This is the complete list for the year
Case No 848 – complaint about problems arising from boats mooring on a section of the Regent’s Canal (see also Case No 837 below)
Ms R’s complaint raised issues which were similar to those of Ms K in Case No 837, and to a large extent I conducted the investigations in parallel. This summary should be read in conjunction with the summary of that case.
Ms R lives in a house overlooking the Regent’s Canal. She complained about nuisance from smoke and noise from boats at a visitor mooring, that the CRT’s management regime at the mooring was insufficiently stringent to deal with problems at the site, and that the CRT did not adequately enforce the management regime it had in place. I also received complaints from a number of her neighbours.
As with Case No 837, the key problems were that the towpath is narrow, and there are high buildings on either side of the canal, so that pollutants are trapped, are slow to disperse, and drift into buildings.
During the course of my investigations, during which I attended two open meetings organised by the CRT, a number of suggestions for improving the situation were out to me, and I have referred to these in my summary of Case No 837. In that summary I referred to plans to install electricity posts. Since then the plans have advanced, and it seemed that posts would be installed at the location in this case, although there was still discussion about what the mooring regime would be. My view was that the plans would address most of Ms R’s concerns.
The CRT said that there was also clear evidence that boaters themselves were taking note of the London mooring situation, and that they were starting to accept that they must change their behaviour, or face more stringent cruising and mooring requirements.
Ms R hoped that that in the longer term the CRT would be able to curtail boat numbers, but I said that this was a policy issue about which I could do nothing and was therefore outside the scope of the complaint. I noted that the CRT itself was unable with current legislation to curtail absolute boat numbers, because it could not refuse legitimate requests for boat licences. I said that even if it could limit the number of boats on London’s waterways it would be difficult to develop a fair policy and would almost certainly be very hard to enforce.
In conclusion, I was satisfied that the CRT was going in the right direction, and that the proposals would go a long way to addressing the residents’ complaints. I noted that the fine details of the plans were policy matters, which I could not influence. I added that further information would become available in due course, and that I would expect the CRT to provide updates to residents once plans were finalised.
My view was that Ms R did have a genuine grievance. The CRT accepted that the situation did need to be improved, and although it had taken a long time and involved the time and effort of a large number of people, a plan had emerged which at the time I opened the investigation had seemed to be a very unlikely outcome.
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Case No 908 – complaint that the CRT had mis-sold a mooring which had been advertised as being for residential use only
Ms Q and her partner, Mr R, jointly own a boat which they use for commercial purposes. They wanted a city centre mooring and, when one became available for sale by auction, Ms Q made a successful bid. The auction details stated that the mooring was for residential use, but Mr R said that before the bid was made he contacted the CRT, who told him it was not necessarily for residential use. Although the boat licence was in Mr R’s name only, it was Ms Q who applied for the mooring. Mr R explained that he did not bid himself because he had been a victim of discrimination by the CRT on several fronts and feared the mooring opportunity would be denied to him. When the CRT discovered that the boat was not a residential boat it gave notice of eviction from the mooring.
Ms Q complained that the CRT had mis-sold her a mooring, which she had bid for on the understanding that it was not strictly for residential use, but that it had then revoked the agreement. She argued that the CRT has applied a system of discrimination/favouritism in considering an attempt to develop of her business.
The CRT found no evidence that Mr R had been told that the mooring was not strictly for residential use. It also pointed out that the auction terms and conditions stated that the application must be made by the lawful owner/keeper of the boat, being the person in whose name the licence was issued.
Even if a mooring is not strictly for residential use, it does not mean that it can be used for a commercial boat; it could be used as a leisure mooring. I considered that the possible use of the mooring was so important that if Mr R had wanted to rely on what he had been told in a phone call he should have obtained confirmation, and also specifically asked whether the mooring could be used for a commercial boat, not simply whether it was strictly for residential use.
Whether or not Mr R had been the target of any discrimination was not part of the complaint and I could not consider it. Ms Q, in making the application in her name, had not adhered to the auction terms and conditions. I can consider complaints about maladministration, in other words where the CRT has not followed its own rules and procedures. To uphold the complaint I would have to have decided that the CRT should set aside a fundamental condition of its mooring application, and also allow a commercial boat to use a mooring which had been advertised as being for residential use.
Although I did not uphold the main part of the complaint, Ms Q pointed out that there had been a considerable delay in the CRT issuing its second level response. The delay had arisen from a breakdown in the complaints process. I concluded that this was not acceptable, and decided that the CRT must make a goodwill award (should Ms Q decide to accept it) of £100 to reflect the distress and inconvenience.
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Case No 933 – complaint about the issue of a restricted six month licence for a boat without a home mooring, on which school-age children live
Ms O and Mr P live on a boat with their school-age children. They do not have a home mooring and are therefore required to comply with the guidance for boaters without a home mooring. After their previous licence expired at the end of August 2016 they were issued with a restricted six month licence on the basis that they had not complied with the guidance. In their view they had complied, noting that a journey to a more distant location had not been included in the sightings, but even when it took into account this journey the CRT’s view was that they had still failed to comply. They wanted the CRT to issue them with a 12 month licence, and also to apologise for harassing them.
Their previous – 12 month – licence had expired on 31 August 2016. They said that the assessment period, which was only the first 10 months of the licence, excluded the main navigation during the school holidays. However, the CRT explained that in the majority of cases the pattern of movement had been sufficiently established by this point for the CRT to determine whether or not it had a concern. It felt that it was unlikely that additional cruising in the final weeks would change the situation, but it did review the twelve months from July 2015 to July 2016. It explained that while there was a greater range, it was for a relatively short period and the majority of cruising remained within a range of 14 km, and still meant that there was a concern about the overall movement pattern across the year.
The complainants questioned the clarity of the guidance, but the CRT said that its published guidance, together with its correspondence with the complainants, could have left them in no doubt that the range of movement was not the only requirement.
I had a concern about the CRT’s high level guidance, which could be interpreted as a flowchart in which, as long as the basic requirement of a range of travel of 15-20 miles was met, no other tests would be applied. The CRT disagreed, but did say that it would amend the guidance to make it clear that this was not the sole test.
Although the CRT accepted that in reference to the “overall pattern of movement” the word “pattern” did not appear in the statute or the guidance, it noted that the guidance did refer to a “range of movement … over the period of the licence”.
Even taking into account any ambiguities in the guidance, I concluded that the CRT had acted reasonably in issuing a six month restricted licence, and I did not uphold the complaint. However, I did have a concern that the complainants may then have some difficulty in complying with the guidance, given that the six month period would be over the winter months and with few school holidays. The CRT said that it had already recognised the potential difficulty and would base its assessment on the previous 12 months, which it said was now its general approach.
The complainants said that their movements were constrained by their children’s schooling, adding that they were concerned that they would be able to comply with the guidance only if they made greater movements during term-time. They also referred to the possibility of reasonable adjustments being made in light of human rights obligations and their children’s right to an education. While accepting the complainants’ point about the need for the children’s education, the CRT said that it was crucial that they comply with the guidance, noting that some families were doing this already, but it was happy to discuss with each family how it could adopt a pattern of movement that complied with the legal requirement. It also said that there were responsibilities on schools and local authorities to help transport those children with long journeys whom they had accepted into their school.
The CRT also said [in February 2016] that in the coming weeks it intended to publish illustrative cruising patterns for boaters with school-aged children, based on actual patterns of other boaters in this position. In this particular case, pending this publication, it intended to offer a further six month restricted licence, and that if the complainants were able to comply with this guidance (e.g. by moving further over Easter, half-terms and the summer breaks) they should qualify for a further six month licence (on the assumption that they could not establish a compliant pattern over 12 months to qualify for a full 12-month licence based on their pattern of movement over the winter of 2016-17). If they continued to comply over the next winter [2017-18], they should then qualify for a 12 month licence in March 2018.
The complainants also said that the CRT’s complaints process had failed, because it had not responded to the second level complaint within the prescribed 15 days. The CRT pointed out that if necessary it could extend the response time. It had notified the complainants, within the 15 days, that it needed further time, and I did not uphold this element of the complaint.
I did say that I had found the CRT’s documents and guidance about the continuous cruising requirements to be difficult to follow. I made the same point in Case No 931, which is summarised below.
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Case No 919 - complaint by a boater with a disability about shortfalls in service by the CRT in dealing with a request for reasonable adjustments
Mr N complained that the CRT had failed to agree, within a reasonable timescale and in a reasonable manner, to his request for reasonable adjustments under the Equality Act 2010, and that as a result he suffered stress and inconvenience in addition to the time it took him to obtain the adjustments.
Mr N is a boater without a home mooring and is therefore required to comply with the continuous cruising guidance. He had an injury in 2013, which limited his movements, and he was registered disabled in 2015. He said that he had tried to get reasonable adjustments, under the Equality Act 2010, to allow him to continue to live aboard his boat but with more limited movements. He explained that he had had great difficulties in persuading the CRT to make such adjustments (although they were eventually agreed), and that he had resorted to using the services of a community law organisation. Based on the advice he received, he decided to instigate court action, but then withdrew his claim.
Under my rules I can refuse to consider a complaint if the matter has already been dealt with by a court or other dispute resolution body. As Mr N had discontinued his court action, I decided that I could accept the complaint, and the CRT did not object.
The CRT said that in its defence of the prospective court action it specifically denied any harassment or victimisation, believing that it had acted properly, and did not consider that it would be just or equitable for the court to award him any compensation. It said that Mr N withdrew his claim after the CRT had filed its defence, and that in light of his decision to withdraw it did not see how Mr N could ask me to require the Trust to give him the compensation that he had been pursuing via his court claim.
I said that a court process could be daunting, even leaving aside the risk of having to pay the other party’s costs. One of the roles of an ombudsman is to effectively “level the playing field” between the parties, in other words to give them both an equal voice. I noted the CRT’s point that the court could have awarded compensation even absent a finding of discrimination or harassment, and it is true to say that Mr N did decide to withdraw his claim. However, I said that it was still open to me to consider whether the CRT had met its own standards, and it did accept that it had taken a long time to reach an agreement and would like to have done so more quickly.
The question of whether there had been discrimination or harassment under the Equality Act 2010 was not one I could have considered, and therefore I could not have made a financial award about such matters. I could, however, consider whether there had been shortfalls in service in the way that the CRT had dealt with Mr N’s request for reasonable adjustments. The CRT accepted that it had taken a long time to get a full understanding of Mr N’s circumstances, and was sorry that he had had to spend his time and effort in pursuing his request. It said that it had acted in the genuine belief that adjustments had already been agreed, and said that it had not been the CRT’s intention to offend or harass him.
I accepted that the CRT may have acted in the genuine belief that it had dealt properly with Mr N’s request, but having reviewed the correspondence and the many and protracted steps he had taken to get the adjustments made, I was persuaded that the CRT could have acted more promptly and helpfully. I decided that the CRT should make a goodwill award to Mr N of £300, which it agreed to, noting that it would be on a “without prejudice basis”, a point which I was content to accept. Mr N accepted the award.
Mr N considered that he had not been well-advised by the third sector organisations he had used, and I did not disagree. However, this left him a position which could have left him exposed to court costs. It is not for me to advise complainants to use the Waterways Ombudsman Scheme, but if somebody does embark on a court process it could mean that they are later unable to use the Scheme. I cannot, as I have noted above, make decisions on what are strictly legal matters, but most complaints, even if they do involve such issues, include wider ones. Should any future complainants have questions about potential complaints, they are free to ask me for information about the ombudsman process, on a confidential basis and without being obliged to make any commitments, to help them evaluate their options.
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Case No 939 – complaint about the way in which the CRT had granted an angling licence to a club for the sole fishing rights to a stretch of canal
Mr M, a keen angler, said that the licence had been granted at the request of the angling club, which he described as an elitist single-species club, at preferential rates, which meant that there was no pressure on it to actively manage the fishery. He said that the club was interested only in one location, a marina, and that this had led to a situation of neglect elsewhere, with a lack of adequate bailiffing. He also noted that there was a lot of ill-feeling among other local anglers who were very unhappy about the situation.
Mr M questioned the way the licence was granted, which he described as an agreement between friends. His view was that the CRT should have engaged with or approached other organisations but that it had not done so. He said that the canal was a public asset, and that the CRT was foregoing revenue by charging the club so little. He also questioned the CRT’s policy that at the expiry of the licence the renewal would be offered to the incumbent club on a first refusal basis. Although he accepted that with only a year or so to run, there may be nothing that I could do about the current situation, he wanted me to examine the licence renewal process.
The CRT explained to me that that it was its policy (and before that British Waterways’ policy) to offer existing licensees first refusal of a new agreement on expiry of their current one. It said that the policy had been instigated in or around 1986 when the standard angling agreement document first came into being (agreed jointly by the National Federation of Anglers, the then governing body of freshwater coarse fishing, and BW, through the auspices of the National Fisheries Liaison Committee). It said that this was a common approach to fishing rights, adding that the rights were not sufficiently commercially competitive, noting that it brought benefit to the CRT, and it could not justify a review of the policy. It also said that the angling club volunteering contribution may have a greater value to the CRT than the actual angling income, adding that clubs rented its fisheries so that local resources were available and were looked after by the community for the community.
I accepted that Mr M might contest this argument in respect of this particular fishery, but I said that I could not question the CRT’s policies. In its response to Mr M’s complaint the CRT did say that it would review the situation ahead of the expiry of the licence in 2018. I noted that the CRT may regard the summary of the situation in my final report as being helpful in its review, and although I could not dictate the review process I said that I would expect the CRT to take into account the concerns raised by Mr M, and any other comments it receives.
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Case No 931 – complaint about the issue of a restricted six month licence for a boat without a home mooring
Mr L owns, but does not live on, a boat without a home mooring. The CRT issued a six month restricted licence on the basis that his cruising pattern had not complied with the guidance for boaters without a home mooring. He said that he had been cruising since 1997 without any problems, and had not changed his cruising pattern. He said that he was not aware of any distance stipulation, that the guidance was not clear, and that he had not been informed that it had been updated.
He wanted a detailed explanation of why, in the CRT’s opinion, the boat was not meeting the terms of the licence. He also wanted a definitive response as to whether his proposed cruising over the next six months would meet the licence terms. He also said he was at a loss to understand the requirement to “greatly exceed the minimum distance” or indeed what the terms “relatively small area” and “short distances” meant in the context of boat navigation.
The CRT said that as the boat had travelled just under 13 miles it did not comply with the guidance, which specified a range of not less than 15-20 miles. It explained that the decision about whether the cruising distance met the requirements of the guidance was based on the first 10 months of the licence period.
Mr L said that his understanding of the meaning of “range” was the total distance travelled, nit the distance between the end-points, noting that this would be consistent with the use of the word when considering, for example, how far a boat could travel on a tank of fuel. He said that the CRT had written to him on 11 March 2016 to say that his boat had not moved enough to satisfy the terms of the licence. He replied on 15 March saying that he was not aware of any distance stipulation within with the British Waterways Act 1995, but he got no reply. Although I said that it would have been helpful had it replied, I noted that while Mr L had made some statements he had not phrased them as a question.
The CRT’s sightings records indicated that during the assessment period of 9.5 months Mr L’s boat had moved a total end-to-end distance of just over 12 miles, and a total distance of just over 23 miles. Mr L pointed out this did not include his main navigation of the season, which would have been during the last two months of the licence period (July and August).
My view was that the reference in the guidance to a range of movement related to the distance between end-points, rather than the total distance travelled, because otherwise it would be possible to achieve the required distance simply by “shuttling” between two points. I said I could understand why the CRT chose not to specify a precise distance to be travelled because that could lead to boaters meeting that requirement and no more. I noted that while some boaters did not for various reasons meet the requirements of the guidance it was not clear that they did not understand what the guidance meant. I was, however, concerned that the CRT said that a clear demonstration of Mr L’s intent to comply would be to “greatly exceed” the minimum distance to be travelled, because that had no clear meaning.
In terms of the CRT’s assessment period, it said that it reviewed movements over a 10 month period because the last two months covered the licence renewal process. It said that it had amended its process to consider 12 months of sightings, but this could be done only where the current licence was a renewal and not a first licence. Even if, during the last two months of the licence period, Mr L had exceeded the minimum distance, it would have been on a single trip, and the combination of distance travelled and cruising pattern would not have met the requirements in the guidance.
The CRT’s guidance is its interpretation of the law, and is a matter of policy. All I could do was decide whether it had applied its guidance appropriately, and in this case I have concluded that it had, and I did not uphold the complaint.
Given that the six month restricted licence period was already half way through, I queried with the CRT how it would assess compliance. It said that it would look back on the previous 12 months, which include the last two months of the 12 month licence. It also said that in any case where a six month licence had been issued the final decision would not be taken until the end of the licence period, which would allow more time to meet the requirements.
In conducting this investigation, as well as others about continuous cruising, I have found the guidance difficult to follow and spread across too many pages on the CRT’s website. While I could not require the CRT to reorganise its guidance, I did recommend that it consider the organisation and accessibility of the material from an outsider’s point of view, and assess whether anything could be done to make it easier to find and to follow.
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Case No 837 – complaint about problems arising from boats mooring on a section of the Regent’s Canal (see also Case No 848 above)
Ms K lives in a flat overlooking the Regent’s Canal near St Pancras. She complained about nuisance from smoke emitted by boats, noise, which was mainly from engines or generators running sometimes at unsocial hours, and bad behaviour in the form of threatening or upsetting interactions with some of the boaters concerned. She said that these problems also affected her neighbours.
In its response to Ms K’s complaint, the CRT said that it would decide on how best to manage the local moorings as part of a wider consultation about central London mooring management. It expected the consultation to continue through the summer of 2015, with decisions being made in time for the next season’s winter moorings.
Although the terms of the complaint seemed to be relatively straightforward, they masked complications and issues which are at core of the CRT’s London mooring strategy, and it was not simply a matter of deciding whether there had been maladministration or unfair treatment by the CRT.
What was clear was that the existing situation was not satisfactory, a point which the CRT accepted, but that the solution was far from clear. Short of the CRT prohibiting mooring in the area – which nobody felt was an appropriate solution – there were no obvious quick fixes, and few obvious long-term fixes.
I said that what I could do was limited. I do not have powers to dictate CRT policy, but given the extreme level of dissatisfaction on the part of Ms K and her neighbours, and their frustration with the situation, I felt that the most effective contribution I could make was to try to bring the parties together and also to see whether there was anything I could do to promote ideas or activities which would improve or resolve the situation. In other words I did not treat the matter as a conventional complaint, but tried to engage in the process by which the problems would be addressed in the longer term.
During the past few years, there has been an influx of boats onto the London waterways, caused at least to some extent by a lack of available housing, and particularly by a lack of affordable housing. Some people see a boat as an affordable way of living in London, but there are many more boats in London than permanent moorings. However, because people can license their boats without the need to have a home mooring and continuously cruise (thus saving mooring charges), they moor at visitor moorings.
Visitor and short-term moorings do not, in the main, have many facilities. In particular, they do not have electricity posts, which means that once boat are moored and the batteries are exhausted, the sources of power and heating are the engines, diesel generators, and stoves which burn a range of fuels. Unless boaters are very careful in their use of fuels, these units may emit unpleasant and/or noxious smoke and exhaust fumes. The problems are exacerbated at this particular location for three reasons; first, there are high properties on both sides of the canal, which means the fumes are contained (the canyon effect); second, the towpath is narrow; and third, except for what is called “dark smoke” the Clean Air Act 1993 does not apply to boats. Pollution problems are greatly increased in winter, especially when there is a combination of very low temperatures and still air, which means not only that there are more emissions, but that any smoke is not dispersed quickly.
During the course of my investigation I received a considerable volume of evidence and argument. I had many meetings with various groups and individuals, including residents, CRT staff, staff and Councillors at Islington Council, and caretaker boaters. I attended two open meetings convened by the CRT to raise and discuss mooring issues, and I visited the location on a number of occasions.
Although the CRT does provide signage at the location which explains the rules, for example the restrictions on using generators between 8pm and 8am, they are not always observed. In matters of statutory nuisance and clean air, the Local Authority (Islington) has a responsibility for enforcement under the section 79 of the Environmental Protection Act 1990, but appointed staff members must witness it themselves and, as an Islington representative said at one meeting I attended, it was often the case that by the time they arrived, even if only after a short interval, the problem had ceased.
In discussion with various people, a number of suggestions for improving the situation were put to me. Some, such as lobbying the lobbying Government to change the Clean Air Act, or rationing moorings via licence restrictions, may seem reasonable requests but which for the purpose of this investigation I had to regard as aspirational but not practical. Others, such as imposing restrictions on boats with noisy engines, or restrictions on which fuels could be used at a mooring, would be difficult to enforce and may be discriminatory.
Improved signage may be helpful but there is no guarantee that boaters would adhere to the guidance. The most practical, and obvious, is greater enforcement, but it would be a significant drain on the CRT’s resources. Others included the provision of bookable moorings, and other mooring changes, but these could be considered as part of the London mooring plan, which is a policy issue which I could contribute to but about which I could not make any requirements. Boater education was considered to be a key element of any solution, but given the continual flux of boaters passing through, and new boaters coming onto the water, it was not something that could be achieved quickly.
There was one proposal which would be likely to make the single biggest difference, which was to install electricity posts, but I was informed that the cost would be prohibitive, and would almost certainly exceed any award I could make, even if could require the CRT to install them.
During my investigation the CRT was developing its London mooring strategy, which would address not just this location but the whole of the London area. Later in my investigation I was informed that plans had been put forward for the installation of electricity posts, made possible by the availability of external funds to contribute to the costs. The locations of the posts would be determined in consultation with Islington Council, but nothing would be finalised until later.
It was not up to me to propose solutions to the problem but to gauge whether the Trust had acted properly and fairly. I felt that if my involvement had achieved anything it may have been in focussing minds on possible solutions, but I stressed that mine had not been the only voice. It was evident that the problem was probably far more difficult to resolve than anybody had imagined, and when I closed my investigation there was still no finalised plan, but there were potential solutions which had not existed or been considered at the outset. Even if the electricity post proposals were still being developed, the CRT had taken many steps to address the problems, and it had set out a number of specific steps it was taking to deal with the problems during the winter of 2016-17.
In conclusion, I said that the CRT had accepted that the situation needed to be improved, but that it was very complex and there was no single cause or solution; rather, steps to be taken to improve the situation were dependent on the input of several stakeholders, including Islington Council. I thought that the CRT had taken the matter seriously and was intent on improving it for the benefit of all parties. I did not make a formal finding nor did I propose any remedies, because the CRT was developing a mooring strategy which would include this part of the canal. I said that if my involvement had to any extent helped to clarify the problems and focus minds, it would have been useful.
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Case No 934 – complaint that the CRT is incorrectly requiring a boat to be licensed while moored at a pontoon on the River Trent over riparian land and not used for cruising
Mr J has two boats on the mooring. His view is that if the boats remain at the mooring and he does not cruise in them he should not have to pay for a licence. He argued that the boats were moored at the end of a pontoon, over 150 metres from the exit to the River Trent, on a private mooring, over riparian land which was not owned by the CRT. He said that he had previously moored over riparian land elsewhere but had not been required to purchase a licence.
Mr J cited several legislative instruments, and made a number of arguments as to why interpretation of them led to the conclusion that he did not need a licence while not cruising. For example, he said that while the boats were moored they were not in the “main navigable channel”, that he was not “using” the boats or “navigating” on the river, that he was not using any CRT facilities or getting any benefit from the CRT, that the CRT did not own the bed of the river, and that the riparian owner provided all the facilities.
The CRT said that section 5 of the British Waterways Act 1971 states that a pleasure boat certificate was necessary to “keep, let for hire or use” a pleasure boat on a river waterway, that section 7 of the Act referred to a boat “to be used on a river waterway”, rather than “being used”. It said that even if a boat was not actually navigating, it could still charge for a licence while it was being kept for use. It also said that under section 43(3) of the Transport Act 1962 it could charge for the use of its facilities, which included dredging, managing vegetation, managing water levels etc.
The CRT’s argued that regardless of who owned the land under the river, it was the navigation authority and was entitled to charge where a boat was kept on its waterway. Mr J relied on an argument that if a boat was not actually moving it was not being used, but it was not clear to me that even if a boat was stationary it was not in some way being used. I also noted that the statement in section 5 of the British Waterways Act 1971 that a pleasure boat certificate was necessary to “keep” a boat on a river waterway could be regarded as indicating that a licence was necessary even if a boat was not moving.
Essentially, Mr J’s arguments were ones of semantics, and the meaning of words in the relevant legislation. I noted that the precise definitions of such words may be matters of legal interpretation. In respect of Mr J’s comments about other marinas where it was not necessary to purchase a CRT licence, in those cases I did establish that they were private marinas created over private land, outside the original river boundaries.
Mr J referred to a previous Waterways Ombudsman case, no. 516 (see page 31 of Annual Report 2010-11), in which similar arguments had been considered. In her summary of that case my predecessor noted the discrepancy between the arguments, but went on to say that if the correct interpretation of the law was not entirely clear, then she would not be able to resolve matters, as only the Courts could give definitive interpretations of the law. While I accepted that there were apparent contradictions, I could only echo the points made by my predecessor, that this was a matter about legal definitions which it would be for the Courts to decide. I found no evidence of maladministration and did not uphold the complaint.
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Case No 936 – complaint about the CRT’s refusal, as the owner of the fishing rights at a lake, to increase the number of fishing places
The lake, in the Midlands, is owned by the CRT. The CRT’s predecessor, British Waterways, bought the fishing rights over 25 years ago. Some years after that, there was an undocumented agreement that the number of fishing places would be restricted to six. The complainant, Mr I, wanted the CRT to increase the number of fishing places, but there was strong opposition from members of the local community group, and the CRT had refused to increase the number.
The CRT did consider Mr I’s request, but said that there had been insufficient support for the proposal. Mr I made a number of arguments why the number of fishing places should be increased. However, my view was that the fundamental issue was not the weight of argument of the interests of one stakeholder group, but whether in the way it had managed the situation and made the rules about the management of the lake the CRT had demonstrated maladministration or unfairness. The CRT’s decision not to increase the number of fishing places was a matter of policy, having taken into account the views of the various parties. The CRT could not reasonably ignore the interests of the various stakeholder groups.
I added that if the CRT were to allocate extra fishing places, without there being general support for doing so, it was possible that those objecting could make their case to the CRT, and the matter may in due course come to me. I said that I had to be even-handed in making my decisions, and while I fully understand Mr I’s undoubted passion about the subject, I could not uphold his complaint.
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Case No 880 – complaint about damage to a boat arising from a failure of the CRT to manage water levels on the Kennet & Avon Canal
This should be read in conjunction with the summary below for case number 914.
Mr H complained that his boat had suffered damage as a result of the CRT’s failure to maintain the Kennet & Avon Canal (K&A) in a suitable condition in accordance with section 105 of the Transport Act 1968.
Mr H is a boater without a home mooring. His boat has a V-shaped keel, with a draught deeper than that of narrowboats. He said that as a result of the K&A being less than specification depth his propeller had suffered damage from striking an underwater object, and that in order to repair the damage he would need to haul the boat out of the water, at significant expense. He argued that the CRT had failed to ensure that the canal was properly maintained and that this, combined with fluctuating water levels on a weekly cycle, meant that the canal depth was below the minimum specification.
Mr H presented a considerable volume of evidence to support his claim, including CRT (as well as its predecessor British Waterways) documentation about water depth. There is a considerable volume of legislation governing canals, their use, and the CRT’s obligations. While there is no legal minimum requirement for the depth of canals, there are requirements that the CRT maintain them for the use of certain types of boats. Mr H had argued that the draught of a particular commercial boat could be used as a yardstick for deciding the minimum depth of a canal, but noted that even if this were not the case, he ought to be able to rely on the CRT’s specifications.
As it is, the K&A is not designated as a commercial waterway, but a cruising waterway. There is some circularity in the law, which states that the CRT must maintain the K&A for use by cruising craft for which it was designed to be used when it was restored, but there is no specification for a cruising vessel. Indeed, while Mr H had argued that the depth on the re-opening of the K&A in 1990 must be deemed to be 1066 mm, I could find no definitive, published evidence that any particular depth had been specified at restoration. Mr H provided details of two sets of dimension data, dated February 2010 and August 2014. The latter document gives a smaller depth than the first (1.1m, compared to 1.24m), but even so it was still greater than the draught of Mr H’s boat. The CRT accepted that the data were incorrect, and even that the anomaly was identified in 2010 but was not corrected until 2014. The depth specification might have been a key factor, but even the lesser depth specification exceeded the draught of Mr H’s boat.
At the core of Mr H’s complaint was the issue of liability, and whether the CRT, in carrying out its duties, could have been regarded as negligent. Referring to sections 105 and 106 of the Transport Act 1968, about maintenance of the waterways, and enforcement of that duty, the CRT said that it could not be sued for damages for a breach of statutory duty. In short, even if the CRT had shown “a serious and persistent failure” to discharge its duty, as Mr G had alleged, it argued that this did not mean that it should be liable for any damage to a boat. Furthermore, the CRT argued that it could not be liable for vessels striking objects in the canal unless it was made aware of a specific obstruction and had failed to respond within a reasonable timeframe.
The issue of liability, in such a case, may pivot on points of law, and I said that I did not have the necessary legal knowledge or expertise to reach a definitive conclusion. My conclusion, on the basis of my understanding of the law and the situation, was that the CRT was not liable for the damage caused to Mr H’s boat. I added that it may not be the only conceivable conclusion, and that it was possible that a court or other dispute resolution body would reach a different conclusion.
I also considered the matter of boat insurance. All boats must be insured before the CRT will issue a licence, but the insurance needs only to be third party, not comprehensive. Mr G had third party insurance, and was thus not able to claim on his insurance for the damage. I noted that no amount of dredging of a canal could ensure that there would be no foreign objects in it, which could cause damage to a boat, especially one with a deep draught.
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Case No 914 – complaint about losses following the sinking of a boat after it hit an underwater hazard
This should be read in conjunction with the summary above for case number 880.
Mr G was cruising on the Grand Union Canal. He moved towards the towpath to accommodate a boat coming the other way, and hit an underwater hazard which holed his boat. He managed to reach a nearby marina and get into a mooring before his boat sank.
He had fully comprehensive insurance, which reimbursed him the agreed value of his boat as it was written off. However, after comparing the insurance payout with his losses he concluded that he had lost around £3,000, and wanted the CRT to reimburse him the difference. He also wanted the CRT to reimburse him for the loss of personal effects on the boat which had been damaged beyond recovery.
Mr G sent me details of his insurance claim and payout, annotated with his own calculations. On close scrutiny I concluded that Mr G had not been comparing like with like, and although I understood how he had reached his figure of a £3,000 shortfall, I did not agree with his calculations. I was satisfied that his insurance company had paid out the agreed values for the items damaged in the accident, but he had also claimed for his trailer, which he said was damaged beyond repair in returning the boat by road to its home mooring. His insurance company noted that the trailer was not damaged in the accident, and in any case it did not necessarily agree with Mr G’s original valuation. Mr G’s insurance policy did cover personal effects, but he had not made a claim, explaining that the incident and its aftermath had been very stressful. I concluded that in not making a claim, the CRT could not in any circumstances be expected to reimburse him for any such losses.
I did consider the question of whether the CRT was liable for damage to Mr G’s boat. The CRT denied liability for Mr G’s losses on the basis that it had employed reasonable measures to provide a hazard-free waterway. It argued that under section 105 of the Transport Act 1968 it was not liable for the damage. In essence it said that it could only deal with hazards that it knew about, and could not be liable for ones it had not been made aware of, regardless of how long they may have been there.
I could not reasonably reach the conclusion that the CRT was liable for the damage and therefore that it should reimburse Mr G for any losses. I said that the issue of liability was a matter best dealt with by the courts, given that it was likely to pivot on legal arguments. In Mr G’s case the existence of the underwater hazard had not been reported before his boat struck it, and the CRT was not aware of it. For Mr G to be successful in a claim against the Trust he may have to prove negligence, and it is not clear how he would achieve that if the CRT was unaware of the existence of the object.
Mr G also complained about the way that the CRT dealt with the marking of the hazard. The CRT did accept that it could have communicated with him more effectively and in a more timely manner in respect of what it had done after it had been notified about the potential obstruction, and apologised to him. I considered that in view of the circumstances the CRT should make a modest goodwill payment of £75 to Mr G to reflect shortfalls in service, which he accepted. He did not accept my conclusions on the main issue, of the damage to his boat, and was free to pursue his complaint by other means.
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Case No 859 – complaint about insufficient water draught at a mooring
Ms F complained that there was insufficient water draught at her mooring in London to accept her new boat, and that she had not received timely responses from the CRT about the design of the boat, which she wanted to be as environmentally sustainable as possible.
Ms F already had the mooring when she commissioned a new boat build, which she described as an eco-boat. She made enquiries with the CRT about a number of matters, including reprofiling of the mooring to accept the boat, using solar panels which would feed excess electricity back into the grid, and a water source heat pump. The CRT was slow in responding to the enquiries, and there were delays early on in the process. Ms F complained to the CRT, which accepted that there had been shortfalls in the way it had dealt with the enquiries, for which it made a goodwill offer of £500, but which Ms F did not accept.
In view of the CRT’s delays, Ms F wanted it to reimburse her costs (including boat storage costs, property rental costs and Council Tax while she was waiting to move her boat onto the mooring), the cost of undertaking independent surveys along the canal to determine the launch and route to her mooring, and a token payment for inconvenience and anxiety.
I accepted that the CRT had not dealt effectively with her enquiries about her boat, but it was not clear to me that this had been the only cause of the delays in the boat build. She said that the design and build of her eco-boat had been new territory for her, her boat-builder, and the CRT. There were also considerable delays on her part. For example, she had waited until the very brink of what she though was the deadline to bring the matter to me after she had completed the CRT’s internal complaints process. Her explanation was that she had other commitments. Near the end of my investigation, when I asked whether she had asked the CRT to reprofile her mooring so she could move her boat onto it, she said that she was waiting for me to complete the investigation. However, I made it clear that the fitness of the mooring to accommodate the boat was a matter between her and the CRT, and that my conclusions would have no effect on this or her timetable to complete and move the boat. At the time I completed my investigation it had been nearly four years since the boat build started, but I concluded that most of any delays had been attributable to Ms F, not the CRT.
She had provided me with invoices totalling some £46,000 for her costs. Although she had told the CRT that she was paying for storage costs, she provided no further details, particularly of their scale. I would in any case have expected her to mitigate and minimise such costs. These costs could be regarded as consequential damages, in other words beyond any contract between her and the CRT. My view was that whether the costs could indeed be regarded as consequential damages may be more likely to pivot on legal issues, such as whether the CRT had actually failed to meet a contractual obligation and whether, even if so, it should be responsible for any such losses. I noted that these were matters which would be best dealt with by a court of law.
In respect of Ms F’s decision to commission, at a cost of some £1,200, an independent survey to establish the best route to her mooring, she said that she had not consulted the CRT about the route, nor had she needed to make any adjustments to the boat once the route had been established. I concluded that it had been her decision to commission the survey and that there was no basis for expecting the CRT to pay.
I did not uphold her complaint. I was satisfied that the CRT should maintain its offer of a goodwill award of £500, which I increased to £600 to reflect further customer service shortfalls in dealing with Ms F’s second level complaint. Ms F did not accept my conclusions, deciding to pursue the complaint by other means, and so the CRT was not required to make the payment of £600.
Footnote: First, it is worth noting that because the CRT is not a regulated electricity supplier it could not be required to allow boaters to return electricity to the grid via electricity posts. It added that the posts were not designed for such a purpose, and that there was a safety risk in doing so. Second, the type of heat pump which Ms F had initially wanted to install was a water source heat pump. The CRT would not allow this because of the potentially damaging environmental consequences of a coolant leak.
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Case No 920 – complaint about continuous cruising licence restrictions and other issues
Mr E complained about the six month licence restriction imposed on him by the CRT. He also complained that the CRT was failing to manage the water depth in the Kennet & Avon Canal (K&A) sufficient to allow his boat to navigate unimpeded. Finally, he complained that the CRT had failed to open and manage a series of complaints, starting with his initial complaint about his licence restriction.
The chain of events started when Mr E sent an email to a person in the CRT, in which he challenged the CRT’s decision to restrict his licence as his boat movements were not sufficient to comply with the continuous cruising guidance. In the email address the local name was in the wrong format and the domain name was incorrect (“canalandrivertrust.org.uk” rather than “canalrivertrust.org.uk”), but he did not receive an “undeliverable mail” response. If the domain name had been correct the email might have been received and redirected, but the CRT did not receive it. Mr E maintained that as he did not get an undeliverable response, the email must have been received, but ignored. He then submitted a series of six complaints, including that his initial complaint had been ignored, and then that that complaint was not taken seriously, and that it was not logged. I did not uphold this aspect of his complaint because there was no evidence that his initial email was received (indeed I thought it very likely that it had not), as a result of which all of his subsequent complaints fell away.
The CRT had decided to restrict Mr E’s licence on the basis that his cruising pattern was insufficient. During a period of just over 10 months in 2015-16 his boat had travelled a total of 29.5 miles, and the furthest points of travel were 10.1 miles apart. He said that the reason for the limited travel was because his boat (a widebeam barge) kept getting stuck because of low water levels. I did not consider that the evidence that this had happened (or that if it had, he had notified the CRT) was conclusive. He said that although he had made several telephone calls asking for the water levels to be increased, the complaints were ignored or their existence denied.
I was not persuaded by Mr E’s suggestion that the CRT was deliberately manipulating the levels of the canal to make it difficult for liveaboard boaters to comply with the continuous cruising guidance, not least because if so it would affect all boaters and not just those without home moorings, and I had seen no evidence of a more widespread problem. I did not accept that the CRT was deliberately manipulating water levels, nor did I accept that the CRT should remove the licence restriction, and so I did not uphold these aspects of his complaint. I suggested that if Mr E had genuine difficulties cruising then he should keep a clear record of the events.
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Case No 916 – complaint about nuisance caused by a boater
Ms D lives in an apartment overlooking a canal. For several months an unlicensed boat had been moored at a 14 day mooring outside the apartment. Ms D and other residents had complained to the CRT and to the Local Authority that the boater had been causing a nuisance by, among other things, running a noisy generator, playing music at unacceptable volumes and during unsocial hours, and chopping wood during the night. His behaviour, when confronted by residents and Local Authority representatives, has been described as aggressive and antisocial.
Ms D complained to the CRT, which accepted that the boater was causing a nuisance. Under section 8 of the British Waterways Act 1983 the CRT can remove a boat which is moored without lawful authority. The CRT was trying to find a solution to the problem, but said that where a boater lives on a boat it was unable to remove it from its waterways without going through a formal legal process, because of the risk of making the boater homeless. The process of removing a boat in such circumstances takes several months because it is subject to courts’ timetabling and the availability of judges.
The Local Authority has powers under section 80 of the Environmental Protection Act 1990 to tackle nuisance by the use of abatement notices. In this case it had issued a notice about the noisy generator, but the generator was then replaced with a quieter one. With the onset of warmer weather residents complained more about the boater causing nuisance by playing music. In order to enforce an abatement notice a Local Authority representative must witness it personally. While it could take action to reduce the nuisance level, the Local Authority could not remove the boat, which is something only the CRT can do.
The purpose of my investigations is to establish whether there has been any maladministration on the part of the CRT, and if so whether this has led to injustice suffered by complainants. In this case I did look at what options were open to the CRT, and whether there was more that it could do to resolve the situation. My conclusions were:
- I was satisfied that at the time of my investigation the CRT could not legally forcibly move the boat.
- I was satisfied that the CRT was doing everything it reasonably could to use the legal powers available to it to have the boat removed.
- I was also satisfied that the CRT was doing everything it reasonably could to remedy the situation by means other than its legal powers.
- The Local Authority did have some powers at its disposal to remedy the situation, but not to remove the boat, and it was not within my remit to investigate its role in the situation.
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Case No 915 – complaint about licence restriction related to cruising patterns
Mr C is a continuous cruiser who occasionally takes winter moorings. The CRT sent a standard letter to all continuous cruisers in March 2016, explaining the policy on continuous cruising, adding that if it had concerns about a boat’s past cruising pattern it would get in touch before the licence renewal to explain what would happen. In April 2016 the CRT wrote to Mr C to say that based on his cruising pattern it was offering to renew his licence on a 6-month basis. He complained to the CRT, which accepted that the boat sightings data was incomplete, concluding that the deficiency in the data was as a result of human error or a failure in the collection process. The CRT apologised, and Mr C was able to have a 12-month licence.
Mr C was understandably aggrieved about any suggestion that he was failing to comply with the guidance for boaters without a home mooring. He said that the recent changes in enforcement of the guidance had not previously affected him, but he now questioned whether the complaints of those who had been subject to restrictions may not after all have been so far-fetched.
As well as the CRT having incomplete sightings data, Mr C had also taken a winter mooring. The April 2016 letter did say that if he felt that the decision was incorrect he should contact the local Enforcement Officer. I said that there was an onus on boaters to provide the CRT with information, particularly if they are registered as continuous cruisers but then take a permanent home mooring or a winter mooring. It transpired that in 2013 the CRT had processed Mr C’s boat licence as a continuous cruiser as it did not have his current mooring status. The CRT explained that this was its only option at the time as Mr C had not updated his mooring details on his licence renewal form.
If Mr C had earlier provided the CRT with up to date information about his mooring status there would have been no further action. He did update it, but only after he was put into the restricted boat licence process. I was not able to conclude that the CRT’s process was draconian, or that the correspondence amounted to the use of bullying tactics. It did highlight the importance of both the CRT and boaters ensuring that data are kept up to date, and I said that there must be a responsibility on the part of the boat owner, where a continuous cruising licence is issued, to notify the CRT of any changes in mooring status.
Although Mr C had asked me to consider the wider situation of CRT’s enforcement of the continuous cruising rules, I said that I could consider only his situation. I accepted that he felt upset about the CRT’s approach in his case, but I could not conclude that the CRT’s overall approach was heavy-handed, noting that it had provided a mechanism to halt the licence restriction process.
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Case No 906 – CRT refusal to issue a licence until the licence fee arrears had been paid
Mr B brought his boat onto CRT waters in November 2014. He wanted to purchase a 12 month licence starting in January 2015. As he is a liveaboard boater he used the address of a local Post Office, but around that time the management of the Post Office changed hands, and the new owner decided not to continue offering a Poste Restante service for boaters, and returned post from CRT to Mr B, marked “addressee unknown”. Mr B therefore did not get licensing correspondence from CRT, comprising payment details and the licence discs. This meant that he was unaware of the date and amount for the first payment, to be taken from his bank account by direct debit.
When the CRT tried to take payment, it was declined. This resulted in Mr B’s bank charging him £90, as well as the CRT adding charges to Mr B’s account because two direct debit requests had been refused. During the complaint process CRT found that even though the licence documentation had been returned, the licensing team had not notified the credit control team. The CRT waived the two unpaid direct debit charges, and also credited Mr B’s account with £90 to cover his own bank charges, as well as a further £50 payment to recognise the inconvenience he had suffered, totalling £140.
Mr B did not accept this. In bringing the complaint to me he said that he had never got the £140. By that time he owed two months’ licence charges for November and December 2014, plus the full 12 month licence fee for 2015. Because his account was in arrears, CRT decided that he must pay the 2016 licence fee in full, and it also charged him a £150 late payment fee for the 2016 licence because he had paid nothing by the end of the first month.
Even though the CRT tried to take a direct debit payment without notifying Mr B, this did not mean that the charge should be cancelled. Although there had been a communications failure within the CRT, it had recognised the fact, and had apologised and rectified the matter in what I considered to be a fair and reasonable manner. I said I would not have expected CRT to pay the £140 credit direct to Mr B, because his licence account was in arrears. Mr B also suggested to me that the credit should be applied to his 2016 licence fee, to reduce the outstanding charges so that he could settle the account and avoid further enforcement action. However, I said that I could see no reason why this should be done, given that the credit was to reduce the 2015 licence fee, still unpaid, and could not be transferred to a more recent licence fee.
Mr B also complained about what he said was poor customer service from CRT, in particular a person on the credit control team. The CRT had offered to provide a different point of contact. When I listened to the recordings I did accept that the conversations were sometimes difficult, but I did not consider that there had been anything improper, and indeed at least two of the calls had ended on a positive note.
I did not agree with Mr B that his trust in the CRT has been abused, or that it had acted outside its own policies and guidelines. I also did not agree that the CRT was guilty of intransigence or had been untruthful or unreasonable, and I did not uphold the complaint.
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Case No 898 – CRT refusal to issue a licence without the boat having a valid BSS certificate
Ms A bought a boat which needed extensive restoration. While she was doing it her licence became due for renewal, but the Boat Safety Scheme (“BSS”) certificate had expired and the CRT would not issue a new licence without the boat having a valid BSS certificate. By the time Ms A had got a new certificate the licence was overdue for renewal, and the CRT applied a late payment charge of £150. She complained to the CRT that it was not fully explained to her that a BSS certificate was necessary.
The CRT’s detailed guidance does make it absolutely clear that Ms A’s boat did need a BSS certificate to be licensed. In this case, Ms A said that the CRT had told her that it was OK for her to wait for certain fittings to be installed before getting a BSS certificate. The CRT accepted that Ms A’s explanation for thinking that she would be allowed to renew without having a certificate was plausible, and initially offered her £100 in compensation on a goodwill basis.
Neither side was able to provide irrefutable supporting evidence. Ms A had not got a written statement that her boat did not immediately need a BSS certificate, nor had the CRT evidence that it had told her that she did need one. However, I would not necessarily have expected the CRT to be able to prove its position given that its guidance is so clear.
There was a further complication in that the CRT had tried on 4 January 2016 to take licence payments by direct debit from Ms A’s bank account, but that the requests had been declined due to insufficient funds. The first of January 2016 was not only a bank holiday but a Friday, so the request was not made until Monday 4 January. Ms A explained that had the CRT taken the money on 1 January there would have been sufficient funds. Her view was that the CRT should have made it clear that the payment would be requested on 4 January. She was charged £10 by her bank, and the CRT applied two charges (the second one was for a further declined request on 16 January) of £30 to her account for the failed direct debit requests. I said that it was widely understood that direct debit payments were not taken on bank holidays or at weekends, and I would not expect the CRT to have notified Ms A that the payment would be taken a few days late.
However, to resolve the complaint the CRT offered Ms A £167.13. £107.13 was to clear the final instalment of the 2015 licence payment, and £60 was to cancel the direct debit charges of £60. Ms A did not accept the offer, and remained adamant that the CRT had made it quite clear that she did not need a BSS certificate at that point.
I could not uphold the complaint, because there was no evidence that the CRT had told Ms A that she did not need a BSS certificate. I concluded that it was more likely than not that the CRT had made it clear, in various ways, that Ms A did need a BSS certificate, but that in making its offer it had reflected the scope for uncertainty. Nonetheless, and mainly because the complaint was primarily not about what was printed, but what was said or understood in telephone calls, the contents of which have not been formally recorded, I decided that the CRT should increase its offer by £75, which Ms A accepted.
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