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Post by NigelMoore on Jul 22, 2020 7:33:12 GMT
Has 'democracy' in the UK been a 'failure'? Truth is, there need be no conflict over which approach is best – ALL possible avenues need exploiting. That takes individual and unsupported action as well as concerted and coordinated group action. However the will to get involved is just not present it seems, and 'democracy' only stumbles along effectively for so long as there are activists enough to offset the hearth huggers.
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Post by NigelMoore on Jul 22, 2020 6:58:42 GMT
Victor Waddington, of barge operators E.V.Waddington of Swinton - anyone unfamiliar with the name or the company should look him up on the internet - was the successful claimant against BWB's failure to maintain the S&SYN to the statutory dimensions (depth) obligatory under the 1968 Transport Act, as a direct consequence of the barges he was loading down to the statutory depth for the S&SYN in Goole consistently grounding at several points along the canal and unable to reach their intended destinations. Thanks for that info Tony, I had always wondered whether s.106 had ever been activated.
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Post by NigelMoore on Jul 21, 2020 13:27:18 GMT
Government would exercise its
powers under the Transport Act 1968 to revise those dimensions so that they
reflected actual use and prospects of use.
Note two things from that quote – first, that the 1968 Act has ALWAYS allowed government to shift the goalposts as and when desired; second, that neither BW nor the government ever bothered to go through the necessary legal process to do so. The cosy agreement between DEFRA and CaRT that the law would be changed as needed to accommodate the fully anticipated maintenance failures, is something neither of them bother about either. Why should they? Nobody effectively protests the criminality of this authority in ignoring the statutes intended to bind them, least of all, it seems, the government that created them. When nobody knows or cares, or worse still knows, but supinely permits such abuse of authority and flaunting of the law to go unchallenged, then (to be dramatic about it) the very constitutional principles by which we are supposedly governed are undermined. Authorities no longer need right, they just need might. The failure to maintain the MNC to the current standard continues as an offence against the statute, enforceable under law unless and until the statutory process to diminish the dimensional parameters has been complied with. This is largely why – even though my reply to Kris observed at the outset that a s.106 case would be doomed to fail in the ostensible prime objective – I support the idea of a legal challenge. It sends the message home that some citizens at least, are concerned about both the worsening condition of the canals and the appalling freedom of the company entrusted with the care of them, to blatantly act against the law with never a hint of censure from government.
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Post by NigelMoore on Jul 21, 2020 7:51:52 GMT
I would not be surprised if some minion in CRT follows these boaters forums. That has been a long known fact Patty. It is probably even still the same person – Debbie Figueiredo. Her emailed copies of my posts on CWDF comprised the exhibits to 2 successive Witness Statements filed by CaRT's Lucy Barry (their Solicitor/Advocate) in their case to have me barred from representing Leigh Ravenscroft. So yes, whatever gets posted on these forums needs to be done with that in mind. I always saw it as a good thing - one sure way to get a message across!
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Post by NigelMoore on Jul 19, 2020 17:24:47 GMT
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Post by NigelMoore on Jul 19, 2020 17:13:03 GMT
Canal towpaths are not generally public rights of way. That could well be about to change next year. I'm not sure on the legal ins and outs, but I understand that there is some legal wrangling over the towpaths being made public rights of way. Despite the persistent bluffing by BW on this topic for the whole of their existence, the legal situation has always been that they inherited from the BTC a system whose towpaths had in many cases become public pedestrian rights of way following due process after the National Parks and Access to the Countryside Act 1949. The BTC vigorously opposed (during the obligatory public consultations and examinations) listing the affected towpaths as public access, but largely unsuccessfully. By the time BW came officially into existence,the PROW status of many towpaths had become legally identified by the “Definitive Maps and Statements” memorialising the national Borough findings. Not, of course, that BW let that inconvenient fact hinder them from lying about the true situation, and their success in maintaining the bluff is a matter of record. Bullshitting worked for them, and their successor has been finessing the techniques involved assiduously. The very fact that there is this talk of creating public access to already public access is quite extraordinary testimony to geneal ignorance and trust in corporate probity. Of course, I have not bothered to examine just how much of the towpath system remained unaffected by the 1949 Act; the BTC had certainly been correct in claiming that the Enabling Acts had conferred no public access, other than for boat operators, to the towpaths. So there might be something in the nature of a "clean sweep" by government in whatever may be envisaged in this "legal wrangling" - presuming that the government are actually involved in the wrangle? Extension of access to cycles was a further condition imposed under the Transfer Order 2012.
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Post by NigelMoore on Jul 19, 2020 16:26:28 GMT
It is not the few thousands it would cost for a diy claim that you need factor in - it is the potential liability for whatever they chose to throw at it that gives pause for thought. Hence my suggestion of a "mutual" goal. Sorry to keep troubling you Nigel. But I think this is an idea that has got legs, well it’s entertaining me to think about it at the moment. I know these are how long is a bit of string questions, but some sort of approximations would help work out the feasibility. What would the amount be that cart would use to try and scare any would be complainant? Also how long would it take to get to court? Quite a few years I would have thought, so if a certain amount of boaters would subscribe as it where. Then it might be possible to have accumulated quite a war chest by the time any judgment was reached. I think this kind of action brought by one person but backed up by numerous other boaters that had amassed evidence of the “neglect,” might have the desired effect of highlighting the situation and getting a judge or judges to have a closer look. Maybe some form of association created just for the bringing of this case? Anyway I again apologise for pestering you with my musings. Ps even though I’m not rich I think I could commit to £10 a month for the long haul. I’d much rather do this, than give cart more money through over inflated liscence fees. Which is nothing but a disguised gentrification scheme. Anybody who thinks giving cart more money will result in better maintained waterways is delusional. Predicting case timing is beset with problems currently for obvious reasons, but one could ordinarily expect a clearly presented case to go before the Court in 6-9 months. Costs CaRT would/could throw at it? Depends on whether they want to be vindictive or cooperative. IF they saw this as an opportunity to more widely publicise their claimed lack of funds for maintenance purposes (and regardless of what you or anybody else believes, that would constitute their sole available defence), then they might agree to each side bearing their own costs. Minimising their own expenditure would help bolster their case. IF on the other hand, they wanted to avoid any risk of Secretary of State censure and re- direction of funds from perks to maintenance, AND crush the upstarts who dared challenge them, then for limits you need to look at their budget allocation for the Legal Department. You could be looking at 6 figure minimums. Scaring potential opponents with such costs is always the first tactic of the big boys. The only way past that is to find someone with literally nothing to lose (ideally also, via Legal Aid, though whether that could apply to such a case brought in the public interest I couldn't comment).
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Post by NigelMoore on Jul 19, 2020 0:02:45 GMT
It is not the few thousands it would cost for a diy claim that you need factor in - it is the potential liability for whatever they chose to throw at it that gives pause for thought. Hence my suggestion of a "mutual" goal.
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Post by NigelMoore on Jul 18, 2020 23:13:45 GMT
Anyway back on subject, I’ve had an idea, well it’s a bit more of a question for Nigel at the moment. How possible would it be to bring a private prosecution against crt for wilful neglect? I don't believe a prosecution is appropriate in circumstances where the Transport Act 1968 (s.106) very specifically provides for members of the public to bring a High Court action against them for failing to meet their maintenance obligations. I do believe that that would be a worthwhile action to take – despite the inevitable failure of the case by reason of the “get out of gaol free” defence of impecuniosity. It would at least have the benefit of flagging up the situation (INCLUDING the pled lack of funds) to a wider audience, and perchance even awaken some interest in an idle MP's breast. (Put to them as part of a cunning plan, you never know - they might even be cooperative in going along with it without claiming costs, as part of a publicising exercise over their financial frailty.)
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Post by NigelMoore on Jul 10, 2020 11:29:00 GMT
Having re-read Mr Stoner's skeleton, I should apologise for for the suggestion that he concurred with the judge's finding that conferred riparian rights were repealed contrary to the Swan Hill and Paine judgments. The CCJ in fact referenced Swan Hill to the effect that IF the Act had conferred relevant unrepealed rights, Roberts would have inherited them.
Mr Stoner's argument had instead, been that the TA1968 had the effect of abolishing any rights to keep boats on the canals free of charges, even if the enabling Acts had granted that, but also that THOSE rights, anyway, referred ONLY to constructing lay-by's within the riparian owner's land, not to moor in the canal itself without payment. That latter part of the argument (accepted by the CCJ) was what Mr Stoner had successfully argued in Paine.
Still nonsense of course, and contrary to the later arguments of his client in other proceedings, but consistent.
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Post by NigelMoore on Jul 9, 2020 17:35:09 GMT
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Post by NigelMoore on Jul 9, 2020 14:40:00 GMT
the EoG situation has remained since then, where Stoner & Co had left it at County Court levels – that the boat licence did NOT confer any right for the boat to occupy “land covered by water”, this being (on Stoner's argument) a 'right to keep' a boat on the water, rather than a 'right to use' a boat on the water, both rights having been abolished by the TA 1968. Is that particular bit of C&RT/Stoner nonsense readily accessible via any link or already published transcript, Nigel ? Hostilities over C&RT's self-conferred, but nonetheless County Court endorsed, powers to suspend the river Trent PRN at will are about to resume, and I'm wondering if there could be anything in Stoner's EoG argument that they would prefer not to be reminded of. There were 3 relevant CCJ's Tony, which resulted in the publishing of BW's EoG 'Informative'. 1990 BW v Dawkins www.scribd.com/doc/297338822/1990-BW-v-Dawkins-1990 1991 BW v Allen, Crennell & Shaw - www.scribd.com/doc/297338821/BW-v-Allen-Crennell-Shaw-Judgment 2001 BW v Roberts www.scribd.com/doc/297338823/2001-Judgment-BWB-v-John-William-Roberts-8-August-2001 That last is extraordinary, because the CC judge happily declares therein that any conferred riparian rights – confirmed as retained by the Appeal Court in Swan Hill 5 years earlier (and by the High Court in BW v Paine only 3 years earlier) – had been abolished! Ignoramus (and note that Mr Stoner did not disabuse the judge of his error). The upshot was Mr Johnson's 'EoG Informative', which forms the essential basis for the subsequent varieties of justification. www.scribd.com/document/468570087/Eogmooring-Informative Note, however, that the core argument – as explicated most clearly in the 1991 CCJ – relied upon use of T&C's attached to issue of the boat licence - “Prior to 1973 . . . end of garden moorings did not require a permit from the Board.”
“In 1977 the craft licensing supervisor issued a new set of conditions relating to the issue of pleasure boats . . . which replaced the 1972 and 1973 licence conditions for pleasure boat licences.” . . . “most importantly . . . “Before arranging to moor to property not owned by the Board, the Board's consent will be required if the boat is in the Board's water although attached to to privately owned land and an appropriate fee will be charged by the Board.”
They had not let much time elapse once they had the PBL made mandatory the previous year! Of course, the 1995 Act rather dented the value of relying on the T&C's as a prerequisite for licence issue, but we have seen how they have pulled the wool over gullible eyes since then.
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Post by NigelMoore on Jul 1, 2020 22:07:18 GMT
I first read through this judgment in some dismay at the unquestioning swallowing of the Boat Licence “contractual” nature, alert to any knock-on effects in relation to other current issues plaguing yet another sector of boaters, with offside moorings that CaRT refuse to recognise. The refusal of the Appeal Court to consider my marshalled arguments on that topic (in the interests of focussing on a single issue), meant that the EoG situation has remained since then, where Stoner & Co had left it at County Court levels – that the boat licence did NOT confer any right for the boat to occupy “land covered by water”, this being (on Stoner's argument) a 'right to keep' a boat on the water, rather than a 'right to use' a boat on the water, both rights having been abolished by the TA 1968.
I have always maintained the nonsense of that argument, by reference to the wording of the 1976 byelaws, which provide that the PB licence confers – very specifically – the right to bring onto, let for hire, keep AND use the licensed boat on the Board's canals. The effect being that no further consent on CaRT's part is needed to avoid any trespass action simply for floating over the canal bed.
Since those 'simpler' times, of course, CaRT have finessed their whole boat licensing scheme theory into the realm of contract law, instead of the truth that it is bound by the terms of the relevant statutes. This has 'allowed' them (in practical reality, however illegally) to give or withhold the licence at will; limit what the licence does and does not permit, and render it all subject to their agreement based on the boat owner's enforced submission to an agreement to the arbitrary (and ultra vires) T&C's.
Now, however, this recent judgment has – in at least ostensibly accepting and wholeheartedly endorsing the contractual nature of the boat licence – determined the effect of that to be a grant of consent to occupy the land beneath the water on which the boat floats. Further, that this applies across the board, whether on a CC 14 day basis or in a home mooring situation.
The further serendipitous effect of this judgment therefore, is to hoist CaRT firmly by their own petard, and remove their long-held false rationale for giving or withholding consent for boat owners to moor to their own property.
Interesting.
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Post by NigelMoore on May 8, 2020 20:20:32 GMT
Not quite as simple as you make it sound. CaRT are not obliged to let anyone navigate the canals sans permission (licence), but they ARE obliged to keep the canals navigable for those with the requisite licence. They can be sued in the High Court for failure to abide by their statutory duty, as expressly provided for in the relevant Act.
Now, if you’ll excuse me, I need another fortnight’s rest for my poor overworked enfeebled old-git fingers . . .
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Post by NigelMoore on May 3, 2020 15:20:02 GMT
It’s not if a tracing app is used, it’s when it is used. I think it becomes a problem when it’s compulsory to have the app on your phone to access shops, services or even leave your house. If you can be arrested for not having an app on your phone, then to me that is a police state. By the way the NHS is working 24hrs a day on the app and it will probably be released this week. It's interesting you mention compulsory to have an app on your phone. Does this mean it is compulsory to carry a phone which is switched on and charged? Will police be given powers to detain anyone who has not got a mobile phone or has a flat battery? Part of the routine in Taiwan already, it seems – Timothy Conkling April 23 at 3:50 AM · This morning at 6:30 a.m. we were awakened by the police. My cell phone was plugged in but the cord didn't charge the battery so the cell phone turned off. This activated the police warning system so two officers showed up at our door wanting to see my identification. After this, I texted my quarantine officer who had brought me chocolates two nights ago and told her about my cell phone problem. I mentioned to her that I had been having problems with my phone and probably needed to get a new phone. One hour later, Claudia and two other police officers showed up at my door with a new Asus zenphone max cell phone! First chocolates, then a new cell phone! What will it be next!!! Only in Taiwan OITHe was admiring of the response; other comments suggested this was a great way to get an updated mobile, while others pointed out that they would be expected to pay for such replacements eventually. Only 6 deaths reported there thus far, I am told, and the degree of isolation of those tested positive or quarantined because of travel etc, means that no real 'lock-down' in general was needed, and Taiwan is considering lightening up further as nearly a week has gone by with no more reported infections.
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