Continuous cruising case - liveaboard homes at risk

[stewart&jenny]

Fascinating thread .... kept me awake! Nice deviations, lot's of waffle. Now then ........

 

What I would like to know is this. While continuous cruising is allowed in the travelling season, what happens when we have "stoppages"? Would I be forced to pay some sort of stop-over fee?

 

I happen to feel a slight amount of sympathy for Mr Davis (such a long thread, have I remembered the name correctly?). Albeit, I have nothing to go on but I would imagine he feels a bit miffed! Circumstances prevail, sometimes life has a way of hitting back below the belt.

 

We are going off on our first serious attempt at CC - hopefully going sufficiently fast around the system to prevent any suggestion of standing still! I did have it in mind not to go for a 'Winter Mooring' as it seems so blasted expensive for what you get but now I reckon I'll save the pennies and .... hang on a minute, aren't we in the middle of a "Global Warming"? No Winter! No stoppages! rofl

[Djuwenda]

what rubbish, BW will not render anyone homeless who complies with their legal obligations as laid out in the license terms and conditions.~if you chooose to ignore the rules then you will render yourself homeless. TAKE RESPONSILITY FOR YOUR OWN ACTIONS. What they are seeking to do is to prevent anyone from illegally taking up a pemanent mooring spot to which they are not entitled. Boater or not you have to pay your way in life and just because it does not suit you to pay for amooring does not mean that you can choose to ignore the law.

 

 

This thread really did not neet to become so protracted.

page 1 post number 5 and its pretty much summed up.

 

I'd just add to this that BW should not be confused with a housing association.

 

Buy a licence, comply with its conditions- job done.

[Chris Pink]

Many of the recent posts are getting away from what this thread was about - paying your way.

 

In this society, everyone has a duty to pay for all services, whether or not they use them. This is done through income tax, VAT, Council Tax etc. Whether you can afford to pay is completely irrelevant. If you can't afford it, you will be entitled to relevant concessions and/or state benefits, which will cover some or all of them.

 

Boaters have to pay a licence fee, and (unless they move around all the time) must have a home mooring, which they pay for (unless they have a good friend).

 

You can't legally opt out of these costs, and why should you? If you do, it's unfair on the majority (of everyone, not just boaters) who contribute to the British economy. They may not want to contribute, but democracy is like that. The majority determine the rules that apply to all of us.

 

Back to boating - I have no problem with people who don't pay a mooring fee. All I ask is simple - they move round the canal system, or much of it, every few days. Moving up and down a short stretch of canal is bucking the system, and is patently unaccepatable.

 

To quote the meerkat - simples!

 

What trite crap! Ending with a quote from an advert. Sheesh.

 

This thread is about a court judgement that at no point mentions money. It was hijacked by a meaningless and child like simplistic political argument "as if government mattered".

 

Whatever the implication of the judgement for mr Davies and others let's not turn this topic into a Daily Mail editorial.

[deletedaccount]

Just realised it was decided in county court and sets no precedents whatsoever.

[Smelly]

It doesn't set any precedent but it poses an interpretation that moves away from BW's objective guidelines into a subjective one; are you living there are are you cruising past? That is very dangerous and although not binding is likely to be persuasive... It sets a hurdle which in my view will be a high one.

 

Mr Davies deserves substantial antipathy for delivering such a decision to the cants of people who may not have chosen to so deliberately flout the requirements but find themselves in a predicament which it becomes ever more compelling to get free of. Sorry for bellicosity but the other interpretation was not so "family friendly"...

 

let's not turn this topic into a Daily Mail editorial.

 

Yup!

Edited April 7, 2011 by Smelly

[Tiny]

I think there's a bit of a flaw in your thinking.

 

If we were all really honest, its hard not to admit that the UK is actually a sham democracy - the will of the people means absolutely SFA.

 

I'll drink to that!

[Smelly]

Correct me if I'm wrong, but does this mean the much reviled Dave Mayall is now entirely vindicated?

 

I've given some thought to this...

 

No it doesn't, Dave would have everyone cruising a "substantial" part of the system whereas Mr Davies was moving a couple of miles every fortnight or so. There is still a lot of room for manouvre.

 

I think it right to say however that my decision is not to be taken as fully endorsing the board’s guidance. It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)©(ii). What is clear to me is that the defendant who is clearly living on the boat cannot successfully claim that he is using it “bona fide for navigation” by moving it every so often up and down a short stretch of canal.

 

How short is "short" is yet to be seen...

[Wiggins]

Banjo is cool

[Nine of Hearts]

It doesn't set any precedent but it poses an interpretation that moves away from BW's objective guidelines into a subjective one; are you living there are are you cruising past? That is very dangerous and although not binding is likely to be persuasive... It sets a hurdle which in my view will be a high one.

 

But then, you are a notorious short-arse.

 

So what you're saying is, although it hasn't set a precedent, it sort of has. It wouldn't take much to try further test cases where you'd done a bit of homework on the magistrate's sympathies (previous cases and what-not) to get the bar raised by inches. Chiz chiz. Let's hope such organization is beyond them (says he from comfort of home mooring).

 

If we were all really honest, its hard not to admit that the UK is actually a sham democracy - the will of the people means absolutely SFA.

 

And a good thing, too. That's why we still don't have the death penalty though the majority want it. Most people only consider it a Good Thing to go with the majority when their view coincides with it. How many people in this country mess about on boats? If we had a referendum BW might not even be a charidee, it could cease to exist altogether. What is the most popular of anything, and what is the best? They're rarely the same. Here's to benign dictatorship. By the people, of course.

[Smelly]

But then, you are a notorious short-arse.

 

 

Says you!

 

So what you're saying is, although it hasn't set a precedent, it sort of has. It wouldn't take much to try further test cases where you'd done a bit of homework on the magistrate's sympathies (previous cases and what-not) to get the bar raised by inches. Chiz chiz. Let's hope such organization is beyond them (says he from comfort of home mooring).

 

 

"Precedent" is a very specific term... no it hasn't! What it has done is set down a very well reasoned decision that other Courts would, IMO be loathe to deviate from unless someone can come up with a better, reasoned, interpretation argument.

 

The bugger is getting the cases to Court... It depends on BW chasing the people who are willing to shout or certain national orgs deciding to fall out with BW which in my experience they are loathe to do.

 

Fancy a pint whis w'end?

[canaldrifter]

we still don't have the death penalty though the majority want it.

 

Can you quote a source for that interesting news?

 

Tone

[Nine of Hearts]

Fancy a pint whis w'end?

 

Would be very nice - would have to be Sunday, though, as I have bairns in tow and I don't see them often enough to consign them to sitting outside with pop and crisps...

 

To keep this on-topic, am I likely to lose my licence if I just go to the pub and back?

[Steilsteven]

I find this whole subject very sad indeed and an example of what has become of peoples attitudes in this country.

 

It seems that unless there is a law in place to make people comply with anything, then they won't. Like dropping litter for example, you know you shouldn't do it.

 

Everyone knows what was intended when the c.c. guidlines were introduced and it wasn't to force you into journies of hundreds of miles.

 

It also wasn't intended that its primary use would be as cheap accomodation but, if you're sensible, this is achievable without any hassle.

 

In my life experience, and I have plenty of that, if you don't draw attention to yourself it tends to be easier. If, on the other hand, you take an arrogant stance then all you do is make enemies. The ultimate outcome of all this will be that BW, having had to spend an awfull lot of money which would have been better spent elsewhere, will be forced to bring in draconian rules, backed up by Act of Parliament, that will affect us all.

 

Keith

[Smelly]

 

To keep this on-topic, am I likely to lose my licence if I just go to the pub and back?

 

Not while you're...

 

a) paying your mpooring fees &

buying the protector of all things good a beer (that'll be me then)...

 

It seems that unless there is a law in place to make people comply with anything, then they won't. Like dropping litter for example, you know you shouldn't do it.

 

Everyone knows what was intended when the c.c. guidlines were introduced and it wasn't to force you into journies of hundreds of miles.

 

It also wasn't intended that its primary use would be as cheap accomodation but, if you're sensible, this is achievable without any hassle.

 

In my life experience, and I have plenty of that, if you don't draw attention to yourself it tends to be easier. If, on the other hand, you take an arrogant stance then all you do is make enemies. The ultimate outcome of all this will be that BW, having had to spend an awfull lot of money which would have been better spent elsewhere, will be forced to bring in draconian rules, backed up by Act of Parliament, that will affect us all.

 

Keith

 

What was intended and how it has been carried forward into practice are two separate creatures; mix that with the Darwinian tendency to take best advantage of a situation and we end up where we are... Call it Human Nature.

 

For all we may curse an Act, it'll take Parliamentary time that is, and is likely to stay, hard pressed... I can see this situation being decided in the Courts rather than the House.

[Nine of Hearts]

Can you quote a source for that interesting news?

 

Tone

 

You want facts to back up hyperbole? How very dare you!

 

Ok, I looked into this piece of received wisdom and there's been a number of opinion polls, I was wrong in 2006 (apparently - and for the first time since 1940) but am right again now. Although a poll of Sun readers apparently returned 99% in favour. This is my amazed face.

[Steilsteven]

Not while you're...

 

a) paying your mpooring fees &

buying the protector of all things good a beer (that'll be me then)...

 

 

 

What was intended and how it has been carried forward into practice are two separate creatures; mix that with the Darwinian tendency to take best advantage of a situation and we end up where we are... Call it Human Nature.

 

For all we may curse an Act, it'll take Parliamentary time that is, and is likely to stay, hard pressed... I can see this situation being decided in the Courts rather than the House.

 

But it will prove not to have been taking the best advantage of a situation, in the long run....Call it coming back to bite you on the arse.

 

Keith

[Chris Pink]

 

 

 

 

In my life experience, and I have plenty of that, if you don't draw attention to yourself it tends to be easier. If, on the other hand, you take an arrogant stance then all you do is make enemies.

 

Therein lies the nub of this issue, it was always an unnecessary fight better resolved by keeping his head down. He picked this fight through arrogance and many people will reap the rewards. mr Davies' popularity has not been enhanced at all by his stupid actions.

[Minos]

From the judgement:

"in general terms section17 of the Act required all vessels used on the waterways either to have a permanent mooring site or to be used bona fide for navigation throughout the period of the licence. This was achieved by making the issue of licences conditional on the Board being satisfied either that the vessel would have a permanent mooring site or that it would be used bona fide for navigation throughout the period of the licence."

 

From the text of the Act, subsection (3) © (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."

 

I'd not looked closely at this before, but in legal terms it is explicit: the British Waterways Board are empowered by the Act to judge for themselves what constitutes 'bona fide' navigation and what doesn't. Not only that, but by using the legal term 'bona fide' in the Act, the intention of the person is more important than their actions. This is explained in para. 13 of the judgement. In effect, it means that BW are entitled to refuse a licence because they don't like the look of your application - and it is up to you to prove that they are being unreasonable.

 

On the detail:

From Bouvier, with referencing removed:

The law requires all persons in their transactions to act with good faith and a contract where the parties have not acted bona fide is void at the pleasure of the innocent party. If a contract be made with good faith, subsequent fraudulent acts will not vitiate it; although such acts may raise a presumption of antecedent fraud, and thus become a means of proving the want of good faith in making the contract. In the civil law these actions are called (actiones) bonae fidei, in which the judge has a. more unrestrained power (liberior potestas) of estimating how much one person ought to give to or do, for another; whereas, those actions are said to be stricti juris, in which the power of the judge is confined to the agreement of the parties.

(And before anyone complains that Bouvier is an American source, the US and the UK share a lot of common law, and this is one principle shared by both.)

This definition of 'bona fide' is the basis of the defence claim that 'The defendant’s deliberate compliance with the law could not deprive his actions of good faith.' It is also the justification for BW's actions.

 

Anyway, back to the point. What this means is that the BW authority is legally entitled to judge for themselves whether they think that an applicant is acting "in good faith." Given his misconduct described in para. 6 of the judgement, he clearly gave them every reason to believe he wasn't - not least because of his navigational, professional and social ties to such a small geographical area. They also concluded that he did not act 'in good faith' in para. 10 of the judgement.

 

BW chose to concentrate on the definition of the word 'navigation' - and they are empowered Parliament to use that emphasis if they so choose.

 

The bit that I am really interested in is this part of para. 15 of the judgement:

"It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)©(ii)." In effect, the Judge acknowledges that genuine continuous-cruisers may very easily fail to adhere to the letter of BW's guidelines but still adhere to its spirit in good faith - bona fide.

 

Put it all together and it seems to me that the implication is that while the movement of your boat on the water matters, what you do on land seems to matter more.

[neil]

From the judgement:

"in general terms section17 of the Act required all vessels used on the waterways either to have a permanent mooring site or to be used bona fide for navigation throughout the period of the licence. This was achieved by making the issue of licences conditional on the Board being satisfied either that the vessel would have a permanent mooring site or that it would be used bona fide for navigation throughout the period of the licence."

 

From the text of the Act, subsection (3) © (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."

 

I'd not looked closely at this before, but in legal terms it is explicit: the British Waterways Board are empowered by the Act to judge for themselves what constitutes 'bona fide' navigation and what doesn't. Not only that, but by using the legal term 'bona fide' in the Act, the intention of the person is more important than their actions. This is explained in para. 13 of the judgement. In effect, it means that BW are entitled to refuse a licence because they don't like the look of your application - and it is up to you to prove that they are being unreasonable.

 

On the detail:

From Bouvier, with referencing removed:

 

(And before anyone complains that Bouvier is an American source, the US and the UK share a lot of common law, and this is one principle shared by both.)

This definition of 'bona fide' is the basis of the defence claim that 'The defendant’s deliberate compliance with the law could not deprive his actions of good faith.' It is also the justification for BW's actions.

 

Anyway, back to the point. What this means is that the BW authority is legally entitled to judge for themselves whether they think that an applicant is acting "in good faith." Given his misconduct described in para. 6 of the judgement, he clearly gave them every reason to believe he wasn't - not least because of his navigational, professional and social ties to such a small geographical area. They also concluded that he did not act 'in good faith' in para. 10 of the judgement.

 

BW chose to concentrate on the definition of the word 'navigation' - and they are empowered Parliament to use that emphasis if they so choose.

 

The bit that I am really interested in is this part of para. 15 of the judgement:

"It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under section 17(3)©(ii)." In effect, the Judge acknowledges that genuine continuous-cruisers may very easily fail to adhere to the letter of BW's guidelines but still adhere to its spirit in good faith - bona fide. Put it all together and it seems to me that the implication is that while the movement of your boat on the water matters, what you do on land seems to matter more.

 

 

MMMMmmmm

 

Well noted, Many thanks

[Josher]

The National Bargee Travellers Association? Here

 

Bradford on Avon boater faces losing home after ruling

 

8:00am Monday 11th April 2011 Wiltshire Times

 

A boater who lives between Bradford on Avon and Bath on the Kennet and Avon Canal is facing homelessness after a ruling at Bristol County Court which could also make other canal-dwellers homeless. A judge ruled on March 31 that Paul Davies has not been following the rules governing continuous cruising on the canal, and could now lose his boat.

 

Mr Davies, 46, does not have a permanent mooring and has travelled between Bradford on Avon and Bath for nearly seven years on his barge. His dispute with British Waterways is about whether his journey can be defined as “bona fide” navigation. British Waterways said it does not, and the ruling found in the organisation’s favour. Mr Davies who works with deafblind people in Bath, said: “It’s a bit confusing to me. It’s more helpful now the judge has said what bona fide isn’t, but he still hasn’t said what it is. Therefore my home is under threat, my boat is under threat, my job is under threat and my link to the local area is under threat. I’ve got homelessness and joblessness looming over me. This is all I’ve got, it’s all I’ve ever had.”

 

Mr Davies now has three months to respond to the judgement, and is considering whether to appeal. In the meantime he is searching for a permanent mooring and plans to extend his journey to Devizes. However, there is further concern that the ruling could be used to force other boaters off canals. Mr Davies said: “The ruling does only affect me and doesn’t set a precedent, but it’s obvious British Waterways will look to try and rely on this. Potentially it’s trouble for everybody else. But if I hadn’t defended I would have lost my home. It’s very hurtful when people say I’m making it worse for others, I did it on behalf of other people.”

 

Nick Brown, legal officer of the National Bargee Travellers Association, said: “We are considering an appeal. Paul has spent five years in a state of constant anxiety not knowing whether his is going to lose his home or not. We want to see live-in boaters free from harassment and bullying from British Waterways, which is the case at the moment.”

 

British Waterways have welcomed the ruling. Sally Ash, head of boating, said: “The decision is a great help in bringing greater clarity to a subject which has caused much debate and difficulty within the waterways community. We very much welcome continuous cruising on our canals and rivers and are, as a result of the learned judge’s findings, refining our mooring guidance.”