Middle Level Bill

EXPLANATORY MEMORANDUM

This Bill is promoted by the Middle Level Commissioners (“the Commissioners”),
who are responsible for both flood risk management and the regulation of navigation
in the Middle Level of the Fens. The purpose of the Bill is to amend and update the
Commissioners’ powers to regulate navigation on the Middle Level.

In particular, the Bill would allow the Commissioners to levy charges in respect
of vessels using the Middle Level waterways, and give them powers to introduce a
registration scheme for vessels using the waterways. Similar powers are exercised by
the Environment Agency, Canal & River Trust and the Broads Authority in respect of
their own navigations.

The Middle Level is the central and largest section of the Great Level of the Fens,
which was reclaimed by drainage in the mid-17th Century. The Middle Level covers
parts of the City of Peterborough, the districts of Fenland and Huntingdonshire in
Cambridgeshire, and the borough of King’s Lynn and West Norfolk in Norfolk. It is
bounded by the river Nene to the northwest, the river Great Ouse to the east, and by
low hills to the south and west.

Virtually all of the fen land within the Middle Level lies below mean sea level, and
relies on a complex flood protection and water level management system to alleviate
the risk of flooding. This is carried out by the Commissioners, who manage a system
of natural and artificial watercourses, extending for over 190 kilometres (120 miles),
with a catchment of just over 70,000 hectares (170,000 acres). But for the operation of
the Commissioners and the local internal drainage boards, much of this fen land would
be under water, jeopardising the safety and prosperity of over 100,000 people who live
and work in the area.

Over 160 kilometres (100 miles) of the watercourses managed by the Commissioners
are waterways subject to a statutory right of navigation. The Commissioners are the
navigation authority for these waterways, under a range of local Acts passed between
1663 and 1874. This makes them the fourth largest inland navigation authority in
the country by length of navigable waterway. A map showing the Middle Level’s
waterways may be found on the Commissioners’ website at: http://middlelevel.gov.
uk/map.aspx
.

The Commissioners themselves are a statutory corporation established by an Act of
1810 as a drainage body. They were reconstituted as both a drainage and navigation
authority by the Middle Level Act 1862.

The existing legal framework which governs the Commissioners’ navigation
function is now considerably out of date and does not align with either modern
requirements or the statutory framework applicable to other navigation authorities,
including in particular, the Commissioners’ neighbouring navigation authority, the
Environment Agency, which is responsible for navigation on the river Nene and the
river Great Ouse.

The Commissioners have been considering updating their powers since the early 2000s,
and have consulted interested parties, the substantial majority of which were in favour
of the proposed changes. The Commissioners have also explored with the Department
for Environment, Food and Rural Affairs (“Defra”) (which has responsibility for inland
waterways) whether it would be possible to achieve the aims of this Bill by means of an
order under the Transport and Works Act 1992. Defra’s view is that it would not, and
an Act of Parliament would be a more appropriate route.

  1. PART 1

    PRELIMINARY


Clause 1 gives the Bill’s short title, and provides for it to come into force 28 days after
Royal Assent.

Clause 2 defines certain expressions used in the Bill. Among other things, this clause
defines “the waterways” for which the Commissioners are the navigation authority,
namely those set out in Schedule 1, together with adjoining water control structures,
and any water course in the Middle Level, or any lake, pit, pond, marina or other
substantially enclosed waters, adjacent to those waterways and from which any vessel
may be navigated into the waterways, apart from those which are only used by the
landowner.

  1. PART 2

    REGULATION OF NAVIGATION


Clause 3 requires the Commissioners to establish a Navigation Advisory Committee,
made up of representatives of different interest groups on the waterways. The
Commissioners must consult the committee before fixing any charges, providing
facilities or making byelaws.

Clause 4 provides that the Commissioners may fix and recover charges for the use of
any waterway by a vessel or for the provision of services and facilities in respect
of the waterways and banks. It also enables the Commissioners to charge for the
registration of vessels if a registration scheme has been introduced in byelaws made
under clauses 10 and 11.

This will enable the Commissioners to receive a navigation income that can be
used to fund navigation on the waterways and their maintenance. At present, the
Commissioners have no direct source of income for their navigation function, which is
effectively subsidised by their funds held for flood risk management purposes.

The Commissioners will be required to publish details of the charges fixed under this
clause, in the same way that they publish details of the drainage rates that they levy.
The level of charges may not exceed their expenditure on navigation matters.

Clause 5 provides that the Commissioners may enter into arrangements with other
authorities who may require registration of vessels navigating on waterways. This
would enable reciprocal arrangements with the Environment Agency, to reduce costs
and ensure the recognition of each other’s licences and registration. This will also help
vessels to move more easily through the different waterways in this area.

Clause 6 provides that the Commissioners may temporarily close, restrict or regulate
the use of a waterway or water control structure for specified purposes. It is otherwise
an offence to temporarily close waterways and interfere with public right of navigation.

Subsection (1)(a) enables the Commissioners to carry out essential maintenance of the
waterways and undertake improvements to them in order to enhance navigation in
the waterways. Subsection (1)(b) enables waterways to be closed for short periods for
recreational purposes, and subsection (1)(c) allows the Commissioners to close the
waterway known as Well Creek between 1 December and 1 March, to enable the
traditional Fenland pursuit of ice skating to take place, if the weather permits it.

Subsections (2) and (3) impose restrictions on the Commissioners’ ability to exercise the
power to temporarily close the waterways for example when such closure may take
place, the specific lengths of time for any such closure and the frequency of any such
closures or restrictions.

Clause 7 similarly provides that the Commissioners may direct that Stanground Lock,
Salters Lode Lock or both to be closed to navigation on Christmas Day, at night or on
any one day each week (not Saturday or Sunday) between 1 October and 31 March.
This allows lock keepers a day off each week during low season, and has been agreed
with boaters.

Clause 8 provides that where any building or structure on, under or over a waterway
is considered to be in such disrepair that it is or is in imminent danger of causing
an obstruction the Commissioners may serve notice on the owner of the building or
structure to carry out the works specified in the notice within such reasonable time
as is specified in the notice. Under subsection (3), if the owners do not do so, the
Commissioners can carry out the works themselves and recover the expenses incurred.

If the owners do not agree that the works are necessary, subsection (4) enables them to
serve a counter notice within 14 days objecting to the works. In these circumstances,
the notice is suspended, and subsection (5) provides for arbitration if the owner and the
Commissioners cannot agree on the need for the works.

This clause ensures the Commissioners have power to keep the waterways open to
vessels and their safe navigation without interference or harm.

Clause 9 deals with stranded, grounded and sunken vessels and vehicles, causing an
obstruction to the waterways. Because of the narrowness of the waterways, if a vessel or
vehicle sinks, it is imperative for it to be removed immediately. Subsection (1) therefore
imposes a duty on the owner of the vessel or vehicle to remove it as soon as may be, and
provides the Commissioners with a power to remove the vessel or vehicle in default.

Stranded or abandoned vehicles and vessels, or vessels that are left or moored without
lawful authority, are more likely to be left at the side of the waterway. Subsections
(2)
and (3)therefore gives the Commissioners powers to serve a notice requiring
removal, and giving the owner 14 days (if stranded or abandoned) or 28 days (if lost or
moored) in which to comply. If the vehicle or vessel is not removed by the owner, the
Commissioners may remove it, and if they do so subsection (5) permits them to recover
their expenses from the owner of the vessel or vehicle for removing or storing such
vessel, vehicle or its contents. Subsection (9) defines what "without lawful authority"
means in this context.

Under subsection (6) any vessel, vehicle or their contents removed by the Commissioners
will, following 6 weeks of its removal, vest in the Commissioners if no owner comes
forward. However, under subsection (7), if within 6 months of its removal an owner
does subsequently come forward then the owner is entitled to reclaim the vessel,
vehicle or its contents, or, if sold, the proceeds of sale, less any expenses incurred by the
Commissioners.

Clause 10 updates the Commissioners’ powers to make byelaws regulating navigation.
They already have powers under section 51 of the Middle Level Act 1874, but these do
not cover the full range of activities that take place in and around the waterways. The
power is needed to enable the Commissioners effectively to regulate and manage the
use of the waterways for the safety of all those using the waterways and their banks.
For example byelaws would enable the Commissioners to impose standards for the
construction, equipment and condition of vessels, to impose navigation rules, and to
require vessels using the waterways to be insured. Schedule 2 sets out the insurance
standards that can be required by byelaws.

Subsection (6) enables any byelaws made under this provision to make it an offence
for any person to contravene or fail to comply with a byelaw to be liable on summary
conviction to a fine not exceeding level 3 on the standard scale.

Subsection (9) applies the confirmation procedure set out in section 236 of the Local
Government Act 1972 to byelaws made under this clause or under section 51 of
the Middle Level Act 1874, and provides that new byelaws do not have effect until
confirmed by the Secretary of State.

  1. PART 3

    REGISTRATION


Clause 11 enables the Commissioners to use their byelaw-making power under clause
10
to introduce a registration scheme for vessels on the waterways, in line with other
navigation authorities. As there is a public right of navigation, statutory authority is
needed to limit it in this way.

If a registration scheme is in place, then clause 10(6) would make it an offence to navigate
the waterways in an unregistered vessel.

In addition, subsection (2) would require the Commissioners to keep and maintain the
register. The registration byelaws can set different requirements for different types
of vessels, and in particular may require a registration plate to be displayed on the
registered vessel. The registration byelaws may also require vessels to be insured in
accordance with Schedule 2, and require an application to contain the information
described in Schedule 3. Under subsection (4) the Commissioners may impose an
application fee for processing an application.

If a valid application for registration is submitted, then subsection (5) requires the
Commissioners to approve it, unless they are not satisfied that the requirements of the
registration byelaws have been met, or they have previously revoked the registration
of the vessel.

Under subsection (6) the Commissioners may refuse to register a vessel or revoke its
registration on safety grounds, and under subsection (7) they may revoke the registration
if the information supporting the registration turns out to have been incorrect, or the
requirements of the byelaws are broken.

If the Commissioners are considering refusing or revoking a registration, then
subsection (8) requires them to notify the owner or applicant, and subsection (9) requires
them to give that person an opportunity to make submissions. If there is an outstanding
dispute about whether registration should be refused or revoked, this can be appealed
to the Magistrates’ Court under subsection (10), although subsection (11) provides that an
appeal cannot be made if the reason for refusal or revocation was a missing insurance
policy, or a breach of any required safety standards.

Clause 12 gives the Commissioners power to share any information held by them or
on their behalf with certain defined authorities, including emergency services, the
local authority and navigation authorities. This provision is required to allow the
Commissioners to lawfully provide and process information it receives with third
parties.

  1. PART 4

    MISCELLANEOUS


Clause 13 requires the Commissioners to have regard to the rights and interests of boat-
dwellers, and the public rights of navigation, when exercising any functions under
the Bill. This includes their functions of providing facilities. The Commissioners must
publish a report each year, setting out how they have complied with the duty.

Clause 14 provides that the Commissioners, in exercise of their function as navigation
authority, may develop, improve, preserve or manage the waterways and banks as
places for the residential use of vessels, or for recreation and leisure pursuits. This
power is needed to enable these wider public benefits to be pursued even where there
is no direct benefit for navigation, notwithstanding any interference with public rights
of navigation.

Clause 15 requires the Commissioners to publish a protocol setting out how they
will exercise their powers under the Bill to remove vessels. Among other things this
will require them to remove a vessel only as a last resort. The Navigation Advisory
Committee established under clause 3 must be consulted before this protocol is finalised.

Clause 16 permits the Commissioners to appoint authorised officers for the purpose of
enforcing or securing compliance with the provisions of the navigation Acts and any
navigation byelaws.

Clause 17 clarifies the arrangements for the audit of the Commissioners’ accounts. At
present the Commissioners are required to keep two different sets of accounts: one in
respect of their navigation functions, and one in respect of their flood risk management
functions. The Commissioners appoint an auditor for the navigation accounts, under
the Middle Level Act 1862, and have a local auditor appointed for the drainage
accounts, under the Local Audit (Smaller Authorities) Regulations 2015 and the Local
Audit and Accountability Act 2014. It is presently unclear whether the same person
can be appointed to carry out both audits, given the different statutory bases of the two
appointments, so this provision makes it clear that they can. This is not expected to
have any impact on the auditing process, but will save the Commissioners from having
to pay double fees.

Clause 18 sets out the process for serving any notices that may be required under the Bill
or byelaws. It includes a requirement for the Commissioners to serve notice directly on
a vessel if the Commissioners believe it is used for residential purposes.

Clause 19 amends the Middle Level Act 1874 to bring the level of fines charged in line
with modern practice using the standard scale.

Clause 20 makes provision for the repeal of provisions in the old Acts regulating the
Middle Level that are superseded by the provisions of this Bill, or otherwise redundant.
Those provisions are set out in Schedule 4.


EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of the Middle Level Commissioners the provisions of the Middle Level Bill
are compatible with the Convention rights.