|
Post by NigelMoore on Jun 19, 2018 14:52:47 GMT
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jun 19, 2018 15:06:23 GMT
Thats interesting Nigel.
It directly affects me as my CRT residential mooring is going from £9k p.a. to £12k p.a. over the next three years. With any luck I will be gone by then but the principle of rises like this is still a concern and its good that someone has picked it up. I fully expect BWML and Waterside moorings to be franchised at some point anyway and anything remotely resembling a London mooring will be subject to ridiculous increases until there is always a mooring available.
Market forces. It makes sense.
|
|
|
Post by NigelMoore on Jun 19, 2018 15:35:12 GMT
Well it does raise interesting points. Personally, I would have thought that the empowerment in s.43 of the 1962 Act, for BW to provide chargeable services and facilities relating to boating use of the waterways, would more naturally include moorings [and accompanying bankside facilities] than anything else. To claim that it does not – which has to be the case on Mr Deards’ argument that that is not a BW function – would necessarily entail disapplication of the “anything goes” freedom respecting charges & conditions for supplying these.
It inevitably also, raises the question of what, precisely, the services and facilities envisaged in the 1962 Act would include – especially given, as I have posted elsewhere, that BW initially at least [correctly in my opinion], regarded registrations & licences as outwith those.
|
|
|
Post by Allan on Jun 19, 2018 17:02:14 GMT
Well it does raise interesting points. Personally, I would have thought that the empowerment in s.43 of the 1962 Act, for BW to provide chargeable services and facilities relating to boating use of the waterways, would more naturally include moorings [and accompanying bankside facilities] than anything else. To claim that it does not – which has to be the case on Mr Deards’ argument that that is not a BW function – would necessarily entail disapplication of the “anything goes” freedom respecting charges & conditions for supplying these. It inevitably also, raises the question of what, precisely, the services and facilities envisaged in the 1962 Act would include – especially given, as I have posted elsewhere, that BW initially at least [correctly in my opinion], regarded registrations & licences as outwith those. I'm sure in past it has been argued that it is s.43 of the 1962 Act that allows C&RT to charge for mooring in addition to a licence/certificate. Certainly, its the argument for charging for overstaying. They argue that the mooring charge is a service rather than a fine or penalty.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jun 19, 2018 17:05:50 GMT
That's an interesting post because recently someone (possibly kris but maybe not actually him but the topic included his circumstances) suggested that if you have a "home mooring" you do not need to adhere to the regulations.
It seems like this is incorrect and I think I remember Nigel explaining that if you have a "home mooring" you actually end up with -less- rights than if you had declared no "home mooring" on your license application.
Its all quite complicated. And interesting.
|
|
|
Post by Allan on Jun 19, 2018 17:06:26 GMT
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jun 19, 2018 17:09:01 GMT
The old "service charge" thing used to come up on cwdf occasionally.
I seem to remember the argument being that to provide a service you have to be allowing something else above that which is allowed by the law. So for example if the mooring had electric supply then it would be a service but if it is a plain towpath mooring it is allowed in the 1995 act for up to 14 days.
Any charge bypassing this would be punitive and therefore a fine.
Or something like that !!
|
|
|
Post by Jim on Jun 19, 2018 17:29:11 GMT
That's an interesting post because recently someone (possibly kris but maybe not actually him but the topic included his circumstances) suggested that if you have a "home mooring" you do not need to adhere to the regulations. It seems like this is incorrect and I think I remember Nigel explaining that if you have a "home mooring" you actually end up with -less- rights than if you had declared no "home mooring" on your license application. Its all quite complicated. And interesting. I can't find the quote but Judge HJH Hilyard said in essence that those with a home mooring do not have to return to it, ever, and although they have to move every 14 days they do not have to travel "bona fide for navigation" so can bridge hop with impunity.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jun 19, 2018 17:33:58 GMT
I seem to remember Nigel dissecting it further and pointing out that people who have a "home mooring" actually don't have the right to moor for 14 days anywhere because that right is specifically awarded to those who do not have a "home mooring".
I guess a judge is probably a higher authority but I do wonder at times.
Eta I might have got that all wrong.
|
|
|
Post by TonyDunkley on Jun 19, 2018 18:19:59 GMT
Well it does raise interesting points. Personally, I would have thought that the empowerment in s.43 of the 1962 Act, for BW to provide chargeable services and facilities relating to boating use of the waterways, would more naturally include moorings [and accompanying bankside facilities] than anything else. To claim that it does not – which has to be the case on Mr Deards’ argument that that is not a BW function – would necessarily entail disapplication of the “anything goes” freedom respecting charges & conditions for supplying these. I'm sure Mr Deards will be only too delighted to explain away this apparent anomaly, . . . as soon as his foot gets better.
|
|
|
Post by Allan on Jun 19, 2018 19:45:56 GMT
Well it does raise interesting points. Personally, I would have thought that the empowerment in s.43 of the 1962 Act, for BW to provide chargeable services and facilities relating to boating use of the waterways, would more naturally include moorings [and accompanying bankside facilities] than anything else. To claim that it does not – which has to be the case on Mr Deards’ argument that that is not a BW function – would necessarily entail disapplication of the “anything goes” freedom respecting charges & conditions for supplying these. I'm sure Mr Deards will be only too delighted to explain away this apparent anomaly, . . . as soon as his foot gets better. Perhaps Mr Deards would also like to explain Nigel Johnsons argument regarding a duty to provide moorings under Section 17 of the BW 1995 Act and Section 10 of the Transport Act 1962. Its a long read but I think particularly in 17- 19 Johnson appears to be arguing that a statutory duty to provide 'home moorings' exists - www.whatdotheyknow.com/request/107044/response/266530/attach/html/3/Evidence%20of%20Mr%20Nigel%20Johnson.PDF.pdf.htmlHaving said that, it appears The British Waterways Board (Transfer of Functions) Order 2012 did not include Section 10 in the transfer. Perhaps Nigel can comment.
|
|
|
Post by NigelMoore on Jun 19, 2018 20:44:47 GMT
Not sure what comment I can make. On the face of it, it is all very weird. As you say, s.10 - indeed, whole swathes of the 1962 Act – were exempted from the transfer. However, s.10 to which you refer is very specific in commencing :-
“10 Duty and powers of British Waterways Board.
(1) It shall be the duty of the British Waterways Board in the exercise of their powers under this Act to provide to such extent as they may think expedient— (a) services and facilities on the inland waterways owned or managed by them . . .”
The twist, no doubt, is that the duty enumerated does not pass – but what of the power to do this?
If there is no requirement to provide services & facilities, what value remains with s.43, that has been transferred in relation to services & facilities?
They can charge what pleases them for services & facilities, but they don’t have to provide them; it’s an optional ability to provide them. Given that providing mooring facilities is not counted amongst the transferred functions, what optional services & facilities empowerment [if any] have been transferred? If they were of the nature of those provided for in earlier enabling Acts, then s.43 specifically does not apply; if having no relevance to relevant consents, what remains?
|
|
olive
Junior Member
Posts: 15
|
Post by olive on Jun 21, 2018 10:45:55 GMT
It seems to me that the power to establish and charge for moorings must come from s43, unless they are a consequence of the property ownership? Having just had a look at the transfer order, does anyone know why none of the British Waterways Acts (71, 74, 83, 95) are listed in Schedule 1? Where did they go?!
|
|
|
Post by NigelMoore on Jun 21, 2018 12:19:12 GMT
It seems to me that the power to establish and charge for moorings must come from s43, unless they are a consequence of the property ownership? Having just had a look at the transfer order, does anyone know why none of the British Waterways Acts (71, 74, 83, 95) are listed in Schedule 1? Where did they go?! Olive, the list of Acts in Schedule 1 are specifically General PUBLIC Acts [and a couple of items of public Statutory Instruments], whereas all the BW Acts you mention are PRIVATE, or "local" Acts. They are mentioned in s.2 of the Transfer Order - " Transfer of statutory functions
2.—(1) On the transfer date, the functions exercisable by the British Waterways Board—
(a)under or by virtue of the enactments listed in Schedule 1 (enactments conferring functions transferred by article 2), AND (b)under or by virtue of any local Act(1),
are transferred, so far as exercisable in relation to England and Wales, to Canal & River Trust." [my capitalisation & emphasis] The local Acts are those listed reference the (1), and embrace all the BW Acts from 1963 to 1995. www.legislation.gov.uk/uksi/2012/1659/article/2/made
|
|
olive
Junior Member
Posts: 15
|
Post by olive on Jun 21, 2018 12:24:11 GMT
Thanks Nigel, I didn't read hard enough..
|
|