2017-18 case summaries

This page includes summaries of completed investigations and will be updated as cases are completed

Case No 909 – complaint about the way the Canal & River Trust (the Trust) has dealt with a situation where HS2 would cross one of its canals

Ms E operates a business boat on a canal in an area near London which will be affected by the High Speed 2 rail link (HS2). Her view was that HS2 should either have been routed a different way, or via a tunnel, but accepted that it was now probably too late to achieve such an outcome.

Among her points that the Trust had not recognised the importance of the canal corridor through the area, and had viewed other areas affected by HS2 as being more important. She said that the Trust should survey the canal water and corridor and establish a baseline/standard of the existing ecology enabling HS2 contractors to be held to account, that it should challenge the proposals to relocate electricity pylons on the basis that there was a more ecological solution, and that it had not kept her and other businesses in the area adequately informed of construction works and subsequent impacts of HS2 on the canal and canal corridor.

The Trust explained that earlier on in the planning process it had decided that rather than oppose the development it had entered into a Side Agreement with HS2, which contains many provisions relating to the planning and construction, the maintenance and restoration of the local environment both during and after construction, biodiversity, land contamination and pollution control. It also includes the requirement for HS2 (and not the Trust) to ensure that surveys are carried out before and after the construction work, together with the requirement for HS2 to remedy, to the Trust’s satisfaction, the impacts of any damage. The Trust regarded the Side Agreement as an important means of ensuring that it would have as much control over the operation as possible, on its land and within 15 metres of the boundaries of the land.

I cannot interfere with or influence the Trust’s policies. I can consider only whether there has been maladministration, such as where the Trust has done something it should not have done, or failed to do something it should have done.

This complaint differed from the majority of complaints I receive, in that the Trust was almost certainly not in a position to make unilateral decisions about the situation, or perhaps even to significantly influence the plans for HS2.

I was satisfied that the Side Agreement did, within limits, give the Trust significant influence over HS2’s activities. Although I had no doubt that the larger area was rich in biodiversity (for example it included SSSIs), the Trust’s canal and assets were only a relatively small fraction of the area which would be affected by HS2, and my view was that the other landowners, such as the Local Authority, also had a role to play.

The Trust had expressed surprise that Ms E did not accept that it was doing all that it reasonably could. I accepted that Ms E was passionate about the area, and while I could not give her an assurance that her worst fears would not come to pass, I saw no evidence to suggest that those fears were well-founded.

Part of the difficulty was that the Trust had been unable to persuade Ms E about its neutrality, its concern for the protection of the area and its biodiversity, and its statement that it was not responsible for conducting a survey. Above all, it seemed to have been unable to persuade her that the Side Agreement would be helpful in ensuring, for example, that the impact of construction would be minimised, that biodiversity would be protected, that there would be adequate pollution control, or that reinstatement would take place to an appropriate level.

Ms E said that business such as hers, as well as others depending on the canal and the wider conservation area, would be adversely affected by HS2. I accepted that this might be the case, but that at the time of my investigation any effect could only be speculative and unquantified. I added that even if I had concluded that the Trust might have successfully been able to oppose the development, but taken a decision not to do so, there was nothing to suggest that I could possibly have regarded it as an example of maladministration, rather than a policy decision. I could require the Trust to take some remedial action only if I were to have concluded that there had been maladministration, but I did not reach that conclusion. As the Trust was for practical purposes powerless to stop the development, it would be up to Ms E and others to seek compensation, if appropriate, from HS2.

The Trust did make it clear that it was willing to work with local people, who would be valuable resources in providing information during construction. Any feedback from local people to the Trust would be invaluable in ensuring that this happened, although this did mean that the Trust would need to share with them what HS2 was expected to do to minimise the impact of the construction phase and to ensure that once completed any loss was made good.

I said that no major work had yet taken place, and that it was not possible to anticipate events that had not yet occurred. I could not conclude that the impact would be greater than was reasonably necessary, or that if so it would be as a result of any maladministration by the Trust, and I did not uphold the complaint. I noted that to the extent that other landowners were involved, Ms E could take up the matter with them.

I added that it would be several years before the work was finished. While I could not rule out the possibility that there may be grounds for complaint in the future, it did seem to me that the best way to ensure that the work had the least possible impact on the area, as well as the population and wildlife, was for local people to work with the Trust.

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Case No 966 – complaint about the issue of a restricted six month licence for a boat without a home mooring

Mr and Mrs D are liveaboard boaters, based in Gloucester on the Gloucester and Sharpness Canal (G&S). As they do not have a home mooring they are subject to the Trust’s continuous cruising requirements. The Trust was not satisfied with the boat’s cruising pattern and decided only to allow them, on renewal of the licence, to have a restricted six month licence. In making their complaint, Mr and Mrs D said that the Trust restriction did not take into account the fact that the G&S is only 16 miles long, and that to cruise further meant taking their boat onto the River Severn, which they regarded as potentially hazardous. They also said that the Trust had not provided a full explanation for the restriction, that there was no clear guidance about what a “neighbourhood” or “locality” was, that the tone of the Trust’s correspondence was threatening, and that they were being discriminated against due to their age (i.e. that they are still working and that it is difficult to get the time to cruise further afield).

The Trust’s evidence showed that the majority of the cruising had been within a 15 km range, although there were two periods when the boat was sighted outside this range, which were at the end of April 2016 and in the middle of June 2016. The Trust said that the 15km cruising range did not meet the requirement at the time which was that the cruising range should be not less than 15-20km over the period of the licence. While it accepted that there two periods when this range was exceeded, it did not meet the requirement that the stated range should be met or exceeded “over the period of the licence”.

As to whether allowances should be made for boaters on the G&S because of the geographic limitations, the Trust said that while it did accept that there were some difficulties in cruising away from the canal, it did not accept that the difficulties were of such a nature that it was prepared to reduce the maximum cruising range. That is a policy matter for the Trust which I cannot influence.

The Trust’s key point was that no matter how frequently a boat moved, it could not remain on the G&S for the licence period and be compliant. It said that compliance could be achieved only if the boat left the G&S. It added that in this case the time spent away from the G&S was not sufficient to achieve compliance.

I concluded that the Trust did recognise the difficulties of navigating beyond the extremes of the canal, in particular at the southern end, where exit into the Severn estuary would require a pilot. However, while it also accepted that a northbound exit might be difficult in certain conditions, it did not accept that navigation up the River Severn was not possible.

I was satisfied that the Trust had, either before or during the complaint process, provided an explanation of why the complainants had been issued with a restricted licence, and also what a neighbourhood or locality was.

On the issue of whether the Trust had discriminated against the complainants because of their age, and the fact that they work, I did not conclude that it had. Under the Equality Act 2010 age is a protected characteristic. However, I could not see that the Trust could be regarded as having discriminated against the complainants on the basis of their age. The complainants said that the discrimination was based on the fact that they still worked, but being employed is not a protected characteristic. I said that given that the Equality Act prohibited discrimination on the basis of age (apart from any exceptions which must be justified) there could be no link between age and being employed, adding that a person above the state pension age, for example, but still in employment, could equally make the same argument.

Having considered all aspects of the complaint, I did not uphold it. The complainants said that they had a widebeam boat and that it was difficult to find permanent moorings, but I could not regard that as a reason for the Trust to disapply its continuous cruising guidance.

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Case No 932 – complaint about unauthorised residential use of moorings at a marina

Mrs C lives in a residential property overlooking a marina, which is owned by the Trust but is leased to a third party. The lease includes various covenants, but the key one in this case is the one which states that no boat is to be used or intended to be used as a permanent residence. Mrs C, and several of her neighbours in other residential properties, complained to the Trust about unauthorised residential use at the marina, and the failure of the Trust to impose the marina’s mooring regulations. Her view was that the Trust had been negligent in its responsibilities towards the residents. She said she understood that the lease contained no clauses which safeguarded the interests or quality of life of the residents. Although she had not seen a copy of the lease, her view was that the Trust was either unwilling or unable to enforce it because it was inadequately worded and not appropriate to the situation which had developed.

The situation was complicated by the fact that relationships between the residents and the marina operator had broken down, and it was clear that nothing could be achieved by trying to mediate between the residents and the marina operator.

I visited the marina and the complainant, and also corresponded with the Local Planning Authority (LPA) and the Trust. The marina operator told me that very few boats had been there for more than a year, and that no boat was used for residential purposes, and the Trust said it did not know whether there was residential use and that it was up to the LPA to decide whether there was.

The Trust argued that there was no clear definition of residential use, such as for how long somebody is living on a boat in a marina. I would accept that even if a person lived on his/her boat, it did not mean they would be regarded as using the marina for residential purpose if, for example, they were spending only a few days there, but there are other tests of residency.

The Trust said it was not a straightforward matter to determine whether boats were used as a permanent residence, and that ultimately it was a matter for the LPA to investigate whether a breach of planning control had taken place.

While there may be questions at the margins about whether a boat is being used for residential purposes, my view was that such was the weight of evidence that people were indeed living on their boats (for example they had been there for over a year and were on the electoral roll), that I found it entirely persuasive. In other words, some people were clearly using their boats for long-term residential purposes. I also noted that the marina operator, while stating that there was no residential use, was at the same time in the process of submitting an application to the LPA for residential use of the marina.

The Trust said that if there was an alleged breach of the lease it would be a decision for it to make as to whether and how to enforce a particular term. Whether the covenant could be enforced by a court might be a subject for legal opinion. As a matter of policy the Trust did not propose to take any action in this case, explaining that it was a matter for the LPA to determine whether there was any residential use. Because it was a policy matter as to whether to enforce the covenant, I could not require it to do so. It seemed to me that if the LPA did grant planning permission for residential use, then whether the lease prohibited it was no longer a relevant issue. The wording would either have to be changed, or could effectively be disregarded.

In summary, in respect of Mrs C’s point that there was residential use of the marina, I upheld the complaint. However, I could not compel the Trust to investigate any possible breaches of the lease or to take any remedial action. In respect of Mrs C’s point that the Trust should enforce the marina’s mooring regulations, I could not require it to do so, as the enforcement of the regulations was a matter for the marina operator.

On a more general matter of the Trust’s handling of the situation, and the complaints from Mrs C and her fellow residents, it seemed to me that the Trust could have been far more helpful, much earlier.

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Case No 953 – complaint about problems with the licensing of a boat

About five years ago Mr B, a liveaboard boater, removed his boat from the Trust’s waterways after it had issued a notice under section 8 of the British Waterways Act 1983 to do so because he had not renewed his licence. At that point the Trust had not obtained a Court Order, but because the process was so far advanced it decided to do so. The Order included a requirement for Mr B to pay the Trust’s costs.

Some time later, Mr B wished to bring his boat back onto Trust waters. He had first attempted to purchase a licence in 2014, but had been told in an email from an Enforcement Officer that the Trust, having gone through a lengthy process to get a Court Order for the removal of the boat, considered that it was not appropriate to issue him with another licence. The Trust had a week earlier told Mr B that the Court Order remained valid and enforceable, and that he must under no circumstances allow his boat to come onto the Trust’s waters without its prior written consent.

He tried again in early 2016 and was issued with a licence, but the Trust cancelled it a short time later, explaining that it had been incorrectly issued in the first place because of an administrative error. It was not until later in the year that he was able to purchase a full licence and return to Trust waters. Mr B argued that under section 17(4) of the British Waterways Act 1995 there are only three ways in which the Trust can revoke a licence, which are either that the boat does not comply with the applicable standards, that an insurance policy is not in force, or that it does not comply with Section 17(3)(c) of the Act (that it must have a home mooring or be used “bona fide for navigation”). Even then, he pointed out, the Trust had to give at least 28 days’ notice.

The Trust explained that Mr B was one a very small number of people who were issued with a licence in error, soon after the implementation of the web-based licensing system. It said that a block had been placed on the account to give it the opportunity to consider the application before a licence could be issued. It thought the error (which had since been resolved) had occurred because Mr B had a duplicate account. It also said that it had more than once provided him with a full explanation.

The Trust also said that it understood that the boat was not in a safe condition. It explained that in certain cases it takes the view that if, by using the licence, it would immediately lead to a situation where the terms of the licence will, or are likely to be, breached it may refuse to issue a licence.

Mr B argued that if the Trust had failed to check the details of his licence application it did not mean that it could revoke it without giving the statutory 28 days’ notice. The 1995 Act does allow the Trust to issue a notice to remedy certain matters, but I could not assume that this meant it may not cancel a contract for any other reason, such as to correct an administrative error. The reason the licence was cancelled was not to give Mr B the opportunity to remedy one of the three statutory conditions, so it was arguable that this subsection was not relevant. It did not seem to me that the 1995 Act compelled the Trust to give not less than 28 days’ notice in any circumstances, or that it prevented the Trust from cancelling a licence in such circumstances as occurred.

I said it was possible that a court might reach a different conclusion, and decide that there were no circumstances in which the Trust may cancel a licence, once issued, other than those set out in section 17(4) of the BW Act 1995.

This was a difficult case which was complicated by previous events, in particular the Court Order following the section 8 notice, and a dispute about whether the boat was safe to navigate. It seemed to me that without those issues, the problems may not have arisen in the first place, but I still had to decide whether there had been any maladministration by the Trust in the way that it had dealt with the matter.

A key point was that Mr B said that in 2016 he had never been provided with an explanation of why his licence application was not valid, but the Trust provided me with a copy of an email to him in May 2016 which provided a detailed explanation, so I could not conclude that he had “never” been told.

As to why Mr B did not obtain a licence in 2014, I was persuaded that the Trust had made attempts to engage with him, such as via face to face meetings, and I could see no clear reason why a resolution could not have been reached at the time. Later on, the Trust offered assistance from its Welfare Officer, but Mr B did not accept it.

I could see that there were a few times when the case could have taken a different direction, and while the Trust accepted that its communications at times could have been better, I did not reach the conclusion that they had closed the door on further discussion.

As an Ombudsman, I consider complaints on the basis of what is in my view fair and reasonable. I make my decisions on the basis of the balance of probabilities, in other words what is the most likely explanation for what has happened. In this case I was faced with a choice between on the one hand accepting Mr B’s arguments, which were essentially that the Trust had acted deceitfully and deliberately with a view to keeping him off its waters, or on the other hand accepting that the Trust did (as it accepted) make technical errors, for which it had apologised, but explained that it had made attempts to resolve the situation.

I did not come to the conclusion that the Trust had acted deceitfully, unlawfully, or unreasonably, nor had it deliberately misled Mr B. It could sometimes have provided more careful explanations, but I was satisfied that its offers of discussions would have been likely, if accepted, to have prevented the situation from developing as it did, and I did not uphold the complaint.

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Case No 956 – complaint about the issue of a restricted six month licence for a boat without a home mooring

Mr A was issued with a restricted six month licence on the basis that he had failed to comply with the continuous cruising guidelines. His view was that the Trust had arbitrarily and inappropriately increased the required cruising range from 20km to the current 15-20 miles. He said that despite having an agreement with the Trust that he would be able to maintain his previous cruising pattern, it had broken the agreement. He also said that his complaint had not been completed within the published timescales.

Some time ago, Mr A had sent to the Trust what he called an Estoppel Agreement, which stated that he would continue navigating as he had done unless the Trust provided certain information and clarification. He said that the Agreement would come into force by default if the Trust did not respond to it (which it didn’t). He added that the failure of the Trust to provide the information would mean that not only he, but other boaters, would be able to cruise in accordance with his assumptions about lawful navigation, that any further harassment would cease, and that the continuous cruising guidance would be amended.

The Estoppel Agreement was a unilateral action by Mr A. I did not consider whether it was enforceable, but noted that even if it could be enforced it was unlikely that it could apply to other boaters. I said that if he did wish to try to enforce the terms of the agreement he could ask a court to adjudicate on the matter. As an Ombudsman, I had to have regard to what was fair and reasonable, and I did not regard the document as committing the Trust to accept his terms.

It seemed to me that Mr A was familiar with the current guidance, even if he disagreed with it. His point was not that the Trust had failed to apply its current guidance correctly, rather that it was to some extent arbitrary and that the Trust had failed to apply it according to the terms of the Agreement. I noted, however, that by purchasing a licence for his boat each year Mr A had agreed to the Trust’s prevailing terms and conditions, which included the guidance for BWHM.

The Trust had made Mr A aware that he had not complied with the guidance, and had issued him with a restricted licence. The guidance is the Trust’s interpretation of the law. I cannot influence its policy, nor could I require it to take a different approach in this case.

On the Trust’s complaints process, the Trust had informed him that there would be a delay in issuing the second level letter but it did keep Mr A informed and he accepted the fact, noting that he would rather the matter was carefully addressed than rushed. The Trust’s complaints process does include the possibility of delays, and while there was one, it was slight and I did not regard it as unacceptable.

I did not uphold the complaint. I could see no reason why Mr A should not have to comply with the current guidance, nor why the Trust should not continue with any appropriate enforcement action if he did not comply.

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