Continued Cruising and the 28 day rule?

[Mike Adams]

On the point of winter moorings. Surely the conditions for taking a winter mooring are the same as for any other non residential CaRT leisure mooring? It is somewhere to leave your boat over the winter and does not imply any residential status.

[matty40s]

1 hour ago, gemmaze said:

 and those running such oprations like Matty who seem to think their piss taking is special because they have paid to take the mick.

 

I'm not sure where you are getting your info from, I used to CC, and moved all over for 9 years(staying under radar), now I pay for a mooring as both our parents need regular home visits and care, meaning I cannot CC properly at present.

My initial point stands.

[Mike Todd]

2 hours ago, Rambling Boater said:

 

 

 

I'm not saying the OP is pushing at boundaries, but there are thousands of CC'ers who enjoy the freedom to roam the country without having to have a mooring they would never use. Think of the consequences if the flexible wording of the current law changed and we went back to all of us having to have a home mooring.

 

 

 

That is basically what I was trying to warn about!

[Mike Todd]

1 hour ago, Alan de Enfield said:

No, it was completely withdrawn.

 

As stated earlier, the Winter Moorings option is available but the legality of just using a "length of bankside for 4, 5, or 6 months without Residential PP" is certainly outside of C&RTs Permitted Development powers and is questionable.

 

Takes us 'full circle'.

 

I'm thinking that few have actually read and understood the OPs question.

 

It asks how C&RT can allow moorings of Residential boats for longer than 28 days without infringing the 28 day Planning Rule.

 

There seems to be a feeling that the question was "how can I avoid paying for a mooring"

But what you cited did not state a '28 day mooring rule'; as you imply here. It says that under 28 is always OK (ie not a matter for PP)( but over 28 days it always depends on the circumstances. It also signals that an important part of the assessment would be whether or not thee longer stay indicates that the occupier is not really making use of the canals within their accepted purpose. Hence the comment regarding moorers that never intend to move at all. There is a lot of grey space between to two extremes. 

 

Do yiou have any evidence from actual planning decisions that a permitted stay of 6 months has attracted a Planning Enforcement Notice?

1 hour ago, PhilR said:

 

The intent of the last three words seems to have been relaxed considerably in recent years

That nay well be true but the basic process is unchanged just that it may be easier to convince the Board!

Edited August 13, 2020 by Mike Todd

[Alan de Enfield]

4 minutes ago, Mike Todd said:

Do yiou have any evidence from actual planning decisions that a permitted stay of 6 months has attracted a Planning Enforcement Notice?

 

No, and I'm not prepared to go back thru the Planning records of every LA for the last (?) 20 years looking for one.

Would you ?

 

I am simply quoting the legal situation - like many laws, if you ignore them you will often 'get away with it', (speeding ?) but that doesn't change the facts.

[Mike Todd]

39 minutes ago, doratheexplorer said:

Going back to the original question, the simple answer is no, it does not apply.  This is what the relevant legislation actually says in Schedule 2, part 4 of the GPDO;

 

"Class B – temporary use of land
Permitted development

B.  The use of any land for any purpose for not more than 28 days in total in any calendar year, of which not more than 14 days in total may be for the purposes of—

(a)the holding of a market;

(b)motor car and motorcycle racing including trials of speed, and practising for these activities,

and the provision on the land of any moveable structure for the purposes of the permitted use."

 

The relevant point here from a planning perspective is that online mooring of boats is a long standing and established activity which is considered an ancillary activity to the canal's use as a navigation.  Therefore there is no 'temporary use'.  Planning legislation places no restriction on how long a moored may stay moored on the towpath.  Your would need to look at waterways legislation (acts and by-laws) for that. 

 

If however, a person is living permanently on the boat, then the situation is a little different, but it still has nothing to do with the 28 day rule.  Whether or not a change of use application is required to C3 Dwellinghouse is a matter of judgement (planners like to use the phrase 'fact and degree').

 

Even if the LA decides that a residential change has happened, they still may well choose to do nothing.  Planning enforcement is a discretionary not a statutory function.  Considerations may include; Is there any harm being caused?  Would a prosecution succeed?  Can the matter be resolved using other legislation?

 

The answers to these three questions would likely be; Probably not.  No.  Yes.

 

In other words, this scenario just leads down a pointless rabbit-hole. 

 

Imagine someone did plonk themselves on a bit of towpath and then applied to the LA for residential planning permission?  There's nothing to stop them.  They pay the fee and submit the form and supporting documents, and sign the correct certificate of ownership and notify the owner (CRT).  Now imagine, that miraculously, their application met with all local and national policies, site allocations etc.  The Council would probably approve it.  Would the boat be able to stay indefinitely?  Of course not.  Unless CRT gave permission for them to and charged a mooring fee.

 

On a seperate point, the roving permit was withdrawn because it amounted to extortion.  CRT were 'selling' something but all the were really selling was immunity from enforcement.  Nothing to do with planning rules.

Do we know why CaRT withdrew it? We know what the complainants alleged but have CaRT accepted that to be true or rather did they just not feel it worth a fight? After all, they were trying to find a way of doing something to help a particular category of boater and which they probably were quite content to say that they had tried but other boaters protested. Since it did not go to court we do not know whether it is legal or illegal.

[Mike Todd]

3 minutes ago, Alan de Enfield said:

 

No, and I'm not prepared to go back thru the Planning records of every LA for the last (?) 20 years looking for one.

Would you ?

 

I am simply quoting the legal situation - like many laws, if you ignore them you will often 'get away with it', (speeding ?) but that doesn't change the facts.

The legal situation is not in much doubt but what is contentious is the way in which the law is used and applied. This is especially important in a context where the law ;provides wide flexibility as a previous poster indicated. In practice it is the combination of the enabling law and case histories that constitute what might be legal - hence until you have explored the gamut of planning cases you cannot say that you have stated the law.

[Alan de Enfield]

11 minutes ago, Mike Todd said:

you cannot say that you have stated the law.

You can say that this is the law (as written) but, agreed, you cannot say there is that this is not subject to interpretation by a court.

[magpie patrick]

12 hours ago, gemmaze said:

Its not so much as a worry but an exploration of planning law.

Some people simply cant afford a permanent mooring or like myself at the time got caught out due to circumstances and unexpected emergency repairs beyond my control with no moorings available, so thankfully CRT grant an overstay, the point being anything longer than 28 days in any other secnario requires planning permission but CRT somehow manage to swerve this.

 

Okay - I think there may be some confusion here

 

Caravan pitches in use for more than 28 days a year require planning consent

 

Moorings for boats on a navigation don't

 

Some years ago a planning inspector dismissed an enforcement notice served by (I think) Wiltshire County Council  on the basis that moored boats are part and parcel of the operation of a canal. 

 

With Caravans and boats it isn't the caravan or the boat the needs consent, it's the pitch or mooring  - the caravan or boat changing doesn't affect the need (or otherwise) for planning consent.

 

Moorings only need planning consent if (1) infrastructure is required for their provision, in which case the infrastructure needs consent or (2) they are, or have become, residential.

 

The above is  vox pop summary, not a binding ruling. There may be exceptions 

[Bod]

2 hours ago, Alan de Enfield said:

The Roving Mooring Permit, that meant you paid C&RT a considerable sum to be able to  be able to 'overstay' and could use it anywhere, not just on 'a home mooring'. It was basically a mobile home mooring, 'get out of jail free' licence. If you had the licence, Enforcement would not be taken if you overstayed.

 

Extract 

 

Boaters are being offered a way out of the enforcement process that means paying a substantial extra fee (£800 per year for a 60 foot boat) to do what s.17(3)(c)(ii) of the British Waterways Act 1995 already permits them to do. This is tantamount to demanding money with menaces.

CRT cannot lawfully create a ‘Roving Mooring Permit’. If it did so, it would be creating a third licensing category in between the two that were created by the British Waterways Act 1995. 17(3)(c) of the 1995 Act created two licence categories: (i) with a home mooring and (ii) without a home mooring. To create a third category would require change in the law, in other words an amendment to s.17(3)(c) of the British Waterways Act 1995.  CRT would be acting beyond its legal powers if it created a Roving Mooring Permit without such a change in the law. CRT maintains that the Roving Mooring Permit is a type of home mooring, not a new category of licence, but this is not borne out by the facts. It does not provide a place where the boat “can reasonably be kept and may lawfully be left” as is required by s.17(3)(c)(i) of the 1995 Act,  ........................................

Bit of Devils advocacy here.

If C&RT's position on the 1962(?) transport act, section 43(?) is correct, in that they can do as they please.

Then introducing Winter Mooring Permits would just be an accounting exercise.  Take the money and print the receipt.

 

Bod.

[doratheexplorer]

37 minutes ago, Mike Todd said:

Do we know why CaRT withdrew it? We know what the complainants alleged but have CaRT accepted that to be true or rather did they just not feel it worth a fight? After all, they were trying to find a way of doing something to help a particular category of boater and which they probably were quite content to say that they had tried but other boaters protested. Since it did not go to court we do not know whether it is legal or illegal.

True,  my last paragraph was my own opinion, but the situation seemed clear to me.  It would have created 2 categories of boater - poor boaters who didn't move much and risked losing their homes, and rich boaters who could afford to pay for immunity from such action.  This is blatant exortion.  I can't think of a similar example where paying a fee is simply to avoid prosecution.  There has to be some other tangible benefit.  For example, I can pay for a loaf of bread, or I can steal it, risking prosection.  But I'm not paying for the loaf to avoid prosecution, I'm paying for it because I want to have some bread. 

 

The difference with the current winter mooring is that you're paying for a temporary tenure over a site.

Edited August 13, 2020 by doratheexplorer

[Alan de Enfield]

1 hour ago, magpie patrick said:

Okay - I think there may be some confusion here

 

Caravan pitches in use for more than 28 days a year require planning consent

 

Moorings for boats on a navigation don't

 

Some years ago a planning inspector dismissed an enforcement notice served by (I think) Wiltshire County Council  on the basis that moored boats are part and parcel of the operation of a canal. 

 

With Caravans and boats it isn't the caravan or the boat the needs consent, it's the pitch or mooring  - the caravan or boat changing doesn't affect the need (or otherwise) for planning consent.

 

Moorings only need planning consent if (1) infrastructure is required for their provision, in which case the infrastructure needs consent or (2) they are, or have become, residential.

 

The above is  vox pop summary, not a binding ruling. There may be exceptions 

You  are far more involved in Planning (after all it is your job) than I, but I don't think that it is correct to say that RESIDENTIAL moorings on a Navigation don't need PP. If the boat is the 'main residence' and C&RT allow them to moor for 6-months, then should the mooring not have PP ( Agreed, it is not the boat that needs PP)

 

I think you may be referring to this (which I posted in post #4)

 

Mooring along the line of the waterway has been established practice since the canals were built, and mooring for commercial and leisure boats was controlled by the original canal companies prior to nationalisation in 1948. In a 2006 appeal* by British Waterways against an enforcement notice issued by Kennet District Council in respect of leisure moorings along the Kennet & Avon Canal, the Inspector found in favour of British Waterways. He confirmed that the long-term mooring of boats normally used in navigation (while not in use) is incidental and ancillary to the main use of the canal as a man-made navigation. Control of such mooring is a matter for the navigation authority (as control of parking is a matter for highway authorities) and not a matter of planning control. British Waterways acknowledges that the long-term mooring where a boat is the occupant’s main place of residence normally requires planning consent.

 

*Planning appeal decision Ladies Bridge, Wilcot, Wiltshire (Appeal ref APP/E3905/C/06/2019638)

 

Where "C&RT can do what they want" with regard to leisure moorings but accepted that for Residential moorings they would require PP

Edited August 13, 2020 by Alan de Enfield

[magpie patrick]

Just now, Alan de Enfield said:

You  are far more involved in Planning (after all it is your job) than I, but I don't think that it is correct to say that RESIDENTIAL moorings on a Navigation don't need PP. If the boat is the 'main residence' and C&RT allow them to moor for 6-months, then should the mooring not have PP ( Agreed, it is not the boat that needs PP unless it is 'substantially part of the mooring' (or words to that effect)

 

 

Read carefully

 

1 hour ago, magpie patrick said:

 

Moorings only need planning consent if (1) infrastructure is required for their provision, in which case the infrastructure needs consent or (2) they are, or have become, residential.

There is a problem with winter moorings that by the time any enforcement can be taken the boat has usually moved on, and the mooring has ceased to be residential. Yes, it becomes residential next winter, but the process then has to start again

3 minutes ago, Alan de Enfield said:

I think you may be referring to this (which I posted in post #4)

 

Mooring along the line of the waterway has been established practice since the canals were built, and mooring for commercial and leisure boats was controlled by the original canal companies prior to nationalisation in 1948. In a 2006 appeal* by British Waterways against an enforcement notice issued by Kennet District Council in respect of leisure moorings along the Kennet & Avon Canal, the Inspector found in favour of British Waterways. He confirmed that the long-term mooring of boats normally used in navigation (while not in use) is incidental and ancillary to the main use of the canal as a man-made navigation. Control of such mooring is a matter for the navigation authority (as control of parking is a matter for highway authorities) and not a matter of planning control. British Waterways acknowledges that the long-term mooring where a boat is the occupant’s main place of residence normally requires planning consent.

 

*Planning appeal decision Ladies Bridge, Wilcot, Wiltshire (Appeal ref APP/E3905/C/06/2019638)

 

Where "C&RT can do what they want" with regard to leisure moorings but accepted that for Residential moorings they would require PP

That was the case I had in mind - thank you

[Alan de Enfield]

1 minute ago, magpie patrick said:

 

 

There is a problem with winter moorings that by the time any enforcement can be taken the boat has usually moved on, and the mooring has ceased to be residential. Yes, it becomes residential next winter, but the process then has to start again

 

Exactly - they do become Residential moorings and do require Planning Consent, but, the enforcement process  moves so slowly that anyone is unlikely to be prosecuted . It doesn't however change the fact that C&RT are breaking the law.

 

I think I earlier gave the example of speeding, if you think you will get caught (cameras) you don't speed, if you think you can get away with it, you will speed, however it doesn't change the law.

[magpie patrick]

8 minutes ago, Alan de Enfield said:

 

Exactly - they do become Residential moorings and do require Planning Consent, but, the enforcement process  moves so slowly that anyone is unlikely to be prosecuted . It doesn't however change the fact that C&RT are breaking the law.

 

 

It's rather more subtle than that - because the boat using them isn't necessarily a liveaboard (I've used winter moorings for boats I didn't live on) then CRT are doing nothing wrong, that's why the enforcement is difficult to impossible, end of March, liveaboard departs, end of October, new arrival may or may not be a liveaboard and thus the onus of proof would start again. 

 

When I get a moment I'll look more closely into the primary residence thingy as well

[Alan de Enfield]

1 minute ago, magpie patrick said:

When I get a moment I'll look more closely into the primary residence thingy as well

Thank you, that would be interesting.

[Tacet]

2 minutes ago, Alan de Enfield said:

 

Exactly - they do become Residential moorings and do require Planning Consent, but, the enforcement process  moves so slowly that anyone is unlikely to be prosecuted . It doesn't however change the fact that C&RT are breaking the law.

 

I think I earlier gave the example of speeding, if you think you will get caught (cameras) you don't speed, if you think you can get away with it, you will speed, however it doesn't change the law.

Not quite as simple as that.  Mooring, within limits, is an ancillary use of the canal - and whether it is residential (fixed or moving) or leisure use is not entirely decisive.  Once beyond the reasonable limits, it is no longer an ancillary use and/or you may have created a fresh planning unit such that it is no longer part of the main canal.

 

The rather vague, reasonable limits of ancillary use are more readily breached by fixed location, full-time residential use.  But it doesn't change the principle.  For example (and without case law!) An employee keeping an essential eye on water levels or whatever, but living in a fixed location might well be an ancillary use of the canal - and not require separate planning permission.  On the the other hand, if you jam-packed a mile of canal arm with leisure boats such that no-one could reasonably leave to use the canal for cruising, you may have over-stepped the mark.

[GUMPY]

5 minutes ago, Alan de Enfield said:

Exactly - they do become Residential moorings and do require Planning Consent, but, the enforcement process  moves so slowly that anyone is unlikely to be prosecuted . It doesn't however change the fact that C&RT are breaking the law.

 

 

Are they breaking the law prior to an enforcement order being issued ? Planning law must have changed recently as it used to be that an offence was only committed by ignoring the enforcement order.

 

[magpie patrick]

23 minutes ago, Loddon said:

 

Are they breaking the law prior to an enforcement order being issued ? Planning law must have changed recently as it used to be that an offence was only committed by ignoring the enforcement order.

 

That's still the case

[doratheexplorer]

1 hour ago, Alan de Enfield said:

 

Exactly - they do become Residential moorings and do require Planning Consent, but, the enforcement process  moves so slowly that anyone is unlikely to be prosecuted . It doesn't however change the fact that C&RT are breaking the law.

 

I think I earlier gave the example of speeding, if you think you will get caught (cameras) you don't speed, if you think you can get away with it, you will speed, however it doesn't change the law.

Except that it isn't a fact.  These things are not as clear cut as you suggest.  Specifically which law are CRT breaking?

 

How long would you say a boat could stay in one place, with someone living aboard, before planning permission for change of use would be required?

[Alan de Enfield]

11 minutes ago, doratheexplorer said:

Except that it isn't a fact.  These things are not as clear cut as you suggest.  Specifically which law are CRT breaking?

 

How long would you say a boat could stay in one place, with someone living aboard, before planning permission for change of use would be required?

I will re-post this :

 

The question that arises is whether the mooring of such a vessel requires planning permission as a material change in the use of land. The point at which the mooring of a residential boat on a waterway departs from an ancillary use of the waterway (which usually would not need planning permission) and moves to a material change to residential use (which usually would need planning permission) needs to be decided on the basis of fact and degree as well as the particular circumstances of a case. The use of the mooring for this purpose is not included in any of the classes prescribed in the Use Classes Order. It is therefore sui generis (not C3 Dwellinghouses).

 

In this context it is also worth noting that planning permission is usually not required where the residential use of a mooring is for no more than 28 days in any calendar year, since such temporary use is permitted development under Part 4 of the GPDO13 .

[GUMPY]

No matter how many times you post that 

Not complying with PP is not breaking the law, ignoring the enforcement order is.

[Alan de Enfield]

Just now, Loddon said:

No matter how many times you post that 

Not complying with PP is not breaking the law, ignoring the enforcement order is.

The question I was asked nothing to do with 'breaking the law' it was :

 

39 minutes ago, doratheexplorer said:

How long would you say a boat could stay in one place, with someone living aboard, before planning permission for change of use would be required?

 

Which was answered in my post;

 

Keep trying, you may find something else to criticise.

[magpie patrick]

1 hour ago, Alan de Enfield said:

Thank you, that would be interesting.

Right, here we go

 

The 28 day rule does not relate to residency it relates to use of a pitch or an area for camping or caravaning, it isn't for 28 consecutive days either, but for any 28 days within a given period of time, nor does it matter whether it's one caravan for 28 days or 28 caravans for one day each -  On the 29th day, use of the pitch contravenes planning regulations. That is not a test of whether the location has become a residence, it is a test of whether it has become a pitch that needs planning consent.

 

A mooring, as has been demonstrated, is not subject to the same issue. A boat on a mooring for 29 days has not broken any planning regulation. 

 

The fact that a boat is a primary residence doesn't, of itself, make a mooring into a primary residence. If it did then every time a CC liveaboard stopped for the night they'd be in breach of planning regulations.  Mooring for the 29th night doesn't either, that rule doesn't apply to boats - think about it, how many people spend 29 nights aboard their boat in a non-residential marina - it's only just over a weekend every month. Think further, a boater making their way to and fro, staying one or two weeks at each location, would be contravening planning regulations when their total stay at the same place passed 28 nights, even if it was four separate weeks. You could cover a reasonable distance in a summer, say the entire southern Oxford, three times, does that make the third time you stop above Nell's Bridge against planning regulations? Or make that stop a residential mooring? No it doesn't. 

 

The test of whether a mooring is residential is whether that mooring is your primary residence, not how long you've stayed there, and "primary residence" would be tough call on a mooring that had been rented for five months with no option to extend. I think it would take appeals and case law to sort this one out, and I'm not at all sure it would go against CRT or the boater.

[Tacet]

29 minutes ago, Alan de Enfield said:

I will re-post this :

 

,,,,

 

In this context it is also worth noting that planning permission is usually not required where the residential use of a mooring is for no more than 28 days in any calendar year, since such temporary use is permitted development under Part 4 of the GPDO13 .

 

It is not that planning permission isn't required for a materiel change of used for less than 28 days - it is that permission has been granted by the GDPO for (most) short term uses.   

 

I will caveat this for the even more pedantic, a change of use between two uses within the same Use Class is deemed not to be development and is therefore not within the ambit at all. 

 

 

 

6 minutes ago, magpie patrick said:

Right, here we go

 

The 28 day rule does not relate to residency it relates to use of a pitch or an area for camping or caravaning, it isn't for 28 consecutive days either, but for any 28 days within a given period of time, nor does it matter whether it's one caravan for 28 days or 28 caravans for one day each -  On the 29th day, use of the pitch contravenes planning regulations. That is not a test of whether the location has become a residence, it is a test of whether it has become a pitch that needs planning consent.

 

A mooring, as has been demonstrated, is not subject to the same issue. A boat on a mooring for 29 days has not broken any planning regulation. 

 

The fact that a boat is a primary residence doesn't, of itself, make a mooring into a primary residence. If it did then every time a CC liveaboard stopped for the night they'd be in breach of planning regulations.  Mooring for the 29th night doesn't either, that rule doesn't apply to boats - think about it, how many people spend 29 nights aboard their boat in a non-residential marina - it's only just over a weekend every month. Think further, a boater making their way to and fro, staying one or two weeks at each location, would be contravening planning regulations when their total stay at the same place passed 28 nights, even if it was four separate weeks. You could cover a reasonable distance in a summer, say the entire southern Oxford, three times, does that make the third time you stop above Nell's Bridge against planning regulations? Or make that stop a residential mooring? No it doesn't. 

 

The test of whether a mooring is residential is whether that mooring is your primary residence, not how long you've stayed there, and "primary residence" would be tough call on a mooring that had been rented for five months with no option to extend. I think it would take appeals and case law to sort this one out, and I'm not at all sure it would go against CRT or the boater.

 

Yes.  And you could have any number of caravans within a field for up to 28 days too - putting aside the Caravan Sites legislation 

 

As soon as a material change of uses occurs (that is not within the GDPO), an enforcement notice could be served; you don't get the first 28 days free.   In the context of a  mooring, it is improbable that anyone would be aware of your intentions in the first month,.  But if you take up permanent residence, you are open to enforcement action the moment you do so.  Quite possibly you may say that it is/was not permanent - but the point remains.