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NigelMoore

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NigelMoore last won the day on October 15

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About NigelMoore

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  1. CRT and continuous cruising

    They are empowered to prosecute for more than just breach of byelaws. They can prosecute people like Tony, on the rivers, under the primary statute making it an offence to be in the main navigable channel without a PBC. Nick is, however, while broadly accurate, 'misremembering' the details, insofar as the action against Tony was not a 'prosecution' [though it could and should - had they just cause - have been]. A prosecution takes place in the Magistrates Court; their claim against Tony was in the County Court system, for a declaration that he was deserving of an injunction banning him from CaRT waterways everywhere. All such claims are never brought directly on the grounds of overstaying on moorings, or whatever; what they do - as they did with Tony - is revoke the licence and claim the boat is thenceforward left or moored within their jurisdiction without lawful authority, and hence subject to s.8. To directly answer your final query, there are only 2 byelaws creating a mooring offence, and time limits don't enter into it.
  2. CRT and continuous cruising

    It is important to differentiate, in the case of a statutory body such as CaRT, what they hold for public purposes constrained by their enabling statutes, and what they hold for their own private commercial purposes.
  3. CRT and continuous cruising

    You were very largely correct Alan; I am not interested just now, in nit-picking the minutiae. It was not that long ago when I posted my comments on the real legal limitations to mooring to the towpath, suggesting that any towpath mooring at all, prior to the 1995 Act, could be considered entirely discretionary [albeit altogether necessary in the changing circumstances of the past half-century]. As to the current status of a 14 day permitted stay for everybody, that could be compellingly argued under the doctrine of 'legitimate expectations'.
  4. CRT and continuous cruising

    That is not actually correct. Historically, pleasure boat licences were issued even by original canal companies, happy to receive at least a nominal assured annual payment for use of facilities that would otherwise be almost impossible to check up on and police on the basis of the statutory charges applicable. The British Transport Commission continued the practice, as did their successor BW. These licences all came with T&C's attached. Being voluntary agreements on both sides, these amounted to straightforward contracts and were enforceable as such. This topic was the subject of some anxiety amongst BW and Parliamentary personnel when considered the abolition of PRN's in the proposed 1968 Transport Act. It had been suggested that with PRN's abolished, mandatory licences could be introduced, but as BW pointed out and the Transport Ministry agreed, this would have been a bad thing for them, because they would lose the benefit of the contractual clauses [exempting BW from liability for damage arising from badly maintained waterways] accompanying the then existing licence scheme. They were narrowly focussed on how that would affect their liability to boaters for maintenance of course, rather than seeing T&C's then, as a means of enforcing other T&C's governing practices that could not – back then – have been visualised as arising; nonetheless, the principle was sound. When mandatory pleasure boat licences were introduced under the aegis of the 1975 Act, BW did not take the opportunity to also draw up statutory conditions for issue of those, by the new byelaw making powers, and instead chose [later] to go the primary legislation route. Craft construction standards were introduced in the 1983 Act, but were subsequently abolished, so that the conditions for issue of these licences [and the river registrations] are what we now have in the 1995 Act. There was a half-hearted suggestion by BW's lawyer to the Select Committee, that they could impose T&C's by 'virtue' of the 1962 Transport Act, s.43, but he admitted that the extent of that power was contentious, hence the need for s.17 of the 1995 At – and that is all we now have. One could say that the spectre of unenforceable unilaterally drafted T&C's, that was foreseen by BW back in the early sixties, has come back to haunt them – but they do not worry; they have learnt how effective confident promotion of the lie can be, and cannot even be bothered to now go the Byelaw route – too many accept their word as gospel. To paraphrase an oft-quoted Yankee, if you can fool enough of the people enough of the time, you have a basis for effective government. That is not, of course, to decry the sensibility and utility of most of the T&C's [definitely NOT all of them]; it is only when CaRT abuse their power in revoking licences [or even just threatening to] for breach of non-statutory T&C's in order to activate a s.8 procedure, that the situation becomes truly objectionable. In summary – prior to 1976, T&C's attached to licences certainly existed, and were enforceable. Since 1976, the T&C's have been – as once acknowledged – unenforceable guides to good conduct; only the conditions laid out in the 1995 Act's s.17 are enforceable law.
  5. Time limited moorings over the winter months

    Last Thursday I attended a meeting [purely as note taking observer] between a boater and half a dozen EA officials, over various disputes. The Thames Conservancy Acts also contain a right for the public to moor 'reasonably', and there was contention over whether such a period could vary according to circumstances. The EA position was that it was entirely their prerogative to determine what was reasonable [and they fixed that as 24 hours to such of the public towpath as was within their ownership]. I cannot accept that myself. Relevant as an example of the principle involved, prior to the Transport Act 1962, the levying of charges and conditions for use, of chargeable facilities on the British Waterways, was governed by the terms of the British Transport Commission Acts of the fifties. There, the requirement was laid down that these had to be reasonable, and in the event of any dispute, the reasonableness had to be adjudicated by an independent body. To me, that provision is an essential component of any practical and enforceable application of the term; Parliament missed a trick, in the 1995 Act, in not making such a provision for independent adjudication as to what was "reasonable in the circumstances". The BTC Act, though, is a relevant precedent in my view, that where a condition of reasonableness is laid down, it is not for the statutory authority to be the final arbiter of what that is. Short of applying to the courts, I suppose the Waterways Ombudsman would be a suitable port of call in any dispute [though with the present incumbent of the office, chosen and paid by CaRT, I would expect a biased decision].
  6. Time limited moorings over the winter months

    They certainly have done so, because they did it to me while we were involved in the long drawn out cases on other matters. I was sent an invoice for £250 respecting a 10 day 'overstay' of a boat I did not own. They employed a dishonest firm of debt collecting solicitors to file a case against me, even though I had presented the solicitors with evidence it was not my boat. They took it to the wire, and I was looking forward to arguing the illegality of the charge regardless, but they withdrew the claim a week before the hearing, having discovered that the owner of the boat had in fact paid the fine around 12 months previously! Since then, as you say, they have admitted inability to levy such fines, which is why they now call them 'charges' instead. Whether they have filed claims in respect of non-payment of those, I do not know.
  7. "Celebrities" You Have Been Mistaken For

    Czar Nicholas II [while travelling on the Trans-Siberian]. I had an up-curling moustache in those days.
  8. Obscure connections to celebrities

    If we are doing royalty, a cousin of mine once had a freshly caught salmon handed to her by Prince Philip through the kitchen window of her home in the wilder regions of the Balmoral estate.
  9. The CaRT sign you refer to is of no significance whatsoever, except insofar as it is a public disclaimer, to the effect that they cannot now be bothered exercising jurisdiction over the river below Winsford [with the necessarily attendant maintenance obligation]. Back in the day, BW felt differently, and petitioned Parliament to bring the upper reaches of the Weaver into the 1971 registration scheme, as a classified “river waterway” to be added to the list in Schedule 1 of that Act. Hence, in the 1995 Act: 30 River Weaver to be river waterway Section 4 (Extent of Part II) of the Act of 1971 shall have effect as if there were included in Schedule 1 to that Act the following additional paragraph:— “The river Weaver from Winsford Bridge to Shrew Bridge in the County of Cheshire.”. The significance of this undertaking respecting part of that not inconsiderable length of river, is that it formally recognises a main navigable channel within a larger body of contiguous water where the river has widened out considerably; such that one side of the marked line on the map is recognised as beyond the registration requirement, and the other side is recognised as within it – entirely contrary to the expressed belief of Asplin J that such a situation would never have been countenanced. Not only does this document give the lie to her belief, it further equates the term “main navigable channel” in the 1971 context, with the maintenance obligations of the same in the 1968 Act. It is very far from a clutched straw in my view; as so clearly clarifying the view of the promoters and supporters of all the relevant Acts, there can be no stronger indication of the intent and meaning of the wording chosen. Not that I personally believe that it ought to have been necessary, or is necessary for the obvious construction of the legislation; the wording and the usage speak for themselves, especially when the 1968 and 1971 Acts are compared, and the use in the byelaws - both of 1965 and the draft 2010 version - only cements that. Besides, contrary to the view taken by Asplin J, other navigation authorities also apply strict offences to limited areas of water within wider bodies of contiguous water, expressed in terms of imaginary lines between designated points on land, or as ‘x’ metres from the bank. Once a judge has taken it into their head to be so contrary, however, it takes just such strong medicine as this BW document to set things straight at the appeal stage. Too much respect is ordinarily accorded the judge’s so-called ‘discretion’. This does make it likely that permission to use this will be refused of course. I should add that even if the river above Winsford had since been formally handed over to the jurisdiction of others [which is theoretically possible, perhaps] it makes no difference whatever to the point that the basis of Asplin J’s judgment is contradicted by the facts as pertaining to the views of British Waterways when promoting their Acts and byelaws for more than 30 years. In 1995 Parliament gave BW jurisdiction over the Weaver from Winsford to the southern fringes of Nantwich, adding it to the scheduled river waterways of the 1971 Act - and that is the legislation that is having its meaning debated.
  10. C&RT license checkers

    Section 10 of the 1801 Grand Junction Canal Act – “And it is hereby further enacted, that from and after the passing of this Act, no Person or Persons whomsoever shall use any Pleasure Boat or Boats upon the said Canal or Collateral Cuts, or any of them, or any Part or Parts thereof, by towing the same with any Man or Horse, Men or Horses, or by any other Means, nor shall use any sails with any such Pleasure Boat or Boats, without the Consent in Writing from Time to Time of the said Company of Proprietors or their General Committee, or some Clerk or Agent of the said Company duly authorized for that purpose . . . and every Person or Persons using any such Pleasure Boat or Boats contrary to the Regulations and Provisions by this Act enacted, shall for every Offence forfeit and pay to the said Company of Proprietors any Sum not exceeding the Sum of Ten Pounds . . .” That was a pretty hefty fine back in the 18thC; rather more, proportionately, than the usual £25, or even the £150 ‘charge’ on recent signs. One penny then was worth about £1 today, so the equivalent fine in today’s money would amount to a maximum imposable of approximately £1,000, if my poor maths work out aright! Even a tenner for every time you connected with the towpath would get uncomfortable for some of us. Curiously, if you stay 15 days on a 14 day signposted mooring today, you get stung for £150, but would have had to pay exactly that if you stayed 15 days on the towpath back in the 1800’s [counting every day as a separate offence]. Not that you would have been allowed to of course, the commercial boats would have made sure of that, even if the GJCC had taken a back seat over it. In fact the GJCC took very active steps to maintain a clear passage along the canal; the most notorious case being the eventual imprisonment of the Lord of the Manor of Rickmansworth, who slung a chain across the canal where it passed through and over his land, when the offer of payment for that land was insufficient for him.
  11. As a matter of relevant interest, here is the BW to RYA Undertaking re: main navigable channel on the upper Weaver - edit: nope, just cannot seem to post pictures here anymore, though I did post the coloured overlat map in the 'licence chackers' thread Also included in the ‘fresh material’ request is the interview with the enforcement manager, who claimed licence arrears would have to be paid for people to get seized boats back, and who said that such boats that were worth more than £3,000 could be sold after being held past 6 weeks. edit 2: have managed to convert to jpegs, which works, but all out of order -
  12. You are correct, it was. This was about the original costs awards against Leigh arising from the fact that he discontinued the Injunction proceedings his previous litigation friend had advised they should take out, to prevent CaRT disposing of his boat after 6 weeks, which is what she gathered from discussions they could do, if Leigh did not cough up what they said he owed. The appeal was allowed, but dismissed. There were 2 problems – first was that the injunction application had made no mention of the ‘6 week then dispose of it’ idea, and so even though that was exactly what CaRT were publishing as the Enforcement Manager’s opinion even 9 months after the seizure of Leigh’s boat, it could not be proved that they had specifically told that to Ms Thomas. As to the improper use of the boat’s possession to lever payment of the alleged arrears additionally to the removal and storage costs, that was more interesting. I had the chance to take them through the emails demanding this, plus the website history proclaiming their ability to do this [until the wording was removed following a boater quizzing them over it, following publication of CaRT’s Defence admitting this to be wrong]. I may be wrong, but I had the distinct impression that the judges were slightly incredulous that Judge Asplin had been taken to this material and still found against Leigh on the issue, yet because that was her finding, and it was in separate proceedings, they could not see any way to contradict it. I have been scratching my head over whether I could have been more on the ball when responding to that, and could have made the distinction that she was not finding that they were entitled to do that, but rather avoided the essential issue altogether, and considered only whether they were entitled to take the boat in the first place, for reasons other than non-payment of the ‘licence’ fees. Mind you, I think I managed to comment something along those lines. So though I tend to think they would have found in his favour otherwise, the existing Asplin J judgment precluded that. She has since been ‘promoted’ by the way, and was in the courtroom next door to us, sitting now as a Lady Justice of Appeal. It became even more interesting when considering costs of that hearing. I had no knowledge let alone expertise on how to argue over costs liabilities, but one of the judges pointed out a stand we could take given that CaRT had prepared no costs schedule. Eventually, they decided they could not dismiss CaRT’s costs, but these would have to be agreed, and if not, then they would have to be subject to detailed court assessment at CaRT’s cost. That could cost as much or more than the costs themselves I suspect, so it remains to be seen whether they decide to prove amenable to reason. Meanwhile, while we were in the RCJ, Leigh lodged his application for permission to use fresh material in his main case appeal, which had not been before the judge – notably the newly produced map of the upper Weaver, with the pre-agreed main navigable channel marked out. edit to add: I was given right of audience for this hearing, even though we had not applied for it.
  13. Obscure connections to celebrities

    I once upholstered a guest bedroom in Rod Stewart’s Epping Forest home, in preparation for a visit by Cat Stevens. So he helped pay for my narrowboat [though I was sub-contracting for Nina Campbell on that job].
  14. C&RT license checkers

    Sound point. In Leigh's legal pleadings I am going to refer to "the moonings" from now on.
  15. C&RT license checkers

    What is now, where I am in Brentford, but a footbridge crossing the Brent, was previously a turn-over bridge for use by towing horses to cross from the towpath on one side to the other, and the incarnation before that one was a timber swing-bridge, statutorily designated part of a public road, allowing vehicular traffic for the locals to use carts for collecting the left-overs from the Lammas lands south of the river. The decline from road bridge to livestock to foot passage only, came about through a combination of natural disasters and changing use of the land to the south – without, so far as I have learned, any statutory process being followed. The previous Turn-Over bridge had been demolished by BW back in the sixties, and a public pedestrian right of way exists now only by virtue of the GLC building the present footbridge for their own access to the Dock Estates, and the Council's later adoption of the route as public footpath. When nobody pipes up to object, such things can happen [not that I would want the situation reversed in my case!] The same principle operated here with regard to the rights of way along branches of the public navigable river. The only court action over filling in the rivers was last seen back in the 18thC, when boaters objected to obstructions of the southern branch by the Copyholder of the land. That was airily dismissed by the magistrate with the assurance that it would be resolved with the improvements to be made by the Grand Junction Canal Company, when their proposed Bill was granted consent. However the proposed line was later altered prior to passage of the Act, to use the eastern branch instead, and with nobody continuing to object, the southern branch’s filling in proceeded to take place over ensuing years to create more arable land. Then Brunel came along, and filled the whole area in many feet deep, obliterating all of the previously navigable southern branches – and not a squeak of recorded protest against the illegality of it. In that latter instance of course, there may have been a statutory consent given in order to facilitate construction of the railway sidings; I really don’t know. So far as the current situation with public rights of navigation is concerned, CaRT continue the more than 30 year criminal blockade of the remaining navigable channels to the north of the Thames Locks – and with nobody in officialdom caring two hoots, that is likely to remain. The PLA, to their credit, raised the issue in the recent Public Inquiry into the area’s proposed CPO Order, but it did not occur to them to raise the through-passage issue, and besides, as their jurisdiction does not extend to this area, the evidence of their representative was fairly soundly trashed as irrelevant. Statutory rights and common law rights persist – in practical terms - only so far as someone is willing to fight to uphold them. If you find some, it would be great to see them posted up. I just knew magpies would know about crows.
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