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How Many Straws To Break The Camel’s Back ?


Alan de Enfield

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10 hours ago, mayalld said:

There isn't a difference!

A Charitable Trust is simply one way in which a Charity can be organised.

The problem here is that too many people can't see past "Charity" as "An organisation that provides relief to people/animals", and they tie themselves in linguistic knots to say that CRT isn't a Charity, but it is something else that is vaguely Charitable.

All the tripe about "there are many definitions of charity, and most of them say...." means NOTHING.

There is only one definition that counts here, and that is the definition in The Charities Act 2011.

No matter how many dictionary definitions of Charity the hard of thinking wheel out, often to point out that CRT behaves in an "uncharitable" way, the simple fact is that it meets the definitions in the Act, and it is a Charity.

Charities have an absolute duty to use their funds for THEIR charitable purposes, as opposed to generally being nice to all comers. It might fit some people's definition of Charity if the RSPCA fundraising shop emptied their till and bought bacon sandwiches for the homeless, but that is NOT their charitable purpose, so they don't (indeed must not) do that.

In the same way, CRTs charitable purpose is maintaining the waterways, not providing free boat licences and free moorings to the poor.

 

Precisely this 

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It seems the Charity Act also moved the word charity on from just helping the needy. But I suppose there are lots of interpretations for the word needy to! 

(1)A purpose falls within this subsection if it falls within any of the following descriptions of purposes—

(a)the prevention or relief of poverty;

(b)the advancement of education;

(c)the advancement of religion;

(d)the advancement of health or the saving of lives;

(e)the advancement of citizenship or community development;

(f)the advancement of the arts, culture, heritage or science;

(g)the advancement of amateur sport;

(h)the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;

(i)the advancement of environmental protection or improvement;

(j)the relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage;

(k)the advancement of animal welfare;

(l)the promotion of the efficiency of the armed forces of the Crown or of the efficiency of the police, fire and rescue services or ambulance services;

(m)any other purposes—

 

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10 hours ago, MJG said:

I have read it suggested on here a good few times that CRT should cut people who can't pay their dues 'more slack' because they are a 'charity'.

A position born from ignorance of what CRT's charitable status actually is.

 

9 hours ago, Mike the Boilerman said:

I mentioned how on other threads people have on many occasions put forward the opinion that crt are a charity so should cut those who have fallen on hard times some slack, and I asked how this argument should be countered. 

It seems to me that the argument that CRT should give licences to people for free 'because they are a charity' is not workable. The way you could counter it is to say that the reason CRT should give licences to people who can't afford to pay for them is because the law says they have to. The conditions in s17 of the BW Act 1995 don't include a payment. As a public Trust exercising public functions, CRT is required to act in accordance with the law - the laws that govern the waterways as well as the Human Rights Act and the Equality Act. CRT do not have a power to refuse a licence to a boat that meets the 3 conditions in s17. They do have a power to 'waive' the fee that they charge for this under s43 (3) of the Transport Act 1962 - https://www.legislation.gov.uk/ukpga/Eliz2/10-11/46/section/43 - which is where they say the power to charge comes from (whether or not that is true.) They also have access to the civil courts to recover any debts owing to them. The refusal of a licence for non-payment has consequences for the boater - particularly one who uses his boat as his home - that are disproportionate to the wrong committed by not paying a licence fee.

It could be argued that as a 'public body' for these purposes, CRT should take into account any 'protected characteristic' under the Equality act that has precluded a person from paying for a licence (disability in particular) and either make a 'reasonable adjustment' under s20 - https://www.legislation.gov.uk/ukpga/2010/15/section/20 or consider themselves bound by s15 - https://www.legislation.gov.uk/ukpga/2010/15/section/15 the duty not to treat a disabled person in the same way they would treat a non-disabled person for things that have arisen from their disability. It could also  be argued that the Charitable Objective in paragraph 2.6.1 of the Articles of Association -  2.6.1 the improvement of the conditions of life in socially and economically disadvantaged communities in such vicinity;  along with some others of the Objectives and powers they have identified for themselves as a 'charity' would also justify the waiving of licence fees in certain circumstances. 

You could counter the argument that CRT should act reasonably because they are a 'charity' with reference to the fact that the HR Act and the Equality Act have far more in them to protect people from the unreasonable (or unlawful) behaviour of public bodies. If you were that way inclined. 

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9 hours ago, Mike the Boilerman said:

 

In addition there is a very loose correlation between dense-ness and ignorance. Dense people tend on the whole to be less well informed than bright people. Plenty of exceptions but in general this often holds true. 

This is also the reason politicians seem misguidedly to think education makes the population cleverer. Surely only dense people can possibly believe this! 

Err um oy mister I'm just Fikk so where do I stand here? :blush:

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On 10/12/2017 at 11:30, mrsmelly said:

Err um oy mister I'm just Fikk so where do I stand here? :blush:

 

If you were better informed, you would know!

This raises an interesting philospophical point. The people I meet who strike me as truly and stunningly Fikk still regard themselves as intelligent and rational human beings, as do I. This leads me to wonder if I am actually Fikk myself too, but just don't realise it. 

No responses are invited or necessary ;)

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4 hours ago, Teasel said:

 

It seems to me that the argument that CRT should give licences to people for free 'because they are a charity' is not workable. The way you could counter it is to say that the reason CRT should give licences to people who can't afford to pay for them is because the law says they have to. The conditions in s17 of the BW Act 1995 don't include a payment. As a public Trust exercising public functions, CRT is required to act in accordance with the law - the laws that govern the waterways as well as the Human Rights Act and the Equality Act. CRT do not have a power to refuse a licence to a boat that meets the 3 conditions in s17. They do have a power to 'waive' the fee that they charge for this under s43 (3) of the Transport Act 1962 - https://www.legislation.gov.uk/ukpga/Eliz2/10-11/46/section/43 - which is where they say the power to charge comes from (whether or not that is true.) They also have access to the civil courts to recover any debts owing to them. The refusal of a licence for non-payment has consequences for the boater - particularly one who uses his boat as his home - that are disproportionate to the wrong committed by not paying a licence fee.

It could be argued that as a 'public body' for these purposes, CRT should take into account any 'protected characteristic' under the Equality act that has precluded a person from paying for a licence (disability in particular) and either make a 'reasonable adjustment' under s20 - https://www.legislation.gov.uk/ukpga/2010/15/section/20 or consider themselves bound by s15 - https://www.legislation.gov.uk/ukpga/2010/15/section/15 the duty not to treat a disabled person in the same way they would treat a non-disabled person for things that have arisen from their disability. It could also  be argued that the Charitable Objective in paragraph 2.6.1 of the Articles of Association -  2.6.1 the improvement of the conditions of life in socially and economically disadvantaged communities in such vicinity;  along with some others of the Objectives and powers they have identified for themselves as a 'charity' would also justify the waiving of licence fees in certain circumstances. 

You could counter the argument that CRT should act reasonably because they are a 'charity' with reference to the fact that the HR Act and the Equality Act have far more in them to protect people from the unreasonable (or unlawful) behaviour of public bodies. If you were that way inclined. 

As far as I can see section 43 only relates to charges for services and facilities and not licences. On that basis they could waive a mooring charge but not the licence. A free mooring is not much help without a licence! However that power would have to be considered in the light of other duties, such as maintaining the waterway.

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1 hour ago, Mike Todd said:

As far as I can see section 43 only relates to charges for services and facilities and not licences. On that basis they could waive a mooring charge but not the licence. A free mooring is not much help without a licence! However that power would have to be considered in the light of other duties, such as maintaining the waterway.

You're right Mike - s43 does relate to charges for services and facilities, including, under s43(8) ' the use of any inland waterway owned or managed by them by any ship or boat.'  

When you get your licence terms and conditions you'll see at the top of it that it says: 'In accordance with s.43(3) of the Transport Act 1962, boat licences are subject to the conditions which apply to the use of a boat on any Waterway which we own or manage.' This is in fact not true.  Boat licences are subject to the conditions set out in s17(3) of the BW Act 1995:

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

(b)an insurance policy is in force in respect of the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and

(c)either—

(i)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; or

(ii)the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.

(my bold)

None of these, as you can see, requires the boater to pay for the licence. CRT are entitled to charge for services and facilities, including the use of the waterways, but not (technically) for licences, and not under s17 of the BW Act. They are entitled to refuse to licence a boat only where one of those 3 conditions is not met.

The only reason I can see that this is important for boaters who can meet those conditions, but not the licence fee, is that CRT routinely use s8 to enforce against boaters without licences. Where the 3 conditions are met, but not the charge, CRT is entitled to recover the debt through the civil court, but not to take the boat. 

In terms of the relevance of this to the original post - it seems incongruous that licence fees are rising whilst the services and facilities are getting worse. The issues around dredging, the removal of mooring rings, the additional charges for short term visitor moorings etc.. the payment is not for the licence- it's for the services and facilities. Whilst these are getting worse, we are expected to pay more to use them - and the charges demanded are related to our permission to be on the water - this is not right. 

 

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16 hours ago, rowland al said:

........I've learnt a few things I didn't know from this thread. Rudeness, or putting people down, doesn't do anything to help support an argument  or sway an opinion. 

Yes. To advance an argument I recall and early tip I learned: "Slinging mud means you lose ground"

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46 minutes ago, Horace42 said:

Yes. To advance an argument I recall and early tip I learned: "Slinging mud means you lose ground"

Mis-quoting someone or changing the context of what they said by editing a quote is even worse? 

Edited by rowland al
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2 hours ago, Teasel said:

You're right Mike - s43 does relate to charges for services and facilities, including, under s43(8) ' the use of any inland waterway owned or managed by them by any ship or boat.'  

(snip)

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless

(snip of rest of s17(3))

None of these, as you can see, requires the boater to pay for the licence. CRT are entitled to charge for services and facilities, including the use of the waterways, but not (technically) for licences, and not under s17 of the BW Act. They are entitled to refuse to licence a boat only where one of those 3 conditions is not met.

The only reason I can see that this is important for boaters who can meet those conditions, but not the licence fee, is that CRT routinely use s8 to enforce against boaters without licences. Where the 3 conditions are met, but not the charge, CRT is entitled to recover the debt through the civil court, but not to take the boat. 

(snip)

Is an offer, subject to payment, a refusal?

A shop could refuse to serve a customer; "the Board" cannot do likewise if the s17(3) conditions are met, but are they refusing if no payment is made, or is the customer refusing to buy?

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4 hours ago, Teasel said:

 

None of these, as you can see, requires the boater to pay for the licence. 

 

 

I have many times requested and received , from an agent of the C&RT, a written valid consent to navigate after providing evidence  in the form of current BSS and insurance certificates - but without making a payment.

The payment is taken a few weeks later by phone . 

Therefore I agree  the issue of a valid consent to navigate does not depend upon a payment being made in advance of the date of commencement of the consent. 

 

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2 hours ago, Iain_S said:

A shop could refuse to serve a customer; "the Board" cannot do likewise if the s17(3) conditions are met, but are they refusing if no payment is made, or is the customer refusing to buy?

The way I see it CRT are refusing to issue a licence. It's different to a private contract in a shop - any 2 people can make (or refuse to make) any contract they like providing it's not illegal. Even if it is profoundly unfair to one party, it'll still be enforceable (assuming there's no duress etc..) The difference is that CRT cannot make any contract they like - they are bound by law to issue a licence - a consent - where the 3 statutory conditions are met. As I said, the charges they set under s43 TA are still enforceable, just not through the refusal to issue the licence (and the subsequent use of s8). The licence is separate and different from the charge. 

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12 hours ago, Teasel said:

The way I see it CRT are refusing to issue a licence. It's different to a private contract in a shop - any 2 people can make (or refuse to make) any contract they like providing it's not illegal. Even if it is profoundly unfair to one party, it'll still be enforceable (assuming there's no duress etc..) The difference is that CRT cannot make any contract they like - they are bound by law to issue a licence - a consent - where the 3 statutory conditions are met. As I said, the charges they set under s43 TA are still enforceable, just not through the refusal to issue the licence (and the subsequent use of s8). The licence is separate and different from the charge. 

I just wonder whether there is some complexity in the phrase 'issue a licence'. Does it necessarily imply 'without charge'? It could mean that they are required to go through the process of exchanging one piece of paper (money) for another (licence) but that they cannot impose additional constraints on to whom they will issue such licences? Has anyone successfully in recent times managed to persuade a court that licences should be without charge? I can see that a court could well interpret the clauses to which you refer as being consistent with the current practice of paper exchanges (albeit electronically these days!)

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1 hour ago, Mike Todd said:

I just wonder whether there is some complexity in the phrase 'issue a licence'. Does it necessarily imply 'without charge'? It could mean that they are required to go through the process of exchanging one piece of paper (money) for another (licence) but that they cannot impose additional constraints on to whom they will issue such licences? Has anyone successfully in recent times managed to persuade a court that licences should be without charge?

Not as far as I know - and I wouldn't personally argue that they should be particularly. The recent Ravenscroft Case did consider the use of s8 for an unlicensed vessel though, and I think it brought some interesting things up:

'85 In my judgment, the purpose and objective of section 8 relates to the proper and safe management of the waterways and is not directly connected to licence fees. Its objective is to keep the waterways safe and accessible for all craft which use it and properly to regulate that use for all. Section 8 relates to circumstances in which boats are abandoned and stranded as well as when they are unlawfully on the waterway. It seems to me that the objective I have described is sufficiently important in the circumstances to justify the inroad into the right to property which it entails. If the CRT were not able to exercise such a power in appropriate circumstances, the waterways which they manage would be less safe and accessible to all.'

 In that case there was an argument about whether s8 can be used to recover licence fees, which CRT had been trying to do. It is CRT's obligation to manage the waterways safely. Section 8 is designed to allow CRT to do this job properly. Not paying is not being unsafe, as such, so the remedy is and should be different. CRT do refuse to issue licences without a charge, and theoretically, they can use s8 against an unlicensed boat. I don't know how often they do this (if ever). If they were to issue the licence providing the 3 conditions in s17 BW Act 1995 were met, and then use the civil courts to recover debts owing under s43 TA, (which they would almost always win, and would be of barely any benefit to any boater to allow them to pursue) then a boater would have the opportunity to defend their case for not paying (whatever that may be - being moored outside of the MNC being one possibility). As I understand it, they usually refuse to issue a licence without a fee, and then the enforcement process used is that under s8. This is completely disproportionate to any argument that is solely about fees. If they used the civil debt recovery process (which would usually be far more expensive to the boater if there was no case - so rare) then people who contest their need to show a licence could remain 'within the law', outside of the s8 process, and have their opportunity to raise their defense against the fees in court. If that makes sense?

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5 hours ago, Teasel said:

Not as far as I know - and I wouldn't personally argue that they should be particularly. The recent Ravenscroft Case did consider the use of s8 for an unlicensed vessel though, and I think it brought some interesting things up:

'85 In my judgment, the purpose and objective of section 8 relates to the proper and safe management of the waterways and is not directly connected to licence fees. Its objective is to keep the waterways safe and accessible for all craft which use it and properly to regulate that use for all. Section 8 relates to circumstances in which boats are abandoned and stranded as well as when they are unlawfully on the waterway. It seems to me that the objective I have described is sufficiently important in the circumstances to justify the inroad into the right to property which it entails. If the CRT were not able to exercise such a power in appropriate circumstances, the waterways which they manage would be less safe and accessible to all.'

 In that case there was an argument about whether s8 can be used to recover licence fees, which CRT had been trying to do. It is CRT's obligation to manage the waterways safely. Section 8 is designed to allow CRT to do this job properly. Not paying is not being unsafe, as such, so the remedy is and should be different. CRT do refuse to issue licences without a charge, and theoretically, they can use s8 against an unlicensed boat. I don't know how often they do this (if ever). If they were to issue the licence providing the 3 conditions in s17 BW Act 1995 were met, and then use the civil courts to recover debts owing under s43 TA, (which they would almost always win, and would be of barely any benefit to any boater to allow them to pursue) then a boater would have the opportunity to defend their case for not paying (whatever that may be - being moored outside of the MNC being one possibility). As I understand it, they usually refuse to issue a licence without a fee, and then the enforcement process used is that under s8. This is completely disproportionate to any argument that is solely about fees. If they used the civil debt recovery process (which would usually be far more expensive to the boater if there was no case - so rare) then people who contest their need to show a licence could remain 'within the law', outside of the s8 process, and have their opportunity to raise their defense against the fees in court. If that makes sense?

I realise most of that but it is always helpful to 're state. However, my post was in the context that earlier postings were attempting to suggest that the issue if a licence could not be conditional on payment of fee. What happens when a boater refuses to pay is another matter and is clearly arguable but CRT are entitled to use whichever of several remedies are available. Of course, they could be challenged over not managing properly but us yet another matter - one I know is dear to your heart!

But the start point has to be that they are entitled to insist on the paper exchange tgat some of us call paying for the licence.

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17 hours ago, Mike Todd said:

 my post was in the context that earlier postings were attempting to suggest that the issue if a licence could not be conditional on payment of fee.

My understanding is that CaRT are fully entitled to charge for the licence, and to refuse to issue one if the sum due is not paid up front.

To accept or refuse an application for a licence requires that an application for one is first submitted, and the payment is integral to the application; without payment, there is an invalid application – hence nothing to accept or refuse.

The principle is illustrated by the first statutory obligation for ‘relevant consents’: BWA 1971, s.6 (1) “The Board, on payment to them for the registration of any pleasure boat of the prescribed charge and delivery to them on a form to be supplied by the Board of the particulars which are set out in Schedule 2 to this Act . . . shall – . . . ( c ) issue to the applicant a pleasure boat certificate . . .”

The relevant charges were fixed by the statute as anything the Board determined “not exceeding the appropriate charge in that behalf specified in Part 1 of Schedule 3 to this Act.”

Once pleasure boat licences became mandatory following the 1976 Byelaws issued under authority of the BWA 1975, the 1971 fee schedules were abolished, and the pleasure boat certificates were instead, to be pegged at 60% of that charged for the now mandatory pleasure boat licences – as per the BWA 1983 s.4(1).

That rather compellingly, to my mind, suggests that up front payment for the pleasure boat licence [along with the specified particulars] is integral to a valid application for a pleasure boat licence, in exactly the same way the 1971 Act sets out what is necessary for any valid applications for the pleasure boat certificate.

Edited by NigelMoore
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19 hours ago, Mike Todd said:

earlier postings were attempting to suggest that the issue if a licence could not be conditional on payment of fee.

That's right - although a fee is owed for the licence, it has to be issued under s17 of the 95 act as long as the 3 conditions are met. 

 

19 hours ago, Mike Todd said:

CRT are entitled to use whichever of several remedies are available.

I disagree - they are not entitled to use s8 where the fee is the only issue. 

 

1 hour ago, NigelMoore said:

That rather compellingly, to my mind, suggests that up front payment for the pleasure boat licence [along with the specified particulars] is integral to a valid application for a pleasure boat licence, in exactly the same way the 1971 Act sets out what is necessary for any valid applications for the pleasure boat certificate.

I agree that there is a legitimate charge for the licence. I just see that the 95 act does not provide a power to refuse to issue one, just on the basis of a non-payment of that charge. There are other remedies available, and they can seek an order to revoke a licence from a court presumably, if it gets that far and a boater still refuses to pay. 

By the law of implied repeal, the sections you have quoted from the 71 act and the 83 act are superceded by the conditions in the 95 act. I am not arguing that this means there is no fee payable for the licence (I may earlier have separated the two but now I see) I am saying that although there is a fee payable, they cannot refuse to issue a licence purely on the basis of non-payment. This may be an accident, or it may be because of the dual function of the licencing regime to 1. allow the safe management of the waterways and 2. collect money for the upkeep of the same. The first would be obstructed by the second in that case - also, it is important to make distinctions in the law between the enforcement actions and remedies available in one case or another. I may be wrong, of course, that's the way I read it. 

 

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12 minutes ago, Teasel said:

I agree that there is a legitimate charge for the licence. I just see that the 95 act does not provide a power to refuse to issue one, just on the basis of a non-payment of that charge.

But, also consider that section 17 of the 1995 Act makes no mention that an application must be made, other wise how would they know you are requesting a licence ?

To repeat Nigel's point :

 

2 hours ago, NigelMoore said:

To accept or refuse an application for a licence requires that an application for one is first submitted, and the payment is integral to the application; without payment, there is an invalid application – hence nothing to accept or refuse.

 

 

 

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6 minutes ago, Alan de Enfield said:

But, also consider that section 17 of the 1995 Act makes no mention that an application must be made, other wise how would they know you are requesting a licence ?

To repeat Nigel's point :

 

From a purely practical point of view, I would say that you apply for a licence by filling in a form, supported by evidence of valid insurance and moorings  (and the fee) and for whatever reason CRT might not issue one, it is a matter of fact that you are unlicensed until they do. And if you think they were wrong to withhold a license,  you take CRT to court to get a judgement against them,  to compel them to issue a license. The clever strictly legal arguments put forward in this course of this thread, if accepted by the judge, might possibly technically win the case. Good luck.

Buy I think the victory will be short lived when you try to convince the judge that CRT should pay your costs. Case history is cluttered with 'wins' where costs have not been awarded. 

Alternatively you take your boat out without a license and let CRT to take you to court   - where I gather (from other threads) they will win their case because the reasons for not having a license are irrelevant. So you end up footing the whole bill.

Personally I just fill in the form and pay.  

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2 hours ago, Teasel said:

I disagree - they are not entitled to use s8 where the fee is the only issue. 

Did I mention s8 there? I just said that it is up to them to choose which of the available remedies they use. If s8 is not available then an competent lawyer will succeed in thwarting any attempt to use it and the court will agree. Otherwise they are entitled to use it - even if, as other argue, it is not the 'best' way to proceed. The law dopes not require us to act wisely . . . (For some of us that's probably just as well)

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