The Authority's Response To The Glover Report.

[JennyMorgan]

In my honest opinion Dr Packman has finally and openly nailed his true colours firmly to the mast. I quote directly from the Authority's response to the Glover/National Parks Review:

Recommendation 1: Section 2 (1) of the Norfolk and Suffolk Broads Act should be amended to read:
"2 Functions of Authority: general.
(1) It shall be the general duty of the Authority to manage the Broads in accordance with the principles of
sustainable development for the purposes of—
(a) conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads;
(b) promoting opportunities for the understanding and enjoyment of the special qualities of the Broads by
the public;
(c) protecting the right of navigation through the maintenance, improvement and development of the
navigation area to such standard as appears to the Authority to be reasonably required; and,
(d) promoting sustainable economic and social development of the area’s communities.”

I refer you immediately to paragraph (c), namely "protecting the right of navigation through the maintenance, improvement and development of the navigation area to such standard as appears to the Authority to be reasonably required". Alarm bells have to ring loudly here. The Authority wishes to be able to maintain the navigation area as it sees fit. A laudable sentiment, perhaps, but it also means that the Authority seeks to be able to abandon, to exclude boaters and anglers from areas that the Authority  doesn't see as being reasonably required to be maintained. Paragraph (C) is very clearly a double edged sword, read it for what it is.

No safeguards or reference to the requirements of stakeholders, the Authority wishes to be able to maintain the navigation area as only it sees fit. That can only mean that it also wishes to be able neglect, to abandon, to exclude stakeholders, as it, the Authority sees fit. I've banged this drum long and hard, wake up and smell the coffee, in this case it's not very pleasant.

[MauriceMynah]

Ok Peter, this is how I see it. You make many statements and implications in your post and firstly may I quote one of the last...

1 hour ago, JennyMorgan said:

I've banged this drum long and hard

Yes indeed, and that's part of the problem. You have banged it so long and so hard that people are tending not to hear it anymore. It has become a background noise, so when you raise valid and important points they tend to get missed. Strowager warned you of this danger many years ago in the "other place", and sadly I think it has come to pass.

Now, don't get me wrong, you may be generally correct in your assertions, often I think you are, but equally there may be other ways (completely reasonable ways) of interpreting what has been written. One of the soap boxes I frequently stand on is about the poor standard of written English these days, resulting in so many important documents being ambiguous, leaving them open to misinterpretation, sometimes intentionally, sometimes not.

1 hour ago, JennyMorgan said:

(c) protecting the right of navigation through the maintenance, improvement and development of the
navigation area to such standard as appears to the Authority to be reasonably required;

and

1 hour ago, JennyMorgan said:

Paragraph (C) is very clearly a double edged sword, read it for what it is.

Could it not be read as "If it becomes apparent that to maintain a stretch of navigation is unviable, we maintain the right not to maintain it as a navigation"

It is well documented that I am less than happy that the clearance at Potter Heigham bridge has reduced over the years, and it is equally well documented that I have tried to find out WHY this clearance has reduced.

If it is because of reduced dredging, then I feel it is reasonable that I shout and scream that the authority is failing in it's duty, however, if it is due to flood alleviation works then I have to bite the bullet for the "Greater good". Finally, if it is as a result of "Climate change" then it would be totally unreasonable of me to demand that the navigation is maintained by whatever means irrespective of the cost.

Either intentionally or not, paragraph (c) is poorly written, but rather than cry "Packman is doing it again" it should be demanded that the offending paragraph is rewritten to clarify its intention.

Whether we can make that demand is another question, and one for which I have no answer.

 

[vanessan]

I read this response a few weeks back and have to admit that I read it the same way JM did. MM’s reply however has given me food for thought and I now think that that particular piece has either been very badly written or very cleverly written. Clarification could be requested but isn’t it likely that any response would be just as cleverly (or badly) worded? 

1 hour ago, MauriceMynah said:

Could it not be read as "If it becomes apparent that to maintain a stretch of navigation is unviable, we maintain the right not to maintain it as a navigation"

It could, which is entirely reasonable, but that still leaves toll payers at the mercy of an authority that makes its own rules and can decide what it wants to be ‘unviable’. I can’t see how that particular piece can be worded to give comfort to all stakeholders. 

[dnks34]

Im inclined to think cleverly written...but....

What we need to know is in what circumstances would the Authority deem maintaining the navigation to be unreasonable?

What never ceases to amaze me is how many written documents the Broads Authority continue to produce and for what? To justify their existence? To make sure we all know they can do as they like and are completely unaccountable? 

They ought to be careful as it could be a double edged sword, if they did stop maintaining the navigation they might then render themselves defunct and therefore totally unecessary as a department. 

 

[ChrisB]

I think it is badly written. They can not leave the statement open ended otherwise they could have to maintain navigation on the Yare for yachts with a draft of 15ft.

"As deemed appropriate"  would have had a better ring to it.

[MauriceMynah]

Ok, I'm going to make no friends with this me thinks BUT... (and this is just my opinion)...

It is for many very reasons impossible and undesirable that the BA should be an elected committee. It has to be a part of the Civil Service with a leader appointed by the Civil Service. For it to be an elected entity, it would have to be determined who should be the electorate, and to decide that, someone would have to determine who will be effected by any decisions made by that entity. Sounds simple.... but it aint!

It would also be important to hold in mind that it is inevitable that the largest interest group would have the largest vote, and that that group would have little sympathy with the minority groups. Also remember that boat owners (who pay the most towards the BA's coffers) would be one of the smallest of those groups, outnumbered individually by any of the twitchers, anglers, ramblers or local home owners. Be careful what you wish for! 

So, if we agree that it cannot (or should not), by it's nature, be an elected authority, we have to agree on to whom the leader of that authority should be answerable. It seems to me that the head of whichever department selects the leader, should be the person to whom that leader is answerable. I strongly suspect that this is already the case, and it is to that person all complaints should be addressed.

One might feel inclined to recommend that action to James Knight who does seem to have a valid argument against the current leader of the authority (as long as his "National Pike" hasn't muddied the waters!) 

[Poppy]

46 minutes ago, MauriceMynah said:

Ok, I'm going to make no friends with this me thinks BUT... (and this is just my opinion)...

It is for many very reasons impossible and undesirable that the BA should be an elected committee. It has to be a part of the Civil Service with a leader appointed by the Civil Service. For it to be an elected entity, it would have to be determined who should be the electorate, and to decide that, someone would have to determine who will be effected by any decisions made by that entity. Sounds simple.... but it aint!

It would also be important to hold in mind that it is inevitable that the largest interest group would have the largest vote, and that that group would have little sympathy with the minority groups. Also remember that boat owners (who pay the most towards the BA's coffers) would be one of the smallest of those groups, outnumbered individually by any of the twitchers, anglers, ramblers or local home owners. Be careful what you wish for! 

So, if we agree that it cannot (or should not), by it's nature, be an elected authority, we have to agree on to whom the leader of that authority should be answerable. It seems to me that the head of whichever department selects the leader, should be the person to whom that leader is answerable. I strongly suspect that this is already the case, and it is to that person all complaints should be addressed.

One might feel inclined to recommend that action to James Knight who does seem to have a valid argument against the current leader of the authority (as long as his "National Pike" hasn't muddied the waters!) 

Perhaps the size of the vote should be decided by the financial contibution made directly to the Authority. Stuff that in your pipe, twitchers, anglers, ramblers etc

[grendel]

49 minutes ago, MauriceMynah said:

It seems to me that the head of whichever department selects the leader, should be the person to whom that leader is answerable. I strongly suspect that this is already the case, and it is to that person all complaints should be addressed.

so do we know who this mythical being might be?

[Simondo]

I don't feel there is anything wrong with 2 (1) (c) and judge some of the comments above as taken in part and not the whole of the statement. The last part which has been highlighted and commented upon HAS to be taken in context with the whole statement which clearly states 'protecting the right of navigation through the maintenance, improvement and development' . The latter part  'as appears to the Authority to be reasonably required' is a legal way of watering this down so as not to be specific yet what its watering down is the maintenance, improvement and development NOT the degradation or failing of such rights. So lets say some part of the navigation is not maintained or improved or developed and in fact falls in to some sort of decay would BA really have any protection in this statement... the answer is no because they could not say they have maintained or improved or developed said part of the navigation and reasonableness wouldn't come into it.

I obviously have a different viewpoint than some on here but its still my opinion of that statement... however I do agree it could be written in a clearer less ambiguous manner to either placate or incense the naysayers

[rightsaidfred]

20 minutes ago, grendel said:

so do we know who this mythical being might be?

Yes Michael Gove Secretary of State DEFRA

Fred

[marshman]

I suspect too that it is just legal waffle without the need of the dire warning posted, yet again,  by PW!

I might be wrong but my belief is that it would take a lot more to actually just abandon waterways than the text written above.

For what its worth I am also very much in agreement with MM's view of " be careful what you wish for" as IMHO it could be an awful lot worse!! And neither is it necessarily appropriate that those who pay the most, should have the most say - they could easily be wrong concentrating on their specific issues rather than Broadland as a whole. Which again may be inappropriate!

[Paladin]

44 minutes ago, Simondo said:

I don't feel there is anything wrong with 2 (1) (c) and judge some of the comments above as taken in part and not the whole of the statement. The last part which has been highlighted and commented upon HAS to be taken in context with the whole statement which clearly states 'protecting the right of navigation through the maintenance, improvement and development' . The latter part  'as appears to the Authority to be reasonably required' is a legal way of watering this down so as not to be specific yet what its watering down is the maintenance, improvement and development NOT the degradation or failing of such rights. So lets say some part of the navigation is not maintained or improved or developed and in fact falls in to some sort of decay would BA really have any protection in this statement... the answer is no because they could not say they have maintained or improved or developed said part of the navigation and reasonableness wouldn't come into it.

The current situation is that there is right of navigation on tidal rivers. The derivation of that right is arguable, perhaps Magna Carta, perhaps common law, but it is a right that is recognised and accepted throughout the UK. The Broads Authority also have a legal duty of “protecting the interests of navigation” (note that the Broads Act does not say ‘protecting the right of navigation’ or ‘the navigation area’, such area being defined in the Broads Act).

Legislation must be read as a whole. Bits of it cannot be selected to suit a particular purpose. So, if the 1988 Broads Act was amended to read “(c) protecting the right of navigation through the maintenance, improvement and development of the navigation area to such standard as appears to the Authority to be reasonably required”, then the maintenance etc will only be necessary to the standard as appears “…reasonably required”. The elements cannot be separated from each other.

The change from “protecting the interests of navigation” to “protecting the right of navigation through the maintenance …” is significant for another reason. Parliament may override common law by enacting a statute. Should the Broads Act be amended by the inclusion of the proposed wording, then, for the Broads, that would become the law relating to the right of navigation. If the Authority decided that that one or more parts of the tidal rivers no longer required maintenance etc, it, or they, could be left to silt up.

That such a decision must be “reasonable” offers no comfort either. What boaters might consider to be reasonable might be diametrically opposed to what a conservationist might consider reasonable, leaving the Authority as the final arbiter.

[JennyMorgan]

Regarding the comment that the offending clause is poorly written is, I think, quite true. I think that that is quite intentional. We only have to look at the national park saga to see how poorly worded documents are rewritten or quoted out of context in order to confuse or justify something that was never intended in the first place. 

As to whom is Packman answerable? Quite simply it is chairman of the Broads Authority, and there lies the problem? The next question has to be 'who controls the chairman'?

[vanessan]

32 minutes ago, marshman said:

I might be wrong but my belief is that it would take a lot more to actually just abandon waterways than the text written above.

I do hope you are right in that belief. 

55 minutes ago, rightsaidfred said:

Michael Gove Secretary of State DEFRA

Am I right in thinking that DEFRA have already been approached about some aspect of the CEO’s ‘control’ over various issues and they have declined to intervene? I’m sure I have read that somewhere but maybe someone can confirm/clarify. 

[Paladin]

13 minutes ago, JennyMorgan said:

As to whom is Packman answerable? Quite simply it is chairman of the Broads Authority, and there lies the problem? The next question has to be 'who controls the chairman'?

I thought it was the whole Broads Authority, not just the chairman.

[MauriceMynah]

14 minutes ago, JennyMorgan said:

The next question has to be 'who controls the chairman'?

No, the next question is "To whom is the chairman answerable?"

[rightsaidfred]

6 hours ago, JennyMorgan said:

I refer you immediately to paragraph (c), namely "protecting the right of navigation through the maintenance, improvement and development of the navigation area to such standard as appears to the Authority to be reasonably required". Alarm bells have to ring loudly here. The Authority wishes to be able to maintain the navigation area as it sees fit. A laudable sentiment, perhaps, but it also means that the Authority seeks to be able to abandon, to exclude boaters and anglers from areas that the Authority  doesn't see as being reasonably required to be maintained. Paragraph (C) is very clearly a double edged sword, read it for what it is.

No safeguards or reference to the requirements of stakeholders, the Authority wishes to be able to maintain the navigation area as only it sees fit. That can only mean that it also wishes to be able neglect, to abandon, to exclude stakeholders, as it, the Authority sees fit. I've banged this drum long and hard, wake up and smell the coffee, in this case it's not very pleasant.

I am not sure "reasonably required" translates into "as only it sees fit,"  while I don't trust JPs motives anymore than anyone else and we need to be watchful over egging dosn`t help when raising concerns.

Fred

[rightsaidfred]

11 minutes ago, vanessan said:

I do hope you are right in that belief. 

Am I right in thinking that DEFRA have already been approached about some aspect of the CEO’s ‘control’ over various issues and they have declined to intervene? I’m sure I have read that somewhere but maybe someone can confirm/clarify. 

Yes you are right on many occasions including through requests to various MPs by their constituents including myself and recently James Knight.

Fred

[RS2021]

The wording to me does not appear to give the BA any ability to extinguish any existing right of navigation, merely limit their obligation to maintain it. What this means if the BA deems it not reasonable to maintain the navigation, then who would have that obligation is unclear – but the right to navigate would remain. Also introduced and hidden in the main clause so your eyes are not drawn to it is the principle to do so to the ‘principles of sustainable development’. So how would the BA interpret this in terms of navigation? (E.g. wood is considered a sustainable material, but plastic isn’t...)

 

It also seems to me from the comments in this thread and others that the question of who people are answerable to is also key and many people believe is not working at the moment. Does the Glover Report seek to change this? If not is it an area worth commenting on in any reply to the consultation.

[Simondo]

42 minutes ago, Paladin said:

Legislation must be read as a whole. Bits of it cannot be selected to suit a particular purpose. So, if the 1988 Broads Act was amended to read “(c) protecting the right of navigation through the maintenance, improvement and development of the navigation area to such standard as appears to the Authority to be reasonably required”, then the maintenance etc will only be necessary to the standard as appears “…reasonably required”. The elements cannot be separated from each other.

That's pretty much what I'm saying in that 'Maintenance, Improvement and Development' are inclusive so it's not just maintenance. Out of the 2 versions the current 1988 version and this proposed version I'd opt for this one

[grendel]

7 hours ago, JennyMorgan said:

c) protecting the right of navigation through the maintenance, improvement and development of the
navigation area to such standard as appears to the Authority to be reasonably required;

you have (or someone has underlined the latter part of this clause), however, in the first part it does clearly state maintenance, improvement and development, nowhere does it mention abandonment, to me this reads that the reasonably required standard, only apportions to the 3 items mentioned, while yes they could deem that maintenance was below standard, that does not mean it could be abandoned altogether, it does mean that if you renew your quay heading on your property, and the BA deemed it not up to their standard, then you could be liable to replace it to their standard at your cost.

At least thats how it comes across to me

[Paladin]

7 minutes ago, grendel said:

you have (or someone has underlined the latter part of this clause), however, in the first part it does clearly state maintenance, improvement and development, nowhere does it mention abandonment, to me this reads that the reasonably required standard, only apportions to the 3 items mentioned, while yes they could deem that maintenance was below standard, that does not mean it could be abandoned altogether, it does mean that if you renew your quay heading on your property, and the BA deemed it not up to their standard, then you could be liable to replace it to their standard at your cost.

At least thats how it comes across to me

The standards of developments have always been within the remit of planning legislation. Nothing to do with the Broads Acts.

The right of navigation cannot be simply abandoned, but do we all want to be navigating in canoes and kayaks, because the navigation hasn't been maintained at a depth suitable for deeper-draught vessels?

[vanessan]

17 minutes ago, RS2021 said:

What this means if the BA deems it not reasonable to maintain the navigation, then who would have that obligation is unclear – but the right to navigate would remain.

The right to navigate would remain but access would probably reduce slowly (ie through lack of dredging, weed clearing or tree pruning) leading to canoe/dinghy  access only and eventually nothing at all. 

[Paladin]

A current example of loss of navigation is Crome's Dyke, which leads from the Ant near How Hill to Crowe's Staithe. It is so overgrown that nothing larger than a canoe can use it. This has been brought to the attention of the Broads Authority on more than one occasion and the reply has always been along the lines of "tree clearance work...has to be focused on areas where it will deliver the greatest benefit for navigation".

That sounds very reasonable, doesn't it? But the dyke is becoming more and more neglected and soon even canoes won't be able to use it. Another bit of the navigation abandoned, even though the right to navigate will persist.

There have been mutterings that the Broadsword volunteers might carry out clearance work, but I'm not holding my breath.

[grendel]

2 minutes ago, Paladin said:

soon even canoes won't be able to use it. Another bit ofthe navigation abandoned, even though the right to navigate will persist.

that would be good for the hikers then