Canal and River Trust Sign

[Laurie Booth]

 

 

In reality someone in C&RT simply made it up. There is no Canal & River Trust Act 

[Alan de Enfield]

Indicative of the competence of the staff employed.

To be correct - they should have said "British Waterways - General Canal Byelaws 1965" and then section29 is relevant.

 

29. No mooring rope shall be affixed to any sluice lockgate, bridge or other work of the Board not provided for the purpose of mooring.

 

However - section 48 may be less relevant unless tying up is 'wilfully, wantonly, or maliciously going to deface or destroy' the railings.

 

48. No person shall wilfully, wantonly or maliciously deface or destroy any notice on or in any part of any canal or break, injure, deface, mark or otherwise damage or destroy any building, bridge, lock, gate, railing, fence, hedge or other property of the Board, on or in any canal.

Edited June 24, 2017 by Alan de Enfield

[Chewbacka]

23 minutes ago, Alan de Enfield said:

Indicative of the competence of the staff employed.

To be correct - they should have said "British Waterways - General Canal Byelaws 1965" and then section29 is relevant.

 

29. No mooring rope shall be affixed to any sluice lockgate, bridge or other work of the Board not provided for the purpose of mooring.

 

However - section 48 may be less relevant unless tying up is 'wilfully, wantonly, or maliciously going to deface or destroy' the railings.

 

48. No person shall wilfully, wantonly or maliciously deface or destroy any notice on or in any part of any canal or break, injure, deface, mark or otherwise damage or destroy any building, bridge, lock, gate, railing, fence, hedge or other property of the Board, on or in any canal.

As it is the railings then the end part of 48 does apply "......or break, injure, deface, mark or otherwise damage or destroy any building, bridge, lock, gate, railing, fence, hedge ........."

So you only have to mark the railings with your mooring ropes to risk being subject to the might of CRT byelaws.

[Graham Davis]

Already being discussed:

 

[AllanC]

3 hours ago, Chewbacka said:

As it is the railings then the end part of 48 does apply "......or break, injure, deface, mark or otherwise damage or destroy any building, bridge, lock, gate, railing, fence, hedge ........."

So you only have to mark the railings with your mooring ropes to risk being subject to the might of CRT byelaws.

Cut & pasted from the 'General Canal Bye-Laws'

 

Penalties 57.   

Any person who offends against any of the foregoing Bye-laws

shall be liable on summary conviction to a penalty not exceeding

FIVE POUNDS for each offence and in the case of a continuing

offence a further penalty not exceeding FORTY SHILLINGS for

each day on which the offence is continued after conviction

thereof.

For the purposes of this Bye-law a person shall offend against

any Bye-law if he

(a) does or fails to do, or

(b) causes or permits to be done or left undone anything the

doing of which is prohibited or required respectively by such Byelaw.

[Horace42]

12 minutes ago, AllanC said:

Cut & pasted from the 'General Canal Bye-Laws'

 

Penalties 57.   

Any person who offends against any of the foregoing Bye-laws

shall be liable on summary conviction to a penalty not exceeding

FIVE POUNDS for each offence and in the case of a continuing

offence a further penalty not exceeding FORTY SHILLINGS for

each day on which the offence is continued after conviction

thereof.

For the purposes of this Bye-law a person shall offend against

any Bye-law if he

(a) does or fails to do, or

(b) causes or permits to be done or left undone anything the

doing of which is prohibited or required respectively by such Byelaw.

So if your boat is tied to the railings, and on drawing your attention to the law, and you ignore what I say, it looks like I might be fined £5.

 

[croftie]

16 minutes ago, Horace42 said:

So if your boat is tied to the railings, and on drawing your attention to the law, and you ignore what I say, it looks like I might be fined £5.

 

Looks like that was increased to £25

[AllanC]

Or even increased to £100 in 1976.

I thought a fiver was too good to be true.

[Alan de Enfield]

14 minutes ago, AllanC said:

Or even increased to £100 in 1976.

I thought a fiver was too good to be true.

Yes - it does pay to read the full series of Bye Laws and their amendments.

[ditchcrawler]

1 hour ago, AllanC said:

Or even increased to £100 in 1976.

I thought a fiver was too good to be true.

Don't you have to be found guilty first

[NigelMoore]

On 2017-6-24 at 14:57, AllanC said:

Or even increased to £100 in 1976.

I thought a fiver was too good to be true.

The curious oversight by BW is that when increasing the fine, both in 1972 and in 1976, only the fine upon summary conviction was addressed, not the daily fine for so long as the offence continued past conviction; that remains at 40 shillings [or modern equivalent]. Silly, because the daily fine for so as the convicted offence continues is a valuable tool to encourage swift compliance. As it is, some might consider the daily fine these days to be a reasonable charge to meet, for example if moored where forbidden. Of course, I suppose that the option exists for CaRT to claim Contempt of Court, but that might depend upon the terms of any Judgment.

[Allan(nb Albert)]

4 hours ago, NigelMoore said:

The curious oversight by BW is that when increasing the fine, both in 1972 and in 1976, only the fine upon summary conviction was addressed, not the daily fine for so long as the offence continued past conviction; that remains at 40 shillings [or modern equivalent]. Silly, because the daily fine for so as the convicted offence continues is a valuable tool to encourage swift compliance. As it is, some might consider the daily fine these days to be a reasonable charge to meet, for example if moored where forbidden. Of course, I suppose that the option exists for CaRT to claim Contempt of Court, but that might depend upon the terms of any Judgment.

I come at this from a different direction.

Having searched C&RT's website, they do not acknowledge in the boating section (https://canalrivertrust.org.uk/enjoy-the-waterways/boating) that byelaws even exist.

Why?

[NigelMoore]

Yes, it is strangely perverse. After all, a boat can only be section 8’d for lack of authority if it lacks the authority conferred by the relevant byelaw, so without the 1976 byelaws there is no lawful authority required via a licence!

It does illustrate how determined they are to ground the licence basis on the 1962 Act instead, with all the attendant freedom their interpretation of that grants them. The rest of the byelaws can then be subsumed as contractual terms for issue of the licence and hence compliance forcible via s.8.

That does, of course, ignore the 1995 Act as well as the byelaws.

I think this is the answer to the "Why?"; according to the arguments reiterated in the Ravenscroft hearing, regular enforcement of byelaws is just too much trouble for insufficient penalisation of the boater.

Mind you, the primary reason given to Leigh's Judge by Mr Stoner for CaRT's failure to enforce byelaws, is that as a benign Charity, they want to avoid criminalising their clients. There's nice now.

[MtB]

On 26/06/2017 at 01:55, NigelMoore said:

 

Mind you, the primary reason given to Leigh's Judge by Mr Stoner for CaRT's failure to enforce byelaws, is that as a benign Charity, they want to avoid criminalising their clients. There's nice now.

 

I'm delighted to hear CRT have turned over a new leaf and are now taking their customers' interests so much to heart. Good news indeed and probably due in no small part to the work you've put into re-edumacating them Nigel!

[NigelMoore]

3 hours ago, Mike the Boilerman said:

I'm delighted to hear CRT have turned over a new leaf and are now taking their customers' interests so much to heart. 

Yes, so much more reassuring that you might lose your boat for breach of any rules, but will have a clean slate in more ways than one. No "new leaf" about that though.

[Muddy Ditch Rich]

CaRT enforcing bylaws would expose the fact that what they call the " licence terms and conditions" is in fact a bogus and unlawful document, and that the only lawful rules on their waterways are bylaws and statute. Two things which require no one to agree to abide by via any kind of civil contract.

However the PBL for all practicle purposes is now a contract, one in which boaters have no statutory rights, and which can be cancelled at any time without notice for " administative purposes" even after its issue, which has recently been upheld by the ombudsman. Until such time as boaters challenge this in court this is the reality. 

 

 

[NigelMoore]

This harks back to the unfortunate London case in January this year.

“I have added your insurance details to the online account, but you still need to accept the terms and Conditions of holding a licence before we can proceed.” Natalie Jones, Customer Service Advisor.

“EO has been clear (following previous guidance on the matter) that he does not have to accept terms, but that means the boat won’t be able to remain on CRT waters and will be subject to enforcement action if it remains. The terms are the terms, they are published. We will make reasonable attempts to clear up any specific questions about meaning but if the customer wants to quibble on legalities then we won’t engage with that – it’s a voluntary contract which he can accept or not.” Simon Cadek, London Region Enforcement Supervisor.

“you have been asked to accept the term and conditions of the licence, which is mandatory . . .” “If you are not happy with anything within the terms and conditions you can choose not to accept them, this will mean the craft would remain unlicensed and as such would have further letters of Enforcement served upon it . . .” Tony Smith, Enforcement Officer, London Region.

The Enforcement Officer’s Witness Statement declared: “On 5th April 2015 I sent an email to the Defendant. The email confirmed that I was the enforcement officer for the area in which the Boat was moored. The email highlighted that acceptance of the T&Cs was mandatory to licensing the Boat and that if the Defendant was not happy with anything in the T&Cs and chose not to accept them then the Boat would remain unlicensed and enforcement action would continue.”

Best of all: -

“CRT has the power to make the licence subject to such terms and conditions as it thinks fit by virtue of section 43(3) of the Transport Act 1962, section 14 of the British Waterways Act 1971 and section 16 of the British Waterways Act 1995.” Lucy Barry, Associate Solicitor-Advocate, Shoosmiths LLP.

That last is classic – the two latter sections she refers to apply only to houseboat certificates, not to licences [nor even to pleasure boat certificates]. They are two sections that would be totally redundant had the 1962 Act had the force she claims for it.

The power of BW to impose such conditions as they saw fit as a pre-condition for boats to use the canals – such that boats could be excluded unless they complied - could never have arisen from the 1962 Act as claimed. I have noted this in previous posts, but it bears repetition.

Not until 1975 were BW empowered to apply for relevant byelaws to this effect. As the preamble to that Act stated: “It is expedient that further powers should be conferred on the Board and that further provision should be made as in this Act provided for the control and regulation by the Board of the inland waterways owned or managed by them:” acknowledging para.(5) “The purposes of this Act cannot be effected without the authority of Parliament:” 

So prior to 1975, the conferred powers therein could NOT have been legally applied. The conduit wherein such powers could be applied for was the introduction of relevant byelaws – therefore prior to 1975, no byelaw purporting to impose T&C’s as a pre-condition for boats to be brought onto the canals could be imposed. If byelaws could not be drafted to exclude non-compliant boats from the canals, certainly no unilateral non-Parliamentary edict could.

Section (5) of the BW 1975 Act extended the byelaw making powers of 1954, which from that point on “shall be construed to have effect as if the power thereby conferred to make byelaws for regulating the use of the canal included the express power to make byelaws for excluding any vessel from the canal, prohibiting the use by any vessel of the canal or prohibiting the use of the canal except in compliance with any such conditions as the Board may prescribe . . .”

The pleasure boat licence was a direct and immediate result of these new powers, but no further conditions were attached, non-compliance with which could exclude any boat. Instead of promoting such conditions to the licence through byelaws, BW instead pursued the perfectly legitimate route of primary legislation – hence s.17 of the 1995 Act, which still contain the only grounds upon which licences may be refused or revoked.

Arguably CaRT inherit to right to create enforceable terms and conditions to this licence therefore, through the medium of new byelaws – but only via that route. Perhaps, though, as I have wondered aloud before, it might be that the terms of the 1995 Act have actually closed that door for good; if so, then BW really shot themselves in the foot well and truly, overlooking essential protective wording in their zeal to introduce new enforceable powers over boaters.

Not that they nor their successor have ever bothered their heads about such niceties – they swiftly discovered that re-inventing the nature of the licence was something boaters and the County Courts would let them get away with.

[NigelMoore]

23 hours ago, Muddy Ditch Rich said:

CaRT enforcing bylaws would expose the fact that what they call the " licence terms and conditions" is in fact a bogus and unlawful document . . .

 

 

The document itself is not "bogus and unlawful", it is a sensible code of conduct, containing within it reference to legitimate enforceable statutes and byelaws. What is bogus and unlawful is the representation that any of these other than the s.17 conditions, are enforceable conditions for issue and retention of the licence.

It might be appropriate to revisit the SC Minutes yet again, on this topic of the enforceability of licence T&C’s outwith the 1995 Act.

BW’s QC correctly informed the Committee that his advice was that the Licence T&C’s “is not a legally enforceable document. It is merely advice which we give to our boaters.”

Asked: “what is the remedy for a breach of condition”?  he replied: “Ultimately we could do one of two things or possibly both things. One would be to revoke the licence as it would be, as the owner or the holder of the licence would be in breach of the pleasure boat conditions. The alternative would be to revert again to the section 8 powers, which we talked about earlier. In both those cases, the Board believes that this action would be inappropriate. We have no remedy for breach of the code conditions at all . . .” – hence, he explained, the perceived need for the mooring restriction powers they sought in the Bill – which did not pass scrutiny and which were consequently omitted from the 1995 Act.

https://www.scribd.com/doc/142106359/Dodd-on-Status-of-Licence-Conditions

Such of the T&C's as repeat statute and byelaws, are of course enforceable - but only as per the legislated routes, not via revocation of licence and/or s.8.

[Chewbacka]

3 minutes ago, NigelMoore said:

The document itself is not "bogus and unlawful", it is a sensible code of conduct, containing within it reference to legitimate enforceable statutes and byelaws. What is bogus and unlawful is the representation that any of these other than the s.17 conditions, are enforceable conditions for issue and retention of the licence.

It might be appropriate to revisit the SC Minutes yet again, on this topic of the enforceability of licence T&C’s outwith the 1995 Act.

BW’s QC correctly informed the Committee that his advice was that the Licence T&C’s “is not a legally enforceable document. It is merely advice which we give to our boaters.”

Asked: “what is the remedy for a breach of condition”?  he replied: “Ultimately we could do one of two things or possibly both things. One would be to revoke the licence as it would be, as the owner or the holder of the licence would be in breach of the pleasure boat conditions. The alternative would be to revert again to the section 8 powers, which we talked about earlier. In both those cases, the Board believes that this action would be inappropriate. We have no remedy for breach of the code conditions at all . . .” – hence, he explained, the perceived need for the mooring restriction powers they sought in the Bill – which did not pass scrutiny and which were consequently omitted from the 1995 Act.

https://www.scribd.com/doc/142106359/Dodd-on-Status-of-Licence-Conditions

Such of the T&C's as repeat statute and byelaws, are of course enforceable - but only as per the legislated routes, not via revocation of licence and/or s.8.

So it looks like the view that "In both those cases, the Board believes that this action would be inappropriate." is no longer the case, and in certain situation they now feel it is appropriate.............

[Muddy Ditch Rich]

I wonder if it is unlawful to attempt to enforce bylaws by bypassing the proper court process by making them terms of a contract ?

 

Edited June 28, 2017 by Muddy Ditch Rich

[NigelMoore]

14 minutes ago, Chewbacka said:

So it looks like the view that "In both those cases, the Board believes that this action would be inappropriate." is no longer the case, and in certain situation they now feel it is appropriate.............

They now consider that in ALL situations,  s.8 is the ONLY appropriate action.

Tom Deards accepted that CaRT have never followed the designated course of prosecuting byelaw offences, with the argument presented by Mr Stoner that such recourse was a waste of time for numerous listed reasons.

14 minutes ago, Muddy Ditch Rich said:

I wonder if it is unlawful to attempt to enforce bylaws by bypassing the proper court process by making them terms of a contract ?

We are back to the United Dairies decision; any such attempts are illegal and unenforceable.

[Muddy Ditch Rich]

The document is headed by the false claim that breach of any part of it entitles them to revoke a licence, thats the point where you should throw it in the bin. Therefore i claimed, in my opinion the whole document is invalid, even though carefull study can seperate out the lawful parts of it, the premise of the whole thing is false ?

[NigelMoore]

The premise that it forms a binding and enforceable contract is false, as is the assertion that licences are subject to it. I do not see that that invalidates the sensibility of much of its guidance; it certainly cannot invalidate the requirement to abide by byelaws and statute, but there certainly are elements in the modern version that directly seek to subvert statutory protections.

[Alan de Enfield]

When renewing my licence by telephone, as we got to the 'end' I was asked if I agreed to accept all of the T&Cs.

I responded by asking if the call was being recorded and was told 'yes it is', I then asked the question 'should I not accept the T&C's, what happens ?' to be told that 'C&RT would refuse to issue my licence, and I would be on C&Rs waters unlicensed, did I wish to be connected to someone in the legal team to have it explained to me'.

Knowing that whatever was said the T&Cs are unenforceable I 'agreed' to them - I wonder how long the tapes are stored ?

[Horace42]

48 minutes ago, NigelMoore said:

https://www.scribd.com/doc/142106359/Dodd-on-Status-of-Licence-Conditions

Such of the T&C's as repeat statute and byelaws, are of course enforceable - but only as per the legislated routes, not via revocation of licence and/or s.8.

It seems I can refuse to accept the T&C's - therefore fail to get a licence and take my boat out without one. If I get picked up and taken to court by CRT I will be found guilty of using an unlicensed boat - and easy to prove an offence because the facts speak for themselves. No room for clever arguments about the reasons for improper refusal to issue a license. You haven't got one - that's it!

Alternatively I agree to accept the T&C's, use my boat, but ignore the imposition of rules that should not be there, and leave CRT to make an issue of it. That's what I would do.

In my business life I came across hundreds of contracts that contained clauses that in reality could not be enforced by the courts if they were in conflict with the law on those points. If they can't be enforced you just enter the contract and ignore them when the time comes.

As is likely to be the case with CRT - if you feel strongly about the issue,