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

[OldGoat]

10 minutes ago, NigelMoore said:

Something obviously amiss - when I click the link it brings up the whole document [very low resolution to keep file size down]. Perhaps others can see whether it works or not for them?

My apologies, Young Sir, my Browser is / was  silent on entry and with a further click, disgorged the contents of your work....

[Phil.]

38 minutes ago, NigelMoore said:

All is just about ready for next week's trial. It will be held at the Rolls Building in the week commencing Monday - details yet to be announced, we will hopefully learn that by tomorrow afternoon.

Skeleton Arguments have been exchanged; Leigh's can be found here -

https://www.scribd.com/document/348066797/Ravenscroft-v-CaRT-Claimant-Skeleton

Section 13 of the Grimes statement made me chuckle. I would have thought the principle use of the River Trent, when created, was to convey rainwater from the land to the sea.

[Machpoint005]

33 minutes ago, Phil. said:

Section 13 of the Grimes statement made me chuckle. I would have thought the principle use of the River Trent, when created, was to convey rainwater from the land to the sea.

It wasn't created, it happened, for the simple reason that gravity affects water along with everything else!

[NigelMoore]

53 minutes ago, OldGoat said:

My apologies, Young Sir, my Browser is / was  silent on entry and with a further click, disgorged the contents of your work....

Sounds distinctly unpleasant. Leaves me hoping the contents do not have the same effect upon your constitution.

[Chewbacka]

Works for me, but it is a collection of Jpegs and not a text file so you may have problems with a slow connection

[NigelMoore]

3 hours ago, Phil. said:

Section 13 of the Grimes statement made me chuckle. I would have thought the principle use of the River Trent, when created, was to convey rainwater from the land to the sea.

Well I can't make hay with this now, because Mr Grimes decided to both jump ship and decline to appear in court. Tom Deards is taking over and adopting the Grimes Statement as his own, but as of a couple of days ago, he has submitted a supplementary Statement disowning the nonsense about the abolition of public rights of navigation on the Trent.

Encouraging to see that Mr Deards is not altogether under the Shoosmiths' thumb and can actually assert an independence of mind to some degree.

[Muddy Ditch Rich]

In essence CaRT's enforcement process backed by the legal dept is a criminal extortion scheme. 

[NigelMoore]

13 minutes ago, Muddy Ditch Rich said:

In essence CaRT's enforcement process backed by the legal dept is a criminal extortion scheme. 

That is Leigh's favourite part of his argument. In fact though, it is hopeless even as extortion most of the time, given the exorbitant sums needed to cover the £5 grand minimum on top of the sums owed once CaRT have given the go-ahead to their sub-contractors. They would only cover their outlay with valuable boats. Following their belated admissions since Leigh launched this case, moreover, they would find difficulty in future using s.8 as leverage to enforce licence payments on top of the removal costs, with anyone acquainted with this case.

[Sir Nibble]

whilst understanding that next week will be trying for you, (no pun intended) I do hope Nigel, that you may find the time and energy to commentate on this long awaited clash.

[mross]

Works for me but slow scrolling.  Maybe others who see blank pages just need to wait?

[NigelMoore]

CaRT may well be getting alarmed at some of Mr Stoner’s argument. I am not going to discuss in detail pre-trial, but this paragraph in particular could be sending some shivers up the financial department’s spine :–

“It is suggested the natural reading of this phrase, in the context of the obligation, is to maintain the main channel from bank to bank, not simply the navigation fairway in the centre of the river or the canal and to maintain it for use by craft of the requisite size depending on the classification of the waterway;”

So – if this unprecedented interpretation is upheld, will we see an end to the present impossibility for too much of the canal network, of boats actually reaching the towpath? Will all future complaints by boats on online moorings be met with cheerful compliance with requests for dredging under their grounded boats?

Maybe this case will prove a win-win for boaters in general [if not necessarily for Leigh] and a lose-lose case for CaRT.

We have been informed, by the way, that trial will not start until next Thursday; prior cases must be running over time.

[Tony Brooks]

All I can say is thank you Nigel for all the work you have put into this for Leigh and all boaters. There is now a faint hope that CaRT may start to work within their legal obligations, even if Nigel is unsuccessful (which I trust he will not be).

[NigelMoore]

Thanks Tony. As I say, however this turns out, so long as clear findings are made on the key points, then that will be to everybody's advantage. We have already secured the admission that possession under s.8 cannot be used to enforce licence payments, so we start with a win to begin with. It is extraordinary [though unsurprising] that despite their admissions, CaRT protest against any findings and declarations being made to this effect.

[NigelMoore]

COURT 4

Before MRS JUSTICE ASPLIN

Monday, 22 May 2017

At half past 10

TRIAL LIST

HC-2015-001906 Ravenscroft v Canal & River Trust

 

https://www.justice.gov.uk/courts/court-lists/list-chancery-judges

 

edit to add: this is in the Rolls Building, Fetter Lane.

Edited May 19, 2017 by NigelMoore
add info

[Bod]

All the best.

 

Bod

[Drayke]

On 12/05/2017 at 14:40, NigelMoore said:

CaRT may well be getting alarmed at some of Mr Stoner’s argument. I am not going to discuss in detail pre-trial, but this paragraph in particular could be sending some shivers up the financial department’s spine :–

“It is suggested the natural reading of this phrase, in the context of the obligation, is to maintain the main channel from bank to bank, not simply the navigation fairway in the centre of the river or the canal and to maintain it for use by craft of the requisite size depending on the classification of the waterway;”

So – if this unprecedented interpretation is upheld, will we see an end to the present impossibility for too much of the canal network, of boats actually reaching the towpath? Will all future complaints by boats on online moorings be met with cheerful compliance with requests for dredging under their grounded boats?

Maybe this case will prove a win-win for boaters in general [if not necessarily for Leigh] and a lose-lose case for CaRT.

We have been informed, by the way, that trial will not start until next Thursday; prior cases must be running over time.

If this does come to fruition, then C&RT will have to go back to the government and ask for the monies they should have had to start with, to put right all of the problems with silting that they inherited from BW.

[fanshaft]

12 hours ago, F DRAYKE said:

If this does come to fruition, then C&RT will have to go back to the government and ask for the monies they should have had to start with, to put right all of the problems with silting that they inherited from BW.

Don't forget that C&RT can apply to the Minister for an exemption to the requirement to maintain any waterway to the 1968 standard if it would be unreasonable to be expected to do so.  An example would be maintaining a Commercial waterway to the standard when there is no freight traffic and no prospect of any such traffic, when limited funds could be better used on other waterways.  Nigel will know more.

Regards

David L

[Alan de Enfield]

In the transfer from BW to C&RT the following was included in the transfer document :

Note ;

C&RT is the 'trustee',

'Infrastructure Property' is the waterways

The objects are :

OBJECTS The objects of this Settlement (the “Objects”) are as contained in this Clause 2.
2.1 Subject to Clause 2.2 and 2.3, to hold in trust and retain in perpetuity for public benefit the Infrastructure Property for the following purposes:
2.1.1 to operate and manage the Infrastructure Property for public benefit, use and enjoyment including:
(a) for navigation; 
(b) for walking on towpaths; and
(c) for recreation or other leisure-time pursuits of the public in the interest of their health and social welfare;

3 ) POWERS

The Trustee has the following powers, which may be exercised only in promoting the Objects:
3.1 to raise funds (but not by means of taxable trading) or impose charges for use of the Infrastructure Property (including use by vessels of any kind but excluding charging for pedestrian access to towpaths);  

That pretty much gives them carte-blanche to raise funds by any method (except from pedestrians), so they could easily raise money from additional charges for (maybe)

Supply of water taps, elsan stations, moorings, surcharges for wide-boats etc etc

[peterboat]

Good luck for Monday Nigel fingers crossed that justice is done

[NigelMoore]

1 hour ago, fanshaft said:

Don't forget that C&RT can apply to the Minister for an exemption to the requirement to maintain any waterway to the 1968 standard if it would be unreasonable to be expected to do so.  An example would be maintaining a Commercial waterway to the standard when there is no freight traffic and no prospect of any such traffic, when limited funds could be better used on other waterways.  Nigel will know more.

Regards

David L

Sadly you are correct. The Commercial and Cruising waterways were to comprise the main navigable channels of the rivers, navigations and canals that were listed in Schedule 12 of the Transport Act 1968. The maintenance obligation defined the size of those channels – in s.105(2) - as suitable for the use by any relevant vessel as “customarily used that waterway or part during the period of nine months ending with 8th December 1967”.

Those dimensions had been recorded by BW and were used in the Fraenkel report to determine the extent of the obligation in relation to every length of waterway, to exact specifications.

But in s.105(3) it says: “If it appears to the Minister that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part thereof, it is desirable to exercise his powers under this sub-section, he may (after consultation with the Board) by order substitute for the duty imposed by the Board by the foregoing provisions of this section in respect of that waterway or part such duty in respect of the maintenance thereof as he considers appropriate having regard to that change, and may by that order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.”

Of course, BW never bothered to follow that procedure; they simply left things to deteriorate according to what they budgeted – but naturally, if the deterioration resulted in the specified boat sizes being incapable of any further use of the waterway, then the conditions would have been accomplished to justify Ministerial intervention to alter the standard!

Only if a boat operator sued BW in the High Court under s.106 could the previous section be pre-empted.

The get-out clause for asking for a certificate of exemption/modification of the statutory duty was [s.106(4)] “that it appears to the Minister that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.”

Given the parlous nature of CaRT finances, it is therefore an always available get-out card.

HOWEVER: The dimensions still apply to the main navigable channel whatever the dimensions are altered to, so if that was interpreted to extend from bank to bank, even an amended obligation would still be catastrophically expensive. Those interested need only read through the Fraenkel Report to realise that even maintenance to a drainage level unsuitable for ANY craft other than canoes or mini-jetboats, would be crippling; the minimal dredging work demanded would have to be borne without the compensatory income from boat registrations, licensing and moorings fees from craft that could no longer use the waterway.

There are also the practical considerations involved in the new interpretation of ‘main navigable channel’ especially on rivers, but also on many canals - where the profile of the bed is saucer shaped except where the banks are piled with vertical sheeting. Whatever dimensions were reduced to, ALL the waterways would have to be piled to enable any craft of the specified dimensions to access the banks anywhere along the length of the navigations – which the ‘traditional’ interpretation of ‘main navigable channel’ does NOT require.

Faced with the realities consequential upon a new interpretation demanding unrealisable maintenance values, the only unthinkable option for Government in that scenario would be to shut down most of the canals altogether, with – as Fraenkel noted – a continuing financial burden unrelieved by ANY income.

Given that, as Alan has quoted, the objects of CaRT are to operate and manage the waterways for navigation first and foremost, destroying the navigability of them by reason of a Ministerial Order would be either no longer possible legally, or would destroy the alleged raison d’etre of CaRT’s existence.

It is far more likely based on previous patterns, that in the event of the MNC being interpreted consistently with the new argument from CaRT, they will just continue business as usual without bothering Government over the matter, and everybody else will look the other way. It would take a boater to sue under s.106 for enforcement of the duty, and to the best of my knowledge, nobody ever has.

[efanton]

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.  Surely the logical long term solution would be a complete review of all mooring sites, and then designate stretches for the the three categories of mooring, (long term live-aboard, temporary 14 day moorings, and overnight or two day moorings) apart from the existing short stay moorings for pubs and shops.  The issue surely is getting the balance of these right but once sorted to nearly everyone's satisfaction (impossible to please everyone), EVERY narrow boat should be licensed and contributing to the maintenance and IMPROVEMENT of the canal system. 

If live-aboards that want to stay in the same town or area they will despite rules (not saying breaking rules is ok, but it inevitably will happen) and there should be designated areas specifically allowing them to permanently tie up, they cant really complain about having to pay a license to do so if there were designated mooring which were assigned for permanent and long term  moorings.   It would be unreasonable of people not living on a boat to have the expectation of living rent or tax free, why should those living on a boat expect to pay no poll tax or local council tax, or no licence for their boat but still avail of all the services and canal maintenance paid for by those that have.

Its obvious that a lot of CC's dont want to move their boat every 14 days and do want to stay within tight geographical area. Why not accommodate them and at the same time make them part of the revenue stream needed to maintain and IMPROVE the canal system.  Obviously  there would have to be a third category of licensing for permanent or long term moorings and this might be tariffed at a different rate to those that are genuinely constantly cruising or moored in private marinas.

The contentious part would be deciding where the the three different types of mooring would be located.  But surely this would not be as difficult as it first appears, first designate the moorings that are in constant short term demand by those that are based in marinas or genuinely constant cruising such as those near shopping centres, town centres or tourist spots and impose severe penalties for anyone abusing these moorings.  Then it would be a case of identifying stretches of canal that would be suitable for long term or permanent moorings.  Again not extremely difficult if some basic principles were applied such as can two boats pass each other safely without grounding while passing a moored boat, sufficient services for the number of boats moored (waste and sanitation), and a limit on the maximum number of permanent or semi permanent moorings in one locality to prevent canals becoming boat cities or an alternative to renting or buying homes for those that really have no real interest in boating or the canal network but just see it as a cheap alternative to bricks and mortar

What I cant understand is why arent boat owners and the organisations representing them pushing for the above, rather than trying to find gaps  and create loop holes in the legislation and system that is now in place.  Surely having different types of, but specifically designated, moorings on all the canals would be in EVERYONES interest and would not be pitting one faction of boat users against the other or seen as giving favour to one type of boat user while persecuting those of  another type.  At the same time with everyone contributing there is more money to be spent on maintenance and improvement.

 

[Paul C]

Its nothing to do with CCing this case is about mooring on a river, outside the main navigable channel.

[rusty69]

11 minutes ago, efanton said:

The issue surely is getting the balance of these right but once sorted to nearly everyone's satisfaction (impossible to please everyone), EVERY narrow boat should be licensed and contributing to the maintenance and IMPROVEMENT of the canal system

Not sure those river users would agree with you.

[Alan de Enfield]

9 minutes ago, efanton said:

it strikes me the real issue is not about licensing but should be about moorings

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.

[Bod]

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