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Bridgewater permits and licenses


gigoguy

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1 hour ago, gigoguy said:

Thanks again Nigel. As you say no real proof that non riparian boats had freedom but certainly a mention of pleasure craft exemption. 

With you earlier post in mind regarding anything that is not specified is exempt (word to the effect) Given specific exemption for riparian craft, and exemptions from charge in tolls No2 and no mention in 62 act.......could it all be construed to point to a general exemption for pleasure craft?

It is not so cut-and-dried. Enabling Acts provided for use by the public within certain parameters; restricted the things for which the company could charge, and restricted the amounts that could be charged for that which they were permitted to charge [that latter restriction having been abolished under the Transport Act 1962].

IF the enabling Acts provided, as with most if not all subsequent canal company Acts, for free use by the general public of pleasure boats [subject to varying conditions and charges], then the provisions of the Act [whether express or implied] would apply generally to all pleasure boats, unless and until later legislation expressly abolished the rights conferred.

If the enabling Act did NOT confer freedom to use the canal with pleasure boats for the general public, then I cannot see how the terms of the Act would apply at all. For so long as pleasure boats owned by ‘outsiders’ were not granted any statutory right to use the canal, any consent for such use could only derive from the canal proprietors, by way of consensual agreement.

To try putting it another way: there might well be NO statutory right to impose a charge, but if there is no statutory right to avail oneself of a service or facility provided by the company, they are free to deny that use to you. Statutory powers and rights no longer enter the picture.

On that basis, the legal argument of Peel’s lawyers, relying on the 1962 Act, are in my opinion, unnecessary besides being way off the mark – that Act does NOT [again in my opinion] give any rights to charge whatsoever [the relevant canal companies ALWAYS had rights to charge], it merely removed the requirement for the charges to be reasonable – as the British Transport Commission Act had previously demanded, while itself abolishing all previous fixed scale charges schemes.

However, in the absence of a general public right of navigation, you would need to arrange the company’s consent to navigate their canal, and in that case I am afraid that I cannot see how anybody’s interpretation of the statutes – mine or others - matters one way or the other. As I have said all along – the existence or not of that right is what you need to discover first and foremost.

In practical terms, of course, having not entered into any contract with Peel, you could not be sued [on my current provisional understanding] for breach of contract as to monies owed; they can take trespass action to remove you, as s.9 provides, but as you have stated, one can pass through the canal well within the time limits imposed on them for taking action under that power, so provisionally and practically, it would seem that the passage charge whether legal or not is unenforceable; you would only be in danger if you abused the situation for long enough.

Having said that, if the situation truly did become intolerable from their point of view, I am not so confident that they could not, if deemed worthwhile, create a manned barrier at each entry, and only allow passage on their own terms. If there is no PRN, then they would not be committing any offence in so doing.

 

 

 

Edit to add: the above comments need to be approached cautiously, from both ‘sides’; the example of the situation with BW post 1968 abolition of conferred PRN’s may be pertinent. From that date on use of ‘their’ canals became permissive only, yet they still needed an amendment to their byelaw making powers before being able to make boat licences mandatory. The Bridgewater byelaw making powers already confer that ability of course; they just have not bothered to act on that – rather similar to BW and CaRT imposing conditions of use outwith parliamentary consent, just because [in pragmatic terms] they have been able to do so largely without challenge.

However, when bandying around suggestions as to mounting a legal challenge, the example of the Nick Brown Judicial Review application must be borne in mind – there needs to be a concrete act complained of if the court is to be persuaded of a case to answer. Nick had not ever breached the terms of the CC Guidance, nor been accused of doing so, so his challenge was purely on an academic basis, which the High Court felt was insufficient.

Edited by NigelMoore
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1 minute ago, Athy said:

Let's face it, probably a large majority of CWDFers have never been there - which makes it remarkable that a thread about a lesser-known canal has generated such interest that it now stretches to 400 posts, quite an achievement.

Hard to believe but there are a significant number of boaters oop norf who do use the BWC albeit mainly as a through route. Yet there doesn't seem to be many cases where boaters have been charged and paid. I have no idea what the legal position is but it seems very likely that those signs and the reneging on the CRT agreement is just bluster on Peel's part. In a similar vein to CRT who don't appear to enforce the restrictions on BW license holders.

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The exemption quoted by Nigel, which is for pleasure boats owned by riparian owners, surely implies that those NOT so owned should pay? Otherwise there's no need for the exemption. 

I suspect, though I don't have enough info to be sure, that if two out of the three known cases no longer have boats, and the others were in hospital, there were more factors involved in their hassle with Peel than just a return within 28 days. 

Is it possible there are three separate arguments involved here, over licenses, overstaying, and the 28 day rule, and maybe they should be treated separately? 

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10 minutes ago, Midnight said:

Hard to believe but there are a significant number of boaters oop norf who do use the BWC 

Oh, I certainly believe that, as I have read in the pages of the thread that it is, or has been, a busy link route. But compared with the number of boaters on the Grand Union and other Midlands/South canals, their numbers must be smaller.

I don't think that any Northerner would say "Norf" instead of "North" - now watch one pipe up and declare that he certainly does pronounce it that way!

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4 minutes ago, Arthur Marshall said:

The exemption quoted by Nigel, which is for pleasure boats owned by riparian owners, surely implies that those NOT so owned should pay? Otherwise there's no need for the exemption. 

I suspect, though I don't have enough info to be sure, that if two out of the three known cases no longer have boats, and the others were in hospital, there were more factors involved in their hassle with Peel than just a return within 28 days. 

Is it possible there are three separate arguments involved here, over licenses, overstaying, and the 28 day rule, and maybe they should be treated separately? 

I think their is a moral argument on each of those points whether legal or not. I suspect most CRT boaters would respect a 7 days in a month 'rule'. I suspect the vast majority, if not all BW license holders would respect the charges for licensing and mooring. I am very confident that most CRT license holders think the return passage fee is unacceptable. It would perhaps be morally more acceptable if Peel charged a license fee like the Stratford if there were no reciprocal agreement at all with CRT.

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13 minutes ago, Arthur Marshall said:

The exemption quoted by Nigel, which is for pleasure boats owned by riparian owners, surely implies that those NOT so owned should pay? Otherwise there's no need for the exemption. 

I suspect, though I don't have enough info to be sure, that if two out of the three known cases no longer have boats, and the others were in hospital, there were more factors involved in their hassle with Peel than just a return within 28 days. 

Is it possible there are three separate arguments involved here, over licenses, overstaying, and the 28 day rule, and maybe they should be treated separately? 

I do not think it is an “exemption” from charges per se Arthur, otherwise your suggestion would be valid. It is rather an explicit conferring of a right for riparian owner/occupiers to use pleasure boats, and for those to be free from charges so long as the use was purely for pleasure and no locks used. The only implication involved would be that non-riparian boaters have no such right, whether subject to charges or not.

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9 minutes ago, Midnight said:

Sorry you misunderstand - my fault for the ambiguity. To put it another way does anyone think Peel will pursue someone who defaults on the charge?

I think the point is being missed here, or intentionally by some, hidden.

Peel Holdings are a property company. Their interests are in real estate not canasl, shopping centres, media cities or anything other than property and it's procurement, development and sale. They strip every ounce of profit from something and then dispose of the shell. And that is what they are trying to do with the canal. They have done nothing at all to improve it and they let buildings fall into disrepair and dereliction. They had a multi million pound lottery grant to build a cycle/walk way. It's called the Bridgewater Way. It stops about a mile from the end of the canal. Bridgewater didn't put a single penny piece of their own money in and the last mile or so is a mud bath. They won't even repair the towpath.

They closed the canal  for 4 months to 'repair a bridge' they said. They even told Towpath talk and other boating mags the same thing. They've put in a multi million pound bridge and service road.........not repaired a bridge that one farmer uses once a month to move a horse. They've now got access to acres of land to get planning permission on and then sell. And the canal will be in the way when they do.

Now they've introduced a bogus, unlawful and completely un enforceable toll and set of charges. With one intention. And that is to reduce traffic on the oldest canal in the country. If we didn't have the bridgewater we would likely have no canals at all.

I'm not saying it's wrong because I don't want to pay it. I'm saying it's wrong because they have no authority to charge it, they are breaking the law, they are threatening people with powers they don't have and they are killing the canal and most of the Cheshire ring

And to be honest Graham I couldn't give a flying anything for you or your tree!

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3 minutes ago, Athy said:

I don't think that any Northerner would say "Norf" instead of "North" - now watch one pipe up and declare that he certainly does pronounce it that way!

Northerners do say 'oop norf' but only when extracting the Michael from 'savernors gov.'

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2 minutes ago, Midnight said:

Northerners do say 'oop norf' but only when extracting the Michael from 'savernors gov.'

Doesn't count, lad. In any case, if extracting the quintessence we would say "Arp" rather than "oop".

Trust me on this, as a Northerner married to an Essex girl.

Edited by Athy
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1 hour ago, gigoguy said:

They are killing the canal and everything along it. And the only reason seems to be that they want it closed. They want to fill it in and drive over it to build on land adjacent. 

It is a legitimate concern – again, perhaps dependent on the existence or not of the PRN.

The BW example may also be pertinent here, if one trawls through the Transport Act 1968 for the import of the abolition of conferred PRN’s over waterways in BW’s jurisdiction. The whole point of that was to reduce the costly liability of BW for maintenance of the public ‘right of way’.

Abolition of any public right meant that the canals could be classified into 3 different categories for maintenance purposes – the “Remainder” category being then legally disposable and ripe for filling in if that was commercially viable.

By way of tentative comfort though, it must be remembered that the 1968 abolition was wholesale – including private, as well as public, rights of navigation, incorporating rights to keep and/or use boats on the waterway.

The Bridgewater may or may not have public rights of navigation, but it does still have private rights of navigation [as per the 1766 Act above cited], so filling in could not be legally [for what that is worth] accomplished for so long as those private rights remained in existence unaffected by any Parliamentary abolition.

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2 minutes ago, Athy said:

OOOOH, isn't he bold?

I loved Sheffield and, despite having lived in the country for many years since, I still remember it with great affection.

Bugger does that mean I get a 100 lines? I was brung up propa like at the other end of Yorkshire (then) I won't say where 'cos that would give you far too much ammunition for extracting even more Michael than exists in the whole of the Fens. I now live in sheep country (damn!!)

PS sorry to side-track the real debate but not one tree has been mentioned in these exchanges.

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Just now, Midnight said:

Bugger does that mean I get a 100 lines? I was brung up propa like at the other end of Yorkshire (then) I won't say where 'cos that would give you far too much ammunition for extracting even more Michael than exists in the whole of the Fens. I now live in sheep country (damn!!)

PS sorry to side-track the real debate but not one tree has been mentioned in these exchanges.

That's right, no trees have been harmed during this exchange - which did grow out of a comment relevant to the main thrust of the thread.

I'm not in the habit of extracting said Michael from any Northern place, especially if it is on the correct side of the Pennines. 

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5 minutes ago, Athy said:

That's right, no trees have been harmed during this exchange - which did grow out of a comment relevant to the main thrust of the thread.

I'm not in the habit of extracting said Michael from any Northern place, especially if it is on the correct side of the Pennines. 

Well if we're going to get all Rosey about this I've got to declare mine as red!

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11 minutes ago, gigoguy said:

Well if we're going to get all Rosey about this I've got to declare mine as red!

I suspected as much though any county which produces the likes of Jimmy Anderson can't be that bad.

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10 minutes ago, gigoguy said:

Well if we're going to get all Rosey about this I've got to declare mine as red!

Couldn't have been anywhere else, although I don't want to get into an argument over this seeing how you did bury our King in a car park in Leicester.

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Just now, Athy said:

I suspected as much though any county which produces the likes of Jimmy Anderson can't be that bad.

with equal respect to the mighty fred.....god rest him

1 minute ago, Midnight said:

Couldn't have been anywhere else, although I don't want to get into an argument over this seeing how you did bury our King in a car park in Leicester.

Yeah he owes Peel Holdings 10 trillion quid in over stay fees!

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42 minutes ago, Athy said:

That's right, no trees have been harmed during this exchange - which did grow out of a comment relevant to the main thrust of the thread.

I'm not in the habit of extracting said Michael from any Northern place, especially if it is on the correct side of the Pennines. 

There's plenty of trees being harmed in Sheffield. The council's contractors are cutting them down as we type.

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On 10/10/2017 at 09:11, mayalld said:

Such a form of words does NOT say that the Act DOES prohibit, but that the wording of the act, ADDED to an underlying common law precept totals to a prohibition.

Just a contribution to the more modern company powers [under Mem & Arts], and also the common law intervention argument, arising from material I was sent in another context some time ago:

The 1909 House of Lords judgment in the case of Amalgamated Society of Railway Servants v Osborne addressed both issues to some extent.

It affirms that companies incorporated under the Companies Act are in the same position as statutory bodies such as the canal and rail companies, in the restrictions on their powers to what was expressly provided. Lord Cairns, L.C., in his judgment in that case approves apparently of the statement of the rule ["that when a railway company has been created for public purposes the Legislature must be held to have prohibited every act of the company which its incorporation statute did not warrant either expressly or by fair implication.”]

In an earlier portion of his judgment he pointed out that limited liability companies created under the Companies Act of 1862 had not the powers of common law corporations, and gave the reasons why their operations must be restricted to those subjects expressly or impliedly mentioned in their memoranda of association"

These days, M&A’s seem couched in such general terms that they permit a company to do anything they want – and as I said earlier, Johnson drafted CaRT Ltd’s M&A’s specifically to [ostensibly] grant themselves powers which were dubious under, for example, the 1962 Act. Leaving aside the situation with most ordinary companies, I do wonder how far a company set up prior to having the functions and powers of a statutory body such as BW transferred to them, could legitimately expect that their M&A’s could over-ride the statutory restrictions that BW operated under. Especially when it usually takes expressly worded primary legislation to do so.

By way of comparison, the extent to which the Local Authorities Act purported to grant them the powers to act of an ordinary person, while something relied upon verbally and in casual correspondence by certain riparian Boroughs along the Thames, is something most Councils seem reluctant to push very far if at all [rightly so in my opinion]. That would seem a far more powerful mandate than unilaterally drafted M&A’s, so the limiting presumptions respecting the powers of mere legal corporate persons ought to stand un-watered down by these, especially where it is sought to provide “add-ons” to their powers.

Aside from that though, in respect of your suggestion that something which must be “taken to be prohibited” if not provided for in an Act is NOT a legislative prohibition, but rather “that the wording of the act, ADDED to an underlying common law precept totals to a prohibition "Lord Cairns, it seems to me, has not agreed with that. His wording is that where express or implied prohibition arises from an Act, “the Legislature must be held to have prohibited” it – not that the underlying common law prohibits it in the absence of statutory powers.

In short, as I understand the wording, he at least IS saying that the Act DOES prohibit.

Edited by NigelMoore
punctuation
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9 minutes ago, NigelMoore said:

In short, as I understand the wording, he at least IS saying that the Act DOES prohibit.

Sorry to be a legal thicko but to clarify, is it your understanding that the judgement would indicate that the (Bridgewater Canal enabling) Act does prohibit Peel from charging pleasure boats for passage (at least)?

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28 minutes ago, Cheshire cat said:

There's plenty of trees being harmed in Sheffield. The council's contractors are cutting them down as we type.

As I saw last week on the Sheffield History web site, yes. I was prompted to have a look at my old home (Gleadless Avenue) on Googlyspycamerathingy, and was pleased to see that it still has its trees.

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12 minutes ago, Midnight said:

Sorry to be a legal thicko but to clarify, is it your understanding that the judgement would indicate that the (Bridgewater Canal enabling) Act does prohibit Peel from charging pleasure boats for passage (at least)?

I am afraid not, quite. I am saying that IF there was a right for non-Bridgewater pleasure boats to navigate the canal, THEN the company would be prohibited from charging for it – unless and until they had the byelaws passed to which they are entitled.

Edited by NigelMoore
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