Saturday, 21 October 2017

Planning to live aboard?

I was interested to read the EDP’s story about the ‘targeting’ of a live aboard at Hoveton, because the Broads Authority have for many years been resistant to what they regard as ‘unauthorised’ residential moorings.

Although there are, without a doubt, some undesirable residential boats on the Broads, that doesn’t mean that people living on boats generally are undesirable. There are some pretty unattractive and potentially unsafe non-residential boats out there too, and the same could be said for caravans and houses as well. Sensibly, a boat which is lived on 365 days a year is more likely to be looked after than one which gets visited once in a blue moon. I think that the real problem is one of ignorant discrimination against people who want to live on their boats, based on the appearance of a small minority and the baying of the liberal elite who don’t like looking at them.

So let’s start by clarifying the planning law about living on boats. The BA have, quite legitimately, created planning policies which allow them to apply conditions to new moorings. So, for example, if someone was to create a new mooring basin, then the BA could impose a planning condition which restricted the use of some or all of the moorings to non-residential use, or 24 hour visitors only, or whatever was considered to be appropriate when judged objectively.

The same is not true for pre-existing moorings. Planners cannot impose a retrospective planning condition on moorings (or anything else), no matter how much they might want to, and no matter how much they say that residential moorings are "unauthorised" in a particular location. If a mooring does not have conditions which restrict its use, then there is nothing to stop someone from living on board if they choose.

The reason for this is that planning is about the use of land, not the use of boats. A mooring is a mooring, and what goes on aboard a boat is not relevant to planning, unless the moorings have explicit conditions restricting their use.

Care must, however, be taken to ensure that the land surrounding the mooring does not get strewn with residential 'paraphernalia', as that might well constitute a material change of use. Stick your TV aerial, bike and washing line on the roof of your boat if you like - but if you start cluttering the adjacent land with sheds and what have you, then you may be materially changing the appearance of the land and you can expect a visit. With planning, it’s all a question of degree.

This has been tested several times in the appeal court. The BA lost an enforcement case in 1999 when they attempted to prevent 2 boats in Hoveton from being used for residential purposes. The Inspector found that if he couldn't see the difference between 2 boats - one used residentially and one not - then there was no material change of use of the land and therefore no breach of planning control.

The findings of the Inspector could not be more clear, and probably explain why the BA have not taken any further formal enforcement action against people living on boats - though they continue to refer to any residential mooring as “unauthorised”. This is a bit naughty, in my view, because people tend to believe what they’re told by public Authorities, and end up either leaving the Broads or else having to live ‘under the radar’.

Disappointingly, the 1999 case is now summarily dismissed by the BA as an "old decision", even though another appeal inspector came to exactly the same conclusion in 2010 on the Driffield Canal in Yorkshire. But, in any event, the age of the decision isn’t remotely relevant. The key is deciding whether living on a boat all of the time is a materially different use of the land, compared to living on the boat some of the time. Planning inspectors - and objective common sense - say that it is not. The use of the land (the mud under the water and the land immediately adjacent) is the mooring of a boat.

The BA, in association with other local planning authorities, recently commissioned a report on the objectively assessed need for houseboat accommodation (as well as caravans and traveller sites) in the Broads. This concluded that there is a need for 63 residential moorings - although the BA’s own research from rangers estimates that there are as many as 100 households already residing on boats. The emerging Broads Local Plan has allocated 25 moorings for residential use, but this figure is well short of the objectively assessed need of 63 and the BA’s estimate of 100 - which is itself only an approximation of existing residential use, with no consideration of future demand. And allocating residential moorings doesn’t mean that they will become available - it just means that the policy permits it, if the landowners choose to apply for consent.

So, although I have no detailed knowledge of the planning conditions in respect of the particular mooring described in the EDP, it is certainly not the case that living on a boat needs to be expressly authorised by the Broads Authority - or anybody else. If a mooring has no planning conditions restricting its use, then the occupier can feel free to 'live' on board their vessel in that location for as long as he or she chooses.

Finally, the BA’s statement that it welcomed “residential boats moored where they are authorised to do so” is a bit confusing - because they don’t regard any residential moorings as “authorised”!

Note - this article represents my personal and private views, and not those of the navigation committee. I attest that I am not acting in my capacity as a member of the navigation committee in wiring this blog. 

Thursday, 5 October 2017

Adjacent waters - to toll or not to toll

Following recent coverage in the EDP, I would like to talk about tolls for static vessels in adjacent waters. In particular, I would like to talk about an ongoing disputed case which has cost over £35,000 of public money in pursuit of a £500 toll, and which has not been properly brought to the attention of Members for a balanced, informed discussion or decision for over 5 years.

In 2009, the Broads Act gave the Broads Authority some additional powers. These were primarily aimed at ensuring boat safety and adequate third party insurance cover for vessels moored in “adjacent waters”, such as marinas which are attached to the navigation area but don’t form part of it. All boat owners - whether in the navigation area or adjacent waters - are now required to have an up to date boat safety certificate and insurance policy, a move which has significantly raised standards and safety on the Broads.

Additionally, it was argued that vessels moored in adjacent waters should pay a toll, because some boats had been “hiding” in marinas and pretending never to use the river, avoiding payment of their dues and placing an unfair financial burden on other toll payers. Tolls in adjacent waters were therefore set at the same level as those in the navigation area, on the basis that such boats had full access to the navigation area and it was up to the owner whether or not they chose to do so.

Unfortunately, this adversely affected one very specific type of vessel - static boats, such as barges which never move. A reasonable person would conclude that, if such a vessel cannot use the navigation, then they really should not have to pay a navigation toll. Please bear in mind that the definition of a “toll” is a payment for passage, such as on rivers and roads, and is not a parking charge. However, rather than simply charge a registration fee for a static vessel in adjacent waters, instead of a toll, the Authority has embarked upon a legal battle which has so far run for over 5 years and cost tens of thousands of pounds of public money.

In 2012, I attempted to raise the issue at navigation committee, but failed because it had apparently “already been decided” by members at a previous meeting. However, this was not strictly true - whilst members had agreed to the general principle that charges in adjacent waters should be the same as those in the navigation area (for the reasons above), there was no consideration given to the potentially contentious case of static houseboats within the context of this policy. Subsequent events have demonstrated that this type of vessel should have received special attention in the debate.

I also tried to raise the issue again during the Tolls Workshop a few months later, and was shot down by the then-Chairman on the instructions of the Chief Executive, on the basis that members could not possibly debate such tolls because of an ongoing court case between the Authority and Alan Fry - the owner of a Dutch barge - who was being asked to pay a toll of over £550 to moor his static vessel in a private marina. I should at this stage point out that the marina is at Waveney River Centre, of which I am a Director.

Whilst it would clearly have been wrong to discuss the merits of an ongoing court case, the Chairman incorrectly took the view that sub-judice rules should be invoked in order to prevent a debate on that category of tolls in general. It is possible that the Chairman was not aware that there were a number of other vessels affected in a similar way, but the stifling of debate was unhelpful. This is why it is important for Members of the Broads Authority to keep an open mind at all times.

After Alan Fry won his case in May 2015, I asked for it to go on to the navigation committee agenda for discussion. Surely now the committee could discuss the matter, come up with a fair system for static vessels in adjacent waters (a small registration fee, perhaps) and stop wasting money on persecuting people?

Instead, the Authority announced its immediate intention to appeal, but reluctantly agreed to include a report in the navigation committee agenda for 4th June. However, the Chief Executive conspired to ensure that I could neither listen to the officer’s report or contribute to the debate, by bringing in a solicitor who alleged that I had a financial interest in Mr Fry’s toll.

Self-evidently, I cannot have a financial interest in the payment of Broads Authority tolls by my customers. Mooring fees yes, BA tolls no. And in any event, it would be up to me to make that judgement call and to take the consequences. It’s not up to the Authority’s solicitor to accuse me of having a financial interest and to tell the committee that I could be prosecuted if I stayed in the room whilst the matter was being reported. This is a complete misrepresentation of the law and a breach of due process. But again, it had the desired effect, because I was forced to leave the room (under protest), whilst members were told that the Court judgement was wrong and that the Authority must appeal it because it would undermine their right to charge any tolls at all in adjacent waters. Which wasn’t remotely what the judgement said - but how many members do you think took the trouble to read it?

No doubt realising that the Authority’s standing orders had been breached - as well as the law - I was leaned upon not to make a complaint, on the basis of a promise that the issue of tolls on static vessels in adjacent waters would be brought to the next tolls workshop meeting. The minutes record the concerns of members and an agreement that this would need to be discussed at a separate meeting.

Of course, there was no “separate meeting” - and the “tolls workshop” permitted no ideas to be put forward by members, instead paving the way for a hand-picked “tolls review group” to formulate a new system for calculating tolls.

At the October 2016 navigation committee meeting, the Tolls Review Group announced their proposals - which included a rushed last-minute confirmation that adjacent waters tolls would remain the same as those in the navigation area, and that a Court decision had confirmed the Authority’s right to make such charges. This was true, but does rather ignore the important principle that such charges should be reasonable and fair.

Members were also told that it wouldn’t be appropriate to discuss adjacent water tolls, due to the ongoing dispute with Mr Fry which remained in the Court system after more than 4 years, but that they would be allowed to discuss it “in the future”. This was a year ago.

Nevertheless I raised my concerns and called for members to be allowed to debate the subject, resulting in the Chief Executive once again accusing me of having a personal financial interest in the case. He later denied having said this and produced a set of meeting notes which sought to prove that he had not - but his notes bear no resemblance to what was actually said in the meeting, and I can prove this as I have a recording.

In the middle of all this shenanigans, in September 2014 the Authority started a new battle front at a marina on the River Yare, by attempting to draw more floating things into the tolls net. Notices suddenly appeared on floating pontoon cabins, telling the owners that their properties were in fact “houseboats” under the “strict wording” of the Broads Act 2009, and needed to pay a toll.

In fact, houseboats are not mentioned anywhere in the Act. The Act says that tolls must be paid for “vessels”, and I can find no definition of “vessel” - either in the 2009 Act or any dictionary - which would include these floating cabins. The 2009 Act requires any such vessel to be capable of being used for transportation by water, which obviously wouldn’t apply to these houseboats, so the Authority decided to extend the statutory definition by adding the words “or being moved”, in an attempt to justify their position. It was even claimed that the inclusion of sailboards in the 2009 Act’s definition of “vessel” must mean that it was open to the inclusion of anything else!

Unfortunately, the 2009 Act provides no mechanism for appealing against these charges (unlike navigation tolls which can be appealed under s31 of the Harbours Act 1964). So the Authority has dug its heels in, safe in the knowledge that the organisation could never be held accountable for its actions.

The 2009 Act is, in fact, so badly drafted in relation to the nature of adjacent waters charges that it has been impossible to get the Courts to agree with one another - which is why Alan Fry’s case has gone on for so long. The most recent judgement (from July 2016) declared that the tolls regime - and the navigation charges - were “reasonable”, but the transcript of the case makes clear that the Court relied upon the Authority’s evidence that these toll charges had been considered by members. I wonder if the Judges would have reached the same conclusion had they known not only that tolls for static vessels in adjacent waters had never been discussed by members, but that they’d been prevented from doing so for the previous 4 years?

Since 2012, the Authority has pursued this case without ever allowing members to debate the issues or re-consider the charges for static houseboats in adjacent waters. The focus has always been on whether the law allows the Authority to make such a charge - and not on whether the toll charged is fair or reasonable. As a result, tens of thousands of toll payers’ pounds have been expended on batting the ball back and forth over the net and, the longer it’s gone on, the more difficult it has been for the Authority to consider reviewing its entrenched position. Even the courts who have found in the Authority’s favour have largely done so reluctantly, agreeing that the charge “seems to be unfair” but finding that the law is “unfortunately” unarguable.

And so it goes on. The ridiculous cost of pursuing this case has far outweighed any benefit to toll payers, and the executive have gone to extraordinary lengths to prevent members from scrutinising their actions - including false allegations of financial interests, inappropriate use of sub judice rules, falsification of meeting notes, broken promises and general obfuscation & procrastination.

How can a publicly funded authority be allowed to run up legal bills over 5 years and yet prevent its members from holding it properly to account? Another spectacular failure of governance.

Note - this article represents my personal and private views, and not those of the navigation committee. I attest that I am not acting in my capacity as a member of the navigation committee, as the committee has not been allowed to discuss this matter, and 5 years is more than enough time for it to have been permitted to do so.