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NigelMoore

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NigelMoore last won the day on October 15 2017

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  1. NigelMoore

    Middle levels, New Parliamentary Bill

    Interestingly, I just came across the IWA webpage from October 2017, urging everybody to support the Middle Level Bill. https://www.waterways.org.uk/news_campaigns/campaigns/support_middle_level_bill It contains this, in the final paragraph – “The argument that the Bill potentially extinguishes historic rights of way falls down on several grounds. Ancient rights of navigation may exist on rivers, but without obvious exception, licence fees must be paid to the Navigation Authority on all our rivers. The Middle Level waterways are generally man made in any case, with leisure boating only having developed since the 1960s, prior to which all the boats on the Levels were commercial boats which were subject to the payment of tolls.” The Bill does not extinguish the PRN, of course, it ‘merely’ superimposes a registration requirement on the exercise of those rights. Also, to be pedantic perhaps, no “licence fees” are payable on ANY of the public navigable rivers; only registration requirements exist on most of them – but certainly not all. “Licence” implies permission, whereas navigating these waters is of right, not permission. The Middle Level navigations include major rivers, both natural and modified, and the drains in between had PRN’s imposed on them by way of compensation for the loss of other navigational channels and broad waters.] It is patently untrue to claim that pleasure boating did not exist prior to the 1960’s, “prior to which ALL the boats on the Levels were commercial boats which were subject to the payment of tolls” [my emphasis]. On the contrary, the 1753 Nene Navigation Act expressly provides: “Pleasure boats exempt from tolls. 13. Provided always, and be it enacted, that this Act shall not extend to restrain any person from keeping a pleasure boat for the purpose of rowing or sailing upon the said rivers, creek or drains, as he or she shall think fit; nor shall any toll or duty be demanded upon account of such pleasure boat, so as no goods or merchandise be carried therein.” It is a common misconception that pleasure boats were never envisaged within early canal and river navigation Acts. Such anticipated use was publicised by the Grand Junction Canal Co for example, as an encouragement for public support of their proposed Paddington Arm extension. The eager take-up of the leisure opportunities was so tremendous – especially in the London region – that by the dawn of the 19thC new Acts had to be brought in to curb aspects of the burgeoning leisure use that threatened the commercial viability of the enterprises. For such a venerable institution as the IWA to get things so very wrong is a sad example of the decline in standards of their public voice. Thing is, that following the result of the Commons Select Committee examination - with around 10 significant amendments and additions to the Bill, the IWA welcomed those improvements - but they would never have been achieved without those who participated in the petitioning process. I fail to understand why they would not have supported efforts to improve it yet further as it goes to the Lords. edit to add: to correct my obviously roseate recollection, having just looked up the relevant IWA bulletin, I see that they did not actually welcome the amendments per se; they welcomed the fact that "compromises" had been made which meant that the Bill could proceed further. Not the same thing at all.
  2. NigelMoore

    Middle levels, New Parliamentary Bill

    Thanks David – and the suggestions are appreciated. However, I rather think it is too late in the day to be an ‘appointed agent’ for someone who would have to have been a petitioner in the first place, probably. So far as I understand it, one has to be “injuriously affected” by the Bill, which I take to be the core basis for standing. As such, I believe that I should be taken to qualify – as should any boater having used, or intending to use, the waterways involved. The emphasis on land ownership within the area is a curious one in this context, because the landowners – who alone form the membership of the MLC - are the ones seeking outside contributions for the cost of protecting their lands, who benefit; those who derive no financial benefit from the drainage (the boaters) who are seemingly disqualified. Nobody is more “injuriously affected” by a Bill to acquire controls over and contributions from them, than the subjects of that control, yet on the face of it, unless they are also amongst those who profit, they cannot protest! My interest in the Middle Level navigations and occasional small-boat use of them seemingly counts for nothing, and the prospect of direct involvement with the same legal issues on behalf of others is even more irrelevant, according to (apparently) the rules. But we will see. Even the IWA welcomed the improvements to the Bill arising from the Commons deliberations; one might hope that their Lordships would see benefit from further debate in the interests of better legislation. Expressions of support from MLC boaters in the Forum – few though they have been, amongst NBTA decrieders - might go some way towards demonstrating a form of ‘agency’ on their behalf. Although personally against increased legislation as a matter of principle, my objections are not seeking to set the Bill aside, but rather to ensure that the legislation is fair, fit for purpose, potential for abuse minimised, and opportunity for litigation over ambiguities removed so far as is possible. Similar legislation covering other waterways contains elements I have been promoting as helpful in this regard. The MLC ought to be embracing of those aims, rather than seeking to stifle assistance with a very poorly thought-out Bill.
  3. NigelMoore

    Middle levels, New Parliamentary Bill

    Have just opened my emails to discover one from Nicholas Evans - Partner and Parliamentary Agent, Government and Infrastructure "For and on behalf of Bircham Dyson Bell LLP" representing the MLC. They claim that the legal lady from the MLC wrote to me 12 days ago, asking what interest I have in their Bill. If they wrote by post, I will not have received it, being away in the Fens; certainly I have no emails from her. Anyway, having had no reply to this supposed missive, they intend to object to my giving evidence to the Lords! Why they did not do so at the Commons stage on the same grounds must be a question to pose, but regardless "the Commissioners intend to challenge your right to be heard on your petition. Please find attached a notice setting out further details. This challenge will be considered by the Opposed Bill Committee when it meets on Monday." Deja Vu; I am beginning to feel personally persecuted by waterways authorities! I speak in jest, it is a compliment really - but rather petty.
  4. NigelMoore

    Christopher Chope, what an idiot...

    Hence the need for proper debate and possibly redrafting to ensure that it is effective.
  5. NigelMoore

    District enforcement mooring fine Reading

    Same situation as obtained with BW. The British Transport Commission Act of 1954 s.16(2) gave power to “make byelaws . . . for all or any of the following purposes: -“ (c) “for regulating the . . . mooring of vessels using the canal.” Only 2 were passed, however, which are of no import as to times of mooring. As explained by BW’s Legal Director [when drafting proposed new byelaws in 2010] : - “This is a new byelaw in that a similar provision does not exist in the GCB but it is a familiar provision to other canal and dock byelaws. Indeed section 16 (2)(c) BTC Act 1954 provides that regulation of the mooring of vessels is one of the specified purposes of canal byelaws (as opposed to a generic purpose). Whilst provisions of this nature may not have been considered necessary in the 1960’s (when the GCB were introduced) the very significant growth in use of the network since then and the difficulties with congestion that can now occur at certain locations in busy periods gives rise to the need for such a byelaw.” [my emphasis] CaRT retain the power to promote such byelaws, so the question must be - as it is with the EA with their similar powers - why they do not. It can only be inferred that they see utilisation of outside contractors to call people's bluff over controlling mooring sites, is a lot less bother, at far less cost.
  6. NigelMoore

    Christopher Chope, what an idiot...

    Why the fixation on Private Member Bills? He does this to privately promoted Bills by statutory authorities as well, on exactly the same principle. Witness the Middle Level Bill – which, by the way, goes before the Lords Select Committee next Monday. His intervention gave more time for both promoters and objectors to study the provisions with a view to promoting improvements.
  7. NigelMoore

    Christopher Chope, what an idiot...

    That is exactly right. Mr Chope MP was the only one ensuring - through the same means - that there would be proper debate and scrutiny of the Middle Level Bill (just to put the process into waterways context). I am personally grateful for that, which gave time to examine the details and collect evidence for necessary amendments and additions. I am reminded of the comment made by the Chairman of the 1993 Select Committee on the 6th day of examining BW’s 1990 Bill – “I can only say I am appalled by how legislation goes through this house. We have just put through the Criminal Justice Act this very week that changed last year’s because it was put through so ill-prepared that within a year major provisions have had to be changed. That does not surprise me because when I see how they are put through here I am surprised that your profession (he was addressing BW’s QC) are not all millionaires.” It is precisely those sentiments that prompt Mr Chope MP to automatically object to whatever legislation is proposed (whether he knows the details or not is irrelevant in this context) that would otherwise be passed into law without suitable scrutiny, ensuring the drafting is fit for the purpose intended.
  8. NigelMoore

    Middle levels, New Parliamentary Bill

    Two members of the committee have declared an interest: Lord Thomas as Fellow of Trinity Hall, Cambridge, and Lord Hunt as Friend of the Canal and River Trust. What that means in terms of individual predilections I do not know. Lord Thomas served as Lord Chief Justice of England and Wales from 2013 to 2017, which could provide an interesting viewpoint on some of the legal argument. Members have agreed the following sitting times (subject to the progress of proceedings): Monday 25 June 1:30pm – 5:30pm Tuesday 26 June 10:00am – 1:30pm Weds 27 June 10:00am – 5:00pm Thurs 28 June 10:00am – 1:00pm As with the Commons, the proceedings will be televised - and we have been requested to be “smart and comfortable and not overly formal”. All part of the ‘approachability’ portrayal no doubt, and a laudable effort to put us at ease.
  9. NigelMoore

    Middle levels, New Parliamentary Bill

    Received yesterday - This is to confirm the Opposed Bill Committee will sit week commencing Monday 25 June. The schedule is flexible, but is expected to last Monday to Thursday that week. You can expect sittings to run from approximately 10am to 5pm with an hour’s break for lunch. The timing for the first day is yet to be fixed – I’ll advise you of that as soon as I can. Proceedings are expected to take place in Committee Room 4, in the corridor where the Commons Committee sat. Committee membership The members of the Committee are: Lord Thomas of Cwmgiedd (chair)(Crossbench) Baroness Bakewell of Hardington Mandeville (Liberal Democrat) Lord Brabazon of Tara (Conservative) Lord Hunt of Kings Heath (Labour) Lord Trees (Crossbench) Lord Thomas served as Lord Chief Justice of England and Wales from 2013 to 2017 and Lord Brabazon, as former Chairman of Committees, has served on many private bill committees. Counsel to the Chairman of Committees, the Clerk to the Committee and other House officials will also be present.
  10. NigelMoore

    Passing Sailing Boats on the Severn

    When it comes to the applicability of maritime law to canals, case law affirms the general applicability of such law. The venerable case of Moore v Robinson, 1831 [yes, i have been around awhile] saw the Defendant plead that "the plaintiff had not such an interest in the boat & its tackle as would enable him to maintain trespass." It was argued that cited case law to the contrary had reference to "a ship, laden, and ready to sail for Dantzvick. It may be necessary that the master of a vessel navigating to foreign parts should have such full powers and authority as may confer upon him a possessory interest therein. But that is not so in the case of a mere boat plying on a canal" [the Aire & Calder], "where there does not exist such a necessity." The judgment was: "the cases are not distinguishable."
  11. NigelMoore

    Passing Sailing Boats on the Severn

    The byelaws specifically applicable at the take-over date, of the waterways taken over. Read through the "General Canal Byelaws" from 1965 to 1976, and you will see that byelaws passed with respect to differing sections of the BW portfolio were subject to differing byelaws until those were expressly abolished in favour of the more generally applicable set.
  12. I am a little confused by the line: “as they were unlicensed OR in breach of our terms and conditions.” To date, so far as I know, any perceived breach of T&C’s was used to justify a revoked/refused licence, creating the necessary pre-condition for applying s.8. Are they now bypassing the licence revocation/refusal step?
  13. One should be, but in this case CaRT have refused to agree to inclusion of the most relevant documentation in the Appeal Bundle, so under the CPR Leigh must now make yet another application, for permission to use material that WAS before the judge, which she directly quoted even, and do so at the extra cost of another £500 plus, not to mention the time and aggravation of doing so. All part of the 'wear them down' tactics.
  14. There are two hearings currently listed. The first, to consider whether additional material will be permitted, is in October; the appeal hearing itself is in November.
  15. From a very recent FoI response - https://www.whatdotheyknow.com/request/the_total_outstanding_arrears_bi “If a boat remains unlicensed and we eventually seize the boat we then raise a bill for the removal and this includes a sum equivalent to licence fees for the period the boat was on our waters unlicensed.” It was the prime argument for Asplin J, in rejecting the Ravenscroft claim of disproportionality in use of s.8, that it was designedly NOT to enforce recovery of licence arrears, so could not be equated with cheaper, less intrusive measures to do that. She also accepted that CaRT’s wrongful use of possession of a seized boat - to refuse return unless arrears were paid - was an administrative oversight only. Is there wriggle-room in the above reply, to evade any charge that they continue to promote an unlawful activity? There may be, but it would be highly embarrassing for any conscientious advocate required to perform the wriggling.
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