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Alan de Enfield

EA Fines Unregistered Boat owners

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4 minutes ago, NigelMoore said:

 

Very unlikely to forget it, myself. It made an impression.

 

 

A veritable "Rumpole" moment even the late J Mortimer would not have dreamed up.

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7 hours ago, john6767 said:

As you will see from this case with unregistered boats on EA waters, it a a criminal case that has been dealt with by the courts, it is the court that has fined the individuals not the EA.  As these people are now convicted criminals, their name and address details are available to anyone from the court proceedings, and therefore are in the public domain.
 

In the case of CRT, not licensing a boat is not a criminal offence in the same way.

 

That’s my understanding anyway, no doubt I will be corrected if I am wrong.

If CaRT ever took anyone to court for not licensing a boat, it would be for a criminal offence in the same way. However, CaRT don't do this, preferring the Section 8 approach, the ultimate aim of which is to remove an offending boat.

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11 minutes ago, Iain_S said:

If CaRT ever took anyone to court for not licensing a boat, it would be for a criminal offence in the same way. However, CaRT don't do this, preferring the Section 8 approach, the ultimate aim of which is to remove an offending boat.

Thanks.  I will not ask why they choose this approach, as it’s probably a rat hole that has been covered before!

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2 minutes ago, john6767 said:

Thanks.  I will not ask why they choose this approach, as it’s probably a rat hole that has been covered before!

I'm not sure anyone could give an answer. It certainly seems the most expensive and least cost effective way of doing it!

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8 hours ago, Alan de Enfield said:

The EA cannot issue licences but they can issue a 'registration', It is effectively the same but legally a very different thing.

 

Although C&RT deny it, it is the same for (what they call) the River only licence, it is legally a River Registration.

 

You don't need a licence to do something that you are legally allowed to do and on Rivers there is a PRN (Public Right of Navigation) so you do not need a licence.

 

Nigel Moore wrote this some time ago :

 

 

To recap then: A 'licence' is exactly what it sounds like – formal permission to do something, without which permission it would be unlawful to do so. 

 

'Registration' is a statutorily imposed identification system having nothing to do with a grant of permission to do anything.

 

Invariably, all canal enabling Acts conferred a right for the public to keep and use boats on them, but invariably also, there was a requirement for all boats to be registered, so that the companies could keep tabs on the boats for charging purposes, and for identifying the boats in the event of any breach of byelaws.

 

By contrast, on rivers, the right to keep and use boats derives from the public right of navigation, and such things as registration requirements did not apply either.

 

Note that even on rivers, charges could be made for things authorised as chargeable by statute, e.g passage through locks.

 

From the passage of the 1968 Transport Act, all conferred navigation rights were abolished. That expressly excluded navigation rights that were not conferred, even if confirmed by some statute. Following 1968 therefore, use by boats of the canals became permissive as opposed to use of the rivers where it remained as of right.

 

In 1975 the BW Act was passed adding to the byelaw making powers a power to demand and charge for licences on the non-river waterways, and accordingly the 1975 byelaws were passed making it obligatory to display licences on the canals. Sadly, BW were in such a rush they forgot that they had not passed the necessary byelaw to make licences compulsory in the first place (!) so the very next year they abolished the 1975 byelaws and passed new ones, making the licence obligatory AND requiring prominent display of same. Registration continued as it always had been, compulsory.

 

The 1971 Act had made no licensing obligatory for boats on rivers, it simply imposed a registration requirement on some of them (the number increased over the years) for a small charge, issue of which could not be refused, nor any conditions attached. Once having paid for this registration for pleasure boats, they were freed from the previous toll demands for individual lock passage.

 

Not until 1995 were any conditions applied to issue of river registrations, and the conditions were limited to the three we all know so well. Of course, if the old BW/CaRT argument over s.43 of the 1962 Act held true, none of the relevant Acts would have been needed, but the argument being nonsense, the statutes were indeed necessary before any of these conditions of use and charging could be made.

 

The old BW EoG 'Informative' was broadly accurate in setting out the details and history in abbreviated and elliptical form.

 

I suppose, from a VAT viewpoint, the charges for registration could be considered to be merely covering an administrative cost, whereas charges for licences could be considered as payment for an offered service or product. The 1983 watering down of the charge level distinction might well attenuate the difference - in perception anyway.

 

Thank you, Alan de E (and, by association) Nigel Moore.  A very clear explanation for which I'm very grateful.  All is clearer now!

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2 hours ago, Iain_S said:

I'm not sure anyone could give an answer. It certainly seems the most expensive and least cost effective way of doing it!

 

I suspect it is a lot to do with identifying the culprit and actually dragging them into court. If you have a boat on your system that keeps moving about and the registrant lives on the boat, how do you go about prosecuting someone with no fixed address and you have no idea where they are at any given point in time? 

 

If you have a boat with no licence, you can just Section 8 it and lift it out. If you can find it....

 

 

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On 06/02/2020 at 18:36, NigelMoore said:

The only reason BW/CaRT have ever advanced for not prosecuting under the byelaws (or the 1971 Act in the case of river registrations) is that the penalties imposable are “derisory”. One of the County Court judges when handing down judgment in an early s.8 case was in complete agreement with that argument re: the proportionality of utilising boat seizure powers.

 

It was HH Judge Denyer QC in the judgment against George Ward of 20 December 2012 on the Bristol County Court :-

 

Other than the removal of the boat the only sanction provided for in the legislation in respect of a contravention of the Rules by a person such as the Claimant is that of a derisory fine.  I think it has now reached the sum of £50.  If they are not entitled to take these steps i.e. removal of the boat from the river they are in truth substantially powerless to enforce the obligations of those who use the waterways.  I do not regard the ability to take debt recovery proceedings as being a sufficient alternative remedy.  Aside from anything else they would face problems of enforcement.  No doubt if they did obtain a money judgment the judgment debtor would seek to or could seek to pay at some derisory sum per week or per month.”

 

He overlooked, of course, the fact that the same would apply to any County Court judgment as to costs etc, and also that the seizure of the boat even if leading to a sale could never be used to pay off the debt, because the relevant statute specifically bars that. They can only (legally) retain from the profits of a boat sale, the costs of seizing, storing and selling it. However it may be that this judge (and others) was misled into believing that BW could use possession of the seized boat as a lien on monies owed to them. This was pre-Ravenscroft after all.

 

He was mistaken as to the level of fine which is £100 (plus, of course, costs, and nowadays ‘victim surcharges’). He was also off the mark about “problems of enforcement”. Having obtained a court order for fines and costs and charges, the collection could be left to court bailiffs, or payment could be sought for from central funds as respects costs at least. The judge also seems to be confusing pursuit of money judgments with prosecutions (pursuit of merely a money claim being a third option NOT, as the 1983 Act provides, preclusive of parallel criminal action.

 

If the convicted boater proved evasive and in breach of a court order, then a warrant for their arrest could be issued, and once caught they could be sent to prison for contempt of court. There is nothing “derisory” about such implications as attached to the prosecution process. If this judge was correct, then the EA could be considered “powerless to enforce the obligations of those who use” - their – waterways” – and clearly, that is very far from the truth.

 

 

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I Imagine that the EA have been encouraged by the recent Appeal Court decision which confirmed their right to seek compensation for unpaid registration fees in addition to fines imposed by the courts for the offence of failure to register.  Compensation will go into the EA coffers whereas fines go into Central funds.  One more reason why CRT should be following the same route.

 Environment Agency v Sunman

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28 minutes ago, erivers said:

I Imagine that the EA have been encouraged by the recent Appeal Court decision which confirmed their right to seek compensation for unpaid registration fees in addition to fines imposed by the courts for the offence of failure to register.  Compensation will go into the EA coffers whereas fines go into Central funds.  One more reason why CRT should be following the same route.

 Environment Agency v Sunman

So he pleaded guilty to not registering his boat, but when told he must pay the registration fee, he said it was not a legal requirement, and, anyway, it was an 'excessive' amount.

 

Conclusion

i) It was open to Mr Sunman to argue that the EA did not have the power in law to impose the registration fee which they would have charged, but his challenge to the legality of the charge does not succeed.
ii) It was, in principle, open to Mr Sunman to argue that the registration fee was wholly excessive and, therefore, beyond the power of the EA, but there was not the evidence on which his challenge could succeed.
iii) Having pleaded guilty to the offence, it was not open to Mr Sunman to argue that his prosecution was unfair. In any event, it is not apparent that he would have had cause to argue that the prosecution was unfair.
iv) A criminal court faced with a prosecution for non-payment of a registration fee is entitled to impose a compensation order equivalent to that fee and, assuming that the offender had sufficient means, a financial penalty equivalent to the unpaid fee would be in accordance with the Guidance of the Sentencing Council.
v) The Crown Court was entitled to make the compensation order which it did. There was no legal barrier to it doing so.

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Thanks for the link to that case erivers. It raises some curiosity in me as to exactly what distinction the EA had historically made between registration charges only, and a 'separate' charge for 'use of the waterway'. Certainly on the Thames a boat wanting to 'use' the waterway was required to be registered, but need not if merely 'kept' on the river - is that the sort of distinction referred to I wonder, though if so there were not separate charges. The difference more modern legislation brought was in 2010 covering the registration requirement for all EA rivers whether a boat was used or merely kept; I do not recognise the separate charges element that was supposedly unified as a matter of policy. I can't really look into this at the moment, being involved in preparing my own prosecution case, but I will be interested to learn more.

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Nigel, I think the separate registration charge was applicable only to Anglian waterways subject to the AW Act 1977 and prior to the 2010 Order which ‘harmonised’ arrangements across all EA managed waterways. I remember the £2 reg charge being shown on the annual renewal notice up until a few years back. 

The principle will of course, thanks to your submissions, eventually apply to Middle Level waters where boats that do not cruise/do not leave marinas etc. will only be charged a registration administrative fee. 

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1 hour ago, erivers said:

Nigel, I think the separate registration charge was applicable only to Anglian waterways subject to the AW Act 1977 and prior to the 2010 Order which ‘harmonised’ arrangements across all EA managed waterways. I remember the £2 reg charge being shown on the annual renewal notice up until a few years back. 

The principle will of course, thanks to your submissions, eventually apply to Middle Level waters where boats that do not cruise/do not leave marinas etc. will only be charged a registration administrative fee. 

The bit that engaged my attention was this -  “The fee set by the EA was, of course, much larger than the £2 registration fee which had previously been levied. However, it was also plain that the EA had moved from a scheme of making two charges – for registration and for use of the waterway to a combined and single charge which covered both.” 

 

If a boat was already currently registered under the prior scheme, what was the separate charge called, for use of the waterway? It sounds too much like a “licence” for comfort. Or could one register a boat as a ‘go-nowhere’ stationary vessel OR as a navigating vessel, i.e. the difference lay in the category of registration? That is not how it reads, so what did they call the additional charge for use of the waterways by an already registered boat?

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On EA Anglian Waterways prior to the 2010 Order, the charges for "use of the waterways" was referred to as "Navigation Charges - payable in addition to a Registration Fee of £2 under Byelaw No. 5.

It was not possible to "register" a boat for £2 without also paying the relevant navigation charge!!

Attached schedule for 2006/7:

 

nav charges 2007.JPG

Edited by erivers

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Interesting. I had a quick look at the 1977 Act and I presume it is s.23 that is relied on. Unlike the similar clause relating to BW in the Transport Act 1962, there are no saving clauses whatsoever!

 

Charging

23.  Without prejudice to any other power available to it, the Agency may demand, take and recover or waive such charges for or in connection with the use of the waterways and for any services or facilities provided by it in connection with the waterways as it thinks fit.

 

I did note that one had to keep your use of the waterway in line with whatever category of navigation use you paid for. I find the application of the twin charging regime highly dubious - as well that the 2010 Order homogenised the legal basis for registration charges!

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