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Post by NigelMoore on Oct 19, 2016 21:34:19 GMT
CaRT have been busy lately, keeping those 3 newly appointed solicitors on the run. The Ravenscroft/Dunkley sagas have obviously been insufficient to fill those 9-5’s, so a few weeks ago they starting expanding the “Enforcement” activity over on the Yorkshire Ouse. They had been threatening action against one boat owner there last year, who on my advice decided to pay up under protest while the Ravenscroft Claim was proceeding. Now, as of a few weeks ago, a bunch of his boating neighbours have been subjected to the same treatment. Seemingly, however, the boaters there share a tighter community spirit than elsewhere on the waterways, and members have been quietly investigating the legal background and historic position on boat licence requirements and section 8 proceedings. A FoI request has been filed today, asking how many s.8’s have been issued against boats moored to private property on the Ouse; how many such boats subsequently purchased licences; how many such boats suffered further action – including court proceedings, fines, or removal of the vessel from the waterway; how many s.8 notices are currently in force against such boats, and how much licence income CaRT has received from the Ouse boats since CaRT took over. The answers will provide some fascinating insights into the extent of such criminal activity. At the moment, CaRT are asking for clarification over which river Ouse is referred to. www.whatdotheyknow.com/request/section_8_notices_river_ouse?nocache=outgoing-590144#outgoing-590144 ‘Anyone’ would think that, having only just having to ask the Nottingham Court to adjourn the Dunkley Claim pending resolution of Ravenscroft, they would have deferred taking any more action against a bunch of others, but obviously not. In fact, so far as I can see, their position is foursquare with the position of boaters on the river Brent, so that the 1971 Act has no application anyway – but I have continued to advise payment under protest, putting CaRT on notice that when Ravenscroft is finally determined, they will be applying en masse for refunds with interest, and following that with private criminal prosecutions against all those individuals in the chain of command. It is not that the first boater targeted last year had not engaged in extended correspondence seeking clarification of the legal position from the CaRT enforcers, and the usual confab has gone on with the legal team – so they will be proceeding with full knowledge of the legal situation. Not that, with criminal activity, ignorance of the law would have been any defence anyway. It promises to be an interesting year ahead.
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Post by kris on Oct 19, 2016 22:08:01 GMT
You can see why they put so much effort into trying to besmirch your character in court.
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Post by NigelMoore on Oct 19, 2016 22:26:38 GMT
An interesting item that was revealed to me [but I have not seen a copy of the communication in order to be able to verify] was that one of the CaRT responses to the previous boater “claimed that he should pay them since he gets a 'benefit' from their management of the waterway”.
If true, then that is revealing of the extent of their knowledge. There would be no need at all, to seek to justify the payment of licence fees, or to place a moral guilt on his shoulders, if they knew these to be mandatory anyway.
That prior boater was served with the usual s.13 in tandem with the s.8; I have not found out whether the same was applied to all the recent ones.
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Post by NigelMoore on Oct 19, 2016 23:02:32 GMT
You can see why they put so much effort into trying to besmirch your character in court. I have been trying to compose a suitable response to that, but am going to give up. It could be taken/responded to in too many different ways!
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Post by erivers on Oct 19, 2016 23:12:25 GMT
A very similar claim is being made by the EA in their skeleton argument in the Thames 'adjacent waters' high court appeal against boaters permanently moored in private off-river marinas who do not navigate the river or use any of the navigation works.
To quote: "They would not ........ contribute in any way to the maintenance and operation of the river Thames by the Environment Agency. Conversely, they would continue to benefit from the maintenance and operation of the river Thames, in terms of both water levels and availability of access to and from the main river."
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Post by NigelMoore on Oct 20, 2016 11:10:07 GMT
You can see why they put so much effort into trying to besmirch your character in court. Is “besmirch” quite the right word I wonder? They certainly sought to disqualify me. In the words of Chief Master Marsh, outlining CaRT’s case for refusing Leigh’s application to have me act as McKenzie Friend: “ The CRT's evidence 12. refers to a number of points:
i) Criticism was made of Mr Moore by Hildyard J in a judgment dated 16th February 2012 in Moore –v- British Waterways Board [2012] EWHC 1175 (Ch). The judgment dealt with the costs of the claim and the judge noted at [25]:” . . . “In my main judgment, I characterised his approach as being somewhat relentless and obstinate." This comment is what has captured the eye of most commentators. Google ‘ relentless and obstinate’ now, and the first page of results is all about me! It is very poor showing of the judge; as if dogged pursuit of one’s rights was objectionable in and of itself. I have to wonder whether he would have made the same comment if the end result of his deliberations had not been faulty, and that BW were NOT entitled to evict me from the waterways. “ ii) The CRT points to a number of costs orders which have been made against Mr Moore which he has not met and in particular to an order for costs against him which he offered to pay at the rate of just £1 per month. There remain unsatisfied costs orders in favour of the CRT against Mr Moore.” It is unfortunate that the Master made no reference to what I had told him at the very first CMC – that on balance, given the eventual quashing of the Hildyard costs order, and the Appeal Court’s award of 75% of my costs over the past 3 years of litigation, the balance of sums owing will be very much the other way around. He does have that on record though. “ iii) Mr Moore has on several occasions posted observations about this claim on an online forum where matters of interest to boaters are posted. He based his observations about the CRT's recent defence within twenty minutes of having seen it, observing that it is "surprisingly weak" but also saying that he will have to go through the defence with Mr Ravenscroft and "pick it apart".
iv) Later posts also refer to Mr Ravenscroft's determination to keep the issues of this claim in the public eye and he refers to other possible candidates who might act as a McKenzie friend for Mr Ravenscroft.” This was very much an ‘own goal’ for CaRT I think. Reading through those posts convinced the Master that I was not seeking to usurp Leigh’s conduct of the case, and he characterised my Forum and other input as not amounting to what Stoner claimed as being a professional MF, and in fact “ is, no doubt, an extremely useful resource for boaters to rely on.”
What they had intended to make out of the excerpt from one of emails, I still cannot work out, but if the Master DID read that, it certainly did not persuade him that I was an unsuitable candidate for Leigh’s advocate.
On balance, if their intent was indeed to "besmirch" my character, it rather backfired.
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Post by NigelMoore on Oct 20, 2016 13:01:26 GMT
A very similar claim is being made by the EA in their skeleton argument in the Thames 'adjacent waters' high court appeal against boaters permanently moored in private off-river marinas who do not navigate the river or use any of the navigation works. To quote: "They would not ........ contribute in any way to the maintenance and operation of the river Thames by the Environment Agency. Conversely, they would continue to benefit from the maintenance and operation of the river Thames, in terms of both water levels and availability of access to and from the main river." Yes – it is an extraordinary thing to present as an argument for re-interpreting legislation! If Statute requires paid registration, then that is an unarguable requirement. The need for that extra income only comprises an argument for getting Parliament to confer the obligation in the first place. Not only that; no imposition upon the public rights of navigation in such a fashion may be made without a demonstrable quid pro quo. Where [and it was the same with the BW rivers] it is difficult to point to any extra public benefit from the registration requirement and attendant income, the case for the imposition becomes difficult to sustain. BW achieved it, in 1970, by promising extra elsan disposal points – what did the EA promise?
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Post by kris on Oct 20, 2016 14:21:01 GMT
You can see why they put so much effort into trying to besmirch your character in court. I have been trying to compose a suitable response to that, but am going to give up. It could be taken/responded to in too many different ways! I wouldn't have thought my post was worth the effort. Your right besmirch is probably the wrong word. But they do seem to be putting a lot of effort into getting you not to help boaters with there legal problems. If I was you I'd take it as a compliment because they obviously are afraid of the knowledge you have of waterways legislation. Um I wonder if they have a hit team lined up?
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Post by NigelMoore on Oct 20, 2016 15:04:18 GMT
I have been trying to compose a suitable response to that, but am going to give up. It could be taken/responded to in too many different ways! If I was you I'd take it as a compliment because they obviously are afraid of the knowledge you have of waterways legislation. Um I wonder if they have a hit team lined up? They spent over a year, and roughly ten grand on the attempt, so yes, it was certainly a sinistral compliment. They have tried it before in other proceedings, and managed to succeed in blocking my Witness Statement, and barring me from giving evidence, supporting another boater’s case over BW’s land registration fraud back in 2008 .When that hearing finished, I did go up to Mr Stoner and ask him whether I should be flattered by his opposition to having me heard. He genially said I could take it that way if I wished, to which I responded that it seemed the pleasantest way. The consequence of being silenced in that court-room, was that essential information was withheld from the Adjudicator, and a false impression gained as to the effect of a judgment in a previous case I had argued. Curiously, as a direct result of CaRT seeking to gain court approval for a re-interpretation of the judgment in question, we ended up many years later, in front of the same judge [promoted by then, from merely ‘Adjudicator’]. I pointed out to the judge that he came to the case with his mind already made up - having decided in favour of CaRT’s interpretation in the other boater’s case - and that to agree with my position was to acknowledge that his previous decision was wrong. Surprisingly, the ensuing decison [though very waffly and obscurely worded] DID agree that the ‘Geronimo’ judgment relied upon affirmed that BW could not lay claim to land for which they could show no deeds. I sometimes wonder how uncomfortable that must have felt for him; I am not even sure that he had the leeway to effectively reverse his findings in the previous case. I was under the distinct impression that only those in the Supreme Court enjoy the privilege of changing their minds. I take your last comment as spoken in jest - although one of their litigation partners had done so, according to reliable sources long after the event. As I was amenable to settling that dispute out of court, the truth of the claim was thankfully never put to the test.
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Post by NigelMoore on Oct 21, 2016 11:41:17 GMT
As an hopefully useful resource for those interest in the Yorkshire Ouse situation, I will post up links to such of the background legislation as I have found, and which I had passed on to the first of the boaters affected. The key element in the case, as with all of the rivers, is the existence of the public right of navigation. The decision of Hildyard J concerning the effect of BW legislation over such waterways was: " 146. BWB have never convincingly addressed or offered a coherent and consistent explanation of the fact that the legislation has distinguished between the various types of inland waterways under its ownership or control, and BWB's powers are differently expressed in relation to each.
147. For example, BWB offered no compelling explanation why the Act of 1971 was confined in its application to pleasure boats to those used in river waterways; nor why, to take another related example, the Act of 1975 expressly carved out "tidal waters" from the power to make bye-laws recognised and refined in its section 5(1).
148. More generally, in my view, BWB's contentions do not sufficiently take account of the discernible pattern in the legislation of leaving well alone the use of inland waterways in exercise of PRN, and of not extending the "relevant consent" scheme to the use of pleasure boats exclusively on tidal stretches in exercise of PRN." [my bold] www.bailii.org/ew/cases/EWHC/Ch/2012/182.html This principle being established [although, as we will see, no BW legislation applies to the Ouse] the first step is to establish the PRN. Everyone will be familiar with the terms of the original Magna Carta, which sought to protect the navigability of the great rivers from obstructions. Further to that, on November 16, 1383, a Royal Commission was established to “ inquire into Obstructions of the source of the Trent at Colwick”, and clarified the intent of Magna Carta in the following words: “ Know ye that whereas the great rivers in our kingdom aforesaid ought to be held common and open for the passage of ships and boats passing with victuals and other merchandise from place to place by the same rivers . . .” www.scribd.com/document/328391225/Ouse-Rich-ii-1383-On-Great-Rivers-PRN A few centuries on from this Royal affirmation of the nature of the great rivers as public highways, the City of York claimed that the Ouse “ of late Years in divers Places hath been filled, choked and stopped up with Sands and other Obstructions, that Ships, Pinks, Keels, Boats, Lighters and other Vessels cannot, without great hazard and Difficulty, come up to the said city as in times past.” Consequently “ An Act for improving the Navigation of the River Ouse in the County of York” was passed in the year 1726. As quid pro quo for the expenses outlaid in improving the navigability of the river, the Commissioners were empowered to levy tolls on goods carried for profit “ except Straw, Manure, Dung, Compost or Lime used in tillage . . .” etc. So pleasure boats were exempt from toll, and furthermore, “ Land Owners near the river may keep Pleasure Boats.” Note that this freedom to keep pleasure boats on the river was not confined to riparian owners [although their consent would be needed for mooring to their banks]. www.scribd.com/document/328391211/Ouse-York-1726 In 1732 it was found necessary to have another Act passed to increase the levels of tolls on merchandise carried, in order to afford the maintenance of the river, but the exemptions still applied. www.scribd.com/document/328391227/Ouse-York-1732 More to come, but that will do for now.
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Post by NigelMoore on Oct 21, 2016 14:44:23 GMT
Of course, it probably should be noted that the river Ouse changes name above York, and becomes the river Ure. The later Act extending improvement works for that stretch was dated 1820, and similarly provides for tolls on merchandise, but this time exempting even cargo-carrying boats that did not use any of the locks. No Tolls to be taken unless the Vessel pass a Lock on the Navigation or Canal . . .
LXXVIII. Provided always nevertheless, and be it further enacted; That no Boat or Vessel navigating the said River Ure, shall be subject to the Payment of any Duties, Rates, or Tolls, unless such Boats or Vessels shall pass through any Lock or Locks erected or to be erected on the said River, Cuts or Canals: Provided also, ¬that no Tonnage, Tolls, Rates, or Duties, shall be due, paid, or demanded for any Timber, Stones, Bricks, Lime, or other Materials to be used for the making or repairing of any of the Dams, Weirs, ¬Pens, Locks, Sluices, Cuts or Canals, Warehouses, Watchhouses, or other Works for perfecting the said Navigation, or any Part thereof.The PRN was again confirmed:- LXXXIII And be it further enacted, That the said River Ure, and Cuts or Canals herein-before mentioned, shall be and continue a free Navigation, and that all the King's liege People whatsoever shall and may have and lawfully enjoy free Passage along, in, through, or upon the said Navigation, with and for Barges, Boats, Lighters, and other Vessels, and also the Use of the Towing or Haling Paths, and all other necessary and convenient Liberties for navigating the same, without any Let, Hindrance, or Obstruction from any person or Persons whatsoever, subject nevertheless to the Payment of such Rates and Duties as by the Tenor and true Meaning of this Act are or ought to he paid to the said Company of Proprietors, or such Per¬son or Persons as they or their Committee of Directors shall appoint to collect the same.
This Act also, provided for regulation by byelaws: - LXI And be it further enacted, That the said Company of Proprietors shall also have full Power and Authority, from Time to Time, at any General Meeting of the said Company, to make such Rules, Orders, and Bye Laws as to them shall seem meet and proper . . . for regulating the Commencement, Continuance, Suspension, Cessation, Time, and Order of passing, repassing, and navigating of all Vessels, Boats, Barges, and Rafts, Persons, Horses, and Carriages; and the Structure, Dimensions, Form, and Manner of building and constructing of all such Vessels, Boats, Barges, and Rafts, as shall from Time to Time be used upon the said Navigation . . . and etc, etc. In ‘modern’ times, as presently applicable to the administration of the Ouse, the 1979 Byelaws can be found here: - www.britishwaterways.co.uk/media/documents/foi/legal/Bye-laws_for_River_Ouse_and_Foss_Navigation.pdf In these byelaws, “ ‘pleasure boat’ includes any ship launch houseboat boat randan wherry skiff dinghy shallop punt canoe yacht or ferry boat however navigated not being used solely as a tug or for the carriage of goods and not being certified by the Department of Trade as a passenger steamer to carry two hundred or more passengers.” Nowhere, within these byelaws, is there any mention of registration requirements. There are restrictions on mooring to public wharves, moorings, and landings, and a requirement – as applicable to any vessel private or not – if left unmanned, to display the master’s name, address “ and if available telephone number at which he may be contacted.” That last itself suggests that the contact information was not a matter of record, obtainable by use of any registration number. The historical situation is abundantly clear: this river, as with all the others now under BW/CaRT’s management, has always been a public navigable river, with express rights for private pleasure boats to be kept on the river, and to be used free from toll. Quite how and when the river fell into the clutches of BW, I will leave for later - but it post-dated the 1971 Act.
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Post by NigelMoore on Oct 21, 2016 16:41:15 GMT
Before carrying on with the legislative background, here is the formal Shoosmiths letter from early this year, following up on the s.8 & s.13 Notices served by CaRT: - Note the usual tandem act of serving s.13’s as though the boat was a houseboat. I looked back through my email correspondence with this chap, and saw that he had made reference to the fact that CaRT had been offering Houseboat ‘licences’ to everybody there, for the same price as ordinary ‘licences’. Clever, anticipatory positioning by an obviously aware CaRT enforcement team! The suggested response: -
I must chase up how things developed from there. Meanwhile, of course, the new batch of victims are getting busy. The irony of all this is that, if CaRT had not been so gung-ho for extreme measures over this, they could probably have continued to get away with persuading boaters there that they were obliged to cough up.
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Post by NigelMoore on Oct 21, 2016 17:14:17 GMT
The published Notice below, should be self explanatory; BW applied to government for an Order transferring the Ouse to them, which was granted on 19 October 1989. A further Order some ten years later, transferred another small section, but the 1989 Order is the significant one. The significance of the date, of course, will immediately be noticed – this was accomplished a year prior to drafting the 1990 Bill which became the British Waterways Act 1995. That Act was the last one to add further sections of river to the Schedule of “river waterways” of the British Waterways Act of 1971. So, the opportunity was there for BW, having added this river to their portfolio, to have asked Parliament to add it to the 1971 Schedule along with the lower Weaver. For those unfamiliar with this, s.30 of the 1995 Act provided that: - “ Section 4 (Extent of Part II) of the Act of 1971 shall have effect as if there were included in Schedule 1 to that Act the following additional paragraph: - “The river Weaver from Winsford Bridge to Shrew Bridge in the County of Cheshire.” The Ouse could have been included in this section, but was not. The river Ouse will therefore remain outside the scope of the 1971 Act registration requirements – no matter HOW the ‘main navigable channel’ is defined. As with the river Brent in my own case therefore, " no licence is required . . ."
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Post by TonyDunkley on Oct 21, 2016 17:57:09 GMT
............ ............. ............... ............ The Ouse could have been included in this section, but was not. The river Ouse will therefore remain outside the scope of the 1971 Act registration requirements – no matter HOW the ‘main navigable channel’ is defined. As with the river Brent in my own case therefore, " no licence is required . . ." But nevertheless, and true to form, it hasn't prevented them from including the 'River Ouse' in the schedule of waterways prohibited to boats under the Injunctions in the Section 8 Court Orders. The map accompanying the Injunction schedule even shows the prohibition extending along the tidal river from Naburn Locks, some 4-5 miles from York, all the way to the Humber and up the Trent to the tidal limit at Cromwell Lock. There are echoes here of the same sort of muddled and deluded thinking that's behind the recent goings-on in Liverpool. It would seem that they themselves have now come to believe that the tripe they publish really does prevail over statute, if they so avow. This page [schedule 3] from the latest Licence T&C's would seem to be yet another example of a belief on their part that statute is subject to amendment by C&RT via whim and their T&C's : - The Rivers Only Licence is valid for ‘River Waterways’ defined in Schedule 1 of the British Waterways Act 1971, as amended and constitutes a “pleasure boat certificate” for the purposes of that Act. These are:
Avon (Hanham Lock to Bath)
Bow Back Rivers
Fossdyke & Witham (Torksey to Boston)
Lee Navigation (Hertford to Limehouse)
Limehouse Cut
Ouse and Ure (Goole to Ripon)
Severn (Stourport to Gloucester)
Soar Navigation (Trent Junction to Leicester)
Stort Navigation
Tees (Tees Barrage to Low Worsal)
Trent (Shardlow – Gainsborough, including the Nottingham & Beeston Canal)
Weaver Navigation (Winsford Bridge to Manchester Ship Canal)
River Weaver (Winsford Bridge to Shrew Bridge)
Boats with Rivers Only Licences navigating between the River Trent and River Ouse via the Stainforth & Keadby Canal, Aire & Calder Navigation and the Selby Canal may do so at no extra charge providing they stay no longer than seventy-two hours on these Canals
By statute, the price of a Rivers Only Licence is fixed at 60% of the cost of a licence to use canals and rivers and if you transfer ownership of the Boat, the Trust will issue a new Rivers Only Licence to the new owner for the unexpired portion of the licence, without charge.
_________________________________________________ Despite what is claimed in the first and last but one lines of the above, the term "Rivers Only Licence" is nowhere to be found in the 1971 Act, or for that matter, any other statute.
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Post by kris on Oct 21, 2016 18:24:49 GMT
Very interesting reading thank you.
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