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

[carlt]

Well that clears that up then....(Not!!!)

[cotswoldsman]

Well that clears that up then....(Not!!!)

Especially this part

 

 

 

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).

[Allan(nb Albert)]

.... and this part

 

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.

 

 

Hopefully, a transcript of proceedings will be produced.

[magnetman]

they do need a new Act if anything is going to change or just start charging more money

 

Its always been fairly obvious that a boat is always in different place to before by virtue of being on water

 

All a bit silly

[Naughty Cal]

they do need a new Act if anything is going to change or just start charging more money

 

Its always been fairly obvious that a boat is always in different place to before by virtue of being on water

 

All a bit silly

 

But CRT will be damned if they do and damned if they dont.

 

If they apply to change the act there will be those who claim the new guidelines are unfair and if they continue with the current guidelines there will be those who claim they are not clear enough.

 

What can they do?

[jenlyn]

But CRT will be damned if they do and damned if they dont.

 

If they apply to change the act there will be those who claim the new guidelines are unfair and if they continue with the current guidelines there will be those who claim they are not clear enough.

 

What can they do?

They could attempt to think outside the box, by sitting down with CC'ers and work on a mutual agreement. Or they could take the route of attempting to change the legislation. The ball is in their court now, and possibly this would be a good time for the new Md to make his presence felt.

[Naughty Cal]

They could attempt to think outside the box, by sitting down with CC'ers and work on a mutual agreement. Or they could take the route of attempting to change the legislation. The ball is in their court now, and possibly this would be a good time for the new Md to make his presence felt.

 

Does that actually exist?

[magnetman]

Agreement would be an impressive thong to see in this particular subject because people do feel strongly about it

[mark99]

 

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

 

It's not hard is it?

 

Assuming no temporary circumstances like illness/breakdown, if you hang about in an area and get a warning - then:

 

if you are a genuine CC'er, you will move and keep moving.

 

If you don't keep moving and get challenged again you either provide a valid reason or you keep moving.

 

or you are not a genuine CC'er and are using a variety of justifications to suggest you are bona fide; but you ain't.

 

Perhaps I'm a bit simple but if you have to think about not moving too far, moving in a non progressive journey but rather a repating circle, minimising movements or keeping within an inch of some guidelines how can you be a genuine CCer?

Edited February 20, 2014 by mark99

[Paul C]

 

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.

 

 

Thanks Nick, for coming back onto the forum and clarifying some of the questions people had. I hope CRT don't try to sting you for too many costs.

[mark99]

I've met 2 few boaters recently who have said to me I'm leaving the marina to CC. But when asked where they intend to go (thinking a romantic cruise round the whole system) they stated <paraphrase> oh just up and down between x and y like so and so cos we got to be near our sprogs school.

 

That's not CCing - that's taking the piss cos they don't want to pay marina fee's.

[MtB]

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

 

 

Well possibly, but the law allows people to choose to engage in 'bona fide navigation' instead. So what more do they need to do, beyond 'shuffling up and down a 12 (or 9) mile stretch of canal' to cross the threshold into complying with the law?

 

This is the question, an answer to which we are all entitled.

 

The answer of course is to 'satisfy the board'. So CRT have, in my view both the authority and the obligation to define the threshold where the board will become satisfied.

 

MtB

 

MtB

[Ssscrudddy]

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

But surely those who want to move, but very little, but stay fully within the rules, should not have to take a mooring that they have no intention of using. Isnt that also the argument.

 

What difference does it make a CCer bimbling up & down the same limited bit vs me with a home mooring bimbling up & down the same limited bit. A boat is still a boat. A boat in the way is still a boat in the way.

 

When you buy your licence do you guess at how much it will cost? No. You know exactly how much it will cost, & that's what you pay, & not a penny more. You dont go & pay an extra £1000 jsut to make sure you covered it enough, what happens if the baseline figure you thought was right was so out of wack that your guess at an extra £1000 doesnt cover it?

 

Edit, MTB said it better. Greenie

Edited February 20, 2014 by Ssscrudddy

[magnetman]

'We move every two weeks to fill the water tank so why pay for a mooring" as a boater recently put it

 

If this attitude takes hold CRT will be forced to introduce some sort of universal mooring fee otherwise marinas will lose out with a knock on effect to CRT etc etc

[Ssscrudddy]

Not really, in the same way that not everyone wants to moor in a marina, also not everyone wants to moor online. I thought there already was a universal mooring fee, your licence!

Edited February 20, 2014 by Ssscrudddy

[magnetman]

But maybe everybody wants to save money?

[cotswoldsman]

 

 

 

 

if you are a genuine CC'er,

 

 

Is this a new type of prefix on licence for boat with no home mooring.

 

That's not CCing - that's taking the piss cos they don't want to pay marina fee's.

In your opinion

[MtB]

I've met 2 few boaters recently who have said to me I'm leaving the marina to CC. But when asked where they intend to go (thinking a romantic cruise round the whole system) they stated <paraphrase> oh just up and down between x and y like so and so cos we got to be near our sprogs school.

 

That's not CCing - that's taking the piss cos they don't want to pay marina fee's.

 

Either that or genuine confusion about what counts as CCing.

 

Examples of boaters doing this abound. Is it so unreasonable to decide to join them?

 

MtB

[nicknorman]

They could attempt to think outside the box, by sitting down with CC'ers and work on a mutual agreement.

There would be little point in that because such a mutual agreement would only be binding on those who wanted to play ball. There will always be folk who aren't interested in any palsywalsy agreement and just want to push things to the limit of the law, or beyond.

Edited February 20, 2014 by nicknorman

[Ssscrudddy]

But if it was defined specificly & explicitly, in line with the relevant acts of parliament, then the rule breakers could be done.

Think parking, at one point I was a traffic warden. All the parking rules are very specificly defined in law, there is no ambiguity. Where people fall foul of it, it's usually because they havent bothered sticking to the rules, they took a chance on not getting caught, they got caught, they lost. It's easy to work out where you cant park, I can work out where I can park where most others havent bothered to find out the rules. How about time restriceted bus lanes, most cars wont use the bus lane but when it isnt in force at that time of day most of them still dont use the 'bus lane' because they arent taking any notice, they will get butt hurt at you for using the bus lane, but in reality they are in the wrong for not travelling on the left.

[Jambo]

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

 

Available moorings are non-existent in certain parts of the canal network.

 

ETA 'available'

Edited February 20, 2014 by Jambo

[jenlyn]

There would be little point in that because such a mutual agreement would only be binding on those who wanted to play ball. There will always be folk who aren't interested in any palsywalsy agreement and just want to push things to the limit of the law, or beyond.

In for a penny, in for a pound. Worth a try.

[cotswoldsman]

But if it was defined specificly & explicitly, in line with the relevant acts of parliament, then the rule breakers could be done.

 

Think parking, at one point I was a traffic warden. All the parking rules are very specificly defined in law, there is no ambiguity. Where people fall foul of it, it's usually because they havent bothered sticking to the rules, they took a chance on not getting caught, they got caught, they lost. It's easy to work out where you cant park, I can work out where I can park where most others havent bothered to find out the rules. How about time restriceted bus lanes, most cars wont use the bus lane but when it isnt in force at that time of day most of them still dont use the 'bus lane' because they arent taking any notice, they will get butt hurt at you for using the bus lane, but in reality they are in the wrong for not travelling on the left.

Ummmm what are you talking about? This has nothing to do with where you moor but how often you move and how far

[alan_fincher]

There would be little point in that because such a mutual agreement would only be binding on those who wanted to play ball. There will always be folk who aren't interested in any palsywalsy agreement and just want to push things to the limit of the law, or beyond.

 

Yes,

 

But if you can bring a lot of people who are not actually looking to take the piss within the bounds of a mutual agreement, you can then concentrate your efforts solely on those who don't feel bound to it, and who think they can carry on taking the piss.

 

(And I would say that is a two way street - CRT should not only take action against boaters who don't recognise the agreement, they should also take action if a small number of "over zealous" enforcement staff who seem to have a habit of going for soft targets, rather than the worst offenders p- they need to stamp on this).

 

It is easy to sit and criticise the dialogues that Steve and those working with him try to carry on with CRT, but I continue to believe they have far better chances of helpful outcomes by trying to think outside the box, rather than by repeated ill considered attempts at legal challenges.

[MtB]

Ummmm what are you talking about? This has nothing to do with where you moor but how often you move and how far

 

I think he's suggesting there should be clear and well defined rules about what satisfies the board as CCing, and what doesn't.

 

Then, like parking, it would be easy to define the people not complying and fine them.

 

 

MtB