Teasel

just had a quick look at CIL - must admit it's way beyond me. How does this work if CRT already own the land? will they pay the levy by incorporating it into the price of the dwellings? I think there's often a planning condition in big developments that there has to be a percentage of 'affordable' housing otherwise no consent.. either way, would be good if they would also incorporate some affordable residential moorings on the offside (maybe? - don't know the waterways there) - or at least make sure they don't lose any public moorings that are there now..

Oh right - has the law/policy changed? I thought 'affordable' was 80% and a different category from 'social' which is around 60% - 'The government's definition when it comes to renting is that affordable homes should cost no more than 80% of the average local market rent.' http://www.bbc.co.uk/news/business-38067626 you've got your housing associations, tied to the first and social housing providers tied to the second.. I thought.. it speaks of 'tenure' rather than ownership, so I don't think the shared ownership thing's happening here.. please correct me if i've misunderstood! - Actually you're right! I've looked at the planning portal - http://www.planningservices.haringey.gov.uk/portal/servlets/AttachmentShowServlet?ImageName=832635 some of the rents will be at 55% and 65% of local market rent - thanks! that's better than I thought..

'affordable' means 80% of market price - I'd say that's 100% unaffordable... They were very likely made to do this as a planning condition. Very social welfare of them altogether. Is their 'property' bit separate from or within their charity bit?

But if they give people access to jobs, schools and housing benefit, they could work well for some people.

Maybe CRT could work with local councils to establish the numbers of 'households' in each area who have a need for affordable and serviced mooring sites. s124 of the Housing and PLanning Act 2016 says the councils have to do this - http://www.legislation.gov.uk/ukpga/2016/22/section/124/enacted I see no reason why councils or other affordable housing providers shouldn't provide mooring sites where there is a need for them - they could be paid for int he same way social housing is - largely through housing benefit. We'd have to not have the right to buy though. Some people need to stay still some times and travel other times - this could be accommodated with transient mooring sites. There have always been people living on the canals, since they were built. When it was a transport system for goods, there were various efforts by charities and others to meet the needs of the residential populations. That's part of the heritage - I don/'t see why the shift from transport to leisure should eradicate this really - there are and always have been people living ont he waterways - CRT can meet their own objectives even whilst providing facilities for residential boaters.

No, you're right, you didn't. Sorry. I took it as read because that seems to be the only one they use! Also, my interest in this stems fro the Ravenscroft case, and whether there was another legal strategy available to him to challenge his need to have a licence - without risking his boat. I think there was (although I accept he never meant to have a legal argument at all). This one for example. It's implicit in the wording of s17 - CRT may refuse unless you can't refuse a thing that hasn't been requested. no idea what's happened to the formatting there..

That's right - although a fee is owed for the licence, it has to be issued under s17 of the 95 act as long as the 3 conditions are met. I disagree - they are not entitled to use s8 where the fee is the only issue. I agree that there is a legitimate charge for the licence. I just see that the 95 act does not provide a power to refuse to issue one, just on the basis of a non-payment of that charge. There are other remedies available, and they can seek an order to revoke a licence from a court presumably, if it gets that far and a boater still refuses to pay. By the law of implied repeal, the sections you have quoted from the 71 act and the 83 act are superceded by the conditions in the 95 act. I am not arguing that this means there is no fee payable for the licence (I may earlier have separated the two but now I see) I am saying that although there is a fee payable, they cannot refuse to issue a licence purely on the basis of non-payment. This may be an accident, or it may be because of the dual function of the licencing regime to 1. allow the safe management of the waterways and 2. collect money for the upkeep of the same. The first would be obstructed by the second in that case - also, it is important to make distinctions in the law between the enforcement actions and remedies available in one case or another. I may be wrong, of course, that's the way I read it.

Not as far as I know - and I wouldn't personally argue that they should be particularly. The recent Ravenscroft Case did consider the use of s8 for an unlicensed vessel though, and I think it brought some interesting things up: '85 In my judgment, the purpose and objective of section 8 relates to the proper and safe management of the waterways and is not directly connected to licence fees. Its objective is to keep the waterways safe and accessible for all craft which use it and properly to regulate that use for all. Section 8 relates to circumstances in which boats are abandoned and stranded as well as when they are unlawfully on the waterway. It seems to me that the objective I have described is sufficiently important in the circumstances to justify the inroad into the right to property which it entails. If the CRT were not able to exercise such a power in appropriate circumstances, the waterways which they manage would be less safe and accessible to all.' In that case there was an argument about whether s8 can be used to recover licence fees, which CRT had been trying to do. It is CRT's obligation to manage the waterways safely. Section 8 is designed to allow CRT to do this job properly. Not paying is not being unsafe, as such, so the remedy is and should be different. CRT do refuse to issue licences without a charge, and theoretically, they can use s8 against an unlicensed boat. I don't know how often they do this (if ever). If they were to issue the licence providing the 3 conditions in s17 BW Act 1995 were met, and then use the civil courts to recover debts owing under s43 TA, (which they would almost always win, and would be of barely any benefit to any boater to allow them to pursue) then a boater would have the opportunity to defend their case for not paying (whatever that may be - being moored outside of the MNC being one possibility). As I understand it, they usually refuse to issue a licence without a fee, and then the enforcement process used is that under s8. This is completely disproportionate to any argument that is solely about fees. If they used the civil debt recovery process (which would usually be far more expensive to the boater if there was no case - so rare) then people who contest their need to show a licence could remain 'within the law', outside of the s8 process, and have their opportunity to raise their defense against the fees in court. If that makes sense?

The way I see it CRT are refusing to issue a licence. It's different to a private contract in a shop - any 2 people can make (or refuse to make) any contract they like providing it's not illegal. Even if it is profoundly unfair to one party, it'll still be enforceable (assuming there's no duress etc..) The difference is that CRT cannot make any contract they like - they are bound by law to issue a licence - a consent - where the 3 statutory conditions are met. As I said, the charges they set under s43 TA are still enforceable, just not through the refusal to issue the licence (and the subsequent use of s8). The licence is separate and different from the charge.

You're right Mike - s43 does relate to charges for services and facilities, including, under s43(8) ' the use of any inland waterway owned or managed by them by any ship or boat.' When you get your licence terms and conditions you'll see at the top of it that it says: 'In accordance with s.43(3) of the Transport Act 1962, boat licences are subject to the conditions which apply to the use of a boat on any Waterway which we own or manage.' This is in fact not true. Boat licences are subject to the conditions set out in s17(3) of the BW Act 1995: (3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless— (a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel; (b)an insurance policy is in force in respect of the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and (c)either— (i)the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or (ii)the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances. (my bold) None of these, as you can see, requires the boater to pay for the licence. CRT are entitled to charge for services and facilities, including the use of the waterways, but not (technically) for licences, and not under s17 of the BW Act. They are entitled to refuse to licence a boat only where one of those 3 conditions is not met. The only reason I can see that this is important for boaters who can meet those conditions, but not the licence fee, is that CRT routinely use s8 to enforce against boaters without licences. Where the 3 conditions are met, but not the charge, CRT is entitled to recover the debt through the civil court, but not to take the boat. In terms of the relevance of this to the original post - it seems incongruous that licence fees are rising whilst the services and facilities are getting worse. The issues around dredging, the removal of mooring rings, the additional charges for short term visitor moorings etc.. the payment is not for the licence- it's for the services and facilities. Whilst these are getting worse, we are expected to pay more to use them - and the charges demanded are related to our permission to be on the water - this is not right.

It seems to me that the argument that CRT should give licences to people for free 'because they are a charity' is not workable. The way you could counter it is to say that the reason CRT should give licences to people who can't afford to pay for them is because the law says they have to. The conditions in s17 of the BW Act 1995 don't include a payment. As a public Trust exercising public functions, CRT is required to act in accordance with the law - the laws that govern the waterways as well as the Human Rights Act and the Equality Act. CRT do not have a power to refuse a licence to a boat that meets the 3 conditions in s17. They do have a power to 'waive' the fee that they charge for this under s43 (3) of the Transport Act 1962 - https://www.legislation.gov.uk/ukpga/Eliz2/10-11/46/section/43 - which is where they say the power to charge comes from (whether or not that is true.) They also have access to the civil courts to recover any debts owing to them. The refusal of a licence for non-payment has consequences for the boater - particularly one who uses his boat as his home - that are disproportionate to the wrong committed by not paying a licence fee. It could be argued that as a 'public body' for these purposes, CRT should take into account any 'protected characteristic' under the Equality act that has precluded a person from paying for a licence (disability in particular) and either make a 'reasonable adjustment' under s20 - https://www.legislation.gov.uk/ukpga/2010/15/section/20 or consider themselves bound by s15 - https://www.legislation.gov.uk/ukpga/2010/15/section/15 the duty not to treat a disabled person in the same way they would treat a non-disabled person for things that have arisen from their disability. It could also be argued that the Charitable Objective in paragraph 2.6.1 of the Articles of Association - 2.6.1 the improvement of the conditions of life in socially and economically disadvantaged communities in such vicinity; along with some others of the Objectives and powers they have identified for themselves as a 'charity' would also justify the waiving of licence fees in certain circumstances. You could counter the argument that CRT should act reasonably because they are a 'charity' with reference to the fact that the HR Act and the Equality Act have far more in them to protect people from the unreasonable (or unlawful) behaviour of public bodies. If you were that way inclined.

Thanks Mike - that's cleared quite a lot of my confusion up anyway! I guess there's always going to be a difference between the 'charitable wrongs' CRT may or may not commit in the way they run the waterways and the private/public law 'wrongs' against individuals. or particular groups. No - not all violations of the law are criminal offences - some of them are civil or public law 'wrongs' - so they don't lead to 'punishments' but to 'remedies.'

No - I don't think that's a criminal act is it? I was thinking more about accidents causing harm to licence holders where they were the foreseeable result of a failure to keep locks safe etc.. Anyway, I googled that and it looks like I got it wrong - because the Trust is an incorporated company, it has it's own 'legal personality', which means that the Trust is liable on it's own part - not the trustees. As far as I understand, the same would (and does) go, since you ask, for the refusal to licence a boat which meets the 3 specified conditions in the '95 Act. Here - https://www.abi.org.uk/globalassets/sitecore/files/documents/publications/public/2014/voluntary/abi-trustee-liability-guide.pdf

It's limited to (not more than) £10 if the company is dissolved. it's at paragraph 5.2 on page 9 - https://canalrivertrust.org.uk/media/library/1338.pdf Those are fairly limited circumstances though - they are (as far as I remember) liable for any criminal action taken by the Trust - negligence etc.. In terms of using their liability to hold them to the objects, I think it's fairly weak. If you take the example of a charity formed 'for the eradication of homelessness' - it would be impossible to take that charity to court for not eradicating homelessness. They just have to use their charitable funds and status to try to.

yes i think that's a pretty standard Trustee thing in all charitable trusts or charities. You mean we should talk to them about it?

Saw that after I'd posted it - my apologies. Interestingly, the definition of 'navigation' in the defined terms on p39: 'includes navigation by any ship or boat used for the carriage of freight and by any ship or boat used also for human habitation;' So whilst I would not suggest CRT need to provide food banks, lifts to hospital etc.. (although a number of their 'powers' would allow them to - see in particular 3.5; 3.24; and 3.32) it seems they should make it possible to live on the waterways - as a part of their charitable purpose. So that means bins/ services I guess, and a reasonable approach to their guidelines where it affects liveaboards. They do also state that one of their purposes is to: 2.6 'promote sustainable development in the vicinity of any Inland Waterway for the benefit of the public, in particular by: 2.6.1 the improvement of the conditions of life in socially and economically disadvantaged communities in such vicinity;' So I guess a lot of boating families or individuals (or other 'household' group types) may fit into that purpose.

You can find the charitable objects in the articles of association here - https://canalrivertrust.org.uk/media/library/1338.pdf The first one is for navigation: 2. Objects The Trust’s objects are: 2.1 to preserve, protect, operate and manage Inland Waterways for public benefit: 2.1.1 for navigation; 2.1.2 for walking on towpaths; and 2.1.3 for recreation or other leisure-time pursuits of the public in the interest of their health and social welfare;

It's the difference between rivers - where there is no need for CRT's 'permission' to be there, and canals - where there is. CRT own the canals, and they count as land - the licence constitutes a permission to be there, so to be there without one is a trespass. CRT can refuse their permission only on 3 grounds - BSS, insurance or failure to a)have a mooring, or satisfy them that you are using the boat bona fide for navigation. Where they are not satisfied they can revoke your permission and take you off their land. On rivers, the requirement is to register your boat - not to have CRT's permission to be there. Having said that, it is unlawful to be there without a pleasure boat certificate, but it's the law that says so - not CRT. So the £900/£30,000 argument works in cases on rivers, but not on canals. if the reason for not having a licence is the refusal to pay for it - if the boat is a safety hazard the s8 is lawful. That's what the court in Ravenscroft was getting at.

I'd agree that there may be important benefits here to other boaters. Given that the '71 Act provides a proper process for the recovery of charges owed for licences, and this case has confirmed that s8 is designed to facilitate the safe management of the waterways rather than the recovery of debts, any boater now is free to apply for their licence and insist that CRT use s5 to take the money. That way they could satisfy the mooring/insurance/BSS conditions, allowing CRT to do their 'safety' job, and precluding their use of s8, whilst opening up the opportunity to raise a 'reasonable excuse' for not paying for it before a court. '88 However, if the ability to recover arrears of licence fees by way of a debt or prosecution were directly comparable with section 8, I would have decided that whilst prosecution was not less intrusive, recovery of a debt would have been.'

In that case, the main advantages in using s8 as opposed to other legal tools seem to me to be as people have already said, that it is a highly visible, highly punitive kind of a deterrent. Also a strong assertion by CRT of their power - that's the psychological rather than the legal use of 'power'. As Nigel has said, the regulation of the use of the waterways is set out in byelaws - you can no more contract into them than out. The issue of the licence is a statutory obligation, once the 3 conditions under s17 are met. While CRT may be empowered to take action against boaters who breach the t's and c's, they cannot refuse to issue the licence for not agreeing explicitly not to before the licence is issued - most boaters will not breach them just by carrying on as they are. Additionally, as has already been noted, boaters are bound by byelaws regulating navigation etc.. regardless of the t and c's - many of these just repeat legal obligations. I've never seen s8 actually in action in the courts, but my understanding from reading the above is that it provides CRT with a clear and simple formula to present to the courts, who will usually assume that they are acting lawfully, particularly where no proper opportunity for a defence has been given. I imagine that it is hard to stop this process once it's started under these circumstances, and without a fair amount of spare time on your hands. As far as the courts may be concerned, no licence = unlawful = 'injunctive relief '- simple. On the other hand, either criminal or civil proceedings would address the reason why​ there is no licence in place, and would be conducted in such a way as to offer the defendant a defence. If they were offering to pay for the licence and to meet the conditions under s17, there may very well be one. Particularly where the T's and C's allow CRT to board your vessel without notice for any reason (or whatever that term is) If CRT take this route, eventually we'll learn how to defend ourselves. That is an 'unfair term in consumer contracts' I expect. Finally, s8' is an easy and accessible concept. It can be used to represent power and right on the waterways. It works both ways -those who want the waterways cleared of 'non-compliants' (of any ilk) can understand as easily as those who find themselves under pressure/ (threat) from CRT. - as a community, we can all understand and fear/applaud the use of s8. It's a crowd pleaser and it's opposite simultaneously. Other legal processes and the related arguments are far more difficult to disseminate in an effective and accessible way. What CRT need to do is assert their authority. It's lazy, and lazy again, and a bit arrogant. The licence renewal form asks you to 'make any amendments' and then sign. Whilst most of the T's and C's just restate the law, some of them are unreasonable. I think returning the form with the t's and c's amended to remove those parts which are clearly unreasonable, paying the fee and then signing should be enough. When CRT has reason to believe that the boater has breached their terms and conditions, they may start to take action under clause 8 - write to you, explaining exactly why and how you have done that, and give not less than 28 days to remedy the situation. If not remedied, licence revoked, s8. I think the use of s8 here is a legal/publicity strategy to assert and strengthen their authority. Somebody else said it earlier - we should insist they use the proper processes.

Thanks Nigel, for your time and patience. It'll take me a while to properly digest that, but on first readings, I think we will probably end up on the same page theoretically at least. s43(3) does not confer extra powers I agree, rather, it consolidates the powers to charge and limits them to those which already existed. It excludes some circumstances from the scope of charges. My point was only that since licences are issued under s17 BW 95, and charges and T and C's set under s43(3), for those vessels who met the conditions under s17, a licence must be issued without a charge - since s43(3) specifically precludes the Trust from charging in some places. You're right though, I'm new, I may be way off.

I can't find the 76 byelaw to look at, but I think we're reading this differently I don't think CRT say they issue licences under s43(3) but that they derive their power to charge and set terms and conditions from there.. Is that wrong?

Yes thanks - I wonder whether its worth adding s43(3) of the Transport Act 1962 to the list. The Trust 'may determine'​ [from the '83 Act] charges in accordance with this section. It's the section the T and C's are set out under. http://www.legislation.gov.uk/ukpga/Eliz2/10-11/46/section/43 Any charge they may not determine may not be made a condition of the licence, theoretically?

It's not for me to answer that - but the government Statutory walking distances eligibility provide free transport for all pupils of compulsory school age (5-16) if their nearest suitable school is: • beyond 2 miles (if below the age of 8); or • beyond 3 miles (if aged between 8 and 16) So I guess we could use that as a guide. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/445407/Home_to_School_Travel_and_Transport_Guidance.pdfp9

OK - I'll concede that, you are right that distance must be relevant in some way to the question of moving. And I agree with what you say. My point was that the blanket application of a rule and enforcement policy which is an interpretation of the law that's been made without considering the rights of children to their education is unlawful. The 'unlawfulness' of the distance requirement that I meant to refer to here was one that is imposed without properly considering this. It's important to remember that most people affected are in fact meeting the requirements that have been set, because the threat of enforcement action potentially means not only difficulty with access to education but also homelessness for their children. The 6 and 3 month licences that have been used up the pressure for this, and mean that parents are stressed, and that their children are tired and cold from having to travel further than is sustainable for them to school. You're right that I probably expressed this inaccurately and badly before. It is also worth mentioning in relation to other posts that leisure boating on the inland waterways is also a 'choice' and if people can't manage or don't want to walk (or cycle) a few hundred yards down a towpath to the pub or shop or whatever they want to get to; or if they cannot cope with sharing the space, which is required to further the public benefit of social inclusion, with people whose lifestyle choices they don't like, maybe they could join the camping and caravan club or something, and start visiting the wealth of country houses and national monuments the rest of the country has to offer. They don't have to spend their leisure time on the waterways.