By way of keeping everyone up to date re. the progress, or lack of it, of C&RT's latest pointless and idiotic attempt to have me abolished, here is the [my] Witness Statement, ordered to be filed prior to the Directions Hearing, which, according to what the Listings Office in Nottingham told me today, will probably be sometime in early September.
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Witness Statement of Anthony K. Dunkley
Para. 4, from Line 2 :
The river bank to which 'Halcyon Daze' Index No.52721[ 'the boat' ] is moored is private property and is not under the management or control of Canal and River Trust [ C&RT ].
From line 6 :
It is true that the boat is moored at the stated location without a C&RT boat Licence, but the river Trent at Barton-in-Fabis where the boat is moored is a River Navigation listed in Schedule 1 of the British Waterways Act 1971 [as amended - BW Act 1974] upon which there is a Common Law Public Right of Navigation and vessels thereon do not require a boat Licence issued by the Navigation Authority.
Any vessel kept or used within the main navigable channel [MNC] of a Scheduled River Navigation is required under Section 5(1) of the 1971 BW Act to be registered by means of a Pleasure Boat Certificate [PBC] issued by the Navigation Authority. The penalty for keeping or using a vessel within the MNC without such a Certificate in force is prescribed in S.5(2) of the same Act.
Extracts from the British Waterways Act 1971 are exhibited by the Claimant, but the page bearing the above mentioned Section 5 has been omitted entirely from the exhibit.
The river Trent at Barton-in-Fabis is approximately 150 feet wide and the MNC [as defined in C&RT dredging and maintenance documentation] is less than 40 feet wide on this section of the river. My boat has been moored against the privately owned riverbank at this location since the last PBC expired on 31 August 2015 and is therefore well outside of the MNC. Whilst it remains so, it is exempted from the requirement for a PBC under Section 4(1) of the 1971 Act.
Having now fully recovered from a lengthy and debilitating illness, I am presently undertaking repair and refitting work on my boat. On completion of this work it is, as C&RT have been made aware, my intention to apply for a new PBC prior to resuming use of the vessel on the river Trent and other adjoining waterways for which no boat Licence is required.
From line 10 :
C&RT is not entitled to remove my boat from 'the Property', or the waterway, under Section 8 of the 1983 British Waterways Act as is stated.
The statutory powers under the 1983 Act entitle C&RT to remove vessels 'sunk, stranded or abandoned' in any waterway, or to remove any vessel left or moored without 'lawful authority', in a waterway owned or controlled by them.
My boat is not 'sunk, stranded or abandoned', and the Common Law PRN applicable on the entire navigable length of the river Trent is the 'lawful authority' for my boat to be on the river Trent, with or without a current PBC.
Para.5 :
It is stated that my boat is moored on C&RT's 'Property'. This is untrue. The river bank to which the boat is moored is privately owned, and ownership extends to the centre of the river.
Para.6 :
In as far as this has any relevance to this Claim, this paragraph is a concoction of both distorted and misrepresented truths, half truths and untruths.
In January 2014 C&RT informed me that they had 'revoked' my boat Licence. This action was solely in order to facilitate a Claim, identical to the present one, to remove my boat from their waters.
At that time my boat, which was not Licensed, and did not need to be, but was registered by means of a current PBC, valid until 30 June 2014, was in constant, almost daily use, on the river Trent mainly between Barton-in Fabis and Holme Pierrepont, downriver from Nottingham, and was frequently and regularly moored overnight near to Holme Lock.
The grounds for revoking what C&RT incorrectly referred to as a Licence were variously stated as contraventions of Licence Terms and Conditions by either ''mooring too frequently and for too long whilst cruising'' or "not cruising sufficiently whilst mooring away from the boat's 'home' mooring'', or ''not complying with the C&RT Cruising Guidelines for boats without a 'home' mooring'', none of which makes any kind of sense, or are lawful grounds under Section 17(4) of the 1995 BW Act to terminate either a boat Licence or a PBC.
C&RT issued a Claim [No.A00NG769] in June 2014 for the removal of my boat from their waters, a Defence was filed, and I applied to renew my boat's PBC just prior to the normal annual renewal date on 1 July 2014, but C&RT refused the renewal of the PBC on the grounds that, despite having issued the two preceding annual PBC's on the basis of my having a 'home' mooring, a mooring where the boat could be lawfully kept when not in use, at Barton-in-Fabis, they now chose to believe that the mooring didn't really exist.
Para.7 :
After a further interval and confirmation from the landowner that my mooring really did exist C&RT issued, not a new Licence, but a new PBC for my boat, and Discontinued the Claim, whilst complaining that my use of the mooring that they had questioned the existence of, and my ongoing compliance with the statutory conditions for holding a PBC had rendered their Claim "worthless and academic".
Para.9, from lines 2 to 25.
C&RT's erroneous beliefs as to the extent of the main navigable channel [MNC] of a river navigation, and the unsupportable assertion that it extends over the full width of the river from bank to bank are shown to be incorrect in the wording of their own General Canal Byelaws.
Byelaw 19(1) states :~
Navigation of Pleasure boats:
19. (1) A pleasure boat when meeting, overtaking or being overtaken by a power-driven vessel other than a pleasure boat shall as far as possible keep out of the main navigable channel.
If, as C&RT claim, the MNC did extend for the full width of the navigation, then it would not be possible for any conventional vessel to comply with this Byelaw, and the only type of craft capable of compliance when confronted by either an oncoming or overtaking commercial vessel would be an amphibious vessel able to remove itself onto dry land under it's own power, or a canoe or similar craft which could be manhandled out of the water.
As either type of craft is in a very small minority of the vessels that customarily use, or have used, C&RT's navigable waterways, it is not conceivable that this Byelaw was drafted with such vessels in mind.
Para.19.
In making this specious Claim, C&RT are well aware that in the event of my compliance, at any time prior to trial, with their unlawful demands that I obtain that which they misleadingly and wrongly describe as a 'Rivers only Licence' for my boat whilst it is confined to use on a Scheduled, PRN River Navigation, they would be obliged to Discontinue, as they were, in similar circumstances, in July 2014.
I believe that, far from being necessary to (quote) - "enable C&RT to comply with it's statutory duty to ensure that the inland waterways controlled by C&RT are safe, well managed and properly conserved", this Claim for Declaratory and Injunctive Relief is both contemptuous of Statute, in that it disregards the distinction made between a boat Licence and a Pleasure Boat Certificate made in Section 5(1) of the 1971 BW Act and Section 17(1) of the 1995 BW Act, and amounts to an attempt to prevent an individual from exercising a Common Law Public Right, and that as such it is asking the Court to act beyond it's powers and jurisdiction.
I respectfully ask that the Claim be struck out.
Statement of Truth.
I believe that the facts stated in this Statement are true.
Dated day of 2016
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Anthony Kenneth Dunkley
Defendant