1968 Transport Act duty regarding Remainder waterways

[Captain Pegg]

19 hours ago, magpie patrick said:

Thanks for the answers - as well as the obvious parts of the cruising network there are odd bits of canals such as the Swansea, Grantham and Manchester Bolton and Bury Canal and I was looking at how those might be required to be maintained - roughly, the answer seems to be that they are not. 

 

I am told that part of Lapal Tunnel is still in CRT ownership and therefore is a remainder waterway - as the section includes neither portal it is the only waterway in CRT ownership entirely underground!

Pedantry alert (again).

 

Given that Lapal Tunnel is on the Dudley No 2 Canal, which remains open in part - apparently with sections of both cruising and remainder waterway - it could be argued the entire waterway is not underground.

[Heartland]

I think that Mr Magpie should investigate the Foxyards Canal, closed in part in the 1820's there is still a section of underground canal. It is not a remainder canal therefore, but still one that is similar to the Lapal Canal !

[Waterway2go]

On 04/11/2022 at 14:39, magpie patrick said:

Just looking for a steer if anyone actually knows...

 

The 1968 Transport Act categorised waterways as commercial, Cruiseway or Remainder (section 104), it is often said (and I;ve always understood) that "the remainder" under that section are to be maintained to the minimum level possible consistent with public safety and amenity. The duties for Commercial and Cruiseway waterways are defined in section 105 of the act, but I can't find anything to say the level of maintainance required (or not required) for "the remainder"

 

Anyone got any pointers?  

 

The answer to your question is found in section 107 of the 1968 Act, under the rathr unhelpful heading "Amendments as to general duties of Board".  It reads--

 

"(2)It shall be the duty of the Board—

(a)to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it;. . ."

 

What is  unclear to me is whether this section applies to C&RT.  Generally the Act has been amended to include the words  in each relevant section" . . the Board, or as the case may be, the C&RT" but those words do not appear in the amended section 107.    This is a very old piece of legislation, amended many times in the last 50 years so it is just possible that a mistake has been made either in the drafting of amendments or in the updating of the legislation.gov.uk website.

[Ronaldo47]

Keeping up to date with legislation used to be relevant to my job. On one occasion, on checking the impact of an amendment to an Act, I found that a section that had been amended was not actually present in the on-line version, notwithstanding it had been enacted by a previous amendment some ten years earlier, and correspondence and law reports in my professional journal indicated that this was not an isolated occurrence. It used to be the case that it was only the Queen's Printers' version that was authentic, and at least one case was thrown out of court due to a party relying on the defective  on-line version of a statute, receiving a rebuke  from the Judge for having done so.

 

A legal precedent set a couple of decades  ago (Pepper vs. Hart) established that it is possible to refer to statements made in parliament during the passage of a bill to resolve ambiguities in the wording of legislation, but not to change their meaning when the wording is clear.  But I retired more than  a decade ago, and the law is constantly changing, so I don't know what the present situation is.

Edited November 8, 2022 by Ronaldo47
typos

[David Mack]

1 hour ago, Waterway2go said:

(2)It shall be the duty of the Board—

(a)to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it;. . ."

And interesting to note that the waterways covered in this section are described as being not commercial or cruising waterways. The term "remainder waterways" does not appear in the Act, even though it has since become a convenient description.

It also follows that if such a waterway is eliminated or disposed of it is then no longer an "inland waterway comprised in their undertaking" and as such is no longer covered by these provisions of the Act. And if a waterway which was not previously part of BW or CRT has been acquired (e.g. Rochdale, Droitwich, Liverpool Link) then it automatically becomes a remainder waterway.

Edited November 9, 2022 by David Mack

[Tim Lewis]

From the London Canal Museum Archive a 1968 British Waterways Board Map showing their waterways and their classification

 

http://timlewis.org.uk/webspace/Waterways Of The British Waterways Board December 1968.pdf

 

[Allan(nb Albert)]

10 hours ago, Waterway2go said:

 

The answer to your question is found in section 107 of the 1968 Act, under the rathr unhelpful heading "Amendments as to general duties of Board".  It reads--

 

"(2)It shall be the duty of the Board—

(a)to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it;. . ."

 

What is  unclear to me is whether this section applies to C&RT.  Generally the Act has been amended to include the words  in each relevant section" . . the Board, or as the case may be, the C&RT" but those words do not appear in the amended section 107.    This is a very old piece of legislation, amended many times in the last 50 years so it is just possible that a mistake has been made either in the drafting of amendments or in the updating of the legislation.gov.uk website.

The British Waterways Board (Transfer of Functions) Order 2012 excludes section 107 in its entirety.

 

I assume this is because CRT's charitable objects compel it to maintain all its waterways for navigation.

 

Quote

 

SCHEDULE 1

Enactments conferring functions transferred by article 2.

....

Transport Act 1968(14), except sections 41, 46, 48 to 52, 107, 109, 134, 135 and 137

 

 

[Tacet]

9 hours ago, David Mack said:

And interesting to note that the waterways covered in this section are described as being not commercial or cruising waterways. The term "remainder waterways" does not appear in the Act, even though it has since become a convenient description.

 

The Act does provide that inland waterways shall be divided into three classes, one of which is "the remainder".  So the class was created other than by pure default.

[David Mack]

3 hours ago, Tacet said:

The Act does provide that inland waterways shall be divided into three classes, one of which is "the remainder".  So the class was created other than by pure default.

Two classes were defined and the rest were 'the remainder', so remainder waterways exist by default rather than being explicitly designated. The term includes all of the non commercial/cruising inland waterways comprised in the Board's (and now CRT's) undertaking. And that includes the navigable remainder waterways we are all familiar with, and abandoned and infilled canals which BW/CRT has not yet sold off.

[Allan(nb Albert)]

13 minutes ago, David Mack said:

Two classes were defined and the rest were 'the remainder', so remainder waterways exist by default rather than being explicitly designated. The term includes all of the non commercial/cruising inland waterways comprised in the Board's (and now CRT's) undertaking. And that includes the navigable remainder waterways we are all familiar with, and abandoned and infilled canals which BW/CRT has not yet sold off.

I have just searched for the word "remainder" in the original Act. It occurs five times not only one instance is relevant -

 

Quote

 

104 Classification of the Board's waterways

 

(1)For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertaking of the Waterways Board shall be divided into—

(a)the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Pant of this Act referred to as " the commercial waterways ") to be principally available for the commercial carriage of freight;

(b)the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as " the cruising waterways ") to be principally available for cruising, fishing and other recreational purposes; and

(c)the remainder.

 

 

It seems that three classes were defined with the term "remainder waterways" inferred by (c) above.

[David Mack]

Exactly. The so called "remainder waterways" are not explicitly defined, unlike the commercial and cruising waterways which are listed, you have to infer them. And the first two categories comprised exclusively waterways which were navigable, whereas the third category includes both navigable waterways and all sorts of odd bits of isolated pond or infilled channel, which were once inland waterways, but only for as long as BW/CRT haven't sold them off. And over the years BW did sell off bits of former canal, which since being sold are no longer remainder waterways.

[Allan(nb Albert)]

31 minutes ago, David Mack said:

Exactly. The so called "remainder waterways" are not explicitly defined, unlike the commercial and cruising waterways which are listed, you have to infer them. And the first two categories comprised exclusively waterways which were navigable, whereas the third category includes both navigable waterways and all sorts of odd bits of isolated pond or infilled channel, which were once inland waterways, but only for as long as BW/CRT haven't sold them off. And over the years BW did sell off bits of former canal, which since being sold are no longer remainder waterways.

Since 2012, all BW's waterways in England & Wales were transferred to the Waterways Infrastructure Trust by The British Waterways Transfer Scheme Order 2012. 

 

In theory, this prevents CRT (as trustee) from selling off  as BW has done in the past.

 

In practice, government can vary the order such that Waterway Infrastructure Trust property becomes CRT property. Indeed they have already done this in a minor way.

 

[IanD]

13 minutes ago, Allan(nb Albert) said:

Since 2012, all BW's waterways in England & Wales were transferred to the Waterways Infrastructure Trust by The British Waterways Transfer Scheme Order 2012. 

 

In theory, this prevents CRT (as trustee) from selling off  as BW has done in the past.

 

In practice, government can vary the order such that Waterway Infrastructure Trust property becomes CRT property. Indeed they have already done this in a minor way.

 

 

If the Waterways Infrastructure Trust owns all the canals, what happens if (for example) CART decide they want to close the HNC or Rochdale (or any "remainder" canal) to save money?

 

How can they close something they don't own? Can they just refuse to do any maintenance or provide any staff and let the canal go back to rack and ruin?

 

For safety reasons it seems that they'd have to dewater the canal to prevent flooding -- can they do this? What about the fact that funding to keep them open is partly supplied by the councils?

 

I'm genuinely curious to know whether suggestions that CART could just decide to close such canals are realistic or doom-saying... 😉

Edited November 9, 2022 by IanD

[Tacet]

4 hours ago, David Mack said:

Two classes were defined and the rest were 'the remainder', so remainder waterways exist by default rather than being explicitly designated. The term includes all of the non commercial/cruising inland waterways comprised in the Board's (and now CRT's) undertaking. And that includes the navigable remainder waterways we are all familiar with, and abandoned and infilled canals which BW/CRT has not yet sold off.

Three classes are defined; cruising, commercial and remainder  The waterways within two of the classes are specified in a Schedule whilst the waterways within the remainder class can only be identified by deduction.

[Allan(nb Albert)]

2 hours ago, IanD said:

 

1. If the Waterways Infrastructure Trust owns all the canals, what happens if (for example) CART decide they want to close the HNC or Rochdale (or any "remainder" canal) to save money?
2. How can they close something they don't own? Can they just refuse to do any maintenance or provide any staff and let the canal go back to rack and ruin?
3. For safety reasons it seems that they'd have to dewater the canal to prevent flooding -- can they do this? What about the fact that funding to keep them open is partly supplied by the councils?
4. I'm genuinely curious to know whether suggestions that CART could just decide to close such canals are realistic or doom-saying... 😉

By saying the Waterways Infrastructure Trust owns all the canals, I was trying to simplify an arrangement that is quite complicated. On reflection it would have been better to say that BW's waterways in England and Wales have been put in trust for the nation. CRT does not own the but is sole trustee of The Waterways Infrastructure Trust Settlement. Government can replace CRT as sole trustees or appoint other trustees. This is in addition to governments powers under the grant agreement.

Q1&2

As most understand CRT has a statutory duty to maintain Commercial and cruising waterways suitable for craft of certain dimensions. Its statutory duty in respect of remainder waterways was remover by the 2012 Transfer Order.

As a charity CRT has a charitable object to -
 

Quote

2. TO PRESERVE, PROTECT, OPERATE AND MANAGE INLAND WATERWAYS FOR PUBLIC BENEFIT:
    2.1.1 FOR NAVIGATION;

Whilst this gives better protection under CRT compared with BW in respect to remainder waterways, one could visualise waterways being run down to the extent that they are only navigable by canoe or SUP with portage round locks. However, CRT would still be within its 2.1.1 charitable object.

Closing is a different matter as the waterway is no longer available for navigation.  What might happen is that charitable objects are changed to cope or a dispensation gained from the Charity Commission.

Q3 Don't quite know what is being suggested here. Closure to prevent possible breach but not having funds to rectify?

 

Q4 Not really a question but I understand that CRT took legal advice about a year ago -
 

Quote

22/006 TRUSTEE FIDUCIARY DUTIES (TRUST 590)
The legal advice from Bates Wells (Redacted) on Board and Trustee decision making in a reduced funding scenario was received and discussed by the Board. The Board thanked TD for coordinating the advice

.

 

 

 

[David Mack]

3 hours ago, Allan(nb Albert) said:

Since 2012, all BW's waterways in England & Wales were transferred to the Waterways Infrastructure Trust by The British Waterways Transfer Scheme Order 2012. 

Is there a complete list of all the waterways transferred? The 1968 Act is notable in only listing the commercial and cruising waterways.

[Allan(nb Albert)]

6 minutes ago, David Mack said:

Is there a complete list of all the waterways transferred? The 1968 Act is notable in only listing the commercial and cruising waterways.

No - The Transfer scheme did not define by waterway -

 

Quote

Property to be held on charitable trust 
1. All land and infrastructure which is necessary to-
(a) inland navigation on a waterway; or
(b) public access to, and use of, a towpath.
2. Paragraph 1 includes, in particular-
(a) the navigation channel of a waterway extending to the rear of the towpath waterway wall
and the rear of the offside waterway wall, where one exists.
(b) towpath (including any bridge over which it passes) extending to either-
(i) the rear of the boundary hedge or other boundary structure; or
(ii) in the absence of a defined boundary, to a width of three metres measured from the
edge of the navigation channel;
(c) locks including side ponds, by-weirs, spillways and adjoining land required to ensure safe
operation of the lock;
(d) reservoir feeders to the rear of the feeder wall on both sides;
(e) reservoirs to the maximum high water mark, head banks, dams and spillways;
(f) other structures, equipment or features necessary to the operation of the waterway
including, in particular-
(i) weirs,
(ii) sluices,
(iii) culverts,
(iv) drainage channels,
(v) winding holes,
(vi) pumping stations,
(vii) boat lifts; and
(viii) land or structures supporting any such structures, equipment or features.
(g) access roads and paths including rights of access and similar easements;
(h) land and structures necessary for the support or protection of the navigation channel or
towpath including in particularIO
(i) embankments,
(ii) cuttings,
(iii) retaining walls,
(iv) tunnels, and
(v) aqueducts.
3. Land or infrastructure is not excluded from paragraph 1 by reason of it being derelict or
disused, if there is a realistic prospect of its restoration in the long term.

I draw attention to 3 above.

Also note that the above definition was later alter to exclude the off-side waterway wall.

[Heartland]

There was a plan to take over or merge other waterways with the CRT such as those controlled by the Environment Agency. Might wording of the 2012 Act reflect that intention?