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NigelMoore

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NigelMoore last won the day on October 15 2017

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  1. NigelMoore

    What's up with the Canal and River Trust?

    Just to add SOME clarification to that – in seeking an ability to change terms without fresh legislation, they were referring to the specific list of T&C's contained in Schedule 1 of what became the 1995 Act. It still seems pointless to me, as they were still enabled to add more under the confirmed clause in the 1971 Act; the only change that could be envisaged needing amending legislation would be the withdrawing of any condition in Schedule 1. But if some condition had become truly redundant, the simplest approach would be to ignore it, as they are under no compulsion to apply these conditions should they so choose. It seems they recognised this, because they abandoned the clause in response to objections without much demure
  2. NigelMoore

    What's up with the Canal and River Trust?

    Perhaps it is my fault for the elipsis I indicated - which was an exchange between chairman and QC relating to houseboats - and the failure of the post to reflect the corrections and formatting I made on Word (the bracketed “houseboats or pleasure boats” should have been italicised to show my explanation of the context of the omitted portion). Still, I don't think it makes any difference. He was saying that both houseboats and pleasure boats needed a mooring (which for houseboats was compulsory anyway, without s.17/14), but for pleasure boats there was the option of s.17(3)( c )(ii), and the rest from there on deals only with pleasure boats licences, whichever of the two grounds the application for a licence was made. Does that help?
  3. NigelMoore

    What's up with the Canal and River Trust?

    One can do no better, I think, to illustrate what I have said about the intention and spirit of 17(3)( c ), than to quote BW verbatim on the first day of the final Select Committee hearings in the Commons. It needs to be borne in mind that what became s.17 in the Act, was s.14 in the Bill. “MR DRABBLE: So can I then go back, as it were, to the other matters that are in the Bill. I think the first of my topics, other than the powers of entry, was moorings and you will recall that I think this houseboat discussion began when I was taking you through the terms of clause 14 which is at page 12 of the continuous filled Bill. 14(2) as I have indicated, brings in schedule 2 in relation to insurance policies and standards and we will look at those schedules in a moment but the meat of 14 is in 14(3) which authorises the Board to refuse a relevant consent for either the failure to apply all standards, lack of insurance or lack of a base, if I can put it like that which is how I paraphrase 14( c ).” . . . “The change in terms of the requirement for a base is in connection with other relevant consents, that is licences and pleasure boat licences which are boats that move around. THE CHAIRMAN: Can I ask you on 14(3)( c )(ii), if I had a child and the child went into hospital and I had to stay there for three weeks, do I breach the tabs of this? What happens? MR DRABBLE: If there really is an emergency such as that there is potential agreement with the Board. That is one of the negotiated amendments with the users' groups. THE CHAIRMAN: There is something coming through that will cover that? MR DRABBLE: No, it is here. If you read 14(3)( c )(ii), the amendment at the foot of the page makes the provisions if you are in any one place for more than 14 days or “such longer period as may be agreed by the Board”. THE CHAIRMAN: Yes but that puts the balance of power on the Board does it not? It does not say the Board must behave reasonably. It just says the Board may decide and the Board may decide one way or the other. What is the response to this? I have got a child and he is in hospital for three weeks. I regard it as important to stay there. What you are saying to me is that is covered and the Board may allow me to stay but there is no pressure on them and their decision is their decision. MR DRABBLE: That I accept is the effect of this drafting, subject to judicial review. I appreciate that it is not a form of words - - - the form of words you can see. There it is - - - THE CHAIRMAN: My kid is in hospital and I have got enough on my mind without seeking a judicial review. MR DRABBLE: I am not pretending that that is a ready remedy. The obvious response is that in any practical terms the Board is highly unlikely to take enforcement action in these sort of circumstances. THE CHAIRMAN: No but if we are framing the legislation and we are looking at both sides, would you not think we would be better to put through legislation that was planned so that the Board had their powers because they have got a duty to do, which you have pointed out, but things happen and the Board has got to be under pressure by the legislation to act “reasonably”? MR DRABBLE: As a general premise I do not disagree with that. There plainly is a desire to have a fairly formally understood rule that boats - - - Can I just say this: I think I am probably misunderstanding and missing the point in terms of what you are putting to me, Sir. It is important to appreciate that 14(3)( c ) is not about staying in one place for more than 14 days. In fact, the example you put to me is actually answerable on the face of the legislation. What 14(3)( c ) requires is the Board is satisfied that there is a base so that if you own a boat and use it in a fairly conventional way, you go on your holidays on it and use it for weekend cruising and matters of that sort, then the thinking is that you need to satisfy the Board that you have got somewhere where it can be kept over the winter and during any periods that it is not in day-to-day use. It is only biting on the terms on which the relevant consent is issued or not issued, which is the beginning of 14(3) so on your example it would not be caught by 14(3) at all. If a pleasure boat which has got a base somewhere is out cruising and the child falls ill for even a month, as I understand it, providing they can find somewhere to moor which is acceptable in terms of local mooring regulations, it is not too near a weir or something of that sort, 14(3)( c ) has not got anything to do with it. They have got their consent and they can stay in that position as long as they like as I understand the scheme – and people will shout at me if I am wrong, Similarly if you have convinced the Board that you do not need a base because the boat is going to be used without remaining in one place for more than 14 days you have got your certificate and you are not breaching any law by actually staying in one place for more than 14 days. What one would need to do is satisfy the Board the next year as to the cause of why you had to stay because you might have difficulty getting a consent the next time if you did stay in one place. The answer to your point is there is no immediate sanction under this scheme for the type of emergency you describe. THE CHAIRMAN: I think we will come back to it. MR DRABBLE: Have a think. THE CHAIRMAN: Yes, I will. MR DRABBLE: But it is not intended to be a penalty for an emergency or for any duration of that sort. What it is intended to do is ensure that the boat whose foreseeable use involves stays of no more than 14 days has a base to go to. . . . the effect of 14 is that either type of certificate which you require (houseboat or pleasure boat) can be refused if you do not demonstrate somewhere for the boat to be kept unless you show yjat the boat is going to be used continuously and not stay for more than 14 days or whatever longer period. Take the example, first of all, of a pleasure boat. It applies for its certificate. It has a base to go to and then it gets its certificate because it satisfied the Board under 14(3)( c )(i) that it has got a mooring or other place where the boat can lawfully be left so no problem. If it then goes on its summer holiday with its owners and a child falls ill, the provided he can find somewhere to tie up for the duration of the illness then no problem. It has got its certificate. It is licensed and it is all perfectly lawful. It has then got to satisfy the Board that in the winter period or whatever it has got somewhere to go back to. It is not going to be caught out by being slightly too long in one place. That does not bite at all. Exactly the same position prevails for a pleasure boat. You have not got a base so you have not got a 14(3)( c )(i) case but you are a boat which says it is going to cruise the canals continuously without staying in one place for more than 14 days and then you get your certificate. You have your certificate and it is not in any sense, as I understand it, unlawful if you then have a child who is ill and are forced to stay more than 14 days. Plainly if that was happening on a regular pattern, the Board would require a base because it would not be satisfied it was going to a bona fides use for navigation with a rest for more than 14 days. But I do not imagine that one year's breach with a valid reason would lead to that result. . . . the Board's case in respect of the requirement that there be a base is simple and essentially one of equity. The Board estimates that there are something like 1,300 boats presently on the waterways which do not have a mooring to which they can return at the end of a period of navigation. The result is in the perception of the Board, and we will present evidence about this, a genuine problem of such boats using facilities such as visitor moorings, sanitary stations, and water points and matters of that sort, effectively permanently because they have not made arrangements for somewhere where they have a right to tie up when not being used for navigation purposes. That is creating operational difficulties for the Board, hence there is what we regard as an essentially equitable requirement that people do make provision for somewhere to stay when the boat is not being used, unless they genuinely fall within the provisions which the Bill provides for.”
  4. NigelMoore

    What's up with the Canal and River Trust?

    Just for background, I mentioned earlier that the decision to withdraw the mooring clauses was made unilaterally. From the final day when the bill was passed - “Sir, one of the things that you will have seen from our response is that we are seeking leave to withdraw Clauses 17 and 18.” . . . “I think I should publicly say that although obviously we respect the Committee's decision we are disappointed not to have persuaded you of our stance and reserve the right to [seek] equivalent sanctions in some other form if we are so advised. That is all I wish to put on the record about that. As I understand from you, Sir, you are happy to see it go through the Bill and we are asking leave to withdraw it.” A bit peculiar. I do have to wonder if he meant something other than what he actually said as recorded.
  5. NigelMoore

    What's up with the Canal and River Trust?

    They could, and they should win the point on that basis – though, as I said, judges have been known to ignore the rule when it suits them. I strongly suspect that it would suit them in the present context, else they would contrive to see no ambiguity. CaRT could even do an about turn on their position re: recourse to Parliamentary proceedings, and plea in aid Mr Drabble's comments: “The 14-day provision stems out of concerns expressed at the previous Committee that the Bill should provide for the small minority of people who genuinely do travel the system continuously. The period of 14 days was chosen after consultation with the user groups. It reflects a long-standing convention that it was legitimate to moor beside a towing path for periods of up to 14 days. Sir, I think we said in evidence that some of the early boat certificates refer to 14-day stays in any one parish.” It might be wondered at, why they did not use this terminology rather than 'place' in (ii); I suspect they were attempting to be as placatory as possible and demonstrating their flexibility – as they did with the ameliorating addition of “or such other period as is reasonable in the circumstances”. This was, in fact, a further amendment to the first proposed addition: “or such longer period as may be agreed by the Board.” The effect of the refinement is obvious; substituting a test of reasonableness in place of the Board's agreement renders the test judicially reviewable in case of dispute. This is the reason why BW needed, as they argued, the additional powers to control moorings, particularly in specifying certain lengths of towpath as subject to more restrictive controls. S.17(3)( c )(ii) was designed to address the problems encountered with congestion and misuse of public facility places, by those with no legitimate lawful mooring where boats could be left when not in use, but they knew that this was insufficient alone, and that they needed clear additional powers to regulate such places. The 1990 Bill was drafted as a coherent whole. The present situation following withdrawal of those clauses has since proved BW's worries of the time justified. It was silly to have lost patience over the matter as they did. It is sillier still to renege on their assurances over misuse of s.8, and to use this blunt instrument as the means of enforcing (sensible) guidance as though it were law.
  6. NigelMoore

    What's up with the Canal and River Trust?

    Yes. Ideally, words and phrases should also bear the same meaning across differing Acts dealing with the same subject matter: “Mr Stoner accepted that the phrase “used bona fide for navigation” must be presumed to have the same meaning in both the 1971 and the 1995 Acts, although it was further qualified by other language in the latter Act.” However the imposition of a different meaning to the same word as you suggest is the case (I am aware of your source), is an unsupportable interpretation. Even if ambiguity were sustainable, the invariable rule when construing private legislation is that the interpretation must favour the public against the promoters (sometimes ignored, as in Ravenscroft). In fairness, however, the 14-day rule adopted was made based on what BW had acknowledged to be an historic conferred right of mooring in the same parish for up to 14 days. Not that the 1995 act defines the term place in its 'interpretation' section.
  7. NigelMoore

    What's up with the Canal and River Trust?

    You didn't need the "but" in there Alan.
  8. NigelMoore

    What's up with the Canal and River Trust?

    Except that that is not exactly true Alan. They are the first arbiter not the last – as I pointed out previously, in case of dispute the ombudsman or eventually the Courts are the final arbiter of whether the Board has acted reasonably in its declaration of dissatisfaction.
  9. NigelMoore

    What's up with the Canal and River Trust?

    Surely to goodness, any outsider reading all these tortured claims as to what the 'spirit of the law' is and what it was intended to accomplish, would be bemused beyond any possibility of remedy, and rightly perplexed as to what the point of all the millions spent on the perpetual exercise of boat tracking & enforcement is really all about. A good deal of the discussion centres around – not interpretation of the law, but around interpretations of interpretations of the law (e.g. what 'continuous cruising' means, though this phrase does not appear in the legislation). It all strikes me as make-work for an over-blown legal department and enforcement teams (and, naturally, fertile ground for incensed debate amongst boaters). There is no legal differentiation between CC licences and home-mooring licences, there are only the two grounds for applying for the same licence. In either case, the Board can decide whether the statutory conditions have been complied with throughout the period of the licence, but the licence remains simply a paid permit to keep and use a boat on the canals. Consistent with the law, a boat could spend part of the year cruising, and part of the year moored up at a lawful mooring; when on the move, it should not spend too long at any one place that is open to public use, when left for any longer period it should be at a place where it may reasonably be kept and may lawfully be left. That is all that matters, and at renewal time the Board can determine whether that has been the case. There is no real need for a boat to be declared one thing or another as it changes its circumstances, so long as the simple requirements are met, whichever might apply in the course of the year. BW spent endless days explaining the point of their requirements in this regard, and laid out exactly what they were hoping to accomplish during the Select Committee hearings of 1993. Virtually all of the pertinent pages of transcript are accessible online, and yet so few bother to read them, and instead waffle on as though they were there, and confidently claim to be privy to what the point and 'spirit' of it all was, based solely on their own conception of what 'continuous cruising' should mean. The Chairman did say: “I am just amazed somebody reads these transcripts, I thought they were to keep people in employment!” But they are, however, invaluable – though it can be readily understood why CaRT firmly resist any use of them when the topic arises in Court. The real problem s.17(3)( c )(ii) was designed to address was considered by the Select Committee to be capable of remedy with BW's existing powers to remove obstructions; it is a pity, in retrospect, that BW unilaterally withdrew the useful proposed clauses to control mooring, rather than modifying them to meet committee and petitioner concerns. CaRT are now reaping what BW (as their QC darkly intimated) has sown. They also, however, are to blame; the recourse to appropriate byelaws has always been within their power, yet they choose not to implement that, preferring the contrivance of 'contractual' licensing as a route to the vastly expensive remedy of s.8 instead, directly contrary to their earnest representation to committee that they did not consider that to be at all appropriate, even it it were legally defensible.
  10. NigelMoore

    What's up with the Canal and River Trust?

    Off topic, but I was interested to read, while going that day's transcript, BW's representation as to terms and conditions of licences. While the Bill introduced the specified conditions for ALL relevant consents, they had incorporated a provision to enable them “to change the terms of a houseboat certificate without fresh legislation.” In response to concerns about that, they said: “That again has gone. So we have responded in that way to the concerns of houseboat certificates.” I find it odd, because as I recall, the 1971 Act specifically allowed the Board to set such terms & conditions on houseboat certificates (not on the pleasure boat certificates, which at that time had to be issued on payment with application with vessel particulars without more) from time to time “as they see fit”. BW never needed an extra ability to do this, so I do not understand how they could claim that the ability to change terms of houseboat certificates under then current legislation “has gone”. Limiting the Board's right to refuse a relevant consent if the 3 mandatory conditions of the 1995 Act were met, was specifically subject to “any other enactment”, and as the previous section had recorded, while houseboats were further subject to the general terms of houseboat certificates listed in Schedule 1, that was “in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971.” It does, however, highlight the point that for any vessel other than a houseboat they WOULD need fresh legislation to change (or add to) the terms on which the relevant consents were issued.
  11. NigelMoore

    What's up with the Canal and River Trust?

    There is also the standard complaints procedure. but that has to be gone through in any event, prior to involving the ombudsman. I should have added what Mr Drabble went on to say: “In our submission there is no provision for arbitration elsewhere. There is no need for it in particular. It can be left to the general complaints procedure and to the ombudsman. Given the general function of the provision, the 14-day rule, coupled with the power of the Board to extend it is simply a sensible compromise and so, sir, that is our case on that part of it.” Of course, that was back in the days of what the committee chairman characterised (albeit, I think, ironically) as “the present enlightened Board.”
  12. NigelMoore

    What's up with the Canal and River Trust?

    What you seem to be asking for is some sort of recognised arbitration process where licence cancellation is threatened; the Acts of some other navigation authorities provide for this, but sadly, with BW/CaRT there is no formal arbitration route to take, in disputed cases. However there is the ombudsman route, though you might lack confidence in his real impartiality. But it might be useful to see what the revoking process should entail. Mr Drabble told the commons committee on Day 14 “we could withdraw a relevant consent on the basis that the vessel has not in fact been used bona fide for navigation, but in that case we have to give notice requiring the boat owner to put it right before we could withdraw it and that notice has to be a 28-day notice so there is no question of a breach of the 14-day rule leading to immediate problems. We would have to serve another notice before we could withdraw the consent.” It seems to me that it would be difficult – were CaRT to abide by these undertakings and representations before Parliament - to serve you a notice demanding you move if you were in fact out on the Thames, as in your example. They cannot, if held to what they told the committee, withdraw the licence in respect of logged past poor performance (I know that is exactly what they do, on occasion, but I deal now with what they are supposed to do). They could, however, take a view on past performance when considering an renewal of the licence, as Mr Drabble went on to note. In respect of any refusal to renew based on past performance, or indeed with any dispute over the Board's refusal to recognise any sound reason for an extended stay, the committee were told - “we have no doubt that if the Board did act wholly unreasonably in relation to one of those matters, the ombudsman is the right person to tell us so and would tell us so and, as I have already indicated, the Board have expressed willingness to abide by the findings of the ombudsman in these and other circumstances.” The minutes go on to record that the committee had in fact suggested exactly what you wished respecting a non-legal arbitration route, but Mr Drabble's response illustrates why BW thought it unnecessary - “I think the suggestion that there be arbitration, which was what the Committee suggested at one stage, came before we had finally explained the Ombudsman machinery.” So that is the closest you will get to what you were looking for.
  13. NigelMoore

    What's up with the Canal and River Trust?

    There IS a formal recourse in law for anybody challenging an authority's decision - Judicial Review. It CAN work if you have a sound case, but not invariably; the 'establishment' tends to favour the establishment if it can. It can also be expensive, even if you win. An alternative, should it get to where they acted on your freshly revoked/refused licence, served a s.8 and took you to the CC (you having established your live-aboard status), would be to formally object to the Part 8 procedure they will have used, and file a counter-claim as well as a Defence. Needless to say, perhaps, it would become important that you had followed the sound advice given here as to keeping records.
  14. NigelMoore

    What's up with the Canal and River Trust?

    The ratio decidendi was based on the intent/purpose of having the boat (to be lived on) and moving it (to accommodate the 14 day rule). I agree that the fact he was living on it is irrelevant - but the judge.thought otherwise.
  15. NigelMoore

    What's up with the Canal and River Trust?

    So it could; and the argument would be won – but it remains absurd that argument, in the highly improbable event it was necessary, should be capable of arising. In fact the judge in Davies did acknowledge that exact scenario, with the same conclusion as you suggest, but the argument still came down to the purpose of movement rather than the movement itself, and thus is capable of the reductio ad absurdum. The essential point I am making is that if two boats are cruising in the same acceptable pattern approved by the authority, but one does so in order to be within striking distance of a circle of friends and family &/or for proximity to work, while another cruises the same area because he fancies the scenery there more than elsewhere and the navigating is more fun, then why should the authority claim one to be bona fide and the other not? And what difference would it make to them anyway?
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