The Travellers’ Advice Team at CLP were instructed by a liveaboard boater who resorts to the River Avon and the Kennet and Avon Canal. She has what Canal & River Trust (CRT) describe as a ‘continuous cruising licence’ which means she has to move her boat ‘bona fide for navigation’ in terms of the British Waterways Act 1995. This means she cannot remain in the same place for more than 14 days apart from in exceptional circumstances.
Mead Lane stretches 350 metres along the left bank of the River Avon. Bath and North East Somerset Council (BANES) are the landowners of the riverbank. CRT manage the waterway. There is space for approximately 17 boats at any one time on the moorings and usage is split between 48 hours and 14 day Moorings. Holiday boats tend to use the 48 hour moorings and liveaboard boaters use the 14 day Moorings.
The moorings are important because they are essentially the only moorings on the River Avon between Bath and Bristol where boatdwellers can stop for 14 days. They also make up more than half of all moorings available between Bath and Bristol and they are the only ones with disability access to the bank.
Our client instructed us because she felt that the proposed closure of the moorings by BANES during the winter months would make it extremely difficult or even impossible for her to comply with the terms of her Licence. If she does not comply with the terms of her Licence, her boat may be removed from the waterway.
The experiences of our client are likely to be common to other liveaboard boaters. CRT’s latest figures show that the River Avon is used by 995 boats, 403 of which are subject to ‘continuous cruising licences’.
BANES in partnership with CRT, the Environment Agency and Wessex Water developed a ‘Water Space Study’ published in November 2016. The study, which included a boater survey, highlighted a lack of river moorings and facilities for the boating community especially along the River Avon.
Since that study the demand for moorings on the River Avon had increased particularly from liveaboard boaters who did not have home moorings.
In response to complaints by occupiers of nearby homes on Mead Lane, in 2019 BANES commissioned an independent organisation called Lemon Gazelle to run a consultation with resident boaters and other local stakeholders about the future of the moorings. The consultation found that overall there was support to retain moorings at Mead Lane, and that the two favoured options were to keep the 14 day and 48 hour moorings or have more 14 day moorings and fewer 48 hour moorings.
On 16 January 2020 BANES’ Cabinet decided to temporarily remove the moorings in 21 days, some residents having complained that the riverbank had been damaged and was unsafe.
In May 2020 we wrote a pre-action letter on behalf of our client about this decision. By reply BANES clarified that the moorings had in fact not been removed pursuant to the January decision because boats were not permitted to travel at the time because of the pandemic. Additionally they now intended to obtain a report on the safety issues.
On 28 September 2020 the Atkins Group provided a structural report to the BANES’ cabinet. In summary it concluded that there was: (i) no evidence of any damage to the banks of the river at Mead Lane caused by the boatdwellers but that, in the medium term, the Council should consider formalising step access up to the bank at particularly well used areas; (ii) management of the moorings would be improved by designating part of the bank for short term dwellers and part for long term dwellers; (iii) longer term plans might include construction of a pontoon.
The Atkins Report confirmed that ‘At present there are no alternative locations for 14 day moorings between Bath and Bristol’. It also confirmed that there were no other suitable sites along the River Avon having reviewed at least 8 possible alternatives.
At the meeting on 8 October 2020 the cabinet was provided with an officer’s report that recommended the year round closure of the 48 hour moorings and closure of the 14 day moorings between the beginning of November and the end of February each year.
On 8 October 2020 BANES’ cabinet accepted all of the officer’s recommendations and in addition requested that officers devise a charging regime.
We sent a Pre-Action Protocol letter on behalf of our client on 18 November 2020. A response was received on 1 December 2020. In their response, BANES said that the reasons for the decision to close the 14 day moorings between the beginning of November and the end of February each year were:
(a) To protect boat users from the risks of flooding;
(b) To balance the needs of other users of the river including anglers and sailors and the needs of wildlife.
As a result of this response, we lodged a Judicial Review challenge to BANES on behalf of our client.
Grounds of Challenge
On 21 May 2020 BANES had given a clear and unequivocal representation to ourselves that it would consult with ‘interested parties’ after receipt of the ‘engineer’s report’ (i.e. the Atkins Report). No consultation with boatdwellers had, in fact, been carried out.
In light of the content of the Lemon Gazelle report and the Atkins Report, the absence of any consultation with boatdwellers in particular about the specific proposals contained in the officer’s report was striking.
Contrary to what was said about flooding (without any consultation taking place on that point), our client pointed out that the need for the 14 day Mead Lane Moorings increases during times of tidal flood.
The Cabinet failed to have regard to the consequences of closing Mead Lane in the winter for the 403 boaters on the River Avon who, like our client, are subject to ‘continuous cruising licences’.
Our client had explained the consequences for her of not having the 14 day Moorings available to her including the risk that she would lose her licence and therefore her home. She would be unable to access her support network and established work opportunities.
We also looked at statistics for moorings on the River Avon and found that the degree of winter use at Mead Lane, whilst less intense, was still significant.
There was no mention of the claims about wildlife and the needs of anglers and sailors in the officer’s report. Nor did the report say anything specific about the risk of flooding. As pointed out above, the need for a secure mooring increases rather than decreases when there is a flood.
The officer’s report recorded that there are 6 miles of riverbank that are free for fishing and there are 6 angling clubs with fishing rights.
Our client suffers from a disability and we also pointed out there was a failure to make reasonable adjustments with regard to that disability and a failure to comply with the Public Sector Equality Duty in Section 149 of the Equality Act 2010.
Article 8 of the European Convention on Human Rights (the right to respect for private, family life and home) was not mentioned in the officer’s report despite the fact that the inability to moor one’s home is bound to have an impact on the occupant’s right to respect for his or her private, family life and home.
In response to our client’s Judicial Review challenge the Council have now agreed to re-open the 14 day moorings between the beginning of November 2021 and the end of February 2022 and to undertake a further consultation on all these issues in 2022.
We trust that, when it comes to the consultation, it will be confirmed that the 14 day moorings should stay in place and, indeed, we feel that the number of 14 day moorings should be increased.
Counsel for our client in this matter was Jamie Burton QC of Doughty Street Chambers.