Breakthrough for NABO
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IT WAS the narrowboatworld article, Ultra Vires, some three months ago that alerted the public to the significance of the British Waterways vs Davies case (a continuous cruiser that moved very little).
At the time, it was thought that judgement was imminent but although an interim judgement was issued, full judgement was only made a couple of days ago, as we published, writes Allan Richards.
Bearing in mind how quickly we forget, it is worth reiterating what has taken place.
The NABO complaint
In 2009 the National Association of Boat Owners (NABO) made a formal complaint to British Waterways about a number of long standing legal issues. However, silence followed due to British Waterways asking NABO not to publish the expert legal opinion it had received pending resolution of the complaint. It took over a year for details to begin to emerge.
The complaint concerned various Acts of Parliament and British Waterways' powers under those acts. It was only undertaken after NABO took costly expert legal advice and the normal channels of communication between a national user group and British Waterways were exhausted.
Generalised reply
Following a reply to the complaint, NABO met with British Waterways directors in Watford a year ago. At the meeting, British Waterways suggested that NABO had not given the legal basis for its complaint which had led to a generalised reply. Accordingly, NABO wrote twice to British Waterways providing extracts from its legal advice. Although British Waterways replied to the first letter, it sadly failed to even acknowledge receipt of the second.
It would appear that British Waterways had considerable difficulty answering the complaint!
Test case
However, pressure from NABO for British Waterways to obtain a ruling in court clarifying the legality or otherwise of at least, some of its actions was successful. Its directors indicated, in July 2010, that they wished to await the outcome of a relevant test court case before further engagement with NABO.
That case was, of course, British Waterways vs Davies.
British Waterways 1995 Act
The law (British Waterways Act 1995) gives it the power to refuse to licence a boat which does not have a home mooring if the licence applicant fails to satisfy the board 'that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances'.
It is a terrible indictment of British Waterways that, in the 15 years the act has been in force, they have only taken a small handful of 'continuous moorers' to court!
Even when cases have come to court, legal aid is often unavailable, and some cases have been undefended.
In effect, this means that, in 15 years, British Waterways' licensing Terms and Conditions and, in particular, its continuous cruising guidance has never been tested.
Other Acts
An added complication is that the 1995 Act only allows British Waterways to refuse a licence. Therefore, British Waterways has to refuse and then bring a prosecution for not having a licence under the British Waterways 1983 Act section 8 and British Waterways 1971 Act section 13. This is what is understood to have happened in the Davies case.
As stated earlier, this prosecution was something of a test case for British Waterways.
Case outcome
Part of NABO's complaint was that British Waterways 'may not legally deny or withhold a licence if a boater breaches the continuous cruiser guidelines which do not have the force of law but are stated as a requirement in the Terms and Conditions'.
Another part of its complaint states 'British Waterways does not have general powers to interpret the law and specifically not in the case of the British Waterways Act 1995 s 17 (c) (ii) to define mooring.
Time will confirm
Whilst time will confirm, it seems probable that this is now accepted. British Waterways press release says he had 'not complied with the requirements of the 1995 Act' rather than he had breached British Waterways Terms and Conditions or not complied with guidance.
Indeed, further on, British Waterways' press release confirms that as a result of the judgement it is changing its Licensing Terms and Conditions.
Perhaps, British Waterways will now uphold these two parts of NABO's complaint.
Paul Davies
British Waterways' press release states that Davies has three months to remove his boat from its waters. However, whilst Davies concedes that the prosecution under section 8 of the 1983 Act was successful, he maintains that British Waterways' request that the boat be removed within 28 days was turned down with the judgement stating three months to remove and liberty to remedy the default.
The default could be remedied by cruising further or obtaining a 'home mooring', both of which would allow him to comply with the 1995 Act. Alternatively he could sell his boat.
Davies adds that he is minded to comply rather than appealing the decision, but is concerned that doing so might put his job and home at risk.