enforcement of mooring charge

[Graham Davis]

28 minutes ago, aracer said:

In general I'd agree with you. However we're not talking here about CRT taking you to court over breaking their T&Cs (as in the other case you seem to refer to) or you taking CRT to court for going beyond their remit. In those cases then either new ground is being broken or there is presumably precedent of CRT winning.

 

What we are discussing here is simply a plaintiff (the landowner, not CRT) taking a defendant to court for breach of (implied) contract. There is no "challenging of authorities" here. Such contract law is extremely well established - at least partly through parking cases involving private parking companies, some of which cases have been taken to higher courts and set legal precedents which lower courts must abide by. One fundamental principle of contract law is that you can't be bound by a contract which you haven't agreed to, which is where any case the landowner takes against the licence holder for failing to pay mooring charges would fall over in the absence of any evidence that the licence holder was in charge of the boat at the time of mooring. The law is so well established on this that any judge ignoring it would have to be extremely perverse in their interpretation and an appeal to judges who actually know their law would be risk free.

 

I note that in a civil case like that there is absolutely no obligation on the licence holder to provide the plaintiff with any information whatsoever on who was in charge of the boat at a particular time.

 

I suggest that before you make such statements you check for any By-Laws that Worcester City Council may hold on the land comprising The Pitchcroft and it's surroundings, especially concerning the river frontages from Worcester Bridge northwards. Those may well include some very historic legislation that I am sure came to light some years ago concerning one of the trip boats.
You might also note that a By-Law prosecution may not involve contract law.

[NigelMoore]

2 hours ago, aracer said:

Thanks - I was assuming something like that given the incompatibility of the 1971 act with more recent data protection acts, however I wasn't certain of the process by which such law would be repealed and whether there was such a thing as implied repeal. My apologies again to Albert for not replying directly to his PM, I did however think I'd responded when he raised the issue on this thread.

 

I don't think there is any dispute about that - the question is what happens when somebody ignores that and moors there anyway and what rights does the landowner have to take action to pursue a claim for damages in such a case.

 

I'm curious exactly how such byelaws work - have they found a way to get around the contract law issues I mention above?

Any Act which contains a provision incompatible with a former Act is said to have repealed by implication that former Act, even though no express statement to that effect has been made. Parliament cannot be held to contradict itself.

 

A riparian owner has the right to bring a trespass action against any person that attaches their vessel to their land without their consent. The owner can in fact summarily remove the vessel from their land, providing that the vessel is left somewhere safe and not left moored illegally – somewhat tricky in some circumstances, similar to the removal of a car parked in your driveway (though in such a case it is better to have the police remove it for obstruction). Such common law remedies are available to all natural persons, though as I have said, creatures of statute are limited by their statutory powers (which usually make provision for appropriate byelaws to cover the situation).

 

Relevant byelaws work by making the mooring of a vessel to the land a criminal offence, as distinct from the merely civil offence of trespass, with penalties enforceable in the Magistrates Court. Contract law does not enter into it; that is a device used by those who do not wish to bother with the appropriate avenues for legitimate enforcement of their rights.

[NigelMoore]

1 hour ago, Graham Davis said:

You might also note that a By-Law prosecution may not involve contract law.

It will not involve contract law at all. The prosecution will rely on the criminal offence committed, as detailed in the relevant provisions.

[DandV]

And if you are successful in proving that mooring providers do not have the right to charge for moorings, and therefore the implied right to enforce those charges, what will it acheive?  Prudent riparian landowners/ councils included, will not provide any sort of facilities to incur the capital costs, the costs of maintaining, insuring and inspecting a facility up to public use standards, and potential HS & E liabilities. Prudent land owners will just errect Trespassers Prosecuted or similar signs to mitigate any liability issues in case of misadventure. Is that really the outcome you want? If so I think you will be doing the majority of boaters, who don't mind paying a fair charge for using a facility, a huge disservice.

[Boater Sam]

Is it just curmudgeonly me or are there others around who are a bit tired of hearing the bleat of folk who just don't want to pay their way and think that the canal and river system is a free to all funfair?

 

I think I am not alone.

[Momac]

Pontoons or other moorings along the river are not all owned / managed  by C&RT . I can think of many on the R. Trent and also at York

May  I just go and moor on one of those and not paya penny nor expect to be asked to leave?

[Arthur Marshall]

Just a note to the OP. Referring to those getting involved in the discussion, even if they seem to be getting frustrated, as the "angry mob" doesn't actually help in making you look like someone wanting to uncover facts rather than just looking to stir up a fight. 

Edited February 26, 2019 by Arthur Marshall

[Graham Davis]

8 hours ago, NigelMoore said:

It will not involve contract law at all. The prosecution will rely on the criminal offence committed, as detailed in the relevant provisions.

Thank you Nigel. I wasn't too sure but thought that was the case. 
 Looks like another flaw in the OP's arguments.

8 hours ago, NigelMoore said:

Any Act which contains a provision incompatible with a former Act is said to have repealed by implication that former Act, even though no express statement to that effect has been made. Parliament cannot be held to contradict itself.

 

A riparian owner has the right to bring a trespass action against any person that attaches their vessel to their land without their consent. The owner can in fact summarily remove the vessel from their land, providing that the vessel is left somewhere safe and not left moored illegally – somewhat tricky in some circumstances, similar to the removal of a car parked in your driveway (though in such a case it is better to have the police remove it for obstruction). Such common law remedies are available to all natural persons, though as I have said, creatures of statute are limited by their statutory powers (which usually make provision for appropriate byelaws to cover the situation).

 

Relevant byelaws work by making the mooring of a vessel to the land a criminal offence, as distinct from the merely civil offence of trespass, with penalties enforceable in the Magistrates Court. Contract law does not enter into it; that is a device used by those who do not wish to bother with the appropriate avenues for legitimate enforcement of their rights.

Which if I remember rightly was done at Worcester, with agreement between Worcester City Council and BWB at that time, and the boat removed to the Oil Dock at Diglis.

(It is useful being an ex Worcester resident!)

Edited February 26, 2019 by Graham Davis

[haza]

right or wrong its something you lot can get your teeth into again lol

[Jim Riley]

11 hours ago, Paul C said:

 

 

One thing I've always been cautious of is to second guess what judges do in courts, especially lower ones. Basically, there's been a number of clangers and the pattern is that CRT seems to come off well, and the piss taker/boater seems not to. They seem to apply "the duck test" rather than bothering with the actual wording of the law. Of course, if you have the willpower and nothing to lose, then appeal appeal appeal, fight it in higher courts, etc etc but I believe one of the barriers to this is that if the argument you're making is sufficiently unstable, they can/do ask for security of paying the other parties legal fees, in a higher court if/when it goes to appeal. This would be a barrier for those with "nothing to lose" and if those with something to lose did it....you never know....they might lose it.

So it's wrong for boaters to push the boundaries, but not for CRT to push the boundaries of the law, expertly advised as they are? It's ok for a charity to conspire with lawyers to claim rights they do not have, to act in ways not supported in law. 

I see Nigel agrees the T&c's are unjustly foisted upon us, against what is written in statute. Never mind lets all kow tow to our lords and masters, they know best eh. Where on earth has that hair clogging the cut appeared from? Forelock tugging?

[Graham Davis]

1 hour ago, MartynG said:

Pontoons or other moorings along the river are not all owned / managed  by C&RT . I can think of many on the R. Trent and also at York

May  I just go and moor on one of those and not paya penny nor expect to be asked to leave?

Yes you may, if the land or mooring owner has made a decision not to charge, but on a river legally they do have a right to make that charge and ask you to leave. 
Just look at the situation on the Thames.

[Paul C]

8 minutes ago, Jim Riley said:

So it's wrong for boaters to push the boundaries, but not for CRT to push the boundaries of the law, expertly advised as they are? It's ok for a charity to conspire with lawyers to claim rights they do not have, to act in ways not supported in law. 

I see Nigel agrees the T&c's are unjustly foisted upon us, against what is written in statute. Never mind lets all kow tow to our lords and masters, they know best eh. Where on earth has that hair clogging the cut appeared from? Forelock tugging?

You tell me - because my post didn't infer anything like that. For the sake of clarity (and in another theoretical setting), of course its wrong for either side to "break the law" when its black and white. I think you'd need to agree in this particular case, its been adequately established that the law is on the side of the local council (this isn't a CRT vs boater issue.....its the local council.....) and that mooring and not paying is basically equivalent to the person who goes up to the newspaper stand, takes a paper and doesn't pay for it.

 

There may be (again, hypothetically) cases where the law has never been fully tested in court, there is no precedent etc, it is quite normal for either side to take their stance which may differ. And its quite normal for either side to "conspire with lawyers". 

[Momac]

18 minutes ago, Graham Davis said:

 on a river legally they do have a right to make that charge and ask you to leave. 

Is the same not true on a canal?

[Alan de Enfield]

5 minutes ago, MartynG said:

Is the same not true on a canal?

As the adjacent 'landowner' rarely owns the canal bed (unlike with a River) the answer must be no.

 

If a Farmer wants to offer moorings he has to get a mooring licence from C&RT and pay a charge.

If a home owner wants to put a mooring at the end of his garden he must apply to C&RT, get permission and pay a charge of 50% of the level of local moorings

[NigelMoore]

4 minutes ago, MartynG said:

Is the same not true on a canal?

Yes; it happens. I should add the proviso that they could not demand a fee if no notice had been given that such would be charged, but they could demand your removal - and if they do not want anybody mooring there, they are unlikely to set up such a notice: they simply don't want anybody moored to their property and if the boat remained, would take possession proceedings out. This happened last year on the GU. the boats simply vacated in that case when informed. They probably had given no thought to the illegitimacy of mooring on the offside absent consent.

[mrsmelly]

4 hours ago, Boater Sam said:

Is it just curmudgeonly me or are there others around who are a bit tired of hearing the bleat of folk who just don't want to pay their way and think that the canal and river system is a free to all funfair?

 

I think I am not alone.

You are not alone as the saying goes. This is a Grade A class 1 extracting the urine attitude displayed by the OP. I am not suprised as in life I have generaly found the minority spoil things for the majority of us.

[WotEver]

1 minute ago, mrsmelly said:

You are not alone as the saying goes. This is a Grade A class 1 extracting the urine attitude displayed by the OP. I am not suprised as in life I have generaly found the minority spoil things for the majority of us.

I agree fully with both of you. 

[NigelMoore]

11 minutes ago, Alan de Enfield said:

As the adjacent 'landowner' rarely owns the canal bed (unlike with a River) the answer must be no.

 

If a Farmer wants to offer moorings he has to get a mooring licence from C&RT and pay a charge.

If a home owner wants to put a mooring at the end of his garden he must apply to C&RT, get permission and pay a charge of 50% of the level of local moorings

Well that’s the ‘official’ line, which I refute as contrary to statute (the argument would be sound otherwise). I will not get into that argument now, but it still does not affect the owner’s right to deny mooring, or to charge for temporary stays. In fact he could use the absence of ‘official’ CaRT permission to back up his claim of trespass – not that it would be necessary. Riparian Councils also, can apply for the relevant byelaws, and in fact Hounslow are proposing those to cover the Brent as well as the Thames.

[Boater Sam]

That's two of us then.

Any more?

Damn, I peeped at WotEver's post. I'll have to take him off ignored now.

That's three in agreement now.

Edited February 26, 2019 by Boater Sam

[Arthur Marshall]

18 minutes ago, Alan de Enfield said:

As the adjacent 'landowner' rarely owns the canal bed (unlike with a River) the answer must be no.

 

If a Farmer wants to offer moorings he has to get a mooring licence from C&RT and pay a charge.

If a home owner wants to put a mooring at the end of his garden he must apply to C&RT, get permission and pay a charge of 50% of the level of local moorings

I moored up many years ago on the offside which I thought was common land and got seen off by a farmer with an attitude and a shotgun. 

[mrsmelly]

8 minutes ago, Arthur Marshall said:

I moored up many years ago on the offside which I thought was common land and got seen off by a farmer with an attitude and a shotgun. 

Shotguns always do seem to focus the mind ?

[Arthur Marshall]

6 minutes ago, mrsmelly said:

Shotguns always do seem to focus the mind ?

It did. I apologised politely and shuffled over to  the towpath, which I had hoped to avoid as it was largely paved with evidence of dog. 

[NigelMoore]

On 23/02/2019 at 13:48, Arthur Marshall said:

  The only ones that seem to have been accepted as non-enforceable are those penalties for over-staying introduced a year or two back, although as far as I can remember, no-one has ever come on here and said they got a penalty, didn't pay it, and heard no more.

 

I believe that I have mentioned previously having been erroneously sent a demand for £250 for overstaying, which I refused to pay on the grounds that it was not my boat and had not had charge of it at the time. Despite getting the proofs of this as requested, they still went ahead and filed a case against me, through a firm of dishonest debt collecting solicitors. So definitely not a case of hearing no more.

 

I was looking forward to embarrassing them in court (I had the relevant phone calls recorded), and to raising the issue of the legitimacy of the charges anyway, but sadly, a week before the hearing they dropped the case, having rather belatedly discovered that the owner – who had been apprised of the situation - had in fact paid up about 6 months previously!

 

Whether anybody has refused to pay and heard no more, I could not say; they would have been pursuing me to add pressure to the 2 High Court actions we were involved in at the time, but maybe they might not have bothered with anybody else?

 

I did file a complaint against the firm of solicitors for dishonesty, but their oversight body weaselled that they had been misled by BW and could only have acted on information given. That was false to fact because they did know the situation, but it wasn’t worth bothering with given everything else on my plate at the time.

[Boater Sam]

Proper enforcement!

I once asked directions, whilst standing in the road,over the  fence of a stud farm, He set and lifted the shot gun and suggested I left with a double F.

Sometimes discretion is the better part of valour.

Reported to the police but never heard anything.

[WotEver]

14 minutes ago, Boater Sam said:

Proper enforcement!

I once asked directions, whilst standing in the road,over the  fence of a stud farm, He set and lifted the shot gun and suggested I left with a double F.

Yes, but in your case that’s understandable...