enforcement of mooring charge

[Bod]

11 hours ago, Arthur Marshall said:

Anything can be ignored. Just because something is the law doesn't mean you have to obey it. You just have to accept that there may be consequences. 

As far as the T&Cs go, everyone rabbitting on about CRTs legal obligation to provide a licence seems to forget the bit about the Board having to be satisfied. I presume the T&Cs indicate what will bring about that satisfaction. Not complying leads to dissatisfaction and a court case (which of course you may win). 

The Board being satisfied, is only in relation to boats with no home mooring, being "Bona fide for navigation".  IE. continuous cruisers, should actually move.

British waterways Act 1995 section 17 (3) (c) (ii)

 

Bod

[WotEver]

46 minutes ago, Bod said:

continuous cruisers, should actually move.

What a novel concept. Do you think it will catch on?

[Paul C]

10 hours ago, aracer said:

Except it doesn't, because the link you give applies to the processing of data within an organisation, not the passing of data from one organisation to another, hence it is completely irrelevant to this thread - it most certainly doesn't provide CRT any justification at all for passing data to a local council.

 

 

Well - yes and no. You're right in that section doesn't specifically refer to data transfers to others; but there isn't a separate set of rules (for within the EU) regarding data transfers - GDPR is concerned with how the data is handled, and the standards of one party are the same as those of a third party. CRT are basically saying that ONE of the things they do with your data is to give it to others, they tell you they may do this, and they don't ask for your permission either generally or on a case-by-case basis (because they don't need to, because they are processing based on public task).

 

The main thrust being, that people are wrongly assuming that this is some kind of commercial contract with CRT regarding their data which they should be able to freely opt-out of. And that GDPR will save them. This isn't Facebook, this is licensing a boat. They (have a reasonable argument that they) need the data, not just want it. They have obligations under GDPR to inform you, and keep it safe etc, but GDPR itself doesn't prevent them passing it on to the local council.

[Captain Pegg]

I am trained in both data protection and contract law and routinely have to knowingly operate within both. My view is that the T&Cs that apply in respect of mooring to a mooring provider's property are legally binding and that the exchange of data between CRT and any other body for the purpose of enforcing those T&Cs is above board.

 

It's important to understand the purpose and context of individual clauses in law when trying to apply them. The principles of GDPR are to prohibit retention and use of personal data for any other purpose than what it was expressly collected for, and to be transparent about how any retained date will be used.

 

CRT have a requirement to hold personal data relating to the issue of a licence and they state what they are going to do with that data in the T&Cs. Anyone issued with a licence has entered into a contract with CRT and will have agreed to the T&Cs. Even if you don't think you have done that explicitly you will probably be deemed to have accepted them by exercising your right to navigate CRT waters under your licence.

 

Essentially though you have no right to moor, that is a permissive activity, and that is why land owners - including CRT - can and do charge for it.

 

Contract terms simply need to comply with two criteria to be legal;-

 

1. Not to contradict any statutory provisions

2. They must be reasonable

 

The fact that something isn't directly referenced in statute doesn't make it illegal, in fact generally the opposite applies.

 

JP

 

 

 

[Graham Davis]

I expect the usual suspects will be back arguing with you about that, Captain Pegg, but they will still be wrong.

Edited February 24, 2019 by Graham Davis

[aracer]

30 minutes ago, Captain Pegg said:

My view is that the T&Cs that apply in respect of mooring to a mooring provider's property are legally binding and that the exchange of data between CRT and any other body for the purpose of enforcing those T&Cs is above board.

Thanks for your contribution - I was hoping there would be someone on here who knew more than me. However what T&Cs in respect of mooring to a third parties property? None have been quoted on this thread and given your comments which carry greater authority I've been back and checked and can't find anything. https://canalrivertrust.org.uk/media/library/5962.pdf

 

I particularly note 10.1! 

 

In the absence of any such T&C they have no more authority to share data with a third party mooring provider than they do to share data with a Nigerian prince!

 

I'd actually be interested in your take on whether a T&C regarding your relationship with a third party would be an unreasonable term - I didn't think it was possible for a contract to bind you in that way, though I may be getting confused with some other contract law relating to binding you to third party terms

[Paul C]

Unsurprisingly, nothing in the CRT T&C covers the "contract", if one were to exist, between a boat owner and a (third-party such as a) landowner (in this case, a local authority) on waters (such as the River Severn) where CRT are the navigation authority but not the landowner.

 

Also regarding the above, 10.1 doesn't mean "in the absence of a T&C they have no more authority....." - I believe the argument regarding whether CRT have the authority to pass on relevant data, is already settled and a bit of a non-issue.

[WotEver]

16 minutes ago, aracer said:

what T&Cs in respect of mooring to a third parties property? 

There is no right to moor to any property, whether it be CRT’s property or anyone else’s. It’s a permission given, with limitations, in every case. The limitation might be a time limit of 14 days, or 48 hours, or a payment of £4. 

[Jerra]

12 hours ago, aracer said:

It doesn't seem reasonable at all to me for CRT to provide personal details to a third party which I haven't given my permission for and for which there is no legislation requiring them to pass the details in the absence of my permission. On the contrary, as I keep pointing out, passing on personal information in those circumstances is a breach of the data protection rules.

Out of interest how do you suggest the council chase up those skinflints who aren't prepared to pay the council the mooring fee it can justly ask for?

 

Or would you prefer they stopped mooring at that place?

[Bod]

2 hours ago, Captain Pegg said:

I am trained in both data protection and contract law and routinely have to knowingly operate within both. .........

 

Contract terms simply need to comply with two criteria to be legal;-

 

1. Not to contradict any statutory provisions

2. They must be reasonable

 

The fact that something isn't directly referenced in statute doesn't make it illegal, in fact generally the opposite applies.

 

JP

 

 

 

Interesting.  The statute regarding what is needed for a licence to be issued is only 3 items, BSS, insurance, and money.

I was under the impression that as a "statute"  had been granted, there could be no contract.  Public right not business transaction.

This is where things get difficult, C&RT, as BW, and BWC, before them, are creatures of statute, created by Act of Parliament.  They can only do what is set out in their Acts.  Nothing more, nothing less.

 

Bod

[Alan de Enfield]

13 minutes ago, Bod said:

Interesting.  The statute regarding what is needed for a licence to be issued is only 3 items, BSS, insurance, and money.

I was under the impression that as a "statute"  had been granted, there could be no contract.  Public right not business transaction.

This is where things get difficult, C&RT, as BW, and BWC, before them, are creatures of statute, created by Act of Parliament.  They can only do what is set out in their Acts.  Nothing more, nothing less.

 

Bod

The confusion has been thrown into the mix several post ago.

 

THERE IS NO QUESTION ABOUT C&RT REVOKING OR REFUSING TO ISSUE YOUR LICENCE.

 

The question is do C&RT have the right to pass over your personal details to an 'interested' 3rd party.

C&RTs T&Cs are 'warning you' that they will do so for anyone they consider having an 'interest' (ie you are have an unpaid mooring debt with the council)

 

The OP is of the mind that they cannot do this under GDPR rules, other posters are of the mind that they can do.

 

The answer can only be obtained by not paying and then going and letting a court decide.

 

Lets not confuse things by answering unasked questions.

Edited February 24, 2019 by Alan de Enfield

[Cheese]

3 hours ago, aracer said:

... However what T&Cs in respect of mooring to a third parties property? None have been quoted on this thread and given your comments which carry greater authority I've been back and checked and can't find anything. ....

 

Why do you think 2.3 (which I quoted in post #26 above) doesn't cover it?

[john6767]

6 hours ago, frangar said:

They do check....I was the only boat there a couple of years ago....just moored up...when a knock on the cabin side and a chap in full parking warden outfit with a portable ticket machine etc asking for the fee...still that was better than Windsor where I hadn’t even tied up before I was asked for the fee....

 

edited to add

ive only been been able to find space on the pontoons once...they seem to be less well policed and attract the permanent mooring types....

Good to know that they do check.

 

Nothing beats the place on the Nene, by the church, for being prompt at asking for the fee as you are stopping.  

[Arthur Marshall]

As Wotever has implied, the question itself is based on a false premise, ie that you can moor up freely anywhere. You can't. If you have a home mooring, you're allowed to on sufferance as long as you follow the local permissions. If you are a CC, it's more or less the same and you have a time limit and other conditions. 

The whole argument is pointless as the prime condition isn't valid. It's a really good way of winning an argument - you not only pick the grounds you base it on, but define them so your opponents can't win,and then insist the discussion is about something else. 

Essentially, you have no legal right to moor there anyway. The land owner allows you to under certain conditions. If you choose not to accept them, either penalties will be exacted or the permissions in general revoked,thus knackering it up for everyone else. 

[Graham Davis]

4 hours ago, aracer said:

I particularly note 10.1! 

 

In the absence of any such T&C they have no more authority to share data with a third party mooring provider than they do to share data with a Nigerian prince!

10.1 has absolutely nothing to do with the  passing of data to a third party.

 

If you moor against land not owned by CaRT, at which a mooring fee is legitimately charged, such as by Worcester City Council along the Racecourse moorings, and you do not pay that fee, then a "incident" has occurred and therefore CaRT can pass your details on to the Council for them to pursue you. 

 

Stop clutching at straws and trying to find loopholes that do not exist.

Edited February 24, 2019 by Graham Davis

[Captain Pegg]

6 hours ago, aracer said:

Thanks for your contribution - I was hoping there would be someone on here who knew more than me. However what T&Cs in respect of mooring to a third parties property? None have been quoted on this thread and given your comments which carry greater authority I've been back and checked and can't find anything. https://canalrivertrust.org.uk/media/library/5962.pdf

 

I particularly note 10.1! 

 

In the absence of any such T&C they have no more authority to share data with a third party mooring provider than they do to share data with a Nigerian prince!

 

I'd actually be interested in your take on whether a T&C regarding your relationship with a third party would be an unreasonable term - I didn't think it was possible for a contract to bind you in that way, though I may be getting confused with some other contract law relating to binding you to third party terms

I may have been a bit ambiguous in my references to T&Cs. In my opening paragraph I was referring to the T&Cs that Worcester City Council impose on anyone mooring at the location in question. They know you are entering into a contract simply by availing yourself of the service offered i.e. by mooring up. They guide you to the payment machines in the car park on which there is very likely a set of T&Cs printed on a board or otherwise some reference to there being T&Cs attached to your use of the provided service which you can obtain from some address or on some website.

 

Since ignorance is no defence in law it may be incumbent upon the licence holder to know that they have no right to free mooring on rivers and free moorings are provided by exception rather than by rule. It may even be referenced in the T&Cs provided by the navigation authority when they issued your licence. You would certainly struggle with any argument against enforcement if the moorings are signed to the effect that you have to pay and the T&Cs associated with that payment are referenced at the location they guide you toward.

 

I think the latter part of your post may not be relevant in light of the above but I believe CRT are compliant with GDPR because of the the statement they make in their T&Cs for licence holders. It would seem absurd that the Government would pass a law which prohibits a statutory body passing on legitimately held information to another statutory body for the purposes of law enforcement. It seems to me you are suggesting the GDPR does precisely that. By extension that would have made all traffic offences unenforceable overnight.

 

JP

 

 

[Captain Pegg]

5 hours ago, Bod said:

Interesting.  The statute regarding what is needed for a licence to be issued is only 3 items, BSS, insurance, and money.

I was under the impression that as a "statute"  had been granted, there could be no contract.  Public right not business transaction.

This is where things get difficult, C&RT, as BW, and BWC, before them, are creatures of statute, created by Act of Parliament.  They can only do what is set out in their Acts.  Nothing more, nothing less.

 

Bod

My take on it was that in engaging with CRT for the purchase of a licence I am entering into a contract with them.

 

Their statutory obligations and my statutory rights are completely unaffected by whether I choose to avail myself of the ability to exercise them or not.

 

The conditions set out for the granting of a licence by CRT are presumably there for the purpose of ensuring they do not abuse their powers by unreasonably refusing to grant a licence to an applicant.

 

I don't believe any of that stops them from granting licences subject to conditions that set out how they will enforce their statutory powers and abide by other legal requirements incumbent upon them. I actually see that as necessary, not least to prevent my enjoyment of the benefits of being a licence holder being adversely affected by the actions of other licence holders.

 

JP

 

 

[aracer]

8 hours ago, Paul C said:

Unsurprisingly, nothing in the CRT T&C covers the "contract", if one were to exist, between a boat owner and a (third-party such as a) landowner (in this case, a local authority) on waters (such as the River Severn) where CRT are the navigation authority but not the landowner.

Indeed, because not only do they have no jurisdiction over such a contract, given clause 10.1 any third party has no rights under the CRT contract.

8 hours ago, Paul C said:

 

Also regarding the above, 10.1 doesn't mean "in the absence of a T&C they have no more authority....." - I believe the argument regarding whether CRT have the authority to pass on relevant data, is already settled and a bit of a non-issue.

That reference was mainly aimed at CP - I presume that as a lawyer involved with contract law he would understand that it is the standard legal terminology to provide an opt out of part of the 1999 Contracts (Rights of Third Parties) Act, which is fairly relevant in this context.

 

Legally it is quite settled under data protection law, however most here seem to want to continue to argue...

7 hours ago, Jerra said:

Out of interest how do you suggest the council chase up those skinflints who aren't prepared to pay the council the mooring fee it can justly ask for?

Not really my problem, but I'd suggest they comply with the law when doing so. Having a more reasonable fee for stopping for an hour might help with compliance!

5 hours ago, Alan de Enfield said:

The question is do C&RT have the right to pass over your personal details to an 'interested' 3rd party.

C&RTs T&Cs are 'warning you' that they will do so for anyone they consider having an 'interest' (ie you are have an unpaid mooring debt with the council)

Please cite me the relevant CRT T&C.

5 hours ago, Cheese said:

Why do you think 2.3 (which I quoted in post #26 above) doesn't cover it?

Where in 2.3 does it mention anything about a third party?

3 hours ago, Graham Davis said:

If you moor against land not owned by CaRT, at which a mooring fee is legitimately charged, such as by Worcester City Council along the Racecourse moorings, and you do not pay that fee, then a "incident" has occurred

An "incident"? Please cite me the CRT T&C where such an incident gives CRT the right to pass on details.

[Jerra]

4 minutes ago, aracer said:

Legally it is quite settled under data protection law, however most here seem to want to continue to argue...

So roughly translated.  "I don't give the proverbial tinker's cuss all I am looking for is being able to moor free.  Even if it means eventually the mooring is removed."

 

Thanks for making that clear.

Edited February 24, 2019 by Jerra
To remove erroneous " marks

[aracer]

1 minute ago, Jerra said:

So roughly translated.

Not at all - you should try reading more thoroughly. I'm interested in the exact legal situation, given that I suspect (even more strongly now than when I started) that they would be on extremely shaky ground if they ever attempted to pursue such a mooring charge through the courts - not only that, but that CRT would be breaking the law by supplying personal data to a third party in a situation which isn't covered by the T&Cs.

[Jerra]

Just now, aracer said:

Not at all - you should try reading more thoroughly. I'm interested in the exact legal situation, given that I suspect (even more strongly now than when I started) that they would be on extremely shaky ground if they ever attempted to pursue such a mooring charge through the courts - not only that, but that CRT would be breaking the law by supplying personal data to a third party in a situation which isn't covered by the T&Cs.

I am well aware of your interest in what you consider to be the legal situation which is why I asked the question you are unprepared/unable to answer.

 

The council have the legal right to charge, in the absence of a water equivalent to the DVLA how do you propose they get the information required for enforcement.

 

Being so keen on everything being done legally you will of course have considered how they can do this.   Unless of course your nit picking attitude to doing things within the law only surfaces as a vehicle to try to knock CRT.

 

So go on prove you aren't only trying to knock CRT and make a suggestion.

[aracer]

2 hours ago, Captain Pegg said:

I may have been a bit ambiguous in my references to T&Cs. In my opening paragraph I was referring to the T&Cs that Worcester City Council impose on anyone mooring at the location in question.

I guess I quoted the wrong bit for my reply in that case - sorry! Let's try again...

9 hours ago, Captain Pegg said:

CRT have a requirement to hold personal data relating to the issue of a licence and they state what they are going to do with that data in the T&Cs. 

They do - and where in those T&Cs does it say that they can pass on your data to a third party when requested for an alleged non payment of a mooring charge?

 https://canalrivertrust.org.uk/media/library/5962.pdf

 

9 hours ago, Captain Pegg said:

 

 

 

 

2 hours ago, Captain Pegg said:

Since ignorance is no defence in law

I think we need to be careful about mixing up different parts of the law here. You are referring to criminal law, but this is contract law here, and in that case ignorance certainly can be used as a "defence". For example, whilst it probably isn't relevant in this case, the lack of signage would be one reason for the charge not being enforceable.

2 hours ago, Captain Pegg said:

I think the latter part of your post may not be relevant in light of the above but I believe CRT are compliant with GDPR because of the the statement they make in their T&Cs for licence holders. It would seem absurd that the Government would pass a law which prohibits a statutory body passing on legitimately held information to another statutory body for the purposes of law enforcement. It seems to me you are suggesting the GDPR does precisely that. By extension that would have made all traffic offences unenforceable overnight.

I'm not particularly referring to GDPR here, but slightly older data protection law - it certainly wasn't allowed to pass on personal details willy nilly even before GDPR. Once again, I feel the need to point out that there is no "law enforcement" here, as it is civil rather than criminal stuff and that changes the picture somewhat. Finally traffic offences (like parking enforcement as I pointed out in the OP) are completely different as there is specific legislation covering them - it was the realisation that the passing on of data in the case of parking enforcement required such specific legislation which doesn't exist for mooring which largely prompted the OP.

[Arthur Marshall]

2 minutes ago, aracer said:

An "incident"? Please cite me the CRT T&C where such an incident gives CRT the right to pass on details.

Are you implying that an incident can only occur if it is defined in the T&Cs? Don't be daft.  You really, really, want the T&Cs to cover every possible eventuality known or imagined by mankind? Nor can any law, however many subclauses you stick on the end of it, can cover every eventuality.  Combined with common sense they tend to work OK most of the time.  They get tinkered with by the courts as idiots try to pull fast ones.

 

This kind of argument is fun, but, as so much of Pythonish posturing, would be thrown out of any court on the grounds of being silly.

 

Essentially, it isn'r even really a question of data protection, or law, or anything else. It's a question of personal responsibility and morality.  If you, as you obviously do, think it's OK to evade any penalties for your actions as long as you can get away with it, then you might as well shoplift your shopping while you're at it.  It's just the same as not paying a legally imposed mooring charge.

[aracer]

4 minutes ago, Jerra said:

I am well aware of your interest in what you consider to be the legal situation which is why I asked the question you are unprepared/unable to answer.

I'm not really interested, it's completely irrelevant to the context of the thread.

4 minutes ago, Jerra said:

The council have the legal right to charge, in the absence of a water equivalent to the DVLA how do you propose they get the information required for enforcement.

By some legal means. If such a means doesn't exist, then maybe as the parking companies did they need to lobby parliament to make a new law?

4 minutes ago, Jerra said:

Being so keen on everything being done legally you will of course have considered how they can do this.

I'm not sure how that follows at all. You are aware that defence lawyers in criminal cases aren't required to show who committed the crime, simply provide sufficient doubt that their client did?

4 minutes ago, Jerra said:

Unless of course your nit picking attitude to doing things within the law only surfaces as a vehicle to try to knock CRT.

I'm not at all interested in knocking the CRT - I expect I'm far less of a CRT knocker than most people on here. However the moment they decide they can ignore the law then I'm certainly not just going to ignore it. Expecting official bodies to comply with the law is hardly nit picking!

[Jerra]

1 minute ago, aracer said:

I'm not really interested, it's completely irrelevant to the context of the thread.

By some legal means. If such a means doesn't exist, then maybe as the parking companies did they need to lobby parliament to make a new law?

I'm not sure how that follows at all. You are aware that defence lawyers in criminal cases aren't required to show who committed the crime, simply provide sufficient doubt that their client did?

I'm not at all interested in knocking the CRT - I expect I'm far less of a CRT knocker than most people on here. However the moment they decide they can ignore the law then I'm certainly not just going to ignore it. Expecting official bodies to comply with the law is hardly nit picking!

It doesn't seem a very balanced or sensible approach to argue for a situation which will be detrimental to the majority of boaters without giving thought to a solution.

 

If the council find they can't enforce the charges they will prohibit mooring, to the detriment of the majority of fair minded boaters who don't examine every action of CRT to check it is legal.   The majority take a pragmatic approach, they realise the council wants paid they see CRT supplying the information as sensible (even if not entirely within the law, but have yet to convince me of that) and so get on with their boating quietly and don't rock the boat.

 

You on the other hand seem intent on "rocking the boat" to the detriment of other boaters.   Do you do this pursuit of the letter of the law in all walks of your life or only boating?