Dirty tricks uncloaked

MANY readers will no doubt have followed the case in narrowboatworld of Nigel Moore versus British Waterways Board/Canal & River Trust, that ended in victory for Nigel against unbelievable opposition.

But with the recent publication of a Planning Inspectorate (PINS) decision, details of CaRT's further, behind-the-scenes machinations involving the  case, can be considered no longer sub-judice, so Nigel Moore has detailed the sorry tale.

Arbitration declined

Prior to last year's Appeal Court hearing in the case of Nigel Moore v British Waterways Board, Lord Justice Mummery had urged the parties to consider resolving their issues through arbitration instead. CaRT agreed to the suggestion readily, while declining to divulge to the appellant any suggestion as to how he might benefit from such a procedure.

In the end, Mr Moore wrote to the Appeal Court refusing arbitration. In preparing his final ‘bundle' of relevant documentation he included, by way of explanation for his decision, the correspondence surrounding British Waterways' [and then CaRT's] intervention with his local Council. As he had written to British Waterways/CaRT's Claire McLean: "I have noted to the Appeal Court that it would be impossible for me to trust in your sincerity at reaching an acceptable accommodation while you were simultaneously seeking to gain your ends by the ‘back door'."

Lawful Use Certificate

What Mr Moore had done following the Hildyard judgment in February 2012, was to apply to the London Borough of Hounslow for a 'Lawful Use Certificate' for the mooring of his boats at Brentford. This, he felt (while on his main argument it was unnecessary), would provide unanswerable evidence for a source of 'lawful authority' such as Mr Justice Hildyard had deemed necessary to counter a Section 8 Notice.

All such applications are, of course, referred to the waterways authority as statutory consultees, and British Waterways immediately recognised the effect such a certificate would have on the Appeal Court, even if Mr Justice Hildyard's judgment was upheld in principle.

Consequently the British Waterways planning department's Ms McLean wrote a three page letter to the case officer, citing the Hildyard finding that Mr Moore's boat ‘Gilgie' was unlawfully moored and had been ordered off British Waterways' waterways.

Outrageously

Accompanying that formal response, she emailed saying: "We would also really like to meet with you to go through the history of the site and the large amount of information submitted as part of the application. Our lawyer has been dealing with the applicant for many years, and it would be useful for you to understand the background of the site . . ." More outrageously, her formal response had included the strange request that her comments 'be treated sensitively'.

Throughout the ensuing months of telephone chats and emails between the planning and legal officers of both Hounslow and British Waterways, this plea for sensitivity was honoured; the legal and planning departments at Hounslow Council refusing to divulge the content of any of British Waterways/CaRT's submissions until after the inevitable Refusal of the application.

CaRT intervened effectively

Having subsequently goaded the legal department into first producing the British Waterways submissions, and then having a face-to-face meeting with Council officers, Mr Moore prepared a second and simpler application, requiring no evidence of use at all. Once again, however, CaRT intervened effectively (and again, were treated 'sensitively' with no disclosure made), and protracted processes were claimed to be unavoidable—so that the date for production of the Certificate in time for the Royal Courts of Justice Appeal came and went, and Mr Moore consequently withdrew that second application.

An appeal to the Planning Inspectorate having already been lodged, Mr Moore wrote to Ms McLean urging her to disclose the one pertinent item of information British Waterways/CaRT possessed that was material to the issues at stake—confirmation that at all material times they had continuously issued boat licences to boats at the appeal site on the basis that it was an approved home mooring as defined by the 1995 Act, s.17(3)(c)(i). Disclosure of that single, central material fact could have obviated disposal of the PINS appeal by Public Inquiry, and would have allowed the Inspectorate to make a Decision purely on the paperwork.

Refused request

Ms Mclean refused to do as requested, claiming: "your comments do not appear to directly relate to planning and the certificate of lawfulness application, and I therefore have nothing further to add."

This provoked Mr Moore to email back in early December 2012 accusing her of of prevaricating. He wrote: "No one could possibly now doubt your credentials as a British Waterways employee—you have demonstrated that in this, you are the equal of the top echelon of the British Waterways executive." Following protest from Ms McLean's bosses at this violation of their Unacceptable Behaviour Policy, Mr Moore wrote to justify his terminology as being lifted (less adjectives) straight out of the Fraud Act 2006, specifically section 3. He did, however, apologise unreservedly for equating Ms McLean with the CaRT chairman and executive.

Gone even further

It later transpired that Ms McLean had issued a third set of submissions, directly to the Planning Inspectorate, including a copy of her (also previously undisclosed) second submission to the Council, which had gone even further than the first submissions, in claiming to believe that all three boats at the site were 'used for residential purposes' and suggesting that the Council ought to "consider whether an alleged breach of planning control may have occurred that should be remedied by enforcement action." It would seem that they were unsure even then, that the Appeal Court judges were going to see things their way, and were hoping for a back-up solution to their ‘problem'.

PINS Decision

The Planning Inspectorate took remarkably little time over disposing of the case following the day's hearing and site visits. In the Decision emailed out on the 20th of this month, the Secretary of State's Inspector Sara Morgan noted the objections of the 'Canal & River Trust, which has inherited the function of the British Waterways Board', but correctly decided that 'it is clear from the evidence that the two licensed boats were moored at the appeal site at the time of the application so that the use for mooring in the terms of the agreed wording was in existence at the time of the application, and it had become lawful well before then'.

So CaRT's second level, behind the scenes attack against Mr Moore has now failed also. Perhaps we should be grateful that they played this one on the cheap and preferred not to show up in person as an interested party in the Inquiry, letting the Council pick up most of the tab. It will still have cost CaRT time and money though, and we can only look on with interest to see what other avenues against Mr Moore they will choose to spend our charity funds on.

http://www.pcs.planningportal.gov.uk/pcsportal/ViewCase.asp?caseid=2185692&coid=2118020

[All 14 of the previous articles concerning this case can be found by entering 'Nigel Moore' in our 'Search' facility.]