BW vs Davies

[ymu]

What, that I'm asking people to justify their nonsensical positions?

 

Any chance of that quote?

[Smelly]

What, that I'm asking people to justify their nonsensical positions?

 

Any chance of that quote?

 

I think what Blodger is trying to say is that Parliament only saw the need to deal with CCers and left us moorers to BW's whim.

[paulmorgan]

Hi Paul

 

It is very good of you to offer to undertake this.

 

Assuming that your lawyer handling the case agrees that the press release is incorrect, can you find out why no action was take to remedy the situation when it was brought to the attention of Kelly Radley (Head of Customer Relations) on the 6th April. Indeed, the response from Ms Radley indicates a complete reluctance on the part of BW to address the issue.

 

Hi Allan,

Just an update. Haven't been able to catch up with the lawyer involved yet as either I've been ooto or she has. As soon as I do speak with her I will reply back.

 

I'm just catching up with this thread (from page 6) so may have more to add later.

 

All the best,

Paul

[ymu]

I think what Blodger is trying to say is that Parliament only saw the need to deal with CCers and left us moorers to BW's whim.

I think he's been trying to say that I'm only taking this position because I ignore the rules. He claims to be basing this on my own words, so I'd like him to quote me on it.

 

And it does not matter whether the Act dealt with moorers or not. The question is whether BW intended the 14 day rule for moorers to allow bridge-hopping. I can't even see how it's a plausible claim, let alone any evidence for it.

[blodger]

I think he's been trying to say that I'm only taking this position because I ignore the rules. He claims to be basing this on my own words, so I'd like him to quote me on it.

 

And it does not matter whether the Act dealt with moorers or not. The question is whether BW intended the 14 day rule for moorers to allow bridge-hopping. I can't even see how it's a plausible claim, let alone any evidence for it.

 

From Post 545:-

 

The "14 days in one place" rule is a rule laid down in the British Waterways Act 1995, which defines two classes of licence. In that Act, it is explicit that the 14 day rule applies ONLY to those without a home mooring.

 

 

Quote

 

either—

 

(i)the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or

 

(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.

 

 

 

It may appear odd that the 14 day rule wasn't applied to boaters with a home mooring, but the simple fact is that this is what Parliament enacted.

[ymu]

I don't know why you're bothering to repeat that when I have already pointed out that it has nothing to do with the 1995 Act.

 

Still not man enough to either back up or retract your lies?

[Sir Nibble]

And it does not matter whether the Act dealt with moorers or not. The question is whether BW intended the 14 day rule for moorers to allow bridge-hopping. I can't even see how it's a plausible claim, let alone any evidence for it.

It seems that every little detail of this subject is a complete surprise to you, did you know NOTHING of the subject before wading into the debate all guns blazing?

 

The question is NOT what BW intended, nor has it ever been, nor is it relevant. The debate concerns the ramifications of a court judgement. Whatever BW intended or wanted is of no importance because, and please read this carefully... BW DO NOT MAKE THE LAW, THEY HAVE TO OPERATE WITHIN IT THE SAME AS ANYONE ELSE.

 

You suggest that all we need to do is ask BW what the rules mean and the issue is sorted. They have replied to that question and called the answer "Guidance for continuous cruisers" and the result is that those who wish to live by their own rules have turned their backs, folded their arms and said no. Which is where the whole interminable debate has stalled and why this judgement is of such interest.

 

The law is what it is, there is no "but surely" or "that can't be what was intended" there is just the written law enacted by parliament.

[alan_fincher]

The question is NOT what BW intended, nor has it ever been, nor is it relevant. The debate concerns the ramifications of a court judgement. Whatever BW intended or wanted is of no importance because, and please read this carefully... BW DO NOT MAKE THE LAW, THEY HAVE TO OPERATE WITHIN IT THE SAME AS ANYONE ELSE.

 

You suggest that all we need to do is ask BW what the rules mean and the issue is sorted. They have replied to that question and called the answer "Guidance for continuous cruisers" and the result is that those who wish to live by their own rules have turned their backs, folded their arms and said no. Which is where the whole interminable debate has stalled and why this judgement is of such interest.

 

The law is what it is, there is no "but surely" or "that can't be what was intended" there is just the written law enacted by parliament.

It is hard for me to see how there can be a shred of debate about any of these three paragraphs.

 

It seems impossible to argue that any of what you have said is not fully the case.

 

People can argue all day long about whether a law is a "good law" or a "bad law", or whether it is flawed, and has not produced the intended result, but none of that in any way changes anything.

 

We simply have the laws we have, until parliament changes them.

 

Not that I'm expecting you to be listened to!

[mayalld]

I've looked now. There's no authority to make regulations around S43 TA 62

 

End!

 

 

I apologise for a terminological inexactitude.

 

I missed the fact that "Regulations" has a very specific meaning.

 

No, BW cannot make Regulations, they can impose "Terms and Conditions" though!

[Allan(nb Albert)]

I apologise for a terminological inexactitude.

 

I missed the fact that "Regulations" has a very specific meaning.

 

No, BW cannot make Regulations, they can impose "Terms and Conditions" though!

 

Herein lies a problem.

 

Part of the NABO complaint made in 2009 was

 

'British Waterways may not legally deny or withhold a licence if a boater breaches the continuous cruising guidelines which do not have the force of law but are stated as a requirement in the Terms and Conditions'.

 

My understanding is that if you declare during licence application that you do not have a home mooring you have made an undertaking to cruise in a manner defined in BW guidance in addition to the 1995 Act. For example, the vague terms 'progressive journey' and 'significant part of the system' are not mentioned in the act and seem to have been invented by BW in its guidance.

 

Whilst it is clearly stated that the guidelines do not have the force of law, following changes to BW's T&C's they have become a 'must'.

[mayalld]

Herein lies a problem.

 

Part of the NABO complaint made in 2009 was

 

'British Waterways may not legally deny or withhold a licence if a boater breaches the continuous cruising guidelines which do not have the force of law but are stated as a requirement in the Terms and Conditions'.

 

My understanding is that if you declare during licence application that you do not have a home mooring you have made an undertaking to cruise in a manner defined in BW guidance in addition to the 1995 Act. For example, the vague terms 'progressive journey' and 'significant part of the system' are not mentioned in the act and seem to have been invented by BW in its guidance.

 

Whilst it is clearly stated that the guidelines do not have the force of law, following changes to BW's T&C's they have become a 'must'.

 

BW generally impose terms and conditions under s43.

 

In the specific case of the CCing guidelines, they are a guide to what the board requires in order to be "satisfied" as required by s17.

 

The guidelines simply tell you what criteria BW intend to use to decide whether you meet the legal requirements.

 

NABO was plain WRONG in its assertion.

 

BW has a right to withold a licence if a boater who has no home mooring fails to satisfy them that he will engage in Bona Fide Navigation throughout.

[Spesh]

All we need to do is ask BW to clarify the 14 day rule for casual mooring, so it's not exactly difficult to sort out.

 

I just can't work out how it is plausible that they intended to lay down different cruising rules for those with moorings. It would help to know how/when the 14 day rule for moorers came in.

 

Not that there's much point arguing the toss when all we have to do is ask BW what the rule means.

No, it is not as simple as that. I cannot understand how you can read the factual statements of legal principle that have been made previously without grasping this. The rule for moorers is laid down in a contract between BW and the person with the boat. It is a matter of interpreting that contractual term using the usual rules of contractual construction established by the courts. BW may very well have intended what you claim they did, but this does not in any way mean a court would give the words they used the intention they may claim.

 

BW clarifying their intention would make not one jot of difference becuase a contract is a two way thing. The only way they can make any difference legally is by changing the drafting of the contract. Until that happens the term will be constructed by a court in the same way as any other contract. Contractual terms are not constructed by just asking one of the parties what they actually intended it to mean. This would entirely undermine the very purpose of a contract.

 

Please don't just ignore this as you did my previous response. If you want to do some research and argue that the above misstates the relevant principles of contract law then let's have that debate, but please stop just making the same statements over and over again. Numerous people have spent significant time explaining why your statements demonstrate a fundamental misunderstanding of the issues. Ignoring those explanations and saying the same thing all the time is little more than trolling. It's preventing the discussion moving on to something worthwhile - debating alternative wordings of both the statute and the relevant licence condition which are sensible and workable would seem like one good option.

The law is what it is, there is no "but surely" or "that can't be what was intended" there is just the written law enacted by parliament.

I generally agree with all you said, but as a point of clarification it is important to recognise the distinction between the two rules. Only the CCer rule is the law enacted by parliament, the licence term is a contract between the boater and BW. Granted BW's power to impose that contract term derives from parliamentary authority, but as long as they don't exceed that authority the terms of the licence contract are something for BW to put down in writing and a boater to agree to. See above for why it's (broadly speaking) the words of the term itself and not BW's intention that matters when working out what that term means.

 

Edit - principle not principal. I'll learn this eventually.

Edited May 26, 2011 by Spesh

[Smelly]

The blasted Courts & Tribunals Service website has hung my browser... again. If anyone can tell me why it's happening there will be real beer; none of that virtual stuff! :~

 

Anyhoo, in discussing the utility of discretionary powers as we have have here, a shuftie at R(H) 3/04 which was the Commissioner's further consideration of R(H) 2/03 (Sec State for Work and Pensions vs Chiltern District Council [2003] EWCA Civ 508) & R(H)6/06 might be useful as they consider broadly analogous provisions.

 

I'm not going to re-type what I've written on the other window; it usually recovers eventually and I've a letter to finish; another slow day at the orifice... Ho hum!

[Gibbo]

The blasted Courts & Tribunals Service website has hung my browser... again. If anyone can tell me why it's happening there will be real beer; none of that virtual stuff! :~

 

Try a different browser. Some sites that crash my IE work fine in Chrome or Firefox.

[Josher]

Kennet and Avon Canal mooring rule affects boat owners BBC film report here.

[Smelly]

Try a different browser. Some sites that crash my IE work fine in Chrome or Firefox.

 

Sadly I'm at work and the gaffer has a rather strict take on software licensing...

 

Either way it's fixed now!

[Smelly]

BW generally impose terms and conditions under s43.

 

In the specific case of the CCing guidelines, they are a guide to what the board requires in order to be "satisfied" as required by s17.

 

The guidelines simply tell you what criteria BW intend to use to decide whether you meet the legal requirements.

 

NABO was plain WRONG in its assertion.

 

BW has a right to withold a licence if a boater who has no home mooring fails to satisfy them that he will engage in Bona Fide Navigation throughout.

 

We can progress this a bit (and I can use slightly less bellicose terminology to admit I may have been wrong where Spesh is concerned) and hopefully clear something up...

 

S17 poses a prospective test... "will you navigate?" "Do you mean it?" it's all about the application. in that sense intent stands proud; the interesting bit, and possibly a loophole, is where a licence is granted there's no statutory framework for that to be renewed. So, is a licence granted once, with payment every year? Or is it an annual process?

 

Obviously BW think it's annual but in the ommission of a statutory renewal process, arguably once granted the licence holds true until surrendered. Ironically there appears no power to "withdraw" a relevant consent which would reveal a hole in my thnking; that I will leave for other minds to explore.

 

Adopting a continuing licence, rather than a series of renewed licences; as would seem to be the case, any continued scrutiny would fall to act rather than intent and a greater onus would fall on the navigation rather than any intent so to do.

 

To move on if BW had the ultimate say then there is no process for the court bar a review on Wednesbury grounds whereas in my recollection HH O'Malley clearly took a closer look than simply to establish irrationality or otherwise. In light of that I wonder whether, to adopt Dave's intepretation would be to render the decision ultra vires

 

I'll have a read of the Chiltern case later and see whether it's material.

Edited May 26, 2011 by Smelly

[mayalld]

 

We can progress this a bit (and I can use slightly less bellicose terminology to admit I may have been wrong where Spesh is concerned) and hopefully clear something up...

 

S17 poses a prospective test... "will you navigate?" "Do you mean it?" it's all about the application. in that sense intent stands proud; the interesting bit, and possibly a loophole, is where a licence is granted there's no statutory framework for that to be renewed. So, is a licence granted once, with payment every year? Or is it an annual process?

 

Obviously BW think it's annual but in the ommission of a statutory renewal process, arguably once granted the licence holds true until surrendered. Ironically there appears no power to "withdraw" a relevant consent which would reveal a hole in my thnking; that I will leave for other minds to explore.

 

Adopting a continuing licence, rather than a series of renewed licences; as would seem to be the case, any continued scrutiny would fall to act rather than intent and a greater onus would fall on the navigation rather than any intent so to do.

 

To move on if BW had the ultimate say then there is no process for the court bar a review on Wednesbury grounds whereas in my recollection HH O'Malley clearly took a closer look than simply to establish irrationality or otherwise. In light of that I wonder whether, to adopt Dave's intepretation would be to render the decision ultra vires

 

I'll have a read of the Chiltern case later and see whether it's material.

 

The question of continuing consent of annual consent is interesting, and I have no firm opinion on it.

 

However, s17(4) and s17(5) DO include provisions to withdraw a consent (or rather that failure to rectify a breach withing 14 days causes a consent to determine, which is effectively the same thing)

[Allan(nb Albert)]

BW generally impose terms and conditions under s43.

 

In the specific case of the CCing guidelines, they are a guide to what the board requires in order to be "satisfied" as required by s17.

 

The guidelines simply tell you what criteria BW intend to use to decide whether you meet the legal requirements.

 

NABO was plain WRONG in its assertion.

 

BW has a right to withold a licence if a boater who has no home mooring fails to satisfy them that he will engage in Bona Fide Navigation throughout.

 

 

Not so Dave. Here is what the T&C's actually say

 

4. Continuous Cruisers

 

4.1 You must cruise in accordance with the British Waterways Act 1995. The Mooring Guidance for Continuous Cruisers is contained in Schedule 2 and this Guidance sets out what is required to comply with the British Waterways Act 1995.

 

Nothing there to suggest what you have to do to 'satisfy' BW. Rather it suggests that as a condition of your licence, you have to comply with BW's guidance which is an interpretation of the 1995 Act (not been tested in a representative way in court until now).

 

Indeed, the Davies judgement confirms that a boater agrees to follow the guidance by ticking a box on the application form -

 

 

Suffice to say, in the BW vs Davies case the judgement states -

 

 

In other words, in the opinion of one judge, you can comply with the the 1995 Act without complying with BW's guidelines.

 

I would suggest that NABO have been proved right on this issue.

 

We should ask why those without a home mooring have to comply with the 1995 Act and also enter a contract as part a licence application to comply with BW's interpretation of that act. They are meant to be the same!

Edited May 26, 2011 by Allan(nb Albert)

[DaveG]

The BBC report says that BW are insisting CCers move 10 miles every 14 days - what is the source of this information? I can't find it on Waterscape or the BW site.

[grahoom]

The BBC report says that BW are insisting CCers move 10 miles every 14 days - what is the source of this information? I can't find it on Waterscape or the BW site.

 

probably just bad journalism.

[DaveG]

Another question out of interest - the blacksmith chap interviewed said he didn't want to be forced to drive to work and school as it's "polluting the atmosphere, and it's not what we want to do". As the BBC says he runs his business from his boat, how does he get his raw materials there?

[Smelly]

The BBC report says that BW are insisting CCers move 10 miles every 14 days - what is the source of this information? I can't find it on Waterscape or the BW site.

 

That's an old version of the CC guidance; it was around 10 years ago but it's sadly out of date.

[LoneEcho]

The new Lee & Stort proposals state that those with home moorings who are away for long periods (no specific time indicated) will have to follow the neighbourhood guidelines, so it looks like they are looking into closing this loophole. Can they roll this rule out across the network by changing their T&C's without a change in law ?

Edited May 26, 2011 by LoneEcho

[Smelly]

However, s17(4) and s17(5) DO include provisions to withdraw a consent (or rather that failure to rectify a breach withing 14 days causes a consent to determine, which is effectively the same thing)

 

Fair enough; but again it's prospective so "start moving" "ok" <starts moving> remedies the default; it's pretty thin on that side and the wheel starts turning again.