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Business licence fees ?


Muddy Ditch Rich

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22 minutes ago, Paul C said:

Maybe a hire boat licence is a type of commercial one then, not a standard pleasure boat one?

That is least arguable, although  

“commercial vessel” means any ship, boat, barge, lighter or raft and any other description of craft used for the conveyance of goods on a canal other than a commercial waterway

.

Alternatively, hire boat, trading and similar licences could be considered as contractual, rather than statutory, although both contractual and statutory would qualify as "licences" under the 1995 Act, I think.

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11 hours ago, Iain_S said:

Alternatively, hire boat, trading and similar licences could be considered as contractual, rather than statutory, although both contractual and statutory would qualify as "licences" under the 1995 Act, I think.

I think you mean they would come under the “relevant consents” of the 1995 Act?

I cannot personally see how ‘contractual’ licences could come under those; the statutory conditions of 1995 apply to consents which the authority is obliged to issue, so long as the conditions for those are met; ‘contractual’, to me, embodies a degree of choice on both sides.

A contractual boat licence need not be ultra vires, but why would you choose one if the authority was obliged to issue a pleasure/commercial boat licence? The boat would have a valid relevant consent, and whatever you did with the boat – provided within the byelaws, is no further business of the authority.

Still, if you were correct and these licences were a matter of agreement between parties, outwith the otherwise relevant legislation, then the agreed conditions and charges would apply and no recourse to the 1995 Act would be possible. The practical effect would be an agreement on CaRT’s part not to prosecute for breach of the relevant byelaws. For so long as that entailed no infringement upon use of the towpath by others, I see no problem from a purely pragmatic viewpoint.

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1 hour ago, Muddy Ditch Rich said:

If CaRT can arbitrarily refuse permission to trade on their waters via the bylaw ( I presume that decision is not required to be reasonable, and cannot be overturned by a court ? ) then is a contract the only lawful way left to trade ?

Leaving out the blackmail issue for now.

I thought that it was commonly agreed that, whatever else might be the case, CaRT's actions could always be subject to a judicial review to determine whether they were 'reasonable'.

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1 hour ago, Muddy Ditch Rich said:

If CaRT can arbitrarily refuse permission to trade on their waters via the bylaw ( I presume that decision is not required to be reasonable, and cannot be overturned by a court ? ) then is a contract the only lawful way left to trade ?

The Byelaw does not forbid trading on their waters as such, though if I understand Byelaw 30 correctly, then you do need CaRT's permission to trade from your boat at its mooring along the towpath [and as Alan previously remarked, it would be awkward trading while in transit]. I apprehend that using your boat as a shop falls into that category. That being so, it would be legitimate for them to grant or withhold such permission subject to payment, under whatever conditions they wished. The whole effect of s.43 of the 1962 Act [viewed historically in the context of levying charges and imposing conditions for that which they are enabled], was specifically to remove the need for reasonableness, contrary to what had previously been the case - so your presumption is correct. Whatever the form of contract then, that they ask for, is what would comprise their permission. Using a 'Boat Business Licence' as a vehicle for the grant of permission is probably as simple a means as any.

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Shouldn't the permission be a separate matter to a PBL licence ?  it looks like CaRT have tricked trading licence holders out of the scope of the PBL and into a contractual licence. I'm not sure if trading licence holders are aware of this. 

 

Note that the business licence terms and conditions contain this little gem.

"9.4 We reserve the right to refuse to issue you with any Licence in the future. "

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34 minutes ago, Muddy Ditch Rich said:

Shouldn't the permission be a separate matter to a PBL licence ?  it looks like CaRT have tricked trading licence holders out of the scope of the PBL and into a contractual licence. I'm not sure if trading licence holders are aware of this. 

 

Note that the business licence terms and conditions contain this little gem.

"9.4 We reserve the right to refuse to issue you with any Licence in the future. "

Perhaps it should be. However it would seem that CaRT take the view that this falls outside of the purview of the pleasure boat licence.

If that is a valid view - such that this business licence is a purely contractual matter designed as a vehicle for grant of permission to use the boat for trading from the towpath - then contractual terms apply, and the freedom to enter into that contract applies to both parties. Hence, CaRT would be in a position to refuse their permission to allow the boat to be used in such a fashion should they so choose. Only issue of the "relevant consents" - which would exclude the business use licence - are subject to the obligation under the 1995 Act without further conditioning applying.

Taking an unjaundiced view of the matter, I suspect that this is all an unwinnable line of argument, taking Byelaw 30 into consideration.

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3 hours ago, Mike Todd said:

I thought that it was commonly agreed that, whatever else might be the case, CaRT's actions could always be subject to a judicial review to determine whether they were 'reasonable'.

Not "commonly agreed". The 1962 Transport Act having specifically removed the need for being "reasonable" in legitimate charges and conditions, some more modern general legislation expressly imposing that condition regardless, would have to be argued by way of implied repeal. As I stated earlier: the immediately preceding relevant legislation which the 1962 Act replaced, DID contain the need for charges and conditions to be reasonable, testable by reference to an independent tribunal; that was abolished by s.43 of the 1962 Act. Outrageous, yes, but remaining on the statute books as applicable to CaRT.

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