Sunday, 1 March 2015

Canal and River Trust's new Continuous Cruising Policy

So the battle lines are being (re-)drawn on the issue of Continuous Cruising. Only time will tell what the full impact of what CRT are proposing will be. But having reflected on these matters for a few days since my last post, things seem to be getting murkier not clearer.

I was struck by the latest from Victor Swift on NBW, suggesting that the NBTA have scored an own goal with the 'admission' that there are many living on boats who are indeed tied to a small area for work, health and/or family commitments. That is not news; As I said in a previous post, British Waterways largely created the present situation by waiving the bye-law limitations on living on boats many years ago.  

However despite the, some would say acerbic, criticism of NBTA from Victor, he then goes on to say something that is much more acute:

Mind you, as I have stated before, if those at CaRT pulled their fingers out and actually stated a distance that must be travelled to avoid having to pay for a permanent mooring, at least the continuous cruisers would know what the rules are.

At the moment, with those at CaRT unable to make a decision one way or t'other, no one knows.

That of course is the elephant in the room, still sat there watching us all! 

According to their press release CRT plan to unilaterally determine whether someones cruising pattern is 'enough' and then can disenfranchise them if not. That's not a new thing and they have been doing this already on a small scale over the last few years, albeit only for cases where there has been a pretty limited overall movement range. At least now they have 'come out' on the point.

However the exact criteria as to what constitutes "an acceptable range of movement", the test against which such sanctions will be invoked, as Victor says, is still pretty opaque and so seems to be rather subjective. I saw one of the letters CRT are sending out to boaters. It says that the boater has not moved far enough, indicates the 'places' where the boat has been seen, but does not say how much more they need to move to avoid a further letter.

And unless a lot of people make major changes to their supposed cruising patterns as CRT see it, CRT are going to have to, on a conservative estimate, take many hundreds of people to Court in the next year or two, just counting the so called Tier One cases. (See the NABO website for a description of the 'tiers'.) CRT's enforcement page cites around 1200 people having been contacted about not moving about 'enough' just in the last quarter of 2014.

It is clear, especially where I live in London, that some people are indeed tied to a small area and could be said to be in effect 'Houseboats without a mooring', moving every 14 days purely to 'stay' within the rules. In the Davies case HH DJ O'Malley seemed to indicate that if this was the boater's sole intention, then that was not  'bona fide' navigating. However this finding was met with not a hint of flexibility from the boater and the question was not asked, if not this far, then how far? As ever I would encourage readers to consider the full Judgement which deals only with Mr Davies' case. Judge O'Malley also says elsewhere in the judgement: 

I think it is right to say however that my decision is not to be taken as fully endorsing the Board's Guidance. It is possible to envisage use of a vessel which fell short of the Board's concept of continuous cruising but which still qualified the vessel for a licence under section 17 (3)(c)(ii).

But, if CRT's recently stated resolve is to be believed, there will be a further several hundred people who have moved at least every 14 days over a relatively wider range than that seen in the Davies case who may still have licences revoked if they don't move even further or take a long term mooring (and presumably who will in turn be taken to Court  ('Tier Two cases) ). 

This is perhaps where the more interesting and pertinent issues will arise; this group will undoubtedly include people who might have been around, in some cases for many years, who are now potentially going to be put under threat solely because CRT are moving the goal posts. There is a legal test in Civil Courts of 'Reasonableness' which seems likely to be engaged at some point. I suspect there will be a least a few cases where a Court might take a dim view of CRT artificially forcing individuals into a corner like this, when it is unclear what significant wrong or harm they have been causing previously.

What happens if we get to the point where a precedent Court does say how far is far enough and that distance/cruising pattern is not to CRT's or other people's liking?

That takes me back to my longstanding post on this point. That post is still the most read article on this blog with almost double the number of hits than the next most read post. I suggest that what I said on this then, is still largely the case: The CRT Enforcement page I referred to above also shows a separate category, for overstaying cases where boats have exceeded the 14 day limit to stay in one place (or perhaps any restrictions for shorter periods that may apply). There are only just shy of 250 number cases identified.

One must in turn ask what is the point of this 'new' CRT policy? As I said a few paragraphs ago, what significant wrong or harm are the boaters likely to be caught up in all this causing 

Seems to me that CRT are inviting another Nigel Moore situation where a senior Court deems that the underlying premise to this all is fatally flawed?  The Davies case occurred in very specific circumstances and any claim that it forms a legal precedent is clearly incorrect.

This bigger picture stuff is still what baffles me: The new policy fails to set out what criteria will be used to measure it's overall 'success'; what is it actually trying to achieve other than the superficial impression one gets: that it is (still) about making a load of people homeless by taking their boats away and driving others onto non existent residential moorings, or moorings that are rarely used? That seems to me like good old fashioned prejudice against liveaboards

The whole policy seems to turn on placing faith on one case in a lower Court and on Guidance that the Judge hearing that case indicated was far from definitive. Seems to me CRT are playing a very risky game here?

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