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NigelMoore

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NigelMoore last won the day on November 10 2016

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  1. I think that is unfair Gordias. BW had a very clear idea of what was needed, and it has to be admitted that most of the mooring clauses they asked for – to address exactly your identified concerns – were administratively desirable. The problem was that they wanted to create criminal offences for breach of the desired statutes [presumably this would have been possible with appropriate wording, whereas byelaws automatically create the offence]. That was the sticking point for the Select Committee, who strongly objected, realising that once law, abuse by the authority of their powers was always a possibility. What I do not understand is why BW did not amend the Bill to meet the Committee’s concerns, instead of pulling the mooring clauses altogether, while muttering darkly about the significant problems they presciently saw arising for lack of them. It remains possible for CaRT to introduce these clauses as new byelaws should they really wish – and Nigel Johnson had drawn up a completely revamped set of draft byelaws that included almost word for word, the rejected mooring clauses of the 1990 Bill – but my suspicion is that for so long as they can get away with the more violently aggressive assertion of powers to revoke licences for breach of what they arbitrarily incorporate within T&C’s, they will not bother; they are evidently happy with wielding so large a stick, and most boaters seem happy enough for them to do so.
  2. The average costs of their routine s.8 court cases between 2012 and 2017 [excluding a few oddball cases where no specific costs were awarded, and the expensive specialist cases of Mayers; Horne; Moore, and Ward] were: £1,175, accounting for 37 cases. The usual costs are under £1,000, though even in the list I used, a couple of cases reached £4,500 to £6,800 for inexplicable reasons, upping the average. Removing those would give a better average figure of: £918. On the few occasions where boaters have fought the issue, costs have escalated to £50k; £100k, to £250k [with an additional court order of costs against them]. Bear in mind that these are the legal costs only, where liveaboards are involved. The standard cost of actually removing and storing boats, whether nicked with or without court orders, is £5,500 – only recoverable through an eventual sale if the boat is worth considerably more, unless the boater is prepared to cough up in order to retrieve their boat – but only 9 boats were retrieved in the same time period, out of the several hundred that were seized [most without court orders]. According to CaRT any boat worth under £3,000 is simply destroyed [which will cost yet more], and it follows that any boat above that value that cannot fetch more than about £6,000 will result in a net loss. A perhaps extreme case is that of Mayers, which cost in excess of an irrecoverable £100k at court, plus £10,135.20 in removal and 6 weeks storage costs [rising at £72/week thereafter], while the asking price at one stage, when CaRT eventually put “Pearl” up for sale, was less than £4,000. I have no knowledge of whether they even got a sale at that price. A Small Claims court fee [where sums were actually owed, as would apply to an unlicensed or unregistered boat] would range from £25 to £455, and could be pursued by salaried legal officers at no extra cost. A prosecution for a byelaw or statute offence carries a court cost [according to one site I looked at] usually fixed at £125, and again, the case can be presented by appropriately qualified in-house salaried employees from the legal department. So from any perspective, removal of boats, even without using the courts, is hugely more expensive than the alternative court routes to enforcement, the court costs being recoverable upon successful conviction.
  3. Arguably £100 is at least commensurate with roughly equivalent ‘parking’ fines. On top of which there will a Court Order for CaRT’s costs, and a recorded criminal offence. I daresay that CaRT could follow the example of highway authorities, and offer the opportunity of paying half to them, rather than face the full fine upon conviction - then CaRT would at least get £50 a pop.
  4. Here, I do not see the problem. Prosecutions are routinely brought against unregistered boats by the EA, using the same powers as BW/CaRT. Their success rate over the years since their 2010 order to date, is 259 successful prosecutions out of a total 324 [38 cases were withdrawn because it was found that boat was registered after all, or there was a plea bargain, mistaken filing, or no evidence, while 27 cases resulted in quashing or a not guilty verdict]. Fines ranged from £50 to £2,000.
  5. There are other byelaws Gordias, but specific to certain waterways only, so not germane to this discussion. You are correct: there are no byelaws referencing mooring duration, but there is No. 32 respecting obstruction of towing [which any moored boat makes difficult] and there are both the 1983 Act clause concerning obstruction, and the 1995 Act clause making dangerous obstruction a very expensive offence. The 1995 Act s.18(1) provides that obstruction renders a boat a relevant craft for the purposes of s.8 [which seems rather redundant in view of the fact that s.8 already so said]. BW successfully argued once at least [in the Birmingham County Court in 2001], that overstaying at designated visitor moorings comprised obstruction, having written to the overstaying boat owner on a designated 24 hour visitor mooring: “If you fail to do so [leave the mooring immediately] I will use s.8(5) of the British Waterways Act 1983 to move your boat to prevent it causing an obstruction to the mooring.” Leaving aside any argument over the ability to so designate short mooring times, this is a straightforward and appropriate response to the situation. They did in fact physically move the boat off the mooring [twice], and part of Mr Taylor’s claim was that there were not entitled to do this. If the time limit was lawful, then he was wrong; they were perfectly entitled to do this. It would follow that certainly any stay beyond 14 days would [absent reasonable justification] be an unlawful obstruction that could be dealt with as BW did do with Mr Taylor – simply move him off. They do not even need to give notice, though they did do so [sensibly]. The judge’s comments were: “I have to consider whether it was an obstruction. Subsection (5) allows the Board to remove a craft without notice if it is an obstruction. That subsection does not say “obstruction to navigation”. The Board say that it was an obstruction to people who wanted to use or might want to use those particular moorings. Because the wording in the subsection is not limited to obstruction to navigation, I construe it as meaning an obstruction to any person who was lawfully wanting to use the inland waterway. Therefore, if it amounted to an obstruction to moorings, my finding is that the Board would have been entitled to exercise that power and remove it without notice.” The only downside so far as BW were concerned, was his finding that they could not charge for the cost of moving him off. So long as a boat is not creating a danger, then no financial penalty attends the obstruction under either the 1983 or the 1995 Acts. If I were in CaRT’s shoes, faced with a persistent offender, then I think I would apply for a court injunction forbidding repeat of the offence, on pain of contempt of court and such fines as the court in its discretion imposed. A potentially viable alternative would be [using the above judgment to establish the principle of overstaying equating to obstruction] prosecuting for a byelaw 32 offence.
  6. Apologies - where I got that date from I don't know. Fortunately Leigh rang to remind me that it is this coming Monday morning, the 24th.
  7. What problems do you see with the means CaRT currently have, Gordias? The EA have much the same legislative ‘means’ as do CaRT, and find them efficient tools for regulation [although it has to be admitted that at times they bypass them also]. If you read CaRT’s Amended Defence in the Ravenscroft case, you will find a comprehensive list of all the reasons CaRT allegedly believe the prescribed tools for enforcement to be useless, yet as was pointed out at trial by reference to the EA published statistics of enforcement, the EA choose [as respects boat registrations anyway] the same tools as CaRT have but dismiss as inadequate. Discussion of the two opposite approaches with the legal officer and CEO of the Middle Level Commissioners had them evincing perplexity that CaRT make the choices they do – not for any ‘moral’ reasons, but on purely practical and economic grounds. My own position is that CaRT do not need ‘better’ legislation; they need better management personnel, with a fresh new ethos, prepared to honour better relations with their clientele and mission statements, in deeds rather than words alone, applying their existing legislation for the purposes it was designed for. It is purely a question of choice.
  8. Any challenge to either a particular objectionable condition, or refusal/revocation of a licence for breach of a non-s.17 condition, or for refusal to sign to agreement to them, would have to follow relevant action on CaRT’s part. Any individual placed in that position could do as advised by the Pierret judge and bring a Judicial Review, or as appropriate, file their own Claim [or Counter-Claim if CaRT got in first]. I am personally very cynical about Judicial Reviews in the Admin. Court; the relationship between government and court in that division is too cosy for comfort, for all the occasional successes in matters that do not involve strong criticism of an authority [a friend of mine is frequently successful with Judicial Reviews over Planning decisions]. It needs to be remembered though – just because you are right, does not mean that you will win! I would certainly advise against anybody deliberately provoking a situation simply in order to challenge CaRT’s stance on this issue. I venture to suggest that nobody knows better than I, the perils of relying on the courts to make decisions against the authority. It is a rare breed of judge who is prepared to do so, at any level; they exist, but you cannot count on getting one of them. Any potential litigant needs to think very long and hard before making a grab for that tiger’s tail; you can be assured that you will need to hang on grimly for years on end, and need to have the stomach and resources for the fight. It should not be that way, but reality must be faced. Most boaters lick their wounds after the first [almost inevitable] County Court finding against them, and give up fighting in the legal arena there and then, whether supported by Legal Aid lawyers or not. We really could do with some more Judge Pugsley's!
  9. The last paragraph of my previous post above answers that to the contrary, does it not? Even if CaRT had been correct that conditioning of the licence was potentially possible by reference to s.43 of the 1962 Act, s.17(3) of the 1995 Act has precluded reliance on that, with the sole exception being the provisions of the 1971 Act as amended, which is the only enactment prior to 1995 relating to conditioning a consent; anything prior to 1971 [notably that of 1962 which makes no reference to consents at all, and could not have done so by reason of the then universal PRN’s] however interpreted, is specifically precluded from being used as a reason to refuse a relevant consent. Even without s.17(3), the later Act would have the effect of an implied repeal [supposing CaRT's interpretation of s.43 was correct], by reason of the former being incompatible with the latter. It is worth repeating the view of the Transport Ministry's legal view in 1970, that s.43 powers could not apply to boat licences anyway.
  10. I chose my wording carefully Iain. I remarked only upon the situation with a ‘licence’, which is but one of the classes of ‘relevant consents’. Section 9 which you quote does not contradict, directly or otherwise, my statement regarding the limited conditions attendant upon a licence, because the only ‘relevant consent’ to which that section can apply is that of a ‘houseboat certificate’, which is emphatically NOT a ‘licence’. ALL ‘relevant consents’ are subject to the 3 criteria of s.17(3), but the ‘houseboat certificate’ [alone], is ALSO subject to both specific statutory and unilaterally drafted terms and conditions, as empowered under the “other enactment” of 1971 and confirmed in s.16 - (1) A houseboat certificate issued or renewed after the passing of this Act under the Act of 1971 shall, unless the certificate or some other document referred to in the certificate provides otherwise, be subject to the general terms set out in Schedule 1 to this Act in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971. (2) The Board shall on demand provide a copy of the general terms for the time being in force under this section to any person requiring the same and to the holder on the issue or renewal of the certificate. (3) A houseboat certificate shall contain or refer to some other document containing the general terms and any conditions to which it is subject. Nor does s.9 contradict s.3, which while saying that regardless of any other enactment the Board are obliged to issue relevant consents if the 3 listed criteria are met, explicitly excludes any express former statutory power of refusal of such a consent [such consents and their attendant conditions only becoming law post 1971]. One could reasonably use s.3, on the other hand, to counter CaRT’s claimed ability to refuse ‘licences’ on the basis of non-agreement with T&C’s applied under the alleged powers of the enactment of 1962 – even IF that enactment had the breadth of application claimed for it!
  11. It is actually very odd that they insist on this, given the administrative burden and legal costs so pointlessly assumed. I can only imagine it is the accepted cost of bolstering their alternative “bona fide for navigation” interpretations. The essential point of the legislation was to ensure that boats were not left unattended in places which ought to kept available for all in turn as a public facility. It does not matter what route is taken to obtain the licence in the first place – any licensed boat may be kept at any place other than its declared ‘home mooring’ for as long as they like, provided only that it also, is a place where a boat “may reasonably be kept and may lawfully be left”.
  12. The comments by the previous Waterways Ombudsman are very much to the point in this respect – “British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case”. [page 16 of her 2010-2011 Report] http://www.waterways-ombudsman.org/media/1016/annualreports201to11final.pdf CaRT’s submissions to the Mayor of London’s Report on mooring problems in London contains the accurate admission: “People enjoy the right to put a boat on our waterways, providing that they pay the necessary fee, that the boat meets safety standards and has insurance cover for third party liabilities – and that, unless it is used ‘bona fide’ for navigation throughout the period of consent, it must have a home mooring (somewhere where the boat ‘can lawfully be kept when not being used for navigation’2 ).” https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/Combined responses_Part1_0.pdf [see page 10] This was more explicitly enunciated in CaRT’s “Overview of statutory framework”, page 6, which acknowledges clearly enough: – “The British Waterways Act 1995 limits to three specific criteria our ability to refuse to licence a boat.” [my emphasis] https://canalrivertrust.org.uk/media/library/1127.pdf They go on, however, in their submission to the GLA, to inaccurately claim [in effective contradiction of the above quoted public statement] that revocation of the licence with subsequent s.8 removal “is the only sanction available to us in respect of a breach in licence terms.” [page 12 of the GLA Report pack on Responses in the link above] Insofar as any breach of non-statutory terms can naturally have no sanction applicable, this would explain the s.8 process chosen - albeit with no legal justification whatsoever - while any breach of approved byelaws etc contains within the legislation the accompanying legislated sanction – which does NOT include revocation of a licence. If a sanction is not legislated for, then the claimed legal outrage does not exist and such T&C’s are – as acknowledged to Parliament by BW in the debates over the 1990 Bill – mere guidance without the force of law. Revoking a licence can only be enabled upon breach of the s.17 conditions, exactly as, admitted by them above, refusing a licence can only be enabled by failure to meet those conditions. In short, where the 1995 Act has expressly limited grounds for refusal/revocation of a licence to 3 specific conditions, then the issue of the licence CANNOT legally be subjected to compliance with anything else. Where, under byelaw making powers passed on to CaRT by the terms of their Statutory Instrument, conditions of use of the waterways by licensed boats may still be added to, the relevant statutory procedure must be followed – but those, as with existing byelaws, could only govern use of the waterways by licensed boats, they could never be tied to issue or revocation of the licence. Any attempt to portray them as something issue and retention of the licence is subject to, is blatant falsehood. The law quite simply does NOT permit T&C’s to be attached to issue of the licence, therefore the asserted contrary statements and actions are indeed unlawful. When elements of these T&C’s specifically claim to over-ride express statutory protections and prohibitions, the legal affront is all the more objectionable.
  13. That is an awkward question as posed, simply because NO “enforcement” - as in direct legal action - has ever taken into account the reason why a boat does not have a licence [or certificate]; CaRT simply rely upon the lack of the licence/certificate to justify a s.8. Tony Dunkley’s case was specific as to the failure to abide by T&C’s being the reason for revoking the pleasure boat certificate, but even so, the reason was peripheral to their lodged County Court Claim, which was withdrawn in any event, later on. It only surfaced because Tony successfully challenged the Part 8 process and filed a detailed Defence. If we leave aside s.8 Claims, and ask whether there has been any “enforcement” [as in legal action] for alleged breach of T&C’s “on its own”, i.e. outwith an accompanying s.8 Claim, then the answer is a clear NO. While unilaterally imposed T&C’s have no force in law [so no direct penalty is imposable], those that incorporate byelaw provisions ARE enforceable through Magistrates Courts, but not a single breach of those has ever been prosecuted by CaRT. So the question as phrased leads to a misleadingly slanted answer; unquestionably alleged breaches of T&C’s lies behind virtually ALL s.8 cases, notably commencing with Paul Davies. The more specific question you pose as to whether action has been taken against a boater with a home mooring for breach of T&C’s, is likewise answered by the Dunkley example, for all that a distinction is sought between his situation and those on canals [for reasons that escape me entirely]. To summarise: nobody, with or without a home mooring has ever been “done” directly, for a breach of T&C’s; boaters who have allegedly breached T&C’s, whether with or without a home mooring, have been “done” by way of refusal or revoking of the licence/certificate because of the alleged breach. It amounts to the same thing in the end, for all practical purposes – certainly so far as the boater is concerned.
  14. The whole “houseboat” issue is one which CaRT have very mixed feelings about. On the one hand they would be happy to dispense with them altogether – and have allowed them to be whittled down to 80 or less at last count I know of – because of what they see to be onerous obligations over security of tenure and the legal requirement to pass on the benefits to subsequent owners - yet they find it useful to arbitrarily re-classify any pleasure boat as a houseboat for the purpose of s.8 litigation. However absurd the result, it ties in neatly, for them, with the messy definitions within the 1971 Act, wherein houseboats are classified as [inter alia] anything that is not bona fide used for navigation. Hence, on their argument, once a boat can be said to no longer being so used, it becomes a houseboat – automatically non-compliant with the mandatory T&C’s applying to those. All a bit clever when you stop to analyse it.
  15. We can be confident that no binding court ruling to that effect has been made. The closest finding to the contrary, would possibly be that of the County Court Judgment in CaRT v Pierret in the beginning of this year. That was not quite the scenario of your question, because it did not deal with any breach of conditions, rather it concerned the refusal of CaRT to issue a licence on the grounds that the applicant refused to sign agreement to the T&C’s. Sadly – the boat owner being uninformed as to how this country’s law courts operate – no Defence was filed [only an ‘affidavit’ unseen by the judge], and as per usual, the Part 8 procedure followed, together with the framing of the Claim, meant that the only question arising was whether the owner possessed a required licence or not. As to the representations that the judge allowed the owner to make orally, the court response was that he ought to have signed under stated duress, and subsequently brought a Judicial Review of the decision. So there exists no relevant finding either way to date. Reference to the issue was made in the course of the Ravenscroft arguments [responding to one of the specious reasons given by CaRT as to the alleged uselessness of following statutorily prescribed remedies], but that was a side issue that will not be decided upon in the imminent judgment.