Canal was unaware of the existence of the Link, or did not know that it was not always available and needed to be booked, or was under the impression that they were buying something different from what they actually got.
Mr E’s view was that unless a passage was booked on the Link, the boat was essentially confined to a disconnected canal. Apart from those boats which were unable to navigate the Link, I could not reasonably regard the booking and the passage as being particularly onerous and, while it was not available on demand, it was open on some 100 days per year, which spanned most if not all of the cruising season. I did not see a significant difference between Lancaster Canal moorers and those elsewhere who chose not to cruise large distances. In both cases the option was there for most boats, most of the time, to use the rest of the network. I concluded that there had been no maladministration and that the Trust’s decision to charge the full licence fee was a matter of policy, and I did not uphold the complaint.
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Case No 823 – the marking of shallows on the River Severn
Mr D has a boat which he moors at a marina on the River Severn. In July 2013 his boat hit an underwater obstruction near Worcester, which damaged it. He said that other people’s boats had hit the same obstruction and that in some cases the cost of repairing the damage had been substantial. Mr D felt that the Trust had been slow in dealing with and marking the obstruction.
It seems to have taken some time for the Trust to have accepted the existence of the hazard. Part of the problem is that apart from a single instance in March 2012, its incidents log had no record of any incidents at that location between 2004 and the grounding of Mr D’s boat in July 2013. Minimum Open Channel (MOC) box charts provided by the Trust, depicting the river depth and the boundaries of the navigable channel, showed that at some points on the bend in the river where the hazard was located, the MOC box was entirely outside the centre line of the river, which would generally be regarded as the safest course navigate, and that on the outside of the bend there are shallows. While this may not pose a major problem for flat-bottomed boats such as barges or narrowboats, Mr D’s boat had a V‑shaped keel and therefore a deeper maximum draught. Even after the Trust seemed to accept the existence of the hazard, Mr D felt that it was too slow in taking action to mark the hazard.
The Trust accepted that information about the hazard might not have been uploaded to its incidents database, and that there was scope for improvement in its record-keeping system. It said that this would be raised at a senior level within the Trust.
It also explained to me that once it became clear that there was a hazard, the marking of it necessitated the obtaining of planning permission from two local authorities and consent from the Environment Agency. Although Mr D at one point noted that there had been progress, his view was that a whole year had elapsed with little or no progress. I concluded that the evidence provided by Mr D, about incidents having been reported to the Trust, was persuasive. I also concluded that the Trust had been slow to act.
I recommended that:
- that the Trust provide Mr D with an explanation of what actions it had taken, or was proposing to take, to address any deficiencies in the incident logging and reporting system, both locally and across the Trust;
- that the Trust provide Mr D with an update on progress about marking the hazard, and navigation guide, with its best estimate for completion; and
- that the Trust confirm that it accepted the existence of the hazard and the lack of any navigation guide.
I decided that the Trust should also provide an update to other licence holders in the area.
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Case No 816 – the Trust’s carrying out of the K&A Towpath Mooring Plan consultation in 2013
Organisation C, representing boaters on the Kennet & Avon Canal, was not satisfied with the way in which the Trust had carried out the consultation on the 12 month Towpath Mooring Plan (“the Plan”) for the K&A from Bath to Devizes in 2013. It listed a number of remedial actions it wanted the Trust to carry out:
A. address and provide a substantive, meaningful and genuine response to all of the points that Organisation C had raised in its complaint;
B/C. explain why so many K&A boaters had not received either a letter or an email about the consultation, and explain how it assessed who to contact, and how;
D/E/F. discuss the results of the consultation with K&A boaters and mutually agree a way forward, agree a time-scale for implementation, and produce a formal Towpath Mooring Plan incorporating the above agreements and the Equality Impact Assessment.
It asked me to require the Trust to take these actions. They were about answering questions which the organisation said had gone unanswered (A), providing explanations about the conduct of the consultation (B,C), and undertaking actions relating to the outcome of the consultation (D,E,F). It added two more in bringing the complaint to me, but as the complaint process had not included a proper discussion of these matters I did not consider them further.
Organisation C complained that the Trust had failed to carry out the consultation properly, that it had failed to meet relevant standards, that the questions did not accurately reflect the measures proposed, that questions were included about options already rejected, that some questions each comprised several questions, that some measures were proposed only at the time of the questionnaire, that some of the questions were simply statements of intent rather than genuinely seeking opinion, that no reasons were given for some of the proposals, and that the Trust had not taken reasonable steps to ensure that the consultation was brought to the attention of the relevant audience. The organisation had said that the Trust stated on its website that it followed the Government’s Code of Practice on Consultation (the Code), but it felt that the consultation failed to meet those standards.
It was also not satisfied with the Trust’s assertion that the Plan set lower requirements than the national guidance, and argued that in fact it imposed considerable additional requirements on boaters without home moorings (BWHM). It argued that specific requirements about movements had never been a requirement as the new guidance was not stated as law in section 17 of the British Waterways Act 1995.
The Trust pointed out that what it actually said was that it would always try to follow the Code for formal national consultations, but that even then it was under no obligation to do so. It added that although this was a local consultation it would always consult in good faith. On the matter of whether the Plan was to be voluntary, as Organisation C said had been proposed by the Waterways Partnership (WP), the Trust said that the WP had proposed that it would be. However, the Trust said that in its response to the consultation findings it was made clear that the plan was not voluntary, and that all boats in the local plan area would be required to follow the requirements, which it stressed were less stringent than its national guidance.
I did not consider that the Trust could be bound by the WP proposals, or prevented from deciding to make the pilot compulsory rather than voluntary.
On other issues I did not conclude that there was evidence of maladministration or unfair treatment. I did say that it may have been helpful had the Trust provided some further explanation about how its questions related to the WP’s proposals, but I did not conclude that it had entered into the consultation without an open mind. On whether consultation questions were ambiguous, or contained too many elements to enable consultees to respond meaningfully, I was satisfied that they could reasonably be regarded as coherent sets of single statements, some of which could not on their own be regarded as stand-alone questions. On whether the Plan requirements were less stringent than the national guidelines I said it was not my role to interpret the law, noting that the law is not specific on what boat movements would be acceptable.
I did agree with Organisation C’s argument that the Trust’s Sally Ash’s comments on the Trust’s actions in notifying boaters about the consultation, and what she regarded as the evident efficiency of the towpath telegraph, were inappropriate and dismissive. She had said that she could not accept that boats not listed as having received an invitation were unaware of it, noting that the consultation was open to all and publicised on the Trust’s website. I said that Ms Ash could not assume that the towpath telegraph was efficient, or conclude that it was acceptable to regard the towpath telegraph, or depend on it, as a means of disseminating information.
Organisation C had not argued that there were any boaters who did not hear about the consultation by some other means, in time to contribute, but I noted that for future consultations the Trust may wish to consider whether to work with representatives of stakeholder groups to ensure that people were not left out.
I said that on the issue of the national review, the complainant had provided no reason why the Trust, in a local consultation, should seek respondents’ views on whether it should carry out a national review.
Organisation C maintained that amendments relating to BWHM were being drafted by the Trust as late as April 2014, but it did not state what any changes were nor did it substantiate its claim that amendments were being drafted as late as 17 April 2014. The Trust said that the final Plan was published on 13 March 2014, and that there were no further changes after that date.
On the requested remedies, because it was necessary to get the Trust’s detailed comments to understand the points being made, I dealt with the first three (A-C) in my report. On remedies D-F, I said that even if I had found evidence of maladministration I could not see that anything would be gained by recommending that the Trust carry out such actions, because by the time the complaint had been brought to me over half of the pilot period had already elapsed.
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Case No 798 – problems related to the granting of a trade mooring (see also Case No 751 below)
Mr B’s complaint was substantively the same as that of Mr A in case No 751. He had also been a moorer at the site but by the time I opened my investigation he had left. The Trust issued virtually identical second level responses (the second and final stage of its internal complaints process) to Mr A and Mr B, and my reports were also similar.
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Case No 751 – problems related to the granting of a trade mooring (see also Case No 798 above)
Mr A had a boat at a long-term leisure mooring in Yorkshire. In 2012 the owners of a trade boat successfully applied for planning permission to sell drinks and snacks from their boat at the mooring. When Mr A first contacted me in 2013 he said that the owners had been serving alcoholic drinks from the boat, had erected a fence in an unsafe place, and were fitting out a new boat at the mooring. The situation became very difficult, opinions were polarised, arguments broke out, there were allegations of threats of violence, and the police were called out on several occasions.
The Local Planning Authority (LPA) considered that the planning permission had been stretched or breached, and felt that the Trust should take action as the landlord. Eventually the LPA revoked the planning permission, but although the owners of the boat appealed, the Trust decided to terminate the mooring agreement. The Trust and the owners were unable to find an acceptable resolution by which the latter could continue trading, and eventually the owners left the site by mutual agreement. The situation was unusual, and because of the complexities and the entrenched positions the Trust found it difficult to manage. It was also clear that despite some local opposition to the trade boat there were others who supported it, and it attracted a growing and supportive clientele.
The main problems, which were identified by the Trust, were that the planning application was imprecisely drafted and had not been sufficiently scrutinised, the mooring agreement was not adequate for the situation, and the Trust itself did not take action as promptly as it could have. As a result it modified its trade mooring application process, introduced a standard trader mooring agreement which would be subject to formal approval and sign-off procedures, and would as landlord require applicants to obtain its prior approval to any planning application.
In my investigation I accepted that the Trust had been faced with a very difficult and unusual situation. I was satisfied that it had recognised the nature of the problems and had taken adequate steps to prevent such a situation happening again, and to this extent I upheld the complaint, but I made no recommendations.
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