Breakthrough for NABO

Published: Monday, 04 April 2011

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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.