Enforcement in marinas.

[Chris_d]

I think I can - is it because accomodations in marinas don't have the potential to obstruct river traffic or impede the flow of water in the same way as they might in the main river? I'm sure I saw some references like that in the application paperwork...

When you see some of the accomodations they charge for on the main river you wonder how they can claim they possibly obstruct traffiic or flow, the argument seems to be anything that is inserted into the river that takes away space for water is an accomodation, so depending on your interpretation and financial motivation the same argument should apply to all marinas.
Certainly any marina/boatyard on the mainstream paying 20k a year will think it unfair that the likes of Penton Hook pay nothing.

 

[boatone]

An accommodation is basically a temporary structure in the river intended for mooring boats - hence the word "accommodation". If it is likely to cause an unreasonable obstruction to navigation it would likely not be permitted.
The EA and its predecessors have been entitled to charge a licence fee for accommodations by statute from at least the 1932 Thames Conservancy Act. If, as the EA now claim, this act confers the right of charging a licence fee for craft moored in marinas, which the EA now tell us they have legal opinion to support (note that I am not stating the rights or wrong of this), then one could reasonably assume that they also have the legal right to define mooring structures within marinas as "accommodations" and to charge accordingly.

I believe that they do take that view and the only thing stopping them with proceeding with enforcement is not because they are not entitled to do so, but that they simply do not now have the resources - i.e. staff - to actually do so. They have carried out a complete review of accommodations along the main waterway itself and are in the process of enforcing payment or giving people the option of removing unwanted structures - many riparian owners don't even realise that a licence is required.

Times have changed. Whilst government and local authorities were providing enough income, grant aid etc to run the river there was little or no pressure to collect and enforcement of accommodations and craft licences in marinas was clearly neglected by successive authorities to the point where many river users believed they were not required. Now funds have been drastically reduced and the EA are having to examine every legal opportunity they have to increase income from non public purse sources.

I will not get involved in the argument regarding the EA's legal right to charge craft in marinas and, hence, accommodations within marinas. It is for the EA to ensure they are acting within the law and for anyone who objects to a charge to challenge it through the courts.

In my view it is only a matter of time before they address the issue of accommodations within marinas and, if they decide this is a legal opportunity to increase income they may well decide to take such steps. Undoubtedly any such charges on marina operators will lead to increase in berthing fees and impact on boat owners. Marinas within the C&RT system are REQUIRED to ensure that all craft have a valid registration and can be penalised if they fail to do so. They are also required to pay an access fee to the C&RT based on the number of berths for the privilege of being "connected" and having access to the C&RT canal system.

It is high time that all the wrangling over the "rights and wrongs" stopped and that all involved start addressing the real problem - money is needed to run the waterway and government has clearly decided that less of it should come from the public purse.

 

[mlines]

I suspect that there will be specific pressure to make marinas responsible for ensuring registration, particularly as most of the enforcement notices from the checks in August/early September have now become unstuck from the boats they were attached to and are floating in the marina debris with no specific sign of enforcement beyond attaching the notice.

 

[TT_WO]

I believe that they do take that view and the only thing stopping them with proceeding with enforcement is not because they are not entitled to do so, but that they simply do not now have the resources - i.e. staff - to actually do so.

To suggest that lack of manpower for enforcement is the only reason that the EA are not charging the marinas for accommodations on one side of an artificial cut but are on the other side (the Thames side) is in the words of Mr Spock, 'just not logical captain'.

One of the reasons given for charging for accommodations is that the public right of navigation (PPN) is being impeded by that structure. As I have stated before the agreement to cut through the Thames bank into the waters beyond, between the Thames Conservancy and MDL, states there is no PRN through the cut at Penton Hook.

At the end of 2012 a dozen or more enforcement officers visited PH on a registration check, did they not notice that the accommodations were not licensed? Are they seriously going to travel the length of the Thames looking for every 4 inch post or ladder through the water before enforcing accommodation licensing in a dozen marinas that would net them £100000’s PA if they thought they had that right?

In 2010 I visited the British Marine Federation (BMF) who did not know that the Adjacent Waters legislation had been removed from the IWO 2010 they consulted with the EA who stated that they believed that the word ‘works’ meant a Marina, I asked “does that mean that marinas would have to pay for their accommodations…..immediate reply was “No, the EA are only interested in registration”

I think it is likely that the BMF would have objected to the adjacent waters legislation if it had included charging for marina accommodations but it did not! However when the EA had to come up with a reason to continue to apply a registration charge to unused boats in marinas, they stated that these marinas had always been the Thames. Not surprisingly the marinas would want an undertaking that the EA would not try and charge for accommodations if this were the EA's new interpretation.

If the BMF/Marinas fought and won an action against enforcement of accommodation charges they would effectively stop the EA enforcing registration in marinas. That is still the case therefore I think it most unlikely that the EA will try and charge for these marina accommodations.

 

[534l4rk]

An accommodation is basically a temporary structure in the river intended for mooring boats - hence the word "accommodation". If it is likely to cause an unreasonable obstruction to navigation it would likely not be permitted.

I can remember charges for safety ladders into the river in areas where there had been drownings were subject to a 10 fold increase in charge. Hardly a temporary structure or an unreasonable obstruction to navigation!

 

[boatone]

To suggest that lack of manpower for enforcement is the only reason that the EA are not charging the marinas for accommodations on one side of an artificial cut but are on the other side (the Thames side) is in the words of Mr Spock, 'just not logical captain'.

Whatever makes you think that anything to do with the Thames licence charging regime is logical?

 

[boatone]

I can remember charges for safety ladders into the river in areas where there had been drownings were subject to a 10 fold increase in charge. Hardly a temporary structure or an unreasonable obstruction to navigation!

That's a hell of a curved ball interjection ! What ladders, where? Any factual evidence to support it?

 

[boatone]

I suspect that there will be specific pressure to make marinas responsible for ensuring registration, particularly as most of the enforcement notices from the checks in August/early September have now become unstuck from the boats they were attached to and are floating in the marina debris with no specific sign of enforcement beyond attaching the notice.

Piccies please !!!

What further specific signs of enforcement are you expecting?

 

[oldgit]

The Medway and the Thames appear to have been subject to some sort of legal framework since records began and probably some considerable time before that.
Both rivers are mentioned in the Domesday day book and the Barons whinge-a-thon at Runnymeade.
Ancient rights were clarified/confirmed to certain activities on the water way, one of which was the right of navigation and to fish.
These were solely previously within the gift of whatever king was in charge at the time.
On the Medway a Royal Charter was granted to Rochester Floating Oyster Fishery, this allowed them (and them alone) to benefit from all income provided from the fishery and to run the fishery as they saw fit.
To get to nub of the post. Any structure ie. pile,post,bridge,pier,wharf,mooring (fixed / floating ) even a Royal Dockyard was regarded as reducing the area of river available to the ROFF freemen to fish and charge could be made against anybody even the Crown who wished to erect such structures.
This is still in force today as a public water company (SW) found out in the High Court a few years ago.

To sum up my Lords....Doubt it is obstruction of the waterway, perhaps more likely originaly a similar case on the Thames as on the Medway.

Difference being no ancient organisation to have kept the original purpose of the "accomodations" levy in the public domain. ?

 

[534l4rk]

That's a hell of a curved ball interjection ! What ladders, where? Any factual evidence to support it?

My point was merely to correct your definition of 'accommodations'. I can substantiate but do not wish to publish details. I expect there have been many similar cases of which I am unaware.

 

[Chris_d]

I understand that if you dig yourself an inlet this is allowed and is not an accommodation as it is creating space for more water, however any risers, posts you add are chargeable.

 

[boatone]

Although my description was a simplification it is to all intents and purposes correct:

The Environment Agency is the navigation authority for the River Thames, a public river regulated by statute. Successive Thames Conservancy Acts have declared it unlawful for any person to install an accommodation in or over the public river without a licence from us. We have the authority to grant accommodation licences and take into account all of the following position statements when deciding on accommodation licence applications or renewals.
General requirements
a) Accommodations should not be installed or kept in or on the river other than as reasonably necessary for landing or mooring purposes or to facilitate access to and use of the river as a public waterway.
b) Accommodations are not permitted to encroach more than is reasonably necessary to achieve the above purposes, except when sufficient fishery and environmental benefits are identified and there is no unacceptable impact on normal river flow and the floodplain.

It was the statement regarding "charges for safety ladders into the river in areas where there had been drownings were subject to a 10 fold increase in charge" that I was querying.

The complete EA document regarding accommodations is here:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/345912/LIT_6728.pdf

 

[TT_WO]

Ancient rights were clarified/confirmed to certain activities on the water way, one of which was the right of navigation and to fish.

As I said “One of the reasons given for charging for accommodations is that the public right of navigation (PRN) is being impeded by that structure.” i,e, if a structure is there the public have lost the right to navigate there.

PRN is an important.

1. It is the reason why we cannot be licensed to navigate the Thames.

2. It is the reason why a riparian owner cannot claim trespass over his land.

3. Headsor Wharf at Cookham claimed as ‘private water’ for centuries was the subject of a high court action defended by the EA and brought by Tiny Rowlands family and won by the EA because, although there was documentary evidence supporting its transfer into private ownership, the Public right of navigation “had not been extinguished”

4. Continued PRN was confirmed on the Thames by TCA 1932.

5. Despite what was said in the MBM article there is no PRN inside Penton Hook Marina, both according to the terms of their agreement and the terms of the Thames Conservancy act legislation which excludes PRN through artificial cuts existing and to be made.

6. No PRN = no right to charge for accommodations. (this would explain the 80 year delay in enforcement)

7. By the same token if there is PRN on the Thames but there is no PRN in the Marina how can the marina be the Thames for the purposes of registration. (That is why they needed Adjacent Waters legislation)

8. I remember now “ Works within the said portions of rivers” (that did not exist in 1932 when the river was defined for legislative purposes.)

I trust that the courts will be more logical than the EA and their legal opinion.

 

[boatone]

8. I remember now “ Works within the said portions of rivers” (that did not exist in 1932 when the river was defined for legislative purposes.)

The words "and all locks cuts and works within the said portions of rivers" are in the original TC Act 1932 - Part 1 Section 4. (- provided they did not exist prior to August 1894.)

 

[TT_WO]

The words "and all locks cuts and works within the said portions of rivers" are in the original TC Act 1932 - Part 1 Section 4. (- provided they did not exist prior to August 1894.)

Quote from my letter to MBM:

Contrary to Editor's comments in September issue, the intended Adjacent Waters legislation was removed by the Secretary of State, from the IWO and did not become law. As a result the IWO is only applicable to the Thames as defined by the Thames Conservancy Act 1932 section 4 (TCA). This does not mention marinas or Adjacent Waters but does say “to include all locks cuts and works within the said portions of rivers”.

After 70 years and 4 navigation authorities the EA have decided to interpret the word ‘Works’ to mean a marina. The reason why they need so much reassurance is because the holes for the adjacent waters marinas were excavated on private ground some 20-30 years after the 1932 legislation defined the Thames and there was no anticipation of any future extensions to the Thames in the legislation.

 

[boatone]

After 70 years and 4 navigation authorities the EA have decided to interpret the word ‘Works’ to mean a marina. The reason why they need so much reassurance is because the holes for the adjacent waters marinas were excavated on private ground some 20-30 years after the 1932 legislation defined the Thames and there was no anticipation of any future extensions to the Thames in the legislation.

Legislation generally applies to all future relevant activity unless subsequently amended, whereas it does not usually apply retrospectively unless, as is the case here, the act contains specific reference - as existing pre August 1894.

Roll on a court case that can test these arguments and put the issue to rest - unfortunately that won't happen until the EA decide to bring a case that someone decides to contest - and there's the rub.

In the meantime, do you have any good and workable ideas as to how the river might be funded?

 

[apollo]

In the meantime, do you have any good and workable ideas as to how the river might be funded?

Charging every time he gets the last word....?

 

[Chris_d]

This has been a very interesting thread and the legislation is clearly outdated and a bit flawed, but if the motivation for contesting it is to save some boat owners from paying a license because they have been hiding in some corner of a marina for years, its not really helping the river much is it.

 

[TT_WO]

In the meantime, do you have any good and workable ideas as to how the river might be funded?

Well I know it’s a bit late but the EA could have saved a few million on the Transport and works act clearly the wrong legislation to get the new powers they needed. Spending more money on legal advice over the last 4 years is only adding to the bill.
They could have saved some money on bank side works and accommodations at places like Hurley lock, Shepperton lock (mainly unused years after construction) and Shepperton ferry point bank etc.

Perhaps Defra see that sort of expenditure as nice but non- essential and reduce Grant in Aid. The EA increase registration charges to compensate and ultimately reduce the number of boats that want to use the River. Is the solution to charge boats that are not using the river?
Somehow encouraging people back on the river must feature as part of the revenue raising plan but a navigation authority that does not have the trust of its constituents is hardly going to encourage that to happen.

 

[mikemanor]

Roll on a court case that can test these arguments and put the issue to rest - unfortunately that won't happen until the EA decide to bring a case that someone decides to contest - and there's the rub.

In every enforcement prosecution to date the defendant has either pleaded guilty or not turned up and been found guilty in their absence. The EA has not continued with a case where they have knowledge that the defendant will plead not guilty. Indeed, I know an individual who had all his expenses paid by the EA and a letter from them confirming that they would not be proceeding. They do not want a test case.