RYA publishes legal advice after EA appoints District Enforcement to manage its visitor moorings

Following its decision to award District Enforcement the contract for managing its visitor moorings on the Thames in September 2020, the Environment Agency (EA) made a last minute request for comment on the proposed signs to the national boating organisations represented on the Thames Navigation Users Forum (the NBTA does not have a seat at this forum).

The National Association of Boat Owners (NABO), The Barge Association (DBA) and the Residential Boat Owners Association (RBOA) jointly published their comments on the proposed signage at the EA’s Thames short term mooring sites, while the Royal Yachting Association (RYA) published its Legal Advisor’s opinion on the signs. The legal opinion should be helpful if you are served with the typical unlawful mooring charge notices of £100 or more per day and need to challenge District Enforcement’s activities.

For example, Reading County Court struck out a claim by District Enforcement in 2019 to evict boats from moorings in Reading. The Court found that District Enforcement had no locus to seek possession of land upstream of Kennet Mouth at a hearing on 1st May 2019. The company had failed to provide adequate evidence that its contract with the Council entitled it to seek possession of the land. The company is contracted by Reading Borough Council to enforce £100 per day mooring charges on Council-owned land on the Thames.

This is the wording of the draft notice by District Enforcement:

District Enforcement has the right to exercise a general lien upon any vessel and/or other property of the vessel owner, whilst in or on this site, until any money due to District Enforcement in respect of mooring fees, storage or other charges or otherwise shall be paid. Mooring/Storage Charges will continue to apply during this time. District Enforcement may exercise their lien at any time and any lien shall extend to cover the cost of recovering any sums due and for that purpose District Enforcement shall have the right to sell the goods by public auction or private treaty without notice to the owner.

District Enforcement Limited is likely to take debt recovery action (including court action) that will incur further costs (legal and other).  Such costs will be added to the charge and are payable on an indemnity basis.

Privacy Notice – Camera equipment is in use on this site to record mooring activity and we may obtain your personal data, namely details/images of your vessel and/or you, as part of our management of the site.

 

The three boating organisations’ comments are as follows:

“Thank you for a last minute opportunity to comment on the intended signage and the conditions attached to the contract that you have let to District Enforcement. We, the undersigned, represent three National Boating organisations whose members use the Thames and are represented on the Thames Navigation Users Forum.

We are disappointed by the aggressive and unwelcoming approach indicated by this signage. Users had been given to understand that the intent was to achieve effective management of short term moorings and not a modified car parking scheme designed to deter anyone from mooring.

It would seem that the advice you have been given by District Enforcement may have misled you. We have taken legal advice with the assistance of the Royal Yachting Association and their lawyer’s comments follow below.

Section 136 of the Thames Conservancy Act 1932 as amended by section 23 of the Thames Conservancy Act 1972 reads:

“The Conservators may from time to time demand and receive in respect of vessels using any of the moorings in the Thames belonging to the Conservators the charges appointed by the Conservators from time to time save that no charge shall be made for vessels tied up or moored at night or for a reasonable time when not at work unless the traffic of the Thames is thereby impeded”.

In recent years, by custom and practice, a reasonable time has been taken to be 24 hours. There is no requirement to report arrival or departure.

It would seem from the example signage that your new arrangement exceeds these powers significantly. While the 24 hour free mooring continues there is now a requirement to register on your agent’s website or by telephone. Registration attempts to bring with it a contract between the boat owner and District Enforcement to pay fees, including punitive fees for any errors, apparently set and demanded by them, and tries to give them a lien on the vessel should we default. This is beyond any powers that EA currently has under the TCAs or IWO 2010 for moorings as explained in more detail below

There is no clear appeal procedure and no reference to Waterways Thames who are the Navigation Authority and successors to the Thames Conservators. This contract should be suspended and not introduced without further consultation with users and legal advisers on its legality, unfair terms, and intent. We look forward to your proposals for taking this issue forward.”

The RYA Legal Advisor’s opinion is:

“1. The Agency has no power to require a person who moors his or her boat alongside a public facility provided by the Agency to enter into a contract, licence or other arrangement with District Enforcement Ltd (“DEL”). That person’s relationship should be directly with the Agency. Consequently, DEL cannot unilaterally impose any terms and conditions on the use of the mooring facilities provided by the Agency.

2. The relationship between the Agency and the owner of a moored boat is not that of licensor and licensee. The owner of a boat does not need a licence to moor his or her boat temporarily at a public facility on the river – he or she has a right to moor the boat (for a reasonable period of time) subject to the Agency’s power to levy a charge. DEL cannot, therefore, legitimately assert that the mooring of a boat is subject to the licence conditions set out in the proposed signage.

3. Any mooring charge levied by the Agency under article 23 of the [Environment Agency Inland Waterways] 2010 Order is recoverable only as a civil debt – a person who does not pay a mooring charge in respect of a boat does not commit an offence under article 18 of the 2010 Order. There is consequently scope for that person to dispute the amount of that charge and/or that the charge is due at all. It is incumbent on the Agency to demonstrate that the charge is due and the amount of the charge (i.e. when the boat arrived and when it left). A boat-owner’s failure to register a boat on arrival cannot, of itself, be used by the Agency (or DEL) as the basis for imposing a higher charge.

4. An unpaid mooring charge levied by the Agency does not amount to a debt owed to DEL.

5. Neither the Agency nor DEL may exert a “general lien” over a boat for unpaid mooring charges. The exercise of a “general lien” over property is conditional on the person exercising it being in possession of the property – a “general lien” cannot, for example, be exercised over property in the owner’s possession or in a public place. A boat moored alongside a public facility provided by the Agency would not thereby be in the Agency’s or DEL’s possession.

6. Given that litigation is a reserved legal activity under the Legal Services Act 2007, it is unclear as to by what authority DEL could conduct debt-recovery litigation on behalf of the Agency.

7. DEL may be in some difficulty under the Data Protection Act 2018 if it were to install cameras on a public facility on the strength of the proposed signage alone.

8. DEL cannot use the proposed signage unilaterally to impose an indemnity obligation on the master of a boat moored at a public facility provided by the Agency.

In short, a boat moored alongside a public facility provided by the Agency is in a fundamentally different position from that of a car parked on someone else’s private land. Nevertheless, DEL appears to be under the misapprehension that it may approach mooring charge enforcement on behalf of the Agency in the same way that it approaches car parking enforcement on behalf of private land-owners.”

 

Danylo Kurpil, one of the two directors of District Enforcement, was until January 2019 also a director of the recently wound up organisation River Thames Alliance Ltd (RTA). A number of local authorities and other organisations with land on the Thames, some of whom were RTA members, contracted District Enforcement to carry out mooring enforcement.

The directors of the RTA agreed in December 2019 to cease trading and wind up the company. This followed the AGM in October, which set up an independent Review Task Group to consider the objectives, management and governance of the company and to decide the future of the Alliance. This Group concluded that it was necessary to close the RTA down.

Many RTA members, such as local authorities, had expressed concern at the lack of transparency in the RTA’s Memorandum and Articles. and were especially concerned about the process for director election and the role of directors. Following pressure from members it had been agreed at the 2016 AGM that the directors would go away and revise this and other governance issues. It became clear at a General Meeting of the RTA on 19th April 2018 that the revision had not been carried out. Many members had left the RTA, causing it to become unviable financially.

The RTA was opposed to the interests of itinerant liveaboard boaters on the Thames; it believed that Bargee Travellers should live on permanent moorings off the main line of the waterway as a “solution to unlawful on-line residential moorings” and refers to “the whole problem of itinerant moorers”. The RTA was instrumental in setting up the All Party Parliamentary Group for the River Thames, a cross-party group of MPs with constituencies on the Thames, whose concerns include “addressing illegal moorings”.

See also

http://www.bargee-traveller.org.uk/district-enforcement-the-emperor-has-no-clothes/

http://www.bargee-traveller.org.uk/river-thames-alliance-in-disarray-after-district-enforcement-chief-appointed-to-board/

http://www.bargee-traveller.org.uk/public-meeting-district-enforcement-activities-in-reading-21st-may/

https://www.nabo.org.uk/index.php/reference/other/1077-response-to-thames-moorings-management-proposed-signage