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NigelMoore

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NigelMoore last won the day on October 15 2017

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  1. There is a simple, strictly correct answer, and there is the more likely wobblier but pragmatically useful answer. At its simplest, ‘regulations’ whether primary or secondary legislation, can only be abolished/amended by formal revision at the same or higher level. An Act of Parliament is needed to abolish or modify a previous Act; a mere Statutory Instrument or new set of byelaws, will suffice to abolish or modify secondary legislation. However betimes government will see no need to do this; they might choose to loosen the reins of power whilst leaving them in position should it be deemed necessary to take them up once again. That would just involve memos to the relevant enforcing branch, and an announcement to the public - though it is a parlous situation for the public. The only protection for those relying on a public broadcast that gave a green light to disregard elements of legislation promised to be temporary, would be under the doctrine of ‘legitimate expectation’. So yes, until new legislation overturns current legislation, then the current legislation remains enforceable, but the reality is that a purely pragmatic verbal assurance that these will NOT be enforced, should be able to be relied upon, cautiously, by the more intrepid and/or trusting.
  2. Interesting. I had a quick look at the 1977 Act and I presume it is s.23 that is relied on. Unlike the similar clause relating to BW in the Transport Act 1962, there are no saving clauses whatsoever! Charging 23. Without prejudice to any other power available to it, the Agency may demand, take and recover or waive such charges for or in connection with the use of the waterways and for any services or facilities provided by it in connection with the waterways as it thinks fit. I did note that one had to keep your use of the waterway in line with whatever category of navigation use you paid for. I find the application of the twin charging regime highly dubious - as well that the 2010 Order homogenised the legal basis for registration charges!
  3. The bit that engaged my attention was this - “The fee set by the EA was, of course, much larger than the £2 registration fee which had previously been levied. However, it was also plain that the EA had moved from a scheme of making two charges – for registration and for use of the waterway to a combined and single charge which covered both.” If a boat was already currently registered under the prior scheme, what was the separate charge called, for use of the waterway? It sounds too much like a “licence” for comfort. Or could one register a boat as a ‘go-nowhere’ stationary vessel OR as a navigating vessel, i.e. the difference lay in the category of registration? That is not how it reads, so what did they call the additional charge for use of the waterways by an already registered boat?
  4. Thanks for the link to that case erivers. It raises some curiosity in me as to exactly what distinction the EA had historically made between registration charges only, and a 'separate' charge for 'use of the waterway'. Certainly on the Thames a boat wanting to 'use' the waterway was required to be registered, but need not if merely 'kept' on the river - is that the sort of distinction referred to I wonder, though if so there were not separate charges. The difference more modern legislation brought was in 2010 covering the registration requirement for all EA rivers whether a boat was used or merely kept; I do not recognise the separate charges element that was supposedly unified as a matter of policy. I can't really look into this at the moment, being involved in preparing my own prosecution case, but I will be interested to learn more.
  5. It was HH Judge Denyer QC in the judgment against George Ward of 20 December 2012 on the Bristol County Court :- “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. I think it has now reached the sum of £50. If they are not entitled to take these steps i.e. removal of the boat from the river they are in truth substantially powerless to enforce the obligations of those who use the waterways. I do not regard the ability to take debt recovery proceedings as being a sufficient alternative remedy. Aside from anything else they would face problems of enforcement. No doubt if they did obtain a money judgment the judgment debtor would seek to or could seek to pay at some derisory sum per week or per month.” He overlooked, of course, the fact that the same would apply to any County Court judgment as to costs etc, and also that the seizure of the boat even if leading to a sale could never be used to pay off the debt, because the relevant statute specifically bars that. They can only (legally) retain from the profits of a boat sale, the costs of seizing, storing and selling it. However it may be that this judge (and others) was misled into believing that BW could use possession of the seized boat as a lien on monies owed to them. This was pre-Ravenscroft after all. He was mistaken as to the level of fine which is £100 (plus, of course, costs, and nowadays ‘victim surcharges’). He was also off the mark about “problems of enforcement”. Having obtained a court order for fines and costs and charges, the collection could be left to court bailiffs, or payment could be sought for from central funds as respects costs at least. The judge also seems to be confusing pursuit of money judgments with prosecutions (pursuit of merely a money claim being a third option NOT, as the 1983 Act provides, preclusive of parallel criminal action. If the convicted boater proved evasive and in breach of a court order, then a warrant for their arrest could be issued, and once caught they could be sent to prison for contempt of court. There is nothing “derisory” about such implications as attached to the prosecution process. If this judge was correct, then the EA could be considered “powerless to enforce the obligations of those who use” - their – waterways” – and clearly, that is very far from the truth.
  6. Very unlikely to forget it, myself. It made an impression.
  7. The only reason BW/CaRT have ever advanced for not prosecuting under the byelaws (or the 1971 Act in the case of river registrations) is that the penalties imposable are “derisory”. One of the County Court judges when handing down judgment in an early s.8 case was in complete agreement with that argument re: the proportionality of utilising boat seizure powers. It is a salutary example of a wildly different administrative ethos. The EA ‘enjoy’ broadly similar powers to CaRT reference dealing with unregistered boats &/or boats that can be removed from their waterway. Stats are available on WhatDoTheyKnow that show the numbers of boats the EA had removed from their waterways compared with the numbers of boats prosecuted for failure to register, for roughly the period since CaRT first started up. No boats were removed from the Thames (a few were removed from other regions) even though dozens were prosecuted for registration evasion in the same period. The stats for Cart are almost a mirror image of the EA's; Not a single prosecution yet dozens of boat removals. Essentially, CaRT's avowed reason for choosing not to go the same route as the EA is that criminal convictions are insufficiently punitive for their taste. There is an unspoken reason too, though. Many things CaRT wish to control are not covered by relevant byelaws or statute, and rather than acquire the useful byelaws which they could then use to efficiently target the perceived problems, they have developed the argument that whatever they incorporate into Licence T&C's can be considered mandatory, such that breach of any of them can justify revocation of the licence, with the attendant threat of s.8 to accompany that. It is an effective way to enforce whatever rules they choose, without having to go to the bother and expense of asking government to approve them.
  8. In fact, there are (I have since learned) no court fees payable in bringing a private prosecution for a criminal offence, so pursuing this route as the EA do, need involve only the cost of their employee's time - which is of course salaried anyway. There is no need at all for employment of solicitors or barristers to pursue the case if the in-house legal staff are up to scratch. If, however, professional representation was paid for - and that could be justified before the court - then it is always open to the prosecutor to apply for their costs (even if they fail to obtain a conviction), which, if the guilty party cannot pay, can be reimbursed out of Central Funds. That alone makes prosecutions more financially viable than s.8 removals.
  9. You are correct; not licensing a boat when this is mandatory is a criminal offence prosecutable in the Magistrates Court by Canal and River Trust. This is so provided in the British Waterways 1976 Byelaws. CaRT could do exactly what the EA are doing if they chose to – what is more, in my view, that is precisely what they ought to be doing in place of s.8 procedures.
  10. For those prepared to swallow the ‘official’ line of nonsense over needing CaRT’s chargeable consent, it might be worth pointing out that CaRT are now – since March this year – no longer applying the restriction of their consent to mooring against private land only if it has a residential dwelling on it. “Secondly, single ‘end of garden’ mooring applications will now be considered against privately-owned land, not just that which has a residential dwelling on it. Permission will only be granted to the landowner and sub-letting the mooring will not be permitted.” https://canalrivertrust.org.uk/news-and-views/news/online-mooring-policy-updated
  11. Many towpaths (though not all) were recorded as public rights of way under the National Parks and Access to Countryside Act 1948, despite vigorous opposition from the British Transport Commission. BW continued to consider all towpath use as by their consent only, regardless, but there was no legal merit to that, post the publication of the Definitive Maps & Statements under the Act. It might also help understanding of the topic to note that the legal situation was altered yet again under the terms of the Transfer Order of 2012. As the ‘Explanatory Document’ to the Order states: The Trust Settlement also requires the CRT to grant free pedestrian access to the towpath (except in certain very tightly defined circumstances and again with the prior consent of the Secretary of State, following public consultation and, in the case of towpath in Wales, after consulting the Welsh Ministers). . . . Free Public Access The right to free access to towpaths for pedestrians will be enshrined in the Trust Settlement. In addition, CRT will publish a policy on access and leisure on the waterways and their towpaths. The policy will in particular set out how CRT will as a general rule ensure pedestrian access free of charge and the extent of necessary qualifications from the general rule for operational/maintenance purposes and control of access at some tourist sites. It will also deal with the promotion of cycling and partnerships to improve the cycling environment. https://www.legislation.gov.uk/ukdsi/2012/9780111521045/pdfs/ukdsiem_9780111521045_en.pdf
  12. True enough. An apposite example would be where BW “may refuse a relevant consent unless . . .” That does not demand that they refuse a consent if the conditions are not meant, and they could choose to set aside the requirement to comply with a particular condition should they deem that appropriate in certain circumstances. They could even choose to exempt a vessel from the requirement for a relevant consent in the first place, which in fact is what they do in practice respecting, for example, canoes where the owner is a member of the British Canoe Union. The Board is also empowered to recover through court action any legitimately owed charges e.g. unpaid licence fees, yet certainly CaRT never choose to do so, so far as I know; they choose to s.8 instead. The empowerment to recover charges is something they “may” do; there is no compulsion to do so (whether s.8 instead is a valid alternative is another argument). That comes under the banner of discretion in applying applicable powers respecting what they “may” do, whereas no such discretion is exercisable where they “shall” do certain things (“duties” as you have put it). That agreed, I do not see the applicability of the principle to the Jericho situation, where what was at issue was what constituted part of “the track” which BW were obligated to maintain for purposes of maintaining the viability of the system, and which they were not at liberty to transfer away into private ownership. The situation is perhaps clearer under the present CaRT legislation, where any such disposition of “the track” – in present parlance “operational property” as vested in the waterways Infrastructure Trust – requires permission from the Secretary of State. CaRT could not possibly, under the terms of the Transfer Order 2012, decide for themselves as a matter of changing internal policy, what property did or did not constitute part of that which is vested in the Infrastructure Trust as belonging to the British public in perpetuity. (A disgruntled postscript could be added that they scarcely need powers anyway, to redefine what is operational Trust property, when getting SoS permission to flog it off is seemingly an automatic rubber-stamp exercise.)
  13. Thanks for that reminder Alan. I should note, however, that I doubt it addresses the element of Mike’s post you quoted. He referred to a requirement to grant moorings (in the context of approving or disapproving mooring to private lands), not, as I understood him, to any obligation to provide moorings (which they and their predecessors could always do, on offside land belonging to them).
  14. It would not be appropriate to drift off-topic to the extent necessary to properly respond to your (pertinent) points, but just to clarify my position (without denying your points) – You are right that there was never any “requirement for CaRT or its predecessors to grant moorings” but that is because Parliament had already granted the right for riparian owners to provide those for themselves, and the right to charge for use of such private facilities vested in the owners, not the canal companies. CaRT are bound by such provisions by the 1962 Act, in respect of levying charges in relation to those. For them to charge for something that their predecessors were not allowed to, is certainly contrary to statute. (The BW/CaRT argument against this relies upon the 1968 Transport Act being interpreted so as to abolish all such private rights of mooring, although it is difficult to see how they square that with s.20 of the 1995 Act.) You are also correct that “it is mostly agreed that they have the power to do so”, although I respectfully disagree that they do, principally for the above reason, amongst others. I have no knowledge of any specific covenants involved in the case mentioned, nor of the chain of conveyance, which could of course have thrown more light on the subject in that case. What could be observed, however, is that it certainly establishes a custom of mooring practice at the site, and BW (hence CaRT) were enjoined in s.20 of the 1995 Act against using any powers to control private rights of mooring in such a manner as to prevent them – and such “private rights” specifically included “established mooring practices” besides conferred rights and common law riparian rights. As to BW/CaRT’s powers to charge for moorings based on canal bed ownership, it should be noted that no binding judgment on the matter has ever been handed down. Even the (mistaken in my view) obiter dicta of Lewison LJ in my final appeal, related to a general right of riverbed owners to charge for mooring over their land even where not also the riparian owner, and was made in the context of deliberately leaving aside examination of the BW legislation relating to application of that principle (in the interests of limiting the issues at appeal).
  15. You are of course correct Mike, as to ignorance of the law being no excuse – but a variable internal departmental policy is not the law. Leaving aside the vexed question of whether, in most cases, CaRT have any legal right to charge for EoG moorings, the parameters applied as to whether they approve or not such moorings have nothing to do with law. Awhile back, CaRT adopted a published policy of not approving any more EoG moorings unless they were at the bottom of a plot with a residential dwelling on it. On those grounds, applications for approval of moorings alongside vacant farmland have been denied, and boat licences based on such ‘home mooring’ refused/revoked. It was on that basis that the couple I referred to ended up with a s.8 because their boat licence was refused (unless they declared themselves to be ‘continuous cruisers’, which they were not). The relevant guide stated: “Permission will only be granted in specific circumstances: 1. The mooring is for a single boat against a residential property on the offside of the navigation . . .” And elsewhere: “You can moor a boat at the end of a canal or riverside garden as long as it is associated with a single residential property.” However on 20 March 2019 CaRT published “Online Mooring Policy Updated”, stating - “single ‘end of garden’ mooring applications will now be considered against privately-owned land, not just that which has a residential dwelling on it.” If CaRT themselves had ‘overlooked’ their own policy change, being willing to go through the s.8 boat seizure process to enforce (effectively) out-dated internal policy, how were the land/boat owners to be expected to know about it? Only when Defence documentation revealed that the relevant title deeds actually specified use of the land to be only for the mooring of boats, did they ‘remember’ the awkward fact that they had changed their published policy 7 months prior to the court case. Again, such internal policies are not the law, ignorance of which is no excuse, much as CaRT (and BW before them) like to consider them. Apropos, I have cited it before, but am reminded again, of the evidence given by BW’s Mr Green to the Jericho boatyard Inquiry. He claimed that BW had issued an internal memorandum classifying the boatyard as non-essential operational land. Asked by the Council’s barrister whether he considered that an internal memo of the Board sufficed to overturn Parliamentary authority, he replied “Yes, because it was of later date than the legislation”! The barrister was understandable flummoxed, and could only retort: “So BW have declared UDI have they?”
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