Little has changed since then.
Security of Tenure for Residential Boats
I write in response to the Department’s public consultation. I would first like to thank the Department for its ongoing enquiries into this matter. In summary my views are as follows:
The only option your paper offers which I believe would represent progress for boaters currently living on properly authorised residential moorings is Option 4 – “Introduce legislation on implying terms into all agreements”.
Whatever the remedy may be in detail, I hope the Government recognises the fundamental necessity for regulation which offers residential boaters a basic level of enforceable rights concerning their homes, something which most other homes in the UK currently enjoy, but which we do not.
Declaration of interests
· I represented the National Association of Boat Owners (NABO) in some of the discussions that led to this consultation.
· I also represented the Association at the Association of Inland Navigation Authorities’ Residential Boating Issues Group, referred to in the consultation document.
· You may also be aware that I have subsequently been elected a Council Member of the Association.
I must confirm that nothing in this letter is intended to represent the views of NABO. I have formally declared my interests in this matter to the Association and excluded myself from any formal representations the Association chooses to make.
I am also a member of the Barge Association and the Residential Boat Owners Association.
The comments that follow represent my personal view only.
My background
I work as a self-employed Housing Management Consultant and Interim Housing Manager. I am married and have one daughter who resides at my partner’s address.
Except for short periods, my wife and I have chosen throughout our relationship to maintain separate homes. I jointly own her home to the extent that I am a joint leaseholder of the property which also represents the family home for my daughter. However I have never used their current home as my main residence and have never lived at the property. I consider my boat to be my only and principal residence.
My personal experience relates wholly to British Waterways (BW) conduct towards me as a boat-owner, as a Houseboat Certificate holder under the 1995 Waterways Act since 1996 and previous to that, as a general craft licence holder. I have been a BW customer continuously for nearly seventeen years, most of my adult life.
My experience of Residential Boating
I bought a 45-foot narrowboat in 1989, which my wife and I cruised extensively around the greater London area when we were not working. I sold that boat and bought a 70-foot narrowboat in 1991. My wife and our then new baby lived with me on the second boat briefly, directly before we bought a flat locally. I had previously also had use of a service tenancy of a bed-sit flat in a Supported Housing scheme where I worked part time.
Our housing situation following the birth of our daughter late in 1990 was less than ideal. The service tenancy was our only residential address and consisted of a small bed-sit flat in Maida Vale in the City of Westminster. My daughter was born during the “gerrymandering era” in Westminster City Council and the only practical assistance the council offered us with housing, was priority to buy a council flat which the Council would allocate (in a ward of their choosing) at near market rate. Although my wife and I were both employed at that time, the home ownership market was still beyond our means. The landlord of my service tenancy was sympathetic to our situation but unable to assist us with re-housing.
BW policy and practice towards residential boats in the late 1980’s and early 1990’s
At this time BW’s management of residential boating activities was universally known to be relatively limited. (See ref 3 b) and sections 24 –26 therein).
In practice provided one paid for a craft licence, BW did not seem to take any interest in whether the craft had a mooring or whether the boat was lived on. Their attitude appeared to be laissez faire if there were no immediate problems. The formal licence requirement not to live on your boat was largely ignored. This prohibition was in any event unenforceable if boaters complied with all the other the rules. Most craft on the inland waterways have suitable accommodation to stay overnight.
We therefore considered our boat to be part of our accommodation arrangements from an early stage. After the birth of our daughter we spent a great deal of effort looking for a suitable residential mooring but without success.
“Modernisation” of BW
However BW’s position was changing significantly at this time. It was clear in the early 1990’s that small unofficial communities had established themselves throughout the canal and river networks precisely because BW had,
· failed (in some case for many years) to take action against unauthorised moorings,
· failed to enforce rules on overstaying on temporary moorings except in the most popular locations,
· turned a blind eye to people living in their boats on non-residential moorings, including in many cases, moorings that BW owned and managed.
I became aware of the British Waterways Private Bill at this time. Bearing in mind some of the additional powers BW initially proposed taking, in particular an early proposal that all craft should have a home mooring and a recent flurry of enforcement actions against unofficially moored residential boats locally in central London, I was clear that change was coming. I applied to join BW’s waiting list for residential moorings.
The then Government was putting considerable (and not unreasonable) pressure on BW to become more self-sufficient. BW held and still holds significant real estate, not only the canal and river network and infrastructure it is responsible for, but also other land that it acquired at nationalisation. Powers to act more commercially in order to realise the true value of redundant assets were one of the elements for BW’s future being promoted at the time of the Waterways Bill.
The canal and boating community to my recollection cautiously accepted that change was necessary but expressed concern that boating/navigation and the environmental and heritage value of the canals and rivers in question should be protected and ideally be ring-fenced against becoming a solely commercial environment.
My experience of finding a residential mooring
For about a year and a half from 1989 to 1990 (at the end of which period my daughter was born), when we were not cruising the canals, we had “squatted” our boat on the offside of the Grand Union Canal with a group of other boaters. The boatowners on the site were responsible, kept their boats well maintained and fully licensed and maintained the site safely. We did not however have authorised use of the site where we based ourselves but our inquiries suggested that ownership of the land was uncertain. Certainly the adjacent landowner appeared to take no exception to us being there, in fact, the opposite, as we provided a degree of security on the shared boundary. There were no services on the site but the boats there did not need direct access to services, as essential services in most recreational craft are self-contained.
Just before Christmas 1990 the whole group was forced to vacate the site under threat of having our boats seized by BW as being “unauthorised”. Although it was unclear that BW had any legal interest in the land we occupied, we were served with notices as potentially abandoned or unauthorised craft.
The advice we gathered in the four weeks notice period was that the only way to contest BW’s actions was to apply to the High Court for an injunction restraining BW from taking irrevocable action until fuller argument could be heard. Our advice was also that the correct action would be to then seek Judicial Review of BW’s actions. None of us were in a position to bear the risk of such an action and/or incurring significant legal costs. We were also aware that our boats are chattels in law, so could potentially be forfeited against legal costs. Bearing in mind that BW had recently seized boats elsewhere in London, we vacated the site.
It turns out that BW in fact wished us to leave the site so that they could re-develop the site themselves as residential moorings.
“Self-help”
After being forced to leave that site, a number of us occupied a derelict canal basin adjacent to the site we had just left. A major attraction was that it appeared that the water-space was not under BW’s authority. Bearing in mind the proposed legislation and our experience of BW’s now aggressive behaviour towards unauthorised moorings, we saw occupation of the site as a potential haven.
In the event within eighteen months of occupying the site we had negotiated a temporary business licence from the landowners (British Gas PLC) and formed a not for profit moorings company which subsequently ran the site as a community business for the following eight years. Through our own resources and by working in partnership with our landlords and neighbours we established,
· Site security and boundary repairs,
· Safe pedestrian and vehicle access,
· Good relations with our immediate neighbour J Sainsbury's PLC (who, once we had established our intentions, kindly supplied fresh water to the site),
· Close working relationships with the local Police over eliminating anti-social behaviour which had previously been a major issue on the derelict site,
· A clean and safely maintained site with private domestic services,
· Sustainable heating by means of a timber collection station, the timber being supplied by a local tree surgeon that would otherwise have been disposed of as commercial waste,
· A much improved environment including establishing gardens and safe play areas for the children in our community,
· A postal address,
· A home for twenty people, and secure temporary moorings for visiting boaters,
· That the local authority and its planning department was content with our activities.
In short we created within two to three years a safe well-managed sustainable community out of a piece of derelict land which previously had a reputation as a local no-go area.
Within our community we had our differences and disagreements from time to time. However what determined that we remained cohesive was the realisation that individually there was literally nowhere else to go, due to the then, as now, acute shortage of established residential moorings on offer on BW’s waterways.
A permanent mooring?
However “The Basin” mooring was only a temporary arrangement until such time as the site was redeveloped. When late in 1995 the offer of a permanent residential mooring on a newly developed site came up through BW’s waiting list, I took the option without hesitation. I was working and content to pay significantly higher mooring fees (in practice about four times the fees I paid at “the Basin”) in exchange, I thought, for the permanence and legitimacy that paying for a residential mooring owned and managed by the main navigation authority would afford.
Of course one irony is that this mooring, where I now live, is the same site where I squatted the first boat I owned. BW London’s stated reasons for wishing to take this site into their management are also relevant. They were in the early stages of planning the redevelopment of Paddington Basin nearby and realised they had a duty to offer reasonable alternative moorings to the established boating community that lived there. Half the boats currently on this mooring re-located here directly from residential moorings formerly located in Paddington Basin.
It is also relevant to note that BW has not produced any residential moorings in the Paddington Basin redevelopment. They have however allocated a similar amount of water-space for so called Business Barges, i.e. floating offices. It could be therefore be argued that BW displaced residential boats to replace them with floating office space.
1995 British Waterways Act
It was, as intimated above, the realisation that BW had a grossly under-used asset that in part led to them seeking additional powers in the early 1990’s. I closely followed the passage of the Private Bill that became the 1995 Waterways Act.
I soon became more actively involved, in particular because I had become friendly with another local boater, the then RBOA Chairman, Mr John MacCormack. I was also beginning my professional career as a housing manager and was undergoing postgraduate training in Housing Studies and associated professional training.
Security of Tenure for residential boats is therefore an issue that was discussed in great detail in the case of BW over fifteen years ago, during the passage of the then British Waterways Bill. I was able to assist the RBOA by researching security of tenure provisions in housing law to try to identify models to consider applying to residential boats.
The outcome of our collective representations is represented by Section 16 and Schedule One of the 1995 British Waterways Act.
It also is relevant to point out that there was therefore no doubt in my mind that when I was offered my current mooring I should be offered a Houseboat Certificate and indeed that is what British Waterways offered. However what I took on hoping to be a reasonably well regulated and managed mooring has turned out to be a source of deep concern ever since.
My experience at Kensal Green Moorings
A catalogue of legitimate complaints
BW’s management of this mooring since its occupation in 1996 has remained an ongoing subject of grievance to myself and my neighbours. After many years of complaints over poor service and un-remedied defects in the site’s construction, the final straw came in 2002 when BW changed their Mooring Fees policy. The policy change was made without notice or consultation and BW imposed a fee increase in excess of 45% over the next three years.
The most serious issues of collective contention for residents of this mooring both before and after this event are best discovered by reading the detailed findings to the complaint I felt obliged to make to Waterways Ombudsman in 2004. (See ref 1.)
Previous to issuing my Ombudsman compliant I had spent nearly two years using the BW internal complaints process to try to resolve matters with BW, but I felt, largely without success. Also, since a few months after its inception, and on their invitation, I have been BW’s Moorings Warden for the site, so in theory I should naturally have had considerable access to BW. However by the time of my complaint to the Ombudsman I felt my representations over the previous six years, especially about the poor maintenance of the site, had been largely ignored. In light of
· the significant fee increase that was being imposed and
· BW’s apparent unwillingness to maintain the mooring properly, (even after increasing their income from the site by in excess of £20 000 over the three years in which the fee increases referred to above were being imposed),
... I complained to the Ombudsman in an attempt to resolve my and my neighbours' outstanding concerns.
In August 2004 the Ombudsman made five findings of maladministration against British Waterways. The most pertinent finding to your consultation was that BW had unreasonably failed to clarify the written terms and conditions that applied. This prolonged failure to provide a complete description of our terms and conditions in my view demonstrates that BW were for a number of years in direct breach of one of the statutory provisions that were supposed to apply, specifically Section 16 (2) of the 1995 Waterways Act.
“The Board shall on demand provide a copy of the general terms for the time being in force under this section to any person requiring the same and to the holder on the issue or renewal of the certificate.”
Regrettably despite a subsequent personal meeting with BW’s Chief Executive in the Autumn of 2004 and further correspondence with BW, two of the Ombudsman’s recommendations requiring further action have still not been dealt with to my satisfaction. I have a second complaint being considered by the current Ombudsman. (See ref 2.)
Over the five years since 2001 my mooring fees have increased by a little over 60%. As certain matters are still under the Ombudsman’s consideration I feel it is unfair to comment further on these issues at this time.
Governance
Limitations of the Ombudsman’s Terms of Reference
Matters of BW policy or disputed legal interpretation do not fall within the Ombudsman's terms of reference. I have therefore also been in continuing correspondence with BW concerning the administration of the Houseboat Certificate Scheme and their current interpretation of the Waterways Acts. My detailed complaint is relatively technical and a copy of a letter I have recently written to Mr Tony Hales, the chair of BW is attached, (See ref 3).
I commend the attention Mr Hales has recently given to my complaint and I thank him for taking matters up. Unfortunately as I said in my last letter to Mr Hales, (which is unanswered at this time), I feel obliged to ask that he closely scrutinises the history of events that was presented to the BW Board. (See ref 3 a)).
· The report the Board received failed to represent my views and interests to Board members accurately. In particular the report made a number of incorrect statements about my personal views without prior reference to myself.
· The report overlooked certain key facts and events that can be evidenced by Parliamentary record and BW policy documents, matters which I had previously brought to BW’s attention.
I therefore believe the information the Board has recently been presented with is fundamentally flawed. I also believe some of the legal interpretation offered is in direct contradiction with undertakings that BW gave to the House of Lords Committee during the passage of the last Waterways Bill.
BW’s interpretation and application of the Waterways Acts
BW is, I believe, in the unique position that it is already subject to legislation which provides for limited security of tenure for “Houseboats” on properly constituted residential moorings.
However as evidenced by my comments above and my letter to Mr Hales, I believe BW have for the last seven or eight years, whether purposefully or otherwise, adopted policies and procedures which undermine the intended effect of this legislation.
I also believe BW has artificially excluded over two thirds of its customers, lawfully occupying residential moorings, from the limited security of tenure provisions they were originally granted. (See ref 4).
I believe that in doing this BW have relied on re-interpreting the very issue which they claimed was not an issue when these matters were considered by the House of Lords Committee, specifically the 1971 British Waterways Act’s definition of Houseboat, which BW now holds to always exclude craft that are navigable under their own power. Despite petitioners to the Waterways Bill expressing concern about this very definition in the 1990’s, the matter was not pursued precisely because BW undertook to the House of Lords Committee that this point was not one they would rely on. BW have in my view reneged on this crucial undertaking. (See ref 3 b). and Section 12 therein).
I fully support the premise in your paper that any security of tenure issues should be dealt with by the mooring agreement (as opposed to by the design or type of an individual craft). This approach deals with my complaint about BW’s current interpretation of the existing legislation. I have suggested this approach to BW as a remedy to my personal concerns. My suggestion has never been responded to.
It is BW’s current interpretation of the term “Houseboat” and their refusal to date to re-visit this issue through discussion which forces me to argue that new legislation is necessary. I also offer the following reasons as to why I believe new legislation is necessary.
Protection from Eviction Act
BW admits that the Act does not apply. (Ref 3 a) and Section 5 therein))
BW’s general conduct
I believe the history of the development of this mooring and the more recent Ombudsman findings in response to my and my neighbours’ complaints about the management of the mooring are direct evidence that,
a) BW behave as an autonomous monopoly,
b) Arbitrary and subjective tests to set mooring fees are now enshrined in BW policy,
c) No accessible or affordable remedy is available to customers to contest points of policy, pricing or legal interpretation.
Reasons for the failure of existing legislation to deal my concerns
1. Lack of an effective remedy to boatowners.
I do not think that the existing legislation governing BW residential moorings (Schedule One of the 1995 Waterways Act et al) is of itself wholly inappropriate nor would you expect me to say so, given I actively participated in its formulation.
What has been inappropriate has been BW’s apparent reluctance to observe that legislation in the spirit in which I believe Parliament intended it.
The real difficulty I have experienced is that the legislation and BW’s current attitude provides no effective or accessible independent means of review or remedy for matters of concern over interpretation and implementation of the Waterways Acts except by resorting to the expense and uncertainty of formal legal process. As indicated above, the Ombudsman scheme’s terms of reference do not currently include matters that essentially involve policy or legal interpretation.
I feel BW has for many years taken advantage of this loophole in its regulatory framework. It has also in my view on repeated occasions unreasonably refused to engage with the boating community or other stakeholders to find mutually acceptable solutions to major issues of concern.
This particularly appears to be the case where there is a potential or actual conflict with maximising commercial revenue.
2. Intimidatory behaviour by BW.
I have also observed that where individuals attempt to challenge BW though the Courts, huge legal resources are thrown into the ring. Most individuals are in my view simply priced out of Court or otherwise intimidated into not pursuing their grievance. As indicated towards the beginning of my letter, this is a tactic I have personally been subjected to in the past.
Here I must make a particularly ironic observation. I believe I am only in a position to speak out publicly about my concerns on these issues without immediate fear of losing my home precisely because of the existence of the current legislation. I believe there are many BW customers (and others) who are afraid to speak out for fear of prejudicing their current mooring.
As a result, I therefore have no confidence that Best Practice Guidance or Model Agreements (Options 2 and 3 in your paper) will be of any effect. Why should I believe that BW would observe voluntary guidelines when they have already in my view been in breach of statute?
It is therefore with regret and despite my best efforts to engage with BW over many years that I must confirm that I believe new protective legislation for boaters on established residential moorings is the only option by which to resolve matters.
Related matters
You will recall that many of those who lobbied for this consultation to occur highlighted the provisions in respect to Park Homes in the now Housing Act 2004. You will also be aware that this legislation addressed the concerns of park home residents using two strands.
Statutory minimum terms and conditions
Clearer and additional statutory terms and conditions over pitch agreements was the first strand, (HA 2004, s205-211). This strand is similar to Option 4 of your current consultation.
Duties to make greater numbers of suitable sites available
The Housing Act also followed a second strand of introducing duties on Local Authorities to encourage the relevant parties to investigate and if necessary facilitate the creation of new sites where there was demonstrable need, (HA 2004, s 225-226)
I hope the department will in the near future investigate this strand of thinking in respect of moorings provision. Issues I would like to see considered include:
Planning issues
I believe this should in part be approached by the Department committing to re-examining and taking steps to improve or increase planning guidance and otherwise greatly encourage the granting of permission for additional residential moorings and moorings of all types.
Potential conflicts of interest within navigation authorities’ duties
The voluntary sector and the commercial boating trade in my view must be closely involved in any such discussions and matters not simply left to navigation authorities. This is especially so where navigation authorities have financial interests in moorings because there is a conflict of interests if they are supposed to be both a custodian of their network but simultaneously wish to be an active market player, commercially exploiting that same network.
Involving boating customers as full partners and stakeholders
Also as demonstrated by my early experience, if given access to a suitable site, individual boaters are often willing and capable thereafter of dealing with their own affairs. I believe this is a tried and tested mechanism by which boaters can and do deal with moorings provision, causing the minimum impact on the public purse. I would particularly highlight the work of the members of the Association of Waterways Cruising Clubs and the many other community based moorings associations that exist across the country.
I believe providing more moorings which involve local people and which are in part or whole managed by the boaters that use those moorings is an option that should be formally encouraged and supported. I am mindful in this suggestion of your Department’s interests in regeneration and building sustainable communities.
Such a suggestion is of course potentially in direct conflict with BW’s wish to directly manage moorings themselves for the maximum commercial gain. I believe that BW frequently see moorings and boating facilities as being in direct competition with more lucrative commercial development of the waterside property under their influence or control. Recent events at Castle Mill Boatyard in Oxford illustrate such conflicts of interest. (See ref 5.)
The need for wider debate about boating issues
I would welcome an opportunity for boating stakeholders to discuss issues such as those described above with Government in the same detail as we are already discussing Security of Tenure issues for residential moorings.
However while the overall availability of residential moorings is as highly restricted as it is as present I believe existing residential boaters must first be safeguarded.
Yours sincerely
W S Robbins
References/Supporting Documents
1. Waterways Ombudsman's decision of my complaint against British Waterways, 11 August 2004.
2. Letter to Ms Hilary Bainbridge, Waterways Ombudsman, 04 December 2005.
3. Letter to Mr Tony Hales BW Chairman dated 23 January 2006, attached to which,
3 a). My response to BW’s Board paper Residential Boating Issues, BW 3207, of November 2005
3 b). Special Report from the Select Committee on the British Waterways Bill (HL) 73, 02 July 1991
3 c). BW Policy on Houseboats/Residential Boats, 18 February 1997
4. Response from Nigel Johnson (BW Legal Director) to my FoI request, headed “Houseboat Certificates”, 22 June 2005.
5. Boatyard fight ‘not over yet’, Oxford Mail, 12 December 2005
