The council alleged that the boats were used for habitation unrelated to the navigation or incidental use of the canal. It accepted that some boats were moored on the canal for lengthy spells but said the appeal boats were occupied for long periods outside of time spent cruising.
The appellants claimed that the boats were used as a form of "home mooring". They relied on another inspector's ruling that this was akin to a storage use similar to parking cars on the road when not in use. They stated that berthing of boats and occupation while not cruising was an intrinsic part of the canal's character.
The inspector concluded that home mooring is not truly ancillary to navigation. Keeping a boat moored while not cruising was likely to attract trips and activity through routine checks and maintenance and was not genuinely akin to parking a vehicle, he held. In his opinion, the allegation should be amended to refer to the creation of a mixed use including the permanent residential use of two boats unrelated to navigation.
In examining whether a material change of use had occurred, he decided that a 600m stretch of canal formed the correct planning unit because it was the only part of the waterway where significant numbers of boats were moored. Whether berthing and permanent residential occupation changed the area's character was a matter of fact and degree, he held.
He referred to Thames Heliport v London Borough of Tower Hamlets (1997), where the court held that an examination was needed of whether anything had changed which was capable of being material from an environmental point of view. Although the council objected on sustainability grounds, claiming that occupiers of the houseboats would need access to shops and other facilities, he saw little evidence that permanent residential use had materially added to traffic and general activity in the context of the planning unit as a whole.
Residential occupation might lead to additional demand for welfare, education and medical care, he acknowledged. In his view, however, permanent residential use of the two vessels was not so significant as to have triggered a material change. He accepted that it might be a different matter if all 80 of the boats on the canal were so used.
DCS Number 100-069-319
Inspector John Murray; Inquiry