Oxford City Council has been secretly developing a Public Space Protection Order which will criminalise mooring and other behaviour on waterways in the city with £1,000 penalties for anyone caught mooring anywhere without the permission of the land owner.
The Council is about to put this to ‘consultation’ though certain anti-boater Councillors have been quoted in the local press speaking as if the Order is a done deal. Please come to the Scrutiny Committee tomorrow, Monday 7th March 2016 at 6.15pm in St Aldate’s Room, Oxford Town Hall. The deadline for applying to speak at the meeting was Friday morning but we are trying to get as many boat dwellers to attend as possible to show our opposition to these appalling proposals.
The Council has actively excluded boat dwellers from this process; since it set up the equally secretive Unlawfully Moored Boats Enforcement Group (UMBEG) in 2010 it has acted in aggressive opposition to boat dwellers in Oxford and introduced increasingly draconian mooring restrictions.
The Council does not have the legal power to implement the Order, because it interferes with the Public Right of Navigation, which according to the Thames Conservancy Act 1932, includes the right to moor for a reasonable time on riverside land. The Public Right of Navigation dates from Time Immemorial and was first codified in the Magna Carta of 1215. The right to moor on private land was further confirmed in Halsbury’s Rules for Judges and in case law.
The Agenda and draft PSPO are on the Council’s web site here http://mycouncil.oxford.gov.uk/ieListDocuments.aspx?CId=355&MId=3546&Ver=4
These Councillors are on the Scrutiny Committee, you may wish to write to them:
Councillor Craig Simmons firstname.lastname@example.org Green
Councillor Tom Hayes email@example.com Lab
Councillor Van Coulter firstname.lastname@example.org Lab
Councillor Roy Darke email@example.com Lab
Councillor James Fry firstname.lastname@example.org Lab
Councillor Andrew Gant email@example.com Lib Dem
Councillor Sam Hollick firstname.lastname@example.org Green
Councillor David Henwood email@example.com Lab
Councillor Ben Lloyd-Shogbesan firstname.lastname@example.org Lab
Councillor Linda Smith email@example.com Lab
Councillor Sian Taylor firstname.lastname@example.org Lab
Councillor Jennifer Pegg email@example.com Lab
Councillor Colin Cook firstname.lastname@example.org Lab
Councillor Michael Gotch email@example.com Lib Dem
Councillor David Thomas firstname.lastname@example.org Lab
The Officer responsible for the PSPO is Richard Adams, Community Safety Service Manager, email@example.com Tel 01865 252283.
Below is the letter from the NBTA to the Scrutiny Committee:
I am writing to you in your capacity as members of the Scrutiny Committee.
The NBTA understands that the Scrutiny Committee is meeting on 7th March 2016 18:15 in St Aldate’s Room, Town Hall. I understand that Item 5 on the agenda of the meeting is entitled “Waterways Public Space Protection Order: pre-consultation” (the “PSPO Draft”)
I understand that my colleague served a FoI requisition on the Authority on 25th November 2015 here:
The response from the Council does not identify the PSPO Draft. The NBTA knows that the PSPO Draft existed on 25th November 2015. A review of this requisition has now been also requisitioned.
What is relevant is the covert nature by which the PSPO Draft has been developed. What is also relevant is the way that this has been done in opposition to the boaters in Oxford as opposed to engagement with this community.
I have reviewed the support documents contained in the information pack made available to the Committee.
I observe as follows:
A RESPECT FOR HOME
The PSPO Draft in no way embraces the implications of Art 8 ECHR. There is no evidence of a compliance review. The NBTA has considerable experience of the impact that draconian policy has on the Convention rights under Art 8 ECHR of itinerant live aboard boaters. In the defence of certain matters, full-scope proportionality assessments have demonstrated that the policy from which each action was bought has been violating of Art 8 ECHR.
The Equality Impact Assessment considers that the PSPO Draft will not have a differential impact on race, age or pregnancy. The case work that the NBTA has completed demonstrates that Irish Travellers are not infrequently boaters; boaters are regularly elder people with significant health-related difficulties; younger female boaters are frequently pregnant or are caring for infants under 6 months of age. These are all protected characteristics for which we have secured Reasonable Adjustments. It is untrue to say, therefore, that these designations are not impacted. In turn this suggests that the Officer responsible for this draft policy has not sought sufficient advice on the conducting of an EIA. It is also important to note that in the case of CRT the Equality and Human Rights Commission has intervened because of the non-compliance of CRT in this respect.
Upon review of the evidence made available I see no clear connection between mooring by itinerant live-aboards and the antisocial behaviour complained of. I do however see echoes of anti-live-aboard prejudice.
What I am aware of from NBTA casework is that some of the behaviour alleged is actually mitigated by the presence of live-aboard boaters. I will expand on this in the consultation submission that the NBTA will prepare when the consultation is under way.
I also see, in the evidence, reference to anti-social behaviour that obviously comes from a demographic that is plainly not that of live-aboard.
I also observe that some of what is described as “anti-social” behaviour is in fact nothing of the kind but is the normal and necessary activity of a boat-dweller and, significantly, protected in law. The conclusion is that the complainants are objecting to something to which thy have no right of complaint. If they object clearly they can lobby their MP but in balancing the respective interests this is a matter resolved through negotiation not law.
I am also acutely aware that UMBEG, which has no legal standing, was the brainchild of a small number of highly opinionated (and acutely anti-live-aboard) councillors and British Waterways (specifically Sally Ash who subsequently left BW and has since been discredited). We note that the apparent policy of CRT is to cleanse the jurisdiction of itinerant live-aboards. Therefore the underpinning political objective of UMBEG can be considered to be none other than draconian and lacking in balance.
I therefore regard the “evidence” as highly subjective and thus undermined.
D JURISDICTION OF THE CANAL & RIVER TRUST
I note that the PSPO Draft will seek to circumvent primary legislation s.17(3)(c)(ii) British Waterways Act 1995). The Council has no authority to do this and would thus be acting ultra vires in seeking to do so.
E JURISDICTION OF THE EA.
I note that the PSPO Draft will seek to circumvent primary legislation (s.79 Thames Conservancy Act 1932). The Council has no authority to do this and would thus be acting ultra vires in seeking to do so.
F RIPARIAN OWNERSHIP
In relation to land owned by a riparian, notwithstanding s.79 TCA 32 a navigator is entitled by virtue of the Public Right of Navigation to moor ancillary to navigation (there is copious case law surrounding this principle). The PSPO Draft seeks to circumvent these authorities and could thus be successfully challenged. Knowing this, the Council would be acting ultra vires in seeking so to promulgate the PSPO Draft.
I note that the Council has scheduled a consultation phase between 21st March 2016 and 6th May 2016. I note that itinerant boaters who would be affected by PSPO Draft will be specifically and individually consulted as is the obligation on the Council so to do within the Scope of the Guidance on Consultations from the Cabinet Office.
What is noticeable however is an absence on the part of the Council of seeking to engage with the boaters before this time to assess their needs, embrace the boaters as part of the community and as a general principle seek to be inclusive. No attempt has been made to devise a plan to regularise moorings suitable for itinerant boaters within the jurisdiction. I note that s.225 HA 2004 is binding on the Authority in this regard
I am aware from the work of UMBEG and the attempts of boaters to attend UMBEG meetings that the exact opposite has been taking place. I have first hand experience from the actions of Oxford City towards me personally when I was moored in Oxford in 2010. I also have extensive reports through NBTA casework involving boaters living in Oxford of this behaviour being persistent.
There is no evaluation of how to work with boaters in addressing anti-social behaviour either perpetrated by boaters or other demographics.
The role of consultation is to inform the policy developer of the public and legal acceptability of such a policy, specifically as to whether it meets but does not exceed the essential objective it sets out to address. I note that the closing date of the consultation is 6th May 2016. I note that the Executive Board will meet to promulgate the PSPO Draft on 16th June 2016, the PSPO Draft having been previously reviewed by the Scrutiny Committee on 7th June 2016. I do not consider it feasible to digest the feedback from the consultation and then incorporate the feedback into the PSPO Draft in this time unless this step is not undertaken on a bona fide basis.
I consider it reasonable to assume that the PSPO Draft could thus be reviewable judicially which would be our recommendation to someone who was enforced against unlawfully as a consequence of the action of the promulgated PSPO Draft.
In advance of the consultation I hope that these comments are useful to the Scrutiny Committee.
Secretary and Legal Officer