Broads Tolls 2023 Objection - how to respond

The Broads Hire Boat Federation has launched a formal challenge against the Broads Authority's decision to increase tolls by 13% on 20th January 2023.

The BHBF believes that the tolls are unlawful, because:

• the 2 week “consultation” was wholly inadequate and unlawful;  
• the majority of the increase was required to fund non-navigation activities, contrary to the Broads Act 1988.

Consequently, the BHBF have objected to the new charge on the ground that it “ought to be imposed at a rate lower than that at which it is imposed” (this is one of the 4 legitimate categories of objection under s31 of the Harbours Act).

The challenge was submitted to the Department for Transport on 11th October 2023, having obtained a barrister's opinion on the legality of the decision, and was advertised on 22nd November 2023.

Interested parties (principally toll payers) are invited to submit representations by 3rd January 2024, to assist the Secretary of State in considering the objection. 

Those objections can be emailed to Paul Sharpe at the Maritime Directorate - Paul.Sharpe@dft.gov.uk

This is not a campaign to create noise  - we want the Secretary of State to see that these charges are unfair for thousands of tollpayers, and every toll payer will have their own story to tell. 

Making a representation

The subject line of your email should be “Harbours Act objection to Broads Navigation Charges for 2023”.

1. Who are you?

Start by giving your name, and the name and Broads registration number of your boat. This shows that you are a toll payer and are affected by the charges. If you own more than one boat then say how many – but you don’t need to list them all.

2. How do the tolls affect you?

Here are some things you could mention:

• How you use your boat
• How long you’ve owned it
• What is the value to you (rest and relaxation, competitive sailing, fishing, mental health benefit, etc)
• How many other people benefit from your boat (family, friends)
• Whether you or your kids have gone on to have some kind of career in the boating industry, or gained qualifications, as a result of starting on the Broads.

It doesn't matter how big or small your boat is, or how often you use it. The idea is to demonstrate that the tolls affect a wide range of different people.

You might also want to mention any change in the quality of the Broads navigation over the years which you have noticed, and which has affected you. For example:

• Difficulty finding a public mooring
• Running aground
• Shortage of electricity hookups
• Excessive tree growth preventing sailing
• Fallen trees causing obstructions

Mention things which have affected you personally - not just things that you've heard about. 

3. Why is the increase unfair?

The BHBF challenge is principally based upon the lawfulness of the 2023 tolls (not the more recent 2024 decision, at least not in this objection) - but you’re not expected to explain why the tolls are unlawful (unless you want to). 

What you should do is:

• state that “the charge ought to be imposed at a rate lower than that at which it is imposed” 
• explain why you think the tolls are unreasonable, unfair or unjust for you as a toll payer.

The visible “consultation” for the increased tolls started with the release of the navigation committee papers on 6th January 2023, and by 20th January the decision had been made. That's less than 10 working days. There is no evidence to support the Chief Executive’s claims that the Authority’s standard consultation process was followed, or that it began in October 2022. The BHBF say that this was unlawful - you might also have a view on whether it was fair or reasonable:

• As a toll payer, when did you first hear about the proposal for a 13% tolls increase? 
• Did you know about it before the decision was made?
• Do you feel that the consultation was adequate?

Navigation charges are very specifically raised to pay for maintaining the navigation - and The Broads Act states that navigation income must equal navigation expenditure. Navigation charges must not be used for non-navigation purposes.

Over the years navigation charges have gone up by more than inflation, but in 2023 they were increased by 13%, largely because the DEFRA grant for non-navigation functions was said to be insufficient. 

To quote the Chief Executive “The reduction in the real value of National Park Grant, for the fifth year in a row led to a review of the shared budget lines between National Park and Navigation to provide a fairer representation of the splits for shared costs”.

In other words, the share of navigation income used to fund non-navigation (“national park” functions) increased because the value of the DEFRA grant which funds those non-navigation functions decreased. The BHBF believes that this was unlawful.

So, you could say that:

• The Authority should have tried harder to reduce non-navigation expenditure, in the light of the reduction in funding from DEFRA.
• It was unreasonable of the Authority to raise extra funds from toll payers to pay for non-navigation expenses.

You might also have a view on whether you think that tolls income is well-spent, given your own experience of the navigation area.

By setting an unlawful charge for 2023, all future charges calculated using the same methodology (including the 8.5% increase agreed for 2024)  are also unlawful - as boat owners are expected to pay an ever-increasing amount for non-navigation expenses which they should not have had to pay in the first place.

Pick out the bits which most strike a chord with you as an individual, and don’t feel that you need to write an essay. But the key things are to:

• state that “the charge ought to be imposed at a lower rate than that at which it is imposed”;
• mention reasonableness or fairness;
• explain the way that the tolls affect you as an individual toll payer.

Remember to send your response to Paul.Sharpe@dft.gov.uk by 3rd January 2024 - so do it now, or at least before Christmas, so that you don't forget.

If you'd like to investigate the legal background, here is a summary of the BHBF's grounds for objection: 

• The Navigation Committee consultation (such as it was) was unlawful and in breach of the first, second and third of the Gunning principles.
• The Broads Authority failed to comply with its statutory duties to consult stakeholders pursuant to section 3 of the Local Government Act 1999.
• The justification provided by the Broads Authority for the toll increases was unreasonable and unlawful, insofar as it proposed the use of navigation income to fund non-navigation activities.
• The rationale for the changes was in breach of the Broads Authority’s accounting and auditing obligations under section 17 of the 1988 Act. 
• The increases are unreasonable insofar as no detailed evidence-base was provided and increases were put forward on an erroneous basis – to mitigate for a static grant from DEFRA which related to National Park expenses and not navigation functions.

 

Navigation Charges - an open letter to all members of the Broads Authority

On Friday 24th November 2023, the Broads Authority board will meet to discuss proposals for another inflation-busting tolls increase - click for the papers.

These proposals have caused some disquiet amongst toll payers.

My letter to all members of the board, sent today (21st November) is copied below. I hope that it might make members understand the real effect of their actions on the Broads' economy.  Perhaps some of them might even be persuaded to take a different view to the officer recommendation.

Dear Member of the Broads Authority

 

I am writing to you as a hire boat operator, a member of the Broads Hire Boat Federation’s executive committee, a private boat owner, and a former member of the Broads Authority and navigation committee for 12 years.

 

This week, you will make a decision which will not only affect individual toll payers and hire boat operators, but the entire Broads holiday industry and its supply chain. 

 

Thousands of jobs rely on Broads tourism which has, at its heart, the hire boat industry. The fortunes of our riverside pubs, restaurants, shops, galleries and visitor attractions are directly related to the volume of boating visitors - and there are numerous local suppliers who rely on the hire boat industry to support them. From upholsterers and canopy makers to suppliers of windows, engines and electrical equipment, hundreds of jobs depend on the local boating industry. You will also have read in your papers that the rivers have been quieter this year, and you are unlikely to have missed media reports of the numerous pubs and restaurants in the Broads which have closed their doors.

 

Earlier this year, the Broads Authority chose to impose swingeing tolls increases of 13% across the board, without proper consultation, and in breach of the Broads Acts. This increase has been formally challenged with the Department for Transport by the BHBF, supported by a legal opinion from a barrister, and BRAG have made a similar objection on behalf of private boat owners. Now, a further increase is proposed which would result in a cumulative increase of up to 24.5% in just 2 years. 

 

Every organisation has to make difficult decisions as a result of changing costs and customer demands. In 2023, hire boat businesses such as our own experienced a year-on-year decline of 20-25% in bookings, to which many businesses responded by dropping prices by up to 40% in a last-minute attempt to stimulate sales. This fall in demand has coincided with increasing costs, the largest of which in both percentage and monetary terms are the Broads Authority tolls.

 

It is not possible for hire operators to use the BA-style methodology of increasing holiday prices to offset these increasing costs - demand would simply drop further. In fact, Hoseasons - the main booking agent for Norfolk Broads holidays - have recommended a price freeze for 2024. As a direct result of these combined pressures, some operators (including ourselves) are selling holiday cruisers rather than refurbishing them - because, if costs increase, then savings must be made. The effect of these actions will be felt across the supply chain - new upholstery delayed, an engine replacement deferred, a new boat cancelled. This is against a background of a year-on-year decline in the number of hire boats, to which the Broads Authority’s response is to increase the cost burden on the remaining vessels. This clearly isn’t a sustainable business model and members must recognise that, when income declines, expenditure must be reduced to balance the books.

 

Your papers tell you that, in order to maintain “service levels”, tolls must rise. But, in order to maintain a thriving boating industry, tolls must actually go down. The 2023 tolls increase was a mistake by the Authority, not just because the consultation was fatally flawed, but because it diverted navigation income to fund non-navigation expenses - contrary to the law. Every year, the Authority sets budgets for navigation and non-navigation (“national park”) purposes, and those budgets should be set according to the income available for those purposes. Every other National Park has to cut its cloth according to its means (not having a navigation account to dip into) - and the Broads Authority is obligated to do the same. However, in 2023, instead of reducing “national park” expenses to reflect the funds available, the Authority decided that it would rather use navigation income to subsidise those functions, by “reviewing” the overhead recovery ratios using a series of arbitrary metrics. The BHBF’s barrister is of the clear view that this was a breach of the Broads Act 1988, rendering the 2023 tolls decision unlawful. 

 

Just 3 weeks after that decision was made, the BA received an apparently unexpected £440,000 additional grant from DEFRA, to address the shortfall in funding for national park purposes, meaning that the financial hole was filled more than twice over - extinguishing any remaining justification for the unlawful misappropriation of navigation funds. 

 

The officer recommendation for your decision this week is predicated on maintaining service levels and protecting jobs. But protecting the jobs of its employees is not a statutory function of the Broads Authority, and - in fact - the tolls increases are causing jobs to be lost in the private sector. It is the duty of every member to protect the public interest and the Broads itself - not to protect the interests of the Broads Authority.

 

Furthermore, far from being required to maintain navigation service levels, the additional increases proposed are to a large degree being used to maintain “national park” service levels. This is an unlawful use of navigation income, and the January 2023 decision to provide additional subsidy to national park functions must be reversed before any decision is made on tolls for 2024. 

 

Your papers remind you of the need to give reasons if you choose not to heed the advice of the navigation committee - but that advice is, at best, unclear. All we know is that the committee were offered 3 choices, and that they voted 6-4 for the least unpalatable option proposed by officers. The papers tell you next to nothing about the advice or opinions of the members - they just report the officer answers to some questions raised, and we can’t begin to guess whether the 4 who voted against wanted a higher increase, or none at all. Once again, you’re asked to make a decision based on a consultation when you’ve not seen the minutes, and the vote shows that there must have been a wide variation of opinion - none of which is reported in your papers. 

 

In conclusion, you are being asked to approve a tolls increase which exacerbates an already unfair and unlawful decision earlier this year, based entirely upon a desire to preserve a “service level” which is unaffordable to the Authority and which relates in large part to non-navigation functions. The cumulative effects are significant for toll payers, and I call upon you to recognise the damage which the Authority is doing to the Broads economy and to its own reputation. I ask you to reject the officer proposals and to insist that the 2023 “review” of shared overheads is revisited to ensure that navigation income and expenditure are equal (as required by law) and that the Authority lives within its financial means across all of its statutory functions. 

 

Thank you for considering my request. 

 

Kind regards

 

James Knight

21^st November 2023