Canal & River Trust’s mooring guidance endorsed by the High Court

[NigelMoore]

Thank you! I knew I'd read it somewhere but I didn't even bother looking at section 8 as I thought I knew it off by heart.

 

You’re welcome. It happened to be fresh in my mind because I had quoted it only the day before to the Lord Justices of the Court of Appeal. I might add that BW/CART were fully in agreement.

 

On the other side of the coin, this Section had been brought up at the last London User Group meeting as a sufficient answer to the problem of boaters blocking other boaters from using facilities that ought to be available to all – and the relevant manager was adamant that he was never going to allow his staff to operate under that legislative power, for reasons of health & safety unless a police presence could be arranged, because he was not going to expose his delicate and sensitive boys to the possibility of some nasty boater shouting at them.

 

Of all the pusillanimous responses to the problem, that has at least to be the most frank. They are ruthless enough in dispossessing individuals of their homes and possessions under the comforting umbrella of police and the courts, but timorous to the point of absurdity in facing up to such individuals in an adult fashion ‘on the ground’. Thus the ridiculously lengthy and expensive recourse to S8(2) instead of S8(5) – which can never benefit the boaters deprived of using facilities they are entitled to.

 

Apropos, have you read through the draft new Byelaws still hovering in the wings? An instructive exercise; they want to make it a criminal offence for you to be rude to an employee, but it will remain lawful for them to be rude to you.

[mayalld]

That is wrong. They DO have powers to move a craft obstructing either the navigation or use of the towpath, and to do so immediately and without notice.

 

It does not require them "to interpret S18" in that way; S18(3) expressly deems any vessel "in contravention of sub-section (1)" to be a "relevant craft for the purpose of section 8" – of the '83 Act.

 

The '83 Act referred to, Section 8(5) provides: "Notwithstanding the provisions of this section the Board may at any time move without notice a relevant craft if it be an obstruction or a source of danger."

 

Splendid.

 

Now comes the interpretation.

 

How far can they move it?

 

If they are using a power to move the boat without notice, then I rather suspect that they are constrained to move it the minimum possible distance to fix the immediate obstruction.

 

Claiming that the two sections give an unfettered right to move any overstaying boat where they like is beyond what was granted.

 

I was talking about subsection (2) and the imposition of a fine for committing an offence not the moving of boats.

 

Isn't prosecution a bit sledgehammer to crack a nut?

[carlt]

Isn't prosecution a bit sledgehammer to crack a nut?

I'm still not sure why you think inadequate legislative powers is an excuse to dress up a penalty charge as a service fee which seems to be the way your argument has developed.

 

As to the power to move a boat that is causing an obstruction I would have thought the minimum distance necessary to ease the obstruction then start the more long winded enforcement process.

[mayalld]

I'm still not sure why you think inadequate legislative powers is an excuse to dress up a penalty charge as a service fee which seems to be the way your argument has developed.

 

As to the power to move a boat that is causing an obstruction I would have thought the minimum distance necessary to ease the obstruction then start the more long winded enforcement process.

 

So, they can move it a short distance, but once they have done so, it is no longer overstaying, and as such they CAN'T proceed further with s8. They have used the "move it immediately" instead of the other remedies available.

 

The boat is now moored in a new location, so it is no longer guilty of overstaying, and it was moored there by CRT. It is now FAR harder for CRT to claim that the boat is unlawfully moored, because CRT put it there.

 

The boat moved hardly at all, and at a minimum gets another 6 weeks. Then, all the owner needs to do is move it a little bit, and the clock starts again.

[carlt]

The boat moved hardly at all, and at a minimum gets another 6 weeks. Then, all the owner needs to do is move it a little bit, and the clock starts again.

You seem to be slipping Dave.

 

As the C&RT interpretation seems to have the force of law now, moving it "a little bit" is not enough to restart the clock.

[jenlyn]

So, they can move it a short distance, but once they have done so, it is no longer overstaying, and as such they CAN'T proceed further with s8. They have used the "move it immediately" instead of the other remedies available.

 

The boat is now moored in a new location, so it is no longer guilty of overstaying, and it was moored there by CRT. It is now FAR harder for CRT to claim that the boat is unlawfully moored, because CRT put it there.

 

The boat moved hardly at all, and at a minimum gets another 6 weeks. Then, all the owner needs to do is move it a little bit, and the clock starts again.

It was explained to us last night, it sounded nothing like you are trying to imply. I suggest anyone wanting the facts need to speak with CRT.

[cotswoldsman]

It was explained to us last night, it sounded nothing like you are trying to imply. I suggest anyone wanting the facts need to speak with CRT.

 

You mean to say you even half thought mayall was correct as you say nothing like how the head of mooring at CaRT explained it. I think that CaRT are now getting to grips with the problem and they are doing it the correct way not the mayall way and I would also suggest that anyone that actually wants to know the process phone CaRT I think they are being very fair and giving boaters plenty of time to get to grips with what they are doing wrong before they go to law. At the end of the day I think CaRT want to solve this problem without removing boats, but if a boat persists with breaking the rules they will remove the boat by going to court. It is as we all know quite a long and expensive process and diverts much needed money from other projects. The law has to be the last sanction.

[mayalld]

You mean to say you even half thought mayall was correct as you say nothing like how the head of mooring at CaRT explained it. I think that CaRT are now getting to grips with the problem and they are doing it the correct way not the mayall way

 

John, whilst it would (I suppose) be easy to think that I was suggesting something as to how CRT are intending to do things, the recent posts have been EXACTLY the opposite of that.

 

If you would care to read back, Carl suggested that CRT could use their s18 powers to effectively deal with overstaying. My recent posts have simply been to prove that if he thinks that using s43 powers is a legal minefield, using s18 powers is even more so, and that s18 is NOT an avenue that CRT could use to effectively police abuse of VMs.

 

Much has been made of CRT talking to boaters organisations, and managing mooring in a partnership. This is a positive thing, but it does beg the question of whether this approach will suddenly make boaters who habitually overstay change their habits. What sanction exists to compel those who will not comply to do so?

[Chris Pink]

John, whilst it would (I suppose) be easy to think that I was suggesting something as to how CRT are intending to do things, the recent posts have been EXACTLY the opposite of that.

 

If you would care to read back, Carl suggested that CRT could use their s18 powers to effectively deal with overstaying. My recent posts have simply been to prove that if he thinks that using s43 powers is a legal minefield, using s18 powers is even more so, and that s18 is NOT an avenue that CRT could use to effectively police abuse of VMs.

 

Much has been made of CRT talking to boaters organisations, and managing mooring in a partnership. This is a positive thing, but it does beg the question of whether this approach will suddenly make boaters who habitually overstay change their habits. What sanction exists to compel those who will not comply to do so?

 

Your viewpoint is becoming marginalised. CRT are beginning to really take on board what has been obvious for years, that management of the waterways has to be with consent. Yes, there will always, forever, be boaters who abuse the system - and in far wider ways than breaches of the moorings guidance - the most that can be hoped for is to reduce this figure to a point at which it impinges rarely on one's boating experience or damages the structure and management of the system.

[mayalld]

Your viewpoint is becoming marginalised. CRT are beginning to really take on board what has been obvious for years, that management of the waterways has to be with consent.

 

In your opinion, my viewpoint is becoming marginalised.

 

CRT understands that the problems with widespread abuse of the rules is such that it has an uphill struggle on its hands if it is to enforce its rules.

 

It appears to be taking a pragmatic approach, and offering a limited grandfathers rights type route for existing rule breakers, whilst requiring strict compliance from here on in.

 

That is, on the one hand, an approach that attempts to deal with an issue in the most expedient way possible. On the other it is manifestly unfair, because it will reward those who have previously broken the rules.

[cotswoldsman]

 

CRT understands that the problems with widespread abuse of the rules is such that it has an uphill struggle on its hands if it is to enforce its rules.

 

 

 

This is not a widespread problem!!!!!!!!!!!!!!!!!!!!!! You might like to think it is but maybe you need to get about a bit more.

[carlt]

My recent posts have simply been to prove that if he thinks that using s43 powers is a legal minefield, using s18 powers is even more so, and that s18 is NOT an avenue that CRT could use to effectively police abuse of VMs.

Unfortunately you have failed to prove anything of the sort, Dave.

 

There is a simple reason why BW and CRT have stretched the boundaries of s.43 to breaking point by dressing up a penalty charge as a service fee rather than use the statutory powers that are available to them in s.8(5) BWA 1983 and s.18 BWA 1995 is that they involve face to face confrontation instead of hiding behind invoices and county courts.

 

When I was a Highways Engineer if all I did was fix notices and issue invoices in response to enforcement issues I'd have never got out of the office.

 

The Patrol Officers should be knocking on boat doors and chatting to boaters, explaining the powers they have through relevant legislation and what would happen if enforcement proceedings are initiated.

 

s.8(5) and s.18 are unambiguous, to the point and not in need of the semantic mumbo jumbo required to justify s.43 penalty charges and your claim that moving the boat a small distance would restart the clock is nonsense, otherwise how could BW have taken action against Paul Davies?

 

(5) Notwithstanding the provisions of this section the Board

may at any time move without notice a relevant craft if it be an

obstruction or a source of danger.

 

18Obstruction by vessels

 

(1)No person shall moor or otherwise leave a vessel on an inland waterway so as to cause obstruction or hindrance to navigation or to the free passage of persons or vehicles over and along the towing path beside the inland waterway.

 

(2)Any person who without reasonable excuse contravenes subsection (1) above in such a way as to cause, or give rise to the risk of, injury to any person or damage to property shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 

(3)Any vessel moored or allowed to remoor in contravention of subsection (1) above shall be deemed to be a relevant craft for the purpose of section 8 (Removal of vessels) of the Act of 1983 or, in Scotland, a vessel for the purposes of section 19 (As to vessels sunk, stranded or abandoned) of the [1958 c. xliv.] British Transport Commission Act 1958.

 

 

Edited to add: "VMs" is a new one on me..."Virtual Moorers"?? Re-edited...Penny has dropped and s.8(5) can be used effectively here. CRT representatives simply move the boat causing the obstruction off the mooring and tie it up on the towpath.

 

The possible cost of two mooring spikes is much less than an unsuccessful court action using a corruption of s.43.

Edited November 30, 2012 by carlt

[mayalld]

s.8(5) and s.18 are unambiguous, to the point and not in need of the semantic mumbo jumbo required to justify s.43 penalty charges and your claim that moving the boat a small distance would restart the clock is nonsense, otherwise how could BW have taken action against Paul Davies?

 

 

The action against Paul Davies was under s17, and related to failing to engage in bona fide navigation (which they can only use on CCers). You must recall that you have accepted this point before.

 

Overstaying and CCing non-compliance are NOT the same thing

 

If they take action under s18, for causing an obstruction, then;

 

1) Once the boat is moved, whilst it is not in a new "place" for CCing purposes, it is in a new "location" for Overstaying purposes.

2) As CRT have moored the boat there, they might find it rather difficult to say that it is now causing an obstruction, as they put it there without notice because it was causing an obstruction. If it is STILL causing an obstruction, their action in moving it cannot have been to remove the obstruction.

[carlt]

If they take action under s18, for causing an obstruction, then;

 

1) Once the boat is moved, whilst it is not in a new "place" for CCing purposes, it is in a new "location" for Overstaying purposes.

2) As CRT have moored the boat there, they might find it rather difficult to say that it is now causing an obstruction, as they put it there without notice because it was causing an obstruction. If it is STILL causing an obstruction, their action in moving it cannot have been to remove the obstruction.

 

Complete and utter nonsense Dave.

 

You've painted yourself into a corner and can't admit that you are wrong.

 

If they have moved the boat to stop it being an obstruction then job done but it does not restart the clock to take action for not ccing as it has not been moved to a new "place".

 

I believe that this is an adequate solution because, unlike you, I believe that solving the problem is more important than punishing the transgressor.

 

If the VM/lock landing/water point is no longer obstructed then the enforcement issue is no longer so urgent and normal, longer winded, measures can be implemented.

[mayalld]

Complete and utter nonsense Dave.

 

You've painted yourself into a corner and can't admit that you are wrong.

 

If they have moved the boat to stop it being an obstruction then job done but it does not restart the clock to take action for not ccing as it has not been moved to a new "place".

 

Indeed it does not.

 

However, as I have never stated that it restarts the clock for not CCing, you appear to be attempting to argue down a point that I haven't made.

 

CRT moving the boat wouldn't restart the clock on CCing. It would restart the clock on overstaying, because the boat has now been moved to a new location.

 

You appear to be so desparate for me to be wrong that you aren't actually paying attention to what I am saying.

[carlt]

It would restart the clock on overstaying, because the boat has now been moved to a new location.

So what?

 

If the boat is no longer causing a problem then there is no need to take knee-jerk action.

 

If a boat is, for example, moved from a 48 hour visitor mooring to an unrestricted towpath spot, why is it so important to you whether or not it is there for a further 14 days?

 

The problem has gone away and, if the transgressor is a ccer, they stay at the new location for over 11 days, without good reason, then he is in breach of the ccing regs.

 

If they have a home mooring then they have 14 days to move before they become overstayers in breach of their licence T&Cs.

 

I don't see why this scenario requires the invention of penalty charges, disguised as service fees.

 

Edited to make the post resemble the English language.

Edited November 30, 2012 by carlt

[mayalld]

So what?

 

If the boat is no longer causing a problem then there is no need to take knee-jerk action.

 

If a boat is, for example, moved from a 48 hour visitor mooring to an unrestricted towpath spot, why is it so important to you whether or not it is there for a further 14 days?

 

The problem has gone away and, if the transgressor is a ccer, they stay at the new location for over 11 days, without good reason, then he is in breach of the ccing regs.

 

If they have a home mooring then they have 14 days to move before they become overstayers in breach of their licence T&Cs.

 

And then what?

 

s18 again, and 28 day s8 notice, at which point the boater moves the boat back onto the 48 hour moorings, and the whole charade starts again.

 

I simply repeat what I said earlier;

 

There is a need for a charging regime for those who overstay, because CRT lacks any other effective remedy against it. The powers that they have under s18 are not effective against overstaying.

[carlt]

And then what?

 

s18 again, and 28 day s8 notice, at which point the boater moves the boat back onto the 48 hour moorings, and the whole charade starts again.

 

I simply repeat what I said earlier;

 

There is a need for a charging regime for those who overstay, because CRT lacks any other effective remedy against it. The powers that they have under s18 are not effective against overstaying.

Simply repeating it doesn't make right.

 

A ccer cannot simply move back to the 48 hour mooring or they would be in breach of ccing regulations.

 

A home moorer can move back and has every right to but if they overstay again they become in breach of their licence T&Cs and open to proceedings under s18(2) which I would have said was no longer "using a sledgehammer to crack a nut" if they are persistent offenders and is a legitimate penalty, unlike your s43 lash up.

[NigelMoore]

If they are using a power to move the boat without notice, then I rather suspect that they are constrained to move it the minimum possible distance to fix the immediate obstruction.

 

Claiming that the two sections give an unfettered right to move any overstaying boat where they like is beyond what was granted.

 

Exactly right; they can move it so that it no longer creates an obstruction, no more. The concept is illustrated in the following Section 19, which gives powers to move [on notice] boats moored alongside a length of canal bank which they need to work on. If the nearest place to which they can safely move it is “not readily visible from the place from which it was removed”, they have to let the owner know where they have moved it to.

 

Whatever others may believe, I don’t claim the section gives an "unfettered right to move any overstaying boat", period – I agree that is “beyond what is granted”. I don't make such a claim, simply because there is no such offence as “overstaying”. There is no power to set up signs designating permissible lengths of time, there is no power for officers to instruct you to move on etc, etc. BW were given powers to propose bye-laws giving a measure of such control, but until the pressure of leisure boating grew to where it is now, there was never any perceived need for such laws or powers.

 

If you don’t adversely affect others, you commit no wrong in the absence of a law against what you do. The “problem” insofar as it is a problem in a few “honey-pot” areas, is a problem created by inconsiderate boaters adversely affecting each other, and should be correctable by boaters between themselves instead of bleating for the waterways authority to acquire more powers over us. Since when did the free British adopt such a cringe-worthy mind-set?

 

CART cannot set up “a charging regime for those who overstay” because there ain’t no such offence, and because CART can’t charge for any use by boats of the waterways which is permitted free of charge in the enabling Acts and not expressly over-ridden by modern legislation.

 

Note Johnson’s comment on the new proposed bye-laws, Part VII on moorings: Section 51 [“Directions as to mooring”] – “Whilst provisions of this nature may not have been considered necessary in the 1960’s (when the GCB 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. The power to give directions is not unfettered and may only be exercised when one of the circumstances in paragraph (4) apply.”

 

Of course, the problem for CART, as for all such bullies, is that they are not content to have an enforceable rule, they want maximum sanction and for breach of the regulations to be criminal offences. The proposed new bye-laws are not Johnson’s invention, albeit preparation of them was a target for his bonus points the other year – he just did a ‘cut & paste job’ from the 1990 Bill that was presented to Parliament. It was precisely because BW then had also insisted on the criminal sanction, that they ended up having to withdraw the provisions, muttering darkly about the future problems in store.

 

Other than the nasty despotism revealed in demanding such sanctions, the provisions themselves are largely sensible, albeit a little more caution in the wording would be advisable. Perhaps if they agree on de-criminalisation of the offences they will stand a better chance on getting Secretary of State approval this time around.

[dew]

It sounds like the Judge found this argument as tedious as I do and intended to settle the question once and for all. Has anyone got £15k to spare so we can get the pumpout vs cassette debate killed off as well?

Who gets the money is the whole of this question. Who are the leaches wishing to have this money? The leaches who made the judgement or the leaches in crt ( who are very much part of the same group of poeple)? We live in a funny old world at the moment and none of the possible outcomes really benefit you do they?

 

Omg.. How many times did you get robbed? 4???

Exactly right; they can move it so that it no longer creates an obstruction, no more. The concept is illustrated in the following Section 19, which gives powers to move [on notice] boats moored alongside a length of canal bank which they need to work on. If the nearest place to which they can safely move it is “not readily visible from the place from which it was removed”, they have to let the owner know where they have moved it to.

 

Whatever others may believe, I don’t claim the section gives an "unfettered right to move any overstaying boat", period – I agree that is “beyond what is granted”. I don't make such a claim, simply because there is no such offence as “overstaying”. There is no power to set up signs designating permissible lengths of time, there is no power for officers to instruct you to move on etc, etc. BW were given powers to propose bye-laws giving a measure of such control, but until the pressure of leisure boating grew to where it is now, there was never any perceived need for such laws or powers.

 

If you don’t adversely affect others, you commit no wrong in the absence of a law against what you do. The “problem” insofar as it is a problem in a few “honey-pot” areas, is a problem created by inconsiderate boaters adversely affecting each other, and should be correctable by boaters between themselves instead of bleating for the waterways authority to acquire more powers over us. Since when did the free British adopt such a cringe-worthy mind-set?

 

CART cannot set up “a charging regime for those who overstay” because there ain’t no such offence, and because CART can’t charge for any use by boats of the waterways which is permitted free of charge in the enabling Acts and not expressly over-ridden by modern legislation.

 

Note Johnson’s comment on the new proposed bye-laws, Part VII on moorings: Section 51 [“Directions as to mooring”] – “Whilst provisions of this nature may not have been considered necessary in the 1960’s (when the GCB 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. The power to give directions is not unfettered and may only be exercised when one of the circumstances in paragraph (4) apply.”

 

Of course, the problem for CART, as for all such bullies, is that they are not content to have an enforceable rule, they want maximum sanction and for breach of the regulations to be criminal offences. The proposed new bye-laws are not Johnson’s invention, albeit preparation of them was a target for his bonus points the other year – he just did a ‘cut & paste job’ from the 1990 Bill that was presented to Parliament. It was precisely because BW then had also insisted on the criminal sanction, that they ended up having to withdraw the provisions, muttering darkly about the future problems in store.

 

Other than the nasty despotism revealed in demanding such sanctions, the provisions themselves are largely sensible, albeit a little more caution in the wording would be advisable. Perhaps if they agree on de-criminalisation of the offences they will stand a better chance on getting Secretary of State approval this time around.

Are they bullies or a bunch of parasitic thieves? And remember before you answer that everything sounds like a good idea at first, then the dumbest, laziest and morally deprived of the human race muscle in on the honey pot and become little more than parasites.

[Guest]

Omg.. How many times did you get robbed? 4???

 

Zero.

[dew]

Simply repeating it doesn't make right.

 

A ccer cannot simply move back to the 48 hour mooring or they would be in breach of ccing regulations.

 

A home moorer can move back and has every right to but if they overstay again they become in breach of their licence T&Cs and open to proceedings under s18(2) which I would have said was no longer "using a sledgehammer to crack a nut" if they are persistent offenders and is a legitimate penalty, unlike your s43

 

Zero.

Are you sure?

[Guest]

I can't extract your question because you haven't been able to quote it correctly. But the answer is yes I am.

[Graham Davis]

WTF is Dew on about?

[RLWP]

WTF is Dew on about?