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Post by Mr Stabby on Jan 21, 2017 16:54:15 GMT
I think Tony's views on the matter are somewhat akin to pikeys deciding that road tax isn't needed on their Ford Transits. Are you and your fellow moorers entirely happy to do that, . . . or is it just that you haven't thought about it enough and are allowing yourselves to be conned ? In practical terms, it's more that I know that if I don't renew my mooring licence when it falls due, I will face enforcement action, whether that be court action or my boat being seized. I am currently out of work through ill health and receive no benefits, I have a grand total of about £10,000 in savings which is nowhere near enough to be able to fund a lengthy legal fight with Shoosmiths or whoever. If others in a more financially happy situation wish to contest the legal case in court, then I will wish them all the best of luck. Until such time as a ruling is made that CRT cannot charge for mooring permits then I will carry on "allowing myself to be conned".
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Post by NigelMoore on Jan 21, 2017 17:17:18 GMT
Are you and your fellow moorers entirely happy to do that, . . . or is it just that you haven't thought about it enough and are allowing yourselves to be conned ? In practical terms, it's more that I know that if I don't renew my mooring licence when it falls due, I will face enforcement action, whether that be court action or my boat being seized. I am currently out of work through ill health and receive no benefits, I have a grand total of about £10,000 in savings which is nowhere near enough to be able to fund a lengthy legal fight with Shoosmiths or whoever. If others in a more financially happy situation wish to contest the legal case in court, then I will wish them all the best of luck. Until such time as a ruling is made that CRT cannot charge for mooring permits then I will carry on "allowing myself to be conned". That isn't allowing yourself to be conned; it is making a pragmatic decision along the lines of "discretion is the better part of valour" is it not?
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Post by Deleted on Jan 21, 2017 17:47:19 GMT
Therein lies the problem.
I have no doubt whatsoever that Nigel and Tony have the right answer, and that legally C&RT cannot charge for such moorings.
However they do; they seem to equally believe they are legally right; they will pursue enforcement action if fees are not paid.
One has to choose the course of action best suited to one's circumstances.
The problem with legal issues is that BOTH SIDES believe they are right and it will cost to discover which side will prevail.
Rog
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Post by TonyDunkley on Jan 21, 2017 18:53:30 GMT
Understandably, many are expressing concerns over the prospect of 'enforcement action' and legal battles in Court, but it should be borne in mind that C&RT really don't have anything much upon which they can build a solid argument for any sort of 'enforcement' or legal action against anyone mooring against privately owned land and refusing to pay EoG charges. They do in fact go a good way towards admitting as much in their Licence T&C's : -
SCHEDULE 2:
MOORING INFORMATION
LEGAL PROVISIONS AND GENERAL PRINCIPLES
1. There are no public law provisions concerning moorings along the Trust’s canals. This is entirely matter for management by the Trust as property owners.
. . . . . in other words, they don't have any say about, or any entitlement to charge for, mooring against property - ie. land - that they don't own, . . . which is why they have to resort to the ridiculous argument about the occupation of 'waterspace' that every Licence holder has already paid for.
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Post by bodger on Jan 21, 2017 19:24:08 GMT
you can put all sorts of spin on that statement. AFAIK it specifically states that CRT manages moorings ALONG the canals. That does not necessarily limit their management duties to moorings against CRT land.
................ or in other words: they have every right to have a say about their entitlement to charge for a boat that is moored up whilst floating on their water.
as I noted above, the licence gives you a right to navigate, not necessarily to occupy a fixed piece of 'waterspace'.
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Post by thebfg on Jan 21, 2017 20:47:22 GMT
There must be a way. Would it be possible to moor offside against property you have full permission to be on and not pay a mooring license.
And then convince cart that you have a home mooring thus getting permission to moor there without a permit.
Or is that to easy.
Obviously they would just deny you had a home mooring but on what legal basis could they do that and I wonder if putting it in writing would be a bad move for them.
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Post by NigelMoore on Jan 21, 2017 22:10:32 GMT
They really do not bother about "legal basis" beyond the s.43 that actually prohibits what they claim it allows.
The boat licence permits you to "keep" and "use" a boat on the canals, as Tony has said, the "navigation licence" is NOT permitting a boat only to keep on the move endlessly but never stopping. You still need a land owner's permission to moor to offside land [whether that be private or CaRT's], but for so long as your permission to float on the water is in place, no more is needed.
It should, however, be noted that 3 County Court judgments exist upholding BW/CaRT's rights to charge for EoG's on canals. These are not binding precedents, and each of them were decided on differing grounds - the 2 pre-1995 Act cases were decided on misleading claims that were acknowledged as baseless in the course of pursuing the 1990 Bill. The later one was decided on even worse grounds. I will try to find the posts analysing these briefly, that I posted on CWDF ages ago.
It would take a High Court judgment to make a binding decision on the issue; one readily won if armed with very comprehensive background and analysis of the law and prior cases, but not to be undertaken lightly; it would be a protracted process probably requiring an Appeal, and probably incurring crippling interim costs orders along the way.
I am not surprised that most shy away from this; it is precisely this prospect that CaRT absolutely rely upon for daunting potential challengers.
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Post by NigelMoore on Jan 21, 2017 22:30:09 GMT
OK, the earliest relevant post -
Posted 19 June 2014 - 11:49 AM
I have two County Court judgments where EoG charges were tested, BW winning in both instances . Neither formed binding precedents, and one of them preceded the 1995 Act which confirmed that ability to refuse or revoke a boat licence was restricted to the three conditions laid down therein [that is pertinent to the arguments advanced in the two cases]. [actually 2 preceded the act, the third came after] You are absolutely correct in what you say about a licensed boat being entitled to occupy water space whether moored or in transit – but the county courts were misled by BW into swallowing the argument that this is NOT the case. The judge in BW v Allen, Crennell & Shaw noted the defendants’ argument that their boat licence “to use” their boats on BW’s waters necessarily implied a right to keep their boats on them, whether stationary or moving – but concluded that however correct that might be “I do not follow their relevance as points which enable the Defendants successfully to attack the Board’s decision to make the issue of a mooring licence and the levying of a fee for it a pre-requisite to a successful application for a pleasure boat licence.” [my bold] This of course, is not an argument that can be upheld post the 1995 Act. It also relied heavily on the new 1977 Terms & Conditions of boat licences, wherein EoG mooring charges were introduced for the first time. These I have not seen and CaRT won’t produce them – but it matters nothing for present day purposes. The more up-to-date situation was covered in the 2001 BW v Roberts case. But even there, BW maintained that the boat licence, according to their new 1977 Terms & Conditions, did NOT grant a right to “keep” a boat on the water, only to “use” the boat – pointing to the 1968 Transport Act as having abolished rights of navigation which were explicitly expressed to include both the right to “keep” and the right to “use” a boat: - “The right to “keep” is clearly disjunctive from and a separate act to “use” a craft on the waterway or canal. The “use” element must be the transit element of navigation, whilst the “keep” must be the stationary element, or when the craft is moored.” That is perfectly correct of course; the problem is that the Terms & Condition DID include [by then at least] the stated rights granted by the licence to be - as it is today -- inclusive of the right to keep AND use a boat on the waterways. The court was misled into believing otherwise. The other argument presented, in rebuttal of the defendants’ reliance on conferred rights to moor under the Macclesfield Canal Act, was that they did not exist – a position that had already been rejected by Parliament when it specifically fenced such private moorings rights within the protection of s.20 of the 1995 Act. However, once again the Transport Act 1968 terms re: “use” and “keep” were applied to the effect that all such mooring rights had been repealed by s.105(5) & s.115(1a) of the Transport Act! The judge bought the argument. It is absolute nonsense of course – what was repealed was the conferred right to keep and use boats, not the right to avail oneself of the unrepealed right to moor a boat if legitimately on the water – whether, in other words, the boat is on the water by right, or by permission. Where necessary, the boat licence gives that permission for the boat to be kept on the water, and whoever owns the bank is the relevant owner to give the separate and distinct permission to moor to their property. So much for the County Court. In my own case, there is the obiter dicta of Lord Justice Lewison at Appeal which, though again not binding is persuasive, to the effect that it would be trespass to moor floating over someone else’s property – again ridiculous, he ignored the whole concept of usufruct and misapplied case law, but as it is not a judgment it can be readily dealt with in any future cases. The one clear message to come out of it all has already been long since acknowledged by BW/CaRT – there are NO statutory powers to control moorings, their argument for ability to control relies solely on common law rights of land ownership – rights to which, as a statutory body, they can have no access. Where they DO have offside bank property, their entitlement to charge whatever they like and under whatever conditions they set, are conferred by the original Enabling Acts as extended by s43(3) of the 1962 Transport Act
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Post by NigelMoore on Jan 21, 2017 22:36:03 GMT
The later post -
Posted 26 March 2015 - 12:26 PM Hawthorn, on 24 Mar 2015 - 10:12 PM, said: So what does the licence entitle me to, once I've got it? Just to clarify the effect of the licence to “keep & use” a boat on the waterway - because the ramifications need to be understood. The expression is used in the Transport Act 1968 to define the essence of the right of navigation. That these two elements exist within the right is an important fact mostly glossed over even in the relevant court cases over the last couple of centuries in this country. As persistently hammered by BW/CaRT’s solicitors for over 20 years, the principle element is that of passage – but what they have successfully blinded many judges to, is the other essential element: the right for the boat to be on the water whether moving or stationary; the right, in short, for the boat to occupy waterspace to the exclusion of others. They have been focussing on the single element of passage for obvious reasons: (a) they use this as a tool for interpreting the classifications of boats, and for interpretation of s.17(3)( c )(ii), & ( b ) they use it as a tool for justifying end of garden mooring charges. Their legal department is very acutely aware of the problem [as they see it] with boats having any right to be kept on the water. As expounded in a number of cases on the general principle over public rights of navigation [PRN] under common law, the right of passage necessarily includes a right to moor for temporary purposes in the course of a journey; what the right does NOT do, is extend that right to the other essential element of the act of mooring: attachment to land. Exercise of the PRN on public navigable waters has been taken to permit temporary grounding out on low tides, and dropping an anchor onto/into the bed, while expressly forbidding interference with the banks even momentarily. So in order to moor for any longer period than temporarily in the course of navigation [and even temporarily if mooring to the bank], the consent of the land owner must be obtained [except where the landowner’s power of consent has been modified or removed under legislation]. So the right to moor [as distinct from the right of passage] itself demands two elements: the right to occupy the waterspace, and the right to attach to land. Both elements are needed for the mooring to be lawful. You may have the right to keep your boat on the water whether moving or stationary, but you cannot rely on that right in order to moor, without the relevant landowner’s consent as well, and likewise: you might have the landowner’s consent, but you cannot exercise the right to attach to his land without the right to keep the boat on the water. In the context of the canals, where the PRN was abolished, the right to keep and use a boat on the water is conferred by way of the boat licence. In terms of using the canal, the right to attach to the public towpath enroute is granted in the licence for the standard maximum of 14 days [or less when specified]; the right to utilise CaRT’s non-towpath moorings is dependant on agreement with them outwith the licence right to moor in the course of passage, as is the right to moor to privately owned offside moorings dependant on the relevant owner’s consent. The question over the extent of the licence rights have been badly fought in a very few cases, before County Courts - not all of which have BW or CaRT seen fit to publish - and considerable reliance was placed, even then, on the supposedly binding nature of the then existing T&C’s – which prior to the 1995 Act were arguably worse than since. Previous to 1977 the T&C’s were, in terms of private moorings, in strict accordance with law. As recited by the judge in Allen, Crenell & Shaw: - “paragraph 1 of the 1972 and 1973 charges and conditions (pages 6 and 20) set out the charges for such moorings against Board property and continue "mooring at sites not in the Board's ownership where mooring is permitted (by the owner and with due regard to the requirements of navigation) is subject to whatever arrangements are made between the boat owner and the site owner, and does not require a mooring permit from the Board". . . .” “Thus it was clearly the case that in 1973, and for the subsequent years in which that form was used by the Board for pleasure boat licence applications, no charge would be made by the Board for "end of garden" moorings. Such a mooring required no "mooring permit", a document only necessary at that time for a houseboat as defined or a boat moored against Board owned property.” A year after introduction of the 1976 Byelaw making such boat licences compulsory, the T&C’s were arbitrarily altered: - “In 1977 the craft licensing supervisor issued a new set of conditions relating to the use of pleasure boats and houseboats on the Board’s waterways which replaced the 1972 and 1973 licence conditions for pleasure boat licences. The relevant changes I recite as follows: 1. 1973 paragraph 6 is amended by paragraph 7 as "The vessel shall be moored only at places where mooring is permitted by the Board'. 2. 1973 paragraph 15 is replaced by new paragraph 15 "The licence authorises the use of the boat only on the waterways shown as available for pleasure boats in the printed list issued from time to time by the Board..." and most importantly 3. The last sentence of paragraph 3 of the mooring arrangements is replaced by the last sentence in paragraph 1 as follows: “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 privately owned land and an appropriate fee will be charged by the Board".” [judge's underlining] Two things are obvious from the above: ( a ) the judge did not question the legality of the T&C’s nor the ability to arbitrarily amend them; ( b ) he understood [as indicated by his underlining] that the licence permitted “use” only, by boats, not that it allowed boats to be “kept” on the waterway. This was contrary to the terms of the byelaw as I have noted. Either the Licence at the time did not acknowledge that under the byelaw it consented to keeping and using a boat on the waterway, else that term was somehow overlooked. Certainly despite the contrary claims of the ensuing T&C’s, it has been incorporated into subsequent licences, although as the years of modification progressed, an attempt was made to remove the term “kept” into more obscure corners of it. Nonetheless the licence still [correctly] notes to this day in its preamble, that the licence entitles the boat to be “kept and used” on the waterways. The other topical consideration of the judge, given his acceptance of the false premise that the license permitted only “use” of the waterway, was his acceptance that BW were entitled to demand an approved and paid for mooring as a pre-requisite for licence issue – “It is maintained, again after resorting to the shorter Oxford English Dictionary for the definition of "use", that such use necessarily includes as a natural adjunct of navigation on the waterways the right to moor. And it is further to be noticed, say the Defendants, that no where in the conditions of the pleasure boat licence is it stated that a boat owner must also obtain a mooring permit in order to place and keep his craft on the waterway. As matters of necessary implication and/or as clauses set out in the pleasure boat licence those conclusions may be correct but I do not follow their relevance as points which enable the Defendants successfully to attack the Board's decision to make the issue of a mooring licence and the levying of a fee for it a pre-requisite to a successful application for a pleasure boat licence.” [my bold] He should have followed the relevance, but the argument was not phrased as well as it should have been. The history is as noted by the judge: - “The contrary argument is that the management and control of the system had by 1977 required much more intense attention, and that all craft, whether on the move or stationary, or at their "home port" were occupying the Board's "water-space", regardless of who owns the land to which their boats were secured, and the policing of the Board's water-space had become essential for the common benefit of all canal users, and an increase in management costs was necessarily involved. That was the justification for, not only the introduction of the approval of all mooring places as a pre-requisite to the issue of a pleasure boat licence, but also the imposition of a fee for "end of garden" moorings.” [my bold] What the judge overlooked in that was the effect of the first phrase I highlighted in bold – if the boat was entitled to occupy the Board’s waterspace by virtue of the licence, then it was entitled to do so “whether on the move or stationary”. That should have disposed of the argument even absent the unassailable licensed right to “keep” a boat on the waterways. The judge also wrongly construed [as is usual - BW invariably omitted the "Subject to . . ." opening element in court submissions] the effect of s.43(3) of the 1962 Act in saying: “the Board have ample powers pursuant to statute to impose such charges for, and to require such conditions as in their view shall reasonably attach to mooring and pleasure boat licences.” Of course, as I have quoted before, BW’s legal department knew better, as they indicated when arguing for the provisions of the 1990 Bill. This court case was instigated after promotion of the Bill was launched, and concluded years prior to the eventual passing of it in a considerably modified form. As we know, Parliament expressly limited the conditions requisite for obtaining the licence, such that the legal gymnastics indulged in with the Allen, Crennell & Shaw case were invalidated anyway. I forget off-hand the later case on the subject, where [as I recall] the loss of the pre-requisite T&C’s arguments meant reliance had to be placed on the absence of the word “keep” from the Licence documentation. Insofar [and if] that was the case, it was clear misdirection of the court, because by then at least the Licence DID include the relevant words, as they do to this day. [That is correct; the case was BW v Roberts as commented on in the earlier post, and BW falsely described the licence terms.] What is characteristic of the legal department is that they still place reliance on the “exclusive occupation of waterspace over our canal bed” argument for EoG’s despite the licence terms. That side issue aside, the history of their use of T&C’s is very revealing of the managerial policy. Arguably, they are improved rather than not, compared to say the 1983 ones, which stated that they could revoke your licence at any time, and for no reason at all if they chose! The tireless contributors to the Parliamentary examination of the 1990 Bill have given all of us a great deal to be thankful for. The Pleasure Boat Licence is NOT a navigation licence alone in the sense often argued then; it is a licence for the boat to be kept and used on the relevant waterways, the issue of which is subject only to the pre-requisites listed in the 1995 Act. And to add to that again - those who use that boat or any other, are obliged to use it in accordance with the relevant byelaws and statutory provisions, whether or not a boat licence is necessary at all
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Post by TonyDunkley on Jan 22, 2017 7:03:42 GMT
I am not surprised that most shy away from this; it is precisely this prospect that CaRT absolutely rely upon for daunting potential challengers. What comes to mind is the Mass Trespass on Kinder Scout of 1932. If all boaters, or a big percentage of them, refused to pay any more for offside moorings, the land of which belongs to other than CRT, it would be a big clout. en.wikipedia.org/wiki/Mass_trespass_of_Kinder_ScoutWell said Foxy, . . . when folk in sufficiently large numbers make their intentions sufficiently clear they will get the right result. Sad to say though, the lessons taught by even fairly recent history seem to be all to quickly forgotten. It was only some seven years after that mass trespass in Derbyshire when a big proportion of the World's population were forced into spending the next six years reversing the effects and results of appeasing and knuckling under to a bullying, dictatorial and ill-intentioned regime that began it's rise to power in Germany shortly after the rambler's successful protests. Obviously, I'm not suggesting that Parry and his coterie of like-minded turds will initiate another world war if left with a free hand to continue indulging their taste for intimidation, extortion and squandering millions of pounds of maintenance money on harassing and litigating against individual boatowners, but it is becoming increasingly apparent that our waterways won't survive very much more of their destructive and disastrous stewardship. Nothing less than a concerted and well publicized effort by large numbers of boatowners will have any real effect. Mass refusal to comply with any or all of their extensive range of unreasonable and unlawful demands will simply overwhelm the enforcement and legal departments by sheer weight of numbers, . . . individual compliance with those demands in the hope of being subsequently left in peace will do nothing other than encourage yet more of these excesses in order to continue diverting attention away from the piss poor job C&RT are making of looking after what they've been entrusted with. The meek, at least those amid the inland boating fraternity, won't be inheriting the Earth, . . what they will be inheriting if they don't join with those who are prepared to stand up to C&RT is a network of inland waterways that are fucked beyond redemption.
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Post by NigelMoore on Jan 22, 2017 13:01:14 GMT
It is very interesting and revealing that prior to pleasure boat licences becoming mandatory under the 1976 Byelaw – when, in other words, such licences were indeed a consensual agreement between boater and BW - the T&C’s were so much more sensible and law-abiding.
Only once the licences became mandatory, did BW radically alter the T&C’s to ostensibly grant themselves powers to charge for moorings not in their ownership, justifying the charges as part and parcel of their requirements for issuing the licence; agree to them or don’t get your licence!
What they conveniently overlooked was that once the licence became mandatory under the byelaw, the conditioning of the licence was likewise subject to the approval of byelaws for that purpose, as per the provisions of the 1975 Act, s.5. The whole T&C’s contractual scenario could no longer be applied.
Thankfully, the 1995 Act clarified that situation for us, and the T&C's arguments in the EoG cases prior to and during passage of the 1990 Bill can be binned as the rubbish they always were.
The later case of BWB v Roberts has an extra twist to it though. The befuddled judge in that case accepted an extended interpretation of the 1968 Act, whereby extinguishment of rights to keep as well as use boats on the canals was taken to apply to the conferred mooring rights of riparian landowners!
He recognised that this raised a query over the purpose of the rejected s.27 of the 1990 Bill, but brushed that aside with reference to the Select Committee minutes wherein BW’s QC allegedly said the clause referred to other obsolete rights [which was factually incorrect]. In making the finding that the 1968 Act abolished all private mooring rights, he was utterly oblivious to the recognition and protection of these in s.20 of the 1995 Act.
He even went so far as to deny that such rights were granted in the first place, which runs counter to all case law tying rights to use facilities to the rights to construct facilities – i.e. the right to use a wharf is inextricable from the right to have one.
As the T&C’s of the licence did not confer a right to moor, he found the EoG charge lawful. Since then, of course, it has been found that mooring without BW/CaRT’s permission is not, on its own, enough to make a mooring unlawful.
The sole remaining argument left is the distortion over “permanent occupation of waterspace”, which is as ridiculous as Tony says, and which raises a whole extra set of arguments I will not go into now.
The Roberts case, as with the prior ones, was the usual illustration of what happens when County Court judges are allowed to decide on issues of Statutory construction, when facing experienced professional litigants on one side, and litigants in person on the other. It is all but impossible to dislodge the bias from the minds of those judges in terms of respect for professional argument, especially if supporting the stance of a national institution. It can be done of course, but as a general rule you are likelier to get due attention paid to a litigant in person the higher up the judicial ladder you climb.
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Post by NigelMoore on Jan 22, 2017 13:16:18 GMT
I may have obscured the central point in the above analyses of the relevant court cases [however necessary it is to attempt that].
In simplest terms, what BW recognised pre-mandatory boat licences, was [paragraph 1 of the 1972 and 1973 charges and conditions]:
"mooring at sites not in the Board's ownership where mooring is permitted (by the owner and with due regard to the requirements of navigation) is subject to whatever arrangements are made between the boat owner and the site owner, and does not require a mooring permit from the Board . . ." [my bold]
Quite simply, nothing the Board could subsequently do outwith relevant primary legislation could hope to grant themselves powers not hitherto enjoyed, nor remove pertinent rights of private citizens.
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Post by NigelMoore on Jan 22, 2017 13:32:28 GMT
Contrary to the assertions of the judge in Roberts, the 1995 Act actively protected exercise of private rights of mooring – whether as conferred by the Board [via the enabling Acts] or simply enjoyed as common law rights attaching to ownership of land – from ever being classified as unlawful, even if boats had to be notified of a need to be moved temporarily to enable maintenance works [s.20].
Even when going on to provide for a mechanism for controlling the safety of constructions into the waterspace, the ability to grant certificates for those were not to be charged for, and were very specifically NOT to be used as a means of controlling the private moorings [s.21].
It is a source of wonderment how the judiciary, even at High Court levels, can so blithely overlook the ramifications of those sections.
In my own final Appeal the judges declined to look at this BW legislation, in the interests of narrowing the issues as far as possible, so final judicial acceptance of the obvious yet awaits us. I doubt that it will be raised again though, and the Parliamentary protections remain a powerful comfort.
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