More on BW v Davies (re: Continuous Cruising)

Following the recent judgement of the case between British Waterways (BW) v Davies, the National Bargee Travellers Association (NBTA) issued a press release which commented on BW’s earlier press release.

In an attempt to get both sides of the story, the following report attempts to merge the points of view of BW and NBTA – with a few comments from Waterway Watch (WWatch). We will also post this on our forum to encourage more debate:

NBTA: The judgement in British Waterways v Paul Davies handed down on 31st March 2011 in Bristol County Court could have serious consequences for all continuously cruising live-aboard boaters. However, the outcome also means that British Waterways (BW) is to redraft the Mooring Guidance for Continuous Cruisers. In particular BW is likely to drop the requirement to make a progressive journey and to travel around a significant part of the canal network.

BW: British Waterways welcomes boaters who genuinely continuously cruise. The Judgment has implications for those who do not. We are revising our mooring guidance and will publish this in due course, however boaters will still be required to engage in a genuine and on-going cruise or journey of some length.

NBTA: The judgement was sealed in the County Court and therefore only refers to Mr Davies. It does not create a formal legal precedent, but it is clear that BW will try to rely on it in future cases.

BW: As per our press release, the decision of the Learned Judge in the case of British Waterways v Davies will be binding on lower courts (and District Judges) and persuasive on Circuit Judges throughout England and Wales.

NBTA: The judgement ruled that Mr Davies, who works, socialises and navigates in the 10 mile stretch between Bath and Bradford on Avon, was not using his boat bona fide for navigation. This aspect of the judgement did not consider the right to respect for his home, family and private life conferred by Article 8 of the European Convention on Human Rights. As a consequence of this judgement, many live-aboard boaters may be rendered homeless by BW.

BW: The arguments relating to Article 8 were fully ventilated at a contested hearing on 31 March 2011 before His Honour Deputy Judge O’Malley. As a result of the submissions made by Queens Counsel for both parties, the Judge conducted a balancing exercise and gave Mr Davies 3 months (30 June 2011) to remove his boat. The Judge will deliberate on the other relief sought by BW and an Order in relation to this is awaited. Nevertheless it is clear that Mr Davies cannot remain on our waterways without complying with BW’s requirements. The Order will also be published by BW once we receive it.

WWatch: There do seem to be two obvious questions here. If Mr Davies works and socialises within a 10 mile stretch is that not a contradiction of the term ‘continuous cruising’? Also, if he wishes to stay in the area, am I correct in assuming that the reason he hasn’t taken a long term mooring is because of the lack of suitably priced moorings in the area?

NBTA: The judgement on the meaning of “bona fide for navigation” appears to suggest that a live-aboard boater without a home mooring must genuinely intend to navigate the canal system and not move simply to comply with the law.

Nick Brown, the Legal Officer of the National Bargee Travellers Association (NBTA), said “This really does pave the way for social cleansing. The judgement defined ‘bona fide for navigation’ as the intention to navigate in good faith. According to this logic, if you drove at 30 miles per hour in a 30 MPH zone you would be prosecuted for speeding if you were simply observing the speed limit in order to comply with the law, rather than because you believed that 30 MPH was the appropriate speed to drive at. This would make BW the ‘Thought Police’ “.

WWatch: Well, in my experience one of  best ways to lose the support of a lot of fair minded people is to start using emotive or intemperate language like ‘social cleansing’ and  ‘Thought Police’. In my view the Guardian made the same mistake by quoting the phrase ‘social cleansing’. These are offensive terms and if they are repeated I will not be giving any more space to the writer. This debate is about trying to find a fair way to dispense the rights of navigation and mooring amongst all users. Its OUR waterway and we need to find ways and means to share it without throwing around personal or offensive insults.

NBTA: On the positive side, any live-aboards subjected to Section 8 action by BW must be given the opportunity to defend themselves in court.

BW: As a general rule, this is already our standard procedure – there’s nothing new here.

NBTA: What BW is glossing over is that although the court found that Mr Davies was not using his boat bona fide for navigation, the judgement envisaged a use of the boat that falls short of the Mooring Guidance for Continuous Cruisers but would still comply with the legislation. In consequence, BW has now accepted that it does not have the power to enforce the continuous cruising guidelines in their present form.

BW: We don’t accept this, and are progressing other cases where legal proceedings are already underway.

NBTA: The NBTA is taking legal advice.

The National Bargee Travellers Association was established in 2009 to represent and advise Bargee Travellers (itinerants who live on boats) in particular in relation to their housing needs and in defence of their rights under the European Convention on Human Rights. It is a networking organisation that helps vulnerable boat dwelling communities protect themselves.

The NBTA also liaises with the settled community and works with public sector bodies such as British Waterways and the Environment Agency in formulating policy and legislation.

4 comments to More on BW v Davies (re: Continuous Cruising)

  • Peter Underwood

    The behaviour of some BW officials at a very senior level leads many old hands on the waterways to conclude they are anti boater never mind continuous cruiser.

    • Will Chapman

      Peter, if you can be more specific I will ask BW to comment. I would expect that BW are well aware of the primacy of boats on a navigation. The Transport Act of 1968 establishes that BW has a statutory responsibility to:

      1. Maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels

      2. Maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

      It would be difficult to reconcile that legal responsibility – which I understand will be transferred to NWC – and be ‘anti-boating’

  • Paul D

    Interesting to emerge from all this is that it's now clear that bw staff enforce s.17 (the cc guidelines and bona fide navigation) in ignorance of its legal meaning (there is none) and that boaters, such as myself, attempt to comply without knowing what we actually have to do… On this basis I have been socially displaced and had to make myself unemployed (as no moorings are available) in order to save my home and comply with the court ruling based upon an intent to a) navigate every 14 days (I move more than most), b) maintain my home (fill up with water/attend to toilet duties/recycle) and keep within an area so I can earn a living to pay for my licence (unreasonably refused and returned to me by bw). I don't drive and rely on access to work by public transport.

    The ruling is so appealable, especially as the commons select committee notes informing the process from which the bw 1995 act emerged states quite clearly its intent in respect of bfn – every 14 days or longer.

    As the ruling only reflects upon myself, I strongly urge anyone else facing a section 8 (removal of home) to defend through a court in order to evade unemployment. Paul D.

  • Paul

    …by the way, the court got me on intention – that my primary objective was to maintain my home and access to work when my intention should have been to navigate in good faith. Following this logic, one has to look at the primary intention of the Transport Act and section 43 upon which bw claim their guidelines are built. I'd say that the primary intention of the Act is to regulate vessels used for transportation, and has nothing to do with guidelines that have no force of Law. Neither can a licence be demanded under s.43 when licencing is regulated by the BW 1976 general Canal byelaws. Thats £m's unlawfully demanded and paid unnecessarily by boaters. Took me 6 months to find another job…

Leave a Reply

A sample text widget

Etiam pulvinar consectetur dolor sed malesuada. Ut convallis euismod dolor nec pretium. Nunc ut tristique massa.

Nam sodales mi vitae dolor ullamcorper et vulputate enim accumsan. Morbi orci magna, tincidunt vitae molestie nec, molestie at mi. Nulla nulla lorem, suscipit in posuere in, interdum non magna.