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2022-2023 case summaries

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

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.