NICK BROWN vs CANAL & RIVER TRUST Charity responds to misconceived claim for judicial review

nicknorman · February 19, 2014

But the problem remains. It's easy to say we can all comply by cruising well within the limits of the guidelines, but no-one is really clear where the limits lie. Moving up a lock or three or five or mile or three or five every 14 days may comply, or it may not. It seems to be within the gift of CRT to decide, on the day. No-one is truly sure. I'm certainly not.

Or should I be, and it's just a case of getting myself edumacated?

MtB

I think you're right. (Curses). People who genuinely want to CC have no problem complying with the rules. But those who want to move their boats the absolute minimum necessary to avoid getting done, because they don't really want to CC at all, they are just trying to live on their boats in one location on the cheap, have a problem because they are not sure just how finely they can cut it. What a shame for them!

mayalld · February 19, 2014

I don't think any judge would be very interested in the guidance, 17.3.c.ii would probably what he/she would refer to.

Indeed, and he will note the words "satisfy the board", then take note that CRT sets forth what will satisfy it (as successor to the board) in the guidance.

Any judge will doubtless then take note that the guidance has been revised in response to previous cases, and reach a conclusion that CRT has acted reasonably in providing guidance as to what will satisfy it, and that the guidance does not appear to impose requirements that go beyond what the trust could reasonably ask before being satisfied.

MtB · February 19, 2014

I think you're right. (Curses). People who genuinely want to CC have no problem complying with the rules. But those who want to move their boats the absolute minimum necessary to avoid getting done, because they don't really want to CC at all, they are just trying to live on their boats in one location on the cheap, have a problem because they are not sure just how finely they can cut it. What a shame for them!

Yes that's exactly it. But at least they know for sure that "shuffling up and down the same twelve mile stretch of canal" as the judge put it in the Paul Davies case IIRC, is cutting it too fine.

MtB

Paul C · February 19, 2014

You may well be right. Personally I will wait till I hear why Nick Brown abandoned the JR. So far I have only heard one side of the situation with the full force of the CRT publicity machine.

I'd be interested why he abandoned too, but only from a curiousity point of view. For example, no matter how good the reason to abandon, it doesn't change the fact that he's basically lost this case, and there's no real hope of having it addressed in a court now.

What's a bit odd is that he's left it very late, after all it was 1 day in on the 2 day hearing, so only a day to go before judgement. He's incurred (probably quite large) costs in having the one day of court time, if he were planning to abandon, or the facts as laid out in front of him made it blindingly obvious that abandoning was the sensible thing to do, why not save an awful lot of bother (and money) and never start it all?

Quinafloat · February 19, 2014

Indeed, and he will note the words "satisfy the board", then take note that CRT sets forth what will satisfy it (as successor to the board) in the guidance.

Any judge will doubtless then take note that the guidance has been revised in response to previous cases, and reach a conclusion that CRT has acted reasonably in providing guidance as to what will satisfy it, and that the guidance does not appear to impose requirements that go beyond what the trust could reasonably ask before being satisfied.

As you say, the guidance has been changed by previous court cases which would surely imply that the judges have not used it as the criteria of satisfying the board.

magnetman · February 19, 2014

Is he in CRT's pocket

RLWP · February 19, 2014

Which other inland waterways navigation authorities allow CCing?

Well, none of course. It's a category created and managed by CRT

Richard

MtB · February 19, 2014

Is he in CRT's pocket

Unlikely though we can but hope.

At least it will stop him wasting huge rafts of our (CRT's) licence money of frivolous cases.

MtB

**magpie patrick** · February 19, 2014

Well, none of course. It's a category created and managed by CRT

Richard

Not taking the question quite so literally, which other navigation authorities accept registration or licence without a home mooring?

Answer once again is none, assuming it is annual licences we are talking about. The EA (and perhaps others) do give an option of the boat normally being stored on a trailer.

pelicanafloat · February 19, 2014

It would have been fascinating if the the title was 'CaRT abandons Nick Brown's Claim' .... what on earth would we have said then?

Let me ponder .. "It's good news week, someone's dropped an 'oops' somewhere, contaminating ...." .

Just think .... park where you like .... pay what you feel is fit for purpose ..... movement is forbidden .... residential moorers get free parking, free council tax 100% discount, free hook up to free electricity ..... free pump outs from weekly visiting boats ..... free water supply .... free support for when passing boats go too fast .... absolutely allowed to do anything they want AND be allowed to be totally judgemental towards every other prick who upsets the apple cart!

And did I mention the free wanderings allowed throughout the winter period whereby all stopping of movement will force a payment from CaRT for the inability to allow the continuous cruising fraternity to be .... continuous! And woe be tied if any snow and ice should interfere with reason, I mean to say .... this just has to be the tip of the proverbial iceberg!

And hey! What happens when in future years, we don't get a 'Winter' season ..... does this mean that every single person will have no reason to stop at any time, causing actual financial harm to all that (used) to rely on the stopping season? Will we get financial inducements to stop and linger? ....

Nick Brown? Just why did you stop!??

Quinafloat · February 19, 2014

I'd be interested why he abandoned too, but only from a curiousity point of view. For example, no matter how good the reason to abandon, it doesn't change the fact that he's basically lost this case, and there's no real hope of having it addressed in a court now.

What's a bit odd is that he's left it very late, after all it was 1 day in on the 2 day hearing, so only a day to go before judgement. He's incurred (probably quite large) costs in having the one day of court time, if he were planning to abandon, or the facts as laid out in front of him made it blindingly obvious that abandoning was the sensible thing to do, why not save an awful lot of bother (and money) and never start it all?

A senior judge granted him the JR. Therefore that judge must have considered there was something to be clarified. Until we know why the case was abandoned we will not know whether it was on the basis of the facts presented or some other reason.

Personally I find the lack of clarification that will now continue around this subject a huge disappointment. I suppose that I will just have to wait on more court cases in the future to clarify the matter.

b0atman · February 19, 2014

This is probably good news ?

churchward · February 19, 2014

A senior judge granted him the JR. Therefore that judge must have considered there was something to be clarified. Until we know why the case was abandoned we will not know whether it was on the basis of the facts presented or some other reason.

Personally I find the lack of clarification that will now continue around this subject a huge disappointment. I suppose that I will just have to wait on more court cases in the future to clarify the matter.

I think there is only a lack of clarification for those that do not like the court rulings and CRT explanations have provided.

The rules have been tested several times with pretty much the same result with one or two exceptions. How many times can it be gone round before it sinks in that CRT are acting within the remit of the act?

In any case it can often be observed that some that complain of lack of clarity also like to exploit the grey areas to do what they wish and it is only when BW/CRT tighten things up there are cries of foul.

Jerra · February 19, 2014

But the problem remains. It's easy to say we can all comply by cruising well within the limits of the guidelines, but no-one is really clear where the limits lie. Moving up a lock or three or five or mile or three or five every 14 days may comply, or it may not. It seems to be within the gift of CRT to decide, on the day. No-one is truly sure. I'm certainly not.

Or should I be, and it's just a case of getting myself edumacated?

MtB

I know this is a simplistic view (but then I am a simple man). The guidance is very clear and as has been stated it is really only those who don't want to CC who want/need a definition in distance.

To me it is all summed up in the words "bona fide" generally accepted I understand to mean "in good faith". If you are in good faith continuously cruising it is doubtful (IMO) that you will fall foul of the guidance. On the other hand if you are desperately trying to limit the distance you cover due to job/school/other commitments you aren't (again IMO) continuously cruising "in good faith".

Smelly · February 19, 2014

Yes that's exactly it. But at least they know for sure that "shuffling up and down the same twelve mile stretch of canal" as the judge put it in the Paul Davies case IIRC, is cutting it too fine. MtB

Wasn't it nine miles?

Quinafloat · February 19, 2014

I think there is only a lack of clarification for those that do not like the court rulings and CRT explanations have provided.

The rules have been tested several times with pretty much the same result with one or two exceptions. How many times can it be gone round before it sinks in that CRT are acting within the remit of the act?

In any case it can often be observed that some that complain of lack of clarity also like to exploit the grey areas to do what they wish and it is only when BW/CRT tighten things up there are cries of foul.

So far I have liked the court rulings. They have made some things a lot clearer. Now, if we had more clarity there would be less grey areas for people to hide in. I was hoping for a black and white ruling without grey areas. CRT explanations are just that. They tell the story as they would like it, not necessarily as the law tells it.

After all if you got stopped for speeding in a car and asked what the speed limit was and were told "I think you were going too fast" you may not feel that was totally fair.

CCing is not necessarily doing so many miles or locks every 14 days, and summer is not winter. During the summer I travel practically every day for about 2-4 hours. During the winter I choose an area to cruise and move every 10-12 days. Most years 1 travel about 1000 lock miles. Being a gold licence holder I normally spend 3-4 months on EA waters each year. However during the winter I have been accused of overstaying due to the vagaries of CRT sightings. Luckily I keep a highly accurate log and can refute/dispute any overstaying claim, but cannot dispute/refute any claim of staying in one area too long as nobody knows what the rules might be. Similarly, over distance travelled, I frequently overwinter in the Ely area, just getting to and from the canal system is 200 lock miles with no sightings by CRT, despite them issuing my gold licence.

The current, one size fits all, guidance is totally inadequate for me, and a lot of other CCers. Yes I want clarity because I think I am obeying the spirit of bona fide cruising, the trouble is that nobody knows what that is.

Wasn't it nine miles?

Wasn't it intent?

carlt · February 19, 2014

Not taking the question quite so literally, which other navigation authorities accept registration or licence without a home mooring?

Edited because it has changed since I last looked.

Edited February 20, 2014 by carlt

MtB · February 20, 2014

To me it is all summed up in the words "bona fide" generally accepted I understand to mean "in good faith". If you are in good faith continuously cruising it is doubtful (IMO) that you will fall foul of the guidance. On the other hand if you are desperately trying to limit the distance you cover due to job/school/other commitments you aren't (again IMO) continuously cruising "in good faith".

Ah but this is only half the story. The law says 'bona fide navigation' IIRC, and we still don't have a definition of that.

We know what it isn't, i.e. bimbling up and down a 12 (or 9) mile stretch of the K&A, but we don't know the lower limit of what DOES 'satisfy the board' as 'bona fide navigation'.

MtB

Ex- Member · February 20, 2014

I Really struggle to see what is so difficult to understand with the guidance for CC'rs navigation.

I really have no problem with understanding the main gist of the guidance, but struggle to understand why many seem unable too, or should I suggest unwilling to.

https://canalrivertrust.org.uk/media/library/633.pdf

MtB · February 20, 2014

I Really struggle to see what is so difficult to understand with the guidance for CC'rs navigation.

I really have no problem with understanding the main gist of the guidance, but struggle to understand why many seem unable too, or should I suggest unwilling to.

https://canalrivertrust.org.uk/media/library/633.pdf

Understanding the main gist of it is easy. It's fishing for the lower limits by people who'd rather not be moving at all that remains as difficult as ever.

MtB

Ex- Member · February 20, 2014

Understanding the main gist of it is easy. It's fishing for the lower limits by people who'd rather not be moving at all that remains as difficult as ever.

MtB

But there's nothing in the guidelines that allow for

people who'd rather not be moving at all

The guidelines are clear.

MtB · February 20, 2014

But there's nothing in the guidelines that allow for

The guidelines are clear.

Even so, there must be a point at which the CCing gets so slow that CRT would decide to take enforcement action. You don't care where it is, those who'd rather stay put in an area most certainly do. Especially as in the past BW employees have told them cruising A to B to C to B to A is fine. Now it isn't, but they still don't know what IS. And nor do you, obviously as your best suggestion is to cruise well within the limits.

I hold that cruising 'just within the limits' is legally acceptable too. If only we knew what the limits were.

Well not me, I have a home mooring so am not obliged to 'bona fide navigate'.

MtB

Jeanie920 · February 20, 2014

Understanding the main gist of it is easy. It's fishing for the lower limits by people who'd rather not be moving at all that remains as difficult as ever.

MtB

Surely people who'd rather not be moving should have a home mooring. Isn't that C&RT's argument?

nick_theboatman · February 20, 2014

JUDICIAL REVIEW DROPPED: ABSTRACT CASE WILL NOT RESOLVE ISSUE OF LAWFULNESS OF GUIDANCE

Nick Brown, claimant in the judicial review proceedings against Canal & River Trust (CRT) to decide whether the Guidance for Boaters Without a Home Mooring is lawful, today discontinued the action. He said “During the hearing it became apparent that this case could not after all decide on the lawfulness of the Guidance because I am not facing any enforcement action myself. Therefore the case should not continue”.

In his judgment Mr Justice Lewis stated:

”During the course of argument I raised a problem that is that the Courts are reminded of the undesirability of deciding an issue absent a proper factual context... the Court has warned against abstract actions and needs a proper factual matrix to assess cases... In the light of that there is very little purpose to this hearing as it would not resolve anything. CRT would prefer, as a responsible public body, to have a judgment that would allow it to discharge its duties in the right way but any judgement that I could give would be very little use on the ground.”

Mr Brown added “The arguments presented by my legal team will be of assistance to boaters who are subject to enforcement action”. He was represented by Chris Johnson of Community Law Partnership and Martin Westgate QC.

Lewis J raised a number of legal points that will be of no comfort to CRT. He found s.17 (3) © (ii) of the British Waterways Act unclear: “The more you look at the statute the weirder it becomes” he commented. He added that it would have been helpful if CRT had addressed this dispute by seeking new legislation. Mr Justice Hildyard also told CRT this in the Moore case in 2012.

Mr Justice Lewis agreed that as far as “bona fide navigation” was concerned, what was good for boaters with moorings was also good for those without. “An occasional trip down to the Dog and Duck” might very well be bona fide navigation whether this was from a marina or from a towpath spot.

Mr Justice Lewis also observed that “Place” could be as small as an individual boat length, by stating that the mooring or other “place” to keep a boat required by s.17(3)©(i) has the same meaning as the “place” used in s.17(3)©(ii).

Lewis J also stated that in his opinion, the Guidance took legislation that was already difficult to understand and did not make understanding it easier. Mr Brown observed that this means the Guidance is of little assistance to a boater seeking to ensure he is compliant with the British Waterways Act 1995. Contrary to CRT’s assertion that the Guidance remains “valid and applicable” it is now called into question.

Mr Brown was granted leave to proceed with the judicial review by Lord Justice Jackson in July 2013. Permission was confined to the issue of whether the Guidance accurately reflects s.17(3)©(ii) of the British Waterways Act 1995. This governs the obligations of boaters without home moorings. Non-compliance can result in the seizure and removal of the boat.

CRT attempted to claim costs in excess of £100,000. This could have deterred other challengers, but Mr Justice Lewis rejected CRT’s application and ruled that CRT would have to justify the amount claimed.

nick_theboatman · February 20, 2014