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Post by NigelMoore on Nov 23, 2017 0:30:11 GMT
Finally managed to get to my mail yesterday, and pick up my prize – many thanks, Ross, very generous, and an interesting mix of candies and tools [most of which [edit to amend this, sadly, to ALL of it] have been appropriated by ‘Gilgie’s proprietor for her own consumption, on some feminine legal technicality I have yet to unravel]. However I had cut off and stored the wrapping paper before she arrived on the scene, so I have saved for myself the addressed page of stamps and the postcard, as possibly the best souvenir of it all!
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Post by NigelMoore on Nov 15, 2017 21:54:08 GMT
. . . answering the immediately pertinent question as to whether a licence is required if moored on private water [which is what a lay-by or ‘winding hole’ has created], rather than mooring to a private wharf merely alongside the canal, then you would not need one – CaRT could not legally demand that, any more than they could deny a riparian owner the right to create such a facility on private land in the first place. They would, of course, and I am in such a current disgust with the Courts at the moment, that I would expect them to support CaRT come what may – even if the judges DID recognise the legal realities. Apropos, the judgment in BW v Yardley Gobion marina recognised the rights of riparian owners to create such private waterspace under the relevant Acts [it only denied that the right extended to constructing full-scale marinas]. Understandably, however, BW/CaRT refuse to disclose the judgment [they claim not to even know about it]. Read more: thunderboat.boards.net/thread/2646/time-continuous-cruiser?page=4#ixzz4yXWwegL2
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Post by NigelMoore on Nov 15, 2017 21:09:46 GMT
Yes, Nick, I'm already there with the old codger bit! BUT BUT - I understand that it is the LAND under the water that can be considered private too. In which case, since I don't have to pay EOG charges, I believe that I don't need a license if I don't stray out of the winding hole mooring. Any help? I have tried to look this up for myself, but can't find the answer. OK I lied. I was hoping you guys could answer the question without me looking it up. Love to all, that is all! I DID answer your question, top of this page.
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Post by NigelMoore on Nov 14, 2017 23:37:59 GMT
Immediately after the navvies had finished digging it. I know I am an incurable pedant - but perhaps some time might have elapsed before they filled it with water - one would have hoped so, for the sake of the navvies; until then it was just a dry ditch, and the 'ripa' refers to land alongside water.
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Post by NigelMoore on Nov 14, 2017 23:12:39 GMT
BW/C&RT justify the EoG charge by presenting it as a fee paid in return for the exclusive use of "waterspace" directly above the bed of the canal equal to the area of water occupied by the boat in question, . . . which is, of course, precisely the same charge that the boat owner has already paid as a licence fee. Unless the owner has a boat that is capable of being in two different locations at one and the same time, then they are being charged for the same thing twice. Absolutely correct – but as CaRT would hasten to inform you, several County Court judgments have upheld their rights to demand EoG fees, albeit for varying, different reasons, and albeit based on false representation of the legal background [gosh, no new thing under the sun]. None of them binding judgments of course, so it remains challengeable as yet. Most riparian owners would not wish the hassle of course, so as I have said – if the owner is not you, you have no leg to stand on for disputing the charge, if the owner makes that part of his charges, or requires that you settle with CaRT over it.
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Post by NigelMoore on Nov 14, 2017 23:04:07 GMT
Just on a point of order, is there any such thing as a “riparian owner” on an entirely artificial waterway such as the Shroppie where the OP has his mooring? Of course there is. 'Riparian' simply refers to the bank, and virtually all artificial canals are fronted by private bankside land opposite the towpaths. There IS a distinction, though, between riparian owner rights on artificial canals as distinct from riparian owners on rivers; non-tidal riverine riparian owners are presumed to own to the centre of the river, and enjoy common law rights of use of the water flowing over their property. That does not apply to the canals, where the rights are granted by the terms of the statutes enabling the canal's construction, and where the canal company owned the bed. Such enabling Acts almost invariably conferred rights on riparian owners to create places for boats to lie [whether simple wharves, indented lay-byes or basins], and to turn around in [winding holes], etc, etc. Rights to use of the water within the canal [naturally including rights to moor boats] are not enjoyed as of right under common law, but under granted right. Originally, any right to keep or use boats on the main canal was included also, usually expressly so concerning riparian owners, but both private AND public rights of navigation were abolished in 1968, so the freedom to keep boats is now confined only to boats on private waters carved out from the owner's own property; as has been said earlier, if you moor on the canal alongside a private wharf on the banks of the canal, a PBL is now a requisite.
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Post by NigelMoore on Nov 14, 2017 22:49:03 GMT
This 'end of garden' licence subject keeps going round and round, and it is about time someone wrote a sensible guide to it all. I get confused. I have read that 'end of garden' licences are a fanciful concoction by CRT to rip boaters off, yet I hear landowners asking "Have you got an end of garden licence, as required by CRT?". There are threads and threads about this subject - and of course, very few wish to challenge CRT even if they are technically wrong as they may end up in the Courts being pissed on by judges who know nothing of the subject, and getting a good kicking in the goolies by CRT's lawyers. I have posted enough on this subject in CWDF, and am not only going to refrain from entering into lengthy analysis again just now, I am going to take time off from dealing with anymore legal stuff for a month or so of beachcombing life in sunnier climes - but if a landowner requires you to have CaRT consent to moor to his land, then the legal position is that you must, because he can set whatever conditions he likes for you to moor to his land, regardless of any limitations placed on CaRT by the relevant legislation. Only if you are the riparian landowner, could you mount any challenge to demands for EoG fees. That little distinction escapes many people. Boaters moored to private bankside on the Brent have been enjoying boat licence-free moorings for some years now, but have recently got all silly displaying their ignorance in raising scornful objections to the landowner's proposals to set up new mooring terms and conditions, grandly informing the owner that no boat licence is required here, so that ought not to be made [as is proposed] a condition within the mooring agreement. The raw fact is, that once the landowner implements the new mooring agreements, all boats using them will have to obtain boat licences - even though that will be only by reason of the landowner's wishes, and even though CaRT could never demand or enforce that.
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Post by NigelMoore on Nov 14, 2017 22:26:45 GMT
Tony’s comments are spot on. However, answering the immediately pertinent question as to whether a licence is required if moored on private water [which is what a lay-by or ‘winding hole’ has created], rather than mooring to a private wharf merely alongside the canal, then you would not need one – CaRT could not legally demand that, any more than they could deny a riparian owner the right to create such a facility on private land in the first place.
They would, of course, and I am in such a current disgust with the Courts at the moment, that I would expect them to support CaRT come what may – even if the judges DID recognise the legal realities.
Apropos, the judgment in BW v Yardley Gobion marina recognised the rights of riparian owners to create such private waterspace under the relevant Acts [it only denied that the right extended to constructing full-scale marinas]. Understandably, however, BW/CaRT refuse to disclose the judgment [they claim not to even know about it].
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Post by NigelMoore on Nov 9, 2017 21:53:07 GMT
OK, will post a photo - but as I say, it will be a week before I can check my mail, and am not quite sure whether the mini laptop I will have can do the necessary. If not, it will be another week again, because I am having to stick around for Leigh's next hearing before Chief Master Marsh [CaRT have made another - no doubt expensive - Application to get/maintain a charge on the property he has in trust for his children.
Certainly do not post any photos before I get it; I do not want a spoiled surprise.
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Post by NigelMoore on Nov 9, 2017 20:32:46 GMT
Damn, I could wish you people had waited before boasting of your loot and getting me salivating in anticipation; it will be a week before I can check out my post & see what awaits me.
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Post by NigelMoore on Nov 5, 2017 14:31:40 GMT
Nigel, forgive me again. Are you allowed to say whether or not you're able to continue working with him in a possible appeal? Sure. Nothing prevents me from continuing to help Leigh with an appeal, if permission is granted for that appeal. The Lords Justice on Wednesday advised both parties to seriously consider putting all this to bed; whether CaRT go along with that is anybody's guess; it would not be in character. On the other hand, an Appeal Court judge reviewing the case could easily refuse permission anyway, and these days, under new rules, no request for an oral hearing over permission is automatically granted. It does not help that Asplin J is now Asplin LJ, an Appeal Court judge herself! Would the Appeal Court permit an appeal against one of their own? That could be good news or bad. They could wish to show how open and accountable they were/are, or [as Leigh would probably have it] they would close ranks to stitch him up.
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Post by NigelMoore on Nov 5, 2017 14:16:47 GMT
Oh right. Does this mean that the PRN extends bank-to-bank then, or am I WAY out of date? As Nick has intimated, it was not so much the extent of the PRN at issue, as the extent of the MNC, although the extent of the PRN is a factor in determining whether, even if the registration requirement extends bank to bank, breach of that condition qualifies the boat as being " left or moored therein without lawful authority". A County Court judgment for the EA aginst Trotman and others, had agreed that the holding of a pleasure boat certificate did not confer any authority to be on the Thames, that right arising from the statutory PRN. Hence the distinction in legislation between pleasure boat certificates for the rivers subject to PRN, and pleasure boat licences [aka 'authority'] for boats on canals with no PRN. The extent of the PRN is an interesting issue regardless, which has a prospective impact on the MNC argument as well. As the Rowlands case against the EA had confirmed, ordinarily, on tidal rivers, the common law PRN extends bank to bank, while on non-tidal rivers the PRN is confined to the main channel. Where PRN's are confirmed by Parliament, the PRN can be extended over all adjacent waters and water courses [the recent Appeal Court finding in favour of the EA against boats in private marinas off the Thames, made the finding that those marinas also, under the terms of the 1832 Thames Conservancy Act, were embraced within public navigable waters]. A dubious finding in my opinion, but it was not appealed.
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Post by NigelMoore on Nov 5, 2017 13:54:48 GMT
Roundly dismissed by the Judge on all counts, seemingly in defiance of logic. Her position seemed to be more about what CRT reasonably needed to function, rather than what the law said. The usual thing of supporting the establishment. I believe he is going to appeal though. There are also complicated issues to do with costs. That is as beautifully succinct while accurate an analysis as I could only dream of achieving. Thank you. As mentioned to the Lords Justice on Wednesday, at the last [it may well have made a slight difference had I raised it earlier, when they were querying me over the Asplin J judgment], the application was lodged awhile back for permission to appeal, and I have given a link earlier to the Skeleton Argument for that. The application for permission to incorporate fresh evidence for that, was only lodged after we had come out of the costs appeal hearing. Part reason for delay in a response to date, was that the Supplementary Bundle contained more pages than the rules allow, so we had to retrieve it in order to extract some of the relevant legislation copies [which can always form part of an Authorities Bundle].
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Post by NigelMoore on Nov 4, 2017 11:35:34 GMT
Just as a matter of interest, to compare past and present control of towpath usage by pleasure boats: Section 10 of the 1801 Grand Junction Canal Act –
“And it is hereby further enacted, that from and after the passing of this Act, no Person or Persons whomsoever shall use any Pleasure Boat or Boats upon the said Canal or Collateral Cuts, or any of them, or any Part or Parts thereof, by towing the same with any Man or Horse, Men or Horses, or by any other Means, nor shall use any sails with any such Pleasure Boat or Boats, without the Consent in Writing from Time to Time of the said Company of Proprietors or their General Committee, or some Clerk or Agent of the said Company duly authorized for that purpose . . . and every Person or Persons using any such Pleasure Boat or Boats contrary to the Regulations and Provisions by this Act enacted, shall for every Offence forfeit and pay to the said Company of Proprietors any Sum not exceeding the Sum of Ten Pounds . . .”
That was a pretty hefty fine back in the 18thC; rather more, proportionately, than the usual £25, or even the £150 ‘charge’ on recent signs. One penny then was worth about £1 today, so the equivalent fine in today’s money would amount to a maximum imposable of approximately £1,000, if my poor maths work out aright!
Even a tenner for every time you connected with the towpath would get uncomfortable for some of us. Curiously, if you stay 15 days on a 14 day signposted mooring today, you get stung for £150, but would have had to pay exactly that if you stayed 15 days on the towpath back in the 1800’s [counting every day as a separate offence]. Not that you would have been allowed to of course, the commercial boats would have made sure of that, even if the GJCC had taken a back seat over it.
In fact the GJCC took very active steps to maintain a clear passage along the canal; the most notorious case being the eventual imprisonment of the Lord of the Manor of Rickmansworth, who slung a chain across the canal where it passed through and over his land, when the offer of payment for that land was insufficient for him.
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Post by NigelMoore on Nov 4, 2017 0:43:31 GMT
Cheers for clarifying that Nigel! 🙂 No problem.
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