We have decided to wind up our campaign Protect boats that are people's homes! on CrowdJustice because the legal action cannot realistically proceed any further without an individual claimant who is eligible for Legal Aid. This is because CRT has made it clear that it will demand the appointment of an individual as an additional claimant as a condition of permission being granted to bring a Judicial Review. The campaign will close on 29th December 2021.

We are extremely grateful to everyone who has made a donation to this appeal. Thank you so much for your assistance and support. Although the campaign may not proceed any further in its current form, the progress that we have made with your help has been invaluable. We are now looking for liveaboard boaters who are affected adversely by the changed Terms and Conditions and who are likely to qualify for Legal Aid (ie on a low income or benefits) to take this matter forward. If you think you might be able to do this, or know someone who may, please contact Community Law Partnership’s Travellers Advice Line on 0121 685 8677 (Monday to Friday 9.00 am to 1.00 pm – closed from 17th December to 4th January). Thank you!

There has not been very much to report since the last update in September. We received further advice from a senior Barrister regarding Canal & River Trust’s (CRT) response to our second Pre-Action Protocol letter. This advice confirms the previous advice that we obtained.

Since the last update, after further prompting from our lawyers, CRT has now implemented its decision to revert to the previous wording of Clause 5.4 in the new Terms and Conditions (previously Clause 4.1 in the 2020 version).

Many thanks for your fantastic support – we couldn’t have got this far without you.

We are extremely grateful to all the supporters who have made donations to this appeal. There has not been very much to report since the last update at the end of June. The appeal has been paused and may be wound up soon. This will not prevent us opening another appeal to continue the case if we believe this is necessary and appropriate. We have used the remainder of the funds to seek further advice from a senior Barrister regarding Canal & River Trust’s (CRT) response to our second Pre-Action Protocol letter. 

Our lawyers Community Law Partnership have also written to CRT asking why it has not implemented its decision to revert to the previous wording of Clause 5.4 in the new terms and Conditions (previously Clause 4.1 in the 2020 version).

We believe that we have reached the limit of what this legal challenge can achieve without an individual claimant who can be added to the case. This is because CRT has made it clear that it will demand the appointment of an individual as an additional claimant as a condition of permission being granted to bring a Judicial Review of the changes to the Boat Licence Terms and Conditions. We are therefore seeking an individual boat dweller (who is eligible for Legal Aid so on a low income) who is willing and able to take on this role.

If you think you might be able to do this, or know someone who may, please contact our lawyers on their Travellers Advice Line 0121 685 8677 (open Monday to Friday 9am to 1pm). Thank you!

CRT has made minor changes to the new Boat Licence Terms and Conditions (T&C) in response to our Pre-Action Protocol letter of 31st May 2021, but has not altered its position on the major issues challenged.

CRT has agreed to revert to the 2015 wording of Clause 5.4 (this is Clause 4.1 in the old 2015 T&C). Instead of:

“Boats without a Home Mooring or ‘Continuous Cruisers’ Boats:

5.4 You must Cruise on Our Waterways in accordance with Schedule 1 [ie Guidance for Boaters Without a Home Mooring] and the British Waterways Act 1995.”

the wording will revert to:

“You must cruise in accordance with the British Waterways Act 1995. 

The Guidance for Boats without a home mooring is contained in Schedule 2 and sets out the Trust’s understanding of what is required to comply with the British Waterways Act 1995.”

We objected to the initial wording of 5.4 on the grounds that it sought to give a guidance note, the ‘Guidance For Boaters Without a Home Mooring’, the same status as an Act of Parliament.

CRT also admitted that two clauses were included in the 2021 T&C in error. Clauses 4.3 and 10.10 have been removed; we objected to Clause 10.10. These were:

"4.3: You must provide details of persons Using the Boat at any given time upon request" and

"10.10: The Boat must not display an association with, or advertise, any company, business or service without Our express consent in writing".

CRT has stated that it will not remove Clause 5.1, Clause 10.11 or the altered wording on page 1.

Clause 5.1 places extremely onerous requirements on boaters with a home mooring:

“You must travel on a journey when You are away from Your Home Mooring. Your journey should be a genuine journey. It should start and end at Your Home Mooring. It does not have to be over a certain duration, distance or range, or follow a single direction. It cannot contain short, repeated movement in a small part of the Waterway for an extended period, unless You return to the Home Mooring between repeated trips. Each time You leave Your Home Mooring You start a new journey.” CRT claims that Section 43 of the Transport Act 1962 empowers it to impose these requirements.

Clause 10.11 appears to extend the scope of the 1995 Act by demanding a specific type of insurance for towing, over and above what is required by Section 17(3)(b) and Schedule 2 of the Act.

The changed wording on page 1 separates the Standard Canal and River Licence into two categories, effectively creating a new licence called a “Continuous Cruising licence” and calling a boat licence with a home mooring a “Pleasure Boat Licence” whereas a Pleasure Boat Licence should be able to be obtained either with or without a home mooring. This appears to be an attempt to re-interpret Section 17 of the British Waterways Act 1995.

The latest version of the new T&C, dated 15th June 2021, is online at the link below but the T&C have not been updated in line with CRT's assurances detailed above.

 https://canalrivertrust.org.uk/refresh/media/thumbnail/43943-general-terms-and-conditions-for-boat-licenses-june-2021-searchable-file.pdf

CRT has now requested an extension of time to respond in full to our second Pre-action Protocol letter of 31st May. Consequently CRT has stated that it will not enforce the disputed terms until 21st June 2021.

Canal & River Trust  (CRT) has made an initial response to our Pre-Action Protocol letter. CRT has refused to stay the new Boat Licence Terms and Conditions as we had asked, but has stated instead that it will not enforce the disputed terms until 16th June 2021.

This is an extract from the letter from CRT’s solicitors:

“...We note that you request a response within 7 days of your letter and that you are prepared to agree to extend the deadline if it is agreed that the introduction of the new Terms and Conditions will be stayed until at least 14 days after a substantive response to your letter.

The Pre-Action Protocol for Judicial Review expects that a response should normally be made within 14 days...

Our client does not agree to your request that the Terms and Conditions which came into force on 1 June 2021 should be stayed until at least 14 days after our client’s substantive response. However, while it is considering the points raised, our client has confirmed it will not take enforcement action in relation to the specific terms from the Terms and Conditions which are referred to in your letter until it has sent its substantive response to your pre-action letter. For the avoidance of doubt, our client has confirmed it will not take enforcement action in relation to clause 5.1, clause 5.4 and clause 10.10, clause 10.11 until Wednesday 16 June 2021”.

We expect to receive a substantive response from CRT on 15th June 2021.

Now that CRT has published its revised Boat Licence Terms and Conditions, our lawyers sent a second pre-action protocol letter to Canal & River Trust (CRT)  on 31st  May 2021. Again, a heartfelt thank you to everyone who has contributed to our appeal. Without you this legal challenge would not be possible.

This is an extract from the letter:

The Details of the matter being challenged:

1. The carrying out of the consultation online. 

2. Proposed new clause 5.1 with regard to ‘Boats with a Home Mooring’.

3. The introduction of new amendments to the Terms and Conditions which have not been consulted on namely: 

(i) On page 1 of the new Terms and Conditions the use of descriptions ‘Pleasure Boat Licence’, ‘River Licence’ and ‘Continuous Cruiser Licence’. In addition proposals to introduce new clauses 10.10 and 10.11.

(ii) The change from the old 2015 Terms and Conditions which stated:

“4. Boats without a Home Mooring or ‘Continuous Cruisers’

4.1. You must cruise in accordance with the British Waterways Act 1995. The Guidance for Boats without a home mooring is contained in Schedule 2 and sets out the Trust’s understanding of what is required to comply with the British Waterways Act 1995.”

to 5.4 of the new Terms and Conditions which states:

“Boats without a Home Mooring or ‘Continuous Cruisers’ Boats:

5.4 You must Cruise on Our Waterways in accordance with Schedule 1 [ie Guidance for Boaters Without a Home Mooring] and the British Waterways Act 1995.”

The issue:

…… 2. We note the proposed new clause for boats with a home mooring. Section 17(3) of the British Waterways Act 1995 sets out the circumstances in which a Licence may be refused. It does so by stipulating a number of conditions that must be met, and if they are not met, CRT may refuse a Licence. It is a reasonable interpretation to say that if those conditions are met, a Licence may not be refused. Under s17(3) (c) it is necessary to satisfy CRT of either (i) or (ii) but not both. The first of these deals with those who are able to satisfy CRT that they have access to a home mooring. There is no requirement for these individuals to cruise when they are away from their mooring. In fact, there is no requirement for them to do anything when they are away from their mooring. The section does not seek to impose any obligation on these individuals to use the waterway in any particular way or not use it in any particular way. So long as they satisfy CRT they have a mooring, they cannot be refused a Licence. If their failure to cruise cannot form the basis of refusing a Licence, it cannot lawfully afford the basis of revoking their Licence. This proposed condition is unlawful. This condition should clearly be withdrawn immediately.

3. The new matters that have been imposed in the Terms and Conditions have been done so without consultation and this is a clear and obvious breach of the Consultation Principles. For that reason alone, these Terms and Conditions should be removed until proper consultation takes place. 

4. The introduction of new phrases on page 1 appears to be an attempt to re-interpret s17 of the 1995 Act. This is unlawful.

……… 7. The change to the Term with regard to (so called)  ‘continuous cruising’ purports to give the Guidance the same status as the 1995 Act whereas the 2015 Term merely stated that boaters "must" cruise in accordance with the 1995 Act and then drew attention to the Guidance stating that the Guidance sets out the Trust's "understanding" of what the 1995 Act requires. For the record our client does not believe that the Guidance is a correct or lawful interpretation of the 1995 Act but accepts that that argument is for another occasion. 

The details of the action that the Defendant is expected to take:

1. By withdrawing the new Terms and Conditions and by carrying out a proper consultation process, not just a process carried out online.

2. By withdrawing the proposed Term 5.1.

3. By either withdrawing the descriptions on page 1 and new Terms 5.4, 10.10 and 10.11 or by including those proposed terms in a new consultation process.

Proposed reply date:

Given that the consultation response from CRT and the new Terms and Conditions have only just been published and are now going to be brought into force as early as 1st June, we will reduce the relevant deadline for response to 7 days. We are happy to extend that deadline if it is agreed that the introduction of the new Terms and Conditions will be stayed until at least 14 days after a substantive response to this pre-action protocol letter.

We await the response from CRT. 

Canal & River Trust (CRT) published its revised Boat Licence Terms and Conditions on 24th May. These have been slightly re-worded but have not fully taken consultation responses into account.

The NBTA and other concerned people and groups will continue the legal challenge to the new Boat Licence Terms and Conditions. We are very grateful to all the supporters who contributed to the appeal to fund the legal challenge. Now we know exactly what we’re up against, please would you help to give the appeal another push? Please keep sharing this page and tell your friends and family about it.

Notably there are a number of changes that CRT has included in the final version of the revised Terms and Conditions which were not included in the consultation, so boaters have not had an opportunity to comment or even to assimilate the changes. CRT has stated that the new Terms and Conditions will be applicable to new and renewed boat licences from 1st June 2021.

A more detailed analysis of the changes is here 

Our lawyers have now sent a Judicial Review pre-action protocol letter to Canal & River Trust (CRT).

Although no final decision has yet been made by CRT on the proposed new Boat Licence Terms and Conditions, our lawyers have sent a pre-action protocol letter to CRT regarding the consultation process itself, specifically the method of consultation used in this case. 

This is an extract from the pre-action protocol letter:

“The consultation itself was presented so that it could only be completed online. We note that a letter sent to all Licence holders dated 30 September 2020 CRT states in bold: ‘Please note that only surveys completed via the online survey will be considered’. 

We would refer to the Government Code of Practice on Consultations which states inter alia, with regard to Criterion 4 (Accessibility of Consultation Exercises): ‘Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach’ (see page 10 of the Guidance).

It is well known that a large number of the boating community are digitally excluded either in that they do not have any online access or that they have grave difficulties in dealing with anything online. Our clients were contacted by several liveaboard boaters who were having grave difficulties in dealing with the consultation, some of whom were simply unable to respond to the consultation. Indeed, two of those who contacted our clients had only just become aware of the consultation at all (after the deadline for submitting responses to the consultation).

In restricting this consultation to online responses, clearly a large number of liveaboard boaters and other boaters will have been excluded from the possibility of responding to the consultation or will have suffered grave difficulties in responding to the consultation. In these circumstances this consultation is clearly in breach of the Government guidance, is unfair, unreasonable and, given that it deals with a way of life and thus involves Article 8 of the Human Rights Act 1998, is disproportionate.” 

The letter details the action that CRT is expected to take in remedy, as follows:

“By confirming that the consultation process will be re-opened and that the Defendant will ensure that the process is made fully inclusive and takes account of those who would wish to respond to this consultation but are either not able to respond online or find it extremely difficult to respond online.”

We await the response from CRT.

Thanks to all of our backers for your fantastic response. You can help us reach the target by continuing to share the campaign on social media, by email or in a blog. Our lawyers have started work and we should have more to report in a week or so. We are very grateful indeed for your support. Thank you!

Thank you to everyone who's pledged a donation so far, your contributions are very much appreciated. Please keep this going so we can reach the target - please share the link below on social media, Tweet,  re-Tweet, send emails or post it on a blog - Thank You!

https://www.crowdjustice.com/case/protect-boats-homes/