"Permanent Mooring"

[Iain_S]

14 hours ago, PhilAtterley said:

The literary gymnastics that C&RT and their lawyers would indulge in with the purpose of changing the sense in which the word "available" is used in S.17 of the 1995 Act have no real effect if you direct attention to the dictionary meaning of the word rather than focusing on synonyms - as in : -

                                                 available ;

                                                             = able to be used or obtained; at someone's disposal.

Although Webster's first definition is 

present or ready for immediate use 

As others have said, it would (will?) be a good money spinner for Shoosmiths ! 

[Athy]

7 minutes ago, Iain_S said:

Although Webster's first definition is 

present or ready for immediate use 

 

That's two definitions, of which one is appropriate.

[Iain_S]

10 minutes ago, Athy said:

That's two definitions, of which one is appropriate.

Which one? 

[Athy]

10 minutes ago, Iain_S said:

Which one? 

Cheeky monkey.

[PhilAtterley]

36 minutes ago, Iain_S said:

Although Webster's first definition is 

present or ready for immediate use 

As others have said, it would (will?) be a good money spinner for Shoosmiths ! 

C&RT's lawyers would, I think, be unlikely to rely on that definition. Of the two choices, only "immediate use" could apply to a mooring - for a mooring to be present, in relation to a boat, it would have to move about with the boat !

Edited July 17, 2017 by PhilAtterley

[WotEver]

2 minutes ago, PhilAtterley said:

C&RT's lawyers would, I think, be unlikely to rely on that definition. Of the two choices, only "immediate use" could apply to a mooring - for a mooring to be present, in relation to a boat, it would have to move about with the boat !

But one of the definitions of 'present' is 'existing', which it certainly would be, whatever its geographical location. 

[Alan de Enfield]

3 minutes ago, PhilAtterley said:

C&RT's lawyers would, I think, be unlikely to rely on that definition. Of the two choices, only "immediate use" could apply to a mooring - for a mooring to be present, in relation to a boat, it would have to move about with the boat !

If it also had to be available 'immediate use' then it would need to be towed behind the boat.

In a month times we will be going up the East Coast, across Scotland, (Caledonian Canal) down the West Coast to Anglesey - during our cruise, our BWML marina berth will be 'available' for us for when we return. but I doubt that the month it would take to return to it would allow it to be classed as 'immediately available'

[Athy]

4 minutes ago, Alan de Enfield said:

If it also had to be available 'immediate use' then it would need to be towed behind the boat.

 

No, no, no. The MOORING can be available for instant use, even if the boat is not in a position instantly to use it. Our boat is in Oxfordshire, but the landing stage here at the bottom of our garden is ready to accommodate it if it happens to turn up here this evening!

[PhilAtterley]

2 hours ago, Dave_P said:

Sorry, I'm still unclear.  Why one week?  And why is the HM'er obliged to return?  Can they not simply continue the journey?

 

Yes, of course they can continue their journey, but if they haven't moved far in the first week after leaving their mooring and they don't turn round and go  back to their mooring after spending one week travelling away from it, they will not be "re-setting" C&RT's stupid ''clock'' and consequently, at least according to the rogue element at C&RT responsible for all this nonsense, 14 days after leaving their mooring they will be instantly transformed from HM'ers into CC'ers who are "overstaying" in the "same general area".

[Dave_P]

5 minutes ago, PhilAtterley said:

Yes, of course they can continue their journey, but if they haven't moved far in the first week after leaving their mooring and they don't turn round and go  back to their mooring after spending one week travelling away from it, they will not be "re-setting" C&RT's stupid ''clock'' and consequently, at least according to the rogue element at C&RT responsible for all this nonsense, 14 days after leaving their mooring they will be instantly transformed from HM'ers into CC'ers who are "overstaying" in the "same general area".

? Long sentence alert!

[Mike Todd]

Some of the above arguments conflate two distinct elements of the 'rules' when cruising: firstly there is the requirement not to stay in one place for more than 14 days, unless otherwise indicated, and secondly to engage in a bona fide navigation. The first applies to boaters with a home mooring - and all boaters - whilst the second only applies to those with no home mooring. For a long time it has been accepted that boats with a home mooring do not have to demonstrate that they are making a journey only that they have not overstayed on a mooring.

No doubt there have been times when the confusion has been in the hands of CaRT personnel (probably at a lowish level) but more frequently by those who want to give the 'rules' a rubbishing.

In the case of the boat that was asked to return to its home mooring within 7 days, I suspect but don't know, this was an attempt to demonstrate that the boater was CCing and therefore subject to the more stringent requirement. As others have said, this has sometimes been referred to by terms such as fake mooring, shadow mooring or whatever. There have been reports, not clear how reliable, that some such moorings have been rented out to multiple boaters none of which had any intention to use them. This is clearly fraud at its most blatant.

It would be interesting to hear if there has been a formal case brought against any boater who has made shuttle type movements but within a reasonable cruising distance of their home mooring. Or is this part of the mythology?

I understood the 'resetting the clock' statement to be intended to clarify the situation where a boat is normally in a home mooring but frequently goes out for the same short journey - such as to a good pub. A classic counter example oft cited is that of a ferry which shuttles between two places all day every day. (Although it is likely to have a home mooring anyway)

Were it ever to come to court I suspect that our old friend 'reasonable' would come into play. (Would a reasonable person accept the OP's patter? Probably. Would a reasonable person consider that the long distance home mooring to be a genuine home mooring? Probably not) The grey area between reasonable and unreasonable is where judges earn their keep but I also suspect that the greater interest in this matter is from those closer to one end of the spectrum than the other.

[Arthur Marshall]

When all this started, I did ask CRT to confirm that i could nip out to my favourite mooring an hour or so down the canal, stay there a couple of nights and return to my mooring, and keep doing that every week ad infinitum if I felt so inclined.  No problem, they said.

[Muddy Ditch Rich]

53 minutes ago, Mike Todd said:

Some of the above arguments conflate two distinct elements of the 'rules' when cruising: firstly there is the requirement not to stay in one place for more than 14 days, unless otherwise indicated, and secondly to engage in a bona fide navigation. The first applies to boaters with a home mooring - and all boaters - whilst the second only applies to those with no home mooring. For a long time it has been accepted that boats with a home mooring do not have to demonstrate that they are making a journey only that they have not overstayed on a mooring.

No doubt there have been times when the confusion has been in the hands of CaRT personnel (probably at a lowish level) but more frequently by those who want to give the 'rules' a rubbishing.

In the case of the boat that was asked to return to its home mooring within 7 days, I suspect but don't know, this was an attempt to demonstrate that the boater was CCing and therefore subject to the more stringent requirement. As others have said, this has sometimes been referred to by terms such as fake mooring, shadow mooring or whatever. There have been reports, not clear how reliable, that some such moorings have been rented out to multiple boaters none of which had any intention to use them. This is clearly fraud at its most blatant.

It would be interesting to hear if there has been a formal case brought against any boater who has made shuttle type movements but within a reasonable cruising distance of their home mooring. Or is this part of the mythology?

I understood the 'resetting the clock' statement to be intended to clarify the situation where a boat is normally in a home mooring but frequently goes out for the same short journey - such as to a good pub. A classic counter example oft cited is that of a ferry which shuttles between two places all day every day. (Although it is likely to have a home mooring anyway)

Were it ever to come to court I suspect that our old friend 'reasonable' would come into play. (Would a reasonable person accept the OP's patter? Probably. Would a reasonable person consider that the long distance home mooring to be a genuine home mooring? Probably not) The grey area between reasonable and unreasonable is where judges earn their keep but I also suspect that the greater interest in this matter is from those closer to one end of the spectrum than the other.

There is no such requirement in the legislation.

[PhilAtterley]

2 hours ago, Mike Todd said:

In the case of the boat that was asked to return to its home mooring within 7 days, I suspect but don't know, this was an attempt to demonstrate that the boater was CCing and therefore subject to the more stringent requirement. As others have said, this has sometimes been referred to by terms such as fake mooring, shadow mooring or whatever. There have been reports, not clear how reliable, that some such moorings have been rented out to multiple boaters none of which had any intention to use them. This is clearly fraud at its most blatant.

It would be interesting to hear if there has been a formal case brought against any boater who has made shuttle type movements but within a reasonable cruising distance of their home mooring. Or is this part of the mythology?

 

There was no stipulation that the return to the boat's mooring was to be within 7 days - just simply an instruction to return to the mooring, which, incidentally, was a mooring for which C&RT produced printed records showing that the boat had used it for a number of years - 9, if memory serves correctly. It was nothing less than a calculated attempt to impose CC'ing rules on a boat with a (home) mooring for the purpose of seeing if they could get away with it. Prior to the PBC being revoked, the boat had been making frequent and regular short, local journeys, and returning to the same location after each journey to tie-up either on the towpath or to EA owned land on the other side.

As to your assertion that - "There have been reports , not clear how reliable, that some such moorings have been rented out to multiple boaters none of which had any intention to use them. This is clearly fraud at its most blatant." - the logic behind this simply does NOT stand up to scrutiny !  If, as you say, none of the multiple tenants of the same mooring has any intention of ever using it, then it will be unoccupied, and therefore, unarguably "available" to any one of them at any time - nothing in any way fraudulent about that !

[Alan de Enfield]

3 minutes ago, PhilAtterley said:

C&RT produced printed records showing that the boat had used it for a number of years - 9, if memory serves correctly

I think your memory is probably correct.

If I remember the 'incident' correctly, wasn't it on the Trent / Holme Lock area ?

[PhilAtterley]

17 minutes ago, Alan de Enfield said:

I think your memory is probably correct.

If I remember the 'incident' correctly, wasn't it on the Trent / Holme Lock area ?

It was !

[Mike Todd]

13 hours ago, PhilAtterley said:

There was no stipulation that the return to the boat's mooring was to be within 7 days - just simply an instruction to return to the mooring, which, incidentally, was a mooring for which C&RT produced printed records showing that the boat had used it for a number of years - 9, if memory serves correctly. It was nothing less than a calculated attempt to impose CC'ing rules on a boat with a (home) mooring for the purpose of seeing if they could get away with it. Prior to the PBC being revoked, the boat had been making frequent and regular short, local journeys, and returning to the same location after each journey to tie-up either on the towpath or to EA owned land on the other side.

 

I don't quite see how asking a boat to return to its home mooring (I used 7 days as I thought that it was stated so in an earlier post) relates to an attempt to impose CCing rules on a boat with a home mooring.

In this context the only significant distinction between CC and nonCC is the requirement to satisfy the Board that the boat is being used bona fide to navigate a journey. Whilst the various laws are somewhat short on detail, what is clear and legal is that the Board must 'be satisfied'. No criteria are given for that satisfaction so any decision can only be challenged on a judicial review of unreasonableness.

One aspect of the 'return to base' demand is to see whether the boat in question can actually get to the declared mooring! (No use trying to claim Ripon for a 72 ft widebeam when shuffling about in the centre of Brum!)

I would anticipate that, under most circumstances, the Board (ie CaRT now) would succeed in arguing that seeking to validate that the declared home mooring is genuine and fits the available criterion is a reasonable course of action. Once they have declared that it is not, then, as I read it, the only course of action to reverse it is either to comply with their stipulations or to call for a judicial review. (Given another case that is close to its next judgement being handed down, it may also be that a boater could sue for damages in the event that the CaRT decision has cost them money that was unnecessary, but whatever the outcome of cases currently before the court, this will always be a high risk strategy.

I know of many boaters who have a home mooring and who cruise for extended periods without returning to the mooring every 14 (or whatever) days or who take a winter mooring and then short  term visitor moorings whenever leaving the boat in between. This happens regularly without challenge from the Enforcement Team. (Two are not very far from this keyboard) Technically, one is supposed to report every change of status to the CaRT licencing team but their resources would be stretched beyond capacity of everyone actually did that!

[mayalld]

On ‎16‎/‎07‎/‎2017 at 16:54, Muddy Ditch Rich said:

Its an invented argument .

 

It may well be an invented argument, but given the extent to which those who would do as they please pick apart the words, we must pick apart the words of the 1995 Act here;

the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere

This isn't a sentence that has been dissected here nearly as much as the CCer equivalent, and it is thankfully shorter and easier to analyse.

So, let us look at the easy bits;

mooring or other place

whether on an inland waterway or elsewhere

So far, so good, neither phrase imparts any power to CRT, indeed just the opposite, they ensure that the widest possible range of places where the boat is to be kept can meet the requirements.

the Board are satisfied

OK, so we've been here before with the CCer rules. Basically, CRT get to decide, IN THE FIRST INSTANCE. That doesn't give them unfettered discretion to decide perversely, and their vies need to be tested against those of the omnibus rider from Clapham.

may lawfully be left

Fairly simple, even if somewhere is somewhere that you could leave a boat, if that somewhere requires permission and you don't have permission, then it doesn't meet the test. So, if you claim that you will move the boat to the Bridgewater Canal when not in use, but MSCC say you have no permission to be there, it doesn't work

will be available for the vessel

Again, I see this as fairly simple. There is an absolute "will", which means that the place that you propose to use as a permanent mooring must available at all times. That means that Ghost moorings, where 20 boats all claim that they could use a single mooring if required don't work. It stretches credulity to say "will be available", because in fact there is little prospect that the mooring will actually be available. That doesn't mean that overoccupancy is always fatal. If you have 100 moorings, and sell 110, you could argue that it is so unlikely that ALL with be in use that it is OK.

can reasonably be kept

OK, here is the clincher. Reasonable is a question of degree, and as noted above CRT get to say what is reasonable in the first instance. Clearly, if I claim that I have a mooring in a Norwegian Fjord, it isn't somewhere that I can REASONABLY get the boat to when not in use. the test must be "if you need to stop moving for longer that casual mooring is available for, could you actually use the mooring that you claim"

 

[Muddy Ditch Rich]

I would guess ( hope)  that a judge tasked with making a judgement on aspects of legislation would seek to find out what the original intent of it was, before blindly trying to dissect every word to guess what it could mean. The select committee minutes would be the place to start.

 

[Paul C]

20 minutes ago, Muddy Ditch Rich said:

I would guess ( hope)  that a judge tasked with making a judgement on aspects of legislation would seek to find out what the original intent of it was, before blindly trying to dissect every word to guess what it could mean. The select committee minutes would be the place to start.

 

 

You guess/hope wrong. Parlaimentary Select Committee minutes are not normally admissible in court. Neither are judgements from county court level (eg Hilyard). They look at the wording of the Act(s) concerned.

[Athy]

4 minutes ago, Paul C said:

 

You guess/hope wrong. Parliamentary Select Committee minutes are not normally admissible in court. Neither are judgements from county court level (eg Hilyard). 

This surprises me, as so much of British law is based upon precedent.

[Paul C]

Precedent comes from a higher court. County court is the lowest level, so cannot set precedent - it would need to have been appealed etc and judged upon in high court, appeal court etc.

[Athy]

6 minutes ago, Paul C said:

Precedent comes from a higher court. County court is the lowest level, so cannot set precedent - it would need to have been appealed etc and judged upon in high court, appeal court etc.

Thanks.

[Muddy Ditch Rich]

I was thinking more along the lines of a judicial review, where the original intent of the legislation has to be a factor in the decision. 

 

[mayalld]

21 minutes ago, Muddy Ditch Rich said:

I would guess ( hope)  that a judge tasked with making a judgement on aspects of legislation would seek to find out what the original intent of it was, before blindly trying to dissect every word to guess what it could mean. The select committee minutes would be the place to start.

 

You may be disappointed!

Statutory Interpretation is first and foremost based on a literal interpretation of the words of a statute (the literal rule). If that produces a logical interpretation, a judge need look no further.

There are two alternative constructions that can be used;

1) The golden rule - if a literal interpretation leads to an absurd result, the judge can deviate just so far from the actual text as needed to achieve a non-absurd answer.

Now you may regard the requirement that a boater who claims to have a home mooring must actually be able to use that mooring as absurd, but the fact that you don't like the requirement doesn't make it absurd in a legal sense.

2) The mischief rule - allows a judge to deviate from the absolute literal meaning to look at what "mischief" the law was passed to remedy, and whether an alternative meaning is necessary to correct an error in the law.

By way of an example, had the Act just said "mooring", and not included "other place", and CRT tried to claim that a boat stored ashore needed a mooring, the mischief rule would have corrected that. However, I see nothing to help you here, particularly as Pepper vs Hart has such restricted scope now.