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

[alan_fincher]

You do not need to pay mooring fees if you move every 14 days. And the NBTA do not promote staying over the 14 days

Highly arguable!

 

In the case he lost, Nick Brown tried to argue that "personal choice" was a a reasonable circumstance for staying more than 14 days. (Go and read it up!).

 

So whilst it may not be NBTA "policy", (if thee is one?), certainly his arguments are at best highly fanciful.

 

A bit like wanting to treat boat ownership as a "religion", I would say, another of his "good" ideas!

Edited July 29, 2013 by alan_fincher

[LoneWolf]

I'm not sure why 100 miles in a year would be totally ridiculous? It's only two miles a week (average) after all!

 

I'm not advocating it, just don't see it as ridiculous.

 

Tim

 

Why dont you read my reply in the context of the post I'm replying to?

It's not the distance that makes it ridiculous - it's the argument that CART could specify ANY distance that is ridiculous.

 

They can issue guidance that in their view boats that move x miles per year comply and a boater would be able to rely on that but that does not mean that boats moving fewer miles than x dont comply with the legislation

 

What is ridiculous about moving 100 miles in a year? I move that much in a week out of the marina.

see above.

 

 

[mayalld]

All anyone wants is clear interpretation of the guidelines.

Personally, I prefer an interpretation of guidlines that benefits boaters and a boating community. An interpretation that allows boaters to act lawfully and fairly.

I don't want an interpretation, by C&RT, that is unlawful and an abuse of power for some other gain.

 

 

The problem is that your definition of "lawfully and fairly" is constrained by a preconception that if you want something to be lawful, it should be lawful.

 

You say that you are on the Macclesfield Canal at the moment. It is a canal which due to the channel profile doesn't present that many opportunities for casual mooring. If a significant proportion of moorings are actually pretty much permanently occupied by the same boats month in and month out, what hope for others?

 

If you want to remain in the same place, there are moorings available that you could PAY for that give you a right to remain in the same place.

[Tuscan]

The problem is that your definition of "lawfully and fairly" is constrained by a preconception that if you want something to be lawful, it should be lawful.

 

You say that you are on the Macclesfield Canal at the moment. It is a canal which due to the channel profile doesn't present that many opportunities for casual mooring. If a significant proportion of moorings are actually pretty much permanently occupied by the same boats month in and month out, what hope for others?

 

If you want to remain in the same place, there are moorings available that you could PAY for that give you a right to remain in the same place.

 

So given that my intent is eventually to travel to the Shropshire union and I am moving every 14 days how long would you allow me to remain on the Macclesfield canal Dave?

[mayalld]

 

Why dont you read my reply in the context of the post I'm replying to?

It's not the distance that makes it ridiculous - it's the argument that CART could specify ANY distance that is ridiculous.

 

They can issue guidance that in their view boats that move x miles per year comply and a boater would be able to rely on that but that does not mean that boats moving fewer miles than x dont comply with the legislation

 

 

As I have said previously, I don't see that there is an issue with CRT offering the CCer guidance as a "model" to which an applicant for a licence can sign up. I don't see an issue with them offering several models.

 

Agreement by a boater to any model offered by CRT satisfies the board.

 

If a boater doesn't like any of the models offered, that boater can offer his/her own stated intentions as to how they will satisfy the board that they are engaged in bona fide navigation, and CRT can approve those ideas or not in individual cases (I would consider it reasonable for them to levy a charge of £50 for approval of an individual plan).

 

So, to that extent, it is NOT unreasonable for them to lay down a distance, and it is not unreasonable to suggest that there are alternate modes of compliance.

So given that my intent is eventually to travel to the Shropshire union and I am moving every 14 days how long would you allow me to remain on the Macclesfield canal Dave?

 

Insufficient information to say (even if it were up to me to say)!

 

You say "eventually", but give no indication of when that may be. Do you intend to hover around the Macc for 5 years then suddenly move to the Shropshire Union?

 

When you get to the Shropshire Union, is it your intention to move on elsewhere?

[Paul C]

So given that my intent is eventually to travel to the Shropshire union and I am moving every 14 days how long would you allow me to remain on the Macclesfield canal Dave?

 

I can't say what Dave's opinion is but I can tell you what the guidance would say. The Macc is a long canal though - where on the Macc are you now?

[LoneWolf]

 

As I have said previously, I don't see that there is an issue with CRT offering the CCer guidance as a "model" to which an applicant for a licence can sign up. I don't see an issue with them offering several models.

 

Agreement by a boater to any model offered by CRT satisfies the board.

 

If a boater doesn't like any of the models offered, that boater can offer his/her own stated intentions as to how they will satisfy the board that they are engaged in bona fide navigation, and CRT can approve those ideas or not in individual cases (I would consider it reasonable for them to levy a charge of £50 for approval of an individual plan).

 

So, to that extent, it is NOT unreasonable for them to lay down a distance, and it is not unreasonable to suggest that there are alternate modes of compliance.

 

I'd agree with all that except para 3.

I think CART would be exceeding their powers if they attempted to charge a boater to 'pre-approve' a cruising pattern.

If they believe a boater is not complying with the law then they should challenge it in the way the law already allows - As they did with Davies

[Timleech]

Why dont you read my reply in the context of the post I'm replying to?

It's not the distance that makes it ridiculous - it's the argument that CART could specify ANY distance that is ridiculous.

I did, I don't see what your problem is with my reply?

You seemed to be saying that being required to move 100 miles in a year was a ridiculous concept, I don't see why it would be. If sufficient people don't follow the spirit of CC guidelines, then more specific rules are likely to be imposed one way or another whether you like it or not.

As I said, it's not something I'm advocating but it could happen.

 

Tim

[Lady Muck]

I did, I don't see what your problem is with my reply?

You seemed to be saying that being required to move 100 miles in a year was a ridiculous concept, I don't see why it would be. If sufficient people don't follow the spirit of CC guidelines, then more specific rules are likely to be imposed one way or another whether you like it or not.

As I said, it's not something I'm advocating but it could happen.

 

Tim

The thing is, the deliberate vagueness of the current guidelines is something to be treasured. It means that people like the elderly couple we met last year who cc can still cruise - albeit on one canal, but they're not falling foul of any distance guidelines. Yes I am worried that NBTA will force a set distance and it's going to hurt some of us.

[LoneWolf]

I did, I don't see what your problem is with my reply?

You seemed to be saying that being required to move 100 miles in a year was a ridiculous concept, I don't see why it would be. If sufficient people don't follow the spirit of CC guidelines, then more specific rules are likely to be imposed one way or another whether you like it or not.

As I said, it's not something I'm advocating but it could happen.

 

Tim

 

No, i was not saying that being required to move 100miles per year is a ridiculous concept.

 

The post i was replying to said that CART could decide 3" or 1000miles as a distance and that would make it so.

My reply could have said 1mile, 100miles or 1000miles or any number of miles - The bit that is ridiculous is the thinking that CART can set ANY limit and it becomes in effect the law.

 

 

The thing is, the deliberate vagueness of the current guidelines is something to be treasured. It means that people like the elderly couple we met last year who cc can still cruise - albeit on one canal, but they're not falling foul of any distance guidelines. Yes I am worried that NBTA will force a set distance and it's going to hurt some of us.

 

Exactly. If parliament wanted to set a specific limit then they would have done so.

 

The current guidance, in my opinion, more of less reflects the law. It has to be vague because the law is vague

fwiw, i dont think that the judicial review will come up with a 'minimum distance' - I think it will assess the CART guidance and conclude that it is reasonable guidance

 

.

[mayalld]

 

I'd agree with all that except para 3.

I think CART would be exceeding their powers if they attempted to charge a boater to 'pre-approve' a cruising pattern.

If they believe a boater is not complying with the law then they should challenge it in the way the law already allows - As they did with Davies

 

They are allowed to charge for "services".

 

I would suggest that if they make every effort to provide a sufficient range of "off-the-shelf" packages that they accept will comply, then a one-off fee to register a new pattern would be proportionate (I would envisage that such newly agreed patterns would be usable by others, so it would be open to Mr Brown and his pals to agree something with CRT that would then be available to all.

[Allan(nb Albert)]

The thing is, the deliberate vagueness of the current guidelines is something to be treasured. It means that people like the elderly couple we met last year who cc can still cruise - albeit on one canal, but they're not falling foul of any distance guidelines. Yes I am worried that NBTA will force a set distance and it's going to hurt some of us.

I do not see how this can happen unless the law changes.

 

We have to remember that it was BW that promoted the Bill that subsequently became the 1995 Act. The original Bill was intended to force all boaters to have a home mooring. However, parliament would not allow this and insisted that choice should exist as not all boaters wanted or needed a permanent mooring.

 

The parliamentary records I have seen would tend to suggest that the intention of the Act as it relates to those without a home mooring is that the test regarding a boat being used 'bona fide for navigation' or not is simply that it should move every 14 days.

 

The 'reasonable under the circumstances' bit in the Act stems from the fact that BW wanted 14 days as a limit but was unable to put up a convincing argument as to why it should not be longer.

 

Two caveats -

• I have not read through the whole of the parliamentary record.
• There are legal arguments that might prevent the 'will of parliament' being used to determine what the Act means.

Quite simply, I do not see how a court can define navigation as travelling a minimum distance. I can see the possibility of Nick Brown convincing the court of a definition based on simply moving every 14 days (or more) which seems to be in keeping with the Act as intended by parliament.

 

Another couple of thoughts. BW did not introduce guidance to the 1995 Act until 2004, introducing the concept of a progressive journey over a substantial part of the network. The guidance was changed in 2008 and again in 2011 ( as a result of the judges comments in the Davies case. What we have now is substantially different from 2004.

 

How is it that BW got it so wrong when it was the Bill's promoter?

 

 

 

[RLWP]

How is it that BW got it so wrong when it was the Bill's promoter?

 

 

 

Because they were promoting a bill that intended everyone to have a home mooring, not the amendment made by parliament?

 

Richard

[churchward]

Quite simply, I do not see how a court can define navigation as travelling a minimum distance. I can see the possibility of Nick Brown convincing the court of a definition based on simply moving every 14 days (or more) which seems to be in keeping with the Act as intended by parliament.

 

The act is law the intentions of parliament before enactment is just history. Any judegment will depend on the judge at the time applying the meaning of the law from the act only.

[KevMc]

 

Exactly. If parliament wanted to set a specific limit then they would have done so.

 

 

They decided to leave it up to BW to decide so CRT have the power to decide a limit if they choose

[PaulG]

The parliamentary records I have seen would tend to suggest that the intention of the Act as it relates to those without a home mooring is that the test regarding a boat being used 'bona fide for navigation' or not is simply that it should move every 14 days.

 

"(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 seems to me that the actual wording of the Act implies that a CC'r needs, in the first instance, to "satisfy the board" that his vessel will be "will be used bona fide for navigation"; the 14-day limit looks like a secondary requirement.

i.e. If you can't "satisfy the board", then the 14 day requirement is irrelevant.

 

However, given a total lack of any punctuation in the clause, it's at least very difficult to seperate the two requirements.

Edited July 29, 2013 by PaulG

[churchward]

"(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 seems to me that the actual wording of the Act implies that a CC'r needs, in the first instance, to "satisfy the board" that his vessel will be "will be used bona fide for navigation"; the 14-day limit looks like a secondary requirement.

i.e. If you can't "satisfy the board", then the 14 day requirement is irrelevant.

 

However, given a total lack of any punctuation in the clause, it's at least very difficult to seperate the two requirements.

The lack of punctuation will have been intentional rather than incorrect syntax. This is often the case with legal documents this is so that the statement and meaning is taken as a whole not broken up seperate meanings.

[mayalld]

"(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 seems to me that the actual wording of the Act implies that a CC'r needs, in the first instance, to "satisfy the board" that his vessel will be "will be used bona fide for navigation"; the 14-day limit looks like a secondary requirement.

i.e. If you can't "satisfy the board", then the 14 day requirement is irrelevant.

 

However, given a total lack of any punctuation in the clause, it's at least very difficult to seperate the two requirements.

 

I would agree that "used bona fide for navigation" is the primary requirement. The "Without Remaining" isn't a definition of "bona fide navigation", rather it is an addition to it.

 

Thus, if I were to undertake a voyage of some duration, setting off from home here in the far north, and regularly progressing down towards the barren wastelands of the South, before heading on to perform missionary work in Yorkshire, then return here in two years time, it wouls be difficult to argue that I had not been engaged in bona fide navigation throughout the period of the consent.

 

However, if my navigation pattern was to move every day for a week, then moor for a month because I wanted to, I would be remaining continuously in one place for more than 14 days, so I would fail on that count.

 

The problem here is that the second requirement is pretty unambiguous (apart from playing silly buggers with "reasonable in the circumstances"), so people latch onto it, and claim that if they do that, they are OK.

 

The first requirement is much more open to interpretation, and because it is difficult, people emphasise compliance with the bit they understand, and pretend that there is nothing to comply with here.

[Tuscan]

I recall perhaps incorrectly that the judge ruled in the Davis case that it was the case of 'intent' in that case the guy stated clearly that he had no 'intent' to carry out a bone fide navigation and that his intent was permanently to stay in he same short area. This was clearly not bone fide navigation. However in your example above if you had moved every day for a week then moored for 14 days and repeated the exercise say for a total journey of 15 - 20 Kms then reversed your route then you would also be compliant.

[PaulG]

The lack of punctuation will have been intentional rather than incorrect syntax. This is often the case with legal documents this is so that the statement and meaning is taken as a whole not broken up seperate meanings.

Yes, that's what I thought, too.

[carlt]

 

 

Thus, if I were to undertake a voyage of some duration, setting off from home here in the far north, and regularly progressing down towards the barren wastelands of the South, before heading on to perform missionary work in Yorkshire, then return here in two years time,

CRT would surely argue that you had no intention of completing your journey as it is common knowledge that you would have been eaten by cannibals whilst attempting to cross Nottinghamshire.

[Lady Muck]

I do not see how this can happen unless the law changes.

Well that's exactly my point - if Nick Brown wins, CRT could then have grounds for a new Act.

[RLWP]

CRT would surely argue that you had no intention of completing your journey as it is common knowledge that you would have been eaten by cannibals whilst attempting to cross Nottinghamshire.

 

He'd be OK, he's known to be distasteful

 

Richard

[PaulG]

before heading on to perform missionary work in Yorkshire, then return here in two years time, it

Can you still get a Missionary Position in Yorkshire?

[Hawkmoth]

Can you still get a Missionary Position in Yorkshire?

Yes, but not frequently enough