This page includes summaries of completed investigations and will be updated as cases are completed.
1290 – a complaint about the decision not to renew an end of garden mooring upon the sale of a property
A couple purchased a canal side property in 2011. They were attracted by the availability of a mooring and signed an End of Garden Mooring Agreement with the Trust. In 2022 they decided to sell the property and the Estate Agent marketed it with the mooring included in the particulars. Potential buyers contacted the Trust to confirm availability of the mooring. The Trust found that the mooring did not meet the requirements to be classified as an End of Garden Mooring and notified the Estate Agent to remove the mooring from the sales details.
The couple complained that the Trust should have contacted them rather than the Estate Agent, that the reasons given for withdrawing the mooring are unfair and unreasonable and the result is that the property has ben significantly devalued.
The Trust says there are no implied rights to moor on its canals, the Trust is the owner of the canal bed, and its permission is required for the exclusive right to occupy this water space. All mooring agreements are between the Trust and the customer, not the property, and cannot be transferred from one individual to another. Any new owner of the property, who also wished to moor a boat at this location, must therefore make a new application to the Trust which will be considered in line with the applicable policy. However, at this location, it said any application made would not meet the policy requirements as the applicant will not own the land up to the waters edge (i.e. the land against which they intend to moor the boat) as it is the Trust’s property.
The couple argued the mooring was historic and the Trust had given no indication during the years they lived there that it would not pass to any new owner. They were under the impression that it was associated with the property rather than the individual.
The Trust provided a copy of the original mooring approval letter from 2011 to demonstrate that they would have known that there was no legal right to moor and that no mooring was included within their Land Registry title for the property. The from sets out the terms of the mooring approval and point 11 states: “mooring rights are not transferable with the sale of the property and must be re-applied for by each respective new owner” so the Trust believes they were made aware of this by the Trust’s predecessor, British Waterways, when they initially agreed to the mooring terms.
The Trust confirms that any new application for a mooring at this location would not meet the conditions of its Online Mooring Policy, as the property is on the towpath side of the canal and so not adjacent to the canal. The Trust must apply its rules in the same way across all applications received. As this mooring will not meet the requirements of the policy it would not be able to grant it on receipt of an application from new owners simply because it had done so in the past. This would be unfair to other customers in a similar situation. I was satisfied the Trust acted correctly in notifying the couple that the mooring would not be sanctioned on receipt of an application from a new owner of the property.
The couple argued the Trust’s decision has affected the value and saleability of the property. While I appreciated that the mooring rights had had an impact on the saleability of the property, they were not a right that had been granted in perpetuity. The land on which the boat is moored belongs to the Trust, it is not and has never been part of the couple’s land and on that basis the Trust cannot be held responsible for any perceived loss in value or saleability. I did agree that out of courtesy the Trust should have contacted them, the agreement holders, rather than the Estate Agent and it should apologise for this.
1236 – a complaint about the ownership of a tree on the boundary of the towpath and a residential property.
Mr K wanted the Trust to complete work on an oak tree which grows in the hedgerow at the junction of his garden, his neighbour’s garden and the towpath. The ownership of the tree was disputed. Historically the Trust had accepted responsibility and with a contribution from Mr K and his neighbour had pruned the tree. However, when Mr K asked it to cut back the tree in 2018 as it was affecting his garden, they asked for a larger contribution which Mr K was not happy with. In 2022 he made a complaint and in its initial response to the complaint the Trust denied ownership and responsibility for the tree. Following a check of measurements and land ownership, it then concluded the tree sits on the boundary line.
The Trust argued the tree is jointly owned by the parties and each owner would need the permission of the other to carry out any works to the tree and any works should be a shared expense. It also said the tree is structurally sound and did not require any work. Mr K argued the tree did not belong to him or his neighbour but to the Trust and that it was having a detrimental effect on his and his neighbours enjoyment of their gardens and the Trust should bear the full costs of resolving this.
The costs of completing any work would be substantial. There would be preparation work to liaise with the local council and prepare the paperwork to seek consent to do the work as the tree has a preservation order on it and costs of getting the equipment and workmen in to do the cutting.
Having considered the evidence presented I found that the ownership of the tree, although a key element for consideration was a moot point. This is because even if it was established that the Trust owned the tree it would not agree to carry out the work requested since its policy is to leave trees that are structurally sound. The Trust has based its conclusion that the tree is jointly owned on its own legal advice and the distance of the tree from the towpath. If Mr K and his neighbour wished to challenge this, they would need to seek their own legal advice as it is not in my remit to make a ruling on this. However, I did agree it seemed to be a reasonable conclusion based on the position of the tree, which originally formed part of the hedgerow bordering the garden and towpath and has matured equally into both properties.
Mr K has asked that the tree be felled, to prevent the need for repeated arguments each time the tree needs work. With a Tree Protection Order in place this would be a decision only the council could make and as the tree is healthy would be extremely unlikely. The Trust policy is not to carry out work on any structurally sound tree. The Trust has regularly surveyed the tree and recent inspections found the tree to be living and to have no dead, diseased or dying sections, it does not consider it to be a fire risk and would not, without the request from Mr K consider any work to be necessary.
For various reasons, mainly related to the previous offers made and failures in dealing with the complaint earlier, the Trust agreed to honour its previous offer to do a ‘little crown lifting’. This would only be with the agreement of the local council and a contribution towards the costs by Mr K and his neighbour of 30%.
Overall, I concluded the Trust had made a reasonable offer to take ownership of the issue and instigate a review of the tree. It is not compelled to do this and is doing so in the interests of being a good neighbour. The offer previously made by the Trust was reinstated and I concluded that was a fair and reasonable one. I did require a small goodwill gesture for some customer service failures.
1264 – a complaint about how the Trust dealt with concerns about erosion of the canal bank and removal of litter at a residential property.
Mr J’s garden backs onto the canal and he was concerned there was erosion of the canal bank which would have a detrimental effect on his garden. He was also concerned about a reed bed which was trapping litter and causing the canal to be unsightly. He contacted the Trust and was unhappy with the way it dealt with his enquiries and felt his views were not taken into account.
Following the involvement of the Ombudsman the question about erosion was dealt with and the investigation concentrated on the customer service provided. Mr J requested a substantial goodwill gesture to recognise the inconvenience and time spent making the complaint and the frustration he says he experienced.
My role is to see if Mr J suffered any injustice as a result of maladministration by the Trust. I did find instances of poor customer service, inaccurate or unclear information and delays in responding which could be considered to be maladministration. However, I did not consider that Mr J had suffered any injustice as a result, rather he has suffered inconvenience and frustration.
When considering how to remedy the situation the overriding aim is always to try, as far as possible, to put the complainant into the position they were in before the problem started. The question of erosion and litter had been dealt with and any future issues will be handled in line with the general policy that volunteers will do what they can and when the work boat is passing it will seek to collect what it can. Regarding the reeds the Trust has explained they will not be removed, in accordance with its general policy that they help with erosion and the ecology of the canal and water.
I agreed that the time spent dealing with the issue was longer than necessary because of miscommunication and vague messages and an engineer’s missed visit was an error on the part of an individual, who did apologise. Mr J did not provide evidence of any direct or consequential financial loss so to recognise the inconvenience I recommended that the Trust make a moderate goodwill gesture to Mr J. I also recommended that the Trust looks at how it can ensure that the responses it provides to enquiries are clear and consistent and that they have been properly understood by the recipient. Had Mr J been told at the outset that he was responsible for the canal bank and that the Trust was unable to respond to individual requests to remove litter he may not have felt compelled to pursue the matter for so long.
1263- a complaint about the changes to the Trust towpath mowing regime.
Mr G complains that the Trust’s decision to change its mowing regime is having a detrimental impact on him as a boater. Leaving the towpath uncut in areas outside designated visitor moorings and areas of high footfall, which are still used by boaters and others is affecting his enjoyment of the waterways. He says that there are areas of canal side growth of up to 6 foot, which means that mooring up and getting on and off his boat is difficult and at times dangerous. He explains that it is difficult to see the pilings to secure his boat, holes in the towpath cannot be seen, his view of the towpath or his boat are obscured. He says that the result will be that vegetation will get into the canal edge and start to damage the structure, silt will build up resulting in the need for more dredging and overhanging trees will increase as trees embed and grow into the canal bank.
Mr G accepts that it is reasonable not to cut the full length of the canals, but says it is not fair to leave moorings that people use. He also appreciates the need to increase biodiversity but says canals are man-made structures designed for navigation. He says canals have their own character and are not naturally a wild environment and the Trust should take this into account.
The Trust explained it has taken the decision to change the mowing regime, which had been in place since 2007, following a trail which it describes as successful. It maintains the regime has never been to maintain the entire towpath network and in many areas the regime is unchanged. It has provided figures which show that the percentage of the network where a fringe is left is now 57% compared with just 18% in 2018. The Trust sees this as a success in terms of increasing biodiversity with its associated benefits.
Based on the information provided I am satisfied there is sufficient scope in the Trust policy to ensure there are spaces for continuous cruisers to safely moor and the change to the mowing regime should not unfairly disadvantage them. The change to the mowing regime reduces the annual cuts from 5 to 4. Eliminating the August cut should have little effect as the grass often does not grow much then. The Trust will firstly aim to allow for a 1.5 metre width of towpath and ensure the fringe is no wider than 1 metre, something which was not in the old regime. The annual full width cut has been bought forward to begin in September/October and part of this requires that any woody vegetation is cut back and the canal bank is checked for saplings, which are removed and hedges cut back. This should help to protect the canal bank
The Trust has provided details of its new mowing regime, explained the changes made and the reasons for the changes and why it does not agree that a risk assessment is necessary for all locations or in respect of the policy. Mr G does not agree with the responses and sees the actions as impacting on boaters’ enjoyment of and safety on the waterways. I can confirm that the new regime was implemented following a trial and consultation and there will be a review after a year, this is in line with process. The Trust has provided its reasons why it does not consider that a risk assessment was required, I am satisfied they are in line with process and there is no evidence of any maladministration.
Mr G is adamant that the change in regime is much greater than the Trust says and that strimming to the canal edge was more common than it says. The figures do demonstrate the change is substantial and it maybe that some locations previously did more than others and they may have been areas which Mr G travelled to. As issues with the contractors are resolved, the new specifications are fully adhered to and the requests of local managers are included, I hope that Mr G and other boaters will be able to appreciate the benefits of the increased biodiversity which the Trust is seeking to achieve. To conclude, I did not uphold Mr G’s complaint and I required no action from the Trust.
Case 1246 – a complaint about the refusal to grant an end of garden mooring.
Mr and Mrs F purchased a property believing it had the benefit of an end of garden mooring. They applied for the licence for a boat which they jointly owned with a friend. The Trust refused the licence as it failed to meet the requirements as the applicant was not the landowner and could not provide evidence of their ownership extending to the water’s edge.
Mrs F said the Trust had been inconsistent in its responses and treated them differently from their neighbours in refusing the licence. There were some delays in the Trust reaching their decision and perceived inconsistencies in replies. The restrictions imposed because of National Lockdowns and furloughed staff added to the delays.
The matter was further complicated when one of the boat owners took up residence on the boat to isolate himself because of the pandemic. Mr and Mrs F believed this to be the reason for the licence refusal and argued it was a Local Authority planning matter and not something the Trust should be deciding on. However, it was simply that the application did not meet the criteria of the Trust’s On Line Mooring Policy, which has no right of appeal. I was satisfied the policy is clear, that to grant permission the land adjacent to the canal has to be owed by the applicant. Mrs F used the complaints process to challenge the decision but provided no evidence to substantiate her claim that she had been treated unfairly. I was satisfied that the decision is in line with Trust policy.
Once the application had been refused there was an expectation from the Trust that the boat adhere to the licence conditions of a boat without a home mooring, that is to continually cruise. The boat did not move and therefore the Trust began enforcement action. This process took longer than usual because of the time taken to consider the application, national lockdowns and the ill health of the local support officer
I did not uphold the complaint that Mr and Mr F were treated unfairly. There were some inconsistencies in the reasons provided for the refusal of the mooring and Mrs F was under the mistaken belief that the occupancy of the boat was the problem when it was simply the location. However, as she had benefitted from using the mooring, without having permission to remain in situ, I did not require any further action by the Trust. If Mr and Mrs F and their friend wish to retain their boat without a home mooring they will be required to adhere to the rules of continuous cruising and there will be an expectation that the boat is not moored at the property for any length of time.
Case 1241 – a complaint about the use of the towpath by fishermen and the Trust’s reaction when the issue was raised.
A complaint by Ms C on behalf of her parents whose garden backs onto the canal towpath. They were unhappy that the Trust had granted fishing rights to a fishing club along the stretch of canal, complaining that the fishermen were rude, untidy, disrespectful and upsetting the residents. Ms C said the local residents had always kept the towpath in good condition, mowing the grass and planting to make it attractive for all towpath users. Some residents claimed that part of the towpath actually belonged to them and not the Trust. Following the complaints, the Trust visited the site and decided that it was not appropriate, safe or acceptable for the residents to be cutting the grass etc. The Trust wrote to the residents saying that the Trust would include the area in its mowing regime, that plants must be removed and that it would work with the fishing club to improve behaviour and positioning of fishing pegs.
I concluded that the Trust had demonstrated that it owns the land, it has followed its policy to promote and provide one of its core activities, angling and it has taken a decision, based on a health and safety risk assessment that the residents should not be undertaking any work on the path. The Trust explained this is because there are so many inherent risks to undertaking an activity so close to the water’s edge and in an open public environment where other activities may be taking place with members of the general public in close proximity. The Trust could not knowingly permit the situation to continue on its land and not requesting the residents to desist from cutting the grass would imply the Trust consent or authority had been granted when it had not. I considered this to be a very reasonable argument and I did not uphold the complaint.
Case 1232 – a complaint about the overstaying boats and their burning of waste construction wood creating toxic smoke.
Mr D complained about the problems caused by overstaying boats, burning waste construction wood which creates highly toxic smoke. Mr D said the smoke regularly filled his home and many others in the neighbourhood. Mr D believed the ongoing burning practices in very close proximity to people’s homes constitute an emission of smoke prejudicial to health under the Environmental Protection Act 1990. He argued it was within the Trust’s power to substantially mitigate this threat, while accepting they lack formal statutory powers regarding smoke nuisance. Mr D said the Trust could, for example, prohibit certain burning practices as part of their licence conditions, and update their signage to reflect this. Mr D claimed the Trust’s failure to take further measures is negligent and was creating a significant health risk to local residents, especially the many small children who live in the area. He wanted overstaying boats moved on, some of the moorings moved and the Trust to ensure it educates users on the dangers of toxic smoke.
The Trust explained that it has no legal enforcement powers in relation to smoke nuisance, they lay with the Local Authority (LA). It says it is committed to working with the LA and boaters to highlight the dangers of burning fuels which produce smoke and toxic fumes for the boater and residents alike. The upcoming introduction of smoke control areas by LAs will see more emphasis placed on this issue and make enforcement easier for the LAs. The Trust did not agree to a change to its licence conditions to include the banning of burning the wrong fuel type.
I concluded its argument that it has no power to enforce it is a valid one and, in many cases, it could be viewed as a disproportionately strong response for a boater seeking to heat their home in the cheapest way possible. The Trust says it is committed to increasing its educational programme about the dangers of the practise and working with LAs to improve signage in locations designated smoke control areas.
I recommended that the Trust uses the information gathered by its boat sightings to review how the mooring in this area is used to allow consideration to be given to the possibility of moving or removing the moorings closest to the apartment blocks. I also recommended that the Trust strengthens its message to boaters that the use of fuels which cause excessive and potentially toxic smoke is harmful to themselves and others and the Trust can use the general nuisance condition of the licence to take action. Finally, I recommended that the Trust should continue with its commitment to increase its educational programme about the dangers of burning the wrong type of fuels and working with LAs when new smoke control areas are created to improve awareness and signage in those locations. I suggested inclusion in one of its Boaters’ updates and in any direct communication with a boater where this issue has been specifically complained about.
Case 1243- a complaint from residents of a canal side property that the canal wall was leaking into their underground garage.
Mrs E raised the complaint on behalf of the residents of an Apartment block. She explained that the residents had first approached the Trust in 2016/17 to alert it to the seepage. The residents believed the Trust was responsible for the damage this was causing because it was not maintaining the canal wall sufficiently. Mrs E complained that there was maladministration by the Trust in the way it had dealt with their complaint. The Trust had accepted the delays in responding have been well below the expected standard and in 2020 advised the residents to contact the loss adjustors if they wished to pursue a claim for damages.
The investigation concentrated on how the matter had been handled as the residents believed the way this case was handled by the Trust had made the actual issue considerably worse and far more stressful than it needed to be.
I concluded that the Trust was correct to refer the residents to its Loss Adjustors with allegation that it was responsible for the water ingress at the property and that the Trust had not dealt with the correspondence and contacts in a timely and efficient way. This had extended the time to provide the residents with a definitive response that it is not responsible for the water ingress and will not be taking any action to stop it. The Trust maintained that it did provide the residents with such advice, but the continued contacts from the residents should have alerted it to the failures in its messaging. To recognise the stress and inconvenience caused to the residents in having to make repeated requests for information and contact over a period of years I recommended a goodwill gesture to recognise the time and trouble involved.