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Post by NigelMoore on May 18, 2019 12:22:45 GMT
District Enforcement, as with CaRT (via their T&C’s), rely on alleged Civil Contracts to permit enforcement of their unilaterally devised terms. However, apart from the inability for statutory bodies to impose contractual obligations contrary to their enabling statutes (as I have expounded on at length with reference to cases such as ‘ AG v Wilts Allied Dairies’*), in doing so they risk running foul of the ‘ Unfair Terms in Consumer Contracts Regulations 1999’. www.legislation.gov.uk/uksi/1999/2083/pdfs/uksi_19992083_en.pdf Unfair Terms 5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term. (3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract. (4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was. (5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.
Effect of unfair term 8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer. I may have overlooked it, but it seems to have escaped notice that members of the public can complain to (e.g.) the Consumers Association &/or the Director General of Fair Trading, either of which can be requested to apply for an Injunction against those seeking to impose unfair contractual terms. This might be a more sure defence against such abuse than alternatives, though DE has suffered more than a few set-backs in court actions against motorists, on various grounds that would equally apply to moorings. Government itself has been concerned with organisations such as DE, though understandably perhaps, only with respect to car parking – but the same principle applies. Some good discussion here - parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41*https://swarb.co.uk/attorney-general-v-wilts-united-dairies-ltd-ca-1921/ Most pertinent in relation to CaRT’s T&C’s as a condition of applying for boat licences - “ It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use.” Confirmed by the House of Lords - swarb.co.uk/attorney-general-v-wilts-united-dairies-ltd-hl-1922/
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Post by Deleted on May 18, 2019 15:50:11 GMT
So what will happen is that RBC will copy LBRUT (Richmond) and get a byelaw which prohibits anyone from mooring to their land. How about a 1 hour maximum after which you are subject to criminal proceedings even if you just wanted to leave the boat there for a day?
How pleasant.
I find it odd that boaters would view this as a positive outcome.
I suppose it would be quite appropriate for the Tesco biscuit factory moorings as you would have to be a bit of a head case to spend more than an hour buying food beer and maybe petrol at that shop !!
Could work.
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Post by Jim on May 18, 2019 16:41:06 GMT
Is a prn and accompanying benefits a statutory right? Can statute be overwritten by by-laws?
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Post by NigelMoore on May 18, 2019 17:24:28 GMT
. . . in fact the PRN allows mooring at all locations (and riparians know this when they take title to riparian land) for a reasonable time and in any event in a navigation emergency Just a necessary caution - in my opinion this is not the case at all. In English common law the PRN does NOT extend to any right to moor or access private riparian banks for any reason, however momentarily (emergencies excluded, but that is in the nature of an exception to a rule). Custom may have established prescriptive rights in certain cases, and statutory bodies having ownership or jurisdiction may (as in the Thames Conservancy Acts) be compelled to provide for free public access for mooring, subject to certain restrictions. Outside such instances, the public right is of passage only. Riparian owners are the only persons enjoying a right of access to their banks as an additional element of the PRN. Ball v Herbert 1789 was perhaps the first English case to overturn Bracton’s reliance on the Justinian civil code - which had stated the right of the public to access the banks of all public navigable rivers - but the principle was expanded and reinforced by later cases such as Blundell v Catterall 1821. In that case one of the prevailing judges cited Lord Hale, considered then the ultimate authority on the law of water: “ But if ‘A’ hath the ripa or bank of the port, the King may not grant a liberty to unlade upon that bank or ripa without his consent, unless custom had made the liberty thereof free to all, as in many places it is; for that would be a prejudice to the private interest of ‘A’, which may not be taken from him without such consent.” The same judge (Bayley, J) went on to say: “ No man can travel through this kingdom along the banks of rivers, without seeing that private rights, exclusive of public rights, exist there, and every one of those rights is at variance with the doctrine of Bracton, and with the supposed common law right now claimed.” . . . “I am of opinion, that no such right exists . . .” I think 4 judges gave their veridict in that case, with one dissenting and over-ruled. So my earnest caveat is to be aware of what is private bankside and what is not. The difference with banks owned by statutory bodies such as Councils, is that they cannot exert control outwith the terms of their enabling Acts, though those generally allow for passing relevant byelaws.
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Post by NigelMoore on May 18, 2019 17:29:06 GMT
Is a prn and accompanying benefits a statutory right? Can statute be overwritten by by-laws? Byelaws are secondary legislation and cannot conflict with or amend primary legislation, but what "accompanying benefits" to the PRN do you think are in conflict with such byelaws?
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Post by NigelMoore on May 18, 2019 17:37:26 GMT
So what will happen is that RBC will copy LBRUT (Richmond) and get a byelaw which prohibits anyone from mooring to their land. How about a 1 hour maximum after which you are subject to criminal proceedings even if you just wanted to leave the boat there for a day? Trouble now, is that the ridiculous strictures of Richmond have set a precedent. I filed a response to the consultation over Hounslow's recent byelaw proposals, pointing out certain logical absurdities with 1 hour limits, only to have Richmond's example repeatedly cited as good answer to my every point. Hounslow have in fact ignored the areas of longer permitted stays that Richmand accommodates, feeling that they are not necessary. They also kept citing their wondeful scheme for millionaire moorings at Watermans as demonstration of their pro-active provision of moorings, even though the byelaws will apply there. How many boaters stick their oar in with these consultations? If they get passed without intervention, then no grounds for complaint exist.
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Post by Jim on May 18, 2019 17:44:01 GMT
Is a prn and accompanying benefits a statutory right? Can statute be overwritten by by-laws? Byelaws are secondary legislation and cannot conflict with or amend primary legislation, but what "accompanying benefits" to the PRN do you think are in conflict with such byelaws? I thought mooring overnight was part of the prn.
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Post by NigelMoore on May 18, 2019 19:20:30 GMT
Byelaws are secondary legislation and cannot conflict with or amend primary legislation, but what "accompanying benefits" to the PRN do you think are in conflict with such byelaws? I thought mooring overnight was part of the prn. Mooring overnight is perhaps an almost inevitable component of navigation, and numerous instances within case law acknowledges this, but a right to moor in the course of navigation (whether by night or day) does not confer a right to access the banks belonging to private parties. One may always cast anchor in a river when needed, whether for rest or perforce because the tide runs out, and one may take advantage of mooring to the banks wherever the right to do so has arisen from established use or statutory grant; not otherwise. To take the example of Richmond, they could never pass byelaws preventing overnight mooring to the riverbed, especially given the specific right under the PRN protected by the Thames Conservancy Act, but they have not done so; they have only prohibited mooring to their bank absent their consent under terms.
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Post by erivers on May 19, 2019 21:03:57 GMT
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Post by Deleted on May 19, 2019 21:43:26 GMT
Yes I noticed that thread while I was out in the dinghy To be honest the last time I moored at Hampton court I had been doing some washing and inadvertently obscured the vessel name on the bank side and at the stern. This did seem to prevent issues while respecting the navigation authority's right to recognise the vessel.
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Post by Mr Stabby on May 19, 2019 21:50:52 GMT
Funnily enough, when I moored at the Tesco mooring at Reading last year, some reprehensible boater removed had removed all of the mooring notices with side cutters and set fire to them.
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Post by naughtyfox on May 20, 2019 6:36:30 GMT
The Disabled Motoring UK Awards ceremony, held September 27th at the Heritage Motor Centre, strives to celebrate the success of those improving the mobility of disabled people. We are pleased to announce that the winner of the Best Parking Award was one of our AOS members, District Enforcement. DMUK say the company show a commitment to ensuring disabled bays are used by the people who need them. Dyl Kurpil, Director of District Enforcement is proud of the achievement, “As a company, this award is a real testament to the high ethical standards we achieve on a day to day basis. Being the first private parking company to win the award, we believe it shows a real recognition of what can be achieved by legitimate companies operating to (and often exceeding) the standards set under the AOS code of practice.”
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Post by naughtyfox on May 20, 2019 6:40:07 GMT
District Enforcement are "the mooring specialists" (bottom left).
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Post by Deleted on May 20, 2019 20:11:26 GMT
Interesting to have another look at that thread. It seems that one of the Thames forum members is doing a proper investigation into what is happening with regards to data protection. Not sure if it will be pursued legally but its definitely quite an interesting situation as it does appear to technically be a data breach.
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Post by thebfg on May 20, 2019 22:16:24 GMT
I'm not going to register on that site. But if DE do not offer any independent appeal service, then that wouldent look good in court.
However they wont have the authority to take anyone to court and they wont have standing to do so.
However even if they had that right all authority would of been removed at the end of the trial.
I would go hard on them and demand they remove their details from the database.
There is no contract, why would a boater look at a car park sign. Blue P.
Can someone tell them never ever phone. They will twist your words and use it against you. Allways by letter with a free proof of postage, deemed delivered after 2 days unless proved otherwise.
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