MINUTES OF EVIDENCE
taken before the
Tuesday 17 July 2007
David Taylor, in the Chair
Mr Stephen Crabb
MR CHARLES GEORGE QC appeared on behalf of the Promoters.
MESSRS WINCKWORTH SHERWOOOD appeared as Agents.
The Petition of Mrs Mollie Yensie Howes.
The Petition of Mr Paul Derrick Howes.
The Petition of Mr Alan Richard Williams.
The Petition of Mr Peter Saunders.
MR JAMES O'CAMPBELL appeared on behalf of the Petitioners.
Ordered: that Counsel and Parties be called in.
1. CHAIRMAN: Good morning. Welcome to the first public meeting of the Opposed Bill Committee. My name is David Taylor and I will be Chairing the proceedings. My colleagues here are Jim Sheridan, James Duddridge and Stephen Crabb. Let me announce the times of our sittings. We will sit this morning until 1:00 pm and this afternoon from 2:30 pm until 4:30 pm. There will probably be convenient breaks at around 11:45am for ten minutes and 3:15 pm for ten minutes. We will sit tomorrow from 10:45 am until 11:45 am and in the afternoon from 1:00 pm until 4:30 pm and sometime during that afternoon there will again be a short break. I am hopeful that this may give us sufficient time to dispose of the business before us. If however more time is required, we will announce further sitting times in due course. Today we will hear firstly from the Promoters of the Bill and then from the Agent representing the four Petitioners objecting against it. Mr George, would you like to introduce the case for the Bill.
2. MR GEORGE: Thank you, Sir, my aim in opening is to be as brief as I can because I then propose to call two witnesses, both officers of the Broads Authority, and it will be better that you hear from them directly why the Bill's proposals are needed and why the allegations made in the Petitions appear to us to be either wrong, whether in fact or law, or at any rate exaggerated. I want to headline four matters in opening: the role of the Broads Authority; the purposes of the Bill; some of the safeguards that are proposed; and to deal with the principal points in dispute with the Petitioners. There is a departmental report which, save on some relatively minor matters, is supportive of the Bill and with the Committee's leave I will ask my first witness to address those points when he is giving evidence and I will not deal in any detail with that matter in my opening.
3. I believe that honourable members and the commissioners have a copy of the Filled-up Bill, and if I could just say a word about that. What one has is first of all the original printed Bill with certain amendments inserted and then five pages of pages apart. If I could ask that they are circulated. There is a single page which the Petitioners have which consist of amendments to the Filled Bill, which are of no significance whatever, but they frankly are very peripheral matters indeed, so peripheral that I shall only be referring to one of the matters there. The Committee should also have, I hope, a bundled volume which I shall call the bundle with a document index on the front page. That contains all the documents which I and my witnesses will be referring.
4. I turn then to an overview of the role of the Broads Authority. In the course of the Second Reading debate on 25 April several members whose constituencies include parts of the Broads spoke eloquently of the very special character of the Broads. Of course the Broads should not likely be called the Norfolk Broads because an important part of the Broads lies in Suffolk. In 1988 recognition of that special character and the need to preserve and impasse it was made by the passing of the Norfolk and Suffolk Broads Act 1988 which with some minor amendments by subsequent legislation remains today the governing instrument. Since the effect of the present Bill is to vary and supplement provisions contained in the 1988 Act, it will be necessary from time to time to refer back to its terms. In the bundle the Committee has at Tab 2 the 1988 Act as it currently stands, that is incorporating changes made as recently as 2006. At Tab 3 you have what is one of the more useful documents for these proceedings, which is copy of the 1988 Act shown with track changes, the effects of the Bill if it were to receive Royal Assent in the form in which it is laid before the Committee. We will be coming back to that in several moments in order to see most clearly what the Bill does.
5. Could I then ask you, in that same bundle, to go to Tab 12. In Tab 12 there are two plans. If I could ask you to turn to the second of those plans. I personally have taken the drastic step of tearing it out but the Committee may be clever enough to pull it out. There you have a plan in which you can see the principal towns: Norwich, Lowestoft, Great Yarmouth, for instance and the principal rivers: the Yare, the Bure and the Waveney. The Yare extends right up to Norwich and it then goes around the south side of Norwich and the River Wensum flows into the centre of Norwich. In pink, if that be the correct description of the colour, you will see the area which is administered by the Broads Authority. In green you can see the navigation areas. I will come back to the significance of them and the significance of the blue areas, which are the adjacent waters a little bit later and also I will be coming back to the significance of the large yellow area just lying to the west of Great Yarmouth, which is called the Transfer Area. I will be coming back to those later.
6. Whilst the Committee has the plan open, can I draw attention to the position of the Haddiscoe Cut, which you will see running off the River Yare and joining it to the Waveney because later I will be coming back to the matter of the Haddiscoe Cut. That having been said, the Committee can put that plan aside.
7. If I could then ask you to go, please, to Tab 9. The Committee finds the membership of the Broads Authority which consists of a number appointed by the Secretary of State and then those appointed by the eight concerned local authorities and two appointed from the Authority's Navigation Committee, making up a total of 21 members. So far as the Navigation Committee, it is a statutory body under the 1988 Act. It has 13 members, eight of whom are not initially members of the Authority, though two of these non-members then make their way on to the Authority representing what would broadly be described as boating interests. That is all governed by Section 9 of the 1988 Act.
8. Then if I could ask the Committee to turn to Tab 10, there is set out the general duty of the Broads Authority under Section 2 of the 1988 Act to manage the Broads for the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the Broads, promoting opportunities for the understanding and enjoyment of the Broads special qualities by the public. Those two are the standard national park function. That is what any national park authority is charged with doing. Then, thirdly, and not shared with the National Park Authorities, the duty to protect the interest of navigation which you see there listed. There are also duties to maintain and improve the navigation area, and the navigation area is that which was shown in green on that plan which we looked at previously. That is the area of the principal rivers. On those rivers there are public rights of navigation, so the navigation areas are the principal rivers on which there is a public right of navigation. In a separate category falls the Haddiscoe Cut which we identified a little while ago which is part of the navigation area but where at present there is not a public right of navigation. If members of the Committee were to set out in a craft, they would in fact be able to go down that particular area at the present time but they would be going down by permission rather than in exercise of a public right of navigation.
9. In respect of navigation area, that is the green areas shown on that plan, the Broads Authority is the harbour authority with the sort of duties which are attached to harbour authorities. The Broads Authority is also the local planning authority, so if you want to make a planning application within the pink area of the plan, you do not go to the district council, you go to the Broads Authority who then grant all the planning applications. It has a variety of other duties relating to the promotion of the area and its conservation, but they are not going to be relevant to the proceedings here.
10. If I could then ask the Committee to go to Tab 6, you will see a breakdown of the craft using the navigation area at the present time at the bottom of the page and a comparison of the position with the areas which are administered by British Waterways and the Environment Agency. Looking to the bottom of the table, could I ask the Committee to correct one figure. In the bottom line on the table where it says :commercial craft un-powered: the figure ought to be 309, not 1,512, 1,512 is the total of the commercial craft, 1,203 and 309. Looking at that table, there are two further matters I should identify, included within the commercial craft are all the hired craft as opposed to the purely private ones and the Committee will straightaway see that the vast majority of craft using the Broads at the present stage are private pleasure boats, power led.
11. So far as British Waterways and the Environment agency, they exercise rather similar functions so far as navigation is concerned to the Broads Authority for the areas under their control, and they either have or are seeking powers very similar to those which the Broads Authority is now seeking in this Bill.
12. If I turn then to my second topic, which is to look at the purpose of the Bill and to try and categorise its content, there are four main elements in this Bill. Element one is to make some changes to the constitution and procedures of the Broads Authority including its accounting procedures. The first matter under this head is a change to the way in which the Secretary of State is to appoint his ten members. The Committee sees that he appoints ten members and that change is brought about by Schedule 6, Paragraph 1 of the Bill. The easiest way to see the effect is if I ask the Committee to go to Tab 3, page one and two, because at the present time the matter is governed by Section 1(5) and Section 1(6), whereas those are proposed to be deleted, hence the line through them, and the track change and what is proposed appears in the passage underlined, simply that the members appointed shall include persons appointed by the Secretary of State after consultation with such bodies appearing to represent the following interests: boating, conservation, farming, land owning and land-based recreation. That is not controversial.
13. The second aspect of this first matter is a new power which is Clause 38 in the Bill which the Committee may wish just to look up. If they look into the Filled-up Bill at page 24, it is a power to enter agreements with other persons to facilitate administration of the various statutory provisions for the regulation of vessels in the navigation area. This is identical to a provision which the Environment Agency are currently seeking in a transport of works order relating to their inland waterways. The new power will be used by the Broads Authority principally to enter agreements with the Environment Agency and British Waterways to enable joint working arrangements. This is a cause of concern to one of the Petitioners, Mr Williams, and my first witness will come back to that matter.
14. Finally, under the first head there is a change to accounting procedures ending the existing requirement for a separate navigation revenue account, an account entirely separate from the Broads Authority's general revenue account. It is a slightly strange position, at present they have to have two separate accounts. There is the navigation revenue account, their general account which does not include navigation matters. If you want to see the total position there has to be a third account which shows the total position, which is a non-statutory account. The proposal is that one should simply have one set of accounts but that there be two protections afforded to boating interests. First, that there be a statutory report showing how the navigation income has been expended and, secondly, that there is a provision that no less than the money raised from navigation income should be spent on navigation purposes. The intention is to preserve what has been the previous position, of that which comes in as navigation income goes out as expenditure on navigation.
15. On the Second Reading, the Minister at Column 1000 of Hansard said that he did not believe that we need a separate account to ensure that all navigation income is spent on navigation alone, so he accepted the good sense of no longer having a separate account. Indeed, the object of ensuring that all navigation income is spent on navigation alone will be achieved by the proposed new Section 17(6), that it should be the duty of the Authority to secure that taking one financial year with another, navigation expenditure is not less than navigation income. In other words, that will achieve precisely what the Minister said should happen. To understand this matter, could I ask the Committee to go to Tab 3 and to page 16. It is under Section 17 of the 1988 Act, the old Section 5, Sub-section 17, Sub-section 5 requires these two separate accounts. The Committee sees that that is proposed to be repealed but replaced by a requirement for a statutory report so that boating and navigation interests know what is happening and the new 17 (6), the duty of the Authority to secure that taking one financial year with another, navigation expenditure is not less than navigation income.
16. The Department are now seeking a reformulation of the proposed Section 17 (5) which we for our part resist, though the distance between us and the Department is not very great on that matter.
17. The second purpose of the Bill is to extend in two respects the powers, the area of the powers of the Authority coupled with a change of navigation rights in the Haddiscoe Cut. If I could ask the Committee to look at the plan again, I identified previously a large yellow area which lay to the west of Great Yarmouth and they are described as the transfer area. It is proposed in Clause 36 of the Bill that that area, which is Breydon Water and the Lower Bure should be included within the navigation area for which the Broads Authority is responsible. That yellow area is regularly used by boats that are using the existing navigation areas. That same area is shown in slightly greater detail in plan 12(a) the previous plan, which is the deposited plan but I doubt the Committee need get it out. This area, the yellow area here, currently lies within the jurisdiction of the Great Yarmouth Port Authority, but the Port Authority recognise the good sense of the proposed transfer of responsibility.
18. Indeed this is generally uncontroversial, save that Mr Williams, one of the Petitioners, is concerned as to possible cost implications. To safeguard the position here the Filled-up Bill contains a proposed clause 36 (2) (b), which the Committee will find at page 4 of the pages apart, that is the preliminary pages, which provides that the Authority shall not fix a day to be the appointed day for the purposes of the transfer without having obtained the written consent of the Great Yarmouth Port Authority. The intention of the Broads Authority is to ensure that there is no transfer until there are financial arrangements agreed with the Great Yarmouth Port Authority, to ensure that any saving by the Great Yarmouth Port Authority ceding responsibility is recouped by the Broads Authority. It will be taken over by the Broads Authority and the aim is to negotiate terms with the existing port authority so that the matter is, broad speaking, neutral in terms of expense.
19. The second extension of jurisdiction is the proposal that for limited purposes, primarily related to the safety of boat users, various private water areas consisting of broads, dykes, marinas and substantially enclosed waters from which vessels can be navigated into the navigation area, should be treated as if they were part of the navigation area and thus subject to regulation. These are primarily the pale blue areas which members can see on the plan. The Committee can see there in a whole number of places blue areas, and they run on this plan from 1 to 21, including a number of significant dykes. This is not quite the totality of the adjacent waters, but it is the most significant parts of the adjacent waters.
20. However, nothing will count as :adjacent waters: if it is private water used only by the owner of the land, or by an occupant of an adjoining residential property. The Committee will find in clause 2 (2) (d) of the Bill provision to that effect. If you have an area of water which is solely used by the owner of the land, or solely used by an adjoining residence, then it will not count as an adjacent water.
21. In a moment I will be coming to the new boat safety provisions of the Bill. The proposal is that those safety provisions will apply within the adjacent waters, that is the blue areas, as well as within the existing navigation area. Also the power to make bylaws for the registration of pleasure craft within the navigation area (that is section 10 (3) and paragraph 5 (3) (a) of Schedule 5 to the 1988 Act) will in future apply to the adjacent waters. That is all achieved by clause 11 (2) of the Bill; and also the right to charge what the Bill describes as a :toll:.
22. The adjacent waters provisions are controversial, being objected to by Mr Howes and Mr Williams. The Department, that is Defra, is perfectly content with their inclusion in the way proposed.
23. The third matter under this head is the proposal to recognise a public right of navigation in the Haddiscoe Cut. The Committee has already been taken to the Haddiscoe Cut which is anomalous at present because you only go there by licence, rather than as a right. The proposal is that there now be conferred, as a result of this Bill, a public right of navigation there in the Haddiscoe Cut. The Cut was authorised by an Act of 1827. Since 1988 it has formed part of the navigation area for which the Broads Authority is responsible; although previously there has been no duty to maintain and improve navigation there, because there has been no recognition of the public right of navigation. This would be achieved by clause 37 (2) of the Bill which deletes section 8 (7) and section 10 (2) of the 1988 Act, which make it plain that there are not public rights of navigation there. This is a provision which is uncontroversial. That is all I have to say about the second main head - that is the geographical extensions of the Bill.
24. The third item in the Bill is a power to regulate water skiing and wake boarding within the navigation area, but not including the adjacent areas. This is achieved by clauses 26-33 of the Bill. These provisions are uncontroversial, save for a minor matter raised by Defra in relation to the wording of clause 27 (5) (a), which is page 4 of the pages apart, and we will come back to that matter a bit later.
25. The fourth item in the Bill is the one the Committee will primarily be concentrating upon, and that is a range of new powers with regard to the safety of boats and boat users within the navigation area and the adjacent waters. That is triggered by the requirements of the Port Marine Safety Code. Members may excusably not be terribly familiar with the Port Marine Safety Code; suffice it to say that the Department of Transport first published in 2000, latest edition December 2003, a Port Marine Safety Code directed at all harbour authorities. I have already indicated to the Committee that the Broads Authority is the harbour authority for the Broads. It contains a number of sensible measures designed at achieving safety. Inter alia that involves all harbour authorities in carrying out hazard and risk assessments, and then taking steps in order to deal with the risks and hazards which have been identified in the assessment. A number of the provisions in the Bill are a direct response to carrying out a hazard and risk assessment, and then bringing forward proposals to remedy the matter.
26. Additionally, the Committee will find at tab 5 a report by the Marine Accident Investigation Branch into a sad incident on the Broads in 2003 when a passenger was drowned when an unstable hire boat capsized. Again, the recommendation there was that the circumstances be looked at and measures taken to prevent a reoccurrence. It is the Port Marine Safety Code and the Marine Accident Investigation Branch Report which have triggered the bringing forward of these aspects of the Bill. There will have been a Bill in any event to deal with the other matters, but these parts are included primarily as a result of those two triggers.
27. The principal new boat safety powers are these: first of all, there is a new power for the Broads Authority to license pleasure boats; that is, vessels used for sport or recreation, including a houseboat and whether or not hired. It is a power which at present only the local authorities have. They could have a licensing system; the Broads Authority does not have it. Since there are six relevant local authorities it would be highly complicated if they were all to do it for the little bits of the Broad which is in their control. Sadly, they do not all do it, and there is only one of those authorities which has recently begun to exercise its powers. Those are powers under section 94 of an Act which goes back to 1907.
28. What the Bill does, and it is clause 42 if I could ask the Committee to turn to it, it is a very modest clause which enables the Broads Authority to exercise the powers which, at the present time, the relevant district councils have. In that way it means there will be one body where the powers will be exercised.
29. Initially one of the Petitioners, Mr Williams, was concerned in his position as to precisely which vessels would be covered by the new powers, but it can only be the vessels which are at the present time subject to the 1907 Act. If the Committee would go to page 5 of the pages apart just about halfway down the page under :clause 42: this is made absolutely clear by a provision that :For the purposes of this section a relevant vessel is any vessel which is a pleasure boat or pleasure vessel for the purposes of section 94 of the 1907 Act:. The answer is that you go back to the 1907 Act and it covers precisely those pleasure boats and pleasure vessels which are subject to that Act at the present time which are, as I said previously, vessels which are let for hire or used for carrying passengers for hire. It is estimated that there are about 900 such craft.
30. The second boat safety measure is an extension of the present power to give special directions to vessels using the navigation area. If I could ask the Committee to turn to tab 3 of the bundle and go to schedule 5, paragraph 18, pages 43 and 44. At present under the 1988 Act there is a power for the navigation officer, who is an officer of the Broads Authority, to give directions to vessels in a number of respects. All that we are proposing to do is to extend the number of instances in which directions can be given.
31. The third matter is a new power to give general directions under clause 4. Instead of having to give a specific direction to a specific vessel one will be able to publish a general direction which will be applied to all the vessels which are listed in the general direction - though by agreement with the Royal Yachting Association some of the permitted general directions will not be given in the case of pleasure craft unless or until that agreement is varied.
32. I should just say to the Committee that at tab 4 you will find an important agreement which has been entered into between the Broads Authority and the British Marine Federation and the Royal Yachting Association (the British Marine Federation acting really for the commercial interests, the hire interest; the Royal Yachting Association acting for the private interests) and setting out various provisions relating to how the powers in the Bill would be implemented. That is a binding agreement between the parties, but of course subject to variation by agreement.
33. The fourth aspect of the new provisions is a power to impose construction and equipment standards, and that is clause 12 of the Bill. Could I just ask the Committee just to glance at clause 12. It is headed :Construction and equipment standards:. It provides for the Authority to impose such standards; and it also in clause 13 provides a standards appeals panel.
34. At the present time construction and equipment standards are imposed through byelaws as an interim measure. Those byelaws, and the Committee has a copy of those byelaws in tab 8 (I will not ask you to look it up), apply the non-statutory national boat safety scheme to the Broads, That, I say, is a non-statutory scheme. It is administered jointly by British Waterways and the Environment Agency, and initially the Broads Authority will continue to rely upon the non-statutory boat safety scheme, even were clause 12 to be enacted.
35. The question arises: why is clause 12 needed if the matter can be dealt with byelaws? The answer is that clause 12 will provide three important safeguards. First, byelaws can only be made by reference to existing standards. If the terms of the national Boat Safety Scheme were to be revised it would be necessary to go through the whole paraphernalia of making new byelaws to incorporate the revisions. Revisions would not take place, and could not take place, save by a new lot of byelaws.
36. Secondly, if it should transpire that on the Broads there was a need for special measures not included in the national Boat Safety Scheme there would be no way, short of by-law revision, by which these could be promulgated.
37. Thirdly, there is no certainty that central organisations will continue to prescribe boat standards. The new power is a useful fallback power in the event that there was no longer a national Boat Safety Scheme. Providing clause 12 is enacted there will be no need to use the Boat Standards byelaws at all; and transitional arrangements are provided for in schedule 5 part 2 of the Bill, whereby as soon as one uses clause 12 the existing parts of the byelaws are repealed. Mr Williams is the only Petitioner who is concerned on this matter.
38. The fifth new power is a power to require compulsory third party insurance, and that is clause 14 of the Bill, although the Authority has agreed not to require compulsory insurance for non-powered craft with a block area of less than six square metres, the sort of vessel used for learning to sail. That is provided for in clause 5 (d) of the agreement with the Royal Yachting Association and the British Marine Association.
39. The compulsory third party insurance matter that is non-controversial and it is something that could not be done through byelaws. The Committee may think it is high time that there should be such provisions, and that is why there is clause 14 in the Bill.
40. Sixthly, there is provision for the licensing of rescue boats. That is clause 25. A number of companies are setting themselves up offering services as rescue boats going out to assist amateurs on the Broads who have got into difficulties. The Committee may feel that it is appropriate that those rescue boats should be licensed, and that is what would be achieved by clause 25. This is, again, uncontroversial, save that Defra query whether the aim might not be achievable simply by advice and training and the Committee does not believe that that is sufficient. It would not, though, apply to people who are going in an emergency to rescue someone; if you see someone in distress, you do not immediately have to go and get a licence before you can go and rescue them. So there is provision for that effect.
41. It may be helpful just to ask the Committee to turn to page 4 of the pages apart, and it is at the very top of the page, under clause 25: :Nothing in this section applies to the use of any vessel for the rescue of any person in an emergency.:
42. Seventhly, there is a new power to require removal of vegetation where this endangers or causes a significant obstruction to the passage of vessels. That is clause 41, and the Committee will, I am sure, be pleased to hear that that is non-controversial. These various boat safety provisions are accompanied by an enforcement regime including, for example, a new power to make compliance with standards and third-party insurance a pre-condition of registration. That is achieved by clause 11(6) of the Bill. At present you have to register a boat to go on the navigation areas; in future you will be asked to produce documentation in relation to compliance with the boat safety standards and third-party insurance. There will be criminal penalties under clause 15 for knowingly contravening the boat safety standards or the requirement for compulsory insurance, and under clauses 17 to 19 there are new powers to remove unsafe vessels and, in the extreme case, to sell or destroy them.
43. It is fair to say that the Petitioners are greatly troubled by the new safety provisions and the enforcement provision. However, the Minister dealt with this matter on second reading at column 1000 very clearly. I just remind the Committee of what he said. He said: :It is legitimate for Parliament to legislate to restrict the common law right to navigate freely when it considers it appropriate, especially when it is necessary for the reasons of public safety that we have discussed this afternoon. It is accepted that legislation should provide for imposing limits, making regulations and so on. That happens frequently with the roads, and there is no reason for it not to happen on the Broads. It is not Draconian to a third-party insurance to license craft or to insist on a boat safety system. It is right for the Broads Authority to have the powers to enforce that.: We say that the Minister was entirely right in those respects.
44. The third item which I need to address you on is some of the safeguards which are proposed. The Bill as it was deposited contained a number of safeguards. Others have been added in the Filled-up Bill, quite apart from those which were agreed in a legally binding agreement, which is the document which I have already referred you to between the British Marine Federation and the Royal Yachting Association, and there have been a number of other signed agreements.
45. If I just mention for a moment tab 4, there has been a suggestion from some people that everything which is in the legal agreement ought to be in the terms of the Bill, but the advantage of having it in the legal agreement is that if circumstances change and if the parties to the agreement think it appropriate the agreement can be varied, whereas if everything were in the Bill it would mean we would be back before Parliament and, probably, a Select Committee again every time there was a minor change to those matters.
46. So far as the safeguarding provisions in the Filled-up Bill are concerned, I want to draw the Committee's attention to a few of these now because they are very, very important because the safeguarding of rights has been central to the thinking of the Broads Authority. First of all, clause 7(2), please, on page 6 of the Bill, which provides a defence to the master of a vessel if he is charged with an offence of not complying with a general or special direction, if he shows that he took all reasonable precautions and exercised due diligence or had a reasonable excuse for the act. So if he is directed to act in a way (to take a very simple example) which is going to involve him sailing straight into another vessel, then he has to use common sense, and he could not be successfully prosecuted because he was simply saying: :I could not comply because I would have caused injury to another person. I have got a reasonable excuse. I acted with due diligence.: That is an essential provision which is contained.
47. In most circumstances a warrant (that is a warrant from the Magistrates' Court) will be required before the more Draconian powers can be exercised. For example, in the case of entry to a vessel where entry is refused, could I take the Committee, please, to clause 8(3) on page 7. If any person authorised by the navigation officer is refused entry to the vessel then there has to be an application to a Justice of the Peace. That should ensure that power is not abused.
48. Similarly, if we come to clause 16, which is concerned with inspecting vessels, we are promoting a particular provision in respect of clause 16. May I ask the Committee, please, to turn in the pages apart to page 2, and clause 16(4)(a) which the Committee will see, halfway down the page: :Except in an emergency, an authorised officer shall not board any vessel without a warrant.: Then another example: :Entry to adjacent water to exercise powers:, again, if you turn to page 3 of the pages apart, at the very bottom of the page, clause 24(4) is proposed, again, requiring, save in an emergency, either consent of the occupier or a warrant.
49. So far as general directions are concerned, if I could ask the Committee to turn in the Bill to pages 3 and 4, at the bottom of page 3 there is clause 4(1) which is the power to give general directions, but clause 4(2): :Except in an emergency the Authority before giving, revoking or amending a general direction, shall consult ...:, then there are a number of bodies to be consulted: ABP, Great Yarmouth Port Authority, the Navigation Committee (which, as I have already indicated, represents boating interests) and such bodies appearing to the Authority to represent boating interests. So that, again, there is the safeguard of consultation. Similarly, in respect of boat standards, which is clause 12, if I could ask the Committee to refer to the pages apart, and it is the first page of the pages apart, the Committee will see that it is proposed to include new clauses 12(1)(a) to (1)(c), and those provide that if the Broads Authority is contemplating imposing standards which differ materially from the national standards then there is a quite complex consultation procedure set out. Again, that is purposely designed so that they should not suddenly do something which interferes with people's rights and expectations without any warning. So there are a whole number of safeguards imposed under the Bill. What we say to the Committee is that a reasonable compromise is contained in the powers which are sought between the need for safety and the need to protect people's rights and expectations.
50. If I just turn to headline the points in dispute with the Petitioners, there are four Petitioners: Mrs Howes; her son, Paul Howes, Mr Richard Williams and Mr Sanders. In a number of different ways they all express concern at interference with personal freedoms and, in particular, restrictions on the common law right of free navigation, coupled with a claimed risk that a boat owner may, as a result of complying with a direction, cause injury which would not have occurred but for the direction. In other words: :It would be better to trust us skilled people in charge of vessels rather than render us liable to directions:.
51. At tab 1 in the bundle we have attempted to categorise the issues raised by the Petitioners under 13 heads - that is the :topic: on the left-hand side of the column. Then there is a column which shows the clause or schedule in the Bill to which the matter goes, and there is then identified the various paragraphs in the particular Petitions where the point is raised. Then, in the right-hand column, there is a reference to how the matter is addressed in the Bill, to which I would only ask the Committee possibly to add that in the bottom line, that is :power to close waterways:, which is schedule 6, paragraph 12, there in fact, a measure in the Filled-up Bill (and I will come, in due course, to the provision) to ensure that, in fact, the waterway cannot be completely closed.
52. Traditionally, sir, at this stage, when one is promoting the Bill, one reads out to the Committee the entirety of the Petition. The modern practice is to leave this to the Committee as to whether they think that is necessary or not.
53. CHAIRMAN: We do not think that is necessary.
54. MR GEORGE: I am grateful to the Committee. Then I need only mention two matters in the Petition with which I have not dealt so far. The first of those relates to the second item in schedule 1, which is concerned with authorised officer and navigation officer. It is true that the Bill gives various powers to authorised officers and to the navigation officer to do various things. The Bill does not set out any qualifications which the authorised officer or navigation officer must have, but that is a common place of legislation. Under the 1988 Act there are already navigation officers; they already have considerable powers, including the power to give special directions (that is under schedule 5, paragraph 18 of the 1988 Act) but the 1988 Act is silent as to qualifications for the post. Similarly, in the case of harbour legislation, there has to be a harbour master but there is no requirement in the legislation that he has particular qualifications. Here, the Bill is criticised in that it does not require qualifications. We simply say that it would be abnormal to so require.
55. The other matter I need to mention is item 13. That was the bottom line of schedule 1. This is a point solely taken by Mr Howes, and his complaint is that schedule 6, paragraph 10(2) of the Bill is giving an increased power to close waterways temporarily to facilitate the holding of a recreational function. That is right; there is proposed in schedule 6, paragraph 10(2) to give an increased power. He says that that could make sailing impossible for a period of six hours. In his Petition he says: :Therefore, I will be held up. It may be six hours on the way out and six hours on the way back. That would be wholly unsatisfactory:. His point was correct at the time the Bill was deposited, but could I simply take the Committee now to the Filled-up Bill. It is page 37 of the printed version, and the little footnote at the bottom of the page, where the (i) and (ii) have been added. The short point is that previously we were going to have got rid of (i), (ii) and (iii), but now we are only getting rid of (i) and (ii), and the result is that there is a former (iii) which remains and which will, in fact, protect Mr Howes.
56. To make this point, could I ask the Committee to go to tab 3, page 39. This is a little bit complicated. Page 39 of tab 3, schedule 5 of the 1988 Act, halfway down the page we have got a provision :Temporary closure of waterways:, which is paragraph 10. If we go down to 10(2), what is proposed is to amend 10(2)(b)(i) and (ii) (and you can see what is happening there) but (iii) is to remain. In the original Bill (iii) was to be deleted as well. 10(2)(b)(iii) remains, so the new power cannot be exercised in such a way as to deny to any vessel all the means of passing through the waterway. So Mr Howes, setting out on the trip which he mentioned in his Petition, may not be able to pass over the entirety of the relevant stretch of waterway because part may be being used for a recreational event, but ----
57. CHAIRMAN: Could I ask you to stop there briefly, for a moment. You referred us to tab 3 page 39, 10(2)(b)(i), and it says there :six months:. Should that mean six hours?
58. MR GEORGE: That is six hours. That is a plain typo in the preparation of this document, called a Kieling Schedule. In the Bill itself that error is not made, I am glad to say.
59. CHAIRMAN: I am happy to accept that.
60. MR GEORGE: If I take the Committee to page 37 of the Bill, the Committee will see that at line 35 it is six hours, as the Chairman rightly pointed. Then the key matter is that (2)(b)(iii) there is not to be deleted. For some reason it is shown in type and underlined; in fact, it has always been in the 1988 Act and it is going to remain in the 1988 Act. Mr Howes will be able, still, to pass down the waterway; he will not be having the six-hour delay which he feared. We believe this matter should meet Mr Howes' point entirely.
61. Sir, that is all I intend to say by way of opening, and unless the Committee have any questions at this stage I propose to call my witnesses.
62. CHAIRMAN: One point, Mr George, which would be helpful to the Committee: in your resume at the start of your comments you laid out the main areas of the Bill. In the third one you referred to clauses 26 to 33, regulation on wake boarding. It would certainly help me and, I believe, at least one other Member of the Committee, if you were to either tell us now or for one of your witnesses to define in a little more detail what wake boarding is proposed.
63. MR GEORGE: In clause 33(1), if I can ask you to turn to page 22, one has a short definition.
64. CHAIRMAN: I see what it is but it does not help me personally. I would find further clarification of that helpful.
65. MR GEORGE: It is the nature of the difference between the ski and the board. Let us leave that matter of detail to Mrs Wakely, who is going to be my second witness.
66. CHAIRMAN: Do any other Members of the Committee have any further questions of Mr George before he leads us into his first witness?
67. MR GEORGE: I would like to identify who my two witnesses are going to be. They are going to be, first of all, Dr Packman, who is the Chief Executive of the Broads Authority, and then Mrs Trudi Wakelin, who is the Director of Waterways for the Broads Authority. Dr Packman is going to deal with the general matters and the constitutional matters, and Mrs Wakelin is going to deal with boat safety standards, directions and more technical matters. Sir, you mentioned a break at 11.45 and I notice we are meeting that.
68. CHAIRMAN: We will have a ten-minute pause at this point and resume no later than 11.50 for Dr Packman's evidence.
After a short break
69. CHAIRMAN: Mr George, I think you are calling Dr John Packman, the Chief Executive of the Broads Authority.
70. MR GEORGE: Yes, sir, I am. Thank you. There is just one matter. When I was dealing with clause 42, which is the 1907 Act, I think I may inadvertently have said that it applied also to houseboats which were not hired. It does not; it applies to houseboats but they have got to be hired houseboats, so clause 42, that is the new licensing system there, only applies to hired pleasure craft.
71. CHAIRMAN: Thank you for that clarification.
DR JOHN PACKMAN, sworn
Examined by MR GEORGE
72. MR GEORGE: You are John Packman; is that right?
(Dr Packman) Yes.
73. What position do you hold please?
(Dr Packman) I am the Chief Executive of the Broads Authority, a post I have held since March 2001.
74. And previous to that?
(Dr Packman) Prior to that I was Head of Economic Development and Regeneration with Brighton and Hove City Council and previous to that I held various posts with that council, Hove Borough Council, with the New Zealand Ministry of Works and Development, the University of East Anglia and Norfolk County Council.
75. And your qualifications please?
(Dr Packman) I hold a Bachelor of Arts degree from the University of London, a Postgraduate Diploma in Town Planning, a Doctorate in Philosophy and a Master's in Business Administration. I am also a member of the Royal Town Planning Institute and the Institute of Economic Development. I am also a member of the Executive Committee of the Association of Inland Navigation Authorities.
76. I think your evidence is going to cover a brief description of the Broads and the Broads Authority and the background to the Bill and then responses to the general comments raised by the Petitioners, and then you are going to deal with the miscellaneous matter raised in the Defra report. Is that right?
(Dr Packman) That is correct.
77. Your colleague is going to deal with the more detailed matters. What do you regard as the main purpose of the Bill, please, Dr Packman?
(Dr Packman) The main purpose of the Bill from the very beginning has been to obtain new powers for the Broads Authority to improve safety for those boating on the Broads. The other purpose is to modernise the way in which the Authority operates by updating provisions in the 1988 Act which set up the Authority.
78. Was the promotion of the Bill agreed by your Authority?
(Dr Packman) Yes. There was unanimous support for the resolutions, and that is particularly welcome given the range of interests that serve on the Authority.
79. So far as the members of your Authority are concerned, does it cover all three political parties?
(Dr Packman) It does.
80. How important are the Broads?
(Dr Packman) The Broads are widely recognised as the UK's most important wetland. It is a unique and internationally recognised landscape with a designation equivalent to that of a national park.
81. Looking at the last period of almost 20 years since the 1988 Act was passed, what are the highlights, as it were?
(Dr Packman) I think there are many, but the three I pick out for the Committee are, first, the dredging of Barton Broad, which is one of the larger Broads. The Authority, with the benefit of lottery funding, spent £3 million taking out 300,000 cubic metres of mud. That was done for a number of purposes, but it has not only improved sailing on the Broad but has also led to plants that had not been there for the last 50 years reappearing as the water quality has improved. Secondly, the Authority is the only member of the national park family that is a beacon authority under the Beacon Council scheme, and that is for our work on sustaining tourism. Just this year we have been awarded a medal by the Europa Nostra Fund, so it is a European award, for our work in encouraging and helping people to return to the region's sedge-cutting industry. We have a bursary scheme, again with substantial funding from the Heritage Lottery Fund, which is regarded nationally as a leading example of encouraging people back into those traditional industries.
82. The Broads Authority is unique in the sense that it has got its own bespoke legislation. Does that need updating?
(Dr Packman) It does. There are advantages in having your own legislation in that it gives you very great clarity of purpose, but, of course, that was in 1988 and things have moved on a great deal since then. The Broads has its own unique legislation because, although it was regarded as a candidate for national park designation, because of its special navigational responsibilities it did not fit the model and therefore it was given its own legislation which takes the national park legislation and bolts on to it the specific provisions in relation to navigation. The Broads is not only part of the national park family but is also the third largest inland navigation authority, the two biggest being British Waterways, which is the biggest by quite some way, and the Environment Agency, and then the Broads Authority. Beyond that there only very small navigations, so those three comprise the major part of inland navigation within the UK.
83. Do you keep an eye on the powers which the British Waterways Board and the Environment Agency have to see whether those might be relevant for your particular functions?
(Dr Packman) Absolutely. In fact, this Bill follows very much some of the path that was followed in the 1995 British Waterways Act, and more recently the Environment Agency has been promoting a Transport Works Act Order that does very similar things for its navigations, so what the Broads Bill will do for the Broads Authority is bring us into line with the rest of the national navigation system.
84. Could we turn to tab 9 of the bundle, which is the membership of the Broads Authority? What is the function of the ten members appointed by the Secretary of State?
(Dr Packman) The National Parks and the Broads have a balanced membership between national members that represent the national interest and local members that represent local interests, and therefore in the case of the Broads Authority there are ten members that the Secretary of State recruits, interviews and appoints, using the Nolan principles, who represent the national interest in effect on the Broads.
85. And then so far as the county and district council members, those are all people who have been elected locally to those councils; is that right?
(Dr Packman) That is correct. We have nine members drawn from the two county councils and six district councils, so the exception is Norfolk. The others all have one. Norfolk County Council has two. We are currently very fortunate that of those nine members four are lead councillors on their own local authority, but they provide a very useful link through to the local community. In recent years we have stretched those links by setting up the Broads Forum, whereby 50 local organisations, including parish councils, are represented on this Forum and the Authority takes any key issues which the Authority is about to consider to the Forum for its views in advance of making those decisions.
86. If we can move on to the executive area, that is the area shown pink on the plan, and the navigation area, could you tell the Committee briefly about how many people live within your area?
(Dr Packman) The Committee will see that the boundary is drawn very closely round the rivers of the Broads, it is like the fingers of your hand, and follows the contours. That was deliberately done but it does mean that the number of people living within the boundary is only about 5,000, so by comparison with the rest of the national parks there is quite a small local population within the area.
87. And so far as the navigation area itself is concerned, that is defined, I think, in the Broads Act, although there is not a plan showing the precise area of the navigation area; is that right?
(Dr Packman) Yes. Defining the navigation area of the Broads was seen as too difficult and too contentious, so what the Act says is that it was the area that was currently being used at that time. This plan does not attempt to give a detailed description of where the navigation area is and is not. It is designed to show, for the benefit of the Committee, the balance between what the navigation area looks like and these adjacent waters that would be brought in by the Bill which are considerably smaller.
88. Am I right in saying that the navigation area is the stretches of the Bure, Yare and Waveney and their tributaries which were in use for public navigation at the time of the passing of the 1988 Act?
(Dr Packman) Yes, that is correct.
89. What is the position about Breydon Water and the Lower Bure?
(Dr Packman) The Committee will have seen from the plan the yellow area on the map marked Breydon Water and the Lower Bure, and these are a bit of an anomaly left over by the 1988 Act. For good reasons at the time the Authority was set up the port of Yarmouth wanted to retain the management of those areas because there was still commercial traffic coming up to the port of Norwich, but the last commercial ship up to Norwich was in 1989, so at that time there was the anticipation that the boats coming through the bridge at Breydon would lay up in Breydon Water before going into Norwich. In practice, as you will have seen from the map, if you want to go from the Northern Broads to the Southern Broads you have to go down the Lower Bure and across Breydon Water, and boats pose significant hazards for the tourists visiting the Broads. For instance, this Lower Bure, the yellow bit going up just to the west of Yarmouth, you can see is narrow. It is very tidal and the tide rushes through there and there are two quite low bridges and therefore our Broads Authority staff have a yacht station that we lease from the borough council where we warn visitors about making sure that they are at the right state of the tide to get under safely. Similarly, you can see from the extent of Breydon Water (in Roman times it was part of an inland sea) that it is a considerable open area of mud with a narrow channel and again, if you are on holiday on a hire boat it is quite a frightening place to be. It is currently in the jurisdiction, as far as the navigation is concerned, of the port authority but the port authority have very little interest in it. As members may know, there is an outer harbour about to start construction, so the interests of the port authority have moved south down the river. Because of the Broads Authority's concern for the safety of hirers there has been a long-held agreement whereby, even though it is not part of our navigation, staff at the Broads Authority control it, so it is :double-manned: in the terminology, in fact, by two women quite often, but because of the safety issues we have a boat that is permanently going up and down helping people, and we share the costs currently with the port authority for doing that and for maintenance. Very much at a practical level the present legislative framework whereby that is part of the ports navigation area is not a sensible way in terms of the management, and therefore the port authority have agreed with the Broads Authority to make that transfer but we would need this Bill to make that happen. The only provision in the Bill that is particular to that is that clearly there has to be an agreement between the Ports Authority and the port about that exchange and it is always been the Broads Authority's desire that there be some financial settlement that recognised the impact of that on the Broads Authority in effect bringing up the present state of the maintenance of that area to a good state before we took it over.
90. Clause 36 of the Bill therefore provides for the transfer of Breydon Water and the Lower Bure, and in fact simply regularises what is happening in some ways at the present time; is that right?
(Dr Packman) That is correct.
91. Mr Williams, one of the Petitioners, in paragraph 14, makes a reference to Schedule 7 of the 1988 Act and says that the intention was not to permit variations in the area of jurisdiction of the Authority after the end of three years. He is concerned that in some way the Bill is acting in breach of the 1988 Act. What do you say of that matter?
(Dr Packman) The Bill does not repeal that particular provision but the intent of the paragraph was not to prevent any variations in the boundary at the end of the three-year period, simply to preclude this being done by the Secretary of State in paragraph 5.
92. So the Secretary of State could have done this up to 1991 but now this power has lapsed and that is why it needs a new Private Bill in order to achieve it; is that right?
(Dr Packman) That is correct.
93. Very well; let us not spend any time on that. Let us turn to finance. What are the sources of income of the Authority?
(Dr Packman) There are two principal sources of income. Two-thirds of our income, £4 million, comes by way of a national park grant from Defra, and roughly a third comes by way of income from toll payers, so in terms of their annual licence fee to the Broads Authority. That makes £6 million. In practice, for instance, the HLF bursary scheme brings in about £700,000, and we do our very best to bring in other sources of income but those are our core elements. In the last three years, as a result of Alun Michael's decision, we have had an additional one and a half million over three years, in other words, £500,000 a year, which has been particularly helpful in recognising the significant issues that the Authority faces and that has been important and we have used it both to improve the navigation by dredging but also to improve the biodiversity.
94. I think in section 15 of the 1988 Act, which the Committee will be able to find either in tab 2 or tab 3, it provides that the Secretary of State may make grants to the Authority for such purposes and on such terms and conditions as he thinks fit.
(Dr Packman) That is correct.
95. And they may be for navigation or for any of your other functions; that is entirely up to the Secretary of State to decide, subject to the consent of the Treasury?
(Dr Packman) Correct.
96. If we then move on to the question as to why a Private Bill is needed, has this been lightly undertaken, the decision to promote a Private Bill?
(Dr Packman) Very much the reverse. It has probably been for about the last 15 years that the Broads Authority has been in discussion with the Department for Transport about how some of the safety provisions that particularly British Waterways had could be adapted and brought into the Broads, and it has been a long and difficult process with lots of discussions about the different ways in which that could be achieved, but it was only two and a half years ago that at the end of that long discussion it was concluded that in fact a Private Bill was the only route. At one point the Transport Works Act Order, similar to what is being used by the Environment Agency, was suggested but in the end it was found that because we are a harbour authority that was not possible. Looking back, I found correspondence from Alun Michael in January 2005 where the department indicated that a Private Bill was likely to be the way forward. There was a suggestion that the NERC, the Natural Environment and Rural Communities Bill, might pick some of it up, and colleagues in Defra worked very hard to help us with that, but in the end that did not prove possible. At the end of an exhaustive process, recognised by Defra, and Defra has provided some specific funding and help with it because we are a very small organisation; we employ about 100 people, we have a turnover of £6 million and we want as much of that to be spent on maintaining the Broads as possible, so a Private Bill is not something that we have taken on lightly, it has proved to be the only way in terms of these safety provisions, which British Waterways and the Environment Agency have already, that the Broads Authority can get that.
97. In opening I referred to the Port Marine Safety Code. What is the relevance of that to what you are doing?
(Dr Packman) Because we are a harbour authority we are covered by this safety code and for some time we argued with the Department for Transport that actually it was a bit of a sledgehammer to crack a nut because many of the things that apply to harbours are not really relevant to the Broads, which is an inland navigation, but one of the specific elements of the Port Marine Safety Code is that it says that it is for each harbour authority to keep under review whether their powers and the extent of their jurisdiction are appropriate for maintaining the overall safety of the harbour and to promote changes when necessary, so there is actually a requirement from the Department for Transport for us to look at our legislation and to look at the area our navigation covers. We are answering both something that local people have been wrestling with and asking for powers like third party insurance for perhaps 15 years as well as the more recent promotion through the Department for Transport's code.
98. Was a hazard and risk assessment undertaken in relation to the Port Marine Safety Code?
(Dr Packman) Yes. In fact, the initial risk assessment work was carried out by an external consultant, and that has provided a useful basis so that we have now assessed all the risks of the activities that happen across the Broads navigation. There were two of them that were particularly drawn to our attention as causing concern. One was powerboat racing at Oulton Broad, which, if any of the Committee were to attend and see it, is quite fearsome, the speed at which they charge up and down, so managing and controlling that was a particular issue which has led to some of the things in the Bill. That was called an intolerable hazard, and the other one was water-skiing which is already controlled in terms of where it can happen and when it can happen, but again that was an area that the risk assessment picked up as needing further management and control, so we have had over the last three years a voluntary arrangement with the water skiers which has worked very well. What the Bill does is pick up what has already been agreed and give the Authority the powers to implement that code.
99. I think on the whole question of clause 42, which is the licensing under the 1987 Act, the need for that again was a point picked up, was it not?
(Dr Packman) Yes. I will not go into the details for the Committee, but there was a very unfortunate accident where a woman drowned near Horning. A day boat flipped over. The Broads are generally safe. There are accidents and fatalities most years but there are not very many. This particular one was subject to a DTI Marine Accident Investigation Branch investigation and one of the things it particularly drew out was that this 1907 legislation gives local authorities the powers to license hire craft, but in practice it is rarely used. In the Broads it had not been used at all, so we had six district councils that had the power to do it but had never done that.
100. CHAIRMAN: And there is an MAIB extract at tab 5.
(Dr Packman) Yes, thank you, Chairman. Following that it seemed important for the Authority to promote change which would remove that responsibility, by agreement with the local authorities, and transfer it to the Broads Authority so that rather than having six separate schemes there would be one scheme for the whole of the Broads.
101. MR GEORGE: Mrs Wakelin is going to deal with the standards and the directions issues, but the major issue of principle raised by those who have concerns about the Bill is that the provisions are an interference with the public right of navigation and damage the right to (inaudible) use a tidal waterways. What is your response to that matter?
(Dr Packman) The statement by the Minister is very helpful in that, if you look at the comparisons with cars, our rights are to some extent regulated by Parliament, so that we have to wear a safety belt and other things, and therefore it does seem to me that as long as what is being proposed is reasonable and proportionate, and the Authority has gone to a lot of trouble in talking to the national local boating organisations to find something that is agreed is reasonable and proportionate, the proper safety provisions which are exercised by the Authority are appropriate.
102. I want to come back to the accountancy provision now and I have mentioned to the Committee the proposal to remove the requirement for a separate navigation account dealing purely with navigation income and expenditure and to have a report and a different wording to the provision. What do you say on that matter?
(Dr Packman) This requirement has had two major problems with it. One is that it is administratively bureaucratic for the Authority to have to maintain these two separate requirements, and, secondly, one of the justifications for setting up national parks and the Broads is the idea that the landscape can be managed in an integrated way, so having a separate account for navigation cuts across that. In discussion with the RYA and the BMF we have agreed a new format for our accounts that provides greater transparency than is currently the case, so we are advocating that the two accounts can be joined together. It makes it simpler, but the format of those accounts will be held in such a way that particularly those who pay us a toll can see where their money is spent in a very transparent local way.
103. If the Committee were to go to tab 4, which is the agreement with the BMF and RYA, in Appendix 2, which is page 11, a format for a consolidated management statement, you have agreed to comply with those provisions; is that not right?
(Dr Packman) That is correct, and we have already introduced that new format and it has been generally welcomed.
104. And, given the new wording of the provisions in section 17 as proposed to be amended, will it still be possible for boating interests to see that their money, that is the money they have paid in, the navigation income, is being spent on navigation purposes?
(Dr Packman) Absolutely. The new format of the account will help but also there is a provision that the Authority would prepare an annual report to demonstrate that at least the income received from toll payers is being spent on the maintenance of the navigation.
105. Turning very briefly to the question of how the ten members appointed by the Secretary of State are to be appointed, this is a non-controversial provision but it is a desirable one?
(Dr Packman) It is, and it is partly as a result of the modernisation of the Authority that happened in June 2005. For a little authority when we were set up we had 35 members and you can imagine: we have only got 100 staff, so 35 members on the board was a rather excessive number. It was reduced to 21 by agreement, using secondary legislation. One of the elements that then looked rather strange was the caveats in terms of the Secretary of State's appointments, which are to consult navigation interests and farm and land-owning interests, but makes no reference to nature conservation or land-based recreation, so the proposal in the Bill is to widen the consultation that the Secretary of State has required, and again that has been generally welcomed as a proposal.
106. What sort of consultation has there been about the contents of the Bill?
(Dr Packman) Looking back, it has been a long and deep one, very open and transparent. I looked this morning and found that in fact it was in July 2005 that I first gave a talk to the Broads Society Executive Committee setting out the general provisions that we thought were going to be in the Private Bill, and it is very similar in terms to what has come through. The details have changed. Then we went through two major rounds of consultation in the early part of 2006, but from then on continued to consult and work particularly with the national and local boating organisations, and continue to do so to this day, but the climax of that was the legal agreements which you have referred to which were reached in January. That has been a real success, that consultation.
107. It might be said that the Royal Yachting Association is a frightfully grand national association, quite different from local boaters, or the British Marine Federation again is a national organisation, not a local one, but would that be a fair inference?
(Dr Packman) It would not because they have local bodies. The Norfolk and Suffolk Boating Association and the Broads Hire Boat Federation, with whom they are intimately connected, and in fact the chairs of those bodies, have been involved throughout, including the Chairman of the Broads Authority's Navigation Committee, so the terms of the detailed discussions on the finer points in the Bill have been scrutinised locally and nationally and experts advising particularly the RYA and the BMF have advised on some of the very detailed legal points.
108. In the bundle at tab 11 there is set out the consultation process, and I think we can probably save time by not working through that. It is simply there for the Committee to see, including, at pages 3 and 4, a list of meetings with interested parties and with organisations who were consulted about the Bill. Is that right?
(Dr Packman) Correct.
109. Turning to the Petitioners themselves here, has there been correspondence with the Petitioners about the contents of the petitions?
(Dr Packman) Yes, absolutely, and the solicitor and I spent more than three hours one evening meeting them and going through their points.
110. I think this was in June this year; is that right?
(Dr Packman) Correct.
111. And have they been sent a document setting out the Authority's response to the matters in their petitions?
(Dr Packman) Yes, they have.
112. Generally the Committee can see from the filled-up Bill that a number of changes have been made. What has been the basic principle underlying the changes?
(Dr Packman) The Authority has been conscious from when we started this process two years ago that our aim has been to try and reach a consensus and try and reach agreement on the contents of the Bill, and that continues to this day. I think the success of the consultation reflects on the fact that no organisation has petitioned against the Bill and we only have four individuals out of 10,000 potential toll payers who have petitioned. They have perhaps very genuine reasons, but at a practical level I think we could not have foreseen that the consultation would have been quite as good as that, to have got right through the whole process and end up with only four individuals who have any serious concerns about what we are proposing.
113. Mrs Howse in her petition complains that the final version of the Bill was not sent out for consultation, even though the first two versions had been. What do you say on that matter?
(Dr Packman) Generally we have put all the material on the website and we have tried to make it as available as possible. At a practical level the Chairman of the Navigation Committee, the Chairman of the Norfolk and Suffolk Boating Association and the Chairman of the Broads Hire Boat Federation have seen the development of the Bill at every stage and therefore navigation interests, both national and local, have been involved very much in the evolution of the Bill and the detailed discussions on some of the finer points.
114. If we come to some of the general concerns which have been expressed, there is a broad statement in a number of petitions that the Bill is simply unnecessary. Do you agree with that?
(Dr Packman) No, and I think the fact that we are following a path that British Waterways and the Environment Agency have trod, the fact that we have broad support from Defra and the Minister in terms of what we are trying to achieve, the fact that the majority of the key organisations with whom we work all support what we are doing, suggest that the Bill is required and it is focusing on elements that, as I say, the Broads Authority members in particular have sought for up to 15 years.
115. It is a theme of some of the petitions that you have got a power to make byelaws, you have made some byelaws, so why do you not just concentrate on making byelaws? Why do you need a Bill? First of all, so far as the constitutional changes, that is the extending of the jurisdiction and changing the way in which members are appointed and so on, could that be done by byelaws?
(Dr Packman) No, it could not.
116. Could compulsory insurance be introduced through byelaws?
(Dr Packman) My understanding is that it could not.
117. What would happen if the national boat standards were to change, would you need to make new byelaws then?
(Dr Packman) Yes, and byelaws are largely an inflexible mechanism for managing these things and it would mean that it would be difficult to keep the Broads Authority's system alive with what was happening in the rest of the country.
118. So far as the power to give general directions, have a number of authorities got a power to give general directions, this is Clause 4 of the Bill?
(Dr Packman) Yes, it is well precedented and certainly in our meetings with the Department for Transport officials, they well understood why the authority was going down that route. It is seen as a more modern way of managing navigation.
119. If we take the area which is to be transferred from the Great Yarmouth Port Authority to you, that at present is administered by the Port Authority, is it not?
(Dr Packman) Yes, though there is a recent change. I mentioned earlier the construction of the Outer Harbour, as a result of that a Great Yarmouth Port company has been established just in the recent months and all the assets and powers have been delegated by the Port Authority to that company, so we will now have to start new discussions with that company in terms of this issue.
120. So far as general directions, I think that the Port Authority has got its own power, has it not, under the 1990 Great Yarmouth Port Authority Act to make general directions in respect of the area under its control?
(Dr Packman) That is correct, so the power of general directions would extend to Breydon Water and Lower Bure already.
121. All that would happen is that you now will have a power to make general directions, both in respect of the transfer area and in respect of the navigation area and the adjacent waters, is that correct?
(Dr Packman) That is correct.
122. So far as consultation, it is said there will be more consultation on byelaws than the procedures you are proposing, is there anything in that point?
(Dr Packman) One of the things we have agreed specifically with the RYA and the BMF is an extensive process of consultation before general directions are made, including a reference to the Inlands Waterways' advisory council which was established by the National Environment Rural Communities Act.
123. Let us take it by stage, first of all if the Committee would go to Clause 4 (2) which is page 4 of the Bill, that is the statutory provision for consultation, is it not, before you give general directions?
(Dr Packman) It is.
124. Is there any such provision in respect of byelaws that you have got to consult?
(Dr Packman) I do not think so.
125. In addition to that, in the agreement, which we have got in our bundle at Tab 4, you have agreed to, as it were, an appeal procedure in respect of the general directions, is that right?
(Dr Packman) That is correct.
126. Come back to the end of the day, am I right in understanding that you think this simply could not be dealt with by byelaws?
(Dr Packman) Correct.
127. Tell me about the time for byelaws, is it quite a speedy procedure to make new byelaws?
(Dr Packman) The advice we have been given is it would take a minimum of 8 months, in practice it takes a lot longer than that. As I mentioned earlier, we have extensive discussions with the Department about the potential for using byelaws to bring in the National Boat Safety Scheme, which went on for years. Byelaws are a very complicated route for bringing in elements which we would see as being quite timely and important in terms of safety.
128. Eight months is from making byelaws to confirmation by the Secretary of State, is that right?
(Dr Packman) Yes.
129. There is a preliminary period as well?
(Dr Packman) Yes.
130. How long were your present safety byelaws under consideration before they came into force earlier this year?
(Dr Packman) As I mentioned earlier, we have been trying to pursue the by-law route for 15 years. The period from when we produced them to getting them finally confirmed was months and months, I cannot remember the precise time.
131. Then there is a suggestion that the Bill will lead to extra administrative costs to the Authority and in particular Mr Howes is concerned that there is no safeguard and he thinks there may be therefore less money spent on maintaining navigation in the future as a result of the extra administrative costs. Is there anything in that point?
(Dr Packman) I have talked about Breydon Water already where the authority is looking to negotiate with the new port company in terms of costs before it is transferred. In terms of the administrative system, the Bill will actually streamline the whole process, so we do not anticipate that the provisions will lead to further costs. For instance, what it will mean is if you are a toll payer, your annual toll, your requirement for third party insurance, your boat safety certificate will all be dealt with in one go, we cannot currently do that with the by-law provision. The Bill will allow us to do it so it will be an one-stop-shop for the customer but it will also make our process a lot easier.
132. I think you have still got a specific provision, have you not, in the Bill that the expenditure on navigation must be not less than the income which has come in from the various tolls and charges paid?
(Dr Packman) That is correct.
133. If we move on to Magna Carta, which is prayed in aid, a very important promoter, wicked barons who were stopping up some of the rivers and so forth, and it said that the provisions of this Bill are at conflict with the Magna Carta, what do you say about that?
(Dr Packman) I would refer the Committee back to the Minister's statement, the public right of navigation is not unqualified. The issue is whether the proposed controls are reasonable and proportionate. The authority believes they are for the reasons of public safety and the protections being written into the various provisions.
134. In paragraph 12 of Mr Howes' Petition, he makes a point about the Sandford Principle, which is a principle which applies to national parks, and he says that that is a means of reconciling conflict between the national park authority's duties. He says that it is a defect of the present Bill that there is no provision as to how to reconcile the demands on the Broads Authority with a limited budget and multiple pulls on resources and therefore there ought to be some reconciliation and provision. Do you think that is a problem and is something needed?
(Dr Packman) We do not think it is a problem. The role of Broads Authority is to reconcile any potential difficulties or conflicts between issues. We take the view that such a clause is unnecessary. We have not promoted it in the draft legislation and we believe that the principles of sustainable development are perhaps a better guide to managing complex situations rather than the Sandford Principle.
135. Can I turn now to some particular matters because those were general issues, the adjacent waters provisions, these are the blue areas on the plan. Mrs Howes and Mr Williams both object to the definition of adjacent waters and the extension of the authority's power to such waters. The definition is contained in Clause 2, sub-section 2, and Clause 2 (3) makes it clear the authority does not become the harbour authority for these adjacent waters. What do you say on that particular issue?
(Dr Packman) I think through the process it has been recognised this is quite an important part of the Bill and it is widely welcomed by many boaters. The majority of vessels that are based in these waters attach to the navigation and also use the navigation area, there is nowhere else for them to go. This provision will allow us to provide a comprehensive database with records of the owners and the vessels, so if there is an incident, either directly or as a third party, where owners need to be contacted, we will have that information. A single registration process which requires the payment of the toll, evidence of safety compliance, and evidence of third party insurance will mean we will be able to provide improved safety for boats that lie just on it.
136. So far as any boat owner who at present uses the adjacent waters and the navigation areas, he is not going to be paying any greater annual toll, is he, the toll will be the same, is that right?
(Dr Packman) Correct.
137. At present he uses both the adjacent waters and the navigation and in the future he will be using both?
(Dr Packman) This will be the case for the vast majority of boats on the Broads.
138. If he does not ever put his boat into the water he will not pay, is that not right?
(Dr Packman) If he does not put his boat into the water that is correct.
139. If it is a bit of the adjacent waters which he and only he uses - :he: being the owner or the owner of an adjoining residence - he is exempt from the adjacent water provisions in any event, is that not right?
(Dr Packman) Correct. There are some examples of areas which are only used by the landowner. In that case there is not the safety issue to worry about. Whereas there are dykes with a large number of boats of varying standards of maintenance moored up against each other it is particularly with that in mind that this element of the Bill is being promoted.
140. If you want to achieve a consistent level of safety for all vessels and provide reassurance to boat owners do you see any sensible alternative but to the adjacent waters provisions?
(Dr Packman) No.
141. Mr Williams takes a technical point. He says he does not like the use of the word :toll: in the Bill in respect of the charge payable in respect of the adjacent waters. I think there is now an amendment, is there not, in the Filled-up Bill to make it quite clear that tolls include charges, so that probably meets the point. Is that right?
(Dr Packman) Correct.
142. It is an amendment at page 37 of the Bill where we can see halfway down the page at line 15 there is a little :1: inserted and toll :includes any charge:, then up to the top of the page, :made in the discharge of the Authorities functions under .. this Act and any charge levied ...: If it is a charge in respect of the adjacent waters it becomes known as a :toll:?
(Dr Packman) Yes.
143. I am grateful. If we move on: the navigation officer. There is concern from Mrs Howes there is no requirement that the navigation officers have any particular qualifications. Mr Howes makes the same point. Anything in that?
(Dr Packman) Currently in the present Act the Authority is required to have two navigation officers: one for the Norwich navigation, and one for the Broads. That is because, again when the Act was originally passed, Norwich was a commercial port and it was thought there were separate issues to deal with that. Legislation does not require standards for harbour masters. The present legislation does not require standards for the navigation officers. The Authority will, of course, ensure that the position is held by a suitably experienced officer, and that is achieved by developing a job specification which sets out the essential and desirable qualifications, skills and attributes of the post-holder. We have a training programme in place to ensure that those are met both for the navigation officer and authorised officer. We are a unique inland waterway and, therefore, we require a set of skills which are tailored to the particular needs of the Broads.
144. Three of the Petitioners, Mrs Howes, Mr Williams and Mr Howes, are concerned about the role of the authorised officer. Mr Howes in particular raised the point that someone without particular qualifications is given powers to take over unsafe vessels. Is there anything unusual in legislation referring to powers of people who are authorised by the Authority to do things as authorised officers?
(Dr Packman) No, that is common practice. Our existing navigation rangers are authorised for these sorts of matters. Over the last nearly 20 years there have not been any problems. They go through a comprehensive training programme to ensure that they have all the skills and knowledge to be able to meet the requirements of that role.
145. I think your new boat safety byelaws give powers to authorised officers and none of the Petitioners complained about that particular matter, did they?
(Dr Packman) No.
146. I referred the Committee to various amendments to the Bill requiring a magistrate's warrant before the authorised officer could take certain entry and deal with certain vessels. Is that again an appropriate constraint on the powers of authorised officers?
(Dr Packman) Absolutely.
147. Moving on then to the Port and Marine Safety Bill. Mr and Mrs Howes in their petitions, paragraph 11 for Mr Howes and paragraph 19 for Mrs Howes, say that there is going to be a Port and Marine Safety Bill presented during the next few months to Parliament and that all these matters could either be dealt with in that, or that our Bill should be deferred until one knows what is in the Port and Marine Safety Bill. Again, your observations on that matter?
(Dr Packman) I have referred to the meetings we have had with officials from the Department of Transport who were in fact very helpful, and we did make some amendments to the Bill in line with their suggestions. They did not see any problems in terms of what was being proposed. Our understanding is that such a Bill will not be introduced until, at the earliest, 2008/2009, and it is unlikely to have anything which will cut across the contents of this Bill. The Department of Transport supports the measures to improve safety in harbour authorities, and the Bill will be reformed.
148. Could we now turn to clauses 17 to 19 of the Bill which are dealing with unsafe vessels: clause 17 giving the meaning of :unsafe vessels:; and clauses 18 and 19 certain powers in respect of unsafe vessels and their removal etc, as it is termed. Mrs Howes is very concerned about this matter, and she states that a person who had been convicted of non-payment of tolls or speeding then his vehicle could be adjudged unsafe I do not think that is the effect of clause 17, is it?
(Dr Packman) No, it is not.
149. The Authority has still got to be satisfied that there continues to be something which :gives rise to a danger to any person or to any property, or risk of pollution from the vessel:, is that not right?
(Dr Packman) That is correct.
150. She seems to have ignored those words. Then she is very opposed to clause 18. She says even if her craft were considered unsafe she would strongly object to anyone boarding the vessel, let alone carrying out any work on it. Do you see any problem there, if there is an imminent danger to the safety of any person?
(Dr Packman) Clause 18 only allows an officer who has boarded a vessel under clause 16 to carry out work if there is an :imminent danger to the safety of any person or property on or near the vessel, or any imminent risk of pollution:. This is considered to be proportionate. There are occasions on the Broads where my staff come across incidents where they can clearly see something, a potential fire risk, and will take action. This regularises and gives the Authority proper powers to be able to do that.
151. If we then turn to the information powers, that is clause 21, clause 22 and clause 23, there is a suggestion by Mrs Howes that some of these clauses are unnecessary. Can you just, in a very few words, distinguish between the clauses?
(Dr Packman) Clause 21 provides for authorised officers of the Authority to request from the owner or master of a vessel, or both, information relating to the vessel. Clause 22 provides the Authority to serve notice on a master or owner of a vessel giving them 28 days to provide certain information regarding the vessel. Finally, clause 23 extends the existing power of the Authority to serve notice on landowners requesting information about the land, so as to cover vessels moored on or adjoining the land to which the notice refers.
152. Are all those powers necessary powers?
(Dr Packman) Yes.
153. So far as clause 23 is concerned, if we look to page 17 of the Filled-up Bill there is an express provision to say that subsection (1) is not to apply to any vessel which is ashore. Is that not right?
(Dr Packman) That is correct. The Authority did not think this was originally necessary, because we though it was obvious it did not apply to vessels ashore; but to make it absolutely plain that is the suggested amendment
154. So far as using the powers in clause 21 is concerned, I think you have entered into an agreement with the Royal Yachting Association that the Navigation Committee will be consulted in relation to drawing up a process for the use of the powers in clause 21. Is that right?
(Dr Packman) Yes. In fact, there are a number of parts in that agreement where the Authority has agreed that it will consult the Committee on various processes before particular provisions of the Bill are brought into effect.
155. Mrs Howes says that you could do without clause 21; clause 22 would allow you to do everything which you are going to do under 21. Is that right?
(Dr Packman) No. They are intended to cover different situations. Clause 21 is concerned with on-spec requests for information. Clause 22 will cover office-generated requests. Clause 21 is particularly important when information is required quickly.
156. So far as clause 24 is concerned, which is entry on to private land, I have already drawn the Committee's attention to the Filled-up Bill and its provision for magistrates' warrant before exercising the right of entry, save in an emergency or with the consent of the occupier. Is there anything left in clause 24 about which the Committee or anyone need be concerned?
(Dr Packman) I do not believe so.
157. Again, so far as vessels which are not in the water, is it intended to exercise the powers in clause 24 in respect of them?
(Dr Packman) No.
158. So that, in any event, it is the Broads Authority's belief, on the present wording of clause 24, that it would not apply to vessels which were not in the water. Is that right?
(Dr Packman) That is correct.
159. Then we come to clause 38. I mentioned this in opening. This is the new provision that you can enter into agreements with others. What is the purpose of clause 38, because that is objected to by Mr Williams?
(Dr Packman) This is based on some examples, again, from British Waterways and the Environment Agency. Because they are so similar to us, there may be occasions when we want some reciprocal agreement whereby we recognise some of their, for instance, licensing or their boat safety certificates. So, for instance, there is a current reciprocal agreement in terms of annual licence fees between British Waterways and the Environment Agency. It may be, in due course, the Authority might have similar reason for agreeing something with one or other of those bodies. Similarly, in terms of boat safety certificates, if one has been recognised by the Environment Agency then the Broads Authority might well recognise the same.
160. Mr Williams thinks that you may be intending, as it were, a surreptitious delegation of you various harbour powers. Is there anything in that?
(Dr Packman) No.
161. Clause 42, I think we have probably mentioned this almost enough. That is the provision to apply to hire boats. It is simply your taking over the jurisdiction of the present six district councils, five of which are not exercising their jurisdiction.
(Dr Packman) Correct.
162. It is going to apply just to pleasure boats and pleasure vessels which are for hire. Do you see any reason why there should be any concern about that?
(Dr Packman) No. In fact, the industry have been very supportive. We have worked with them for some time. We had originally hoped that we might have been able to introduce this through a different route, through delegations, but, in fact, in practice, that proved not to be possible. So the six district councils are all supportive of this as a way forward, because they see two things: one, the logic of having one system for the Broads as a whole, and, also, the Broads Authority employs qualified staff who can make the necessary judgment, whereas the environmental health officers in the district councils are unlikely to have the skills and judgment to exercise the licence in as an effective way as the Broads Authority might.
163. In that up and down the country local authorities are applying the present section 94 of the Public Health (Amendments) Act 1907 to pleasure boats and pleasure vessels, do you see any need in the Act to include a specific definition of :pleasure craft: or :pleasure boat: or :commercial craft:? Mr Williams says there is a need to put in further definitions. Is that necessary?
(Dr Packman) I do not think so.
164. Turning to the schedules, on the financial provisions we have probably dealt with most of the matters, but Mrs Howes says she cannot see any valid reason for amending section 17. That is the provision for a separate account. You have already dealt with that matter. Is there anything you want to add on it?
(Dr Packman) No. Perhaps just briefly to say that I think the new format for the accounts, which is more open and transparent, and the provisions in the Bill which protect the interests of the toll-payers, in particular, by saying that the Authority will spend at least the income it receives from navigation on the maintenance of navigation, should give Mrs Howes and others the comfort that the removal of the navigation account actually does not signify any significant change from her point of view.
165. You initially had certain provisions under the Water Resources Act which were going to be dealt with, dealing with pollution, under the Bill. Those have all gone out and therefore, so far as Mrs Howes' concerns about those are concerned, the Bill has, as it were, overtaken the Petition.
(Dr Packman) That is correct.
166. MR GEORGE: That, lastly, leaves the points raised by the Defra report. Does the Committee have a copy of the Defra report? I am rather in the Committee's hands as to whether you think this would be the appropriate moment to deal with their points, or at a later stage.
167. CHAIRMAN: In the interests of expediting this, it may be worthwhile to go through it now. Do you think, Mr George, you are going to complete that by one o'clock?
168. MR GEORGE: There are not very many points; the answer is I am not optimistic, but we will have a go.
169. CHAIRMAN: Okay.
170. MR GEORGE: So far as the Defra report is concerned, we are only going to concentrate on the passages which are in normal type because the passages which are in italics they recognise have been dealt with by matters in the Filled-up Bill. At the very beginning of the Defra report, the first paragraph, line 3, it says they object to two clauses, but I think that in fact there is only one clause they are objecting to because the second clause was the one relating to changing the name, and that has already gone.
(Dr Packman) Yes. I have clarified that with Defra officials and they agree that it is only the one issue about finance.
171. It is the one finance issue which is the significant matter. Turning to the first of their normal paragraphs, which deals with clause 4(3)(e) to (g), they say that in that you have reached an agreement with the Royal Yachting Association that certain of the general directions will not be made in respect of pleasure craft, they say should that possibly be incorporated into the Bill. What is your response to that matter?
(Dr Packman) The Authority believes that would increase the rigidity of that provision and, in fact, it is better left in the agreement. So we do not want to go along with that suggestion.
172. That exempts pleasure craft, but I think if some of those are hired there may transpire to be a need to make general directions under those provisions in respect of them.
(Dr Packman) Correct. The issues specifically about hire craft I mentioned earlier in terms of the potential danger, particularly in terms of the Lower Bure and Bray, and in our recent discussions with the federations (?) they agree they may be a case in the future for varying those. So if it were written out on the face of the Bill it means that you are stuck with that; you cannot then reshape it in the light of changing circumstances. I suppose that is one of the lessons we have learned from the 1988 Act; the world changes very rapidly now and we need to have on the Bill the things which are likely to stick, whereas if there are areas where some flexibility is needed then it is important to retain them.
173. The second point is at page 3 of the Authority's letter, and it is a highly technical matter whether in one place the word :standards: should read :standard:. You originally used the word :standard:. Then, as a result of negotiations with the Inland Waterways Association you replaced it with :standards: and the department say it would be better if the word :standard: was used. The plural usually includes the singular, unless the opposite is stated, under the interpretation act, so that :standards: would include :standard:, but is it the position that you prefer the word :standards: but would not go to the death if the Committee felt it appropriate to use the word :standard:.
(Dr Packman) Yes. We would prefer :standards: but would leave it to the Committee to revert to the singular if they felt that appropriate.
174. The department also suggests that the words :it is established that the vessel:, which was in the Bill as deposited, should stay, whereas you have promoted an amendment in which those words go and you simply have a simplified version of the provision.
(Dr Packman) Yes.
175. Do you see any point in putting back in unnecessary words?
(Dr Packman) No.
176. Again, it is not a matter to go to the stake on. Is that right?
(Dr Packman) Correct.
177. The third matter is page 4 of the report, dealing with the clause 19(2) :removal of unsafe vessels:. You have got a clause which provides for compensation for damage to the vessel, but the department say it does not address loss of use or relocation expenses. I think that is not a matter that the various boating interests have raised or suggested is appropriate. Is that right?
(Dr Packman) Correct.
178. Is it your view that it is not necessary to make that amendment?
(Dr Packman) It is.
179. If the Committee felt differently on that matter would you wish, if at all possible, to have sight of the proposed amendment just to check it before it was included?
(Dr Packman) Yes, the Authority would.
180. The fourth matter is clause 22, page 16. You have added a provision to say that the requirement does not apply to information which is unavailable. The department say that is pretty obvious and that your change is unnecessary. I think someone else has raised the matter, which is why you put in the change. Is that not right?
(Dr Packman) Yes.
181. As far as you are concerned, the Bill is absolutely clear, as amended by you, and you do not understand why the department want to take the words out. Is that right?
(Dr Packman) Correct.
182. Again, it is not a matter of going to the stake over it. Then the fifth matter is page 5. This is clause 24. The department say that there may be a case for the Committee to consider changing the provision so that it does not apply to vessels which are ashore. We have already dealt with this; we believe that clause 24, as worded, does not apply to vessels ashore.
(Dr Packman) That is correct.
183. However, again, if the Committee wants to put in a provision to that effect that would be perfectly acceptable.
(Dr Packman) Correct.
184. The sixth matter is clause 25, the licensing of rescue boats. They query whether it is needed; they say could it not be done by advice and training. What is the problem here?
(Dr Packman) We have been in discussion with the department about this. The fact is that there are probably at least seven groups of people who have set themselves up as rescue services. So this is not designed, as Mr George, covered earlier, for someone falling in and being rescued by someone nearby; this is someone setting up a rescue service. We believe that this does need to be regulated because these groups potentially, if they do not have proper training and advice and regulation, could actually be more of a safety hazard than actually rescuing people. So we can see where the department is coming from but we maintain that given the particular circumstances of the Broads and these rescue services it would be a sensible provision.
185. The next point, the seventh, is concerned with water ski-ing and wake boarding. You have got a proposed provision and it is in the Filled-up Bill at page 4 of the pages apart. You have got a provision :to consult such persons who own or occupy residential property, the amenity of which appears to Authority likely to be significantly affected by the resolution: - so to ensure that some consultation. The department would prefer to delete the word :significantly: and simply have :likely to be affected:. What do you say on that matter?
(Dr Packman) I think this is, perhaps, a reflection of the particular geography of Norfolk and where these zones are, that they are largely out in the countryside and it is very clear who is significantly affected. By widening it to include other people I think it might make it just practically rather difficult for the Authority to decide who they have to consult with and who not, whereas by :significantly affected: we think it is clearer for us.
186. MR GEORGE: Item 8 is the removal of vegetation. I notice we have reached one o'clock.
187. CHAIRMAN: Mr George, the Committee will now stand adjourned until 2.30 today in this room when we shall complete Dr Packman's response to Defra's comments.
After a short adjournment
188. CHAIRMAN: We will now recommence the afternoon session and return to Mr George examining Dr Packman.
189. MR GEORGE: Thank you, Sir. Dr Packman, we were in the Defra report and we have now reached the top of page six of that report, which is the eighth departmental point and that concerns certain provisions which they say are now omitted, that they cannot comment, but I think that is a misunderstanding, is it not? Can you clarify the position there?
(Dr Packman) I think the point is that these earlier sections were never in fact included, so there is nothing for Defra to comment on.
190. Let us move on then to removal on vegetation. The Department wanted some further words to be put into the Bill and I think those further words have now been put in, have they not, and if the Committee would turn to the amendments to the Filled Bill, that is the one page which was circulated this morning, it is the central provision there in Clause 51, the addition of the words, :remove the cause of the danger or obstruction:, I think that meets the Department's point, does it not?
(Dr Packman) Yes, it does.
191. Then item ten concerns Clause 42 and that is the 1907 Act. They thought that there should be some elucidation as to what is intended and there now is a provision in the Filled-up Bill, is there not, saying that the matter only applies to pleasure vessels and pleasure boats, which are the only matters to which the 1907 Act could apply in any event?
(Dr Packman) That is correct.
192. That deals with that matter. Then we come on to Schedule 6, paragraph 8 and 8 (2) and this is relating to the expenditure provisions and there is no opposition to eliminating the separate navigation account but the Department suggest three changes. First, that instead of your proposed wording, the Clause should read :It shall be the duty of the authority to secure that taking one financial year with another, navigation in expenditure is equal to navigation income:, whereas you prefer the phrase :not less than:. Secondly, they suggest possibly adding some words including expenditure on dredging, wholly or mainly for conserving these things. Thirdly, they raise a matter on tolls. Let us take those three matters in turn. First of all, and I think this is really the substantive point, what do you say to their suggestion that the phrase should be :equal to: rather than :not less than:?
(Dr Packman) Chair, I think it might be helpful for the Committee if I take you back to the 1988 Act and some of the principles underlying that in terms of its funding. At that time the local authorities were contributing significant amounts to the funding of the Broads Authority and with a proportion coming from the Countryside Commission, as it would have been then. If you look at the 1988 Act there are two forms of protection: one says that toll payers' income, navigation income, should be spent on the navigation, and the other gives protection for the local authorities such that navigation is, if you like, ring-fenced, so the assumption under the 1988 Act is that the maintenance of the navigation would be funded from the income principally from the users. Now there have been two significant changes to the way national parks are funded. The first was that initially local authorities got an allowance back in their standard spending assessment for the money they contributed to national parks, that was step number one, and then step number two, when government looked at that, they said, :This is a bit strange:, because if you looked at the council tax forms at that stage, it looked as if local council tax payers were contributing to the national parks. In practice it was coming from central government, so Defra sensibly made a change so that the Broads Authority and the national parks no longer received a levy from the local authorities but the presumption in the 1988 Act was that was where some of the funding was coming from. There was a concern that the local authorities would be stumping up significant amounts of money to fund the navigation. That whole presumption in the 1988 Act has changed. Now, through the work we did in preparing a new Broads plan in 2004, we demonstrated to Defra that the long-term maintenance of navigation cannot be entirely funded by the users. We have made the case that, as with the Environment Agency and with British Waterways, the benefits that accrue in terms of maintenance of navigation accrue not just to the user but we generally as the public received some benefit from that. Therefore it was sensible and right that the public purse should also contribute to that maintenance. In having prepared that case, we then were able to convince Alun Michael, who was the then Minister, to not only accept the position that public funding was justified, but also, as I mentioned earlier, to provide an extra one and a half million over three years, a proportion, about 50 per cent, which was then spent on navigation. The Broads Authority has been able to convince Defra relatively recently in the time of Alun Michael that the existing grant regime and the formula which allocates national park grant did not take account of all the complexities which the Broads Authority had to deal with and that it was right and proper for government to help in the maintenance of navigation. I think there are a number of questions that the Defra report raises. One is in the first part of the statement. It appears that Defra wants to go back, if you like, to the situation because it says :Navigation expenditure should be fully funded by navigation income:, and I think there is a hint there that the Department is now thinking that the maintenance of the navigation should be entirely funded by the users. That is not a position which the Authority would like to return to because we felt that we had made significant progress when Alun Michael was in position. The second issue is in this first amendment where in the current Bill it is saying that the Broads Authority has to satisfy everyone that it has spent at least what it receives in navigation income on navigation expenditure. That is relatively straightforward to demonstrate. The suggestion that it should be equal to taking one year with another will place a limitation on the Authority which will be much more difficult for us to reach. It will also place rigidity in terms of the Authority's accounts because we are moving towards one account. We have got two principal lots of money coming in, one from Defra and one from the toll payers. What the Authority wants to move towards is a position where it manages that money, it satisfies the fact that it has to spend a minimum amount of the amount it receives from navigation income, from the maintenance, but given that Parliament set the Broads Authority up to manage the Broads in the most appropriate way and we have very similar status to local authority, it seems appropriate that the Broads Authority should be able to judge whether some of its national park grant could be spent on the navigation.
193. That, as I understand it, is why you, by quite a substantial margin, prefer your wording, albeit at the end if the Department's view were to prevail. Again, it would not be the end of the world, it would simply be regrettable?
(Dr Packman) That is correct. There is an existing provision in the 1988 Act which allows Defra to make grants as the Secretary of State sees fit to the Broads Authority. This would make life more difficult for us but it would not prevent the Department giving a grant for navigation expenditure. If what appears to be a change in policy within the Department were changed again and the Department wanted to directly fund navigation, it has the powers within the 1988 Act to do that. But the suggestion that the Department is putting forward we think are unhelpful and rather than providing the authority with a more flexible arrangement for managing its money, it would restrict and make our lives more difficult.
194. Let us come on to the second amendment they are suggesting, which is that in defining the expenditure which is not navigation expenditure one should add in the phrase :including expenditure on dredging wholly or mainly for conserving these things:, and they do not say it should be done, they suggest that perhaps this should be done, what do you say to that matter?
(Dr Packman) Here I think the Department is trying to be helpful and it recognises what I would see almost as an artificial distinction between navigation expenditure and other expenditure. If you come and visit the Broads you would find it very difficult to see. For instance, the dredging that we primarily do for navigation benefits can frequently have a benefit for biodiversity, so where we take dredge material out of a river and deposit it on a particular site, very often we will do that in such a way that biodiversity is increased and a reed bed might be recreated. Throughout all of our operations this distinction between navigation and other expenditure is very difficult to decide. Again, this is one of the reasons why we, the Broads Authority, are arguing for a single account into which these pots of money go, we have an open and transparent way in which we show how the money is spent but the Broads Authority and its members decide how that should be spent.
195. I just want to be clear, are you accepting this proposed change from the Department to add these words :including: or do you think that is not necessary?
(Dr Packman) I do not think it is necessary.
196. The third matter is a question of consistency of language about tolls and other charges and this looks very complicated, but I think it is dealt with, is it not, by two matters in the Filled-up Bill. First of all, if we go to page 37 of the Filled-up Bill, at line 16, after the word :any charge: there are added some words which we can see at the top of the page in note one :...in the discharge of the Authority's functions under this Act and any charge: and then on the previous page, page 35, there is an amendment proposed to paragraph 7 (2) whereby in line 19 there is a reference which comes in to :Tolls or other charges to be imposed in respect of the navigation area:, and little (a) (b) and (c) which are lines 20 to 23. I think the combined effect of those two changes deals with the matter which the Department has highlighted, is that right?
(Dr Packman) That is correct.
197. Let us move on to the next matter, which is the point they raise where they say :We have got a reference to part three which should be to part two:, I think that has been addressed, has it not, and therefore the Committee has now got the correct reference to parts there and that is I think the totality of the points which are raised by the Department because all the other matters have been addressed, is that right?
(Dr Packman) Yes, it is correct. It might be the right time just to acknowledge that the officials in the Department have been very helpful throughout this process and that the Bill has been amended as you can see through the comments to take on some of the specific helpful amendments that they have suggested.
198. I think at the end of the matter the only matter of any significance between us and the Department is on that wording of that provision, not less or equal to?
(Dr Packman) Yes, and on that, we are more concerned about the principle. At a practical level the Authority could probably live with it, but it is the principle about whether navigation should be funded by the government, which I think is one of the underlying concerns we have.
199. MR GEORGE: Thank you very much indeed. That is the evidence.
Examined by THE COMMITTEE
200. JAMES DUDDRIDGE: Mr Packman, as we move very swiftly through, I would like to take you back to Clause 25 on the licensing of rescue boats. Because we moved through it quite quickly, perhaps we did not have the opportunity to hear all the evidence and because on the basis of solely what I heard, it did not seem a very proportionate response to force the licensing situation through, I was wondering whether you perhaps could give me some more evidence.
(Dr Packman) The specific example given about one set of arrangements I am familiar with is in regard to the centre of Norwich where it has been redeveloped in recent years with a large number of clubs and drinking places next to the river. It is very popular with young people and Friday and Saturday night are full of people enjoying themselves, but we have unfortunately had, as a result, a series of fatalities, drownings. Working with the city council, the police and others we have been supporting them and there have been concerns about that. As a result of that a group of individuals has set themselves up as a rescue operation and voluntarily patrol the centre stretch of Norwich. Our concern would be: do those individuals have the necessary training? We believe there needs to be some control. In those close waters in the centre of Norwich it would be just as easy to run someone down or reverse into them and damage them with the propeller as it would be rescue them.
201. In that particular case have they sought approval from the Maritime Coastguard Agency or have they not sought that approval?
(Dr Packman) I do not believe they have sought that approval. They are a group of volunteers who are acting in the interests of the public.
202. Again that seems a very small incidence to warrant a bigger clause, a significant piece of legislation. Is there any more evidence?
(Dr Packman) There are at least six other such operations around the Broads. We believe this could be proportionate. It would not need to have a very large exercise, but just regulating them and knowing where they are; making sure they did have appropriate training and skills would be justified..
203. CHAIRMAN: Mr Campbell, do you wish to cross-examine?
204. MR CAMPBELL: Yes, Chairman.
Cross-examined by MR CAMPBELL
205. Perhaps I could say something about myself. If it is not already obvious, I am not a professional parliamentary agent. I grew up on the Broads and for some of that period as a teenager I raced dinghies against Paul Howes, who is one of the Petitioners. I competed in small sailing boats to the international level for some 25 years in 505, Flying Dutchman and Dragon classes. The Flying Dutchman at that point was an Olympic class. I passed my offshore yacht master examination in 1986, and have probably sailed 10,000 shorthanded ocean miles and I include in that Round Britain, the Azores and Back and Transatlantic races. When my children were younger I qualified as a RYA dinghy instructor but subsequently let my certificate lapse. My son is now a professional yacht skipper and I am heavily involved with the Excelsior Trust, who are a registered charity and who authentically rebuilt a 1922 Lowestoft sailing trawler which is now almost exclusively used for sail training for underprivileged and disadvantaged children. I have owned a classic engineless Broads sailing cruiser for 20 years, which I have entirely rebuilt myself. I have written and published a number of books about the Broads and yachting, including editing for ten years the most detailed guide to Broads navigation written to date. I calculate local tide tables for the coast and the Broads. I am also employed on a local magazine as a freelance called Anglia Afloat. I simple ask you to accept that I have done a bit of yachting. Before I start, Dr Packman, on the notes I have made, you said that the principle of sustainable development would provide a better framework than Sandford. I have to ask if you can explain in simple terms what :sustainable development: means and how it might affect navigation?
(Dr Packman) Let me explain for the benefit of the Committee what the Sandford principle is first. Sandford says if there is a conflict between conservation of a national park's natural resources and its recreational use, greater weight should be given to the first. The environmental factors, and that is the principle the Authority uses on a day-to-day basis already, is enshrined in our planning legislation as something we need to have regard to.
206. As I understand it the original purpose of this Bill was to enable a Boat Safety Scheme, that is something you have confirmed. That in itself is pretty non-contentious. The Filled Bill we have has been significantly complicated since that original intention. Was this just a question of taking the opportunity?
(Dr Packman) Committee members will remember I referred back to my giving a talk to the Royal Society in, I think, July 2005; and I recently reviewed what I had said to them and in fact the outline of the Bill there is very similar to what is before the Committee today. The Bill has always been much more than a boat safety scheme.
207. I wonder if you would be kind enough to explain the legal relationship between this private Bill and the agreement that was signed with the Marine Federation and the Royal Yachting Association? This was certainly questioned during the House debate on the subject.
(Dr Packman) A common procedure for private Bills is to have legal agreements between the parties and the Promoters of the Bill that run alongside the Bill, and deal with processes and other matters that are not appropriate to go inside the Bill. If you look at the 1995 British Waterways Act you will find that my colleagues in British Waterways not only refer to the Bill, which they have on their shelf, but they also have a set of agreements which guide them in the way in which the Bill is used. For example, if you look at a number of the aspects of the Bill there are processes about how particular aspects will be put into place. Very clearly it would be sensible to put those on the face of the Bill, but it is important in terms of the boating organisations, both the national ones and the local ones with whom we developed the agreement, that there is a general understanding between all parties about what will this mean in terms of how this will be put into place.
208. But the RYA agreement significantly changed the content of this Bill?
(Dr Packman) I am not sure that that is the case. Certainly we will see the early part of the agreement does specify certain changes which the Authority agree; but I would have said the bulk of the agreement is about processes, and the bulk of the Bill remains as was deposited in November.
209. Thank you for that. I would like to turn to consultation. You said that the various drafts of the Bill had been posted on the Broads Authority website. Are you able to tell me when the Filled Bill was put on the website?
(Dr Packman) I am not able to tell you that, but it would have been done as soon as was reasonably practicable.
210. May I say it is not there today, sir. I would like to turn to consultation as a whole. I see there has been no consultation with commercial shipping bodies. We heard you say to the Committee earlier that there has been no commercial shipping in Norwich since, I think, 1989. There is a very good reason for this because the bypass was opened and a fixed bridge was put in the way. There is a small amount of commercial shipping which have not been consulted about this. I see you have consulted the Maritime Coastguard Agency?
(Dr Packman) Yes.
211. Are you able to tell me what the result of that consultation was?
(Dr Packman) No, not off the top of my head.
212. Perhaps can help. I have here a policy statement for the Maritime Coastguard Agency which perhaps I could read. :Our response to consultation with strategic aspects of the Broads Authority was therefore considered an acknowledgement of receipt and a request for a completed statement of compliance:. This is the premiere safety organisation of the country. Certainly from this reply, and I may stand corrected, it does not look like they have been properly consulted. In fact, as a policy they do not consult. The Filled Bill we have today is a significantly different document from the earlier versions. Do you feel this has generally devalued the consultation process?
(Dr Packman) No, because all the main aspects of the Bill deposited back in November are still there. We were working towards a deadline of November 27 which was when the Bill had to be deposited. The agreement with the RYA and the BMF was signed in January, and therefore there were inevitably things in the Filled Bill that could not have been in the deposited Bill; but many of those, although of interest to those with a particular legal mind, are very particular points rather than general provisions of the Bill which remain the same.
213. Perhaps I could press on to generally special directions. The Minister said in the debate that it was quite reasonable, for example, for our use of motor cars to be controlled by third parties, and we would all expect that third party is likely to be a properly trained policeman. I do not think anyone has had a problem with that. Dr Packman, can you tell me about the experience and qualifications in your organisation, navigational qualifications?
(Dr Packman) Absolutely. I think probably the best way of approaching this question is to go back to the Port Marine Safety Code. Under this Code, which is the safety guidance from the Department of Transport, the Broads Authority members are the duty holder, and therefore they are individually severally responsible for the proper exercise of the Broads Authority's legal duties in relation to safety. We mentioned earlier there are 21 of them, and that includes a large number who regularly boat on the Broads. A third of them, for example, are toll payers. In particular, two members are drawn from the Navigation Committee: Martin Broom appointed after consultation with Great Yarmouth Port Authority. He has been a member of the Port Authority for many years. He runs a successful boatbuilding business; he has a life-long knowledge of the Broads. The other is William Knight who was appointed after consultation with bodies representing owners of private pleasure craft. He specialises in the valuation of boatyards and water-related properties. He sails aboard his yacht, and is the Authority's lead member on water safety. As the Committee knows from earlier, the Authority is supported by a Navigation Committee, which includes several appointed members drawn from the hire boat industry. They have day-to-day experience of these operations and give advice to the Authority. You can see from the members' side the Authority is well served. Turning to the navigation qualifications of the staff, it is important to recognise that the Broads is an inland navigation. We mentioned the last commercial traffic up to Norwich was in the late 1980s; and while it is designated as a harbour authority the majority of the maritime legislation does not apply. The similarities are with British Waterways and the Environment Agency. We therefore look to ensure that our staff have the necessary skills and competences to carry out their very specialised role in relation to the Broads. All navigation staff need to go through a training schedule which needs to be completed and signed off before officers are warranted, in the same way the Environment Agency demonstrates the competence of its staff acting under the Water Resources Act. The recruitment and selection process includes personal specifications setting out the competences that are required. The Broads Authority employs a mud pilot in the event that a pilot is needed for a commercial ship using the system, but that has not been required in recent years. Our navigation officers, who are the people out and around on the Broads giving advice and help to visitors, come from a variety of backgrounds: former policemen, merchant seamen, from the Royal Navy, ex-divers and a range of other professions. In all cases they go through a rigorous training programme to ensure they have the right competences to perform their role.
214. Thank you for that. I am most concerned personally, I must say, about the full-time staff of the Broads Authority. They have heavily qualified conservation staff. They have recently set up a planning department full of qualified planners. If we go through the Broads Authority, we have a chairman with no obvious enthusiasm, experience or qualifications of navigation. The chief executive, and he will doubtless correct me, has very little experience and no obvious qualifications.The head ranger is an ex-Metropolitan policeman; he was not even a water policeman, and we have in this Bill - and we will hear more of it from the individual Petitioners - proposals that these people are prepared to give special directions, and some of these are part-time volunteers. I have brought with me a photograph. That is a traditional, Broads river cruiser. (Picture of sail boat shown to Committee). It is actually travelling at nine knots down a Norwich river. I have to say that I do not believe the Broads Authority ----
215. CHAIRMAN: Let me stop you there. The exhibit that you are showing the Members: is this part of the questioning that you are going to put to Dr Packman?
216. MR CAMPBELL: Yes. Dr Packman, how many people does the Broads Authority employ that can actually get sails up on this boat?
(Dr Packman) A good number, I would think, because quite a lot of our staff regularly sail on the Broads.
217. MR CAMPBELL: Very few navigating staff. That is my question for you.
(Dr Packman) Mr Campbell may be interested that I have undergone over several years training on the Norfolk waters (?) so that I am a trained crew and I do know how to raise and lower the sail.
218. The question of finance, which is really a pretty general question. Most limited companies - in fact all limited companies - in the UK are obliged to keep a number of separate accounting systems. They will have to have their statutory returns from Companies House, they will have tax computations, they will have VAT accounts for the Customs and Revenue and they do all that from the same inputted accounting system. Really, I do not understand why it should take an Act of Parliament to change the way a reporting system is done to produce management accounts for the Broads Authority. Why is it necessary?
(Dr Packman) Chairman, it is necessary because the Broads Act currently requires us to maintain two separate accounts.
219. Most people do that anyway.
(Dr Packman) But in practice, as I mentioned in my earlier evidence, there are two areas. One is the extent to which we can manage this lump of money in a sensible way, and the other is the bureaucratic process that requires us, as a public body, in terms of accounting for the way our money is spent.
220. We heard from Mr George that you needed construction regulations to maintain standards on the Broads. What do you understand by the Recreational Craft Directive?
(Dr Packman) This is a European piece of legislation which has a relationship with the boat safety scheme, and more modern boats that meet the requirements of the RCD will be exempt from boat safety requirements.
221. Does it say that in here anywhere?
(Dr Packman) Does it say what in where?
222. Does it say that boats and all craft built in Europe - if a professional boat builder builds more than one boat, it has to qualify with European safety regulations, and that includes everything: the height of tow (?) and stability? In the Filled Bill does it say that if a boat is built to that it is exempt from your safety certificate?
(Dr Packman) I do not think it does but if I am right it only applies for four years.
223. I am sorry, what applies for four years?
(Dr Packman) The RCD exemption only applies for four years, so after that a safety certificate would be required.
224. So new craft.
(Dr Packman) The boat safety scheme is administered by a national office who have experts and can provide guidance. What we are looking to do here is adopt the national set of standards that are used in British Waterways and the Environment Agency. Of course, the RCD is relevant because new boats - the national boat safety scheme is particularly interested in reducing the impact in terms of potential explosions and fire. Therefore, clearly, new boats are built to a more modern standard, where it will meet those requirements, but standards change over time. So after four years the boat safety scheme will be required to make sure that a boat is safe for use.
225. We should be clear about this: the boat safety scheme, as I understand it in your Filled Bill, is simply a set of fire and explosion regulations - very largely. Little more than that.
(Dr Packman) Correct.
226. The Recreational Craft Directive is about the actual way it is built and not the way things are stored and kept on it. I would like to proceed to a separate matter, which is the breakaway five incident and the licensing of day boats. This is an entirely different set of risks. Local authorities already have the legal right to license day boats. The MAIB report on the breakaway five report, which I should, in passing, point out was partly written by Commander Williams (and we will hear from him later), also recommends that it is possible to license day boats by byelaw. Dr Packman, is it unreasonable to suggest you actually do not really need this part of the Bill; that, in fact, your only requirement for it is as a result of the Broads Authority's failure to work closely, in harmony and productively with the local authorities?
(Dr Packman) No, that is not right. We have a very good and close working relationship with the local authorities. We did, as I explained to the Committee earlier, look very closely with them at the potential of them delegating their powers under the 1907 Act to the Broads Authority but found that, actually, there were significant hurdles that neither we nor they could get over. Therefore, it has been by agreement with the local authorities that this is the best and most appropriate way of doing it, of bringing in a single scheme across the Broads. We have also worked very closely with the local industry who would prefer the Broads Authority to do that. The only mechanism that would allow the Broads Authority to take that power across the whole of the system and remove it from the six constituent local authorities is this Bill.
227. Turning to something slightly lighter, I wonder if you would be kind enough to explain the expression "near-drowning experience".
(Dr Packman) Presumably, it is when someone nearly drowns.
228. No. Perhaps I will return to that later. It is an expression used by the Broads Authority.
229. CHAIRMAN: Mr Campbell, is that expression incorporated in the documents provided to the Committee?
230. MR CAMPBELL: It will be made available, sir. My next question is about boat safety and the accident ratio on the various comparative inland waters, and near-drowning experience is one of them. Dr Packman, do you have a safety problem on the Broads?
(Dr Packman) Generally, the Broads are a safe environment for both visitors and local people, but in any one year there are a number of drowning incidents. Now, along with any other public body we have a responsibility to work with others to ensure that we minimise the potential hazards to the public. It is within that context, in the port marine safety code, that requires us to look at all the risks, assess them and then take action, that we work.
231. We can accept, can we, that the Broads are pretty much a safe environment today?
(Dr Packman) When you put it like that, I react slightly because, of course, there have been a number of occasions when I have been on the Broads and you do find, particularly, with visitors, they may not always appreciate the potential dangers. So I can well remember sailing on Rutland Water (?) in a dinghy and finding some lads on a boat mucking about, one of them falling off and it became quite a dangerous incident very quickly. So the water temperature tends to be cold, the people do not realise that they need to be careful. The other major issue that we have is that, of course, people associate some aspects of their holiday in terms of enjoying the pubs and restaurants that lie alongside the rivers and Broads and do not always appreciate the potential hazards of getting back on their craft at the end of the day. Unfortunately, on a regular basis, if you looked at our safety statistics that we monitor on an annual basis, you will find instances where people have drowned as a result of not getting back on to the boat safely.
232. So how does the Bill help with this, Dr Packman?
(Dr Packman) In terms of, particularly hire craft, what the provisions in the 1907 Local Government Act will give us will be to work more closely with the hire body industries licensing them and requiring certain key elements, some of which are already in place by the waterways. So, for instance, there is something called a hand-over procedure; if you went to the Broads now on your holiday you would be expecting the boat hirer to give you a talk about safety, explain how the various things work on the boat, and take you for a short outing so you got a handle on it. For a number of years, we have been encouraging and trying to persuade the local industry to adopt a consistent way in which they can carry out that hand-over procedure. That has been a struggle. The provisions in the Bill would enable us to make sure that that happened. Similarly, there have been issues about the availability of life jackets on hire boats. Again, that is something we could require.
233. Perhaps I could press on to third-party insurance. We have heard from you that the requirement for third-party insurance is one of the major reasons why the effect of this Bill cannot be achieved by byelaws. We have heard Mr George saying that you were going to inspect insurance documents. Do you intend to inspect insurance documentation? Or do you intend to self-certify?
(Dr Packman) There will be times when I think we will need to see insurance documents, but having talked to the insurance industry it is likely that, as I mentioned, under the one-stop shop we will be expecting self-certification from the majority of toll-payers.
234. Perhaps I could point out to the Committee that Mr Howes is an international actuary, so is something of an expert on that sort of thing. I do not think anybody would sanely advocate not insuring boats, but there are a number of people who simply cannot afford it, and it happens on the roads as well. I am advised that 10 per cent of the cars on the roads are not insured despite a regular police force and a police force, in my view, likely to stop precisely the sort of cars that are not insured. We, too, Dr Packman, have these boats on the Broads. We have people that live aboard these things; they are, are they not, just the people that are likely to fraudulently self-certify, and would you not then have just a similar problem catching them with a criminal prosecution because they do not live anywhere? Does this not undermine your third-party insurance proposals?
(Dr Packman) I think there are two points to make.
235. MR GEORGE: Could I just interpose? There is no point raised in any of the Petitions about the third-party insurance; it is not a matter in any of the Petitions. Therefore, it is my understanding that it is not a matter which can be raised.
236. CHAIRMAN: Mr Campbell, would you care to respond to Mr George's point before continuing this line of questioning to Dr Packman?
237. MR CAMPBELL: Perhaps I might ask one of the Petitioners to find it in her Petition and perhaps return to it, if I may.
238. CHAIRMAN: It may be right for you to do it in examining evidence later on.
239. MR CAMPBELL: I am still slightly confused by the need to license rescue boats. I think there are various charities I am aware of that call themselves rescue boats -----
240. MR GEORGE: That again, sir is not a matter raised - rescue boats - in any of the Petitions. We have tried to confine ourselves to the different principles and rules of private business. The Committee are perfectly entitled themselves to ask questions on any matter they like - I make that absolutely plain - but so far as the Petitioners are concerned, they are bound to the matter they raised in their Petition.
241. CHAIRMAN: In this case, if a Bill has been amended without consultations it is reasonable for the Petitioners to try to examine the rationale for the amendments that have been made, but I would prefer it if Mr Campbell could move his line of questioning into other areas. There will be an opportunity, perhaps, in the remainder of the session, to bring out the points that he wishes to.
242. MR CAMPBELL: I will certainly do that, sir. Perhaps we can proceed to adjacent waters. We have firstly a splendid map, and secondly a definition of "adjacent waters". It means "any broad, dyke, marina or other substantially enclosed waters connected to the navigation area and from which a vessel may be navigated (whether or not through a lock, moveable barrier or any other work)", and this is at the top of page 3 of the filled Bill, clause 2, "but does not include" - and there are (a) to (e) exclusions. It seems to me that the areas claimed as adjacent waters are inconsistent. I might also add in passing that this map is factually incorrect. It does not agree with the map in the back of your Bill. The area shown on the Waveney is not correct, that is shown green here and includes Goodchild's boatyard.
243. CHAIRMAN: Mr Campbell, you referred to the area shown on the Waveney as not correct. Can you be a bit more specific?
244. MR CAMPBELL: If we look at the yellow area of Breydon Water to the west end where the River Waveney leaves it, in fact the yellow areas should extend beyond the purple dot, which is the boatyard run by Mr Goodchild, and that agrees precisely with the map given in section 12.
245. MR GEORGE: Can I just say that the overlay is the definitive map. This map is purely illustrative for the benefit of the Committee. If there is any dispute between them then 12A is the definitive one.
246. MR CAMPBELL: Thank you for clearing that up, Mr George. Item 12 is Wheatfen Broad. This is not any more connected. Wheatfen Broad was set up as a nature reserve by a local personality called Ted Ellis. He deliberately cut it off from the river. He bought an old cruising wherry called Liberty and sank it across the dyke. You can get there in a canoe but it is difficult. Are you happy to disqualify it as an adjacent water?
(Dr Packman) Yes.
247. Then I have to ask you sir, does not the same apply, which are not claimed as adjacent waters, and this is only just the beginning of this, to Cockshoot, Belaugh, Snape's Water, Old Woman's Pulk, Cromes Broad? I could make it another dozen, all of which could be accessible on the same basis from the river but you have not claimed them as adjacent waters. Why could this be?
(Dr Packman) Because they are not connected in the same way. There is not an open connection that can be transferred, so if you think about Cockshoot, which I think was one of the ones you mentioned, there is a physical barrier.
248. There is also a physical barrier to Wheatfen, and she was called the Liberty.
(Dr Packman) No.
249. We have a difference of fact.
(Dr Packman) You can, as I think Mr Campbell was suggesting earlier, go in a canoe from it onto that little broad. Can I just reinforce the point that one of the questions that was raised, particularly by Defra, was about the balance between the navigation area and adjacent waters. This map was designed to help the Committee get a feel for what the scale of adjacent waters is all about. As I think we touched on earlier, in 1988 when they were drawing up the original Broads Act, they decided that it was just too difficult and too contentious to define what the navigation area was, and therefore they had a rather open definition that was about its use at that time. A number of the Broads on here we have defined in a particular way but there is a lot of contention about some of these. Many of them are privately owned and there is a dispute about whether there is a right of navigation over them, but this map gives you a feel for the scale of the navigation and the relatively small scale of the adjacent waters.
250. CHAIRMAN: So you are saying that this particular map with which we have all been supplied is for illustrative purposes to assist comprehension of the general issues involved, but is not one that you would utilise if you were wanting to navigate the Broads?
(Dr Packman) Correct, and it is such a scale that you could not. For instance, around Brundle(?), which is just to the east of Norwich, there is a whole series of detailed dykes which clearly we could not show on a map of this scale.
251. MR CAMPBELL: So you are happy that to enter Wheatfen Broad from the river in a canoe I would have to pull it over an obstruction?
(Dr Packman) No, you would not, is my advice.
252. Again, we have a difference of fact. We have heard both in one of the responses to the Petitioners and in evidence this morning that the adjacent waters are primarily included for the safety of Broads boat users. Most of these Broads adjacent waters do not have any boats on them, or very few. I do not understand this argument. Can you explain it to me?
(Dr Packman) The argument runs, and has been welcomed by a large number of users, that in terms of safety the boat safety scheme should equally apply to the navigation as to areas immediately adjacent to it. For instance, and again we go back to Brundle where there is quite a density of boats, if I were a boat owner, the argument goes, I would want to be assured that not only do I have a boat safety certificate but that the boat next to me also does, and, as I say, this particular provision has generally been welcomed by boat owners.
253. I am sorry: I had understood that you had said that the advantage of these adjacent waters was a safety issue to boat owners, and looking down the waters, and I will do it from the map rather than the list, Hoveton Great Broad has one boat on it, Pounds End has a couple. It is a nature reserve and cut off from Blackhorse Broad, which is itself shut in the winter. Decoy Broad has some fishing boats on it, some Sea Scouts, which are not subject to the boat safety scheme. Ranworth Broad we have here. It is barred from the river. There is occasionally a fishing boat on there, also not in the safety scheme.
254. CHAIRMAN: So your point, Mr Campbell, is that the illustrative map expands beyond what is reasonable the adjacent areas which may or may not benefit from the improved health and safety that Dr Packman has referred to?
255. MR CAMPBELL: My point, sir, yes, is that the proposed improvement in health and safety that Dr Packman has referred to is minimal because most of these broads he claims are adjacent waters do not have boats on them that are subject to the scheme anyway.
256. CHAIRMAN: Okay. Are you close to completion of your cross-examination? If not, we will have a brief intervention at this point.
257. MR CAMPBELL: Yes.
258. CHAIRMAN: You are? Okay, we will carry on until the end of your cross-examination.
259. MR CAMPBELL: That is complete.
(Dr Packman) Can I just respond to that? Mr Campbell has picked out particular broads where there may be a limited number of boats. If an adjacent water is only used by the owner, so there is only one boat on it or only boats owned by the owner, then it will not be covered by the provision, but what you cannot see so clearly are the numerous dykes where there are large numbers of boats moored off the system, some of which are potentially hazardous.
260. MR CAMPBELL: I just wish to add to that that I believe that what are called Trinity Broads, Omesby, Roseby and Philby(?), just the same as the other list of broads are now very large broads. You can see them on the map. They are just to the right of number 17, between there and the sea, and are connected to the river. There is a sluice in the way. You could drag a canoe over to them. There are sailing boats on them. There is a sailing club there, there are fishing boats there, there are racing boats there; yet they are claimed as adjacent waters. Dr Packman, I think your definition of adjacent waters is a mess, I suggest, and I think the justification you have offered of safety is flawed.
(Dr Packman) We have looked at these quite carefully and the Trinity Broads are clearly on adjacent waters because there is a two-metre difference in the water level, a sluice in the way and a road bridge, and therefore they cannot be navigated from one water to another, so they fail the definition.
261. CHAIRMAN: Does that conclude your cross-examination, Mr Campbell?
262. MR CAMPBELL: Yes, thank you, sir.
263. CHAIRMAN: Mr George, will you be using your opportunity to re-examine Dr Packman?
264. MR GEORGE: No, sir, because the only matters I can deal with in legal submissions at the end. I do not need to re-examine Dr Packman.
The witness withdrew
265. CHAIRMAN: We will take a break now for 15 minutes and reconvene at 3.35.
After a short break
266. CHAIRMAN: The session will now restart with Mr George seeking evidence from the second witness for the Broads Authority, Trudi Wakelin, Director of Waterways.
MRS TRUDI WAKELIN, Sworn
Examined by MR GEORGE
267. MR GEORGE: Thank you. You are Trudi Wakelin and you are Director of Waterways for the Broads Authority. How long have you held that position, please?
(Mrs Wakelin) Since April 2006.
268. Prior to that date I think you have been employed by the Broads Authority from May 1997, is that right?
(Mrs Wakelin) That is correct, yes.
269. First of all as Rivers Engineer, then Assistant Director of Fields Services and Waterways Manager and before that you worked as an engineer with Norwich City Council, is that right?
(Mrs Wakelin) That is correct.
270. You have a Higher National Certificate in civil engineering from Norwich City Council and have undertaken a number of specialist technical training courses during your employment with Broads Authority, is that right?
(Mrs Wakelin) That is correct.
271. What is your current role?
(Mrs Wakelin) As part of my current role I am responsible for ensuring that the Authority discharges its duties in relation to its navigation functions. This also involves national liaison with other inland navigation authorities to ensure a consistent approach in policy and regulation. As such, I am on the Boat Safety Scheme Management Committee, I advise the Association of Inland Navigation Authorities on technical topic groups and I also represent the Authority on the inland dredging and drainage network. At a regional level I represent navigation interests on the Environment Agency's River Basin Management Plan Liaison Panel and I also sit on the Environment Agency's Regional Fisheries Ecology and Recreational Committee.
272. I think you are going to give evidence on three matter: the giving and making of directions; safety standards for vessels; and the temporary restriction of the use of the navigation for recreational purposes, is that right?
(Mrs Wakelin) That is correct.
273. Before we do that, I want to come back to three matters which were raised in the recent cross-examination. First the Maritime Coastguard Agency. If the Committee will go to Tab 11, at page 4, the Maritime Coastguard Agency is listed as one of the organisations consulted on the Broads Authority Bill. Were they consulted in respect of the first and second versions of the Bill, that is before we even got to the deposited version?
(Mrs Wakelin) Yes, they were.
274. Tell me about your relations with the Maritime Coastguard Agency? What is their role and how does it impact on you?
(Mrs Wakelin) They are the national organisation responsible for maritime safety and also dealing with policy matters. You have heard earlier about the Port Marine Safety Code and they are the agency which ensures that that Code is applied to all harbour authorities. As such, we have to submit to them our safety management system for their approval and, in fact, were subject to a report that they produced in 2003 when the revised Code was put out which identified those harbour authorities who had not yet supplied that information, of which the Broads Authority was one.
275. In other words, they said in 2003 that you were lagging behind in not doing things which you should be doing under the Port Marine Safety Code?
(Mrs Wakelin) That is correct.
276. The things you are now trying to do in part through this Bill?
(Mrs Wakelin) Indeed.
277. The second matter, RCD, you will remember this point about the European Directive and how Dr Packman said that there was in any event a four year period which was set. Can you give chapter and verse of that to the Committee?
(Mrs Wakelin) Yes, certainly. Within our current Broads boat safety byelaws which came into force on 1 April 2007, which are at Tab 8, at page 6, Section 6, Sub-section 4, which identifies that these byelaws "... byelaws 6 (5)and byelaws 6(1)do not apply to any vessel to which the Recreational Craft Regulations 2004 apply and which at the time it was sold bears (or bore) the CE marking referred to in Regulation 8 of those regulations and in respect of which the owner of the vessel has produced to the Authority such evidence thereof as the Authority shall reasonably require". Then in Sub-section 5, that identifies that that exception shall only apply for the period of four years from the date at which the vessel was first sold. This is because the Boat Safety Scheme Provisions are referred to as the instillation elements of the vessel which are liable to deteriorate over time.
278. Thank you. So that will be the same if you get your new power under that Clause, the same provision would apply?
(Mrs Wakelin) That is correct.
279. The last matter is that matter which was understandably of concern to the honourable Member, Mr Duddridge, in relation to rescue boats. Do you regard it as necessary to have the provision for registering rescue boats?
(Mrs Wakelin) Yes, I do. Of the seven or so organisations that currently hold themselves out in the Broads and are providing this service, two of them have been refused by the MCA to be categorised as a declared facility. A third one was a group established by the users of one of the public houses within Norwich with the idea that they would be able to turn out immediately at 1:00 am or 2:00 am in the morning to patrol the River Wensum once they had concluded their evening's entertainment.
280. Do you think that there is sufficient of a problem? Is it just a Norwich problem?
(Mrs Wakelin) No, of the seven we have North Norfolk Coast, we have Beccles, we have Norwich and then there is another one also operating out of Brundle, so it is a wide geographic spread of volunteer organisations. Again, as Dr Packman said, we do not believe that this needs to be a heavy touch, but simply to ensure, for example, that appropriate RYA powerboat certification is in place so that we can be assured that the helmsmen are competent to perform their role and similarly that they have appropriate life-saving equipment on board because, again, unless they are using an appropriate vessel, it can be quite dangerous to try and pull somebody on board to a small dingy because of the potential for instability.
281. Let us come back then to the question of directions and let us start with special directions and this is Clause 6 of the Bill. As I indicated in opening, navigation officers have already got a power to give special directions under Part II of the schedules, it is Schedule 5 to the 1988 Act. Perhaps let us look that up, it Tab 3, page 43, beginning at paragraph 18, do you have that?
(Mrs Wakelin) Yes.
282. We can see in paragraph 18 (1), (a) to(g) are certain types of special directions which can be given. If we look now to the Bill itself, to Clause 6 (3), we move to a total of (a) to (i) incorporating everything that was in the previous Act that comes out of this Act and comes into here and some additional categories, is that correct?
(Mrs Wakelin) That is correct.
283. First of all, has the giving of directions under the 1988 Act given rise to problems? Have there been protests from people that they have been given the wrong direction or that it has been dangerous to give them directions and so forth?
(Mrs Wakelin) No, it has not.
284. So far as the new ones, which I think is really (e) to (i) on page 4 of the Bill, so far as those are concerned, are they matters which are going to be unique to the Broads Authority or are they matters which are precedented elsewhere, in other words other persons have these powers?
(Mrs Wakelin) Sorry, can I just clarify, (e) to (i) are you referring to the general directions or are we talking about special directions?
285. You are entirely right, I should have been looking to pages five and six in Clause 6 and (a) to (f) are basically the old ones, are they not, and it is (g) to (o). You have corrected me perfectly correctly, which are for the most parts the new ones?
(Mrs Wakelin) That is correct, yes.
286. So far as the new ones, that is (g) to (o), if we could look at them. Can you give us some sorts of examples where you would want to be able to use these new special directions?
(Mrs Wakelin) Certainly, yes. (g) did previously appear in part where the Authority had the opportunity to deal with unserviceable vessels, however we had found in the past that this was rather vague wording and so we have extended this to clarify that not only need it be somewhat more immobilised but that it was liable to become somewhat more immobilised or to constitute a danger to life or cause pollution. This was as a result of a recent incident which caused the Authority some difficulties over the last few years with a vessel called the Golden Galleon which was kept moored in Reedham. We had to call the fire brigade to it on a number of occasions as it was sinking. It was an ex-naval vessel, a gun boat. It would have been extremely difficult and costly to raise the vessel had it sunk within that area of the River Yare, which is quite deep and it also would have caused considerable pollution from the material within the vessel itself. We would prefer to be able to deal more pre-emptively with vessels of that type in the future.
287. What about (h) on page six?
(Mrs Wakelin) Again, there are issues here particularly regarding unsafe vessels where they are overloaded either with passengers or with cargo where we feel that it would be more appropriate to remove those vessels from the navigation area in order to allow any works necessary to be undertaken before they could re-enter.
288. (i), removing obstructions from the navigation area?
(Mrs Wakelin) Again, we have had a recent example with a dingy which was moored in the navigation area for the purposes of advertising a boat yard facility and it created an obstruction which we did not have sufficient powers previously to deal with.
289. Then (j) which is prohibiting mooring or anchoring of any vessels in any particular part or parts of the navigation area?
(Mrs Wakelin) Here we have an ongoing issue, particularly with barge mooring below the Potter Heigham Road Bridge. As you can imagine, the points at which a bridge crosses a river is usually a particularly narrow area in order to reduce the span of the bridge. It does mean that moorings in those areas can produce significant difficulties for vessels who wish to pass.
290. CHAIRMAN: Is your intention to go through every one?
291. MR GEORGE: It is the case of the Petitioners we simply do not need these powers. I am content to stop there, but if the Committee have any doubt, put it this way, I could go through the entire list to give instances of why we need it.
292. CHAIRMAN: Would you care to do just one more and then we will take it from there.
293. MR GEORGE: (k), we know at present there has not been much by way of cargo recently. Why do you need (k)?
(Mrs Wakelin) To clarify that point, firstly, although the commercial Port of Norwich has not been active since 1989 we have received fuel tankers up to a sugar beet factory to as recently as 2002; and we annually have enquiries from shipping agents enquiring as to whether or not that would still be possible. Additionally, we have works vessels which frequently carry bulk materials around the system, particularly aggregates; and we have had a number of occasions where those vessels again have been overloaded and have sunk in the navigation area. We would like to be able to ensure, firstly, that they are appropriately loaded, but also the areas where that loading takes place are safeguarded. Again, we have had damage occur at historic stays where the equipment used for the loading has been really too heavy for the quay headings. The surplus surcharge load impact has resulted in damage.
294. That is special directions, which is simply a question of extending an existing power. General directions is something that you have not presently got a power to give, albeit we know that Great Yarmouth Port has a power to give. Can we now turn to page 4 of the Bill and it is clause 4(3), where I inappropriately took you a few moments ago. First, a question in the generality: do you need, and would it be desirable, to have a power to give general directions?
(Mrs Wakelin) Yes, indeed it would. Currently the Authority has the power to give general directions only in the case of emergency, but there are a number of examples where, through the changing use of navigation area, again promoting new navigation byelaws is not always appropriate, particularly when we do tend to find that some of these issues can be short-lived, shall we say, and therefore a general direction, which would have to be annually reviewed for its ongoing appropriateness, we believe is a more modern way to handle these matters.
295. Let us just take a few examples. Let us just take (a) - (d) and leave out the rest of the list. Can you just indicate to the Committee how you might be proposing to use these, bearing in mind that you would first have to do all the consultation procedures which are in 4(2). Let us take (a) designating areas and fairways.
(Mrs Wakelin) As Dr Packman mentioned earlier on, the formal safety assessment that was undertaken as part of the requirement of the Port Marine Safety Code identified powerboat racing at Oulton Broad as an intolerable hazard. One of the mitigation measures, control measures to reduce that risk would be to designate or route or channel across Oulton Broad for the safe passage of other vessels whilst that racing was ongoing. That is something that we would like to pursue.
296. (b) securing that vessels move only at certain times or during certain periods?
(Mrs Wakelin) Again there is an opportunity here to restrict the nature of navigation. For example, hire craft are not currently permitted to navigate at night. If the Authority takes over the Braden Water area then we will need to extend those rules into that area.
297. (c) limiting the speed of motor vessels?
(Mrs Wakelin) Again, the Broads Authority currently has a set of speed limit byelaws which are geographically limited because each speed limit area is carefully set out in the schedule to those byelaws. However, they will not be extended to cover Braden Water, and that will be a significant gap in the regulation at such time that we take over transfer for that jurisdiction.
298. (d) acquiring the use of any equipment, including engines?
(Mrs Wakelin) Again there is a particular example here where we do have some historic craft on the Broads who like to navigate without an engine. It is a purist form of the activity. We have had a number of occasions over the last few years where those yachts have got into difficulty on Braden Water. Despite the fact that they are actually equipped with an engine they prefer to not use them if possible. That has resulted in navigation rangers, and also the Port Authority having to attend, which we do not feel is appropriate.
299. That deals with special directions, general directions, and then there is also I think directions which can be given in respect of the water skiing, is there not?
(Mrs Wakelin) That is correct, yes.
300. Can you just take us to where that is in the Bill. I think it is clause 29, is it not?
(Mrs Wakelin) Yes.
301. Why would you want to give directions under clause 29?
(Mrs Wakelin) Again, the new powers to allow us to manage water skiing or wake boarding will give us a much greater level of control, but there are particular directions that we thought also had to be included either to prohibit water skiing or wake boarding within a zone whilst another event is taking place; to prohibit water skiing or wake boarding within a zone in the event of an emergency; but also to potentially restrict the number of persons engaged in water skiing or wake boarding in a particular zone in the event that this is necessary to prevent congestion, or in the interests of safety.
302. A point raised by the chairman earlier on, can you just tell the Committee a little bit about the difference between water skiing and wake boarding?
(Mrs Wakelin) Certainly. Probably the best analogy is the difference between classic snow skiing and snow boarding. For classic water skiing you can be using either a mono ski or two parallel skis where the feet are attached parallel to the board. With wake boarding it is a single elliptical board where the feet are attached by bindings at an angle to the board. There are differences - the speed at which the towing vessel will travel; and there are also perceived differences about the amount of wash or wake created by the towing vessel. Wake boarding has increased in popularity significantly over the last few years, and there are vessels now which are specifically designed to maximise their wash in order to allow wake boarding to create a higher wake which gives you a better lift in the event that you then wish to carry out any jumping or manoeuvres.
303. CHAIRMAN: Is wake boarding still rather less fun than water skiing?
(Mrs Wakelin) We are finding in the Broads now that it is probably equal to and is likely to overtake it in the future.
304. MR GEORGE: Back to general directions - I think you have agreed with the Royal Yachting Association and the British Marine Federation certain restrictions as to how you will operate the clause (4) powers. Could we just look at tab 4, pages 2 and 3, just so the Committee knows the situation. This is all in addition to what is in the Bill in clause 4(2) for consultation. First of all, on paragraph 1 at the bottom of page 2, you are going to consult with a six-week period with RYA and BMF. Further, if you want to carry on there is a procedure for referring the matter to the Authority's Navigation Committee. Correct?
(Mrs Wakelin) That is right.
305. If the Navigation Committee does not support it the matter is to go off to the Inland Waterways Advisory Council?
(Mrs Wakelin) That is right, yes. In fact, in the event that either the Navigation Committee does not support it or that there are still unresolved objections from the national boating organisations, the matter would be referred to IWAC.
306. That then gives them the chance to have an opportunity for the Authority and the objectors to make written representations; then IWAC will express an opinion; and finally the Broads Authority have got to consider the objections in the light of the formal opinion of IWAC?
(Mrs Wakelin) That is correct.
307. Then (c), (d) and (e) are provisions where, so far as pleasure craft are concerned, the directions under (e) and (f) will not be used in respect of them. So far as 4(3)(f) is concerned, it will not be given to regulate pleasure craft; and (g) is the one where that will not apply unless it becomes the national requirement for masters of pleasure craft to be qualified?
(Mrs Wakelin) That is correct.
308. There are certain ways in which you have agreed to restrict the use of your powers unless circumstances change, in which case you would have to see if you could renegotiate that agreement?
(Mrs Wakelin) That is correct.
309. The last matter is that so far as the meaning of "reasonable time" is concerned which appears in clause 8, that is dealt with, is it not, in this agreement - tab 4, page 3, paragraph 2; in determining what is a reasonable time, there is there set out the sort of matters which will be taken into account. One would have thought you would have taken those into account in any event, but they are there set out?
(Mrs Wakelin) That is correct.
310. Turning to the Petitioners' points on this: first of all, Mr Sanders, he is very concerned about the relationship of clause 6 to clause 9 because he is worried that he will get a special direction, and clause 9 tells him that he is still ultimately responsible. He raises a complaint about that. Do you see any problem there?
(Mrs Wakelin) No, we believe that clause 7 makes it clear that offence is not committed if there is a reasonable excuse, a good reason for not doing so; and that it is appropriate that the master should retain control of the vessel.
311. I think clause 9 appears in various other Acts, does it not, including the Harwich Harbour Act of 1974, section 37, in exactly similar provision to section 9?
(Mrs Wakelin) That is correct.
312. Mrs Howes is troubled about clauses 4 and 6. She says that they are draconian and should be limited to commercial craft only. Would that be appropriate?
(Mrs Wakelin) We believe that they are included in the Bill for reasons of public safety, and we do think the protections we have written in give adequate reassurance.
313. So far as the special directions in the 1988 Act are concerned, they are not limited to commercial craft, are they?
(Mrs Wakelin) No, they are not.
314. Can you see any reason why, now that one is revising them, one should suddenly write in a restriction to commercial craft?
(Mrs Wakelin) No.
315. So far as speed limits are concerned, there is a suggestion that that should all be done by byelaws rather than by means of general directions. What do you say about that?
(Mrs Wakelin) Again, we do already have a set of speed limit byelaws. We have already heard about the difficulties and time involved in reviewing or revising those. However, it is not the Authority's intention at this time to create new speed limits other than that for Braden Water at such point as we take over jurisdiction for it.
316. Mr Williams says that these new powers for general directions are inappropriate for the Broads' waterways. Do you accept that?
(Mrs Wakelin) No, we do not. As I believe we have indicated, there are a number of examples of where we would seek to use these powers which are specifically Broads examples.
317. Mr Howes, and it is paragraph 2 of his petition, says you have already got the power to curtail navigation in certain circumstances. He refers to the closure of Reedham New Cut and the River Thurne under the Potter Heigham Bridge. He says you simply do not need the new power. What do you say about that?
(Mrs Wakelin) Within the 1988 Act there is a power to close waterways for the purposes of maintenance of the waterways, that is correct. So the works that Mr Howes mentions for Reedham New Cut or for the River Thurne was an example of that type of closure. However, we have been regularly requested by organisations, scout organisations, local district councils, charities and so on, who wish to host recreational events within the Broads area, particularly charity events, raft races and things of that nature, which the current time limits in the 1988 Act would not facilitate.
318. Mr Howes also makes the point that he is an experienced sailor and that he objects to your seeking new powers to close waterways in times of poor visibility or high winds. What do you say on that?
(Mrs Wakelin) Again, this particularly relates back to one of the agreements that we have with the RYA and the BMF. I would not dispute Mr Howe's ability to make a reasonable judgment about the conditions in which he chooses to navigate. However, the vast majority of craft which are traversing the Broads area - in excess of 60 per cent at any one time - are people using hire craft. They are very often novices. They do not have the knowledge or the experience to be able to judge those circumstances for themselves.
319. But you are not going to be able to make the special direction at page 4, under 4(3)(f) in respect of pleasure craft in any event, are you, unless you get the agreement of the Royal Yachting Association and the British Marine Federation?
(Mrs Wakelin) That is correct, although we do believe that this may be an area where in future, should there be any incidents, hopefully we will be able to renegotiate that point specifically for hire craft.
320. What is the particular problem for hire craft? Is it the inexperience of the persons involved?
(Mrs Wakelin) Yes.
321. That is all we need say about that matter. If we then move on to Mr Williams, he is very worried that you might give an unlawful special direction and that as a result of that there might be damage to your craft or to another craft. Is that any different from the position under the 1988 Act?
(Mrs Wakelin) No.
322. You would be liable at common law for any damage to vessels which arose out of an incorrect application of your powers.
(Mrs Wakelin) That is correct.
323. Safety of vessels, which is clauses 11 to 15. Clause 12, I think, sets out the mechanism for introducing the national boat safety scheme. We have been through this and the purpose is to ensure safety and prevent noise and pollution. Is that right?
(Mrs Wakelin) That is right, yes. It is primarily for fire and explosion. There are advisory provisions in there for noise and pollution.
324. Is it the nature of the national scheme that there are certain exemptions?
(Mrs Wakelin) Yes. First of all, as set out in the byelaws, it makes it clear that the boat safety scheme only applies to craft which are powered - have an engine. It applies to steam-powered craft and it also applies to vessels, whether powered or unpowered, which have cooking, lighting, refrigerating and other domestic installations, which involve either fuel or electrical installations. So all those unpowered craft which do not have any of those elements would automatically be excluded from the provisions of the boat safety scheme. Additionally, as we have mentioned, the boat safety scheme recognises the RCD for the first four years. The boat safety scheme also recognises any vessel to which a load line certificate applies under the Merchant Shipping (Load Line) Regulations. So sea-going craft also do not fall under the requirements of the boat safety scheme.
325. In the agreement, which is tab 4, you have agreed with the British Marine Federation and the Royal Yachting Association certain matters in relation to clause 12, have you not? Perhaps we ought to just look it up; it is page 4 of tab 4. Those are the terms of the agreement. Is that right?
(Mrs Wakelin) That is correct, yes. Again, the intention of the legal agreement is to clarify that the Authority intend to apply the national boat safety scheme, which is the currently published scheme applied by other national navigation authorities. We do not intend to develop a differing set of standards for the Broads area.
326. At (e) at the top of page 5, the Navigation Committee will be consulted about amendments, and (f) you agree to certain exemptions which are at appendix 1, and the Committee will find those at page 10. Is that right?
(Mrs Wakelin) Yes, that is correct.
327. At the end of the day, are you satisfied about the balance which has been struck, taking into account the terms of the Filled-up Bill and the improvements (?)?
(Mrs Wakelin) Yes.
328. I think it is suggested that in reality it is not going to make much difference to the present situation and that the safety case has been exaggerated. What is your comment on that?
(Mrs Wakelin) I think it is fair to say that the boat safety scheme is possibly misnamed in that it does relate strictly to matters relating to fire and explosion; it does not currently concern itself with matters of stability or hull integrity, for example. However, the Broads Authority has taken the view since 1995 that it was appropriate for the Authority to seek to apply nationally consistent standards. It benefits our toll-payers in that it makes their vessels more saleable to other navigation areas but, also, they can use them in other navigation areas. Similarly, we welcome visiting craft from other inland navigation areas which have the same certificate. There may well be a case in future for extending the provision of the scheme, and the Authority, through myself sitting on the management committee, and we also have members who sit on the advisory and the technical committees of the boat safety scheme, will have the opportunity to influence the future development of that scheme to address any new issues which should arise.
329. If we turn to the first page of the pages apart at the beginning of the Filled-up Bill, there are the new proposed additions 1(a), 1(b) and 1(c), and those all provide, do they not, for a considerable measure of consultation and publication before you could radically revise the existing boat standards.
(Mrs Wakelin) Absolutely. I think it is possibly also worth saying that we have been through a significant local consultation process through the development of the boat safety scheme byelaws which came into force on 1 April 2007. We first published those byelaws in the early 2000s (about 2002) with a proposed implementation date of 2005. However, due to various delays from the Department for Transport and to secure the agreement of our local organisations, that was delayed by a further two years. So that was part of the problem with timing. At that time we established a boat safety scheme working group which included representatives both of the Navigation Committee but, also, of other local organisations, including people like the Vintage Wooden Boat Association, to make sure that all of their particular concerns were taken into account. When the provisions of the boat safety scheme were then translated into the schedule which is appended to our byelaws, again, we went through that process in great detail with the result that we had no objections to those byelaws.
330. I instanced three cases when I was opening of difficulties in continuing to rely on byelaws: first of all, that if the boat standards were changed you had a whole new lot of byelaws; secondly, an instance where you want something additional to what was in the national standards, or, thirdly, the financial standards were no longer maintained. Are those all additional reasons why you need the Bill (?)?
(Mrs Wakelin) Yes, absolutely.
331. Come back to Mr Williams. Mr Williams says, in paragraph 12 of his Petition, he describes the provisions as being "variable". He objects to the variable nature of the provisions. Do you regard them as variable?
(Mrs Wakelin) No, I think, as we have described, we regard them as flexible, but we have given assurances that we will only vary the scheme in accordance with the national scheme; there will not be local variations, other than as allowed for through the standard appeals process.
332. The last matter is the closure of waters for recreational reasons. I dealt with that in opening this morning, and that is the new power you have got to set aside areas for up to six hours for particular functions. Could you just explain to the Committee why you want the new power? It is in paragraph 12 of schedule 6.
(Mrs Wakelin) Yes. As I mentioned before, we do get requests from time to time from various organisations asking if they can host an event within a waterway. The most recent of those, probably, is Beccles Raft Race, which is carried every year, but is usually limited for a maximum period of 20 minutes and does require the closure of the River Waverley. Given that we regularly receive requests of this nature we felt it was appropriate to seek these powers. However, we have agreed now to promote an amendment which would ensure that the power cannot be exercised in a way which would deny any vessel reasonable passage through a waterway. So the circumstances under which these closures, or partial closures, could be permitted will be subject to site-specific conditions in order to make sure that we can maintain a navigable passage around or through that event.
333. Does that deal with the point of Mr Howes who was concerned about the six-hour delay?
(Mrs Wakelin) It does.
334. Lastly, if we turn in the Bill to page 37 (almost the last page of the Bill) and down at line 36 to the bottom of the pages, there are various miscellaneous changes to the 1988 Act. Is it right that item 3 (that is the change to 12(1)) extends for the Authority the current powers to remove wrecks and abandoned vessels to cover unserviceable vessels?
(Mrs Wakelin) That is correct.
335. Why is that needed?
(Mrs Wakelin) Again, it comes back to this situation that in order to deal with a vessel at the moment we have to wait until it becomes technically more challenging and rather costly, whereas the "unserviceable" definition which has been proposed in the special directions would allow us to be more proactive in our approach to the management of the navigation area.
336. Then, down at the bottom of that same page, 37, there is a provision for you to recover all expenses reasonably incurred in respect of the raising, removal, storage, disposal or destruction of a vessel. That has not been objected to by anyone, but is it in your view in itself a reasonable provision?
(Mrs Wakelin) Yes, but I do not believe that toll-payers generally should have to fund the work carried out as appropriate simply to a single vessel.
337. MR GEORGE: Thank you very much indeed.
338. CHAIRMAN: Mr Campbell will have an opportunity to cross-examine but my colleague Jim Sheridan would like to put a question to you, not in relation to the evidence you have given.
339. JIM SHERIDAN: Throughout the consultation process draft copies of the Bill have been posted on the Authority's website, but there appears to be some ambiguity about the full and final Bill and whether or not that is posted on the website. Could you clarify the position?
(Mrs Wakelin) Yes. I can confirm that the final version of the Filled-up Bill has not yet been put on our website.
340. JIM SHERIDAN: Why is that?
341. MR GEORGE: Can I endeavour to explain, sir? The Bill as deposited is on the website. The later amendments and the Filled-up Bill all reduce the scope, by definition they have to reduce the effect, and this is a continuing matter, as different people raised issues, be it the Department or the Environment Agency or other bodies; right up to the moment when it reaches the Committee there are changes. If they were extending the scope, making a provision more objectionable, then they would have to be published because people would be entitled to petition against them as being alterations. Where they simply restricting the scope of something there is no requirement in any of the House procedures for anything more to be done than has been done, and it would, I think, be unprecedented to put a document such as our Filled-up Bill with all its manuscript alterations and so forth on the website. That is not to say it could not be done, it is simply that as a matter of practice it is something which, as far as I am aware, never is done, but I will ask my agent whether he ----
342. CHAIRMAN: I am happy to accept that explanation, although the fact that this has been done a number of times in the past - time has moved on and it may be helpful to Petitioners and others to see the final form of the Bill produced as it was at the time.
343. MR GEORGE: It was submitted to the Petitioners. They have had it for quite a long time.
Cross-examined by MR CAMPBELL
344. MR CAMPBELL: This is really, I suppose, a question for Mr George. You mentioned the agreement between the Water Skiers Association/Federation and the Broads Authority. It is not submitted with our documents. I do not have a copy of it.
345. MR GEORGE: There are various other legal agreements. It is highly unusual to put signed agreements before the Committee. If the Committee wished to see anything they can ask for it. It seemed to us that no one is petitioning against the Water Skiers provision, therefore it does not go to anything which was relevant. The matter which was relevant was the one with the Royal Yachting Association because one of the Petitioners raised the issue in relation to it and, therefore, we put that in the bundle.
346. CHAIRMAN: Mr Campbell, could you continue your cross-examination and avoid any conversation between yourself and Mr George, which we can handle in other ways.
347. MR CAMPBELL: Mrs Wakelin, you have said that hire boats are not allowed to operate at night. That is not the whole story is it?
(Mrs Wakelin) Would you like to elaborate on that?
348. Why are hire boats not allowed to operate at night?
(Mrs Wakelin) Because they do not carry navigation lights.
349. Correct. Where did that come from? Navigation byelaws perhaps?
(Mrs Wakelin) Yes.
350. Thank you very much. So in that respect at least they work quite well. I must say I am marginally confused by your answers on general directions. You said in reply to Mr George's questions that it is essential that you have general directions for all traffic and yet at the same time the Broads Authority has signed an agreement with the RYA which reduces it to leisure traffic. On the other hand I hear that actually you really want to control hire boats.
(Mrs Wakelin) If I can clarify, there are a number of general directions included within the scope of the Bill. On only two of those have we agreed with the RYA and BMF that it should be restricted to commercial vessels and we have agreed with the RYA and BMF that that should be held within the legal agreement and not on the face of the Bill because they accept that there may be a situation in the future where that is demonstrated not to be appropriate. I should say that the Broads Authority were resistant to agreeing to that clause with the RYA but it was part of our negotiations at that time, in order to secure the agreement.
351. Were you aware that there is already a red light and has been for a long time on the A47 bridge in Yarmouth to stop navigation?
(Mrs Wakelin) Yes. I am also aware that the Great Yarmouth Port Authority do not operate it in times of poor visibility or bad weather, and indeed have asked the Broads Authority to patrol the area, and we have on a number of occasions sought to turn back hire vessels which were not only crossing Breydon at a time when they can neither see where they are going nor pass through the low bridges but were also proceeding seawards into that area and would have got to the North Sea had our navigation rangers' vessels not pursued them and stopped them.
352. At the bottom of the junction of the Bure mouth there is a place called Bowling Green Quay, which years ago used to be where the Breydon Market guns looked at the wild fowl coming in. It had occasional commercial traffic on it from the port of Great Yarmouth and when there was a ship coming in they shut the navigation in that part of the river. The light is still there. There seems to be no reason at all why it could not be operated in bad weather.
(Mrs Wakelin) Absolutely. The Broads Authority currently is not responsible for the area, the port authority chooses not to, and one of the things that we have found is that hire craft do not understand navigation lights or signals and therefore need to be spoken to. The hire industry, particularly the Broads Hire Boat Federation, are extremely keen on and indeed most grateful to the Broads Authority for securing the safety of their vessels and their customers.
353. MR CAMPBELL: Thank you very much, sir.
354. CHAIRMAN: Is that the end of your cross-examination, Mr Campbell?
355. MR CAMPBELL: Yes, it is finished, thank you.
356. CHAIRMAN: Mr George, do you wish to re-examine?
357. MR GEORGE: No re-examination.
358. CHAIRMAN: In light of the fact that we are so close to the end of the session I think it would be sensible to start tomorrow's session with Mr Campbell; I hope you agree that that is appropriate. Tomorrow morning we shall be sitting from 10.45 to 11.45 and a much longer session in the afternoon from one potentially until 4.30, so we look forward to seeing everyone here at that time.
Adjourned until tomorrow at 10.45 am