CRT being sued in the High Court for misuse of Section 8 rule

[Alan de Enfield]

1 minute ago, Bod said:

Am I right in thinking that when BW, was transformed into C&RT, the government washed their hands of the waterways, save for a reducing financial contribution.

Therefore no ministerial evolvement is now possible.

 

Bod 

 

This may help you :

All the details of the transfer along with 'responsibilities'.

 

Canals-rivers-trust-settlement.pdf

[efanton]

29 minutes ago, Alan de Enfield said:

Maybe as the original thread on this subject was 'blocked / removed' during a period of 'problems' you are not actually aware what the issue is.

 

The current case is (getting down to the nitty-gritty) , the fact that the 'law' states that a licence is not required, and that C&RT have decided that they believe a licence is necessary.

It is nothing to do with moorings. Moorings are a 'problem' but not in this case - your proposals would be better placed in a new thread.

thanks for the clarification

I did read pages and pages of this thread (and the previous one) but gave up after reading 20 odd pages as it seemed to be arguing about fine details and I lost the point of the main topic.

And with that I agree,  my comment probably is better suited to a different thread. 

Having said that surely they are tightly related.  Why would anyone moor on a river prone to flooding or certainly rising and lowering  waters, more or less permanently,  if not to avoid paying a license? Do these people use no services at all?  I take it they wash occasionally (and not in river water) and still require sanitation services unless they empty their toilet cassettes or porta potties directly into the river?

 

Edited May 20, 2017 by efanton

[efanton]

24 minutes ago, Alan de Enfield said:

This may help you :

All the details of the transfer along with 'responsibilities'.

 

Canals-rivers-trust-settlement.pdf

the link appear not to work.

[rusty69]

Just now, efanton said:

the link appear not to work.

Works for me

[NigelMoore]

42 minutes ago, efanton said:

I find this whole topic completely baffling to be honest.  Not owning a narrow boat nor having lived on one but wishing to do so in the future it strikes me the real issue is not about licensing but should be about moorings. 

 

The Ravenscroft case has nothing to do with moorings [he was moored to private riparian river property and over private riverbed; nothing to do with CaRT whatsoever and they did not assume so]. Neither has it anything to do with licensing [although CaRT seek to portray it as such]; licensing is not mandatory on the rivers, and only a registration requirement is laid down for selected sections of those.

So far as it affects the generality of boaters, it has to do with the appropriate use of s.8 powers. CaRT, as BW before them in their last decades, use s.8 as the sole enforcement power for anything they do not like, whether a boater is in genuine breach of the law or not.

This case makes the point that s.8 is the last-ditch resort in circumstances where a boat is left on the waterways without lawful authority – and where that is determined by legislation, the same legislation provides for specific remedies. Those specific remedies are NEVER pursued by CaRT; they should be.

It certainly affects the vexed question of income, because this preferred sanction chosen by CaRT involves them in mostly irrecoverable costs of some £5 grand minimum per seizure, with no recovery of any fees owed, and the removal of hundreds of customers who should be made to pay [if required to do so under law]. It is not just current fees that are lost, but all potential future fees.

To date, of course, they HAVE sought to [in some cases successfully] recover fees through this process. They have had to admit now, since the exchange of pleadings in this case, that this is illegal. They understandably do not want any Court Order as to that, because otherwise the main point of s.8 as wielded by them is lost. Even with a Court Order, history demonstrates that they will continue to rely on widespread ignorance, but the risks of failure will be higher.

[Alan de Enfield]

3 minutes ago, efanton said:

I take it they wash occasionally (and not in river water) and still require sanitation services unless they empty their toilet cassettes or porta potties directly into the river?

Yes - it is completely legal & acceptable to empty the toilet into the River Trent (which is the river involved)

I think you may be getting a little confused between canal & River legislation.

[NigelMoore]

And to be specific respecting the details of this case, the boat was not a live-aboard; it was a small pleasure boat being renovated for re-sale.

[efanton]

13 minutes ago, NigelMoore said:

The Ravenscroft case has nothing to do with moorings [he was moored to private riparian river property and over private riverbed; nothing to do with CaRT whatsoever and they did not assume so]. Neither has it anything to do with licensing [although CaRT seek to portray it as such]; licensing is not mandatory on the rivers, and only a registration requirement is laid down for selected sections of those.

So far as it affects the generality of boaters, it has to do with the appropriate use of s.8 powers. CaRT, as BW before them in their last decades, use s.8 as the sole enforcement power for anything they do not like, whether a boater is in genuine breach of the law or not.

This case makes the point that s.8 is the last-ditch resort in circumstances where a boat is left on the waterways without lawful authority – and where that is determined by legislation, the same legislation provides for specific remedies. Those specific remedies are NEVER pursued by CaRT; they should be.

It certainly affects the vexed question of income, because this preferred sanction chosen by CaRT involves them in mostly irrecoverable costs of some £5 grand minimum per seizure, with no recovery of any fees owed, and the removal of hundreds of customers who should be made to pay [if required to do so under law]. It is not just current fees that are lost, but all potential future fees.

To date, of course, they HAVE sought to [in some cases successfully] recover fees through this process. They have had to admit now, since the exchange of pleadings in this case, that this is illegal. They understandably do not want any Court Order as to that, because otherwise the main point of s.8 as wielded by them is lost. Even with a Court Order, history demonstrates that they will continue to rely on widespread ignorance, but the risks of failure will be higher.

In which case why is a judge even allowing the case to continue?  Surely if the waterbed and banks in question are privately owned it would be a case of trespass, and only the land owner could bring a case if he did not agree to the boat being moored. 

Why would the CRT risk spending so much money paid in legal fees on a case that appears on the surface of it to be so flimsy?

If the CRT do not have ownership or custody of the rivers who does, and why are they not involved in the case?

 

[WotEver]

36 minutes ago, rusty69 said:

Works for me

Me too. 

[Tony Brooks]

I think that you will find that BW & then CaRT have for years been trying to enforce licensing and mooring bylaws by a misuse of   a section of those bylaws. So far boaters have felt unable to afford the cost of challenging BW and then CaRT through the courts. Its cheaper, less hassle and easier all round to simply do what CaRT wants or let them have your boat. It must also be said that courts tend to favour organisations like CaRT and believe what they are told so it makes challenging CaRT through the courts very one sided. CaRT also seem to use a law firm that seems to use tactics that most ordinary people would say should get them stuck off.

Now CaRT have met their match. BW seems to have treated Nigel very unfairly in the past so he ha dto really get to knwo the CaRT bylaws and has probably more expertise in this area then most qualified lawyers. The plaintiff was also apparent;y treated unfairly so now the chickens are coming home to roost.

I doubt the riparian owners have grasped what CaRT's apparent land grab means for them so as presumably the riparian owner of the place the boat was moored was happy with it being there they do not see a problem.

[NigelMoore]

3 hours ago, efanton said:

In which case why is a judge even allowing the case to continue?  Surely if the waterbed and banks in question are privately owned it would be a case of trespass, and only the land owner could bring a case if he did not agree to the boat being moored. 

Why would the CRT risk spending so much money paid in legal fees on a case that appears on the surface of it to be so flimsy?

If the CRT do not have ownership or custody of the rivers who does, and why are they not involved in the case?

 

The riparian owner was renting the mooring to Leigh, and refused to allow CaRT onto his property, so they [apparently] cut the ropes to tow it away to the other side of the river, and then on to a marina to haul it out of the water and onto a truck.

It is nothing to do with trespass either, and in fact [though CaRT argue otherwise] ownership has nothing to do with CaRT’s statutory powers. They are granted powers to manage their waterways whether they own them or not.

The beef CaRT has, is that Leigh was not paying for a Pleasure Boat Certificate for all the time the boat was moored to the bank, and according to them he was required to do so. So they seized the boat under s.8. They refused to return it until Leigh had paid, not only their costs of removing it, but also the 4 years of ‘licence’ fees they claimed were owing.

Leigh’s argument is that the relevant legislation mandating Pleasure Boat Certificates of registration apply very specifically, only to the main navigable channel of [in this instance] the river Trent, and that BW/CaRT for nearly 50 years have held that that term applies only to a central channel within a waterway of a specific set of dimensions, not including the banks. The same interpretation should apply to the same term where used for the registration requirement, so for so long as he remained outside of the main navigable channel, he did not need either licence or certificate. He had only re-purchased the boat a year before; was not cruising it, and was only doing it up to sell. CaRT on the other hand, claim that MNC when it comes to 'licensing', means something altogether different to what it does respecting their maintenance obligations - see page 31 here: http://www.waterways-ombudsman.org/media/1016/annualreports201to11final.pdf

Further, and in the alternative, even if he HAD been required to register it, then the appropriate course of action for CaRT was to pursue him either for the fees alone as a civil debt, or at most to take him to the Magistrates Court for the alleged offence. The use of the draconian measure of s.8 where a legislated remedy existed as a lesser intrusion into his Human Rights to peaceful possession of property, was contrary to law. CaRT's defence to this is simply that s.8 is not disproportionate, and there are any number of [specious] reasons why acting under the law is silly and ineffective.

What is more, according to Leigh, in refusing to return his boat unless he paid the disputed arrears, they were acting against the very terms of s.8 they were relying on, so that they were using extortion, against both the Torts Act and Marlborough. This last CaRT have agreed was a “mistake”, but see no reason for any court findings on the issue. They say he owed the money anyway, so suffered no damage; ergo: so what?

A judge has not thrown the case out because in the first instance it is Leigh who has brought the case against CaRT, not the other way around [though CaRT did try to have his case thrown out on procedural grounds], and secondly because the primary issue involves a matter of statutory construction of considerable importance to CaRT and its customer base, while the other two issues are inextricably entangled together.

Edited May 20, 2017 by NigelMoore
insert missing word [in bold]

[efanton]

Quote

It is nothing to do with trespass either, and in fact [though CaRT argue otherwise] ownership has nothing to do with CaRT’s statutory powers. They are granted powers to manage their waterways whether they own them or not.

Is it FACT that "CaRT have been granted powers to manage their waterways whether they own them or not", or just their stance?  surely that and that alone is the nub of the issue.

"BW/CaRT for nearly 50 years have held that that term applies only to a central channel within a waterway of a specific set of dimensions, not including the banks."  Here again is this fact or a stance taken?  If that is fact then it would appear to be very clear that they could not enforce ANY licensing laws while a boat was moored unless it was against a tow path they also control.  In fact this is a get out of jail card for all boat users that use private mooring (marina's etc) as to enforce regulations they would either have to walk on water to exercise those regulations while boats were actually cruising, or board from a 'patrol' boat.

Surely both the above are totally contradictory.

Edited May 20, 2017 by efanton

[NigelMoore]

26 minutes ago, efanton said:

Is it FACT that "CaRT have been granted powers to manage their waterways whether they own them or not", or just their stance?  surely that and that alone is the nub of the issue.

"BW/CaRT for nearly 50 years have held that that term applies only to a central channel within a waterway of a specific set of dimensions, not including the banks."  Here again is this fact or a stance taken?  If that is fact then it would appear to be very clear that they could not enforce ANY licensing laws while a boat was moored unless it was against a tow path they also control.  In fact this is a get out of jail card for all boat users that use private mooring (marina's etc) as to enforce regulations they would either have to walk on water to exercise those regulations while boats were actually cruising, or board from a 'patrol' boat.

Surely both the above are totally contradictory.

Yes, it is a FACT that CaRT’s powers to manage their waterways are independent of ownership. The same applies to any “creature of statute”; they have no powers other than those expressly granted to them, so cannot exercise the same common law rights of a natural person in relation to their property – but equally, they can be expressly granted particular powers to govern the use of that which is NOT their property. It cuts both ways. CaRT have not made that up. You only have to read the terms of the relevant legislation, which are expressed to apply to waterways “owned OR managed” by them.

Your second question is unclear to me. That it is a FACT that BW/CaRT have held that their maintenance obligation extends only to the ‘main navigable channel’ of Commercial and Cruising waterways [whether rivers or canals], and that for maintenance purposes as per the 1968 Act that refers only to the central dredged channel of specified dimensions, you can see from reading the case in the link I provided.

Whether that is FACT or not [and it is my position and Leigh’s that they are correct], is the primary issue to be determined in this case. CaRT want a different interpretation to apply in the case of the 1971 Act such that it would apply bank to bank.

But again, you are confusing two separate elements of legislation. Licensing is mandatory under the byelaws of 1976 as extended under the 1995 Act, and applies to all canals not river waterways, the requirement allowing for no geographic limitation to the main navigable channels of the canals. The river legislation of 1971 [as amended] is different; it applies solely to the main navigable channels of the scheduled river navigations.

CaRT can therefore enforce the licensing laws against any non-compliant boat on the canals, whether moored outside of the main navigable channel or not, by prosecuting for the byelaw offence. Marinas and private arms do not comprise part of the canals of course, so the statutory licensing regime does not extend to them.

No licensing laws apply to the rivers, because they are subject to public rights of navigation; only a registration requirement has been imposed upon that right by virtue [or otherwise] of the 1971 Act as amended in 1974 and 1995.

Nothing contradictory in any of that.

[WotEver]

5 minutes ago, NigelMoore said:

... you can see from reading the case in the link I provided.

I found both cases 516 and 517 to be pertinent to the case, 517 repeating the cause [only dredging the MNC] for the ombudsman's confusion in 516. 

[efanton]

So are you agreeing that Leighs boat should have been registered? It appears to me that the CaRT do have the right to demand any boat on a river they control is registered.

I agree that their methods of enforcing registration and collection of unpaid certificate fees does seem totally over the top and extremely heavy handed. It is simply an unpaid debt and should be treated as that and there is adequate legislation to chase that debt without using the section 8.  Surely the courts and only the courts have the power to determine that a boat should be seized in order to recoup a debt?

Edited May 20, 2017 by efanton

[WotEver]

4 minutes ago, efanton said:

So are you agreeing that Leighs boat should have been registered?

As I understand it, the boat WAS registered. CaRT S8'd the boat because it wasn't 'licensed'. 

[efanton]

 

 

10 minutes ago, WotEver said:

As I understand it, the boat WAS registered. CaRT S8'd the boat because it wasn't 'licensed'. 

 

But NigelMoore has just stated

Quote

But again, you are confusing two separate elements of legislation. Licensing is mandatory under the byelaws of 1976 as extended under the 1995 Act, and applies to all canals not river waterways, the requirement allowing for no geographic limitation to the main navigable channels of the canals. The river legislation of 1971 [as amended] is different; it applies solely to the main navigable channels of the scheduled river navigations.

 

[WotEver]

1 minute ago, efanton said:

But NigelMoore has just stated

Yes he did. Read it again. 

[WotEver]

Licensing is mandatory for all boats on canals. Licensing is mandatory for all boats on rivers within the legislation of 1971 (as amended), which effectively means 'boats on the MNC'. 

[NigelMoore]

39 minutes ago, efanton said:

So are you agreeing that Leighs boat should have been registered? It appears to me that the CaRT do have the right to demand any boat on a river they control is registered.

I agree that their methods of enforcing registration and collection of unpaid certificate fees does seem totally over the top and extremely heavy handed. It is simply an unpaid debt and should be treated as that and there is adequate legislation to chase that debt without using the section 8.  Surely the courts and only the courts have the power to determine that a boat should be seized in order to recoup a debt?

Why would I agree that Leigh’s boat should have been registered? The requirement is limited to the ‘main navigable channel’ of the listed river navigations, not the entirety of those river navigations [still less to the rivers as a whole]. I happen to agree with Leigh that CaRT’s interpretation of the term when it appears in the 1968 Act is correct, and that it means pretty much what any ordinary person would think – a primary channel down the middle of the river.

 We differ from CaRT only when they claim that the same term should bear a totally different meaning in their own Act of 3 years later.

They do not, in other words, have a right to demand any boat on the river, or even on the Navigation element of the river, must be registered – only where the boat is kept or used in the main navigable channel [with which CaRT agree] which means exactly what they say it does when applying the 1968 Act [with which CaRT disagree].

 You are absolutely correct that the courts and only the courts can authorise seizure of goods in order to recoup a debt. CaRT do not [NOW] disagree; they say that the boat was seized because it was unlicensed, NOT because it had not paid for a licence [if you can unravel the subtle distinction for me, I would be obliged].

[NigelMoore]

34 minutes ago, WotEver said:

Licensing is mandatory for all boats on canals. Licensing is mandatory for all boats on rivers within the legislation of 1971 (as amended), which effectively means 'boats on the MNC'. 

Not quite correct. Licensing is mandatory for all canals, but NEVER for ‘river waterways’ [comprising the MNC of the listed navigations]. IF a boat has a Pleasure Boat Licence, it may use the ‘river waterways’ also [it will already be registered], but if the boat is intended to stay on the ‘river waterways’ only, it only needs the Pleasure Boat Certificate [which costs 60% of the Licence].

Sorry if this comes across as pedantic, but it touches on crucial points that also relate to the legal extent of application of s.8. All boats on the public navigable rivers have the lawful authority to be on those waterways by virtue of the common law right of navigation; the PBC is a superimposed requirement on the PRN that does NOT confer lawful authority to be on the waterway.

The Environment Agency made exactly this argument in one of their cases earlier this year. I believe they are correct.

Hence, you may be on the river waterway with lawful authority, even if you are acting unlawfully while exercising that public right – as in failing to comply with the registration requirement, or in breaking any of the relevant byelaws.

As an early BW informative explained – on the canals it is different; all public and private rights of navigation on artificial canals were abolished in the Transport Act 1968; thenceforth, keeping &/or using a boat on the canals became permissive rather than of right, and the 1975 Act subsequently allowed BW to impose through byelaws, conditions of using and keeping boats on them. The 1976 byelaws followed accordingly, imposing the condition of being licensed [‘permitted’], while the 1995 Act imposed conditions for issue of the licence through primary rather than secondary legislation, because BW wanted those conditions to apply to all the river waterways as well – which they expressly could NOT impose through byelaws.

[NigelMoore]

1 hour ago, WotEver said:

I found both cases 516 and 517 to be pertinent to the case, 517 repeating the cause [only dredging the MNC] for the ombudsman's confusion in 516. 

Correct. I think she must have been referring in 516 to yet another similar but earlier complaint though.

[zenataomm]

As important as this case is to all of us, I can't help thinking the thread should be renamed ........

"The link appears not to work. Works for me. Me too"

[NigelMoore]

1 hour ago, WotEver said:

As I understand it, the boat WAS registered. CaRT S8'd the boat because it wasn't 'licensed'. 

The boat was neither registered nor licensed at the time. Leigh had registered it when he first bought it, in order to sell as a going concern. 3 years later, when he saw it still unused and becoming dilapidated, he bought it back, and intended to get it registered once ready to sell on again – but it was snatched before he could complete his preparations having received a good offer. The interim owner had never bothered to keep it registered, presumably because he never got around to planning a trip with it.

 Yes, CaRT DO say it was unlicensed [and it was not]; they have been consistently using that term throughout ALL the case pleadings, in the effort to confuse the matter and bury the significance behind the distinction. It is the sort of tactic that can work on a susceptible judge, and/or one with little time or inclination to question their probity [which is what happens in most of the necessarily cursory hearings in the County Courts].

[NigelMoore]

5 minutes ago, zenataomm said:

As important as this case is to all of us, I can't help thinking the thread should be renamed ........

"The link appears not to work. Works for me. Me too"

I wanted to leave some comment, money, and food for you in recognition of your contributions to the thread, but your signature link appears not to work.