Boaters without home moorings on the Canal & River Trust’s (CRT) southern Grand Union Canal are being offered Roving Mooring Permits by the navigation authority. Boaters are being offered a way out of the enforcement process that means paying a substantial extra fee (£800 per year for a 60 foot boat) to do what s.17(3)(c)(ii) of the British Waterways Act 1995 already permits them to do. This is tantamount to demanding money with menaces.
CRT cannot lawfully create a ‘Roving Mooring Permit’. If it did so, it would be creating a third licensing category in between the two that were created by the British Waterways Act 1995. 17(3)(c) of the 1995 Act created two licence categories: (i) with a home mooring and (ii) without a home mooring. To create a third category would require change in the law, in other words an amendment to s.17(3)(c) of the British Waterways Act 1995. CRT would be acting beyond its legal powers if it created a Roving Mooring Permit without such a change in the law. CRT maintains that the Roving Mooring Permit is a type of home mooring, not a new category of licence, but this is not borne out by the facts. It does not provide a place where the boat “can reasonably be kept and may lawfully be left” as is required by s.17(3)(c)(i) of the 1995 Act, because the Roving Mooring Permit requires boats to move every 14 days or 28 days between several places and does not provide any additional service or facility to the purchaser of the permit.
s.17(3)(c)(ii) of theBritish Waterways Act 1995 states that:
the applicant for the relevant consent satisfies 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.
s.17(3)(c)(ii) does not specify a minimum distance that a boat must travel in order to comply with the requirement to be used bona fide for navigation. The intended test for compliance, which is stated in s.17(3)(c)(ii) above, is that the boat must not have remained continuously in any one place for more than 14 days, unless it is reasonable in the circumstances to stay longer. There is no authority in the 1995 Act for CRT to decide that a boat that has travelled less than a certain distance has not complied with s.17(3)(c)(ii).
There is also nothing in s.17(3)(c)(ii) regarding a time limit before which a boat is prohibited from returning to a place. A no-return-within time limit of one calendar year for boats without a home mooring was proposed by the House of Lords Select Committee in July 1991 in an amendment to the original Bill that became the 1995 British Waterways Act. This was in response to BW’s original Bill that sought to prohibit any boat from being on the waterways unless it had a home mooring, with criminal penalties at the highest level for anyone caught living on their boat without a Houseboat Certificate and a residential mooring. However when the House of Commons Select Committee made further amendments in 1994, it rejected the no-return-within limit and agreed the wording of s.17(3)(c)(ii) as above.
Therefore, there is nothing in the 1995 Act prohibiting boats licensed under s.17(3)(c)(ii) from remaining within a small geographic area that is bigger than one place, provided that they pass the test of not remaining continuously for more than 14 days in any one place.
The Court of Appeal judgement Moore v British Waterways [2013] EWCA Civ 73 (paragraph 38) confirms the fundamental principle of English law that England is not a country where everything is forbidden except what is expressly permitted, it is a country where everything is permitted except what is expressly forbidden. This is a Court of Appeal judgement and so it is a binding precedent. It establishes that an action is not unlawful just because CRT does not give permission for it. In other words CRT cannot substitute its consent for law.
It is not expressly forbidden for a boat without a home mooring to remain within a small geographic area. What is expressly forbidden is for a boat without a home mooring to remain continuously in any one place for more than 14 days unless it is reasonable in the circumstances for the boat to stay longer.
The Moore v British Waterways [2013] judgement also confirms that s.43(3) of the 1962 Transport Act cannot be used to impose terms and conditions that modify the effect of s.17(3)(c)(ii) such as a requirement for a boater without a home mooring to travel a minimum distance to avoid the enforcement process. The purpose of s.43(3) was to harmonise the different charging regimes that existed on different waterways up to the creation of the British Waterways Board in 1962. In Moore v British Waterways [2013] CRT/ BW was not able to rely on s.43(3) to create from nothing a condition that Mr Moore’s required BW’s permission to moor his boats. Therefore CRT cannot use s.43(3) to stipulate additional movement requirements for boats without home moorings that are not already contained within s.17(3)(c)(ii). Despite being the statutory authority, and regardless of s.43(3) of the 1962 Act, CRT cannot claim for its ‘regulations’ and ‘terms and conditions’ the status of law. Accordingly, s.43(3) does not in fact give CRT the powers it claims that it gives.
It appears that Roving Mooring Permits have already caused divisions both amongst continuous cruisers and also between boaters with home moorings and boaters without home moorings. This is an additional reason to reject them, in the interests of harmony between boaters.