Charges or fines ?

[IanD]

1 minute ago, waterworks said:

They already do charge for these things, it's all in the licence fee, they are not free. 

 

If they stopped any these three services boating would become unattractive and they would lose customers.

 

If they made them extra charges anyone could decline them and still meet the legal requirements to be issued a licence. 

 

Taking away rubbish bins would lead to massive flipping costing CRT millions to clean up.

 

I'll let somebody else dive in (Alan?) but if what has been said before is correct you're wrong -- there is no condition which says that as part of the license fee CART have to provide water or Elsan points or rubbish disposal, or even free moorings -- otherwise how did the charge at Llangollen come about?

 

If they made them chargeable then of course you could still get a license -- but without paying extra you couldn't get any water, empty your Elsan, or get rid of your rubbish. CART might provide these facilities now "free" but there's nothing legally that says they have to provide them at all or that they can't charge for them, even though they don't today.

[waterworks]

Nigel Moore researched the claimed powers under the 1962 transport act and concluded they had no such power. 

 

I have what he wrote saved on my Google Drive as a read only doc but I have no idea how to copy it on here. 

[beerbeerbeerbeerbeer]

2 minutes ago, IanD said:

but if what has been said before is correct you're wrong

But if what has been said before is wrong….. 

[waterworks]

3 minutes ago, IanD said:

 

I'll let somebody else dive in (Alan?) but if what has been said before is correct you're wrong -- there is no condition which says that as part of the license fee CART have to provide water or Elsan points or rubbish disposal, or even free moorings -- otherwise how did the charge at Llangollen come about?

 

If they made them chargeable then of course you could still get a license -- but without paying extra you couldn't get any water, empty your Elsan, or get rid of your rubbish. CART might provide these facilities now "free" but there's nothing legally that says they have to provide them at all or that they can't charge for them, even though they don't today.

I never said they had to provide them, they are provided because they are a basic necessity to boating, CRT would be shooting itself in the foot if they didn't provide basic services for boaters who they want to attract as customers. 

 

 

[IanD]

9 minutes ago, Goliath said:

But if what has been said before is wrong….. 

So let's wait until somebody who might actually know the legal position chips in...

 

The position that CART aren't legally obliged to provide water/Elsan/rubbish(/moorings?) and could therefore charge extra for them (or stop providing them...) has been posted several times, most recently in all the arguments about rubbish disposal for composting toilets.

5 minutes ago, waterworks said:

I never said they had to provide them, they are provided because they are a basic necessity to boating, CRT would be shooting itself in the foot if they didn't provide basic services for boaters who they want to attract as customers. 

 

 

Of course they would -- but they wouldn't be shooting themselves in the foot if they continued to provide them but started to charge for them to make up some of their funding shortfall, and get more money out of boaters who -- lets face it -- get a lot for not very much money. Your water, sewage and rubbish disposal at home aren't free, why do you think they should be on the canals?

 

(the license fee does not pay for these, it pays for what CART are legally obliged to provide which does not include them)

 

Moorings at Llangollen used to be free, now they're £6 a night and demand doesn't seem to have gone down -- so CART are making some badly-needed money by taking advantage of the law of supply and demand.

Edited April 12, 2022 by IanD

[waterworks]

TO POWERS TO CONTROL MOORINGS

 

Nigel Moore.

CART’s limits to their powers to control moorings are the limits that apply to all their powers of control, and are limits shared by all such statutory bodies – their powers are constrained by the specific grants from Parliament. It is a long-standing principle of law, that creatures of statute are bound by, and limited to, the statute/s that created them – as modified, as maybe, by subsequent legislation.

•    The over-arching statutory principle – Stourbridge v Wheeley etc – paragraph 96 of Mr Justice Hildyard's judgement approves:

96. The Claimant’s starting point in relation to his extended analysis of the web of legislation is the proposition that (quoting again from Stourbridge Canal v Wheeley [supra], to which I have already referred) the proprietors (for which read BWB) “can claim nothing which is not clearly given to them by the Act(s).” I accept this; and thereby both implicit parts of the proposition, being (a) the BWB, not being a natural person but a creature of statute, has only those powers with which it is endowed by statute and (b) in the event of ambiguity, such powers should ordinarily be strictly construed if a wider construction would deprive a member of the public of an existing right.

Topics to consider are the Granted Powers, and the Claimed Powers.

The Granted powers 

•    Powers under the Enabling Acts
•    Powers under the British Transport Commission Act
•    Powers under the Transport Acts
•    Powers under the British Waterways Acts
•    Powers under Statutory Instruments
•    Powers under Byelaws [original pre-1965 byelaws all abolished]

The Claimed powers

•    Rights to charge
•    Rights to set Terms & Conditions
•    Rights to unilaterally impose Contracts

-    Addressing first the statutory principle, because this underlies everything else –
-    

Stourbridge v Wheeley is the case most commonly quoted as authority for the rule that statutory bodies can claim nothing that is not provided for in their statutes. It was cited with approval by the significant 1996 case of Swan Hill Developments v BW, and in every one of my own hearings. Having said that, it is honoured more in the breach than in adherence, but it is no less powerful and applicable for that.

This case was certainly not the first to address the basic principle, but it was often quoted thereafter as THE precedent case, and for waterways users it is obviously all the more pertinent, in that it dealt with the powers of a canal company.

It is worth looking at it more closely, because it pins application of the principle to the very specific topic we deal with when considering BW’s reliance on s.43(3) and their claims to common-law rights.

The Stourbridge Canal Co built their canal on two levels divided by locks, but the whole upper level contained no locks at all. “By the Act of Parliament for making the canal, all persons were to be at liberty to navigate thereupon with boats, upon payment of such rates and dues as should be demanded by the company, not exceeding the rates therein mentioned;” which rates were payable for passage through the locks. Riparian owners were expressly empowered “to use pleasure boats on the canal, without paying dues, so long as the same did not pass through any lock”.

“Held: that this Act gave no right to demand toll for boats navigating the upper level of the canal, in which there were no locks.”

It is the argument of the canal company that is so familiar. They said: “if individuals have no right to navigate a particular part, the company may make their own bargain as to the terms upon which they may be permitted to do so.” They were proven wrong, even as BW/CART are wrong in continuing to rely on that very same dishonoured argument. My Appeal judgement in particular, has specifically rejected the principle.

The canal company had sought to rely on the common law right of a private person to consent, on terms, to the use of their property. That was denied; such rights were not available to them.

A modern case that asserts the same principle in the context of what may and may not be charged for, was McCarthy & Stone v London Borough of Richmond upon Thames [1992]. The statutory body was declared incapable of charging for services unless specifically empowered to do so, even for services for which any natural person would be entitled to charge.

The principle was affirmed in the waterways context a few years later in Swan Hill Developments v BWB, where the finding was made that BW were not entitled to the common law right of a landowner to consent to construction of bridges over their property, and they were not entitled to levy a charge which any private person would have a common law right to demand.

The Granted powers

Powers under the Enabling Acts

The Stourbridge example of an Enabling Act is typical of most, although the terms upon which the companies bargained with the public varied in detail. The Grand Junction Canal Company Act of 1793 also expressly provided for freedom from charges for pleasure boat use – but it contained a variant, which was that they could also use locks for free, providing only that no water was used. Much of the Grand Junction Canal was built using rivers with a natural flow, so that weirs were built to permit the excess to flow around the locks. For so long as the weirs were flowing, pleasure boats could use them free of charge; if the weirs were not overflowing due to a dry spell, then the boats were charged as though they were commercial carriers of a certain minimum tonnage.

As with most of the more than 500 Enabling Acts, riparian owners were empowered to construct places for boats to lie alongside their land, and being permitted to keep and use pleasure boats, that right naturally entitled them to moor their pleasure boats to their own land, with the power to charge any others for that use being vested in the owners not the Grand Junction Canal Company.

The Grand Junction Canal Company were likewise empowered to provide such services on land they had acquired, the only difference between the company and private owners being that the company’s facilities had to be available to all, on payment of the relevant fees, whereas the private owners could exercise their own discretion as to who, if any, they permitted to use their facilities.

It was rights such as these, for private pleasure boats to be kept and used on the canals alongside private property free of charge that galled the successors, British Waterways, back in 1990. They were not content with being empowered to demand a chargeable licence for the boat to be kept on the water, nor with being empowered to provide chargeable facilities on their own offside land. They wanted to abolish the mooring consent rights of private persons, and be themselves the arbiters of whether that would be permitted or not, so that the mooring facilities of private owners could become something they too could charge for.

They were very aware of Stourbridge v Wheeley, and knew that it would take an Act of Parliament to remove the private rights. They incorporated the notorious “Clause 27” into the 1990 Bill presented to Parliament that would ensure just such blanket abolition of private rights – and quite rightly were made to withdraw that outrageous demand, which had contributed to what one MP had called “this nasty little Bill”.

Aside from the positive rights there were usually clauses in the original Acts that placed enforceable restrictions on mooring so as not to interfere with navigation on the canal; these still enforceable provisions, are in any event covered by s.18 of the 1995 Act to make the power universal in case of any quirky omissions of such restrictions in the original Acts.

In summary, the enabling Acts grant BW/CART powers to provide mooring facilities and to charge for those, on their own offside land; they generally prohibit them from interference with private mooring rights so conferred, and are entitled to interfere only where necessary to ensure the free passage along the canal for all members of the public.

The British Transport Commission Act 1954

The British Transport Commission Act of 1954 made provision for ensuring a degree of uniformity of control of boating, including regulations for governing moorings, through the medium of Bye-law making powers.

Part III, s.2 provides: “The Commission may from time to time make byelaws for regulating the use of the canal . . . for all or any of the following purposes: -

(c) for regulating the loading, discharging and mooring of vessels using the canal.”

As we will see when looking at the Byelaws made since then, virtually no need was subsequently seen for decades, to bring in anything more than the most rudimentary of provisions in this regard.

The Transport Acts

The Act of 1962 was the one that separated out the bulk of the waterways from the other nationalised transport systems, and created the British Waterways Board.  

The favourite and most abused clause in all statutory history has to be s.43(3), relied upon to justify BW/CART’s claim to be enabled to charge whatever they like for whatever uses they please. The claim is false; it is, moreover, discredited by both the Hildyard judgement and that of the Appeal Court – but we won’t go there yet.

No specific clauses relating to moorings exist within either of the relevant Transport Acts.

It remains only to observe that BW DO claim, as they have done successfully in various County Courts, that ALL moorings on their waterways are either: by their permission, or unlawful – citing the abolition of Public Rights of Navigation as per the definitions of the 1968 Act [i.e if the right to “keep” a boat on the waterway is abolished, then to keep a boat on the waterway needs their permission]. This was the argument accepted by Mr Justice Hildyard in the Chancery Division of the High Court, but which was specifically rejected by the Appeal Court.

British Waterways Acts

From 1971 to 1995, the only statute to deal with moorings controls is that last. Sections 18 and 19 of the 1995 Act deal with two mooring offences, one of which renders a boat susceptible to s.8 of the 1983 Act, and the other which is specifically excluded from that classification.

Section 20 specifically preserves and protects private mooring rights, while Section 21 empowers BW/CART to designate sections of waterway wherein they may demand a safety certificate for mooring apparatus that extends beyond the bank into the navigational area. They have never chosen to so designate any section of waterway, and the section remains as one of those currently incapable of implementation.

The other section imposing specific limits to mooring in the course of navigation, relates to those without a home mooring. Section 17.3 (c)(ii) requires a boat that has not declared an available home mooring, to navigate the system never staying for longer than 14 days in any one place except where/when it is reasonable to stay longer under the circumstances.

Statutory Instruments

There are no relevant Statutory Instruments.

Byelaws

The British Transport Commission Act of 1954 expressly provided that where mooring control was seen as necessary, BW could make byelaws enabling that [which would require Parliamentary consent]. Currently the mooring provisions of the byelaws are limited in the extreme. There quite simply are none at all relating to powers to give directions as to moorings; prohibit moorings or to control them.

The reason is given in the comments column of the draft new byelaws – “Whilst provisions of this nature may not have been considered necessary in the 1960’s [when the General Canal Byelaws were introduced] the very significant growth in use of the network since then, and the difficulties with congestion that can now occur at certain locations in busy periods gives rise to the need for such a byelaw.”

Actually, the mooring provisions in the draft byelaws have been lifted verbatim from the 1990 Bill. They were withdrawn from the Bill because Parliament objected too strongly to making criminals of boaters, simply for such mooring offences.

Consequently, CART’s powers to control moorings are no different now to what they had been when the 1990 Bill was drafted. As BW’s Counsel stated before the Select Committee in May 1991 – “The Board’s existing controls are very limited . . . and are found within the general byelaws of 1965.”

The byelaws to which he was referring were No.s: 28 and 29.

Byelaw 28 provides: “Any vessel (other than a dredger or other vessel engaged in works of maintenance of the canal) moored at any wharf or elsewhere in any canal shall be securely moored head and stern with good and sufficient ropes or other efficient apparatus and shall be laid as close to and along the side or front of such wharf or other mooring place as conveniently may be and shall be moored in such a manner and in such a position as not to cause any obstruction to the navigation of other vessels.”

Byelaw 29 provides: “No mooring rope shall be  affixed to any sluice, lockgate, bridge or other work of the Board not provided for the purpose of mooring.”

So there you have the limits to CART’s powers to control moorings: -

•    They can insist that you moor up properly, tied fore and aft;
•    They can stop you mooring to any of the Board’s works not intended for mooring;
•    They can move you without notice if causing an obstruction to navigation or towpath;
•    They can move you on notice if they need to carry out works to the bank;
•    They can remove you altogether, on notice, if your boat is on the waterways without authority;
•    They can require you to either: have a home mooring, or: to moor within the parameters of s.17(3)(c)(ii) of the 1995 Act.

The Claimed Powers

BW/CART are at least straightforward in what they claim as empowerment to control moorings; the openly acknowledge that “there are no public law provisions” in this respect “it is entirely a matter for control for BW as landowners”.

The Acts of 1962 and of 1968 are cited as empowering, when taken together, the charging and conditioning of all moorings whether to their own land or others.

The argument is laid out carefully in their End-of-Garden Moorings Informative. They start with the abolition of all rights to keep or use a boat on the canal, so that such uses became no longer “as of right”, but became “as of permission”. That meant that BW were in effect offering a service or facility for the use of the canal, even if the boat was just kept there alongside private land.

That, in turn, brought the boat’s use within the ambit of the 1962 Act, wherein BW were entitled to both charge for and set conditions for, any services and facilities they provide [by the understanding promoted].

BW skirted this argument at the main trial, somewhat to Mr Justice Hildyard’s puzzlement; he noted my more extensive treatment of the subject in my prepared argument, but as BW did not wish to rely on it there was no need for him to do anything more than pass a few comments, which need not concern us here.

•    Rights to charge – TA 1962 s.43(3) – see para.109 of Hildyard judgement – s.43(3) can be applicable “provided that it has the means of imposing those terms & conditions (in right of ownership, by consent or by permissible Bye-laws).” See also McCarthy & Stone v London Borough of Richmond upon Thames, UKHL [1992] A statutory authority can make no charge other than those expressly permitted. The s.43(3) is a conditional clause subject to the relevant limitations of the prior Acts, applicable only to those powers to charge within those enabling Acts..

•    Rights to set terms and conditions – BW Act 1995; Select Committee Minutes; BW Notes; Transport Act 1962 s.43(3); This right is tied to the services and facilities provided for which powers to charge were granted. If it had been the blanket catch-all claimed by BW, then no further Acts would have been necessary at all!  Para.112 of the Hildyard Judgement: “Put shortly, even if the 1962 Act empowered BWB to impose terms and conditions for user by way of permanent mooring, I have not been persuaded that BWB has ever validly exercised such power.” [my emphasis]

•    Rights to impose contracts – Burnett v BWB [para. 111 of Hildyard J] See also Attorney General v Wilts United Dairies [1921] This is the crucial element of BW’s claim for rights to control mooring in general. It follows on from and relies upon, the previous heading.

It is also, perhaps understandably, the most effective one as most boaters understand it.

Anyone obtaining a boat licence, even if that is on the basis of having a home mooring, nonetheless agrees to the Terms & Conditions that BW attaches to issue of the licence, such that a civil contract is formed requiring compliance with those terms – and one of those terms being that no-one can moor for longer than 14 days, or less where designated areas so require, then mooring any longer is a breach of contract, enforceable by action of law; they are, on that argument, entitled to rescind the licence and set s.8 in motion. A sledgehammer to crack a nut, as the saying goes.

It all sounds incontrovertibly plausible, does it not?

There are, however, two crippling objections to the argument.

a)    BW’s published statement on “Moorings along the banks of BW Waterways”, in giving an “Overview of BW’s statutory framework”, correctly states: “The British Waterways Act 1995 limits to three specific criteria our ability to refuse to licence a boat.” Having listed those well-known criteria, they go on to say “There are no statutory provisions for BW to refuse a licence on the grounds of say, congestion . . .”

That being so, they cannot refuse to issue a licence on the grounds, for example, of failure to agree to accept terms and conditions. On their own showing, therefore, any claim that they could refuse a licence except upon agreement to extra conditions, is self-contradictory. If Parliament limited them to just the 3 specific refusal criteria, then they have no power to impose others – the insistence on acceptance of terms and conditions that go beyond the statutorily empowered ones therefore, is ultra vires.

b)     Everything said earlier regarding the limitation to powers expressly conferred by statute applies to the case. If any more was needed to drum home the point, we have it from the House of Lords in 1921, in the case of the Attorney General v Wilts United Dairies. The Attorney General had argued that the 
levying of certain charges, whilst not perhaps expressly or impliedly provided for by statute, was nonetheless a contractual matter of agreement between the parties – the identical argument, in other words, as BW’s.

Lord Justice Atkin stated clearly, in response to this argument: “It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party . . .”

Summary Overview in light of Appeal judgement

•    The Court of Appeal judgement has one hugely significant summary effect – it comprehensively –

(a) denied that the statutory powers alone empower BW/CART to deny private rights of mooring, and 

(b) confirmed that no statutory mechanism exists to declare a mooring to private land unlawful.

•    If the mooring to private land is lawful even absent their permission, they have no foundation upon which to charge or set conditions – their powers to control are confined: either (a) to moorings provided by them on their own bankside land, or (b) elsewhere, to the breaches of relevant byelaws and to sections 18 to 21 of the 1995 Act.

•    For those without such a mooring, the powers to control mooring are extended to cover policing of the 1995 terms of s.17(3)(c)(ii) – note that a boat licensed under those terms is not thereby prohibited from contracting to hire use of a legitimate mooring for any length of time, whether from BW/CART or any private provider.

•    In respect of both, but of particular current relevance to the current efforts to control Continuous Cruisers and the intention to impose widespread mooring restriction on everyone all over the system, is the comment by Mr Justice Hildyard in respect to the relevant legislation: 

“It does not seem to me to be right that the boating public should . . . be left to rely on the say-so of the British Waterways Board.” 

BW/CART, of course, proclaim that it is - on the contrary - precisely down to them to ascertain what the boating public’s rights [if any] might be and what the statutes permit them to do. 

•    The Mann judgement [Moore v BW 2009] proved them wrong as to the construing of the Enabling Act provisions and the effect of the Transport Act 1968.

•    The Hildyard judgement proved them wrong as to the construing of the Transport Acts 1962 and 1968; the BW Acts of 1971 and 1975, and the General Canal Byelaws of 1976

•    The Appeal judgement proved them wrong in the construction of the BW Act 1983, and

•    The Appeal judgement has demonstrated, besides, that they are capable of advancing arguments as to the construction of their statutes that are in clear violation of the Rule of Law.

Bear in mind that these failures to provide correct interpretation of their laws do not arise from ignorance, or lack of talent – no-one knows the content better, if for no other reason than that they have the necessary library of relevant statutes inaccessible to the general public. They also enjoy the benefit of a full-time team of legally trained individuals, who themselves have access to outside solicitors and barristers trained and experienced in this specialist subject.

The warning I am sounding is that none of that guarantees the correctness of their assertions, as the series of my cases and some others have proven. The problem lies with their probity, given the remit handed them by their bosses.

A final note of caution is that for End of Garden moorings, the Appeal Court decision has left it open for CART to try claiming rights of trespass where they own the bed of the waterway – though, for the record, I deny that any such right exists at common law, and deny that, even if such right existed, BW/CART could ever avail themselves of it. Sadly, that whole issue was yet another of those included in my case that were set aside as being unnecessary for the court to make a finding on.

That, of course, brings us right back to the beginning, and to Stourbridge v Wheeley, and to McCarthy & Stone v London Borough of Richmond upon Thames. With no access to common law rights, they cannot pretend legally to be capable of enforcing them. They are a creature of statute bound by the express terms of their statutes – thank goodness!

- - - o o O o o - - -
 

[IanD]

8 minutes ago, waterworks said:

TO POWERS TO CONTROL MOORINGS

 

Nigel Moore.

CART’s limits to their powers to control moorings are the limits that apply to all their powers of control, and are limits shared by all such statutory bodies – their powers are constrained by the specific grants from Parliament. It is a long-standing principle of law, that creatures of statute are bound by, and limited to, the statute/s that created them – as modified, as maybe, by subsequent legislation.

•    The over-arching statutory principle – Stourbridge v Wheeley etc – paragraph 96 of Mr Justice Hildyard's judgement approves:

96. The Claimant’s starting point in relation to his extended analysis of the web of legislation is the proposition that (quoting again from Stourbridge Canal v Wheeley [supra], to which I have already referred) the proprietors (for which read BWB) “can claim nothing which is not clearly given to them by the Act(s).” I accept this; and thereby both implicit parts of the proposition, being (a) the BWB, not being a natural person but a creature of statute, has only those powers with which it is endowed by statute and (b) in the event of ambiguity, such powers should ordinarily be strictly construed if a wider construction would deprive a member of the public of an existing right.

Topics to consider are the Granted Powers, and the Claimed Powers.

The Granted powers 

•    Powers under the Enabling Acts
•    Powers under the British Transport Commission Act
•    Powers under the Transport Acts
•    Powers under the British Waterways Acts
•    Powers under Statutory Instruments
•    Powers under Byelaws [original pre-1965 byelaws all abolished]

The Claimed powers

•    Rights to charge
•    Rights to set Terms & Conditions
•    Rights to unilaterally impose Contracts

-    Addressing first the statutory principle, because this underlies everything else –
-    

Stourbridge v Wheeley is the case most commonly quoted as authority for the rule that statutory bodies can claim nothing that is not provided for in their statutes. It was cited with approval by the significant 1996 case of Swan Hill Developments v BW, and in every one of my own hearings. Having said that, it is honoured more in the breach than in adherence, but it is no less powerful and applicable for that.

This case was certainly not the first to address the basic principle, but it was often quoted thereafter as THE precedent case, and for waterways users it is obviously all the more pertinent, in that it dealt with the powers of a canal company.

It is worth looking at it more closely, because it pins application of the principle to the very specific topic we deal with when considering BW’s reliance on s.43(3) and their claims to common-law rights.

The Stourbridge Canal Co built their canal on two levels divided by locks, but the whole upper level contained no locks at all. “By the Act of Parliament for making the canal, all persons were to be at liberty to navigate thereupon with boats, upon payment of such rates and dues as should be demanded by the company, not exceeding the rates therein mentioned;” which rates were payable for passage through the locks. Riparian owners were expressly empowered “to use pleasure boats on the canal, without paying dues, so long as the same did not pass through any lock”.

“Held: that this Act gave no right to demand toll for boats navigating the upper level of the canal, in which there were no locks.”

It is the argument of the canal company that is so familiar. They said: “if individuals have no right to navigate a particular part, the company may make their own bargain as to the terms upon which they may be permitted to do so.” They were proven wrong, even as BW/CART are wrong in continuing to rely on that very same dishonoured argument. My Appeal judgement in particular, has specifically rejected the principle.

The canal company had sought to rely on the common law right of a private person to consent, on terms, to the use of their property. That was denied; such rights were not available to them.

A modern case that asserts the same principle in the context of what may and may not be charged for, was McCarthy & Stone v London Borough of Richmond upon Thames [1992]. The statutory body was declared incapable of charging for services unless specifically empowered to do so, even for services for which any natural person would be entitled to charge.

The principle was affirmed in the waterways context a few years later in Swan Hill Developments v BWB, where the finding was made that BW were not entitled to the common law right of a landowner to consent to construction of bridges over their property, and they were not entitled to levy a charge which any private person would have a common law right to demand.

The Granted powers

Powers under the Enabling Acts

The Stourbridge example of an Enabling Act is typical of most, although the terms upon which the companies bargained with the public varied in detail. The Grand Junction Canal Company Act of 1793 also expressly provided for freedom from charges for pleasure boat use – but it contained a variant, which was that they could also use locks for free, providing only that no water was used. Much of the Grand Junction Canal was built using rivers with a natural flow, so that weirs were built to permit the excess to flow around the locks. For so long as the weirs were flowing, pleasure boats could use them free of charge; if the weirs were not overflowing due to a dry spell, then the boats were charged as though they were commercial carriers of a certain minimum tonnage.

As with most of the more than 500 Enabling Acts, riparian owners were empowered to construct places for boats to lie alongside their land, and being permitted to keep and use pleasure boats, that right naturally entitled them to moor their pleasure boats to their own land, with the power to charge any others for that use being vested in the owners not the Grand Junction Canal Company.

The Grand Junction Canal Company were likewise empowered to provide such services on land they had acquired, the only difference between the company and private owners being that the company’s facilities had to be available to all, on payment of the relevant fees, whereas the private owners could exercise their own discretion as to who, if any, they permitted to use their facilities.

It was rights such as these, for private pleasure boats to be kept and used on the canals alongside private property free of charge that galled the successors, British Waterways, back in 1990. They were not content with being empowered to demand a chargeable licence for the boat to be kept on the water, nor with being empowered to provide chargeable facilities on their own offside land. They wanted to abolish the mooring consent rights of private persons, and be themselves the arbiters of whether that would be permitted or not, so that the mooring facilities of private owners could become something they too could charge for.

They were very aware of Stourbridge v Wheeley, and knew that it would take an Act of Parliament to remove the private rights. They incorporated the notorious “Clause 27” into the 1990 Bill presented to Parliament that would ensure just such blanket abolition of private rights – and quite rightly were made to withdraw that outrageous demand, which had contributed to what one MP had called “this nasty little Bill”.

Aside from the positive rights there were usually clauses in the original Acts that placed enforceable restrictions on mooring so as not to interfere with navigation on the canal; these still enforceable provisions, are in any event covered by s.18 of the 1995 Act to make the power universal in case of any quirky omissions of such restrictions in the original Acts.

In summary, the enabling Acts grant BW/CART powers to provide mooring facilities and to charge for those, on their own offside land; they generally prohibit them from interference with private mooring rights so conferred, and are entitled to interfere only where necessary to ensure the free passage along the canal for all members of the public.

The British Transport Commission Act 1954

The British Transport Commission Act of 1954 made provision for ensuring a degree of uniformity of control of boating, including regulations for governing moorings, through the medium of Bye-law making powers.

Part III, s.2 provides: “The Commission may from time to time make byelaws for regulating the use of the canal . . . for all or any of the following purposes: -

(c) for regulating the loading, discharging and mooring of vessels using the canal.”

As we will see when looking at the Byelaws made since then, virtually no need was subsequently seen for decades, to bring in anything more than the most rudimentary of provisions in this regard.

The Transport Acts

The Act of 1962 was the one that separated out the bulk of the waterways from the other nationalised transport systems, and created the British Waterways Board.  

The favourite and most abused clause in all statutory history has to be s.43(3), relied upon to justify BW/CART’s claim to be enabled to charge whatever they like for whatever uses they please. The claim is false; it is, moreover, discredited by both the Hildyard judgement and that of the Appeal Court – but we won’t go there yet.

No specific clauses relating to moorings exist within either of the relevant Transport Acts.

It remains only to observe that BW DO claim, as they have done successfully in various County Courts, that ALL moorings on their waterways are either: by their permission, or unlawful – citing the abolition of Public Rights of Navigation as per the definitions of the 1968 Act [i.e if the right to “keep” a boat on the waterway is abolished, then to keep a boat on the waterway needs their permission]. This was the argument accepted by Mr Justice Hildyard in the Chancery Division of the High Court, but which was specifically rejected by the Appeal Court.

British Waterways Acts

From 1971 to 1995, the only statute to deal with moorings controls is that last. Sections 18 and 19 of the 1995 Act deal with two mooring offences, one of which renders a boat susceptible to s.8 of the 1983 Act, and the other which is specifically excluded from that classification.

Section 20 specifically preserves and protects private mooring rights, while Section 21 empowers BW/CART to designate sections of waterway wherein they may demand a safety certificate for mooring apparatus that extends beyond the bank into the navigational area. They have never chosen to so designate any section of waterway, and the section remains as one of those currently incapable of implementation.

The other section imposing specific limits to mooring in the course of navigation, relates to those without a home mooring. Section 17.3 (c)(ii) requires a boat that has not declared an available home mooring, to navigate the system never staying for longer than 14 days in any one place except where/when it is reasonable to stay longer under the circumstances.

Statutory Instruments

There are no relevant Statutory Instruments.

Byelaws

The British Transport Commission Act of 1954 expressly provided that where mooring control was seen as necessary, BW could make byelaws enabling that [which would require Parliamentary consent]. Currently the mooring provisions of the byelaws are limited in the extreme. There quite simply are none at all relating to powers to give directions as to moorings; prohibit moorings or to control them.

The reason is given in the comments column of the draft new byelaws – “Whilst provisions of this nature may not have been considered necessary in the 1960’s [when the General Canal Byelaws were introduced] the very significant growth in use of the network since then, and the difficulties with congestion that can now occur at certain locations in busy periods gives rise to the need for such a byelaw.”

Actually, the mooring provisions in the draft byelaws have been lifted verbatim from the 1990 Bill. They were withdrawn from the Bill because Parliament objected too strongly to making criminals of boaters, simply for such mooring offences.

Consequently, CART’s powers to control moorings are no different now to what they had been when the 1990 Bill was drafted. As BW’s Counsel stated before the Select Committee in May 1991 – “The Board’s existing controls are very limited . . . and are found within the general byelaws of 1965.”

The byelaws to which he was referring were No.s: 28 and 29.

Byelaw 28 provides: “Any vessel (other than a dredger or other vessel engaged in works of maintenance of the canal) moored at any wharf or elsewhere in any canal shall be securely moored head and stern with good and sufficient ropes or other efficient apparatus and shall be laid as close to and along the side or front of such wharf or other mooring place as conveniently may be and shall be moored in such a manner and in such a position as not to cause any obstruction to the navigation of other vessels.”

Byelaw 29 provides: “No mooring rope shall be  affixed to any sluice, lockgate, bridge or other work of the Board not provided for the purpose of mooring.”

So there you have the limits to CART’s powers to control moorings: -

•    They can insist that you moor up properly, tied fore and aft;
•    They can stop you mooring to any of the Board’s works not intended for mooring;
•    They can move you without notice if causing an obstruction to navigation or towpath;
•    They can move you on notice if they need to carry out works to the bank;
•    They can remove you altogether, on notice, if your boat is on the waterways without authority;
•    They can require you to either: have a home mooring, or: to moor within the parameters of s.17(3)(c)(ii) of the 1995 Act.

The Claimed Powers

BW/CART are at least straightforward in what they claim as empowerment to control moorings; the openly acknowledge that “there are no public law provisions” in this respect “it is entirely a matter for control for BW as landowners”.

The Acts of 1962 and of 1968 are cited as empowering, when taken together, the charging and conditioning of all moorings whether to their own land or others.

The argument is laid out carefully in their End-of-Garden Moorings Informative. They start with the abolition of all rights to keep or use a boat on the canal, so that such uses became no longer “as of right”, but became “as of permission”. That meant that BW were in effect offering a service or facility for the use of the canal, even if the boat was just kept there alongside private land.

That, in turn, brought the boat’s use within the ambit of the 1962 Act, wherein BW were entitled to both charge for and set conditions for, any services and facilities they provide [by the understanding promoted].

BW skirted this argument at the main trial, somewhat to Mr Justice Hildyard’s puzzlement; he noted my more extensive treatment of the subject in my prepared argument, but as BW did not wish to rely on it there was no need for him to do anything more than pass a few comments, which need not concern us here.

•    Rights to charge – TA 1962 s.43(3) – see para.109 of Hildyard judgement – s.43(3) can be applicable “provided that it has the means of imposing those terms & conditions (in right of ownership, by consent or by permissible Bye-laws).” See also McCarthy & Stone v London Borough of Richmond upon Thames, UKHL [1992] A statutory authority can make no charge other than those expressly permitted. The s.43(3) is a conditional clause subject to the relevant limitations of the prior Acts, applicable only to those powers to charge within those enabling Acts..

•    Rights to set terms and conditions – BW Act 1995; Select Committee Minutes; BW Notes; Transport Act 1962 s.43(3); This right is tied to the services and facilities provided for which powers to charge were granted. If it had been the blanket catch-all claimed by BW, then no further Acts would have been necessary at all!  Para.112 of the Hildyard Judgement: “Put shortly, even if the 1962 Act empowered BWB to impose terms and conditions for user by way of permanent mooring, I have not been persuaded that BWB has ever validly exercised such power.” [my emphasis]

•    Rights to impose contracts – Burnett v BWB [para. 111 of Hildyard J] See also Attorney General v Wilts United Dairies [1921] This is the crucial element of BW’s claim for rights to control mooring in general. It follows on from and relies upon, the previous heading.

It is also, perhaps understandably, the most effective one as most boaters understand it.

Anyone obtaining a boat licence, even if that is on the basis of having a home mooring, nonetheless agrees to the Terms & Conditions that BW attaches to issue of the licence, such that a civil contract is formed requiring compliance with those terms – and one of those terms being that no-one can moor for longer than 14 days, or less where designated areas so require, then mooring any longer is a breach of contract, enforceable by action of law; they are, on that argument, entitled to rescind the licence and set s.8 in motion. A sledgehammer to crack a nut, as the saying goes.

It all sounds incontrovertibly plausible, does it not?

There are, however, two crippling objections to the argument.

a)    BW’s published statement on “Moorings along the banks of BW Waterways”, in giving an “Overview of BW’s statutory framework”, correctly states: “The British Waterways Act 1995 limits to three specific criteria our ability to refuse to licence a boat.” Having listed those well-known criteria, they go on to say “There are no statutory provisions for BW to refuse a licence on the grounds of say, congestion . . .”

That being so, they cannot refuse to issue a licence on the grounds, for example, of failure to agree to accept terms and conditions. On their own showing, therefore, any claim that they could refuse a licence except upon agreement to extra conditions, is self-contradictory. If Parliament limited them to just the 3 specific refusal criteria, then they have no power to impose others – the insistence on acceptance of terms and conditions that go beyond the statutorily empowered ones therefore, is ultra vires.

b)     Everything said earlier regarding the limitation to powers expressly conferred by statute applies to the case. If any more was needed to drum home the point, we have it from the House of Lords in 1921, in the case of the Attorney General v Wilts United Dairies. The Attorney General had argued that the 
levying of certain charges, whilst not perhaps expressly or impliedly provided for by statute, was nonetheless a contractual matter of agreement between the parties – the identical argument, in other words, as BW’s.

Lord Justice Atkin stated clearly, in response to this argument: “It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party . . .”

Summary Overview in light of Appeal judgement

•    The Court of Appeal judgement has one hugely significant summary effect – it comprehensively –

(a) denied that the statutory powers alone empower BW/CART to deny private rights of mooring, and 

(b) confirmed that no statutory mechanism exists to declare a mooring to private land unlawful.

•    If the mooring to private land is lawful even absent their permission, they have no foundation upon which to charge or set conditions – their powers to control are confined: either (a) to moorings provided by them on their own bankside land, or (b) elsewhere, to the breaches of relevant byelaws and to sections 18 to 21 of the 1995 Act.

•    For those without such a mooring, the powers to control mooring are extended to cover policing of the 1995 terms of s.17(3)(c)(ii) – note that a boat licensed under those terms is not thereby prohibited from contracting to hire use of a legitimate mooring for any length of time, whether from BW/CART or any private provider.

•    In respect of both, but of particular current relevance to the current efforts to control Continuous Cruisers and the intention to impose widespread mooring restriction on everyone all over the system, is the comment by Mr Justice Hildyard in respect to the relevant legislation: 

“It does not seem to me to be right that the boating public should . . . be left to rely on the say-so of the British Waterways Board.” 

BW/CART, of course, proclaim that it is - on the contrary - precisely down to them to ascertain what the boating public’s rights [if any] might be and what the statutes permit them to do. 

•    The Mann judgement [Moore v BW 2009] proved them wrong as to the construing of the Enabling Act provisions and the effect of the Transport Act 1968.

•    The Hildyard judgement proved them wrong as to the construing of the Transport Acts 1962 and 1968; the BW Acts of 1971 and 1975, and the General Canal Byelaws of 1976

•    The Appeal judgement proved them wrong in the construction of the BW Act 1983, and

•    The Appeal judgement has demonstrated, besides, that they are capable of advancing arguments as to the construction of their statutes that are in clear violation of the Rule of Law.

Bear in mind that these failures to provide correct interpretation of their laws do not arise from ignorance, or lack of talent – no-one knows the content better, if for no other reason than that they have the necessary library of relevant statutes inaccessible to the general public. They also enjoy the benefit of a full-time team of legally trained individuals, who themselves have access to outside solicitors and barristers trained and experienced in this specialist subject.

The warning I am sounding is that none of that guarantees the correctness of their assertions, as the series of my cases and some others have proven. The problem lies with their probity, given the remit handed them by their bosses.

A final note of caution is that for End of Garden moorings, the Appeal Court decision has left it open for CART to try claiming rights of trespass where they own the bed of the waterway – though, for the record, I deny that any such right exists at common law, and deny that, even if such right existed, BW/CART could ever avail themselves of it. Sadly, that whole issue was yet another of those included in my case that were set aside as being unnecessary for the court to make a finding on.

That, of course, brings us right back to the beginning, and to Stourbridge v Wheeley, and to McCarthy & Stone v London Borough of Richmond upon Thames. With no access to common law rights, they cannot pretend legally to be capable of enforcing them. They are a creature of statute bound by the express terms of their statutes – thank goodness!

- - - o o O o o - - -
 

Apart from a new record for the longest post -- what are you arguing, exactly?

 

That CART can't charge for water/sewage/rubbish and has to provide them free as a condition of the license fee?

That CART can't charge for moorings?

That CART can't apply mooring restrictions, including penalty charges for overstaying?

 

Because none of these arguments seem to stack up with the facts.

 

Or are you saying something else?

Edited April 12, 2022 by IanD

[waterworks]

For those without a home mooring ( only) the 1995 act says 

 

(ii) the applicant for the relevant consent satisfies the Board that the
vessel to which the application relates will be used bona fide for
navigation throughout the period for which the consent is valid
without remaining continuously in any one place for more than 14
days or such longer period as is reasonable in the circumstances.

 

" as is reasonable in the circumstances " refers to overstaying 14 days because of break down or other circumstances not a reduced mooring time limit. 

 

Looks to me that 14 days is the limit set by law for CC' ers to moor anywhere that is not an obstuction or breaches bylaws and there is no way for CRT to stop that ?

5 minutes ago, IanD said:

Apart from a new record for the longest post -- what are you arguing, exactly?

 

That CART can't charge for water/sewage/rubbish and has to provide them free as a condition of the license fee?

That CART can't charge for moorings?

That CART can't apply mooring restrictions, including penalty charges for overstaying?

 

Because none of these arguments seem to stack up with the facts.

 

Or are you saying something else?

I'm not saying anything in this post, it's not my words. 

[IanD]

Just now, waterworks said:

For those without a home mooring ( only) the 1995 act says 

 

(ii) the applicant for the relevant consent satisfies the Board that the
vessel to which the application relates will be used bona fide for
navigation throughout the period for which the consent is valid
without remaining continuously in any one place for more than 14
days or such longer period as is reasonable in the circumstances.

 

" as is reasonable in the circumstances " refers to overstaying 14 days because of break down or other circumstances not a reduced mooring time limit. 

 

Looks to me that 14 days is the limit set by law for CC' ers to moor anywhere that is not an obstuction or breaches bylaws and there is no way for CRT to stop that ?

 

So it that's the case, how do 24 hour / 48 hour / 7 day moorings work? They're all over the system, are you saying that they're illegal? How about Llangollen? (£6 per night) How about the pre-booked VMs in London? (cost?)

[beerbeerbeerbeerbeer]

26 minutes ago, IanD said:

 

So it that's the case, how do 24 hour / 48 hour / 7 day moorings work? They're all over the system, are you saying that they're illegal? How about Llangollen? (£6 per night) How about the pre-booked VMs in London? (cost?)

Now you understand 👍

 

There is only the 14 day rule. 
Any other notice on time limit can only ever be advisory, or a request. 
Something I posted earlier in response to Blackrose. 


I am not promoting the idea to over stay on short term moorings, I think it’s good manners to move on and share the busy spots. Others may argue that. 


CRT are popping up these short term moorings where they may not be considered necessary. 
 

As I’ve said before my big annoyance is the Shroppie and the Middlewhich arm where they have 48hr signs in quiet and rarely used areas. But it doesn’t seem to bother anyone, nobody complains. 
 

Plant enough signs and people begin to think it’s law. 

 

Edited April 12, 2022 by Goliath

[IanD]

12 minutes ago, Goliath said:

Now you understand 👍

 

There is only the 14 day rule. 
Any other notice on time limit can only ever be advisory, or a request. 
Something I posted earlier in response to Blackrose. 


I am not promoting the idea to over stay on short term moorings, I think it’s good manners to move on and share the busy spots. Others may argue that. 


CRT are popping up these short term moorings where they may not be considered necessary. 
 

As I’ve said before my big annoyance is the Shroppie and the Middlewhich arm where they have 48hr signs in quiet and rarely used areas. But it doesn’t seem to bother anyone, nobody complains. 
 

Plant enough signs and people begin to think it’s law. 

 

Are you really sure about that? I mean legally speaking, not just your opinion?

 

So when I go to Llangollen next month, I don't have to pay the £6 per night and can stay longer than 48 hours? And all those times I've moved on from short-term moorings, I didn't need to?

 

Brilliant, if you're right 🙂

[ditchcrawler]

5 minutes ago, IanD said:

Are you really sure about that? I mean legally speaking, not just your opinion?

 

So when I go to Llangollen next month, I don't have to pay the £6 per night and can stay longer than 48 hours? And all those times I've moved on from short-term moorings, I didn't need to?

 

Brilliant, if you're right 🙂

All you have to do if they send you the bill is refuse to pay it, then you will end up in court perhaps and the judge will decide if you have to pay or not.

 

[Barneyp]

13 minutes ago, IanD said:

Are you really sure about that? I mean legally speaking, not just your opinion?

 

So when I go to Llangollen next month, I don't have to pay the £6 per night and can stay longer than 48 hours? And all those times I've moved on from short-term moorings, I didn't need to?

 

Brilliant, if you're right 🙂

I think it's true that the legal limit on mooring times is 14 days, anything less is a request.

However, CRT can charge for additional services that they choose to provide on their property (i.e. the towpath,) so they can charge for mooring if they have provided rings/bollards ( maybe even armco).

 

Most of waterworks' massive post refers to EOG moorings so is largely irrelevant.

Edited April 12, 2022 by Barneyp
Spelling

[beerbeerbeerbeerbeer]

34 minutes ago, IanD said:

Are you really sure about that? I mean legally speaking, not just your opinion?

 

So when I go to Llangollen next month, I don't have to pay the £6 per night and can stay longer than 48 hours? And all those times I've moved on from short-term moorings, I didn't need to?

 

Brilliant, if you're right 🙂

I’m not that brave to take them to court, or have enough money.

Which is why CRT often get away with some dodgy stuff.

 

I once met Nigel Moore and I asked him about the 14 day rule.

And he told me what I’ve told you. 
So on that grounds yes I am very sure.

 

There are plenty of signs that make perfect sense to move on after 48hrs, but it’s not law.

So it would follow wouldn’t it, that CRT can’t make demands for payment to ‘over stay’?

 

 

 

Edited April 12, 2022 by Goliath

[GUMPY]

46 minutes ago, Goliath said:

There is only the 14 day rule. 

And taking the letter of the law at face value  those with home moorings have no right to stop for any period of time except at  their home moorings

[beerbeerbeerbeerbeer]

1 minute ago, Loddon said:

And taking the letter of the law at face value  those with home moorings have no right to stop for any period of time except at  their home moorings

unlucky eh

[magnetman]

CRT is basically pointless. People hate them because of lack of maintenance. Others hate them because they overstep the mark on their legal powers. Basically nobody wants them. 

 

Maybe a real privatisation would be sensible if this current setup is so terrible. 

 

Let the peak forest and macc die a death and the K&A can silt up. Just keep the popular bits and get some money in from boaters. 

 

 

 

[waterworks]

2 hours ago, IanD said:

Are you really sure about that? I mean legally speaking, not just your opinion?

 

So when I go to Llangollen next month, I don't have to pay the £6 per night and can stay longer than 48 hours? And all those times I've moved on from short-term moorings, I didn't need to?

 

Brilliant, if you're right 🙂

What do you think CRT will do if you don't, how do you think they will collect the £25 ?

[IanD]

12 hours ago, waterworks said:

What do you think CRT will do if you don't, how do you think they will collect the £25 ?

I didn't mention the £25, I was simply referring to all the "sub-14-day" moorings across the system.

 

Given your aggressive anti-CART attitude on this issue, I'm going to ask you the same question I asked Goliath (which I note he's refused to answer...) -- are you a member or supporter of the NBTA?

 

Before you say "it's none of your business", it's normal to ask if anyone taking part in a discussion and putting strong views forward has any skin in the game -- like a discussion on racism where somebody tries to hide the fact that their idea of a good time is going out with other fine upstanding similarly-minded fellows in white pointy hoods, or one on lockdown where somebody against it tries to hide the fact that they went to lots of illegal parties... 😉

 

[for clarity, I'm not suggesting that NBTA members are racists or lockdown rulebreakers...]

Edited April 13, 2022 by IanD

[beerbeerbeerbeerbeer]

26 minutes ago, IanD said:

Given your aggressive anti-CART attitude on this issue, I'm going to ask you the same question I asked Goliath (which I note he's refused to answer...) -- are you a member or supporter of the NBTA?

hang on there!

 

 

I’ve never refused to answer that question. 
and I have in fact volunteered that answer, 

Yes I am a supporter of the NBTA. 
Have been for been for nearly 10 year. 

 

 

[IanD]

5 minutes ago, Goliath said:

hang on there!

 

I’ve never refused to answer that question. 
and I have in fact volunteered that answer, 

Yes I am a supporter of the NBTA. 
Have been for been for nearly 10 year. 

 

 

Thank you for being honest -- I did ask a few posts back (-17 hours) and you didn't answer, so maybe you just missed that... 😉

 

Now let's see what Waterworks says... 🙂

Edited April 13, 2022 by IanD

[beerbeerbeerbeerbeer]

I’m not sure it matters. 
 

I can’t play today, I’ve too many got things to do. 

May be later. 
 

[Arthur Marshall]

If it's of any interest, the back of my ticket from Llangollen says "charges made under the provisions of s.43 of the Transport Act 1962". And rhat failure to display incurs a £60 mooring fee.

Should anyone be daft enough to take this to court, I have no doubt that, for a variety of reasons, judgement would be in favour of CRT. Should it not be, it would mean that all their linear towpath moorings would disappear overnight. Which, I suspect, might not be regarded as a satisfactory outcome.

[beerbeerbeerbeerbeer]

42 minutes ago, Arthur Marshall said:

, it would mean that all their linear towpath moorings would disappear overnight. Which, I suspect, might not be regarded as a satisfactory outcome.

If you’ve been having to queue at the top of Bosley Locks recently it might be a success if those moorings were removed?

 

that’s a kind of wishful thinking by the way

but it certainly would help if they weren’t there

[waterworks]

8 hours ago, IanD said:

I didn't mention the £25, I was simply referring to all the "sub-14-day" moorings across the system.

 

Given your aggressive anti-CART attitude on this issue, I'm going to ask you the same question I asked Goliath (which I note he's refused to answer...) -- are you a member or supporter of the NBTA?

 

Before you say "it's none of your business", it's normal to ask if anyone taking part in a discussion and putting strong views forward has any skin in the game -- like a discussion on racism where somebody tries to hide the fact that their idea of a good time is going out with other fine upstanding similarly-minded fellows in white pointy hoods, or one on lockdown where somebody against it tries to hide the fact that they went to lots of illegal parties... 😉

 

[for clarity, I'm not suggesting that NBTA members are racists or lockdown rulebreakers...]

No im not a member of the NBTA or any boaters organisation.