Nbta's Nick Brown Finally Is Granted Permission For A Judicial Review

[LoneWolf]

You need to read the act.

 

(3)Notwithstanding anything in any enactment but subject to subsection (7) below, the Board may refuse a relevant consent in respect of any vessel unless—

(a)the applicant for the relevant consent satisfies the Board that the vessel complies with the standards applicable to that vessel;

(b)an insurance policy is in force in respect of the vessel and a copy of the policy, or evidence that it exists and is in force, has been produced to the Board; and

©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

 

I have read the Act. I also have experience of interpreting the law.

 

If you disagree with my post then say why you think it's wrong otherwise you're just blowing hot air

 

I'll repeat it again for you:

 

But it is not within their powers decide what "bona fide navigation" is

 

They can (and do) give guidance on their interpretation of the law but that's all it is, their view, which can be challenged

[carlt]

 

 

They can (and do) give guidance on their interpretation of the law but that's all it is, their view, which can be challenged

They themselves acknowledge that theirs is merely an interpretation and does not carry the force of law.

 

 

2

This Guidance does not have the force of law but seeks to interpret the law as set out in s.17 British Waterways

Act 1995.

 

 

Edited August 1, 2013 by carlt

[LoneWolf]

They themselves acknowledge that theirs is merely an interpretation and does not carry the force of law.

 

indeed, and yet some on here insist on claiming otherwise for some reason

[churchward]

 

I have read the Act. I also have experience of interpreting the law.

 

If you disagree with my post then say why you think it's wrong otherwise you're just blowing hot air

 

I'll repeat it again for you:

 

But it is not within their powers decide what "bona fide navigation" is

 

They can (and do) give guidance on their interpretation of the law but that's all it is, their view, which can be challenged

OK tell me what you think

 

(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

 

means.

 

I interpret it to means that the applicant for a licence without home mooring has to satisfy the board that they are making a bona fide journey etc. Therefore the board decides when it is satisfied and must in turn define what satisfaction means otherwise how can you satisfy the condition.

 

I agree though the guidance is not law but the authorities definition of what keeps you within the "tramlines" of the law and yes this could be challenged. However in the end if you do not satisfy the board (in their judgement) that you are conforming to the act they can instigate proceedings against you.

 

Agreeing about the guidance however does not mean your statement about the (CRT) cannot decide what bonafide navigation is defined as is incorrect in my view. They can and must otherwise they cannot decide how anyone can satisfy them that they are compliant.

Edited August 1, 2013 by churchward

[LoneWolf]

OK tell me what you think

 

(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

 

means.

 

I interpret it to means that the applicant for a licence without home mooring has to satisfy the board that they are making a bona fide journey etc. Therefore the board decides when it is satisfied and must in turn define what satisfaction means otherwise how can you satisfy the condition.

 

I have just told you.

 

they satisfy the board that the boat will be used for "bona fide for navigation". Nothing about a journey.

 

CaRT dont decide what 'satisfaction' is - that is defined in the law already - "satisfied that the boat will be used bona fide for navigation"

 

When reading the law you dont just pick a phrase and ignore the words around it

 

 

You seem to have missed the main point which is that CaRT do not decide what "bona fide for navigation" means

[carlt]

 

I interpret it to means that the applicant for a licence without home mooring has to satisfy the board that they are making a bona fide journey etc. Therefore the board decides when it is satisfied and must in turn define what satisfaction means otherwise how can you satisfy the condition.

But that is just your interpretation and has no more force of law than CRT's or mine.

 

For instance why do you define "navigation" as a journey.

 

When I took my lifeboat out I would plot a course on a chart, transfer it to my GPS plotter, using skills that I paid good money at a RYA course for, let the boatyard know I was going out, radio checked the harbour master or coastguard on the way out whilst monitoring the depth sounder, gps, ais and maintaining a look out, navigating as I went and updating my paper chart every 20 minutes so I always knew my location if my electronics failed.

 

All this, in my opinion, requires more "bona fide navigation" than most narrowboaters do in a lifetime and yet after a few hours fishing a few miles off shore I'd turn around and go back to my home mooring.

 

Loads of "navigating" but not really a "journey"

[churchward]

 

I have just told you.

 

they satisfy the board that the boat will be used for "bona fide for navigation". Nothing about a journey.

 

CaRT dont decide what 'satisfaction' is - that is defined in the law already - "satisfied that the boat will be used bona fide for navigation"

 

When reading the law you dont just pick a phrase and ignore the words around it

 

 

You seem to have missed the main point which is that CaRT do not decide what "bona fide for navigation" means

and I just told you.

 

CRT must decide what Bona fide navigation is otherwise they cannot decide (under law) what will satisfy them that the licence holder is compliant.

But that is just your interpretation and has no more force of law than CRT's or mine.

 

For instance why do you define "navigation" as a journey.

 

When I took my lifeboat out I would plot a course on a chart, transfer it to my GPS plotter, using skills that I paid good money at a RYA course for, let the boatyard know I was going out, radio checked the harbour master or coastguard on the way out whilst monitoring the depth sounder, gps, ais and maintaining a look out, navigating as I went and updating my paper chart every 20 minutes so I always knew my location if my electronics failed.

 

All this, in my opinion, requires more "bona fide navigation" than most narrowboaters do in a lifetime and yet after a few hours fishing a few miles off shore I'd turn around and go back to my home mooring.

 

Loads of "navigating" but not really a "journey"

I did not mean journey I shoudl have typed navigation.

 

But other than using the wrong word there my point stands. ie the term in the act is meaningless unless the authority defines what will satisfy them and the act allows them to do that.

[LoneWolf]

and I just told you.

 

CRT must decide what Bona fide navigation is otherwise they cannot decide (under law) what will satisfy them that the licence holder is compliant.

I did not mean journey I shoudl have typed navigation.

 

But other than using the wrong word there my point stands. ie the term in the act is meaningless unless the authority defines what will satisfy them and the act allows them to do that.

 

No, they do not decide when bona fide navigation is. They tell us what they think it means in their guidance. This does not make their guidance law. It remains guidance in interpreting the law

 

Why do you think they changed their guidance after the Davies case to remove the bit about "significant proportion of the network"?

Because it was attempting to stretch the law which makes no such demands on the boater with no home mooring

[carlt]

But other than using the wrong word there my point stands. ie the term in the act is meaningless unless the authority defines what will satisfy them and the act allows them to do that.

I agree but they have repeatedly failed to adequately interpret "bona fide for navigation" and "place" which is why, whatever Nick Brown's motives, this Judicial Review may help to clarify the law.

[chris_r]

As a quiet observer to this (and previous) debate(s) on this topic perhaps the important word in the clause is that the Board must be satisfied that the boat WILL be used for bona fide navigation. This is surely about accepting the intent of the licence applicant that they will navigate rather than declare a home mooring.

[Paul C]

I agree but they have repeatedly failed to adequately interpret "bona fide for navigation" and "place" which is why, whatever Nick Brown's motives, this Judicial Review may help to clarify the law.

 

I am quite surprised that 'place' needs to be defined and is so open to interpretation.

[carlt]

 

I am quite surprised that 'place' needs to be defined and is so open to interpretation.

Why?

 

So far BW/CRT have interpreted "place" as a parish, 10 miles from the last location and now "a neighbourhood or locality, NOT simply a particular mooring site or position" and possibly others that I have forgotten or not heard about.

Edited August 1, 2013 by carlt

[mayalld]

 

No, they do not decide when bona fide navigation is. They tell us what they think it means in their guidance. This does not make their guidance law. It remains guidance in interpreting the law

 

You are, to a small extent, correct.

 

CRT cannot definitively state "X is Bona Fide Navigation".

 

They can, however say "We have to be satisfied that you are engaged in Bona Fide navigation. If you do X, that will satisfy us"

 

If you refuse to agree to do "X" or fail to do "X", they can say "We are NOT satisfied that you are engaging in Bona Fide Navigation, and they can then follow due process to revoke a licence and remove a boat.

 

That process does NOT require them to get a court to endorse their failure to be satisfied, and broadly speaking it is for the person who believes that what they require for satisfaction is beyond the discretion granted to them to ask a court to rule to that effect.

 

Where the boat is their home, CRT will bring it to court to get a declaration that they have acted within their powers.

 

Why do you a treat these people as a valid authority when they are, clearly, a 'bunch of crooks'?

 

Oh, I know the answer to this one!

 

"Because they are a valid authority"

Edited August 1, 2013 by mayalld

[LoneWolf]

 

You are, to a small extent, correct.

 

CRT cannot definitively state "X is Bona Fide Navigation".

 

They can, however say "We have to be satisfied that you are engaged in Bona Fide navigation. If you do X, that will satisfy us"

 

If you refuse to agree to do "X" or fail to do "X", they can say "We are NOT satisfied that you are engaging in Bona Fide Navigation, and they can then follow due process to revoke a licence and remove a boat.

 

That process does NOT require them to get a court to endorse their failure to be satisfied, and broadly speaking it is for the person who believes that what they require for satisfaction is beyond the discretion granted to them to ask a court to rule to that effect.

 

Where the boat is their home, CRT will bring it to court to get a declaration that they have acted within their powers.

 

What I said was 100% correct.

 

As what you've added might be - I'm not going to pretend to know the details of the due process (i'll save that learning for if i ever need to). There will be an opportunity to challenge their interpretation though and it is the courts that will decide

 

It will be interesting reading if any further cases do come to court though (after they've got rid of the boats that dont move at all)

[churchward]

 

What I said was 100% correct.

 

As what you've added might be - I'm not going to pretend to know the details of the due process (i'll save that learning for if i ever need to). There will be an opportunity to challenge their interpretation though and it is the courts that will decide

 

It will be interesting reading if any further cases do come to court though (after they've got rid of the boats that dont move at all)

Oh to be so sure eh? and of course you are welcome to your opinion. The courts have debated and decided on many aspects so although CRT may have amended their guidance folk also ought to amend their views in the light of such judgements.

 

What I meant in the first place Dave has perhaps put better. They do have to be "satisfied" by law that the the licence holder is on a bona fida navigation. They therefore need to decide what will satisfy them.

Edited August 1, 2013 by churchward

[cotswoldsman]

 

I am quite surprised that 'place' needs to be defined and is so open to interpretation.

CRT are presently drawing up maps to define place.

[LoneWolf]

Oh to be so sure eh? and of course you are welcome to your opinion. The courts have debated and decided on many aspects so although CRT may have amended their guidance folk also ought to amend their views in the light of such judgements.

 

What I meant in the first place Dave has perhaps put better. They do have to be "satisfied" by law that the the licence holder is on a bona fida navigation. They therefore need to decide what will satisfy them.

 

I was talking to Dave who if he disagrees will at least give a reasoned argument that will have an appreciation of how the law is read.

 

Let me try a final time.

So, if i believe i an using my boat bona fide for navigation and CaRT think I'm not then who decides?

[RLWP]

Let me try a final time.

So, if i believe i an using my boat bona fide for navigation and CaRT think I'm not then who decides?

 

I'll have a go at that.

 

Initially, they do. If you think they are wrong, you are welcome to challenge them in court. There is no ombudsman or other independent authority to decide

 

Richard

Edited August 1, 2013 by RLWP

[GUMPY]

 

Let me try a final time.

So, if i believe i an using my boat bona fide for navigation and CaRT think I'm not then who decides?

CRT would make that decision and if you don't agree you would have to take it to court.

[magpie patrick]

 

 

So, if i believe i an using my boat bona fide for navigation and CaRT think I'm not then who decides?

 

Chris Pink and Dave Mayall discuss it here until they agree with each other...

[LoneWolf]

 

I'll have a go at that.

 

Initially, they do. If you think they are wrong, you are welcome to challenge them in court. There is no ombudsman or other independent authority to decide

 

Richard

 

Thank you Richard. So that could be summed up as 'ultimately, The Courts' ie CaRT do not decide on "what bona fide for navigation" means

[RLWP]

Well...

 

CRT do decide, and can then follow through their procedures to to remove your license and ultimately your boat.

 

If you think you have a case that will stand up in court, and can find the money to fight the case budgetting to lose and have to pay CRT's costs as well as your own, you may challenge the decision.

 

That's the only way you would get a legally binding definition of what "bona fide for navigation" means. For most practical purposes, it means whatever CRT want it to

 

Richard

[PaulG]

 

Thank you Richard. So that could be summed up as 'ultimately, The Courts' ie CaRT do not decide on "what bona fide for navigation" means

I believe that that is correct.

But of course, you still have to "satisfy the Board" that you intend to use your boat "bona fide for navigation", whatever the definition of "bona fide for navigation" actually is.

Then the logic becomes slightly circular, as only the Board can say what is likely to "satisfy" them!

Edited August 1, 2013 by PaulG

[carlt]

Well...

 

CRT do decide, and can then follow through their procedures to to remove your license and ultimately your boat.

 

Of course not complying with s17 is not grounds for removing your boat.

 

They can refuse to renew your licence then s.8 your boat on the grounds of not having a licence.

 

If the boat is your home then it is their policy to go to court, before removing your boat from their waters.

 

You can then either have your day in court or make a run for non-BW waters depending on your bottle.

[mayalld]

 

I was talking to Dave who if he disagrees will at least give a reasoned argument that will have an appreciation of how the law is read.

 

Let me try a final time.

So, if i believe i an using my boat bona fide for navigation and CaRT think I'm not then who decides?

 

CRT do, and there is no rule that says that they have to ask anybody to approve that decision.

 

It is open to the boater to go to a court and ask them to rule that CRT are acting ultra vires in what they require to be satisfied, and in practice CRT will ask the court to rubber stamp what they have decided where the boat is somebody's home. There is nothing which compels them to do this.