Community Law Partnership on Mayers
FOLLOWING the failure and subsequent refusal of Canal & River Trust (CaRT) to publish the Mayers judgment on its website, the Community Law Partnership has commented on the case, writes Allan Richards.
Specifically, it is suggested that it is possible for a boat without a home mooring to be compliant whilst moving within a range significantly smaller than those recently suggested by the Trust (CaRT still bullying and CaRT hurriedly responds).
Community Law Partnership
The Community Law Partnership, a firm of solicitors specialising in the law relating to Housing and Public Law, comments as follows:
Canal & River Trust v Geoffrey Douglas Mayers Chester County Court 22 November 2013 HHJ Halbert
The delay in reporting this case is due to the fact that it has only recently been publicised and we thank the National Bargee Travellers Association for bringing this case to the attention of the boating community.
An action for an injunction was taken against Mr Mayers on the basis that he did not have a home mooring and that he was not using his boat 'bona fide for navigation'.
CRT placed reliance on British Waterways Act 1995 Section 17 (3) which reads:
Notwithstanding anything in any enactment...the board may refuse a relevant consent in respect of any vessel unless....
c) Either...(i)...a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on the inland waterway or elsewhere.
....or....(ii)...the vessel...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.
The injunction action and an action for a declaration were taken under British Waterways Act 1971 Section 13 and British Waterways Act 1973 Section 8.
An injunction and declaration were made against Mr Mayers and HHJ Halbert stated:-
[Mr Mayers] provoked this litigation in order to obtain a decision on whether the Continuous Cruising Guidelines are or are not justified by the statutory regime and in particular subsection 17 (3). However, by refusing to move at all he has unquestionably put himself in breach of the subsection because if Pearl [Mr Mayers' boat] is not moving at all it is certainly not navigating and [Mr Mayers] is also in breach of the 14 day rule. An intention to provoke litigation is certainly not a reasonable cause for staying longer than 14 days in the same place.
Thus, unfortunately, by his own actions Mr Mayers deprived the Court of the ability to rule on whether the continuous cruising guidelines are or are not a lawful interpretation of the phrase 'bona fide for navigation'.
Guidelines
Though he did not need to do so for the purposes of the judgment, HHJ Halbert did give some views about the guidelines and about the phrase "bona fide for navigation". It should be stressed that these views are not authoritative but they may be useful and persuasive in other cases and they are certainly very interesting. It is worth quoting these views fairly extensively. At paras 7.21 to 7.22.6, HHJ Halbert stated:
7.21. It seems to me that the expression ‘navigation' clearly means the process of undertaking any purposeful journey from one specific point to another by water. The addition of the words ‘bona fide' import an entirely subjective element and merely mean that the journey must be undertaken for genuine purposes and not for the purpose of circumventing the legislation, when in reality the intention of the boat owner is to stay as nearly as possible in the same place.
7.22.1. It is, as I have already said several times, unnecessary for me to comment on whether the guidelines match the legislation. I do so in only two respects and with the express proviso that this does not form part of the decision.
7.22.2. I think the guideline's interpretation of ‘in the same place' is correct. It cannot be taken to mean ‘in exactly the same position' because to do so would drive, perhaps not a coach and four but at least a horse drawn narrow boat through the purpose of the legislation. The requirement not to stay in the same place for more than 14 days is imposed on boats with either form of licence so if it could be satisfied by moving 50 yards the legislation would be wholly ineffective. I agree that it only makes sense if it is interpreted in a much more general sense. If a boat were moved 500 metres within the Parish of Anderton it would in my view be in the same place. If it were moved to Northwich, over two miles away, it would not.
7.22.3. I consider the requirement imposed by CRT that a substantial part of the network is used cannot be justified by relying solely on section 17 (3). That section requires ‘bona fide navigation throughout the period of the licence' not ‘bona fide navigation throughout the canal network'. The requirement is temporal not geographical. In my view it does NOT follow from:
‘Such journey or cruise must take place throughout the period of the licence'.
that it ‘therefore requires progression round the network or at least a significant part of it.' [The Judge's emphasis.]
7.22.4. If a person who lived permanently on his or her boat had specific reason for making repeated journeys over the same stretch of canal between two points sufficiently far apart to be regarded as different places, it would in my view be purposeful movement by water from one place to another and hence ‘bona fide navigation'. In the course of argument I used the example of someone who lived on his boat and was also using the vessel commercially to move coal from a mine to an iron foundry only a few miles away and then returning empty for another load.
7.22.5. To take an extreme example, in its heyday, the Mersey Ferry operated continuously to and fro over the same stretch of water which is less than a mile wide. No one would ever have accepted the suggestion that the ferry boats were not bona fide used for navigation throughout the period of their operations.
7.22.6. The canal boats which gave Ellesmere Port its name by taking pottery from Ellesmere to its port on the Mersey for shipment overseas used only the restricted part of the system involving the Shropshire Union Canal from Ellesmere Port to Nantwich, and the Llangollen Branch from there to Ellesmere. Again, it could not seriously be suggested that the boats were not ‘bona fide used for navigation throughout the relevant period'.
Compliance
Contrary to to various conflicting distances being quoted by CaRT, the judgement suggests that it is possible to comply with the British Waterways Act 1995 Section 17 (3) whilst moving within a range of about two miles (i.e. the distance between two places).
Perhaps, this is the reason that CaRT refuse to publish the judgement and maintain that it is not in the public interest to publish the legal advice they have received on it.
[Whilst CaRT has suggested that two thirds of boaters (i.e. 3600) without home moorings are not compliant with British Waterways Act 1995 Section 17 (3), it is understood that it has only ever taken three boaters to court in order to obtain an injunction. However, in two of those three cases the Trust failed to obtain the requested injunction. In the Mayers case an injunction was granted based on Mr Mayers deliberate act of non movement rather that distance moved.]