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Folkestone & Hythe District Council (20 003 335)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 26 Feb 2021

The Ombudsman's final decision:

Summary: Mr F complains about the Council’s refusal of his application for a licence to use his electric boat on a canal owned by the Council. He complains about its inconsistent approach, as it has granted a licence for one electric boat. There was no fault by the Council. It has valid reasons why it wants to restrict use of the canal to non-motorised boats. And it has given reasons why its view is it can make an exception for a Council owned boat.

The complaint

  1. The complainant, whom I shall refer to as Mr F, complains:
  • the Council refused his licence application for use of an electric boat on the Royal Military Canal. But it does not have any policy to base its decision on;
  • there is an established precedent for granting a licence – the Council grants a licence to an electric boat operated by its commercial partner. So the Council’s decision was arbitrary and inconsistent. It unfairly favoured its commercial partner over the recreational interests of residents;
  • the council has no body overseeing the application process and no appeal mechanism.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr F;
    • made enquiries of the Council and considered its response;
    • spoken to Mr F;
    • sent my draft decision to Mr F and the Council and considered the comments I received.

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What I found

Background

  1. The Council owns a section of the Royal Military Canal (which I shall refer to as the Canal), that is classified as a Scheduled Ancient Monument (SAM).
  2. The Council says it has a well established procedure for issuing seasonal licences for non-motorised vessels to use the canal. The Council’s Licencing Team publishes a factsheet: ‘Royal Military Canal Information – Non-powered Boating and Canoeing in the Canal in Hythe’. This advises that (non-powered) boating users of the Canal need a licence.
  3. The Council says a former Councillor had purchased an electric boat, using a ward grant, for use as a tourist attraction.
  4. The Council’s Scheme of Delegation says chief officers can discharge all the Council’s functions, except for matters specifically reserved for elected members. Most operational decisions are delegated. This includes the issuing of licences.

What happened

  1. In the summer of 2020, Mr F made an application, and paid a fee, for a licence to use his electric boat on the Canal. The Council advised Mr F it only issued licences to non-motorised vessels. It asked Mr F if he would like to carry on with his application.
  2. Mr F queried the Council’s response. He asked if it had any policy for issuing licences. He also noted the Council had granted a licence to an electric boat operating commercially on the Canal. So the Council had a precedent for granting a licence to a motorised boat.
  3. The Council responded, including through its complaint procedure. It advised Mr F it would not change its well established process of only granting licences for non-motorised boats. It offered to cancel his application and refund his fee.
  4. As a result of Mr F’s contacts, the Council has changed the information on its website to clarify that it only grants licences to non-motorised vessels.
  5. Mr F complained to the Ombudsman. In response to our enquiries, the Council advised:
  • Its ‘…overarching management objective for the Canal is preservation of the integrity of the Canal as a SAM’.
  • That was why it strictly limited use of vessels on the Canal.
  • ‘Allowing electric boats could create excessive wash which would have the potential to damage the banks of the Canal. Furthermore, the Canal is currently suffering from an invasion of floating pennywort. Motorised boat use would be likely to exacerbate this problem. This invasion is currently being managed by the Council. Motorised boat use is not recommended as if a motorised boat went through this weed it may cut up small bits which could then float in the Canal and hasten the spread.’
  • In contrast, the Council owned boat has a more limited and controllable impact. The Council had bought a boat that was designed to produce a low wash (so minimising its negative impact). And the licence it grants for this boat controls its use, including specifying a maximum speed of travel.
  • The Council’s electric boat opened up the Canal to disabled residents and visitors.
    • It confirmed it did not have an appeal process for licence applications. And no Committee was involved in the operational decisions about licence applications.

Analysis

  1. The Council has a clear discretion to decide as it sees fit when issuing licences. It has given cogent reasons why it decides to restrict access to the Canal. I see nothing that would lead me to question that approach.
  2. Although the Council does not have a written policy on these licence applications, it has sent me some information that it gives to applicants. This states the licences are for non-powered vessels. The Council says this is its well established practice.
  3. Mr F cites the electric boat that operates on the Canal, as a precedent. The Council has provided reasons – the boat’s design and the way it places limits on its operation – why this boat has a more manageable impact. It also cites its status as a tourist attraction.
  4. The Council’s explanation of why the commercial boat is more manageable provides a reason why granting this a licence does not set a precedent. And councils often need to balance conflicting interests – here protecting the SAM against providing an attraction. So I cannot agree with Mr F about the significance of the Council’s own electric boat.
  5. I understand that, since the events covered by this complaint, the Council has amended the information on its website to now make clear it will only issue licences to non-motorised boats. Any injustice to Mr F in not having this information before, is remedied by the Council’s offer to refund his fee.
  6. I do not agree with Mr F that the application process needs oversight by a Council committee. The Council’s Scheme of Delegation says operational issues, such as issuing licences, are functions it can delegate.
  7. There is no statutory need for the Council to have an appeals’ process for licence applications. Applicants who disagree with a decision can complain, with the Ombudsman having some independent oversight of decisions. This is what Mr F has done. So not having an appeals’ process does not amount to fault.

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Final decision

  1. I do not uphold this complaint, as I see no evidence of fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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