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NigelMoore

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NigelMoore last won the day on October 15 2017

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  1. They don’t report them, because there is nothing to report; CaRT have never prosecuted any byelaw breaches – “I have asked our Legal Team regarding this and they have confirmed that to the best of their knowledge no such prosecutions have taken place under the byelaws since the Trust’s creation.” (as at December 2016) https://www.whatdotheyknow.com/request/prosecutions_for_breach_of_bylaw#incoming-907735 The reason is that the penalties are insufficiently dramatic for their taste; they prefer using s.8. They don’t put it in such terms of course. The official explanation is – “I hope that you find the following brief explanation on how the Trust exercises its statutory powers with regards to boat licensing helpful, the Trust frequently uses its statutory s.8 and s.13 powers where a boat is unlicensed and/or doesn’t have a Boat Safety Certificate and/or insurance because the only remedy under the byelaws is a fine and so doesn’t address the underlying issues associated with the boat where they may be unsafe and/or not have appropriate insurance, so we need to be able to remove the boat if necessary.” https://www.whatdotheyknow.com/request/general_canal_byelaws_1965#incoming-1157210 Patent nonsense, ignoring any breach of byelaws that does not involve licensing issues. Their argument before the courts (if & when the issue has been raised) has always been that they considered the level of fine to be inadequate. As agreed by His Honour Judge Denyer QC in BWB v Ward, 2012 – “Other than the removal of the boat the only sanction provided for in the legislation in respect of a contravention of the Rules by a person such as the Claimant is that of a derisory fine.” Of course, where s.8 cannot apply, the fines are the ONLY sanction, so CaRT don’t bother. Other navigation authorities certainly do so, routinely, removing boats (where that sanction applies) only as a last resort - but the mind-set is different.
  2. There is enough nonsense delivered over the meaning of “bona fide for navigation” to make any sane person despair – and some of it comes from over-worked County Court judges, relying heavily on submissions made by clever barristers, in specialised fields with which the judges are unfamiliar. The oft-cited Davies judgment, seeking as it did to pin down the genuineness or not of navigation in terms of intent, was not only inherently absurd, but was contrary to established precedent case-law. It was inherently absurd, not least because it would not solve the authority’s problems with boats hogging certain spots to the detriment of other boaters. The idea that a pattern of movement would be acceptable or not depending upon the intent of the boater is ridiculous – what practical difference would it make to anybody whether the boater was simply following guidance as to application of the 1995 Act requirement, or whether they were using the same pattern regardless of the requirement? The judgment would make ANY pattern of movement unlawful if followed only because it was law. And since when has obedience to law (reluctant or otherwise) been grounds for a conviction that a crime has been committed on the basis that the law was only complied with in order to comply? As to binding precedent (which neither Davies nor Meyers qualifies as), in order to apply a meaningful definition to the word “navigation” in the context of the BW legislation, the CC judge ought to have looked for cases in the context of recreational boating. In that context the definitions found in the Cairngorm case, and in the Appeal Court case Evans v Godber [QB 1974] are the most applicable. Of particular relevance - given the County Court finding in Davies – is the conclusion in the Evans v Godber case as to what “navigation” of pleasure boats embraces where rights of navigation exist. The leading judge very properly observed certain essential differences between land-based public highways and the right of navigation on water: “By contrast, the right of navigation in tidal waters is a right to move at will throughout the area where the water is tidal. No doubt most people when they set out on a voyage intend to get somewhere, as did the defendant on this occasion, but those entering Pagham harbour are under no obligation to follow a particular route or have a motive or reason to come in; their right as an exercise of the common law right to navigate is a right to go in tidal waters as and when they please.” Such boats are, in other words, “bona-fide navigating”, despite following no particular route, nor having any particular motive or reason for the pattern of their navigation. The same principle has to apply to waters where the right to navigate is by permission via a boat licence, with the added proviso re: navigating CaRT waterways that the 14-day guidance (however interpreted) must be factored in. The relevant case law thus contradicts the Davies finding as to the supposedly essential factor of intent. Anybody wishing to discover the essential criteria envisaged by BW when framing the relevant clause in the ’95 Act, need only read the specific representations made by their QC while promoting the clause during Select Committee deliberations on the 1990 Bill. For perhaps understandable reasons, BW and now CaRT have always objected to the relevant material being considered in any of the court deliberations on the subject. Suffice to say that it sought, generally speaking, to apply 'common sense' criteria to avoid inconsiderate leaving of boats near and alongside essential services, to the detriment of other boaters whose use of those would be obstructed. Sadly, 'common sense' and consideration for others can be as absent in boaters as in the navigation authority's departmental officers.
  3. Historically, most Thames riparian owners were very jealous of their privacy, and places where the general public could land, let alone moor, was maybe at least, if not more, restrictive than now; lawsuits in the 19thC set the common law of England very firmly against the Justinian Civil Law precept that access to the banks of public navigable rivers was freely available to all. The Thames Conservancy Act of 1932 gave the Authority certain powers to control the time and manner of use of public landing places, though protecting free overnight use of them. In 1910, according to Thacker, only just over two dozen of such public landing places existed on the upper Thames. It might be an interesting question as to what landing/mooring rights along recognised public towpath could be considered to similarly exist, and so fall under the same definition. The riparian boroughs are, of course, bringing in greater, more formal restrictions through use of byelaws, re: mooring to their quasi-private riversides.
  4. A reminder to any concerned – deadline for comment to [email protected] runs out tomorrow. https://www.hounslow.gov.uk/downloads/file/2000/proposed_mooring_bye_laws_-_feb_2019
  5. No need for apologies; you stated accurately that he was an interested party in guiding government policy, and I simply expanded on his position and previous roles in government where he was specifically in charge of waterways affairs, for the sake of those here you mentioned would not have known anything about him or his relevance to waterways and public rights of navigation. Yes, as could be inferred from my previous comment regarding international approaches to the subject, I broadly agree with your comments as to the merits of Dr Caffyn's case and that of 'the other side'. I have read a legal opinion for government (I think) on the subject some years ago, which dismissed the argument with more learned ammunition, but couldn't comment on it at this remove, as I forget the details and can't easily find it again.
  6. You confuse me there Paul; I don't disagree with any of the above, so struggle to see what opinion of mine you are disagreeing with (presuming you refer to my post #236?).
  7. I am familiar with Mr Benyon and his background, yes. I was present in a meeting with him in early 2012, endeavouring to highlight the potential pitfalls of his support for the transference of BW to CaRT. He is one of the largest 'private' river owners in the country, and very jealous of his privileges in that respect. It hardly made for a disinterested role as Waterways Minister at the time of the 2012 Transfer of Undertakings. For those unfamiliar with the relevance to public right of access to rivers - https://www.theguardian.com/environment/georgemonbiot/2013/apr/04/right-rivers-richard-benyon-interests I briefly corresponded with Dr Caffyn many years ago (having attended a talk he gave to the Parliamentary Waterways Group, of which I was then a member), and his thesis helped me enormously in the initial stages of preparing my arguments against BW. His arguments have in practical terms been endorsed - in application - by other countries such as the US who consider that if a river is navigable by any sort of craft, then the State supports the right of the public to use such craft as of right. Court actions have declared against any finding of trespass even when light vessels such as inflatables briefly touch the riverbed when in transit over shallows. edit to add in case of confusion - the court cases I refer to were American, not British.
  8. To be fair, you said both 'damage' and 'damages'; I was just pointing out that neither is needed to bring an action for trespass – though “damages” in the form of unpaid mooring fees would have to be proven in any action for recovery of monies owed. It used to be commonly thought that proof of damage was needed to found an action for trespass, so I was just setting the record straight. Yes, it was awhile back; I was trawling backwards through the topic to find the post re: the Board being “satisfied” as I had just been reading Lord Denning's book and thought his comments might carry more authority than my own on the subject. Enroute, I responded to various points that caught my eye as I came across them.
  9. Without thinking about it too much, I would go along with both statements in your last paragraph; there need be no real either/or to it. Your deemed consent under T&C's is invalid (if current legislation permits passing on information in certain circumstances, consent under the T&C's is immaterial anyway); insofar as T&C's are a medium for informing licence holders that relevant information can be passed on in circumstances where that is legitimate, that would be valid. The only point to extracting your (putative) consent to the revealing of your personal information would be to apply that to instances where the obligation did not exist in law.
  10. Well no; the satisfaction of the Board applies to the validity of a home mooring also. Apropos, IF it seems to some that the phrase “satisfies the Board” and “the Board are satisfied” is intended to make the Board the sole arbiter of what should satisfy it, then that is incorrect. The question - of whether anybody granted such a position should be unimpeachable over the grounds for their satisfaction - had been considered by the Courts throughout the seventies, and the comments of Lord Denning on the subject are apposite. In 'The Discipline of Law' [1979] he wrote a chapter entitled “Clauses giving unfettered discretion”:- “Want of money is no reason for revoking a licence. The real reason, of course, in this case was that the department did not like people taking out overlapping licences so as to save money. But there was nothing in the Regulations to stop it. It was perfectly lawful: and the department's dislike of it cannot afford a good reason for revoking them.” Following those comments with a sub-heading 'If the Minister is satisfied', he wrote :- “A similar point arose in a case where the Secretary for Education ordered a local education authority to turns its grammar schools into comprehensive schools. The Statute enable him to do it if he were 'satisfied' that the local authority was acting 'unreasonably'. . . . I reviewed the history of such a phrase in the following passage : 'So far as “satisfied” is concerned, it is suggested . . . that once the Secretary of State said that he was “satisfied” his decision could not be challenged in the courts unless it was shown to have been made in bad faith. . . . in addition, however, the minister must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider and the decision to which he comes must be one which is reasonable in this sense : that it is, or can be, supported with good reasons or at any rate is a decision which a reasonable person might reasonably reach. . . . so much for the requirements if the minister is to be 'satisfied'.” By the time of the 1995 Act, that had been upheld by the House of Lords some 15 years previously.
  11. If damage to property has occurred, a private person is entitled to request from the relevant authority the personal details of the perpetrator. For example if you catch the license plate of a car that has smashed into your property, you can send in the licence number to the DVLA and request the name and address of the car owner/keeper. So long as you can establish the fact of the incident (e.g. with cctv footage), they will supply the information. Agreed, that relates to damages rather than a debt per se.
  12. Trespass to land does not require proof of damage for it to be actionable in the courts.
  13. That is only true where a public right of navigation exists, and even there, some river statutes allow for the landowner to protect themselves against 'loitering' in front of their property, e.g. the Thames Conservancy Acts. Where there is no PRN, the riverbed owner can sue for trespass against any floating of vessels above 'his' stretch of riverbed. Of course, there are those such as Dr Caffyn who claim that all navigable waters enjoy a PRN, which has given rise to many conflicts between canoeists and anglers. However his proposition has never enjoyed judicial or ministerial approval. Nor will it ever, so long as the likes of Richard Benyon MP have anything to do with it.
  14. It should be clarified that much of the T&C's are a repeat of, or reference to, byelaw provisions, and enforceable in law by the method prescribed (not by unlawfully making them a contractual condition for issue of the licence). Those cannot be said to be foisted upon us via the T&C's, justly or unjustly. Others are sensible guidelines without the force of law, which boaters would do well to adhere to. But yes, certain other morally and legally objectionable ones do purport to dispense with statutory protections – and consent to share one's personal information where that would conflict with the current law would be amongst them, as would the grant of permission to board boats regardless of the statutory constraints of the 1983 Act, as would also be the case with agreeing to pay the costs of CaRT moving your boat off from where it was obstructing (BW fought and lost at least one case in which they alleged such a right to charge for doing so).
  15. I believe that I have mentioned previously having been erroneously sent a demand for £250 for overstaying, which I refused to pay on the grounds that it was not my boat and had not had charge of it at the time. Despite getting the proofs of this as requested, they still went ahead and filed a case against me, through a firm of dishonest debt collecting solicitors. So definitely not a case of hearing no more. I was looking forward to embarrassing them in court (I had the relevant phone calls recorded), and to raising the issue of the legitimacy of the charges anyway, but sadly, a week before the hearing they dropped the case, having rather belatedly discovered that the owner – who had been apprised of the situation - had in fact paid up about 6 months previously! Whether anybody has refused to pay and heard no more, I could not say; they would have been pursuing me to add pressure to the 2 High Court actions we were involved in at the time, but maybe they might not have bothered with anybody else? I did file a complaint against the firm of solicitors for dishonesty, but their oversight body weaselled that they had been misled by BW and could only have acted on information given. That was false to fact because they did know the situation, but it wasn’t worth bothering with given everything else on my plate at the time.
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