BOROUGH OF POOLE
TRANSPORTATION ADVISORY GROUP – THURSDAY 20 JANUARY 2005
REPORT OF HEAD OF TRANSPORTATION SERVICES
ON THE MANAGEMENT OF BOATS IN THE FOUR WAYS TO
BACKWATER CHANNEL - OFF WEST QUAY ROAD
1. Matter For Consideration and Policy Context
1.1 To consider the arrangements for the continued storage of boats currently located in the four Ways off West Quay Road within the layout which will be created by the new bridge crossing.
2. Recommendation
2.1 It is recommended that the arrangements for managing the boats stored in the four Ways as described in this report be approved.
3. Background
3.1 The four Ways of Dee Way, Wilkins Way, Whittles Way and Slip Way provide public access to the water along the Back Water Channel, upstream of the current Poole Bridge. These are shown as Appendix A.
3.2 The status of these Ways was considered in detail at the 19 October,
17 October and 14 November 2002 TAG following an application to have these added to the Definitive Map. On establishing that these Ways were shown on the Canford Award Map of 1822 as a ‘Private Carriage and Drift Road and Bridleway’, it was concluded that the ways were in fact highways maintainable at public expense.
3.3 The new bridge crossing and associated regeneration area are described in the recently submitted application for an order to construct the second harbour crossing under the Transport and Works Act 1992. The proposals impact on these four Ways as follows:
(a) Dee Way
Will remain as highway but with no direct water frontage, as a result of the need to limit access to the basin which will be created between the bridges .
(b) Wilkins Way
Is directly on the alignment of the new bridge crossing and so will be incorporated in the construction of the approach to the new bridge.
(c) Whittles Way
Will remain in its current form until likely enhancement from planning contributions associated with adjacent redevelopments. It is envisaged that this, together with Slip Way, will constitute the primary public access to the water within the regeneration area.
(d) Slip Way
As Whittles Way, water access will be retained in both the current and final arrangement.
3.4 The Ways are used by fishermen and other boat users wishing to gain access to the water, and are particularly beneficial to those who have one of the 115 moorings in the Channel and Holes Bay. Custom and practice built up over the years is for a number of small dinghies to be stored along the Ways to enable users to row out to these moorings.
3.5 There is a strong desire to retain the situation of storing the boats within these Ways. The use of these Ways by fishermen has taken place for many years and as such these boats reflect the historical importance of the waterside to the local community, particularly important when set against the many new buildings contained within the regeneration area.
3.5 A recent survey showed the following number of boats currently being stored:
Dee Way 0
Wilkins Way 45
Whittles Way 13
Slip Way 19
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Total 77
3.6 Included within the Transport and Works Act Order is planning permission to relocate approximately 90 of the moorings away from the main channel and the area between the bridges. In this respect concentrating the water access and boat storage in Whittles and Slip Way will support this arrangement.
3.7 It is proposed that this opportunity be taken to control the arrangements in which the boats are stored on the highway. An exercise is being undertaken to contact the owners of the boats currently stored in order to engage them in the process. At present this storage and access use is not controlled by the Council. When the owners have been identified they will be notified of the Councils management proposals.
3.8 In order to accommodate all of the boats in the two Ways it will be necessary to provide purpose built racking, at an approximate cost of £10,000 from development contributions already secured. While technically this in itself would constitute an obstruction of the highway, it is in fact perpetuating the custom and practice which has existed without problem for many years. It is envisaged that this will remain as a temporary situation under the more formalised arrangements associated with new adjacent developments are in place. If this racking is not provided then it will not be possible to accommodate all of the boats of the mooring holders in the upper two Ways, resulting in a likely objection to the Transport and Works Act order.
3.8 The main features of these proposals are:
(a) Use of the facility to store boats will be regarded primarily for Backwater Channel mooring holders although consideration will be given to cases where it can be established that use has been taking place for a considerable period of time, or an individual can demonstrate a particular need for this form of boat storage.
(b) Until paragraph 4.3 (b) arises the number of boats tolerated will be between 77 and 115 boats – precise requirements will be established following the exercise referred to in item 3.7.
(c) Unless the owners can satisfy the Council that they can comply with the following conditions or if the owner cannot be identified, legal action may be taken to remove the boats under section 149(1) of the 1980 Act. All owners will be expected to
· Keep their boat(s) in a seaworthy condition and store them safely by securing to the racking provided
.
· Ensure they are covered for public liability in the event anyone should be injured by their boat ( if such insurance is available to them ).
· Boats shall be left at the owners risk
· Hold a mooring or other special requirement which shows that the storage is needed
· Display a notice number which will show that the owner has written to the Council in the terms required.
· Comply with any direction which may be made at any time by Poole Harbour Commissioners
3.9 As there is to be no formal licence arrangement it would not be appropriate to charge a licence ‘fee’ to boat owners. The situation would be monitored by Transportation Services as part of normal enforcement duties, and any owner in breach may be required to remove his/her boat.
4. Legal Situation
4.1 The Head of Legal Services has taken Counsels advice and this has been clear that as the purpose of highways is to allow persons to pass and repass along them without obstruction. The permanent storage of boats creates a public nuisance contrary to common law and the Highways Act 1980. Unless there is a specific statutory power to permit an act which would otherwise constitute an obstruction to the public highway there is no legal power for the Council to grant a licence.
4.2 However the Council has never taken formal action to stop this use and hence the establishment of it in the public mind by custom and practice. This illegality has created public expectations but severely restricts the Councils powers to deal with the situation. The Council can only do what it has the legal power to do and the people storing the boats cannot claim a legal right to do so even if such use has been tolerated for a considerable time.
4.3 In these particularly difficult circumstances it is therefore proposed that this practice continue by means of the following:
(a) Within the current unrestricted parking situation on the Ways, such obstructions will continue to be tolerated where it is considered that no public nuisance is being caused . No action will be taken against individuals storing their boats there provided the stated conditions, are being met.
(b) When the Ways are ultimately improved, probably through planning contributions from adjacent developments, then it is likely to be associated with a limited restriction of vehicular traffic. In this case if the storage of the boats remains on the public highway then the this would fall within part VIIA of the Highways Act 1980, whereby Section 115(B)(1) allows the structure to be placed on the basis that it would provide a service for the benefit of the public or a section of the public. This power does not apply to the Ways at present.
Timing
5.1 The siting of all of the boats within Whittles and Slip Way would take place at the same time as the relocation of the moorings in the channel. Tolerated users will be given reasonable notice as to when their boats must be moved.
5.2 Legalisation of the storage in purpose built racking will be achieved as part of adjacent redevelopment as and when this takes place.
JAMES T BRIGHT
Head of Transportation Services
Appendix A - Four Ways off West Quay Road
Name and Telephone Number of Officer Contact:
Steve Tite (01202) 262020
TAG200105T3D
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