This is the complete list for the year
Case No 942 – complaint about charges made by the Trust for a domestic water supply pipe crossing its land
Mr N lives in a property bounded by Trust waterways and land. There is a water supply to the property, which runs across just over 70 metres of Trust land. The pipe is buried in land, part of which is over a canal tunnel just a few yards from one end of the tunnel. The pipe was not laid under statutory powers by a water utility and is therefore subject to a private agreement between the householder and the Trust.
In or around 1955 the annual rent for the conveyance of the water pipe was £1. Mr N bought the property some ten years ago. Under pressure to complete, he negotiated an agreement whereby he would pay the Trust £420 + VAT per annum, but said that he reserved his position. The Trust had also offered a 250 year easement at a cost of about £21k + VAT. If the pipe had been laid under statutory powers by the local water utility the Trust could not have charged as much, but this was not the case.
When Mr N contested the charge the Trust stated that it had used comparable situations in other locations as a guide to the level of charge. The Trust also commissioned an independent valuation by a RICS surveyor. The valuer explained how a market value may be determined for the land, on the basis of the value of the land put out of use by the presence of the water pipe. She said that the nature of the land, which she described as dense amenity woodland, and which was covered by various policies including Green Belt, removed any “hope value”. She calculated that based on a land value of £5,000 per acre, and “applying the usual practice of 75% of the vacant possession value the easement payment would total £237.”
She also noted that easement payments on commercial or oil pipelines were normally 75% of the vacant possession value of the strip of land, adding that payments of this nature were dependent on width and scale but had previously reached £30 per metre run. She said that “applying a maximum payment of £30 per metre run the easement would total £2,190.”
After reviewing the figures, of £237 and £2,190, she went on to say that in her professional opinion neither was considered to be market value for the proposed easement. Instead, she stated that the best way of reflecting market value for the easement was to capitalise the Trust’s annual licence fee.
In my report I noted that the valuer had proposed two methods of calculation by reference to land value, but had then reverted to the Trust’s original figure as the one which best reflected market value. I also noted that she did not consider in her report how the Trust had arrived at its annual charge of £420 + VAT.
This is what is known as a “ransom strip” scenario, where the only viable means of getting a water supply is across Trust land. The Trust did state that there was another way of laying a water supply, under statutory powers, via Mr N’s entrance road, and that this might cost less than the easement charge, but whether or not this was the case was outside my remit. Unless it was the case (a point which Mr N disputed), he effectively had no choice but to agree to the Trust’s charges.
This was a private agreement between the Trust and the householder. The level of the charge is a matter of Trust policy, and it was not within my remit to determine a charge or a basis for charging, so I did not uphold this element of the complaint.
There was a separate issue, which was that the Trust had proposed that the pipe, which was in the ground above the end of the tunnel, be re-routed under the canal at the complainant’s cost, on the basis that if there were a leak it could cause problems. Having considered the likelihood of any leak developing, and the possible consequences, I did not accept that this should be done. I asked the Trust for further information about its policies and approaches to such situations, and I was satisfied that it was not a matter of policy to re-route such pipes, nor had the Trust provided evidence that the presence of the pipe posed a significant risk to its assets. The Trust accepted this and said the pipe could be left where it was.
Case No 988 – complaint about anti-social boaters, dealing with overhanging branches, and the Council election process
Mr M has a boat on a permanent leisure mooring on a canal at a rural location. He complained about anti-social behaviour by hire boaters, primarily from a local town, the Trust’s failure to deal with overhanging tree branches at the mooring, and what he regarded as failings in the Trust’s 2015 Council election process and its decision to hold it online only.
His complaint was primarily about the activities of hire boaters, and problems such as drunkenness, noise and other anti-social behaviour. His boat is on the outside of a bend, and a number of boaters have failed to negotiate the bend adequately and have collided with his boat, causing many scuffs and some dents.
The Trust accepted that such problems exist, but put the responsibility primarily on the operators. The operators do provide briefings for boat hirers, but Mr M said that in many cases the messages were ignored, and that once boaters had put a few bridges between them and the hire location they would load up with more people and crates of beer.
Mr M wanted the Trust to implement remedies such as requiring hire boat operators to take more responsibility for the actions of the hirers, and also requiring hirers, for example, to enter into short-term licence agreements so they would be subject to the same sanctions as full licence-holders.
There are obligations on hire boat operators and hirers to ensure that the hirers do not cause a nuisance. However, the Trust is limited in its ability to police such activities. It tries to ensure that boaters are aware of their obligations, and unless it witnesses any events it generally relies on reports being made to it, in which case it approaches the owners/operators to discuss their responsibilities. The Trust noted that legislation is limited in this area, although it had achieved success in its approach to ‘educate’, adding that this was evident in all areas and not just Business Boaters. It did say that vast majority of these boats did operate safely and within sensible speeds. Although I accepted that Mr M was very unhappy with the activities of anti-social boaters, this is an area which is primarily a matter of policy and is beyond my remit. I found no evidence of maladministration.
Mr M also wanted me to require the Trust to consider the matter at Council level, and for the Council to undertake a national survey. I explained that I could in any case consider only his complaint, and not what might be happening nationally.
On the issue of the Council election process the Trust said that it had the authority to determine the election process and that it was entitled to decide to hold an online-only election in 2015. It was a policy matter in which I could not intervene and I did not uphold this element of the complaint.
On the matter of overhanging branches, there had been two major branch falls in the previous 18 months but which had not caused injury or major damage. The Trust had been slow in dealing with the matter, which it explained in part as arising from difficulty in contacting the adjacent landowner.
The Trust originally offered Mr M a goodwill award of £25 to recognise the tree problems as well as general customer service shortfalls. My view was that this did not reflect the shortfalls, and I recommended that the Trust increase its offer to £100.
Case No 974 – complaint about the closure of a long-term mooring (see also Case No 972 below)
Mr L moored his boat at what was a permanent mooring adjacent to a lock. The Trust decided to close the mooring, citing a number of reasons including a land ownership dispute, the fact that the site does not have planning permission for residential use, and poor access to the site, across a lock gate.
Mr L disputed the validity of the Trust’s reasons. While he accepted that the land dispute (see case no. 972 for an explanation) might make letting the mooring difficult, he argued that it was not a reason to close the mooring. He contested the Trust’s point about access, noting that the lower lock gate had two guard rails, and also the Trust’s point about maintenance costs, noting that any such costs had over the years been more than covered by mooring fees.
It was clear that over a period of many years Mr L had very much enjoyed the mooring and its location, and I could not doubt that it was a much valued contribution to the local landscape and community. My view was that the decision to close the mooring may have been precipitated in part by the land ownership dispute, but even if so it did not mean that if the Trust were to regain the land it would automatically reinstate the mooring. The Trust said it had made a policy decision to close the mooring, which is not something I can reverse.
As in case 972, I required the trust to notify Mr L of the outcome of the negotiations about the ownership of the land.
Case No 986 – complaint about the refusal by the Trust to allow a moorer to renew a mooring agreement
Mr K had found an unused mooring on a canal, which the Trust had seemed not to be aware of, and moored his boat there. He successfully applied for a mooring, and was offered a one-year agreement, subject to the proviso that it was on a trial basis. Although the Trust initially wanted to terminate the mooring with 28 days’ notice, Mr K reached an agreement with the Trust that he could remain on the mooring for the rest of the 12 month period.
A few months into the mooring agreement the Trust wrote to Mr K (as part of a batch emailing) saying that if he opted to pay his mooring fees by direct debit (DD), his mooring agreement would on expiry be automatically renewed for a further 12 months. Mr K then made an application to pay by direct debit, but once the Trust received his completed paperwork it realised that he would not be given the option to renew.
Mr K presented several arguments why the Trust should be bound to renew his contract. He said he could reasonably conclude that the DD renewal email was personal to him, because it had no other addressee names. He said he could reasonably assume that this email countermanded all previous correspondence, which had indicated that his mooring contract would not be renewed. He maintained that by replying to the DD renewal offer the Trust had in any case been contractually bound to honour what he said was the agreement to allow him to keep the mooring.
I disagreed with all of Mr K’s arguments about whether he and the Trust had entered into a binding agreement that his mooring agreement would be automatically renewed. I did not accept that he could reasonably have concluded that the DD email was personal to him, and certainly not on the basis that there were no other addressee names present. Their inclusion presence would have been a breach of data protection law, and in any case the email was not addressed to him by name. I did not accept his argument that in law the Trust had made an offer which, if he accepted, it would be bound to accept.
The Trust also argued that as a widebeam vessel, at that particular location, Mr K’s boat posed a navigational obstruction. Mr K did provide dimensions for the boat, the canal, and a bridge hole, arguing that two boats could pass alongside his boat, but the Trust challenged the figures, and video evidence I reviewed did not support Mr K’s figures.
Although one could reasonably question exactly how often two boats may be expected to pass alongside Mr K’s boat, and whether there might be a serious problem, I could not question the Trust’s right to determine its own mooring rules, or whether the boat did impede navigation. I said that in any case the Trust had made it clear at the start of his 12 month mooring agreement that it would not be renewed.
The Trust also said that the presence of Mr K’s boat had led to a number of complaints. The Trust did provide me with details of the complaints, and the complainants, but did not provide them to Mr K.
He argued that it was a principle of natural justice that an accused person be made aware of the accusation, and of the identity of the accuser, but I did not agree. What was important was that I had details of the complaints, which enabled me as an independent person to reach my own conclusions. I did not consider that it was necessary for the proper completion of my investigation for me to disclose such information to Mr K, but I would not in any case have divulged such information without the consent of those involved.
I did not uphold the complaint, and I said there was no reason why Mr K should not have to vacate the mooring.
Case No 978 - complaint about nuisance caused to local residents by boats at a visitor mooring
This shares common issues with two previous cases I have looked at (Case No 837 and Case No 848). Mr J’s house backs onto a canal near a visitor mooring. There is signage, which states that it is a Quiet Zone, and asks moorers to minimise the running of generators, the burning of anything other than smokeless fuels, loud music, and any other disturbance to those nearby. Mr J complained about the nuisance caused by moorers, primarily as a result of diesel fumes created when generators are running. He wanted the Trust to ensure more effective enforcement of the mooring conditions, but should it not be possible to reduce the nuisance then he wanted the Trust to close the mooring.
The statutory responsibility for assessing public nuisance lies with the Local Authority (“LA”), under the Environmental Protection Act 1990. In this case Mr J had made many complaints, and the LA had made a substantial number of monitoring visits, conducting both visual and air quality inspections but said that on no occasion had evidence of statutory nuisance been found. The LA said that there was therefore no action it could take via this route.
The difficulty here is that nuisance is defined in statute, and that the responsibility for assessing whether there is nuisance lies with the relevant LA, not the Trust. I had no doubt that the emissions from boats, particularly of diesel exhaust, were sometimes a nuisance to Mr J and his neighbours (and indeed residents in other locations). However, unless the LA found evidence of statutory nuisance I could not require the Trust to close the mooring or take any other action. Residents can themselves bring a legal action, but I accept that it may be difficult, unpleasant and time-consuming, with no guarantee of success.
Case No 989 – complaint that the Trust had not fulfilled its obligations regarding a strip of land between the complaint’s property and a canal
Ms I lives in London close to the Grand Union Canal, in a street which is broadly parallel with the canal. Neither her property, nor those of her neighbours, extends to the water’s edge, but are separated from the canal by a narrow strip of land owned by the Trust but which was leased by its predecessor, British Waterways (BW), to the Local Authority (LA) about 35 years ago. Ms I complained that a neighbour had erected a shed on the land, without permission, and also that the land was in a poor state of maintenance.
The Trust explained that the reason for letting the land was to divest itself of a maintenance burden, explaining that this was quite a common approach by BW when it had very little resource to deal with such surplus land. It said that given the significant access constraint the land had very little development or lease potential, and that what BW had done was to enter into an agreement whereby someone else would maintain it on its behalf.
The complaint had been continuing for some time when I opened my investigation, with Ms I having contacted the Trust on a number of occasions but without any clear response or resolution, or having formally considered her complaint.
The LA had decided not to take enforcement action against Ms I’s neighbour, and the Trust had not objected. The Trust had leased the land to the LA, but the LA is not in my jurisdiction so it was not open to me to require it to do anything.
The Trust provided me with a copy of the lease. Although it seemed that a possible interpretation was that the LA may not allow the building of a structure without seeking the Trust’s permission, if that were the case then the Trust had effectively granted such permission.
The lease was clear on the point of maintenance, stating that the LA must at its own expense maintain the land and keep it in good repair and condition, and that the Trust would be entitled to carry out works at the LA’s expense if the LA defaulted on any of the provisions in the lease.
Noting that BW’s aim in divesting itself of the land was to relieve itself of a maintenance burden, and also that the Trust did seem to accept that it was in a poor state of repair, I decided that the Trust should write to the LA, pointing out its maintenance obligations. The Trust had originally made an offer of a goodwill payment of £50 to reflect its shortfalls in dealing with the complaint, an offer which I maintained.
Case No 972 – complaint that the Trust had allowed a third party to register a strip of land adjacent to a canal (see also Case No 974 above)
Mr and Mrs H live in a lock cottage. On the offside of the canal, across the lock, was a long-established permanent mooring with space for a few boats. Some years ago the owner of the land adjacent to the mooring had registered the land up to the water’s edge, and this had not at the time been picked up by the then navigation authority, British Waterways. The land subsequently changed ownership, and more recently the new owner of the land had asked moorers, who had previously used what they thought was Trust land, to remove their property.
The key points made by the complainants were about the protection of assets for the benefit of the nation, the community, and individual boaters, as well as their own enjoyment of the location.
After Mr and Mrs H complained to the Trust, it did take steps to review the situation. A boundary expert was brought in, who concluded that there was no longer any reliable evidence of exactly where the boundary should be, and it was decided that evidence about historical occupation might prove helpful in resolving the matter. The Trust also decided that the mooring was no longer viable, and that it would close it down.
The Trust had issued an interim second level response to the complaint, stating that it was formally in dispute over the land, but that nothing had been concluded. It said that a later response would conclude matters. However, nothing happened, and the complaints brought the matter to me because they felt that the Trust had not done enough to try to regain the land. In their view the mooring was an important contribution to the local landscape, which was valued by the local community.
I sought clarification from the Trust on what action it intended to take. It was clear that the matter was far from simple, but my view was that it would not be a satisfactory way to conclude the complaint simply to require the Trust to make a decision about whether it would try to regain the land. That was the final position reached by the complainants, and why they asked me to investigate. Instead, I asked the Trust to state what it would do, in other words whether it would, or would not, try to regain the land.
The Trust decided that it would try to regain the land, saying that a plan was being drawn up to bring together the various threads, and also bearing in mind the possible need to gain access to the canal bank should the need arise. I said that the subsequent steps would be a matter of policy for the Trust, which I could not influence. I stressed that I could not require it to regain the land, because that might be excessively expensive, and ultimately impossible to achieve.
I did consider the issue of whether, if the Trust succeeded in regaining the land, it would reinstate the mooring. The Trust cited a number of reasons for closing the mooring, including the cost of maintaining it, and that access, via the lock gates, was not safe. It also said that there would be no net loss of moorings, as other moorings had been re-established elsewhere. Although the complainants disputed the Trust’s reasoning, I did not in this investigation make a decision on this matter, partly because it was not one of the core issues in the complaint, but also because any formal conclusion I reached would have pre-empted my conclusions in case no. 974, which was about the same location but primarily about the loss of the mooring.
As to whether there had been any maladministration in relation to the historical registration of the land by the neighbouring landowner, this was too long ago for me to consider and to reach any definitive conclusions, and even if I had made such a finding there was nothing I could have done. The complainants did criticise the way that the Trust had handled their complaint, and I said that it would be helpful in any future situations of a similar nature if the Trust were to take a more proactive, logical and consistent approach. However, as this was not related to the loss of the land in the first place and would not lead to it being recovered, I did not recommend any remedial action. The only requirement I made was that the Trust notify the complainants of the outcome of the negotiations about the land.
Case No 963 – complaint by a boater about the administration of the Boat Safety Scheme
The website of the Boat Safety Scheme (BSS) states that it is “a public safety initiative owned by the Canal & River Trust and the Environment Agency”. It is not a subsidiary of the Trust, but it does have a complaints process. There are several complaint routes, most of which relate to such matters as technical issues or examiner conduct and consistency, for which the Waterways Ombudsman is not the final stage of dispute resolution. The BSS is administered by the Trust, and as BSS Office staff are subject to the Trust’s standards and conditions I can consider complaints about BSS Office staff member administration, processes and conduct.
Ms G bought a boat, but subsequently discovered many faults, which caused the boat to fail several BSS examinations, and which she was in the process of sorting out. At the time Ms G came to me she had made a complaint which the BSS office was considering via a procedure known as BSSQA006 (for which the Waterways Ombudsman is not the final stage of dispute resolution). Although the BSS website does not state how long such an investigation takes, the Trust at one point explained that more complicated cases typically took 3-6 months.
Ms G said that she had wanted the report to present as evidence in a private court action. When I first became involved, I was told that the investigation was nearing completion, but in fact it took far longer than the Trust had originally anticipated. Ms G then wanted to complain to the Trust about the delay in completing the BSSQA006 procedure, and at my request the Trust fast-tracked the complaint. In its conclusions it accepted that there had been unreasonable delays in the BSSQA006 procedure, but noted that it should not feel under pressure to meet third party deadlines. It made an offer of a goodwill payment of £50, which she did not accept.
At Ms G’s request I opened an investigation into her complaint. She accepted that I could not consider the issues of the problems with her boat, and could only look at what the Trust had done in relation to its administration of the BSS.
The Trust did eventually complete the investigation and issue the report following the BSSQA006 procedure, but it took more than 12 months from the time Ms G first contacted it.
In my report following my investigation I said that while the problems with Ms G’s boat did not arise as result of failures in the BSS office, the delays in the process did cause her substantial distress and inconvenience. She could reasonably have expected a better level of service, and the process took far longer than either she or the BSS had anticipated. However, despite making many requests for information she was not updated in a timely manner. I accepted that the Trust had to adhere to the correct process, and also that there were some delays which beyond its control. Even so, my view was that the delays had been unacceptably long, and the Trust had consistently failed to keep Ms G updated about the progress of her BSS complaint.
I decided that the Trust should make a goodwill payment of £300, which Ms G accepted.
Case No 990 – complaint from a tenant about treatment by the Trust after he had signed a lease for a business unit
Mr F entered into a 10-year lease for a business unit managed by the Trust, with a mutual break clause after five years. Rental payments and service charges were to be paid quarterly in advance, after an initial three month rent-free period.
After Mr F failed to pay the first charges when they became due, the Trust took steps to recover payments, but he did not pay, and the matter was eventually dealt with in the County Court. The Court ordered that Mr F must pay all outstanding sums due, and that if he did so by a specified date the lease would continue and the Court Order would have no effect. By the due date he had made no payment at all, and so forfeited the lease. After the Trust took steps to recover the debts, Mr F submitted a complaint to it that he had been treated unfairly.
Among his specific complaints were that as a new tenant he had been poorly treated, that the Trust had not forwarded his post, that he had not initially been provided with main entrance keys, that when he took over the lease the unit was still let to another tenant, that the Trust prevented him from connecting to the foul drainage system of a neighbouring unit, and that although the rent-free period agreed in the lease was three months, the Trust had then extended it to four months but later denied that it had.
Mr F argued that the Trust’s actions had meant that he had been unable to proceed with his business plans, and was asking for compensation for the loss of his business.
The allegations were serious, and there were substantial sums of money involved. I decided to visit the location to talk to the Trust staff responsible for its management, and the Trust’s portfolio investment manager.
What became apparent was that Mr F had not made the specific complaints until after he left the unit, and once the Trust had started taking action to recover its debts, which was many months after he signed the lease.
One of the most serious issues was Mr F’s complaint that the Trust had withheld his post. At the time he signed the lease, he had made a planning application regarding connection to foul drainage, but had not at that point received the local authority response, although it had been posted to him at the unit. He said that had he known the contents of the response earlier he could have decided whether to sign the lease.
As to whether the Trust had withheld his mail for a number of weeks, the Trust said regarded itself as a good and responsible landlord, and said that it had absolutely no incentive to do so. Mr F had been advised by a solicitor for many months prior to signing the lease. I said that if the contents of the letter were so crucial, he could have delayed signing the lease. Mr F said that the cost of providing foul drainage was very high, and argued that the Trust could, after all, have allowed him to connect his unit to the foul drainage system of a neighbouring unit, but the Trust said that this was not possible.
I did not accept Mr F’s argument that because some materials were left in the unit when the lease commenced, it demonstrated that the Trust was subletting it to another tenant; indeed the Trust said that it would remove the materials as soon as it could, but noted that Mr F had stressed that there was no urgency. There was a minor delay in providing a front door key, but while the Trust was getting a new one cut Mr F did have access via his own front entrance.
The reason for Mr F’s view that the rent-free period had been extended to four months was because of an error in an email from the Trust. However, this email was not sent until some three weeks after the first payments were due. I did not accept that this was sufficient justification for withholding all payments. I also pointed out that when it came to contractual matters, the terms were as stated in the lease. I did not conclude that an error in an email could be regarded as fundamentally changing a contract which had already been signed.
Mr F was aware of the debt and did not contest it. I said that he had entered into a binding contractual agreement to pay the rent and other charges, and that a County Court had ordered him to pay the charges, a decision which I cannot overturn.
Mr F wanted cancellation of all the charges, plus compensation for what he said was the loss of his business. I found no evidence of maladministration, and I did not uphold the complaint. I could see no reason why he should not remain liable for the charges.
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 by 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.
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.
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.
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.
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.