Thames Registration Changes from 1st January 2011

[boatone]

All sounds very odd to me. Now, I may be completely wrong and peering up my own chufter but ......

A boat without an engine in it is not a power driven vessel so no BSS needed.

Did the BSS Examiner just 'come along' or did you invite him to examine the boat? They only turn up when invited and paid for!

Court proceedings bit sounds very strange as well - orders to appear in court usually follow a summons from the court, not a recorded Delivery letter from the EA. Who issued the 'Official Caution' - were you given a conditional discharge?

Sound like they East Anglian lot are a bit strange. Dont think I would have let them bully me into selling an asset at all, let alone at a huge loss!

 

[djm]

Boatone said: "Sound like they East Anglian lot are a bit strange"

He he, you could be right! Excuse me (as an occasional visitor to your forum and one of that strange Anglian lot) for butting in but I found this thread interesting.

On the EA Anglian waterways there has always been a requirement to register a boat kept in a backwater or marina (even if it never ventures out). That will be the reason that SimonA was threatened with prosecution here. The position of boats not able to obtain a BSS certificate has always been a grey area and usually left to negotiation with the river inspector, keeping him informed of progress and promising to obtain one in a reasonable time. AFAIK it has always worked well here and as a long-established rule it’s accepted here.

But I think many people on the Thames may fall foul of the completely new (for the Thames) EA requirement to register boats even when permanently moored in backwaters and marinas.

Is it legal?

As you’ll all know, the EA's new powers come under the Environment Agency (Inland Waterways) Order 2010 first applied for in 2004 to 'harmonise' the different registration regimes across the regions. In granting the order, the Sec. of State specifically rejected one of the EA's demands - to extend registration to 'adjacent waters' as being ultra vires (outside the scope of the Act).

So, while the EA has a number of new powers regarding registration under the new legislation, extending the definition of Thames ‘waterways’ most definitely isn’t one of them. As far as I can see, the EA must be relying only on the Anglia precedent to re-define the ‘waterway’ for registration byelaws.

However, the definition of ‘waterways’ in the Anglian region is clearly and specifically given in the Anglian Water Authority Act 1977 which gives EA its powers over those waterways. The ‘waterways’ are defined as: ‘so much of any river, stream or other watercourse, whether natural or artificial and whether tidal or not, as is within the area of the Authority and includes part of a waterway and any cut, inlet, creek, lock weir and barrier to the passage of vessels in a waterway’.

Compare that with the definition of ‘waterway’ in the Thames Conservancy Act 1932 which gives the EA its Thames powers. The comparative description, after defining the geographical parts of the river covered merely says: ‘and all locks, cuts and works within the said portions of rivers’.

I reckon that’s very different from the clear definition on Anglian waters and I think the EA could well have a struggle to convince a judge of the legality of its new Thames ‘waterway’ definition especially as it has never been sought, applied or tested by them or predecessor navigation authorities in the last 78-years. I look forward with great interest to the first test case. Any volunteers?

If by any chance you’re still with me, thanks for reading this. I hope that relations between Thames boaters and the EA remain 'harmonious'. I’ll keep my East Anglian fingers crossed – all eleven of them!

 

[SimonA]

All sounds very odd to me. Now, I may be completely wrong and peering up my own chufter but ......

A boat without an engine in it is not a power driven vessel so no BSS needed.

Did the BSS Examiner just 'come along' or did you invite him to examine the boat? They only turn up when invited and paid for!

Court proceedings bit sounds very strange as well - orders to appear in court usually follow a summons from the court, not a recorded Delivery letter from the EA. Who issued the 'Official Caution' - were you given a conditional discharge?

Sound like they East Anglian lot are a bit strange. Dont think I would have let them bully me into selling an asset at all, let alone at a huge loss!

You still need a BSS if you have a cabin/gas/petrol tanks etc. I can assure you I explored every possibility with the EA including trying to buy a license without a BSS certificate. I also asked the marina if they could lift the boat out of the water and store ashore, they claimed to have no space, but to be honest I got the impression they informed the EA I hadn't got a license.

Firstly I got a couple of recorded delivery letters from the EA threatening legal action, then I got a court summons from Peterborough magistrates court with a hearing date of the 23rd December of that year (2005 I think).

I got an official caution from the Environment Agency about a week before the hearing on the condition the boat was sold. Had I gone to court I understand from the EA I would have stood no chance of winning and would have ended up with a criminal record, not something to be taken lightly.

As already stated, I did everything I could to try and buy a license from the EA, they refused unless I got a BSS certificate, I couldn't get this. The EA were nasty to deal with and gave me many sleepless nights.

The law they used was the Anglian waterways act 1977, which apparently states that any vessel afloat in any water, adjacent water, marina, cut, lake or drain is subject to being registered and licensed with them.

 

[Brayman]

Wouldn't a "failed" BSS certificate have sufficed in the circumstances?

 

[No Regrets]

I would have simply changed the name of the boat and 'parked' it somewhere else.

Alternatively, asked another Marina to tow it in and lift it out.

 

[Lotus_John]

reply to DJM Quote=“Is it legal?”

Spot on djm.
When the EA state that “All boats kept on the river must be registered” and “this requirement extends to every part of the River Thames including backwaters and marinas” they are being ambigious

Given the new power granted under the Inland waterways order 2010. The question is ‘Is your marina on the Thames or an adjacent waterway?
The EA definition of an adjacent waterway in the original 2005/6 wording of the inland waterways order was;
2. in this order---
“adjacent waters” means any lake, pit, pond, marina or other substantially enclosed water
(a) Which is adjacent to any of the waterways to which this order applies; and
(b) From which a vessel may be navigated (whether or not through a lock or similar work) into the waterway.

The EA were denied the right to include adjacent waterways in the 2010 version of the inland waterways order and indeed it does not appear in that order (neither does the word ‘backwater’)

This was an important part of the order that was never publicised.

 

[djm]

they are being ambigious

I think that sums it up nicely.

What the EA is doing (deliberately?) is confusing two completely separate issues.

As LJ accurately describes, in granting the 2010 Order the minister threw out the 'adjacent waters requirement leaving the new registration rules applicable (for the Thames) to only those waterways specified in the Section 4 of the Thames Conservancy Act 1932. That does not include backwaters or marinas. End of story.

However, the minister did agree with the requirement 'register all vessels on waterways, even those unused' suggesting that the EA could use the existing rules on the Medway and Anglian waters as a precedent. That seems clear, and this provision was supported by some influential trade and user bodies on the Thames.

The EA seem to be erroneously claiming that it now has both of these powers on the Thames, i.e. to require registration 'of all vessels on waterways, even those unused' ... and .... 'on adjacent waters' (in backwaters and marinas etc.)

It may have the first but it does not have the second.

After six years of working to establish this 'harmonisation' legislation they still don't seem to comprehend it. I wonder how much it has cost us?

Think again, EA

 

[boatone]

Chapter and verse ......

From the 2010 Order:
1. In this Order—
“on” in relation to a vessel on the waterways includes in or upon the waterways, whether or not the vessel is floating;
Application
2.—(1) The provisions of this Order apply to the waterways.
(2) The waterways are—
(e) the Thames within the meaning of section 4 of the Thames Conservancy Act 1932( ).

Thames Conservancy Act 1932
Definition 4. Tn this Act the word "Thames" shall unless
there is something in the subject or context repugnant
to such construction mean and include—
(a) so much of the rivers Thames and Isis as is
between the east side of the Town Bridge at Cricklade
in the county of Wilts and an
imaginary straight line drawn from high-water
mark on the bank of the river Thames at the
boundary line between the parishes of Teddington
and Twickenham in the county of Middlesex
to high-water mark on the Surrey bank of the
river immediately opposite the last hereinbefore
mentioned point; and
(b) so much of the river Kennet as is between the
river Thames and an imaginary straight line
drawn from a point on the north bank of the
river Kennet seventy yards eastward of the
east side of the High Bridge at Reading in the
county of Berks to a point on the south bank
of the river Kennet immediately opposite the
last hereinbefore mentioned point;
and all locks cuts and works within the said portions of
rivers Provided that no dock lock canal or cut existing
at the seventeenth day of August one thousand eight
hundred and ninety-four and constructed under the
authority of Parliament and belonging to any body
corporate established under such authority and no
bridge over the Thames or the river Kennet belonging
to or vested in any county council municipal authority
railway company or any company body or person
other than the Conservators shall be deemed to form
part of the Thames.

The emboldened bits are my emphasis.

Must admit I hadnt noticed the whether or not the vessel is floating bit previously !

NB I have only quoted the bits directly relevant to the Thames.

 

[No Regrets]

Whether or not the vessel is floating???

I assume they mean 'even if it has sunk' as a Vessel which isn't floating doesn't fall under the category 'In or on the waterways' does it.

If it's not in the water, how the hell can they expect to claim a registration fee for it!?

Sheesh....

 

[boatone]

If you keep your boat on the River Thames, you will now need to register it and pay the full annual charge, even if you do not use it. This requirement extends to every part of the River Thames including backwaters and marinas.

So, are you legal eagles suggesting that this excerpt from the recently published EA document is misleading?

 

[djm]

So, are you legal eagles suggesting that this excerpt from the recently published EA document is misleading?

The first sentence is OK.

The second sentence - This requirement extends to every part of the River Thames including backwaters and marinas. is not. There is no new power to extend the definition of the waterway specified in the TC Act 1932.

 

[boatone]

The first sentence is OK.

The second sentence - This requirement extends to every part of the River Thames including backwaters and marinas. is not. There is no new power to extend the definition of the waterway specified in the TC Act 1932.

So it all hinges on how you interpret "and all locks cuts and works within the said portions of rivers" ?

 

[No Regrets]

And lets not forget they had to exist in 1894...otherwise the 1932 act suggests it's not part of the Thames...

That would include Marina's too.

I wouldn't like to be the EA if they were to take a Marina berthed vessel to court...

 

[boatone]

I wouldn't like to be the EA if they were to take a Marina berthed vessel to court...

Why not ? After all, it would only be our money they were spending

 

[Lotus_John]

So it all hinges on how you interpret "and all locks cuts and works within the said portions of rivers" ?

If you could interpret this wording as, they already have controll over private adjacent waters

why would they have needed to add adjacent waters to the definition of the Thames to allow them to charge for unused vessel kept in a marina?

 

[djm]

boatone asked: "So it all hinges on how you interpret "and all locks cuts and works within the said portions of rivers"

Yes, absolutely correct.

My view is that it has an established meaning which has been in use by the Thames Conservancy, the National Rivers Authority and the Environment Agency in their turn ever since it was defined in the TC Act of 1932. The only recorded attempt to change or extend that established definition to include adjacent waters was made by the Environment Agency in 2004. It was rejected as ultra vires, thrown out by the minister and excluded from the 2010 Act.

To establish their claimed new powers on the Thames, the EA appears to be relying on precedents elsewhere on their inherited waterways. If they really thought that argument would hold water there would have been no need for much of the harmonisation Transport and Works Act Order. In the case of 'requiring all boats on the waterway to be registered' the Anglian precedent is probably valid as the minister noted. But in the 'adjacent waters' case there is no valid precedent for change as the Anglian Water Authority Act 1977 has a much more precise definition of 'waterway' than the Thames Conservancy Act 1932. The 2010 Order confirms the definition of Thames waterway as that described in the TC Act 1932 and it cannot be re-defined by 'borrowing' bits from other legislation.

 

[TrueBlue]

The "adjacent waters" bit is a remnant of the original draft of the TWA Order, to which I objected as it technically could have included the River Wey and (possibly) other waters.

It was clear to me that the whole thing was drawn up by legal folk who did not understand Navigations or anything to do with Inland Waters.

So they bunged in a few extra words and removed others.

Let's not read any logic in the the Order - it's not that sort of paper...

It's all very well suggesting it should be tested in Court. The whole legal process is out of reach for nearly everybody, and who's going to risk enormous fees with a potential dodgy outcome. Folks will just stump up whatever has been demanded.

It's one of the reasons why EA got the process criminalised. Going to a Magistrate's Court cost them money - now it costs the punter money and a Record.

 

[djm]

True Blue,

You are right that it is probably impractical for the ordinary boater to challenge this in court either as part of criminal proceedings or to get a ruling.

However, I would suggest that any Thames boater who finds the EA's tactics high-handed and possibly unlawful should write to his MP, quoting some of the details given here and asking him to bring the matter to the attention of the Secretary of State.

If the EA are wrong on this, or even if there is the slightest doubt, it should be challenged well before any boater is made to defend himself in court.

Where are your Thames user groups in this?

 

[boatone]

As I understand it, the EA have long insisted that you require a licence even in a marina if you 'use' the boat. 'Use' meant sitting on it having a cup of tea, but not engaging in repair and maintenance work.

The adjacent waters bit, as I understood it, was an attempt, as TrueBlue says, to include other waters not clearly a part of the Thames 'system' and could even have included lakes etc closeby, but not connected to, the river.

As TrueBlue says, the reality will be that the vast majority of people will act as decent (though possibly misguided) citizens and pay up.

I don't actually object to paying for the licence as long as a) the charge is reasonable and b) the river is maintained to an acceptable standard so that I can enjoy using it. Unfortunately there will always be folk who will try every trick in the book to avoid paying and, in so doing, will disadvantage the rest of us.

As the likelihood of any major improvements in works during my lifetime is zilch, my major concern is that the EA, or whoever else may become the responsible authority, should ensure that the undertakings in the Customer Charter are complied with and that we should use every possible opportunity to refine that document to represent the highest possible level of service.

 

[Lotus_John]

The adjacent waters bit, as I understood it, was an attempt, as TrueBlue says, to include other waters not clearly a part of the Thames 'system' and could even have included lakes etc closeby, but not connected to, the river.

e.

The EA definition of an adjacent waterway in the original 2005/6 wording of the inland waterways order was;
2. in this order---
“adjacent waters” means any lake, pit, pond, marina or other substantially enclosed water
(a) Which is adjacent to any of the waterways to which this order applies; and
(b) From which a vessel may be navigated (whether or not through a lock or similar work) into the waterway.