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21 minutes ago, Allan(nb Albert) said:

I would suggest that the (boaters) continuing right to navigate is reinforced in other acts. What Section 105 does is place a statutory duty on the navigation authority to maintain some (but not all) of its waterways suitable for navigation by craft of certain dimensions.

 

The following information request might be of interest -

 

Statutory duties under the Transport Act 1968
 

Hi Allan. I have just clicked on the signature at the bottom of your page says " The Floater " I have no idea what its supposed to be but its just a load of spam and advertisng rubbish???

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On the subject of Home moorers being forced to follow the same 'cruising rules' as CCers it is interesting to read thru the Judgement of a court case.

 

In short C&RT had removed a CC boaters licence  for insufficient movement, he was only moving a couple of miles backwards and forwards every 14 days - fair enough that is not sufficient to 'satisfy the board', but where it becomes interesting is when the Judge suggested that if he had a home-mooring (as C&RT were insisting he should have), he would be able to do exactly that,  C&RT conceded that that was correct.

 

It now appears that C&RT have fogotten that !

 

 

 

Screenshot (64)_LI.jpg

Edited by Alan de Enfield

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24 minutes ago, Alan de Enfield said:

On the subject of Home moorers being forced to follow the same 'cruising rules' as CCers it is interesting to read thru the Judgement of a court case.

 

In short C&RT had removed a CC boaters licence  for insufficient movement, he was only moving a couple of miles backwards and forwards every 14 days - fair enough that is not sufficient to 'satisfy the board', but where it becomes interesting is when the Judge suggested that if he had a home-mooring (as C&RT were insisting he should have), he would be able to do exactly that,  C&RT conceded that that was correct.

 

It now appears that C&RT have fogotten that !

 

 

 

Screenshot (64)_LI.jpg

Personally I think CRT are trying to stop exactly what is mentioned above but being unable to get a new act of Parliament are trying to manage through T & Cs.

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34 minutes ago, Jerra said:

Personally I think CRT are trying to stop exactly what is mentioned above but being unable to get a new act of Parliament are trying to manage through T & Cs.

Indeed they are.

I have all sympathies with them, the situation needs resolving, but it cannot be done by either ignoring the law of the land, or trying to re-write it and making agreement to it  (signature  on the T&Cs) a mandatory part of being granted a licence.

They can very easily, and legally, enforce the movement of CCers, but as the law is written (and both they, and a judge, have previously agreed) they do not have any power or authority to do so for HMers.

 

 

C&RT (BW) have previously accepted that they cannot make the issuing of a licence conditional on agreement to the T&Cs,

 

They appear to have forgotten that !

 

When I asked them what would happen if I refused to agree I was told that they would refuse to issue the licence.

 

Nigel Moore 20/7/17

The comments by the 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 their 2010-2011 Report]

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

 

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

 

This information is still in the C&RT Media library, and here is screen shot of the relevant section was taken today.

 

 

 

Screenshot (66).png

Edited by Alan de Enfield
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16 hours ago, wandering snail said:

Section 105, Maintenance of the Board's Waterways in that Act does rather say the opposite.

Section 105 (5) states that any previous public or private right of navigation on a BW waterway ceased. Thereafter BW is required to maintain commercial and cruiseway waterways to certain requirements, but there is no legal right to navigate.

 

"(5)Section 17 of the [1873 c. 48.] Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board ; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

(a)confers any public or private right of navigation over the waterway; or

(b)imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect."

 

For Remainder Waterways the Board is obliged to deal with then "in the most economical manner possible".

 

We are fortunate that 52 years later we still have most of them.

Edited by David Mack

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56 minutes ago, David Mack said:

Section 105 (5) states that any previous public or private right of navigation on a BW waterway ceased. Thereafter BW is required to maintain commercial and cruiseway waterways to certain requirements, but there is no legal right to navigate.

 

"(5)Section 17 of the [1873 c. 48.] Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board ; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

(a)confers any public or private right of navigation over the waterway; or

(b)imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect."

 

For Remainder Waterways the Board is obliged to deal with then "in the most economical manner possible".

 

We are fortunate that 52 years later we still have most of them.

I think it would be fairer to say that, where previous public or private right of navigation has been extinguished, the right to navigate still exists but is subject to relevant consent. This consent can only be refused in accordance with the BW 1995 Act.
 

Which is why I said -

 

Quote

I would suggest that the (boaters) continuing right to navigate is reinforced in other acts.

 

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3 hours ago, Alan de Enfield said:

On the subject of Home moorers being forced to follow the same 'cruising rules' as CCers it is interesting to read thru the Judgement of a court case.

 

In short C&RT had removed a CC boaters licence  for insufficient movement, he was only moving a couple of miles backwards and forwards every 14 days - fair enough that is not sufficient to 'satisfy the board', but where it becomes interesting is when the Judge suggested that if he had a home-mooring (as C&RT were insisting he should have), he would be able to do exactly that,  C&RT conceded that that was correct.

 

It now appears that C&RT have fogotten that !

 

 

 

Screenshot (64)_LI.jpg

Maybe that is exactly why they want to change it.

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Just now, ditchcrawler said:

Maybe that is exactly why they want to change it.

It is, and I agree with them.

 

BUT I SAY AGAIN

They cannot do it by breaking the law. Despite what they claimed in a court case (that a BW Internal memo supercedes the 1995 Act by virue of its later date) they are neither above the law, able to amend the law, or capable of making new laws.

 

I believe they do have the ability to make new by-laws if they so wish - but that would just mean they have to enforce them, which they have, over the last 55 years, shown a great reluctance to do.

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18 hours ago, Mad Harold said:

I have had a look at the licence T's and C's and I fear you are probably right.

They do say however,that CRT will do their best to keep the navigation open except for repair/stoppages.That is far from saying a licence holder has the "right"to navigate,but the spirit seems to be that CRT won't prevent navigation if the canal is open and your paperwork and boat are in order.

I don't think there ever was a right to navigate in the same sense that was always championed by Nigel Moore - the Public Right to navigate that applied on navigable rivers, ambiguities in which underlay the dispute with Tony Dunkley. The only statutory right was to be granted a licence under certain conditions. The debate here is about those conditions.

 

The statutory duty to maintain certain waterways as navigable does not in itself confer any right to navigate them on any individual.

Edited by Mike Todd

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48 minutes ago, Mike Todd said:

I don't think there ever was a right to navigate in the same sense that was always championed by Nigel Moore - the Public Right to navigate that applied on navigable rivers, ambiguities in which underlay the dispute with Tony Dunkley. The only statutory right was to be granted a licence under certain conditions. The debate here is about those conditions.

 

The statutory duty to maintain certain waterways as navigable does not in itself confer any right to navigate them on any individual.

A public right of navigation is simply a right of way.

 

The public right of navigation on non-tidal rivers is acquired by immemorial usage (i.e use before 1189 AD), dedication of a private riparian owner or under statute.

On canals the public right of navigation is acquired by statute (i.e. often forced on the promoter by parliament in the enabling acts) but canals were invariably subject to tolls.

With the railways taking over the waterways, Parliament insisted that they “be at all times kept open and navigable for the use of all persons desirous to use and navigate the same and that without any unnecessary hindrance of interruption or delay” in the Railways Act 1873.

 

The Transport Act 1968 Section 105 removed the statutory right of navigation in respect of the canals controlled replacing it with an implied right. Perhaps this was done to make it easier to deal with abandonment.


 

 

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2 hours ago, Allan(nb Albert) said:

A public right of navigation is simply a right of way.

 

The public right of navigation on non-tidal rivers is acquired by immemorial usage (i.e use before 1189 AD), dedication of a private riparian owner or under statute.

On canals the public right of navigation is acquired by statute (i.e. often forced on the promoter by parliament in the enabling acts) but canals were invariably subject to tolls.

With the railways taking over the waterways, Parliament insisted that they “be at all times kept open and navigable for the use of all persons desirous to use and navigate the same and that without any unnecessary hindrance of interruption or delay” in the Railways Act 1873.

 

The Transport Act 1968 Section 105 removed the statutory right of navigation in respect of the canals controlled replacing it with an implied right. Perhaps this was done to make it easier to deal with abandonment.


 

 

As far as I can see, taking a realistic/pragmatic view, that is not substantially different from what I said as far as canals are concerned. Whatever duty may be laid on the navigation authority it has always been subject to some individual contractual consent. That is, unless you paid the tolls you could not navigate in the same way as a right of way would indicate. A licence now replaces the tolls.

 

As far as the railway owners, they had a pretty good try at closing canals by not doing maintenance. I always understood that there was at least one case where they obtained closure on the grounds on non-use over a period when the canal was closed by a breach or something similar!

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Rather than an article quoting what someone thinks the IWA is for, this is from their articles of assoication https://www.waterways.org.uk/wp-content/uploads/2020/09/articles_of_association_16_07.pdf

4 The objects for which the Association is established are:
(1) To take over the whole assets of and liabilities of The Inland Waterways Association and to enter into such
agreements and to take all such steps as may be necessary for that purpose.
(2) For the public benefit to advocate the conservation use maintenance and development of the inland
waterways of the British Isles the works relating thereto and any craft or buildings or structures now or
previously associated therewith, to advocate and promote the restoration and the maintenance in good
condition of such waterways and associated craft and buildings and structures and advocate and promote
their fullest use for appropriate commercial and recreational purposes.
(3) To educate the public and other bodies about the use and benefits of such waterways whether by the
production of leaflets, magazines, the conduct of seminars or workshops or such other means as the
Association may from time to time determine.
(4) To promote and commission research into inland waterways and publication of the results of such
research.

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3 minutes ago, Scholar Gypsy said:

Rather than an article quoting what someone thinks the IWA is for, this is from their articles of assoication https://www.waterways.org.uk/wp-content/uploads/2020/09/articles_of_association_16_07.pdf
 

Then who is the author, Claudia Trenhall and why does she think she speaks for the IWA if she is just a 'someone thinks'

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6 minutes ago, Scholar Gypsy said:

Rather than an article quoting what someone thinks the IWA is for, this is from their articles of assoication https://www.waterways.org.uk/wp-content/uploads/2020/09/articles_of_association_16_07.pdf

4 The objects for which the Association is established are:
(1) To take over the whole assets of and liabilities of The Inland Waterways Association and to enter into such
agreements and to take all such steps as may be necessary for that purpose.
(2) For the public benefit to advocate the conservation use maintenance and development of the inland
waterways of the British Isles the works relating thereto and any craft or buildings or structures now or
previously associated therewith, to advocate and promote the restoration and the maintenance in good
condition of such waterways and associated craft and buildings and structures and advocate and promote
their fullest use for appropriate commercial and recreational purposes.
(3) To educate the public and other bodies about the use and benefits of such waterways whether by the
production of leaflets, magazines, the conduct of seminars or workshops or such other means as the
Association may from time to time determine.
(4) To promote and commission research into inland waterways and publication of the results of such
research.

C&RTs Articles of Association state that their 1st priority is to manitain the waterways for "Navigation"

 

As with all 'aspirations'; it is easy to ignore them (or re-order them) once 'in power'.

 

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;

 

2.2 to protect and conserve for public benefit sites, objects and buildings of archaeological, architectural, engineering or historic interest on, in the vicinity of, or otherwise associated with Inland Waterways;

 

2.3 to further for the public benefit the conservation protection and improvement of the natural environment and landscape of Inland Waterways;

 

2.4 to promote, facilitate, undertake and assist in, for public benefit, the restoration and improvement of Inland Waterways;

 

2.5 to promote and facilitate for public benefit awareness, learning and education about Inland Waterways, their history, development, use, operation and cultural heritage by all appropriate means including the provision of museums;

 

2.6 to 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; and 

     2.6.2 the promotion of sustainable means of achieving economic growth and regeneration and the prudent use of natural resources; and

Edited by Alan de Enfield
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5 minutes ago, Alan de Enfield said:

 

 

As with all 'aspirations'; it is easy to ignore them onece 'in power'.

 

 

This really depends on the quality of the Trustees,  I've spent some time this morning at a webinar on charity governance, and the importance of paying attention to the Articles of Association, and the delivery of public benefit, was stressed several times. 

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Just now, Scholar Gypsy said:

This really depends on the quality of the Trustees, 

That says a lot for C&RT and its Trustees then.

 

They are focussed on any area which achieves the KPI's in order to retain the DEFRA grant, if it is at the expense of boaters, so be it.

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19 minutes ago, Alan de Enfield said:

That says a lot for C&RT and its Trustees then.

 

They are focussed on any area which achieves the KPI's in order to retain the DEFRA grant, if it is at the expense of boaters, so be it.

bit chicken and egg, without the KPI's and grants they cant do anything. Please don't think by that I support what they do and dont do.

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1 hour ago, Alan de Enfield said:

That says a lot for C&RT and its Trustees then.

 

They are focussed on any area which achieves the KPI's in order to retain the DEFRA grant, if it is at the expense of boaters, so be it.

I think it says much that despite the grant agreement requirement, the chair has never attended a grant review meeting and never sent a trustee to deputise,
 

Quote

 

9.2 The Review Meetings shall be attended by:


9.2.1 for CRT: at least the Chair of Trustees, the Chief Executive and the
Finance Director (or a suitable alternative Trustee or member of CRT’s
senior management team approved by the Trustees for this purpose, if the
Chief Executive or Chair are unavailable) and such other representatives of
CRT as CRT in its discretion decides; 


 

 

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3 minutes ago, Allan(nb Albert) said:

I think it says much that despite the grant agreement requirement, the chair has never attended a grant review meeting and never sent a trustee to deputise,
 

 

Why am I not surprised in the slightest ?

 

You don't follow rules if you can get away with them, it is only the hoi polloi that should stick to the rules.

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On 24/11/2020 at 14:11, Mike Todd said:

he statutory duty to maintain certain waterways as navigable does not in itself confer any right to navigate them on any individual.

But, what section 105 of the Act does say is that there must be  a 'general availability for public use'

Would that not suggest that (subject to meeting licenec etc conditions) there is a 'right' to expect the waterways to be available for navigation ?

Maintenance of F1... waterways.

(1)With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways Board [F2and of Canal & River Trust, in relation to the waterways comprised in their respective undertakings], subject to the provisions of this section—

(a)to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and

(b)to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

(2)Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board [F3or Canal & River Trust] any duty to maintain a waterway, or any part of a waterway, in a suitable condition for use by any vessel of the kind mentioned in that paragraph unless the dimensions of the vessel (that it to say, its length, width, height of superstructure and draught)—

(a)correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months ending with 8th December 1967; or

(b)if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part;

but, save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied.

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53 minutes ago, Alan de Enfield said:

But, what section 105 of the Act does say is that there must be  a 'general availability for public use'

Would that not suggest that (subject to meeting licenec etc conditions) there is a 'right' to expect the waterways to be available for navigation ?

Maintenance of F1... waterways.

(1)With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways Board [F2and of Canal & River Trust, in relation to the waterways comprised in their respective undertakings], subject to the provisions of this section—

(a)to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and

(b)to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

(2)Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board [F3or Canal & River Trust] any duty to maintain a waterway, or any part of a waterway, in a suitable condition for use by any vessel of the kind mentioned in that paragraph unless the dimensions of the vessel (that it to say, its length, width, height of superstructure and draught)—

(a)correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months ending with 8th December 1967; or

(b)if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part;

but, save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied.

In effect, the Act removed existing public and private rights of navigation granted in the enabling acts but replaced them with a public right of navigation for waterways defined within the Act as 'cruising' or 'leisure' (see Schedule 12).

It also placed a duty on the navigation authority to make those two classes of waterway available for navigation by craft of certain maximum dimensions (aka 'statutory dimensions').

What has been lost, of course, is any right of navigation on 'remainder waterways'. 

Edited by Allan(nb Albert)
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