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Post by IainS on Jan 1, 2017 23:19:11 GMT
"If a vessel is a hire boat, third-party managed share-owned boat, trip boat, rented residential boat, floating business or some other form of commercial or public vessel, the boat will be examined to the 2002 BSS Standards " Does that quote appear elsewhere than in the BSS guidance? British Waterways Act 1995 Schedule 2 Part II Para 3
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Post by tadworth on Jan 2, 2017 14:42:34 GMT
Yes CRT can change the BSS as they see fit, they do it regularly, the BSS is a organisation separate from CRT anyway. Does the MCA apply to canal craft ?
I would have thought the fact of English law that " you can do anything that is not prohibited by law " applies, it seems there is no legislation that covers trading from a boat, there should be, but there isn't. The trading licence is not statutory then, its just a fiction, or at best voluntary, CRT have no legal powers to create their own licence categories ?
Edit the last bit, no legal powers to create non statutory licences based on civil contracts.
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Post by NigelMoore on Jan 2, 2017 16:08:34 GMT
CRT have no legal powers to create their own licence categories ? They have legal powers to create whatever categories of Pleasure Boat that they please - with the only proviso being that the sub-categories cannot be charged sums greater than those for the standard pleasure boat licence. No such variable categorisation applies to commercial boats so far as I can recall; these are defined as those that carry goods, with no more extensive or alternative definition.
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Post by IainS on Jan 2, 2017 16:21:18 GMT
It does to some. Vessels carrying more than 12 passengers, on canals as elsewhere, are certified by the MCA, and do not need a BSS. The MCA also has oversight of passenger vessels carrying fewer than 12 passengers, and states what certification of skippers and vessels is acceptable to them. I believe they were pressing at one time for the skippers of all cargo carrying canal craft to hold a a Boatmaster's licence, with the appropriate grade and endorsements. (Not sure how far that has gone, TBH!) I suspect that your second paragraph could be argued either way. Why is a licence described as relevant consent? There is also the "hire pleasure boat" licence (about two and a half times the price of the normal pleasure boat licence), and Section 43 (3) of the Transport Act 1962has a place in the discussion! TBH, I don't think there is a serious possibility of CaRT handing control of trading vessels to the MCA, but charging at "hire pleasure boat" level might strike them as an idea, if the Trading Licence was done away with. I guess what I'm really saying is don't break it if it's working, especially if the replacement costs more
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Post by NigelMoore on Jan 2, 2017 16:40:15 GMT
You make interesting and useful points regarding the jurisdiction of other bodies Ian - but the points respecting BW legislation don't hold water.
As I said, sub-categorisation of pleasure boat licences are approved, but charging more than standard is prohibited. The fact that CaRT DO charge more is not proof that they are legally entitled to do so and therefore the legislation must so provide - the opposite is likelier to be true.
The controls on such charges [and the limiting of charges for pleasure boat certificates for boats restricted to rivers is another example] give the lie to claims over s.43(3), which has a place in the discussion only insofar as, read correctly, it emphasises limitations on charges rather than otherwise.
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Post by tadworth on Jan 2, 2017 18:12:12 GMT
What exactly is " the last foregoing subsection" in sect. 43 Nigel ? its a bit of legalese I have never understood.
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Post by NigelMoore on Jan 2, 2017 18:54:30 GMT
What exactly is " the last foregoing subsection" in sect. 43 Nigel ? its a bit of legalese I have never understood. The “ last foregoing subsection” in sub-section 3 of section 43, refers to subsection 2 immediately preceding it. Nothing terribly legalese about that. Subsection 2 itself refers back to subsection 1, paragraph ( b ), when clarifying that, although limits to charges and conditions were lifted insofar as original enactments imposed those, that lifting of such limits was not to be understood as enabling their successor to charge for anything those Acts had not specifically empowered them to charge for. The effect of “the last foregoing subsection” in other words, is actually the opposite of what CaRT would have us all believe.
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Post by tadworth on Jan 2, 2017 20:07:53 GMT
What exactly was permitted to be charged for prior to the 1962 act ?
A "local enactment" is a bylaw right ?
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Post by NigelMoore on Jan 2, 2017 20:58:30 GMT
What exactly was permitted to be charged for prior to the 1962 act ? A "local enactment" is a bylaw right ? A "local enactment" is not a byelaw; it is any and all of the hundreds of original enabling Acts that created the canal companies of which CaRT is the current successor. If a service or facility was not expressly chargeable under those Acts, it was prohibited to charge for it. That prohibition continues unless and until some later legislation specifically provides for a new chargeable service. Some "services" could not even have been contemplated at the time, because of statutory freedoms conferred by the Acts. Boat licences are an example, because these were never a legally imposable requirement for so long as a public right of navigation existed over the canals. They existed as an agreed alternative to paying tolls, which WERE imposable under a wide ranging set of rules, but that was matter of mutually agreed benefit to both parties to the contract. Even when the PRN was abolished in 1968, it took the 1975 Act of Parliament to extend byelaw making powers to include the imposition of licences for keeping and using boats on the canals, and that was only implemented in 1976. BW could never have made possession of such a licence mandatory prior to that time, nor could they ever have unilaterally imposed charges and conditions for that. There is much else, but it is too broad a question to answer "exactly". It is CaRT that need to be able to point to a specific power to charge for something if they want to apply s.43 to remove the restriction of reasonableness on the charges for it.
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Post by tadworth on Jan 2, 2017 21:59:25 GMT
Robert Brooks freedom of information questions are still awaiting a reply, www.whatdotheyknow.com/request/enforcement_officers_authority_t#outgoing-596561Robert Brooks 25 August 2016 Dear Adam Wilding, 1. The single most important point in the trusts position is that boat licences were not in existence at the time of the 1962 Transport act, and canals and rivers then had a public right of navigation, so nothing in this act could possibly apply to boat licences. (I noted that the actual legislation reads " ...and to make the use of those services and facilities subject to such terms and conditions, as they see fit" but does not contain the word "licence" as stated in the trusts reply ) If as the trust claims that sect. 43 grants them quote "broad powers" to create any terms and conditions as they see fit, it would make any further legislation uneccesary , parliament would not have then create the 1971, 1974, 1975, 1983 and 1995 BW Acts ? Furthermore, if the trust were able to set their own mandatory pre-conditions for the issue of a licence with no recourse to parliment no civil contract would be neccessary. The three previous points make it obvious that what the trust is claiming cannot possibly be true, despite the section 43 being quoted completly out of context. Questions. 2. Please confirm that there is no authority granted in any legislation either statute or bylaw to allow the C&RT to revoke, cancel or refuse a licence for any reason other than those listed in the 1995 BW act section 17 (3) ? 3. Please explain your meaning of the word "binding" that you used to describe the T & C's contract. I note that you did not use the words " legally binding". 4. Please specify what penalty of any kind there would be if any term or condition in this contract, that is not a statute or bylaw, is broken ? 5. Please confirm that cancellation of this contract does not permit the trust to revoke, refuse, suspend, or cancel a licence issued under statute ? 6. In your reply it states that the T & C's requires the licence applicant to comply with the relevant bylaws, but bylaws do not require anyones consent to agree to comply with them , everyone is bound by criminal law without a choice, why has the trust included bylaws in this document without clearly separating them from its own terms and conditions ? 7. What formal qualifications do the trusts enforcement officers have to make decisions as to whether medical conditions or mechanical breakdowns do or do not require overstays, or what timespan is reasonable in the circumstances ? 8. Who has authorised the trust to demand agreement from the licence applicant to this terms and conditions document as a pre-condition of issuing a licence under its statutory obligations ?
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Post by IainS on Jan 3, 2017 0:21:07 GMT
What exactly was permitted to be charged for prior to the 1962 act ? A "local enactment" is a bylaw right ? A "local enactment" is not a byelaw; it is any and all of the hundreds of original enabling Acts that created the canal companies of which CaRT is the current successor. If a service or facility was not expressly chargeable under those Acts, it was prohibited to charge for it. That prohibition continues unless and until some later legislation specifically provides for a new chargeable service. Some "services" could not even have been contemplated at the time, because of statutory freedoms conferred by the Acts. Boat licences are an example, because these were never a legally imposable requirement for so long as a public right of navigation existed over the canals. They existed as an agreed alternative to paying tolls, which WERE imposable under a wide ranging set of rules, but that was matter of mutually agreed benefit to both parties to the contract. Even when the PRN was abolished in 1968, it took the 1975 Act of Parliament to extend byelaw making powers to include the imposition of licences for keeping and using boats on the canals, and that was only implemented in 1976. BW could never have made possession of such a licence mandatory prior to that time, nor could they ever have unilaterally imposed charges and conditions for that. There is much else, but it is too broad a question to answer "exactly". It is CaRT that need to be able to point to a specific power to charge for something if they want to apply s.43 to remove the restriction of reasonableness on the charges for it. If I'm following that correctly, section 5 of the 1975 Act allowed BW to make byelaws excluding any vessel from canals except in compliance with such conditions as the Board prescribed, which allowed a licence to be one of the conditions. If nothing else, it demonstrates that the result of changes are far from obvious!
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Post by NigelMoore on Jan 3, 2017 0:29:14 GMT
You followed that correctly. Prior to that Act they could not make such a byelaw; that clause was brought in specifically in order that they could make a boat licence mandatory.
They never followed up with any further conditions to be attached to the licence by way of byelaws. They did, however, introduce conditions relating to building standards within the 1983 Act, but those were abolished with the 1995 Act that replaced them with a simple requirement to hold the BSSC.
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Post by IainS on Jan 3, 2017 0:49:48 GMT
The “ last foregoing subsection” in sub-section 3 of section 43, refers to subsection 2 immediately preceding it. Nothing terribly legalese about that. Subsection 2 itself refers back to subsection 1, paragraph ( b ), when clarifying that, although limits to charges and conditions were lifted insofar as original enactments imposed those, that lifting of such limits was not to be understood as enabling their successor to charge for anything those Acts had not specifically empowered them to charge for. The effect of “the last foregoing subsection” in other words, is actually the opposite of what CaRT would have us all believe. My reading is a bit different. Transport Act 1962 Sec. 43 (1) ( b) removes any limits of charges set by previous other enactments. 43 (2), however, modifies this in that , if a previous another enactment "expressly provided freedom from charges or prohibited the making of a charge", BW (as was) could not levy a charge. 43 (3) then follows on, allowing BW to charge for services and facilities, and make the use of services and facilities subject to such conditions as they see fit. 43 (8) then expressly states that "services and facilities" includes the use, by boat or ship, of any inland waterway owned or managed by them. The way I read it, BW (CaRT) can charge for "services and facilities", unless another enactment states explicitly that no charge was to be made.
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Post by tadworth on Jan 3, 2017 1:27:25 GMT
General Canal bye-laws.
30. No vessel on any canal shall without the permission of the Board be used as a club, shop, store, workshop, dwelling or houseboat.
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Post by IainS on Jan 3, 2017 11:32:10 GMT
General Canal bye-laws. 30. No vessel on any canal shall without the permission of the Board be used as a club, shop, store, workshop, dwelling or houseboat. ... and such permission would be a service or facility, and therefore could be charged for.
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