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.


  1. I'm sorry but there are many vessels, moored in similar situations and pay their dues, whether 'Able to go to sea or not' Wherever you live, free accommodation is never an option. I don't use a library but I still pay for its provision for others. I know there are a lot of other issues with T.B.A. Particularly about their authority, accountability, etc. But you put a boat on a Broads, and Waveney Centre is, with access to the river, then you pay your licence fees. Perhaps the BTA could introduce SORN for vessels.

    The activity of the Broads Authority in administrating the rules is another matter. And should be dealt with separately.

    But I hope that the BTA are being uniform in their approach and are not just picking on this vessel; and are chasing other water gypsies.

    Mine are personal comments and not probably wanted to be heard. I've not had a vessel on the Broads for over 5 years, health. Enjoy what we have but pay for it's maintenance.

  2. Addendum. How many other sedentary vessels are there? Have they paid? Or is this a Joan of Arc?. You could finish up with vessels littering the Broads, just moored 'We can't move' Loss of income for the navigation (hopefully) Now going away to don my Tin Helmet.

    1. That is weird - I remember replying to this and its all disappeared… So I don't know how many there are, but my guess is 10-20. Not very many. I'm perfectly comfortable with boats in adjacent waters paying a toll, as long as they *could* use the navigation. If they can't, well I don't see that they are any different to a riverside cottage. It just so happens that they're floating on the water, rather than sitting beside it.

  3. This isn't the BA - dissenting comments are welcome, although preferably not anonymised please. Generally I would agree - if your boat can access the river, then you should pay a toll. But if it *can't* use the river - by virtue of size, lack of manoeuvrability and lack of engine for example - then I don't believe that there should be a toll, because there the toll is for the use of the navigation. The argument about paying for libraries etc doesn't stack up - he pays his council tax like anyone else. The Broads toll is a separate additional charge for the fact that his house floats. If you picked it up and put it on the land beside then there would be no toll. In terms of how many - well I don't know for sure, but very few. Between 10 and 20, at a guess.

  4. Maybe that is the test James, if a floating object, when placed onshore within TBA's area would not attract a toll, then when afloat it should not be liable either. Tony Bennett

  5. Well, No Surprise that I applaud James for his post: the adjacent waters toll at full rate is disgraceful, and James' post explains how Navigation Committee have been manoeuvred into a profoundly unreasonable, and I believe unlawful position. It is intolerable not only because it is arbitrary and unreasonable to charge full rate, but also because BA have contrived to persuade DfT that the S.31 Harbours Act appeal procedure does not apply to the adjacent waters toll. This means the toll is effectively a tax, non-payment of which is a criminal offence, but where there is no legal process to challenge or review the charge. This is a very unusual, perhaps unique animal in English law - and frankly is abhorrent in a democracy!
    James makes a very powerful argument that the toll is unfair particularly on static/immovable vessels, but I believe it is unfair also on those boat owners who, for whatever reason choose not to venture into the BA navigation area. For generations no toll was ever collectable in adjacent waters. BA have a force of patrol officers and launches to police the system, and it is a criminal offence to avoid payment - which is the case in very few harbours. BA are more than adequately resourced to manage and enforce the tolls regime and this penal full rate charge in adjacent waters is profoundly unfair and unnecessary. The only reason BA have been able to get away with it so long is that they have been able to hide behind their very questionable argument that the appeal procedure does not apply.
    I have recently drawn the attention of all Broads area MPs to this scandalous situation, likewise RYA and NSBA although I am appalled to hear informally that NSBA have no appetite to make an argument over it. That in itself is extremely worrying.
    James has outlined the tortured progress of Allan Fry's persecution by BA - they would say that their toll has been fully considered by the courts. That simply is not the case. I believe it is essential that this toll which is totally out of kilter with established fair harbour practice urgently needs focussed, experienced legal scrutiny, and I have offered my own willingness to contribute to the cost of such advice.
    Mark Wakelin

  6. It sounds to me, as though someone is pushing a 'test case' through the courts, in the hope that a boatyard/marina/moorings etc. might be filled with non toll-able craft ("no engine, so can't go anywhere, Guv) for residential use or holiday lets... A friend, recently hired a 'static' Dutch Barge at Pin Mill, on the River Orwell (more than £1,000 for five days hire, out of season!). So,I imagine someone could make a lot of money doing similar on the Norfolk & Suffolk Broads... A bit limiting though, for owners or hirers of toll paying craft. As the aforementioned 'adjacent waters' begin to fill up with, very profitable, non toll paying craft. While yet more moorings disappear...

    1. It's interesting that you should mention the barge at Pin Mill, Andy, as this was actually moored at Waveney River Centre beside Alan Fry's barge! Unfortunately, when the BA decided to impose a huge toll on them despite the boat being static and in adjacent waters (2.5 times the normal rate due to being used as a houseboat for hire), the owners decided to move it to Pin Mill who were far more welcoming. The Broads' loss was Pin Mill's gain :-(

  7. Andy Pandy - you are off the mark with this comment: Alan Fry has lived aboard his barge at WRC for many years, paying full mooring charges and also council tax. For him it is a simple lifestyle choice, not any kind of boundary testing exercise, and the additional 'tax' BA have in recent years placed upon him is a very unfair imposition. It is BA who drag him into court, year after year, with seemingly limitless funds to pay senior barristers to 'defend the indefensible'. Alan Fry refuses to pay the adjacent waters toll only because he believes it is fundamentally wrong, and we all owe him a debt of gratitude for having the tenacity to carry on with his resistance. BA have managed to deprive him, and all of us of our proper legal right to challenge this invidious toll!
    As regards the static barge on Pin Mill Hard, it trades on the unique character of Pin Mill and it is amazing so many people are willing to pay premium prices for this. In the Broads the situation Andy P envisages was exactly the norm prior to the 2009 Broads Act - houseboats in adjacent waters did indeed pay no toll and indeed there were one or two developments where this was allowed to expand too much with awful results, but those were exactly the eyesores which gave rise to foundation of Broads Authority which has ample planning powers to manage such situations - they have no need of unreasonable, arbitrary and unlawful tolls practices.

  8. Beginning to warm up nicely! Entirely typical maneuvering of BA committees.

  9. Im in two minds over this so bear with me.
    If Alan had paid his tolls like the rest of us (and he did the first year) the ba wouldn’t have had to spend all this money (our money) chasing him for payment.
    I don’t think he should have to pay it, but he’s broken the law by not paying it and has somehow managed to drag the appeal on for years to avoid receiving a conviction.
    I don’t know all the ins and outs but how on earth has he carried this on for so long ? His own legal bills must be astonishing, and surely far far more than the cost of the toll he would have paid if he’d just accepted the charge like the rest of us do.

    1. Well I don’t know all the ins and outs of Alan’s personal case, as he has been careful not to involve me in his side of it. But as I understand it, he challenged the first toll but was convicted so he paid it. Then in the second year he challenged that toll too, was convicted and then successfully appealed. He has carried out his own defence so he has no legal fees to meet. Ultimately he believes the charge to be unfair and so he’s chosen to resist it. I believe that this is another case of the BA imposing something because it can, rather than because it should, and that there is no moral justification for it.