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Running engines when moored "out of hours" #2 - The CRT view.


Neil2

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3 hours ago, Alan de Enfield said:

 

Well - everyday is a school day.

I thought I was fairly Au-Fait with the 1995 Act and do not recall ever having seen such a requirement re running engines between 8pm and 8 am.

 

Would you be kind enough to post details of which Part, Section and Subsection this requirement is stated.

 

Thank you in anticipation.

 

If it helps - here is the Act in full :

 

British Waterways Act 1995 (legislation.gov.uk)

I meant the licence conditions are statutory and the advice on running engines is not. 

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3 hours ago, waterworks said:

Running engines has nothing to do with licence conditions, they are statutory and all contained in the 1995 BW act .

 

1 hour ago, Neil2 said:

 

Alan - unless I have read it wrong I think that is his argument -  ie that the licence condition is unenforceable because it isn't covered by the Act.

 

I may be wrong, perhaps @waterworks could clarify

 

Maybe it is I reading it incorrectly.

 

"Running engines is nothing to do with licence conditions, they are statutory ......."

 

Maybe he is suggesting that licence T&Cs can only contain staututory requirements.

 

As you say, maybe he will come back and clarify.

 

From the late great Nigel Moore (RIP) 2/3/19

 

Legality OF C&RT’s T&C’s

 

It should be clarified that much of the T&C's are a repeat of, or reference to, byelaw provisions, and enforceable in law by the method prescribed (not by unlawfully making them a contractual condition for issue of the licence). Those cannot be said to be foisted upon us via the T&C's, justly or unjustly.

 

Others are sensible guidelines without the force of law, which boaters would do well to adhere to. But yes, certain other morally and legally objectionable ones do purport to dispense with statutory protections – and consent to share one's personal information where that would conflict with the current law would be amongst them, as would the grant of permission to board boats regardless of the statutory constraints of the 1983 Act, as would also be the case with agreeing to pay the costs of CaRT moving your boat off from where it was obstructing (BW fought and lost at least one case in which they alleged such a right to charge for doing so).

 

The T&Cs already claim that they can ride roughshod over several laws, as Nigel suggested above.

 

At the Select Committee BW's QC correctly informed the Committee that his advice was that the Licence T&C’s “is not a legally enforceable document. It is merely advice which we give to our boaters.”

 

Asked: “what is the remedy for a breach of condition”?  he replied: “Ultimately we could do one of two things or possibly both things. One would be to revoke the licence as it would be, as the owner or the holder of the licence would be in breach of the pleasure boat conditions. The alternative would be to revert again to the section 8 powers, which we talked about earlier. In both those cases, the Board believes that this action would be inappropriate. We have no remedy for breach of the code conditions at all . . .” – hence, he explained, the perceived need for the mooring restriction powers they sought in the Bill – which did not pass scrutiny and which were consequently omitted from the 1995 Act.

 

https://www.scribd.com/doc/142106359/Dodd-on-Status-of-Licence-Conditions

 

Such of the T&C's as repeat statute and byelaws, are of course enforceable - but only as per the legislated routes, not via revocation of licence and/or s.8.

Edited by Alan de Enfield
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2 hours ago, Neil2 said:

 

 

Part II of schedule 2 of the Act (paras 1&5) does give CRT a fair amount of leeway when it comes to imposing licence conditions.

 

The issue is then whether CRT imposing an 8pm curfew on engine running is a reasonable "standard" within the Act. 

 

I see the point you are making, it's a little like property landlords imposing unreasonable  tenancy conditions - even if the tenant signs an agreement - eg not to keep a pet -  it doesn't make the conditions enforceable.  

 

But it's not an argument for saying there should not be any measurable standards in the licence conditions.  The law says it's ok for CRT to set standards for the operation of boat equipment and engines, so you have to start somewhere.  You might argue about whether 8pm to 8am is reasonable, but I doubt you could argue about the principle of having stated restricted hours.

 

 

 

 

 

 

 

 

Schedule II Part 2 refers to the boat safety scheme not licence conditions as far as I can see.

Edited by waterworks
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On 17/09/2021 at 08:50, Bee said:

There are also a lot of very nice people who realise that they are fortunate to have a boat and a canal to travel on and add a bit of joy to the day.  Its a bit early to raise a glass of alcoholic stuff  but I will lift a cup of coffee to them.

 

And I, along with many others here I'm sure, raise my coffee to you in reply. :)

 

 

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On 17/09/2021 at 08:50, Bee said:

There are a lot of people on the canals whose main pleasure is in being grumpy, argumentative, boorish,  quoting rules and bylaws, policing their little bit of bank, interfering with everybody else's day, thinking they are experts after 18 months of boating and thinking that spending a lot on a boat entitles them to special treatment. There are also a lot of very nice people who realise that they are fortunate to have a boat and a canal to travel on and add a bit of joy to the day.  Its a bit early to raise a glass of alcoholic stuff  but I will lift a cup of coffee to them.

 

It's not just the canals, but the canals do seem to be some of the worst places for those sort of grumpy, officious people. Online canal forums also provide a great platform for their continual, monotonous moaning. You've only got to look at some of the long running threads on this forum for examples of this unrelenting complaining. Sometimes I wonder if they're more interested in boating or moaning.

Edited by blackrose
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3 minutes ago, blackrose said:

 

It's not just the canals, but the canals do seem to be some of the worst places for those sort of grumpy, officious people. Online canal forums also provide a great platform for their continual, monotonous moaning. You've only got to look at some of the long running threads on this forum for examples of this unrelenting complaining.

Sometimes it's not complaining so much as looking for a solution, or at least a way of making what one finds unpleasant,  bearable.

Except  of course, on the politics section, which is just entrenched ideas endlessly restated with no attempt ever to see anyone else's point of view, and is therefore best avoided except for the odd look on a dull night for a bit of amusement.

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19 hours ago, waterworks said:

I meant the licence conditions are statutory and the advice on running engines is not. 

 

The licence T&C's per se are not statutory, they contain some clauses that are stautory, and many that are not, as well as some that are contrary to stautory requirements.

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19 hours ago, Alan de Enfield said:

It should be clarified that much of the T&C's are a repeat of, or reference to, byelaw provisions, and enforceable in law by the method prescribed (not by unlawfully making them a contractual condition for issue of the licence). Those cannot be said to be foisted upon us via the T&C's, justly or unjustly.

 

(Nigel Moore)

 

Rather than re-run the debate about whether the T&Cs generally are enforceable, perhaps we should focus on the engine-running T&C in particular. Nigel, in the above, seems to imply there might be a bylaw addressing the same problem.

 

Which bylaw is it? Is it still in force? 

 

 

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27 minutes ago, MtB said:

 

Rather than re-run the debate about whether the T&Cs generally are enforceable, perhaps we should focus on the engine-running T&C in particular. Nigel, in the above, seems to imply there might be a bylaw addressing the same problem.

 

Which bylaw is it? Is it still in force? 

 

 

 

 

I have already read thru the 1965, 1972, 1975 & 1976 bylaws and cannot find any reference to running engines - except :

 

"No person shall unless so authorised by the Board turn or cause to be turned the propeller or propellers of any vessel while such vessel is moored alongside any wharf, wall, bank or other work of the Board except as may be necessary for the proper navigation of the vessel"

 

That obviously does not include running engines without turning the prop, so not applicable for this discussion.

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Bye law 39:

 

39. No person shall commit any nuisance in or on any canal.

 

A bit vague, but running a noisy engine or generator in the vicinity of others, surely is committing a nuisance? Regardless of the time.

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Acts of Parliament, bye-laws or terms and conditions are irrelevant. Antisocial behaviour is a pain in the posterior, and should have social sanctions. Laws and rules cannot cover every eventuality, thank the gods, and are anyway too slow to update to work, and usually cover property damage not personal irritations.

If someone is constantly being a prat, the only real solution is to do something worse to them yourself. If one doesn't want to, then you might as well stop complaining. Endlessly moaning that "someone should do something" gets no-one anywhere.

Edited by Arthur Marshall
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As I understand it, all the regulations contained within the Boat Safety Scheme rely on the statutory provisions in the 1995 Act. 

 

So if CRT refuse a licence application on the grounds that a boat has not passed the BSE, it is acting entirely within its statutory powers.

 

I don't see a fundamental difference between imposing conditions on the grant of a licence via the BSS and imposing conditions through other reasonable conditions in the licence agreement.

 

The arguments restated above all took place a long time ago, I'm not sure they are totally relevant today.  The world has moved on and what might have been seen as draconian 25 years ago might be seen as entirely reasonable today.  The way society has accepted severe restrictions on smoking indoors is a good example.   

 

The point is, our issue of running engines at night might not have been a big deal in 1995, I don't think it was, but public tolerance of nuisance has changed, and the courts might very well take an entirely different view of what is unacceptable in 2021. 

 

 

 

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32 minutes ago, nicknorman said:

A bit vague, but running a noisy engine or generator in the vicinity of others, surely is committing a nuisance? Regardless of the time.

 

And a noisy generator at 6pm when it is permitted by CRT's guidelines is much more annoying than a quiet engine or generator at 8:30pm...

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4 minutes ago, Neil2 said:

As I understand it, all the regulations contained within the Boat Safety Scheme rely on the statutory provisions in the 1995 Act. 

 

So if CRT refuse a licence application on the grounds that a boat has not passed the BSE, it is acting entirely within its statutory powers.

 

I don't see a fundamental difference between imposing conditions on the grant of a licence via the BSS and imposing conditions through other reasonable conditions in the licence agreement.

 

The fundamental difference is that the law provides for the former, it doesn’t provide for the latter, and so attempts to make it so other than by changing the law, are illegal. Or extra-legal if you like.

 

If the law were to be changed, items in CRT’s Ts and Cs would be subject to parliamentary scrutiny and debate, not just unilaterally cobbled together by some CRT office workers seeking an easy life.

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3 minutes ago, nicknorman said:

The fundamental difference is that the law provides for the former, it doesn’t provide for the latter, and so attempts to make it so other than by changing the law, are illegal. Or extra-legal if you like.

 

If the law were to be changed, items in CRT’s Ts and Cs would be subject to parliamentary scrutiny and debate, not just unilaterally cobbled together by some CRT office workers seeking an easy life.

 

In what way does the law specifically provide for enforcement of the BSS though?

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8 minutes ago, Neil2 said:

 

In what way does the law specifically provide for enforcement of the BSS though?

 

 

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

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26 minutes ago, MtB said:

 

 

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

Yes. Which is part of article 17 "Conditions as to certificates and licences" of the 1995 British Waterways Act.

Edited by nicknorman
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1 minute ago, nicknorman said:

Yes. Which is part of article 17 of the 1995 British Waterways Act.

 

Yes, and linked to by Alan De E in post number.... oh. Once again we don't have them!! Is that a considered decision or a bug? 

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30 minutes ago, MtB said:

 

 

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

 

You could actually (if desired) make having a generator on board - or a composting toilet - a fail for the BSS* in which case the boat would not comply with the 1995 Act and would be refused a licence.

 

* There are no regulations as to what should be (or must be) included in, or excluded from, the BSS, hence that is how the BSS can add anything (eg CO Alarms) at will.

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54 minutes ago, MtB said:

 

 

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

 

Yes, but the schedule provides for the licencing authority to making provision for the "use and operation" of equipment etc. and not necessarily on safety grounds.  It's a pretty vague statement but, again, what might have been acceptable in 1995 in terms of the "use and operation" of engines and equipment could be completely different today.

 

At the end of the day the current Chief Executive of CRT clearly believes a licence can be refused/revoked on a breach of conditions, so I'll write to him again and ask exactly what grounds in law he believes the trust have.

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2 minutes ago, Neil2 said:

 

Yes, but the schedule provides for the licencing authority to making provision for the "use and operation" of equipment etc. and not necessarily on safety grounds.  It's a pretty vague statement but, again, what might have been acceptable in 1995 in terms of the "use and operation" of engines and equipment could be completely different today.

 

At the end of the day the current Chief Executive of CRT clearly believes a licence can be refused/revoked on a breach of conditions, so I'll write to him again and ask exactly what grounds in law he believes the trust have.

 

Very noble and creditworthy of you to write. I bet you get a load of indeterminate waffle in reply. You say "write to him again", so what response did you get the first time please?

 

It appears to me that as CRT like to refer to it as a "License Agreement", that those of us have actually entered into a civil contract to have a license and by signing the form, ticking the box or whatever we have agreed to abide by the conditions clearly stated. So by extension should we ignore said conditions, we would be in breach of contract and CRT could sue us for damages. Further, once the "License Agreement" expires, CRT may elect not to enter into any further agreements. This leaves the T&C ignorers still entitled to a license if they can satisfy the board their boat complies and has insurance, but the process to do that is undefined and usually (I suspect) involves some court hearings of one sort or another. 

 

So although Mr waterworks may be entitled to his license without agreeing to abide by the T&Cs, CRT are likely to put him to one helluvalot of time and trouble to force them to issue it. 

 

So as boaters, it appears to me we either take the easy option and agree to the T&Cs, or refuse to agree and go the complicated and difficult route of forcing CRT to issue one in the courts. 

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1 hour ago, Alan de Enfield said:

 

You could actually (if desired) make having a generator on board - or a composting toilet - a fail for the BSS* in which case the boat would not comply with the 1995 Act and would be refused a licence.

 

* There are no regulations as to what should be (or must be) included in, or excluded from, the BSS, hence that is how the BSS can add anything (eg CO Alarms) at will.

Does not have to be BSS  it could be some other set of conditions.

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2 hours ago, Mike Todd said:

Does not have to be BSS  it could be some other set of conditions.

 

It is not easy for them to add conditions to be met before a licence can be issued, In fact, Nigel Moore said it was not possible unless the changes were agreed by Parlaiment.

 

The BSS is already a condition of licence, but there is nothing to say what the BSS must consist of. Adding extra restrictions / conditions to the issue of the BSS is 'legal' and simple.

 

Remember that C&RT / BW agreed that there are only 3 conditions that must be met for the issue of a licence :

 

Again an old post by Nigel Moore (RIP)

 

 

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 her 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

 

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.

Revoking a licence can only be enabled upon breach of the s.17 conditions, exactly as, admitted by them above, refusing a licence can only be enabled by failure to meet those conditions.

In short, where the 1995 Act has expressly limited grounds for refusal/revocation of a licence to 3 specific conditions, then the issue of the licence CANNOT legally be subjected to compliance with anything else.

 

Where, under byelaw making powers passed on to CaRT by the terms of their Statutory Instrument, conditions of use of the waterways by licensed boats may still be added to, the relevant statutory procedure must be followed – but those, as with existing byelaws, could only govern use of the waterways by licensed boats, they could never be tied to issue or revocation of the licence. Any attempt to portray them as something issue and retention of the licence is subject to, is blatant falsehood.

 

The law quite simply does NOT permit T&C’s to be attached to issue of the licence, therefore the asserted contrary statements and actions are indeed unlawful. When elements of these T&C’s specifically claim to over-ride express statutory protections and prohibitions, the legal affront is all the more objectionable.

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If anyone seriously thinks that this or any likely future government is going to see updating an Act to bring inland waterways rules into the current century as worth the time expending on it,  they need their head examined professionally.

Nobody,  including the vast majority of users, cares. 99% of the latter think the T&Cs are sensible, which by and large they are, and follow them. The few who don't might make the odd day or night a misery for the rest of us, but we can move on and forget them. Sooner or later someone will throw their genny in the cut, thump them or, as in one case I well remember,  set fire to their boat.

Those endlessly wittering on about what's law and what isn't should do a bit of research into what legality is all about. And probably bear in mind that judges don't care (or in fact know) much about it either.

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