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

[carlt]

Just trying to find a 'land based analagy'

 

The canals are 'owned' by C&RT and access is granted by them subject to conditions.

 

What would happen if a 'camper van' ( or several camper vans) pulled up and tucked themselves away in a corner of a roadside 'cafe' or motorway services.- As 'private' land with 'access conditions' what can the owners do that C&RT cannot do ?

 

There are suggestions that C&RT should be lenient or offer 'help' as the person(s) may be in financial difficulty or have health problems' - what responsibilities would the Motorway services owner have and why would it be any different to C&RT's responsibilities ?

 

I know there are numbers of example of 'travellers' turning up in a field overnight and the problems that causes - but at the end of the day (whilst it may take a few days) they are eventually moved-on. What legislation is used that could not be used by C&RT ?

There are specific rights that land based travellers have that boat dwellers do not.

 

One of these is that they cannot be summarily evicted unless their presence presents an immediate risk to them or others.

 

There are welfare checks that have to be carried out before any enforcement action begins.

 

It is also worth noting that if it is public land most authorities will take no action at all unless there are above a certain number of vehicles on the illegal encampment (usually 8 but it depends on the site).

[Hastings]

CRT is a charity, not a housing authority. It has no legal requirement to be interested in the personal circumstances of its customers (= licence payers, mooring fee payers), and the income or lack of income of boat owners is none of its concern. There are contractual fees to be paid, and as long as the boat owner, or someone else pays them, and on time, then CRT won't have a concern.

 

Having said that, CRT do seem to care, and I have heard many times from discussions with boaters, and see on this forum, that if you declare problems in advance of doing something outwith the guidance/rules, they tend to be pretty sympathetic and try to help. But they still expect you to pay your dues, and on time, and I see nothing wrong with that. I have to pay to business rates and council tax by the due date, and there's no reason anyone should be be remotely interested if I might be late in paying, or can't pay. People who are in such circumstances maybe need to approach agencies or other charities who have some involvement in this matter. Living on a canal boat is not a cheap alternative to bricks and mortar accommodation; many posts on this forum say that it costs much the same as renting a flat.

 

I'm not trying to be awkward, but a charity is a limited company that has to make the books balance. CRT can reasonably expect canal users and boat residents to pay the correct dues - otherwise it risks being insolvent.

[carlt]

CRT is a charity, not a housing authority. It has no legal requirement to be interested in the personal circumstances of its customers

 

Perhaps it should have.

[matty40s]

CRT is a charity, not a housing authority. It has no legal requirement to be interested in the personal circumstances .......

As soon as BW included residential in any if it's moorings titles it became responsible. The fact that spokespeople quote your first sentence time and time again does not absolve this whether BW/CRT like it or not.

[Tuscan]

As soon as BW included residential in any if it's moorings titles it became responsible. The fact that spokespeople quote your first sentence time and time again does not absolve this whether BW/CRT like it or not.

To me it's just a pragmatic decision that CRT will have to make sooner or later. More people are living on boats and also CC'ing from all sorts of backgrounds. More are getting into difficulty age, health or financial.

 

If a boater has a problem that means he falls fowl of the guidelines then it follows CRT have a problem. They can either wash their hands and just pay their lawyers and go to Court or they can try and help some of their customers find/access external support to either get ashore or conform to the guidelines this not only saves money but gives better PR perhaps leading to more engagement and donations etc.

[Hastings]

To me it's just a pragmatic decision that CRT will have to make sooner or later. More people are living on boats and also CC'ing from all sorts of backgrounds. More are getting into difficulty age, health or financial.

 

If a boater has a problem that means he falls fowl of the guidelines then it follows CRT have a problem. They can either wash their hands and just pay their lawyers and go to Court or they can try and help some of their customers find/access external support to either get ashore or conform to the guidelines this not only saves money but gives better PR perhaps leading to more engagement and donations etc.

In practice, I do agree, as CRT has to find a way forward, and working with customers who have difficulties (a) is almost certainly cheaper than the legal route, where realistically they will spend lots of money and get little if anything back, and ( it tends to enhance CRT's image, which is not great in all respects!

 

However, I maintain my point that CRT doesn't have legal responsibility for people who get into difficulty, and this is exactly the same as any private landlord who rents out flats and houses. CRT is not a publicly owned body, and I don't see why some people expect it to act like one. It's a limited company (by guarantee), whose purpose in simplistic terms is to look after the canals, make the books balance financially, and ideally make a profit to reinvest in the charitable aims. Some might say that the Government is at present a very significant funder of CRT, and that's true, but so it is of RBS and Lloyds Bank, and I suspect no one would anticipate them being very kind to some customer who finds that they can't pay. They would, after a period of due process, force them out of their property. CRT is doing little different. On the canals, from running into debt to having your boat seized (assuming that you are living on it) takes a very long time. I've heard of several cases which were 18 months to several years. Hardly high-handed tactics!

 

If we expect CRT to act with more of a social conscience, then we may have to get our MPs to change its legal status, so getting its memorandum/articles of association to be changed to provide for that.

Edited February 25, 2014 by Hastings

[Tuscan]

I agree but from a practical perspective regardless of a moral one it has to make financial sense both from cost and fund raising. If only one person was to get funding for a mooring or housed by social services through outside agencies being contacted then the saving in legal and management time would surely cover the cost of a salary. The waterways chaplaincy is great but their cover and funding is patchy that's why I believe it needs to be an internal CRT role.

[NBDensie]

I should add that in my view the ‘Guidance’, in terms of desirable patterns of waterways use – as with much of the Licence T&C’s - is largely sensible and commendable, and should be applied to all pleasure boaters. The key element is consideration for others.

 

I have no problem with the Guidance meant as such, “not having the force of law”. My problem [as a matter of principle only, being unaffected] lies with the USE made of the Guidance, contrary to the acknowledgement of its non-legal status, to justify imposition of the most drastic of sanctions on boaters seen as non-compliant according only to those guidelines.

 

Unfortunately in the real world if the Guidelines cannot ultimately be enforced they will be ignored by a significant number of people, especially those whose main interest in the waterways is cheap housing.

 

I would argue that the ultimate sanction for not following the Guidelines is backed by law under "bona fide navigation".

[Allan(nb Albert)]

I agree but from a practical perspective regardless of a moral one it has to make financial sense both from cost and fund raising. If only one person was to get funding for a mooring or housed by social services through outside agencies being contacted then the saving in legal and management time would surely cover the cost of a salary. The waterways chaplaincy is great but their cover and funding is patchy that's why I believe it needs to be an internal CRT role.

 

The last I heard regarding the appointment of a welfare officer was that it one of several options under consideration.

 

Apart from 'do nothing' do you know what the other options are?

 

 

 

[MtB]

I may have missed any discussion on this but this strikes me as important. From CaRT's press release post#1

 

""The evidence submitted by the Trust explains that use for navigation is a charitable public purpose but anyone who uses the waterways for their (floating) home without continuously cruising is deriving personal benefit which is a misuse and abuse of charitable property without a fair payment in return.

The recently updated Charity Commission guidance on the issue of personal benefit makes this clear""

 

The way I read that is that there is another parallel set of guidelines which CaRT may be able wheel out - suggesting they are being diddled out of some kind of charitable benefit by virtue of their new status.

 

 

 

This bothered me too and I'm surprised no-one else (apart from you) seems to be.

 

Looks to me as though CRT are planning to (or maybe that should be obliged to) levy a substantial 'residential' surcharge on licenceholders living aboard to reflect the benefit they are getting. Not sure why CCers should be excluded though, unless they are engaged in traveling by way of trade.

 

Maybe identifying liveaboards will be the NewSpeak role of the planned 'Welfare Officer', just mentioned.

 

 

MtB

[NigelMoore]

Unfortunately in the real world if the Guidelines cannot ultimately be enforced they will be ignored by a significant number of people, especially those whose main interest in the waterways is cheap housing.

 

I would argue that the ultimate sanction for not following the Guidelines is backed by law under "bona fide navigation".

 

In the real world guidelines as such can never be enforced.

 

Problems arising from failure to adhere to guidelines, may well result in unlawful situations which admit of legal remedy.

[NBDensie]

 

 

This bothered me too and I'm surprised no-one else (apart from you) seems to be.

 

Looks to me as though CRT are planning to (or maybe that should be obliged to) levy a substantial 'residential' surcharge on licenceholders living aboard to reflect the benefit they are getting. Not sure why CCers should be excluded though, unless they are engaged in traveling by way of trade.

 

Maybe identifying liveaboards will be the NewSpeak role of the planned 'Welfare Officer', just mentioned.

 

 

MtB

 

Operating the waterways for navigation is a charitable purpose. Of course CRT could have a large licence fee for CCers who are navigating, as for anyone else, but that is a matter of finance. It's a rather different discussion to that of the principle of gaining benefit outside the charitable purposes.

[Ex- Member]

I think that maybe you need to re read the thread. I think what we are discussing is the difference between the "Guidance" from CRT and The law as some of us understand it.

In my own case I would always encourage boaters to follow the "Guidance" but that does not mean it follows the letter of the Law.

In my own case I have no interest in staying in one area for very long (except for maybe 3 months of the year during winter). I have covered most of the system in my time on my boat, and this year will cruise from G&S to Lancaster Canal. I personally have no problem with what other boaters do, I am to busy doing what I do to worry about other boaters. I have never had a problem finding somewhere to moor and that includes the London Area.

My experience of cruising in the "real world" is that most boaters could not care less about "Guidance" or "The Law" for boaters without a "Home Mooring" they just get on with enjoying the canals.

I personally think that at times CRT and some on here perceive there is a problem yet in the mooring survey that was completed by over 1,200 it was clear that there was not a problem. I have been moored where I am now for 6 days and there is room here for at least another 10 boats. In those 6 days I have seen 3 boats come past and 2 of those were liveaboards from the LTM that are close going to the water point.

 

Have to agree John, even in our short time on the water and talking to other boaters this really is a non issue, as you say the majority seem to get on with it regardless without having to refer to guidelines. In reality the vast majority know the basic rules, as in life some will take the micky and as in life a tiny minority of people many of which probably don't even have a boat will make a big fuss about nothing with regard to this issue on a couple of internet forums. Just more irrelevant waffle.

Edited February 25, 2014 by Julynian

[NBDensie]

 

In the real world guidelines as such can never be enforced.

 

Problems arising from failure to adhere to guidelines, may well result in unlawful situations which admit of legal remedy.

 

 

In the real world guidelines are frequently enforced by licencing. If you behave in a way counter to a Registration Body guidelines you may be refused a licence. Then operating without a licence is illegal.

[NigelMoore]

Just trying to find a 'land based analagy'

 

The canals are 'owned' by C&RT and access is granted by them subject to conditions.

 

What would happen if a 'camper van' ( or several camper vans) pulled up and tucked themselves away in a corner of a roadside 'cafe' or motorway services.- As 'private' land with 'access conditions' what can the owners do that C&RT cannot do ?

 

There are suggestions that C&RT should be lenient or offer 'help' as the person(s) may be in financial difficulty or have health problems' - what responsibilities would the Motorway services owner have and why would it be any different to C&RT's responsibilities ?

 

I know there are numbers of example of 'travellers' turning up in a field overnight and the problems that causes - but at the end of the day (whilst it may take a few days) they are eventually moved-on. What legislation is used that could not be used by C&RT ?

 

A more useful question might be ‘what legislation can be used by CaRT that could not be used by private owners?’

 

It is pointless to attempt analogies based on land ownership. As a creature of statute CaRT, as with local authorities, is bound by the limited powers specifically granted to them; common-law rights of land owners do not avail them.

 

This has both advantages and disadvantages – statutory bodies can be endowed with powers over-riding &/or usurping common law rights.

Your private roadside café owner will have to face an interwoven set of laws, and legal rights on all sides, making trespass action complicated.

 

So far as boats or other structures attached to private, offside land, the situation is complex with CaRT also, but so far as keeping the public highway of canal and towpath clear, they are in an enviable position relative to your example – they just move the ‘camper vans’ along, and keep doing so if necessary. They have no need to go through any processes, nor any need to obtain court approval.

[Tuscan]

The last I heard regarding the appointment of a welfare officer was that it one of several options under consideration.

Apart from 'do nothing' do you know what the other options are?

 

Last I heard Richard Parry was meeting one of the waterways chaplains in the south from a fact finding perspective earlier this month, I am unaware of the outcome.

 

Edited for fat thumb

Edited February 25, 2014 by Tuscan

[NigelMoore]

I'm not trying to be awkward, but a charity is a limited company that has to make the books balance. CRT can reasonably expect canal users and boat residents to pay the correct dues - otherwise it risks being insolvent.

 

There are a couple of points arising from this –

 

Of course CaRT can reasonably expect to receive the correct dues, and is fully entitled to pursue those in court. That is not, however, the burden of the “Guidance” debate which has nothing to do with licence evasion – for which no guidelines are necessary - nor with mooring fees.

 

The other point is that technically, CaRT is insolvent, being financially incapable of meeting its imposed commitments from the start. It effectively walks a tolerated tightrope, but at any point that Government decide that the situation has moved from ‘technical’ to ‘intolerable’, then the legislation provides that they can transfer the waterways management over to some new body appointed by them.

[NigelMoore]

In the real world guidelines are frequently enforced by licencing. If you behave in a way counter to a Registration Body guidelines you may be refused a licence. Then operating without a licence is illegal.

 

Incorrect [if your ‘may’ is used to suggest ability rather than probability].

 

So far as the waterways are concerned – with which this debate is concerned - you may not be refused a licence for any reason other than one or more of the 3 mandated by Parliament in the ’95 Act.

 

The whole burden of this debate is whether the Guidance accurately reflects an element of the third ‘reason for refusal’ as in s.17(3)( c )(ii) of that Act. It is the law only that can be enforced through withdrawing or refusing the licence; the Guidance, if a case is brought before the court in the event of any disagreement, then only comprises an argument for one side’s interpretation.

 

In the event of a court's approval of the authority's interpretation, the element of the guidance approved will then become 'judge-made law'.

[NigelMoore]

This bothered me too and I'm surprised no-one else (apart from you) seems to be.

 

Well, very few seem to have picked up on it, but I responded to this in post #433, and as I mentioned there, it is a topic I have flagged up before. I’ve just looked it up, and in fact there was some minimal discussion under “CRT statement Nick BrownvCRT”. Mind you, not too many seemed to be bothered by it then either - at least one expressly so.

 

I first raised the point on page 6 of that topic, #109, quoting Johnson’s paragraphs 30&31 regarding public benefit relating to the Johnson claim for universal licence requirement.

 

I highlighted Johnson’s targets more specifically on page 7, in #123 - “One for those with home moorings, finagling the charity rules angle; Johnson para. 54:” wherein I explained how he was seeking to use the public benefit angle to seek compensation from all moorers, even those outside CaRT jurisdiction [!]

 

Discussion did ensue, largely with carlt’s input, for the next couple of pages.

 

In responding to one of carlt’s observations, in #132 I gave more detailed explanation of Johnson’s reasoning, as to how the new charity status related to the 'Guidance' topic.

 

And finally, once again in response to carlt, I explained why I felt that the Johnson’s claim could not, after all, be upheld, in #144 –

 

"The key problem for this interpretation of the combined effect of Charities Law and the waterways Acts, is that the Transfer Order insists in its preamble that it “does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise"."

 

My belief that Johnson's carefully constructed argument [still in development I am sure] is nonsense, is not to say that this does not need to be watched very carefully indeed.

[magnetman]

Finagling

 

That's a new one for me ta

[Allan(nb Albert)]

 

Well, very few seem to have picked up on it, but I responded to this in post #433, and as I mentioned there, it is a topic I have flagged up before. I’ve just looked it up, and in fact there was some minimal discussion under “CRT statement Nick BrownvCRT”. Mind you, not too many seemed to be bothered by it then either - at least one expressly so.

 

I first raised the point on page 6 of that topic, #109, quoting Johnson’s paragraphs 30&31 regarding public benefit relating to the Johnson claim for universal licence requirement.

 

I highlighted Johnson’s targets more specifically on page 7, in #123 - “One for those with home moorings, finagling the charity rules angle; Johnson para. 54:” wherein I explained how he was seeking to use the public benefit angle to seek compensation from all moorers, even those outside CaRT jurisdiction [!]

 

Discussion did ensue, largely with carlt’s input, for the next couple of pages.

 

In responding to one of carlt’s observations, in #132 I gave more detailed explanation of Johnson’s reasoning, as to how the new charity status related to the 'Guidance' topic.

 

And finally, once again in response to carlt, I explained why I felt that the Johnson’s claim could not, after all, be upheld, in #144 –

 

"The key problem for this interpretation of the combined effect of Charities Law and the waterways Acts, is that the Transfer Order insists in its preamble that it “does not remove any necessary protection or prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise"."

 

My belief that Johnson's carefully constructed argument [still in development I am sure] is nonsense, is not to say that this does not need to be watched very carefully indeed.

Nigel Johnson's sworn statement seems in parts to be a plea that the case was found in CaRT's favour on economic grounds. I found it peculiar that this argument was put forward when the case was simply about the guidance being a correct interpretation of the law.

 

Bearing in mind that Mr Johnson left CaRT's employ on 31 December 2013, does anyone know if he was present at the hearing and would have been available to give evidence and be cross examined?

 

 

[NigelMoore]

Bearing in mind that Mr Johnson left CaRT's employ on 31 December 2013, does anyone know if he was present at the hearing and would have been available to give evidence and be cross examined?

 

Yes indeed, Mr Johnson was there throughout, together with 6 others in the CaRT camp, and it was he who was directly instructing the two barristers fielded. To all intents and purposes, he was still in the driving seat. A lady I have never seen before was there beside him, and speculation held it might have been Ms Lewis, venturing into the real court world for a taste of what she is expected to be in for?

 

A thought to bear in mind also, is that BW ex-employees are always on tap for recall and witnessing in court, so long as they are live and mobile, for decades after employment severance. Once you are theirs, you are theirs for life!

[carlt]

 

However, I maintain my point that CRT doesn't have legal responsibility for people who get into difficulty, and this is exactly the same as any private landlord who rents out flats and houses. CRT is not a publicly owned body, and I don't see why some people expect it to act like one.

Some private landlords believe they have a moral responsibility for their tenants, should they get into difficulty.

 

Wouldn't it be a better world if everybody shared that moral responsibility for their fellow man?

[magnetman]

Can I have some of what you are smoking maaan

[carlt]

Can I have some of what you are smoking maaan

I don't smoke and have never felt the need for it to show compassion.