Dispute at Pillings

[George94]

 

 

In any competitive situation (and marinas do compete with each other, at least to some degree), the price of the commodity or service being offered will be the cost of supplying it, plus enough profit to persuade the seller to continue in business.

 

Yes...!

 

Therefore, any increase in the supplier's costs will tend to have the effect of raising the price of the commodity, or forcing the seller out of business.

 

I believe your logic is flawed. Competition means that the supplier cannot just increase their price. They will either have to be more innovative in absorbing the increase; or offer something additional to compensate for the increase in price. In a competitive environment one supplier raising their price above the market price will likely create financial difficulty for them.

 

Apparently PLM/QMP/QMH were charging moorers a competitive rate. It was their business model and customer service that was the problem.

 

I am not interested in Pillings. I am talking generally.

Except FOI requests do not apply to non govt companies/trusts etc. You can request a copy of your information as per the,Data Protection Act, but FOI only applies to the Public Sector

 

Yes of course. One of the benefits of changing from BW to CART.

[Allan(nb Albert)]

Except FOI requests do not apply to non govt companies/trusts etc. You can request a copy of your information as per the,Data Protection Act, but FOI only applies to the Public Sector

The Freedom of Information Act 2000 applies to CaRT, as do Environment Information Regulations and the Data Protection Act.

 

From CaRT's website -

 

Under the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR) we should respond to your request promptly and within 20 working days. For requests made under the Data Protection Act a response will be sent within 40 days of receipt of your request.

 

The trustees have also made a commitment to exceed their obligations under FOIA.

 

However, I am not sure what information it is suggested should be requested under FOI. If it relates to Paul G2's analysis of of CaRT's financial problems (which is wrong in places) then I would suggest that much information already exists it the public domain either provided under CaRT's FOIA publication scheme or in responding to requests for information.

 

To give just one example pertinent to this thread. The information that 19 out of 20 BWML marinas are not subject to NAA was provided as a response to a request under the Freedom of Information Act.

 

 

 

[NigelMoore]

I find that absolutely fascinating. Given that the Creature of Statute is a legal person, I should expect it to be treated the same way under the law as any other legal person. Is there another statute specifically limiting (or extending) the rights of such creatures, and if not, why the difference in treatment?

 

That’s an interesting question; one which [i have to admit] had never occurred to me to ask!

 

Reflecting on the issue, I suspect that this approach was taken as a measure protective of the general public. I imagine it as a sort of Frankenstein safety valve.

 

Generally, bodies created by Parliamentary assent are granted certain degrees of power over others, and this is usually done in contemplation of a quid-pro-quo, whereby it is understood that the public will derive some benefit in return for the impact on them of the powers granted to the created person. In doing so it is right that the limits to those are very carefully circumscribed. It is this granted power to affect others, I believe, that comprises the essential difference between natural and created persons – and hence the difference in treatment under law.

 

When trawling through the statutes and the case law, these elements become apparent. Mr Justice Hildyard accepted the basic premise in 2012 –

 

“The Claimant's starting point in relation to his extended analysis of the web of legislation is the proposition that (quoting again from Stourbridge Canal v Wheeley [supra], to which I have already referred) the proprietors (for which read BWB) "can claim nothing which is not clearly given to them by the Act(s)." I accept this; and thereby both implicit parts of the proposition, being (a) the BWB, not being a natural person but a creature of statute, has only those powers with which it is endowed by statute and ( b ) in the event of ambiguity, such powers should ordinarily be strictly construed if a wider construction would deprive a member of the public of an existing right.” [my emphasis]

 

I recall analysis more closely addressing your query, but can't even look for it while mobile as I am. In essence, the rationale appears to be that the powers should only be strictly commensurate with the benefit endowed.

 

As to "statute specifically limiting (or extending) the rights of such creatures", these are individual to each; they may return to Parliament offering justifications for wider powers or for wider fields of action [and often do] - but every such extra constraint on public rights must be expressly stated; the doctrine of 'implied repeal' [i.e. that if later statutes are incompatible with previous ones, then the previous one is counted as being abolished or superceded] cannot operate in such a case. Robertson v Network Rail applies, [even though that was a Scottish case].

 

An example of BW getting their powers extended, in ways which did not adversely impact on the rights of natural persons, is in the Statutory Instrument created to allow them to engage in the business of treating water and selling it. Again, I can't locate the SI on present equipment, but the Hansard debate over it clarifies the point -

 

http://hansard.millbanksystems.com/lords/2003/jun/11/regulatory-reform-british-waterways

 

"Lord Whitty rose to move, That the draft regulatory reform order laid before the House on 28th April be approved [19th Report from the Regulatory Reform Committee].

 

The noble Lord said: My Lords, the order will amend the Transport Act 1962 and the Transport Act 1968 by adding to, and clarifying, the British Waterways Board's statutory powers, and will enable the board to participate more fully than it can at present in the public/private partnership known as Watergrid."

 

"The amendments proposed in the order will give the British Waterways Board additional powers to abstract, purchase, treat and sell water, and to treat and dispose of effluent. They will also clarify that the borrowing of a company formed by the board—but which is not its subsidiary—does not count towards the board's overall borrowing limit." [my emphasis]

 

Hope that helps answer your question.

[costalot]

I am not interested in Pillings. I am talking generally.

 

 

Then I think you are lost because this is a thread about Pillings Lock and their failure to pay CRT the owed NAA fees

[NigelMoore]

The Freedom of Information Act 2000 applies to CaRT . . .

 

 

 

Following on from my previous post, and linked to the above, it is even less recognised that all registered limited companies today, are themselves, strictly speaking, ‘creatures of statute’, the terms of operation being ostensibly circumscribed by their “Memorandum and Articles”.

 

Few would take much notice of these today, and mostly, who would care? – but instances arise where it becomes very important indeed, and the strictures and [far more importantly] self-grants of powers, becomes a real issue.

 

Allan has correctly advised that the FoI Act applies to CaRT [as a direct result of public pressure during consultation on the matter], but as anyone reading through the CaRT responses via the “WhatDoTheyKnow” website will discover, the Act applies only to those functions exercised as inherited from BW. Not all functions were, and additional functions are exercised by CaRT that were not exercised by BW – notably of course, anything to do with running the charity side of things. These new functions were exempted from the FoI Act.

 

Over the past couple of years the CaRT legal department, following Johnson’s lead, has drafted stock responses to most questions denying the applicability of the FoI Act to almost anything to do with the running of the waterways itself.

 

Their argument runs – falsely, but it has been accepted by the Information Commissioner - that day to day running of the waterways is conducted under the terms of their Articles, not by virtue of Statute. On those grounds, the majority of FoI requests are now rejected, unless they are pleased to provide the information voluntarily.

 

I always did say that Johnson was more clever and cunning than his unprepossessing appearance suggested. He actively promoted the segue into Limited Company status as a means of [ostensibly] replacing BW’s statutory source of powers with Articles of Association. It seems obvious that he sought thereby to circumvent the legal limitations he confessedly chafed under – notably of course, seeking to overturn the legal uncertainties as to interpretation of the 1962 Act s.43(3), purportedly replacing that with unrestricted powers to set charges and conditions!

 

It’s very clever, and very effective, however legally flawed. For reasons given as per Robertson v Network Rail, any suggested implied repeal of the 1962 Act by means of drafting incompatible private company Articles tending to that end, would have to fail under challenge at appropriately high levels of the judiciary – but it more than suffices to “fool most of the people most of the time” [even government oversight bodies and DEFRA].

[Mike Todd]

 

Perhaps it did – but I understood the latter part of that post to be suggesting [correctly] that the authority might be under an obligation to deal ‘reasonably’, which is a quite different thing to whether they can deal or not in the first place.

 

I also may have misunderstood your use of the word ‘pace’, which I took to imply that you disagreed with my probable views as to the lucidity and accessibility of canal legislation. My response was intended to demonstrate a measure of agreement that some of it was indeed betimes obscure, and rather outside the public’s general knowledge. Certainly this particular topic of a Creature of Statute's rights under common law is not straightforward.

Actually, in context it was meant to imply almost the opposite! That is, although I might sometimes feel that you are at the obsessive end of the spectrum, I do endorse your view that getting the legal position sorted is important. Because of the failure in the past to update the legislation properly we are left with a situation that is a lawyer's delight - endless cash for them!

 

Sadly there does not seem to be an appetite for sorting it properly even now and that means we will have to continue with a complex situattion, attempting to adapt rules meant for a very different context.

This, also sadly, means that those who want to avoid the reasonable intent of a regulated world are gievn a field day when it comes to dredging up old laws when all they really want to do is to frustrate the present. It is always much easier to get decisions deferred if you don't like them than to argue successfully that you are right.

 

I just wish that some lobby groups would have a greater understanding and sympathy with the CRT legal people - OK, I know some have cocked things up on occasions but they are far from alone, many boaters have flouted every rule going. CRT are often between a rock and a hard place as they do not have satisfactory tools for the job in hand.

 

On many, many occasions the scope for flecibility and eniency has been well exercised by CRT staff to the benefit, sometimes substantial, for many boaters, often in very difficult circumstances. Too quick a rush to overly-prescriptive legislation may not be anyone's best interests. Beware what you wish for!

[NigelMoore]

Agreed

[OldGoat]

Aren't many of these problems due to a system based on precedent (can't remember the correct term) rather than a codified system.

 

The former is open to learned discussion (and a bonus for legal practitioners) and may be fairer in the long term. The latter is somewhat rigid?

 

 

[NigelMoore]

Exactly right.

[George94]

Then I think you are lost because this is a thread about Pillings Lock and their failure to pay CRT the owed NAA fees

 

Good grief.

 

You clearly don't know much about internet forums, old chap.

 

Now run along. You clearly have an agenda to be unpleasant, and I am not prepared to play your little game.

[MtB]

 

Good grief.

 

You clearly don't know much about internet forums, old chap.

 

Now run along. You clearly have an agenda to be unpleasant, and I am not prepared to play your little game.

 

Pot, kettle, etc!

 

 

Mtb

[George94]

 

Pot, kettle, etc!

 

 

Mtb

 

Still ignoring me, Mike? :-)

 

Now, if you will go back to the beginning of all this, you will find it very difficult to detect any unpleasantness on my side. The numerous insults flowed from you and your pals.

 

But I do understand that hurling insults stands you in better stead than relying on logic or knowledge. A man who doesn't know what a monopoly is, or that CART is a charity, is not well equipped to have a reasoned argument.

 

Now, PLEASE ignore me, as you stated you would.

 

Please.

 

Thank you.

 

Edited to correct a typo.

Edited May 12, 2014 by George94

[matty40s]

 

 

 

Now, if you will go back to the beginning of all this, you will find it very difficult to detect any unpleasantness on my side.

i clearly remember some insults strewn from you Saint George, and your argument wore very thin very quickly.

[George94]

i clearly remember some insults strewn from you Saint George, and your argument wore very thin very quickly.

 

Let's hear them, Matty.

 

No more of your wild assertions please. Lets have some FACTS.

[tillergirl]

[adam1uk]

Let's hear them, Matty.

 

No more of your wild assertions please. Lets have some FACTS.

I admit to having got bogged down arguing about monopolies with ignoramuses

[stickleback]

Shame Joyce Grenfell is no more...

[George94]

 

Let's hear them, Matty.

 

No more of your wild assertions please. Lets have some FACTS.

I admit to having got bogged down arguing about monopolies with ignoramuses

 

 

Thank you. That is one. Any more? Matty referred to "insults strewn from you" (ie: me)

 

I liked the strewn.

[Pen n Ink]

Shame Joyce Grenfell is no more...

 

Now you see unfortunately that one will go straight over most heads I suspect...

 

Greenie!

[mayalld]

 

Now you see unfortunately that one will go straight over most heads I suspect...

 

Greenie!

 

George... don't do that!

 

And

 

Rhythm, George. And cheer up - you're a happy flower, George.

Yes, you are.

Because I say so.

 

[Hawkmoth]

Thanks Dave, I couldn't remember until you enlightened me.

Bob

[OldGoat]

Is this a five minute argument of the twenty minute one??

 

(With apologies for a bowdlerised version of a Monty Python sketch)

 

 

[NigelMoore]

Generally, bodies created by Parliamentary assent are granted certain degrees of power over others, and this is usually done in contemplation of a quid-pro-quo, whereby it is understood that the public will derive some benefit in return for the impact on them of the powers granted to the created person. In doing so it is right that the limits to those are very carefully circumscribed.

 

I found a poor quality account of the Stourbridge v Wheeley judgment here -

 

http://www.forgottenbooks.org/readbook_text/A_Selection_of_Cases_on_Private_Corporations_v1_1000248182/171

 

The relevant bit I was thinking of in terms of the usual public benefit rationale is: -

 

"The act of parliament recites that the proposed canal will be of public utility . . . the lands acquired by voluntary or compulsory sale are vested in the proprietors for the use of the navigation, and for no other use or purpose whatsoever; and all persons whatsoever are to have free liberty 'to navigate upon the canal and collateral cuts with any boats . . . upon payment of such rates and dues as shall be demanded . . . not exceeding the rates before mentioned in the statute'."

 

The wording used by the court in this classic case likened the enabling Act to a “bargain” made between the public and the prospective company. Having made that bargain, the company was obliged to stick to the terms of what effectively comprised a contract.

 

“The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, – that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act.” [my emphasis]

 

In that instance, the terms of the bargain only permitted the company to charge for using locks. As the canal had a long, lock-free section, trade was carried out by some people within the lock-free stretch without having to pay anything. The company decided that they were entitled to claim the common-law right of a landowner to consent to use of their property, and so to make charges for using it even though the users they were suing did not use the locks.

 

That would of course have been the case had they been a natural person, but they were created by statute on the basis of the drafted Act, and were consequently restricted in their rights to the terms of the Act – and were held to it. It would have taken a further Act of Parliament to extend the rights, and such an Act would have been subject to representations from all those affected.

[Pen n Ink]

 

George... don't do that!

 

And

 

Rhythm, George. And cheer up - you're a happy flower, George.

Yes, you are.

Because I say so.

 

 

And this is the main reason our cat is called George......

 

I did realise of course that the more erudite (and aged) amongst us would remember!

[YamYam]

Is this a five minute argument of the twenty minute one??

 

(With apologies for a bowdlerised version of a Monty Python sketch)

 

We haven't started yet