Why I've spent 20 years defending the BW Houseboat Certificate
Something I wrote a few years ago as to the value of Houseboat Certificates, (something which BW persistently attempt to deny most of their moorings customers living on long term residential moorings):
Security of Tenure for “Houseboats” under the
1995 British Waterways Act
To fully appreciate how Security of Tenure works in practice in this scenario the key in my view is Section 4 (3) of Schedule One. If there is no other breach of the terms and conditions (see Section 6 of Schedule One) then if BW want to move a Houseboat for any reason, they have to offer another suitable mooring.
Equally importantly they “shall permit the houseboat to be replaced at the site as soon as practicable after the circumstances necessitating the removal have ceased to apply.”
I believe the effect of this is that if circumstances prevent a Houseboat Certificated craft from ever returning to its original mooring then the holder must always be offered an equivalent space elsewhere.
Section 33 of the Act was as I recall intended to give one the right to go to the County Court in the event of a dispute about what under 4 (3) of Schedule One constitutes “a suitable mooring or other location (which shall be broadly comparable to the site) situated as near as is practicable to the site, …”
It seems to be this duty to offer a Houseboat Certificate holder either a right-of-return or an alternative mooring that irks BW so much! They have in my view tried to avoid getting into these obligations with most residential customers by the simple expedient of not issuing Houseboat Certificates to craft which are mobile under their own power. This in my view is in direct contravention of an undertaking they gave the House of Lords in Committee on the point when the then Waterways Bill was being debated.
I therefore believe that what I said to the then ODPM on this earlier this year is still true:
“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.”
3 b). Special Report from the Select Committee on the British Waterways Bill (HL) 73, 02 July 1991
4. Response from Nigel Johnson (BW Legal Director) to my FoI request, headed “Houseboat Certificates”, 22 June 2005.)
I hope these notes help explain the current position as I understand it.
(The following extracts are from the British Waterways Act 1995 (Crown Copyright))
Regulation and management of inland waterways
General terms of houseboat certificates.
16.—(1) A houseboat certificate issued or renewed after the passing of this Act under the Act of 1971 shall, unless the certificate or some other document referred to in the certificate provides otherwise, be subject to the general terms set out in Schedule 1 to this Act in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971.
(2) 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.
(3) A houseboat certificate shall contain or refer to some other document containing the general terms and any conditions to which it is subject.
(4) The following provisions of the Act of 1971 shall cease to have effect—
(a) in section 17 (Duration of boat certificates) (which applies to the undertaking of the Board in Scotland)—
(i) the words "and a houseboat certificate" in subsection (1); and
(ii) the words "or a houseboat certificate" in subsection (2);
(b) in section 19 (Registration of transfers of pleasure boats and houseboats)—
(i) the words "or a houseboat", "or a houseboat certificate, as the case may be" and "or houseboat certificate" in subsection (1);
(ii) the words "or houseboat certificate, as the case may be" and "or houseboat" in subsection (2); and
(iii) the words "or houseboat, as the case may be" in subsection (3).
As to certain legal proceedings.
33. Notwithstanding anything in any other enactment or rule of law, where but for this section any proceedings in respect of any provision of this Act could be instituted in the High Court, those proceedings may be instituted in the County Court.
General terms of houseboat certificates
1. In this Schedule—
"the certificate" means the certificate relating to any houseboat;
"the holder" means the person named in a certificate as the person having control of the houseboat specified in the certificate or the assignee or personal representative (within the meaning of section 55 of the [1925 c. 23.] Administration of Estates Act 1925) of the person so named;
"the houseboat" means the houseboat named or otherwise identified in the certificate;
"local authority" has the meaning given by section 270 of the [1972 c. 70.] Local Government Act 1972 or, in relation to Scotland, section 235 of the [1973 c. 65.] Local Government (Scotland) Act 1973;
"moor" includes place, keep or maintain and "moored" shall be construed accordingly; and
"the site" means the mooring or other location specified in the certificate.
2.—(1) Part II of this Schedule applies where—
(a) the Board own an interest in, or rights over, the site; and
(b) the site is managed by the Board or their agent.
(2) Part III of this Schedule applies to all certificates.
Terms applicable to sites controlled by Board
right to moor houseboat
3. Subject to the following provisions of this Schedule the holder shall have the right to moor the houseboat at the site throughout the period of validity of the certificate.
Qualification of right to moor
4.—(1) If the interest of the Board in the site is insufficient to enable them to grant the right to moor the houseboat there for an indefinite period, the period for which that right subsists shall not extend beyond the date when the estate or interest of the Board determines.
(2) If planning permission for the use of the site as a mooring has been granted in terms such that it will expire at the end of a specified period, the period for which the right to moor the houseboat at the site subsists shall not extend beyond the date when the planning permission expires.
(3) Paragraph 3 above shall not prejudice or affect the right of the Board to move or to require the removal of the houseboat under section 19 (Removal of vessels to permit works, etc.) of this Act or any other powers available to the Board but, if they so move or require the removal of the houseboat during the period of validity of the certificate, the Board (unless they would be entitled under paragraph 6 below to determine the certificate) shall make available for it a suitable mooring or other location (which shall be broadly comparable to the site) situated as near as is practicable to the site, and shall permit the houseboat to be replaced at the site as soon as practicable after the circumstances necessitating the removal have ceased to apply.
(4) Any costs and expenses occasioned by the removal and replacement of a houseboat under sub-paragraph (3) above shall be paid by the Board.
Assignment of certificate
5. The holder shall be entitled to assign the certificate to a person (being aged 18 or over) approved by the Board whose approval shall not be unreasonably withheld.
Terms applicable to all certificates
determination of certificate
6.—(1) The certificate shall remain in force for the period or until the date specified therein unless—
(a) the certificate is surrendered pursuant to paragraph 8 below; or
(b) the certificate is withdrawn pursuant to section 17 (Conditions as to certificates and licences) of this Act; or
(c) the holder's interest in or other right to moor at the site (otherwise than by virtue of the certificate) ends; or
(d) the certificate is determined in accordance with sub-paragraphs (2) and (3) below.
(2) If the holder has contravened or failed to comply with any of the terms or conditions applicable to the certificate the Board may give notice requiring the holder to take or refrain from taking such action as may be necessary to remedy the contravention or non-compliance, as the case may be, within such time as may be reasonable (not being less than 28 days).
(3) If the holder does not comply with any notice served pursuant to sub-paragraph (2) above the certificate shall determine on the date on which the notice expires.
Houseboat not to be moored otherwise than in accordance with certificate
7. The holder shall not without the consent in writing of the Board moor the houseboat otherwise than at the site except where paragraph 15 below has effect.
Surrender of certificate by holder
8. The holder shall be entitled to surrender the certificate by notice in writing given to the Board not less than four weeks before the date on which the notice is to take effect.
Recovery of overpayments by holder
9. Where the certificate is surrendered in accordance with paragraph 8 above, the holder shall be entitled to recover from the Board so much of any payment made by him in pursuance of the certificate as is attributable to a period beginning after the termination.
Display of certificate
10. The certificate shall be displayed on the houseboat so as to be clearly visible from the outside of the houseboat at all times.
Holder to comply with planning law, etc.
11. The holder of a certificate shall comply in all respects with the terms of any planning permission given in relation to the houseboat and with any other enactment or byelaw in force applying to houseboats within the area in which it is moored.
Requirements of local authorities
12. The holder shall comply with the requirements of any notice served by a local authority in respect of the houseboat, and shall also comply with any limitation as to the number of persons permitted to sleep on board which may be imposed by the local authority for the area where the site is located.
13.—(1) The holder shall ensure that no sanitary appliance which in the normal course of operation discharges, or can discharge, polluting matter into any inland waterway is used on the houseboat.
(2) The expression "polluting matter" does not include waste discharged from a sink, wash basin, bath or shower.
14. The holder shall ensure that there are available for the use of the occupants of the houseboat means for disposing of sewage arising from the occupation of the boat which are satisfactory to—
(a) the Board;
(b) in England and Wales, the National Rivers Authority;
(c) in Scotland, the river purification authority for the area where the site is located; and
(d) the local authorities for the area in which the site is located.
Movement of houseboat
15.—(1) The houseboat may be moved from place to place but while being so moved may not be navigated for hire.
(2) While the houseboat is in the course of being moved the certificate shall be deemed to be—
(i) a pleasure boat certificate for the purposes of Part II of the Act of 1971, where the houseboat is on a river waterway within the meaning of section 4 (Extent of Part II) of that Act; or
(ii) a pleasure boat licence issued by the Board, when the houseboat is on any other inland waterway;
and its use at such times shall be subject to any conditions for the time being in force for the control of pleasure boats and the holder shall comply with any requirements made by or under any enactment applicable to pleasure boats.