Canal & River Trust seeks boaters' views on licence T&Cs

[IanD]

1 minute ago, Alan de Enfield said:

 

In theory - YES !

If they can evidence that the width and depth and not in accordance with the stautory dimensions.

 

Another example (of my own) is that the statutory dredging depth for the River Trent is 1.83 metres (6 feet)

My draft is 4' 6" - 5' (depending on fuel load) and I regularly grounded in the centre of the 'MNC' (main navigable Channel) between Newark & Cromwell.

You would presumably have a similarly strong case, but it would be difficult for you to show any loss suffered as a consequence so CaRT would probably escape with a notional fine, so they have little incentive to do anything about it.

 

If the gravel barge owners could show that as a direct consequence of inadequate dredging they are losing (say) £1000 per trip because of part-loading, any finding against CaRT would undoubtedly include that they pay compensation for this. I imagine that faced with the choice of continuing to cough up a significant sum every week or dredging the channel, the channel would miraculously become cleared because it's cheaper to do the dredging than carry on paying...

1 minute ago, Alan de Enfield said:

 

We know that, but try telling C&RT.

 

What chance have we when a C&RT employee stands up in court and tells the Judge that "an internal Memo supercedes the 1995 Act due to its later date" - The response was "So C&RT have declared UDI have they"

So the judge pointed out to CaRT what the law actually was, rather than what they wanted it to be? Surely this is in favour of the argument that T&Cs can't change the law?

[TheBiscuits]

14 minutes ago, IanD said:

You would presumably have a similarly strong case, but it would be difficult for you to show any loss suffered as a consequence so CaRT would probably escape with a notional fine, so they have little incentive to do anything about it.

 

If the gravel barge owners could show that as a direct consequence of inadequate dredging they are losing (say) £1000 per trip because of part-loading, any finding against CaRT would undoubtedly include that they pay compensation for this. I imagine that faced with the choice of continuing to cough up a significant sum every week or dredging the channel, the channel would miraculously become cleared because it's cheaper to do the dredging than carry on paying...

 

The stated remedy is a reduction in the DEFRA grant that currently provides about a quarter of CRT's income, iirc.

[IanD]

2 minutes ago, TheBiscuits said:

 

The stated remedy is a reduction in the DEFRA grant that currently provides about a quarter of CRT's income, iirc.

What do you mean by "the stated remedy is..."?

 

Stated where, by who, and for what?

 

Again not challenging what you wrote, just looking for more details ?

[TheBiscuits]

7 minutes ago, IanD said:

What do you mean by "the stated remedy is..."?

 

Stated where, by who, and for what?

 

Again not challenging what you wrote, just looking for more details ?

 

I'll try and dig it out when back on a computer not my phone.

 

The requirements to maintain dimensions to Frankel standards is written in the conditions of the DEFRA grant in the CRT transfer order I think.

 

Unless @Alan de Enfield has it to hand ... he might!

Edited December 24, 2020 by TheBiscuits
Stupid mobile phone

[Alan de Enfield]

43 minutes ago, TheBiscuits said:

 

I'll try and dig it out when back on a computer not my phone.

 

The requirements to maintain dimensions to Frankel standards is written in the conditions of the DEFRA grant in the CRT transfer order I think.

 

Unless @Alan de Enfield has it to hand ... he might!

 

There are pages and pages, but in principle, if C&RT don't do what they are supposed to do, DEFRA can reduce, or cancel completely, the grant.

 

11.2 Without prejudice to Defra’s other rights and remedies, but subject to the provisions of Clause 11.5, Defra may:

11.2.1 delay, reduce, withhold or suspend payment of the Grant (or such part of it as shall not have been paid) in whole or in part and/or require repayment forthwith in whole or in part of the Grant (or such part of it as shall have been paid); and/or

11.2.2 terminate the Grant Agreement with immediate effect, if Defra determines that one or more Events of Default have occurred. In the event that Defra requires repayment in whole or in part of the Grant pursuant to Clause 11.2.1, CRT shall repay such sum immediately.

 

Actually, I'm not sure that Biscuits is correct - there are specific list of KPI's (eg, the number of people using the towpath, the number of days the towpath is closed etc etc) but I don't think the 1968 specified canal  dimensions is actually covered.

 

These are the criteria on which the DEFRA grant is paid :

 

Schedule 5: Publication Data

1. The NSS.

 

2. Data relating to safety:

2.1 the number of reported incidents involving customers relating to infrastructure failure;

2.2 the number of reported incidents involving employees ; and

2.3 the actual outcome (expressed as a headline percentage figure) of the applicable measurement for the Safe Waterways Relevant Standard.

 

3. Data relating to towpaths:

3.1 the number of towpath visitors (based on annual survey data);

3.2 the number and duration of unplanned closures; and

3.3 the actual outcome (expressed as a headline percentage figure) of the applicable measurement for the Towpath Condition Relevant Standard.

 

4. Data relating to flood management:

4.1 the actual outcome (expressed as a headline percentage figure) of the applicable measurement for the Flood Management Relevant Standard.

 

5. Data on Sites of Special Scientific Interest (“SSSIs”):

5.1 based on published data, the percentage area of SSSIs under CRT management in good or recovering condition.

 

6. Data on heritage:

6.1 a percentage of heritage assets assessed on completion of work as good or adequate, with double weighting given to good assessments.

 

7. Data on volunteer participation:

7.1 the number of volunteer days contributed to CRT. 8. Data on housing forecast figures. 

 

It is interesting to note that there are NO requirements to report on, or KPI's involving, boating or navigation

Edited December 24, 2020 by Alan de Enfield

[IanD]

39 minutes ago, TheBiscuits said:

 

I'll try and dig it out when back on a computer not my phone.

 

The requirements to maintain dimensions to Frankel standards is written in the conditions of the DEFRA grant in the CRT transfer order I think.

 

Unless @Alan de Enfield has it to hand ... he might!

But on the general premise that punishment or financial penalties for breaking the law -- unless specifically enshrined in law -- must be proportional and reasonable, DEFRA are not going to withhold tens of millions of pounds of grant to CaRT because two gravel barges can't travel fully loaded -- and certainly not because Alan can't get his pleasure boat up the Trent. If they did CaRT would appeal against the penalty and win.

 

Businesses being businesses (and treating CaRT as one since it has to balance income against expenditure) the best -- often only -- way to get them to fix a problem is not to appeal to their better nature, but to hit them where it hurts in the wallet. If it will cost them a lot more money (e.g. gravel barges) to carry on ignoring the problem than fix it, they'll fix it. If the reverse is true (e.g. Alan on the Trent) they won't.

 

The only exception to this is if you can stir up a big enough public sh*tstorm that they get worried about the impact on their reputation (which could impact income from donations), this might work for Marcus Rashford but seems unlikely here...

Edited December 24, 2020 by IanD

[IanD]

13 minutes ago, Alan de Enfield said:

 

There are pages and pages, but in principle, if C&RT don't do what thet are supposed to do, DEFRA can reduce, or cancel completely, the grant.

 

11.2 Without prejudice to Defra’s other rights and remedies, but subject to the provisions of Clause 11.5, Defra may: 11.2.1 delay, reduce, withhold or suspend payment of the Grant (or such part of it as shall not have been paid) in whole or in part and/or require repayment forthwith in whole or in part of the Grant (or such part of it as shall have been paid); and/or 11.2.2 terminate the Grant Agreement with immediate effect, if Defra determines that one or more Events of Default have occurred. In the event that Defra requires repayment in whole or in part of the Grant pursuant to Clause 11.2.1, CRT shall repay such sum immediately.

 

Actually, I'm not sure that Biscuits is correct - there are specific list of KPI's (eg, the number of people using the towpath, the number of days the towpath is closed etc etc) but I don't think the 1968 specified canal  dimensions is actually covered.

If the requirements are in statute law -- which it seems that these are -- then it doesn't matter whther they're in CaRTs KPIs or not, a KPI is just a business target which may or may not have financial consequences if it isn't met, depending how it was set up. Not achieving a KPI isn't illegal and doesn't result in legally enforceable penalties (though penalties may result from the KPI setup); breaking statute law is and does.

 

This isn't just dancing on the head of a legal pin, it's down to the basis of what is and isn't the law (which has to be made -- and unmade -- by the courts and government) as opposed to business agreements and contract law, which can be made and unmade by companies and their lawyers.

 

I've no doubt that CaRT wishes that some of the legal requirements placed on them -- including, it seems, the statutory dimensions -- were merely contract law which they could repeal or wish away. But if they're statute law they can only be changed by an Act of Parliament.

 

It's like what happens when Railtrack or TOPs want to close a line or remove a service from it; since most of the rail network was authorised by Acts of Parliament this is the only way they can be closed down. They can try and avoid this by running "ghost services" (e.g. one train a week, there's one through my local station) but legally they can't shut down the service or close the line.

Edited December 24, 2020 by IanD

[Alan de Enfield]

Just now, IanD said:

If the requirements are in statute law -- which it seems that these are -- then it doesn't matter whther they're in CaRTs KPIs or not. Not achieving a KPI isn't illegal and doesn't result in legally enforceable penalties (thought penalties may result from the KPI setup); breaking statute law is and does.

Indeed, but DEFRAs grant is payable against a specific list of KPI's, in the :

 

GRANT AGREEMENT BETWEEN THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND CANAL & RIVER TRUST

 

Failure to comply with statute law would appear to be a totally different issue and subject to other penalties.

[IanD]

Just now, Alan de Enfield said:

Indeed, but DEFRAs grant is payable against a specific list of KPI's, in the :

 

GRANT AGREEMENT BETWEEN THE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS AND CANAL & RIVER TRUST

 

Failure to comply with statute law would appear to be a totally different issue and subject to other penalties.

Yes, but as I said DEFRA would very likely be in deep legal doo-doo if they tried to withhold ten million pounds because you can't get your boat up the Trent, in this case CARTs punishment would probably be a relatively painless legal slap on the wrist (a small fine) which they'd ignore like swatting a fly.

 

If the gravel barges presented CaRT with a claim for loss of earnings of (say) £100k per year the situation would be very different, it's likely that a court would not only fine CaRT this amount but add a similar or bigger sum on top for wilful infringement of the law if they continued to take no action.

[Alan de Enfield]

4 minutes ago, IanD said:

Yes, but as I said DEFRA would very likely be in deep legal doo-doo if they tried to withhold ten million pounds because you can't get your boat up the Trent, in this case CARTs punishment would probably be a relatively painless legal slap on the wrist (a small fine) which they'd ignore like swatting a fly.

 

If the gravel barges presented CaRT with a claim for loss of earnings of (say) £100k per year the situation would be very different, it's likely that a court would not only fine CaRT this amount but add a similar or bigger sum on top for wilful infringement of the law if they continued to take no action.

 

Please read again.

 

The DEFRA grant is nothing to do with dredging, widths, or navigation of the canals and rivers.

DEFRA cannot withold their grant because my boat hits the bottom.

They can only withold the grant if 'not enough' people walk on the towpath etc etc (in accordance with the list above)

 

Failing to meet the 1968 statutory dimensional requirements is a totally separate issue and action would need to be taken based on the 1968 Act, and not the 2012 Agreement.

 

 

Edited December 24, 2020 by Alan de Enfield

[IanD]

13 minutes ago, Alan de Enfield said:

 

Please read again.

 

The DEFRA grant is nothing to do with dredging, widths, or navigation of the canals and rivers.

DEFRA cannot withold their grant because my boat hits the bottom.

They can only withold the grant if 'not enough' people walk on the towpath etc etc (in accordance with the list above)

 

Failing to meet the 1968 dimensional requirements is a totally separate issue and action would need to be taken n=based on the 1968 Act, and not the 2012 Agreement.

 

 

I'm not the one who brought up the subject of DEFRA grants being withheld and KPIs and that fact that the dimensions aren't a KPI, so don't shoot the messenger ?

 

I keep trying to point out that CaRT are legally required by the 1968 act to keep the canals navigable by boats of the statutory dimensions, and that no amount of them (or anybody else) saying that something more recent overrides this (including the subject of this thread) will legally make it so -- nothing to do with DEFRA or KPIs or T&Cs, this is a legal duty placed on CaRT in 1968 which can only be undone by an Act of Parliament.

 

But in the real world laws like this generally don't get enforced and the body responsible punished or fined unless somebody kicks up a stink, and the most effective stink (unless you're Marcus Rashford) is if they can show that such a failure to obey the law is the direct cause of them losing money, preferably a lot of it.

 

So no amount of whinging by NBTA (or anyone else) is likely to change this, but CaRT being sued by the gravel barge owners could well do.

Edited December 24, 2020 by IanD

[IanD]

We should also be careful not to confuse the "statutory dimensions" (how deep and wide the canals have to be maintained by CaRT) from the sizes of boats which are permitted to float on those canals and be granted a license.

 

If the problem CaRT are trying to fix is (for example) widebeams on the Northern Oxford then there's no issue with the statutory dimensions, these say 7' wide which is all CaRT have to allow for with dredging etc. But this doesn't stop somebody plonking a 14' widebeam onto the canal so long as it has a home mooring -- it probably can't move far enough to be a CC, but the owners of such a boat are unlikely to want to do that anyway (or be able to get through bridge holes).

 

So the question is, on what grounds can CaRT refuse to grant a license -- is "too wide" one of them? AFAIK it isn't today, hence the problem.

 

Now the issue becomes what CaRT can do about this. Can they add "acceptable dimensions" into the terms for denying a license fee, which seems to be what they're trying to do?

 

Maybe they can if the legal position allows them to change the terms on which licenses are allowed or denied, I'm sure somebody can comment on this. And if this happens then there could in theory be a long slippery slope where they try and squeeze the "acceptable dimensions" down, for example by reducing draft to make dredging easier or width to avoid fixing narrowing locks.

 

But even if they do this, the "statutory dimensions" won't have changed, so in theory they can be compelled to dredge and maintain locks to meet these. However if they've managed to shrink the boats using the "acceptable dimensions" they're likely to claim that failing to meet the legal requirements isn't to anyone's detriment because all the boats are now smaller anyway and the law is therefore out of date, so they'll get a token slap on the wrist but will carry on ignoring the law by claiming that in practice it doesn't hurt anybody who already meets their T&Cs.

 

All of which means -- be careful what you wish for...

 

Because allowing CaRT to impose "acceptable dimensions" in their license T&Cs to fix a small problem like wideboats on the Northern Oxford could indeed result in a slow shrinkage in these "acceptable dimensions" to save them money on dredging and lock maintenance, meaning that many boats (including trad ones) find they're banned from large parts of the canal system.

 

Even if CaRT don't have any evil underhand intentions to do this today, in an underfunded canal system it would certainly save them money in the future to spend on more essential things (like new signs...), and the siren call to do this will be difficult to resist...

Edited December 24, 2020 by IanD

[Alan de Enfield]

24 minutes ago, IanD said:

We should also be careful not to confuse the "statutory dimensions" (how deep and wide the canals have to be maintained by CaRT) from the sizes of boats which are permitted to float on those canals and be granted a license.

The legislation actually specifies the dimension of boats that must be able to use the canal., it will specify the (say) width of the canal as being (say) 2.5 times the width of the maximum sized boat,

 

24 minutes ago, IanD said:

Maybe they can if the legal position allows them to change the terms on which licenses are allowed or denied, I'm sure somebody can comment on this.

No, they cannot add to or remove condition of the issue of a licence - C&RT themselves had acknowledged their are only 3 conditions that need to be met 9and that doesn't include accepting their (T&Cs)

 

20/7/17 Nigel Moore :

 

 

CaRT’s submissions to the Mayor of London’s Report on mooring problems in London contains the accurate admission: “People enjoy the right to put a boat on our waterways, providing that they pay the necessary fee, that the boat meets safety standards and has insurance cover for third party liabilities – and that, unless it is used ‘bona fide’ for navigation throughout the period of consent, it must have a home mooring (somewhere where the boat ‘can lawfully be kept when not being used for navigation’2 ).”

https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/Combined responses_Part1_0.pdf  [see page 10]

 

**** This was more explicitly enunciated in  CaRT’s “Overview of statutory framework”, page 6, which acknowledges clearly enough:  –

“The British Waterways Act 1995 limits to three specific criteria our ability to refuse to licence a boat.”   [my emphasis]

https://canalrivertrust.org.uk/media/library/1127.pdf

 

 

They go on, however, in their submission to the GLA, to inaccurately claim [in effective contradiction of the above quoted public statement] that revocation of the licence with subsequent s.8 removal “is the only sanction available to us in respect of a breach in licence terms.” [page 12 of the GLA Report pack on Responses in the link above] Insofar as any breach of non-statutory terms can naturally have no sanction applicable, this would explain the s.8 process chosen - albeit with no legal justification whatsoever - while any breach of approved byelaws etc contains within the legislation the accompanying legislated sanction – which does NOT include revocation of a licence. If a sanction is not legislated for, then the claimed legal outrage does not exist and such T&C’s are – as acknowledged to Parliament by BW in the debates over the 1990 Bill – mere guidance without the force of law.

 

 

Read the part that talks about "no statutory provision for the refusal of a licence etc etc etc"...............................

 

 

Edited December 24, 2020 by Alan de Enfield

[IanD]

1 minute ago, Alan de Enfield said:

The legislation actually specifies the dimension of boats that must be able to use the canal., it will specify the (say) width of the canal as being (say) 2.5 times the width of the maximum sized boat,

 

No, they cannot add to or remove condition of the issue of a licence - C&RT themselves had acknowledged their are only 3 conditions that need to be met 9and that doesn't include accepting their (T&Cs)

 

20/7/17 Nigel Moore :

 

 

CaRT’s submissions to the Mayor of London’s Report on mooring problems in London contains the accurate admission: “People enjoy the right to put a boat on our waterways, providing that they pay the necessary fee, that the boat meets safety standards and has insurance cover for third party liabilities – and that, unless it is used ‘bona fide’ for navigation throughout the period of consent, it must have a home mooring (somewhere where the boat ‘can lawfully be kept when not being used for navigation’2 ).”

https://www.london.gov.uk/sites/default/files/gla_migrate_files_destination/Combined responses_Part1_0.pdf  [see page 10]

 

This was more explicitly enunciated in  CaRT’s “Overview of statutory framework”, page 6, which acknowledges clearly enough:  –

“The British Waterways Act 1995 limits to three specific criteria our ability to refuse to licence a boat.”   [my emphasis]

https://canalrivertrust.org.uk/media/library/1127.pdf

 

 

They go on, however, in their submission to the GLA, to inaccurately claim [in effective contradiction of the above quoted public statement] that revocation of the licence with subsequent s.8 removal “is the only sanction available to us in respect of a breach in licence terms.” [page 12 of the GLA Report pack on Responses in the link above] Insofar as any breach of non-statutory terms can naturally have no sanction applicable, this would explain the s.8 process chosen - albeit with no legal justification whatsoever - while any breach of approved byelaws etc contains within the legislation the accompanying legislated sanction – which does NOT include revocation of a licence. If a sanction is not legislated for, then the claimed legal outrage does not exist and such T&C’s are – as acknowledged to Parliament by BW in the debates over the 1990 Bill – mere guidance without the force of law.

So CaRT can't add new reasons to refuse a license (e.g. "this boat is too fat for this canal") to the existing three without an Act of Parliament, and neither can they change the statutory dimensions.

 

I don't understand what you're saying in the last paragraph; if statute (the 1995 act) says there are three reasons (plus either having a home mooring or CC) they can refuse a license, then statute says they can refuse/revoke a license unless a boat meets all these conditions, because it's in breach of statutory law. I don't see where byelaws come into this, can you explain?

 

The question is, what happens then -- what can they do about it, what sanctions (including s.8) are available to them, and where is this stated?

 

If s.8 is their only option (and this is legally authorised), then their statement is correct if the boat is in breach of statutory law.

[Alan de Enfield]

 

 

 

31 minutes ago, IanD said:

All of which means -- be careful what you wish for...

Indeed comments by a previous waterways ombudsman are very much to the point in this respect – “British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case”. [page 16 of her 2010-2011 Report]

 

http://www.waterways-ombudsman.org/media/1016/annualreports201to11final.pdf

 

What a certian statement is intended to mean today, can have a very different meeting in the future.

[IanD]

11 minutes ago, Alan de Enfield said:

 

 

 

Indeed comments by a previous waterways ombudsman are very much to the point in this respect – “British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case”. [page 16 of her 2010-2011 Report]

 

http://www.waterways-ombudsman.org/media/1016/annualreports201to11final.pdf

 

What a certian statement is intended to mean today, can have a very different meeting in the future.

BW or CaRT can interpret legislation how they like, but when it comes to the crunch if challenged in a court of law it's not their interpretation that matters, it's the judge's. If they disagree they can appeal, then it's the decision of the appeal court judge. If they still disagree it falls to the supreme court. In all cases the law is not what CaRT interpret it as, it's what the judge says it is.

 

It's perfectly correct to say that how a law is interpreted in the future may be different to today, but that's down to what the law says it is, not what companies or people think/hope it should be. Anyone betting otherwise is risking unpleasant consequences for themselves and their business.

 

CaRT can believe until the cows come home that they can refuse a license for a new reason that suits them (like a boat being too fat), but this isn't legal until the law agrees with them -- and it hasn't so far, and there's no reason to think it will in the future without a new Act of Parliament.

 

But in the end it'll take somebody with sufficiently deep pockets to take them to court to enforce this, which is the reality of how the legal system works ?

Edited December 24, 2020 by IanD

[TheBiscuits]

1 hour ago, IanD said:

But in the end it'll take somebody with sufficiently deep pockets to take them to court to enforce this, which is the reality of how the legal system works ?

 

The English legal system - the best justice money can buy ...

 

It appears my "elephant-like memory" is grey and wrinkly - both you and @Alan de Enfield are correct and my earlier comment about the grant being tied to maintaining the dimensions was mistaken. 

 

There is a bit of the DEFRA grant agreement that says if CRT break the law they can lose some of the grant, but it's not directly tied to the 1968 act.  That's how the lawyers get rich ...