2014-15 case summaries

This is the complete list for the year

Case No 832 – overstay at visitor moorings and child safety issues

Ms N was denied permission to stay a further 12 hours on a visitor mooring, and had to move her boat, together with her three young children, without the assistance of her partner. She claimed that to have done so would have posed an unacceptable safety risk, and that the Trust should have offered her assistance. Given the number of boats, where they are young children, and where there is either a single parent or where one parent is temporarily absent, I took the view that the situation must have arisen before, and that there must be a significant element of parental responsibility. I also sought the view of an experienced boater who had brought up her child on her boat, and she explained that she had created a safe area on the boat. Ms N said that the Trust failed to take account of her circumstances, but I did not uphold this element of her complaint.

Ms N also regarded an email from an Enforcement Officer as amounting to harassment, but I considered that it was more by way of providing information and I did not uphold this element of the complaint. Ms N also questioned whether the Trust had the legal power to levy a charge for an overstay, but this is a matter of the Trust’s policy and is not an issue that I can consider.

Case No 831 – treatment of a disabled boater

Mr M is disabled. He lived on his boat on a private mooring on the Oxford Canal, where there were no sanitary facilities. He had been using the local Trust sanitary station, but this was locked after being vandalised. He complained that he had been paying licence and mooring fees to the Trust but was not getting a service, which he said resulted in him being forced out of his home. He also said that over a period of around six months he had had a poor response from the Trust to his concerns, which he perceived as an attack on him due to his disability. He felt that he should be offered compensation for the distress he has been caused, and a rebate of some of his fees, and also wanted serious consideration given by the Trust to creating a new Elsan facility nearby, as even the facility he had been using was still very difficult for him.

I considered what facilities Mr M was entitled to expect from the Trust by his payment of a licence fee and a mooring fee; whether, because of his disability, the Trust should have provided additional services, or should in any way have done more than it did do; and whether, since he first contacted the Trust in April 2014, it had dealt adequately with his concerns.

The Trust explained that payment of the licence fee did not guarantee the availability of sanitary facilities. The Trust should as far as possible maintain any facilities in an adequate state, but closures may be necessary. In this case it had to deal with a problem of vandalism.

The Trust did not own the mooring where Mr M moored, and had no obligation to provide facilities, explaining that it would be up to the landowner to decide whether to provide any. It did eventually provide Mr M with a key to the sanitary station, but only after about six months, and several failed attempts by Mr M to contact the Trust. By that time, Mr M had decided to give up on the idea of living afloat, and moved to a property in London.

In reviewing the correspondence I could see nothing which might suggest that the Trust might have acted in a discriminatory fashion; indeed what did come through was the lengths to which people had gone to assist him. However, I was persuaded that the Trust could have acted more quickly to provide Mr M with a key. At around the time that Mr M told me he had decided to leave the water, it was clear that the Trust was trying hard to resolve the problem, even if it did take longer than expected to provide him with a key.

As to whether the Trust should have created (or helped to create) a new Elsan facility, it explained that the cost would have been around £30,000, which may well not be regarded under the Equality Act 2010 as a reasonable adjustment. Whether or not the Trust had actually discriminated in any way is not a matter that I could decide.

The Trust did accept that it could have handled the situation better, and in addition to apologising to him it offered a goodwill award of £50 to reflect any distress and inconvenience. I concluded that this was a fair and reasonable resolution of the complaint and decided that the Trust should maintain its offer.

I did not agree with Mr M’s view that the Trust had effectively forced him off the water and should buy his boat off him. I also pointed out, in answer to his suggestion, that it was beyond my remit to require the Trust to completely overhaul its disability policy.

Case No 818 – Ribble Link closure

Ms L booked a crossing on the Ribble Link between the Lancaster Canal and the main network. While she was on the Lancaster Canal she learned that the Link had been closed because of low water levels. Given that she was due to return to work she had to leave the boat at a marina and return later to collect it. There is a risk of unexpected closures on the Link as a result of unforeseen circumstances, but in this case the Trust was aware that water levels were low and had undertaken a programme of weed clearance to increase the flow from Killington Reservoir, which was taking longer than anticipated. It also told Ms L that in hindsight it may have been more prudent to alert her to decreased water levels. My view was that the Trust seemed to have been aware of the situation and could reasonably have anticipated the problem. Ms L was claiming £225 in marina and travel costs to retrieve her boat later. I concluded that the costs were reasonable, and decided that the Trust should reimburse her costs in full.

Case No 806 – bollard electricity supply meter accuracy

Mr K said between October 2012 and May 2013 the electricity meter at his mooring (and also those of others at the moorings) had shown an unusually high, and incorrect, level of usage. During that period there had been flooding which had partially submerged the posts. The Trust did accept that the usage for the period was around double what would have been expected, but credited Mr K’s account with about £140 as a gesture of goodwill.

Given the lapse of time I concluded that it was unlikely that the true cause of the high metered usage could be ascertained. It did seem feasible to me submerging an electricity post in water may be expected to lead to some leakage and over-metering, but the Trust explained that not only would the meter have tripped, but that as the smart meter was the last item in the supply before the socket which supplies the boat, the meter would measure only the flow of electricity to the boat. Mr K could have had an independent assessment of the meter, but this would cost £80 unless the meter was shown to be outside a specified tolerance range.

The Trust said that in October 2014 all the cables in every bollard were raised up when electricians were on site carrying out work on a faulty bollard. This seemed a sensible precaution, but it was not clear whether it would have made a difference in the period in question.

Mr K had had his account credited and had therefore not lost out, and I made no recommendations. I explained that it was not the role of an Ombudsman to carry out an exhaustive analysis of any particular situation, especially in a case such as this where any further effort would have been unlikely to reveal anything more than was already known, but to make a decision on the basis of what is fair and reasonable in the circumstances.

Case No 801 – Foulridge tunnel incident and boat damage

Mr J entered the 1500 metre Foulridge tunnel on the Leeds and Liverpool canal on a green light. A short way into the tunnel he saw that a boat was coming the other way. He had to reverse out, and in doing so damaged his boat, causing damage which cost just under £100 to remedy. The other boat was a Trust workboat which was moving slowly. The Trust’s insurers argued that the Trust boat had sounded its horn repeatedly to make Mr J aware of its presence, and that there was therefore no negligence. I could not see why the Trust boat sounding its horn was relevant. I was satisfied that Mr J had reasonably entered the tunnel and that it was not his fault that he had to reverse out. I upheld this part of the complaint and decided that the Trust should compensate Mr J for the cost of remedying the damage to his boat.

Mr J also complained that the arrangements for passage times through the tunnel were inadequate, and had no faith that the Trust would implement the arrangements it had put in place to manage the tunnel passage times when large slow workboats are transiting the tunnel. After asking the Trust for further information I had no reason to share Mr J’s doubts and made no recommendations.

Case No 797 – surface water drainage charges

Mr I lives next to a canal. He does not have mains services for surface water drainage, and the Trust charges him for surface water drainage into the canal. His complaint was that the charge was significantly higher than that paid by his neighbours who do have the benefit of mains drainage, and that VAT at 20% is levied on the charge. Unlike the water utility companies, the Trust is not a regulated organisation. Its charges are therefore not controlled, and they are not a matter that I can consider. The Trust is also obliged to levy VAT on its charges. I did not uphold the complaint.

Case No 792 - canal infrastructure, culverts and flood risk

Mr H lives in an area near the Leeds and Liverpool Canal, where there has previously been flooding as a result of severe weather. In the location in question a brook runs under the canal, through three sections of pipes and culverts, the second and third sections being owned by the Trust. The second section is a single circular cross-section pipe with a diameter of 900mm. For the purposes of this complaint the Trust has two responsibilities; one is to provide the local authority with information which it needs to carry out its duties as the Lead Local Flood Authority (LLFA), while the other is a duty, as what is known as a Statutory Consultee, to provide relevant information in connection with planning applications.

In this case the Trust had provided information requested by a firm of consulting engineers in connection with an application for a development near the brook on the upstream side of the canal. In this case the Trust stated that the diameter of the middle section pipe was not 900mm but 675mm. The information is on record as part of the planning application and has not been corrected. Mr H’s complaint was that the risk of local flooding is exacerbated by the poor state of the Trust’s infrastructure, and that the existence of this incorrect information means that the neighbourhood is being subject to unnecessary risks.

My rules require me to consider complaints of injustice suffered as a result of maladministration or unfair treatment. I accepted that the information submitted in respect of the planning application was incorrect, but I could see no way in which it could possibly have any impact on the likelihood of flooding. There was no pre-existing issue about the capacity of the pipe to carry the brook, and the developers stated that any problems of water run-off from the location would be reduced by the development. The Trust stressed that the information it provided to the LLFA was accurate in respect of the diameter of the pipe, so the incorrect information was not used for flood management. I concluded that no useful purpose would be served by the Trust correcting the information, and I did not uphold this part of the complaint.

In respect of Mr H’s complaint that the Trust’s infrastructure was in a poor state and exacerbated the risks of local flooding, it was not my role to establish the state of the infrastructure or the flood risk. The assessment of that risk is the responsibility of the LLFA and not the Trust, but the Trust is required to provide information to the LLFA. I saw no evidence of any maladministration in the way that the Trust was monitoring its assets, and I did not uphold this part of the complaint.

Case No 779 – safety and other issues at mooring

Mr and Mrs G have a boat on a permanent mooring on a canal. Because of a long-running dispute between other boaters at the mooring, Mr and Mrs G wanted to be moved to another mooring, but when one became vacant they were not allowed to move. They also complained that Trust staff had discriminated against them because they owned several dogs. Finally, they complained about safety issues at the mooring, in particular that Mrs G had had a fall which she said was as a result of poor lighting and uneven surfaces.

On the issue about a move to an alternative mooring, the Trust had offered a move to two sites, but by time the complaint came to me the deadline for acceptance had passed. Mr and Mrs G did not tell me whether they had regarded the offer as acceptable. I did not recommend that the Trust make further offers of alternative moorings, but I did recommend that it write to Mr and Mrs G to explain their options are about moving or staying, including for example whether they could have a mooring without having to go through the auction process, what the financial terms might be, and what was currently available or might soon be available.

In respect of the ownership of the dogs, the Trust had written to Mr and Mrs G, pointing that it had been brought to their attention that had several dogs. The Trust said that they would not normally expect such a large number, and asked for them to be kept under control at all times. I did visit the mooring, and saw no evidence of unacceptable behaviour by the dogs, but as far as I was aware no complaint had been received. While Mr and Mrs G regarded the Trust’s comments as unacceptable, it did not seem to me that on an objective basis they could be regarded as being so. Nonetheless, to the extent that any apology was dues I was satisfied that the Trust had done so fully and properly, and made no further recommendation.

On the safety issues, Mrs G had injured herself in a fall, which she said was because of a lack of lighting. The Trust said that the view of its health and safety advisor the site was not unsafe, but it had agreed some rectification works which would be undertaken in the ensuing few weeks. I did comment that the Trust’s proposed work could be regarded as indicating that things were not right before. Mrs G had not asked for compensation for her injury, but I did recommend that it apologise for the delay in carrying out the work.

Case No 772 – compensation for refloating boat

Mr F is an experienced sailor. He owns a sailing boat with a bilge keel, which he has for several years kept on a permanent mooring in a marina at the end of a canal, with a lock to a tidal river. During one night his boat sank. Mr F maintained that the cause was a water level drop and that the keel had probably caught on the side of the lock. His view was supported by the marina manager, who said that the Trust reserved the right to drop the water level without notice to alleviate potential flooding. Mr F incurred costs of around £700 to raise and clean the boat, which included travel and accommodation while he was doing the work. The Trust has a SCADA (supervisory control and data acquisition) system which monitors water at regular intervals at a number of locations. The Trust’s view was that its data did not show a water level drop of the scale that would have been likely to cause the sinking, and I was satisfied that vandalism was probably not the cause. The evidence from the parties was hard to reconcile; either the boat sank with no apparent cause, or the SCADA data was inaccurate or sufficiently detailed to show a transient water level drop. In view of the absence of clear evidence I decided that the Trust should make an award of £350, being half of the costs which Mr F incurred.

Case No 770 – Section 8 notice and continuous cruising requirements

Mr E lives on his boat. He does have a permanent mooring but he prefers not to use it and instead moors most of the time at the visitor moorings in a nearby town. The Trust was not satisfied that his boat movements were sufficient to satisfy the boat licence conditions. It also had doubts about the home mooring and whether it was genuine, and eventually started to take action under section 8 of the British Waterways Act 1983 on the basis that his boat was moored without lawful authority.

A key issue in this case was whether the rules on continuous cruising applied to those who do have a home mooring when they are away from it. Mr E’s view was that the rules for those declaring a home mooring, and those not, are fundamentally different. He argued that having a home mooring exempted him from the requirement to continuously cruise, noting that s.17(3)(c)(i) of the British Waterways Act 1995 did not refer to the need to use the vessel for navigation.

If Mr E is correct it could lead to a situation where boaters could obtain a low-cost mooring in one place, perhaps not even intending to visit it, and then stay in a locality of their choice. The Trust’s licence conditions refer to mooring only for short periods while cruising, and its view is that if boats do have a home mooring, then while they are away cruising there should be a range of movement commensurate with the time they spend away from that mooring. It is not my role to interpret the law or to decide whether the Trust has interpreted the law correctly. I can consider whether it has implemented its own policies correctly. I had no reason to think that it had not, and I did not uphold the complaint.

Case No 766 – inappropriate issue of an Enforcement Notice

During January 2014 the Trust issued Mr D with three Enforcement Notices (“ENs”). Mr D accepted one, and the Trust expunged a second on the basis that it should not have been issued in the first place. The third was a request for Mr D to remove his mooring pins from the concrete and his mooring lines from the safety chain, and he wanted this EN to be expunged.

The Trust explained that the EN was part of a local campaign to encourage boaters not to damage towpaths and canal banks by driving mooring pins into hard surfaces such as concrete or tarmac. Mr D insisted that he had placed his mooring pin in an existing hole, and that his mooring line was attached not to the safety chain but to the metal eye bolt the screws into the concrete, but the Trust’s view was that its Enforcement team was right to issue the notice in an attempt to protect important canal infrastructure from further damage.

Mr D did accept that his mooring pin was in the hard towpath surface, but said that he had used a hole made by previous boaters. The EN did not impose a penalty, nor would it contribute to any possible enforcement action. The Trust said that the EN was simply a polite request for Mr D to remove his mooring pin from the hard surface. The EN has a number of boxes which can be ticked to show why it was issued. None was ticked, but in the “other” free text section there was a request to remove the mooring pins from the concrete and the mooring line from the safety chain.

I accepted the Trust’s argument that the EN was issued primarily as a polite request, and I did not recommend that the Trust expunge it.

Case No 764 – negotiations for extension of property lease

Mr C owns a property in Islington, which was on a 125 year lease which started in September 1969. The freehold was owned by British Waterways (“BW”). In June 2012 Mr C enquired with BW about extending the lease. Section 39 of the Leasehold Reform, Housing and Urban Development Act 1993 (“the Act”) grants a tenant the right to “acquire a new lease of the flat on payment of a premium determined in accordance with this Chapter.” In essence the tenant has the right to extend the lease on a property for 90 years, subject to having been an owner for two years.

When Mr C contacted BW about extending the lease it had just over 82 years to run. The cost of extending the lease increases as time passes, but there is a crucial point cut-off point, when the lease has run down to 80 years, after which the cost increases significantly. The cost of extending the lease is based on the duration of the unexpired portion as well as the value at the time it is extended. The payment is intended to reflect the fact that the freeholder loses ground rent, and the time before the freeholder gets the property back at the end of the lease is extended.

At the time Mr C enquired about extending the lease, BW was in discussion with Islington Borough Council about selling the freeholds, and this led to delays in BW responding to Mr C. He wanted compensation for any additional costs of extending the lease, arising from BW’s delays. I was satisfied that BW had been slow in responding to Mr C, but there were also delays on Mr C’s part. I contacted the Leasehold Advisory Service (“LAS”), who explained to me that discussions could be formal or informal, but that there was an onus on the leaseholder to take action, for example where the freeholder could not be contacted. In this case the tenant can submit a request on a statutory basis, and it is the timing of that request which determines the calculation of the costs of extending the lease, even if the agreement is not actually concluded until after the remaining lease has fallen below 80 years. If the two parties cannot agree the cost of extending the lease it can be assessed by a Leasehold Valuation Tribunal.

Although Mr C could have instructed a solicitor at the start, and submitted a request on a statutory basis, there was no clear need to do so as there was no reason for him to believe that this was necessary. I was satisfied that there were delays on the Trust’s part, but also on Mr C’s part. Using an LAS calculator, I concluded that as a result of a delay of a year Mr C might have had to pay a further £550 to extend the lease, although the figures I used were estimates. Given that there were also delays on Mr C’s part, and that he could have sought legal advice earlier, I decided that the Trust should make an award of £150 in compensation.

Case No 759 – provision of outdated information for marina planning application

Mr B is the representative of a marina. A separate company made a planning application for a new marina a few miles away. The Trust is a Statutory Consultee (“SC”) for such planning applications, which means that it must be consulted by the Local Authority (“LA”). It made a submission as an SC, but its New Marinas Unit (“NMU”) also wrote to the LA, in which it said that it supported the proposed development. In that letter it referred to a 2005 forecast of the numbers of moorings which would be needed by 2015, based on a growth rate of 4%. It said that the economic climate would impact on the percentage growth either up or down but that the overall trend since 1992 showed an increase in boat numbers. It added that it would be happy to provide further information about economic demand to assess the impact of the proposed development, and traffic generation from marina developments. Mr B argued that the figures were out of date and did not reflect the current situation, which had been affected by the economic downturn.

The planning application was rejected for reasons related to conservation and heritage issues, and the cumulative impact of local marina developments, and because of a potential adverse impact on an archaeological site of interest. The developers submitted an appeal.

Mr B’s view was that there was an oversupply of moorings in the area, and that the new berths would not be filled. He said that the Trust had misinformed the LA about the need for a new marina, and that it should inform the Planning Inspectorate of what he said was the true position, and correct what he said was the thoroughly inaccurate and misleading statements made by the NMU on the issue of need. His concern was that if the Planning Inspector were to consider the application afresh then the letter from the Trust’s NMU may be significant if the original reasons for refusing planning permission were overturned.

One of the key issues I considered was that of supply and demand, and whether this was taken into account. If the area was in Green Belt then local demand, for example for residential accommodation, may be taken into account, but it is not. Both parties made points about competition, with the Trust saying that it could reasonably refuse access to the canal network to a new marina. However, I did not think that that meant that the Trust should positively support a proposed marina development, as it did in this case, and there are good reasons why it should be entirely neutral.

However, marina operators, both existing and potential, operate in a commercial environment where there is wide availability of information about supply and demand. I said that it was up to them to assess whether there was an unsatisfied demand for additional mooring capacity.

It was not clear why the Trust’s NMU decided to positively support the application, rather than restricting its comments to those of a SC, but following an internal review it decided that it would in future submit only one response, in its role as SC, about whether it objects or does not object to the proposal. I said that the evidence provided to me indicated that the matter of supply and demand was not a relevant issue outside Green Belt.

In my conclusions I said that:

I could not reasonably conclude that the Trust deliberately misinformed the Council about the need for the marina;
the Trust did not make it clear to the LA that the information it supplied in its letter was out of date, but given that the data was seven years old it would have been helpful had it indicated that it did not know what the current situation was;
I did not conclude that the Trust knowingly supplied information that was false;
even though the information supplied to the LPA by the Trust in its 14 December 2012 letter was out of date, I could not conclude that this would have had a direct and material effect on the outcome of the planning application (absent the two reasons for the refusal of planning permission), on the likelihood of an appeal being made, or on the outcome of the appeal;
I did not consider that the Trust should withdraw its 14 December 2012 letter and submit a new one, but I noted that if the Trust wished to do so it was a matter for it to decide;
as the LA did not approve the planning application I did not conclude that Mr B had suffered any injustice in respects of his commercial interests. I said that the LA was not a market regulator and did not consider supply and demand issues outside Green Belt. I also said that given the commercial nature of the market, it could be argued that if Mr B might have suffered, it would have been as a result of the normal operation of the market.

I upheld the complaint in part, because of my view that the Trust should, in its letter of 14 December 2012, have provided a clearer explanation of the context of the information which it provided about the availability of mooring berths. However, in view of the fact that the Trust had decided in future to submit only one letter, in its capacity as a Statutory Consultee, and because I could find no evidence of injustice suffered as a consequence of its actions, I made no recommendations.

Case No 737 – failure of the Trust to deal effectively with leaks from canal

Mr A runs a farming business adjacent to the Oxford Canal. There had been leaks from the canal into his lower-lying land. He had had difficulty in getting the Trust to respond to his requests for the leaks to be repaired. His view was that the process for reporting problems and getting them rectified was unsatisfactory and did not work.

The Trust did accept that there had been failings in dealing with the leaks, and that it had made commitments, some of which it had not kept. It accepted that communication could have been better, and that only realistic timescales should have been given for dealing with the leaks. It stated that the timescale for actually completing repairs would depend on the severity of the problem and the prevailing conditions at that time, but that in extreme circumstances, such as those caused by bad weather, it had to prioritise the works according to available resources, and could not provide fixed timescales in advance to repair unspecified problems.

While it was handling Mr A’s complaint the Trust proposed a process, which included the handling of communications, and the timescales for it to respond to notifications about problems. Mr A pointed out that the process was the one he had followed many times before, but that it had never worked. I did not think that a remedy of simply trusting that the process would work in future was acceptable, and in discussion with the Trust agreed that there would be a fail-safe mechanism whereby the Trust’s main Customer Services team was alerted if the process went off track. I thought this was not ideal because it should not be necessary, but it would have the virtue of giving Mr A some assurance that the process will work.

I decided that in the event that Mr A needed to invoke the problem reporting process, then should it fail he may contact a named person in the Trust’s Customer Service team, who would raise the matter with the Trust’s Operations Director. I decided that this facility should be available for a period of 12 months from the first time that Mr A needed to invoke the process.