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


Horace42

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From the Waterways Ombudsman Report, 2010 to 2011:-

 

1. Mr L moors his boat on a river waterway at the bottom of his garden. He believes that, as he has riparian rights, no licence is required during the winter when the boat remains stationary at the mooring. British Waterways accepted that he did not require a mooring permit but argued to him that, in accordance with Section 5 of the British Waterways Act 1971, he still required a licence to keep the boat on the waterway. They accepted that that Section only applied to the main navigable channel of the waterway, but said that they interpreted ‘main navigable channel’ as referring to the whole width of the waterway.

 

2. I pointed out that that interpretation of ‘main navigable channel’ was not the one British Waterways had applied previously when dealing with complaints about lack of maintenance under moorings. Then they had argued that, as their maintenance obligations in the Transport Act 1968 applied only to the main navigable channel, they were not obliged to dredge under moorings, only the central part of the waterway. British Waterways accepted that my comments were valid. However rather than as previously relying on Section 5 of the 1971 Act, they now referred to Section 13 of that Act, which includes a requirement for houseboats kept on ‘inland waterways’ to have houseboat certificates.”

 

The following case she dealt with, also dealt with a dredging complaint, and BW maintained their interpretation along the lines of their previous understanding that their obligation regarding this was restricted to "the central part of the waterway".

 

No wonder they keep falling back onto the "houseboat" classification; I can see a time when they will try discarding all PBL's in favour of cc'ing houseboat certificates as per the Wingfield argument.

 

The way that is going we will end up with 2 licence categories :

 

1) If you live aboard then your boat is a houseboat and will have a 'houseboat licence'

2) If you do not live aboard then you have a 'leisure boat' and will have a 'leisure licence'

 

Now - how about 'leisure boats' that moor outside of the MNC ?

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The way that is going we will end up with 2 licence categories :

 

1) If you live aboard then your boat is a houseboat and will have a 'houseboat licence'

2) If you do not live aboard then you have a 'leisure boat' and will have a 'leisure licence'

 

Now - how about 'leisure boats' that moor outside of the MNC ?

 

The problem there, of course, is that under the relevant definitions, living aboard has nothing to do with houseboat classification, and houseboats are the only craft where the registration requirements are totally without geographic restrictions. If you are anything other than a houseboat, the MNC issue arises.

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The problem there, of course, is that under the relevant definitions, living aboard has nothing to do with houseboat classification, and houseboats are the only craft where the registration requirements are totally without geographic restrictions. If you are anything other than a houseboat, the MNC issue arises.

 

Indeed - but those are the CURRENT definitions, C&RT can interpret and amend definitions to suit the situation (apparently)

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They are actually free to add whatever conditions they please to the issue of houseboat certificates, but they cannot [legally] amend the definition.

 

MtB - I am sure you will understand, but I have to go ready some refreshment, so will leave your question for others just now.

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Just as a reminder of a previous post with the relevant document uploaded, BW gave an undertaking to Parliament in 1993 that no action would be taken against boats under the "houseboat" provisions if the boat was not used as a home. that was regardless of whether the boat was not being navigated.

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How binding on them now is that " undertaking" though ?

 

And what are the consequences now they broken that "undertaking" ?

I am not sure what Nigel refers to in 'no action'. I assume that he refers to http://nabo.org.uk/files/BW%20Undertakings%20to%20NABO%201993.pdfalthough this must surely be superseded by the 1995 Act to which it effcetively refers.

 

I cannot see in this document (and of course Nigel may be referring to something else) no explicit statement about what constitutes, or does not, a 'houseboat'. It only, as I read it, deals with the issue of houseboat certificates.

 

It also accepts that there are several circumstances when such a certificate may be refused including but not limited: (I precis)

 

(a) danger to others

(B) unfit for habitation

© using an invalid mooring

(d) place needed for development

(e) breach of conditions

(f) refusal of a reasonable permanent mooring

 

The main thrust, as was added to the act, that a houseboat for which a valid certificate exists at the date of the act shall not immediately become invalid just because the act has been passed. It does not exempt the houseboat from the conditions forever afterwards, surely?

 

I what way is it considered that BW, and now CaRT, have breached that undertaking?

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I am not sure what Nigel refers to in 'no action'. I assume that he refers to http://nabo.org.uk/files/BW%20Undertakings%20to%20NABO%201993.pdf although this must surely be superseded by the 1995 Act to which it effcetively refers.

 

 

It is the last page to which I referred: “The Board undertake not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by any person or persons.” It is not superceded by the 1995 Act; it depends upon the relevant clause as to houseboat conditions being successfully incorporated into that Act.

 

To answer RobertBrooks: What is the worth of such an undertaking? Well the worth is precisely what their word is worth.

 

Counsel for Oxford Council, during interrogation of a BW witness claiming that they had given their word to the Castlemill boatyard operator that they would find him alternative premises, delivered his opinion that their word was not worth the paper it wasn’t written on – but whether as a consequence of that public challenge or not, an alternative was found.

 

Their own attitude to such undertakings was well illustrated in the early stages of my own case. They had given me a written undertaking not to interfere with my boats unless and until the court decided they were so entitled. When I had occasion to bring injunction proceedings for alleged breach, one of their arguments was that it was not an undertaking to the court, it was ONLY a civil undertaking [or words to that effect]. In other words, it was not enforceable I suppose.

 

They then had to give an undertaking to the court, and subsequently ignored that also, only being made to apologise years later when the court demanded an accounting for that.

 

Is it enforceable? Not strictly, in my opinion, however producing it in any court trial where s.13 has been pleaded as justification for a non-liveaboard eviction [the fall-back position noted by the Ombudsman in the early case reported], would inevitable raise obvious doubts as to their probity. If they were shown to act contrary to their solemn undertaking, the proportionality of such an action would have, at the least, to be held in doubt. A conscientious judge would hold them to their word, whether they wanted to be or not. That requires a conscientious judge of course.

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It is the last page to which I referred: “The Board undertake not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by any person or persons.” It is not superceded by the 1995 Act; it depends upon the relevant clause as to houseboat conditions being successfully incorporated into that Act.

 

To answer RobertBrooks: What is the worth of such an undertaking? Well the worth is precisely what their word is worth.

 

Counsel for Oxford Council, during interrogation of a BW witness claiming that they had given their word to the Castlemill boatyard operator that they would find him alternative premises, delivered his opinion that their word was not worth the paper it wasn’t written on – but whether as a consequence of that public challenge or not, an alternative was found.

 

Their own attitude to such undertakings was well illustrated in the early stages of my own case. They had given me a written undertaking not to interfere with my boats unless and until the court decided they were so entitled. When I had occasion to bring injunction proceedings for alleged breach, one of their arguments was that it was not an undertaking to the court, it was ONLY a civil undertaking [or words to that effect]. In other words, it was not enforceable I suppose.

 

They then had to give an undertaking to the court, and subsequently ignored that also, only being made to apologise years later when the court demanded an accounting for that.

 

Is it enforceable? Not strictly, in my opinion, however producing it in any court trial where s.13 has been pleaded as justification for a non-liveaboard eviction [the fall-back position noted by the Ombudsman in the early case reported], would inevitable raise obvious doubts as to their probity. If they were shown to act contrary to their solemn undertaking, the proportionality of such an action would have, at the least, to be held in doubt. A conscientious judge would hold them to their word, whether they wanted to be or not. That requires a conscientious judge of course.

I am not sure that your precis in post 81 that no action would be taken against boats under the "houseboat" provisions if the boat was not used as a home. that was regardless of whether the boat was not being navigated. is identical to The Board undertake not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by any person or persons.”

 

Not treating a vessel as a houseboat is not the same as taking no action under the houseboat provisions especially if you argue that the if the boat was not used as a home in the undertaking qualifies the no action. Ie they undertake not to act where a necessary condition of the authority of the act is that a houseboat was not being used as a residence. I am also not sure about the significance of the term residence - elsewhere I know that it has specific meanings.

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I am not sure that your precis in post 81 that no action would be taken against boats under the "houseboat" provisions if the boat was not used as a home. that was regardless of whether the boat was not being navigated. is identical to The Board undertake not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by any person or persons.”

 

Not treating a vessel as a houseboat is not the same as taking no action under the houseboat provisions especially if you argue that the if the boat was not used as a home in the undertaking qualifies the no action. Ie they undertake not to act where a necessary condition of the authority of the act is that a houseboat was not being used as a residence. I am also not sure about the significance of the term residence - elsewhere I know that it has specific meanings.

 

I do not understand you I’m afraid. If they agree not to treat a boat as a houseboat under the relevant legislation, then they cannot take action against it under that part of the legislation. Section 13 Notices, in other words, will be inapplicable. The fact that the boat appears not be navigating is not, alone, to be used as justification for classifying it as a houseboat.

 

As to the significance of residency, that is in any event immaterial to the definition of houseboat in the 1971 legislation. It is even immaterial whether or not the boat/structure was even designed for habitation.

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I do not understand you I’m afraid. If they agree not to treat a boat as a houseboat under the relevant legislation, then they cannot take action against it under that part of the legislation. Section 13 Notices, in other words, will be inapplicable. The fact that the boat appears not be navigating is not, alone, to be used as justification for classifying it as a houseboat.

 

As to the significance of residency, that is in any event immaterial to the definition of houseboat in the 1971 legislation. It is even immaterial whether or not the boat/structure was even designed for habitation.

The difference surely lies in the process of designating a boat as a houseboat. Your summary only applies to actions once the vessel is so described. The original undertaking was about the process of designation.

 

There may well be effects of designation that are different from 'actions' as you describe them - such as liabilities.

 

If you see what I mean . . .

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The difference surely lies in the process of designating a boat as a houseboat. Your summary only applies to actions once the vessel is so described. The original undertaking was about the process of designation. .

 

You need to re-read through the whole thing again properly, Mike. There were several different undertakings, even amongst those respecting houseboats, and they were NOT all about the designation at all.

 

The NABO undertakings dealt with:

 

Complaints procedure

Assignment of certificates

Alteration of conditions

Temporary removal to permit works

Renewal of certificates

Register of unauthorised houseboats prior to the Bill

 

And last of all, the page dealing with the specific undertaking as to treatment as houseboats of any boat not used for habitation [even though this characteristic was irrelevant to the 1971 definition].

 

How you read all this as having to do only with “the process of designating a boat as a houseboat” escapes me.

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Latest update is that today witness statements were exchanged. CaRT have actually provided two – one from Stuart Garner the enforcement officer involved, and the other from Mike Grimes, head of boating.

 

The statement of the new head of boating should interest some; you just need to keep reading past the introductory spiel on who and what they are, until you get to what he has been advised by Shoosmiths.

 

https://www.scribd.com/document/336479716/Ravenscroft-v-CaRT-Statement-of-Mike-Grimes

 

Mr Garner’s is the same as before with some extra items to bring things up to date.

 

https://www.scribd.com/document/336479718/Ravenscroft-v-CaRT-Statement-of-Stuart-Garner

 

Leigh’s contains nothing new either, just recounts the events and subsequent correspondence up to the present.

 

https://www.scribd.com/document/336479708/Ravenscroft-v-CaRT-Statement-of-Leigh-Ravenscroft

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Interesting that 'contrary to common perceptions there is no public right of navigation' on the River' (Paragraph 17)

 

Indeed. It looks very much as though they have come to realise how hopeless their ‘main navigable channel’ argument is, and are trying to open the way to reprising the argument they ran in my own case, that the 1968 Act abolished all these PRN's.

 

If so, how they hope to now set that whole MNC argument aside is beyond me; as is how they hope to persuade the court that they should be permitted to re-litigate the point that they have already lost. Even Nigel Johnson had to admit that he got this one wrong.

 

You will have noticed that they are going the whole hog now, in claiming [effectively] that the 1971 Act was completely redundant, by reason of s.43 of the 1962 Act.

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Don't be silly.

 

From appearances, they have decided to keep to the MNC argument as a limited dredging obligation, and instead are relying on s.43 as obliging any boat anywhere on their system to have licences. Goodbye those cheaper pleasure boat certificates; they are no longer "relevant consents".

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She will be delivering her operatic denoument sometime at the end of the year, if CaRT do as promised and appeal the May decision.

When it comes will it finally settle the issue from a legal position to prevent any more alleged naughty behaviour on the part of CRT and Shoosmiths. If it goes your way of course.

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I have just read through this again this morning. It is an interesting point to take respecting Mr Grimes and his statement – is he saying that Shoosmiths advise him that there is no public right of navigation on the rivers, and that s.43 is the basis for all licences anywhere on the system [including all the rivers] with the rights to charge for and set conditions on those as they please - or not?

It could better be read, perhaps, that although Shoosmiths advise him that such statements are at best legally arguable, he is going to assert them as fact anyway, regardless of advice from CaRT’s solicitors. Curious. A get-out clause insisted upon by Shoosmiths? That would be canny of them. It would make far more sense, even though it would still leave Mr Stoner in an awkward position; he will still be obliged to hold an opposite stand, in deference to his greater duty to the Court.

An organisation taking it upon themselves to effectively disagree with the legal team they have employed, and running an argument that has formed no part of the case as hitherto pleaded, in contradiction moreover to High Court judgments on the issue that they never sought to appeal? What this statement does is to try setting the groundwork for a request for permission for a belated appeal against High Court decisions of some 5 years previous. Even though it also runs directly counter to the admissions of their previous top legal director, and to the public acknowledgements of the past 50 years.

 

Mr Grimes purports to be possessed of a grasp of the relevant legislative history that surpasses that of a half century of predecessors; Parliament; the High Court; the Court of Appeal; their solicitors of record, and their QC. His new insight is ground-breaking; it is one hell of an achievement that overthrows the effect of every BW Act from 1971 onwards. Mind you - if Parliament were deprived of this insight back in 1983 [when they legislated that BW could NOT set fees for PBC's as they saw fit], can their introduction of s.8 in the same Act be considered trustworthy?

 

Did Mr Deards trouble to proof-read this statement I wonder?

The worst of it - from CaRT's viewpoint - is that such attempts reveal that their administrators' confidence in their position to date has been seriously undermined. If the Waterways Ombudsman was moved to observe in 2011 that they place contradictory interpretations on their legislation to suit their wishes of the moment - with respect to the meaning of 'main navigable channel' - then this switcheroo would have had her floundering for suitably euphemistic adjectives.

The antics of rogue elements in influential positions are dragging down the reputation of their organisation. CaRT needs, as the former CEO acknowledged to Parliament prior to the Transfer, to maintain a high reputation for integrity, if significant voluntary contributions to their coffers is to be expected. We all need to promote as best we can the attainment of a good reputation for CaRT, and encourage the trustees to excise the entrenched cancer. That IS within their authority, allegedly.

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