Post by Deleted on May 6, 2021 14:51:34 GMT
Quite an interesting read this from nbta London (A separate group from nbta based on the K&A). It perfectly displays the Trusts intentions with their newly proposed T&C’s:
LEGALITIES OF THE ‘SAFETY ZONES’ ON THE RIVER LEA.
A Public Right of Navigation exists on the River Lea. It is a legal right for the public to navigate and moor on this river. This is a Common Law right that has existed since Time Immemorial and can only be changed by primary legislation, in other words by an Act of Parliament; it cannot be changed by byelaws and Terms and Conditions (T&C). The right of navigation includes the right to moor as stated in Halsbury’s Laws of England, 5th edition:
‘The public right of navigation includes the right … to remain for a convenient time, to load and unload, to moor and fix temporary moorings in the waterway’
The signage that has been placed in the so-called ‘Safety Zones’ does not supersede this right and the restriction of mooring in these areas is not lawful. Nevertheless, Canal & River Trust (CRT) might try to enforce the ‘Safety Zones’, using their T&Cs. The T&Cs do say:
‘You must comply with … our lawful directions, spoken or written (including signs). This includes signs that prohibit mooring’.
However, T&Cs can’t override Common Law, therefore the CRT has no legal right to extinguish the right to moor on the River Lea, which the CRT ‘Safety Zones’ intend to do.
Any signs prohibiting mooring on the River Lea are therefore not ‘lawful directions’ as stated in the T&Cs.
In any case, do CRT really have the legal right to enact and enforce their T&Cs? There are no court judgements to say whether CRT can or can’t enforce or enact their T&Cs. CRT doesn’t use breach of the T&Cs as a main argument in court; therefore there is no case law to say one way or another. However, there are legal opinions. CRT’s legal opinion goes like this: under Section 43 of the Transport Act 1962, the Board (CRT) can set T&Cs for use of their services and facilities. CRT claims that because they can set the T&Cs they can make boat licences subject to conditions over and above those listed in the 1995 Act. CRT’s services and facilities include ‘the use of any inland waterway owned or managed by them by any ship or boat’ as well as actual facilities such as taps and rubbish points etc.
However, the opposing opinion is that, of course CRT can set T&Cs for facilities that they can charge for, however, there are enforceable T&Cs, and non-enforceable conditions.
The T&Cs include many of the byelaws, which are indeed enforceable – but only via prosecution in the Magistrates Court, entirely independent of CRT. So CRT’s claims that they can terminate or refuse to renew boat licences if a boat owner breaks the T&Cs is contrary to the law.
Section 17 of the British Waterways Act 1995 says that the Board (CRT) can only refuse a license if a boat doesn’t have one of these three things: boat safety certificate; third party insurance; either used for navigation or has a home mooring. It doesn’t say in any of the Acts or byelaws that you must obey the Board’s (CRT) ‘no mooring’ signs. Any T&Cs are subordinate to Acts of Parliament; therefore that means that due to the British Waterways Act 1995, CRT doesn’t have the right to terminate or refuse to renew a licence on the basis of breaking the T&Cs.
Another way that CRT claims it could enforce T&Cs is to charge a fee for staying longer on a mooring with restricted times. The Transport Act 1962 gave no new power to set charges for anything not previously enabled. On top of this, if CRT tries to charge, because of the outcome of the Ravenscroft v Canal & River Trust case, CRT cannot recover ‘outstanding costs’ from boat owners using Section 8 of the British Waterways Act 1983 (this is one of the eviction notices that CRT issues to boaters).
We have rights and CRT can’t legally override them.
LEGALITIES OF THE ‘SAFETY ZONES’ ON THE RIVER LEA.
A Public Right of Navigation exists on the River Lea. It is a legal right for the public to navigate and moor on this river. This is a Common Law right that has existed since Time Immemorial and can only be changed by primary legislation, in other words by an Act of Parliament; it cannot be changed by byelaws and Terms and Conditions (T&C). The right of navigation includes the right to moor as stated in Halsbury’s Laws of England, 5th edition:
‘The public right of navigation includes the right … to remain for a convenient time, to load and unload, to moor and fix temporary moorings in the waterway’
The signage that has been placed in the so-called ‘Safety Zones’ does not supersede this right and the restriction of mooring in these areas is not lawful. Nevertheless, Canal & River Trust (CRT) might try to enforce the ‘Safety Zones’, using their T&Cs. The T&Cs do say:
‘You must comply with … our lawful directions, spoken or written (including signs). This includes signs that prohibit mooring’.
However, T&Cs can’t override Common Law, therefore the CRT has no legal right to extinguish the right to moor on the River Lea, which the CRT ‘Safety Zones’ intend to do.
Any signs prohibiting mooring on the River Lea are therefore not ‘lawful directions’ as stated in the T&Cs.
In any case, do CRT really have the legal right to enact and enforce their T&Cs? There are no court judgements to say whether CRT can or can’t enforce or enact their T&Cs. CRT doesn’t use breach of the T&Cs as a main argument in court; therefore there is no case law to say one way or another. However, there are legal opinions. CRT’s legal opinion goes like this: under Section 43 of the Transport Act 1962, the Board (CRT) can set T&Cs for use of their services and facilities. CRT claims that because they can set the T&Cs they can make boat licences subject to conditions over and above those listed in the 1995 Act. CRT’s services and facilities include ‘the use of any inland waterway owned or managed by them by any ship or boat’ as well as actual facilities such as taps and rubbish points etc.
However, the opposing opinion is that, of course CRT can set T&Cs for facilities that they can charge for, however, there are enforceable T&Cs, and non-enforceable conditions.
The T&Cs include many of the byelaws, which are indeed enforceable – but only via prosecution in the Magistrates Court, entirely independent of CRT. So CRT’s claims that they can terminate or refuse to renew boat licences if a boat owner breaks the T&Cs is contrary to the law.
Section 17 of the British Waterways Act 1995 says that the Board (CRT) can only refuse a license if a boat doesn’t have one of these three things: boat safety certificate; third party insurance; either used for navigation or has a home mooring. It doesn’t say in any of the Acts or byelaws that you must obey the Board’s (CRT) ‘no mooring’ signs. Any T&Cs are subordinate to Acts of Parliament; therefore that means that due to the British Waterways Act 1995, CRT doesn’t have the right to terminate or refuse to renew a licence on the basis of breaking the T&Cs.
Another way that CRT claims it could enforce T&Cs is to charge a fee for staying longer on a mooring with restricted times. The Transport Act 1962 gave no new power to set charges for anything not previously enabled. On top of this, if CRT tries to charge, because of the outcome of the Ravenscroft v Canal & River Trust case, CRT cannot recover ‘outstanding costs’ from boat owners using Section 8 of the British Waterways Act 1983 (this is one of the eviction notices that CRT issues to boaters).
We have rights and CRT can’t legally override them.