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Boater With Home Mooring - Court Action Started.


Alan de Enfield
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All this legal messing about surely if CRT gets its act together then everything will be covered by terms and conditions of licence which we either accept or remove boat from CRT waters.

That won't stop CRT making false accusations....meanwhile more 'charity' funds are wasted on failed court actions...

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That is how lots of life is Alan .

Germany made a rule that washing was not hung out on sundays and only essential lorries where allowed on autobahns on sundays .People conformed.

You yourself conform to rules of behaviour that are maybe not legal laws.

Does Cambridge not have some rule about cars going into city ?

  • Greenie 1
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Probably from me.

 

I've been noting how long uncut sections of bankside on the K&A are getting signs saying "Nature Reserve, NO MOORING", and predicting this will spread over the whole system eventiually. When this happens, VMs will be the only politically correct places to moor in order to protect the voles, wild flowers etc.

 

The final step will be to charge the captive market £10 a night to moor on the VMs.

 

Just my pet conspiracy theory. It may never happen!

 

MtB

There was precisely such a length just to the west of muirhill until it was all strimmed back! That finishes it for the rare plants but the no mooring signs are still there.

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BUT why can they not impose terms and conditions it is upto the individual to accept or not surely same as going into a pub that has a dress code or having a car on the public highway .One is landlords terms &conditions the other is law .

 

A pub is a private dwelling and the land lord can evict anyone he wants, and if requested the Police MUST attend and evict aforesaid person.

 

Having your car on the public road - it is taxed, insured and MOT'd, you can legally park it on the road,& you can drive it on the road.

 

How about DVLA (or the Police) now deciding that although it is totally road legal you can no longer drive it on the road, or you can park only on your own drive.

This is making up the law as you go along.

 

The information so far produced says Tony Dunkley, had a boat which was licenced, BSS'd, had insurance and a 'home mooring' (for which he had payment receipts)

C&RT decided that he didnt use the mooring enough and started the action.

 

There is no reference in any law that says you must use your home mooring so many times per month/year but C&RT have decided they can make a law (without any recourse to Parliament) that says you must return home so many times a year, and even then do not tell you how many times that must be "moving goalposts" spring to mind.

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A pub is a private dwelling and the land lord can evict anyone he wants, and if requested the Police MUST attend and evict aforesaid person.

 

Having your car on the public road - it is taxed, insured and MOT'd, you can legally park it on the road,& you can drive it on the road.

 

How about DVLA (or the Police) now deciding that although it is totally road legal you can no longer drive it on the road, or you can park only on your own drive.

This is making up the law as you go along.

 

The information so far produced says Tony Dunkley, had a boat which was licenced, BSS'd, had insurance and a 'home mooring' (for which he had payment receipts)

C&RT decided that he didnt use the mooring enough and started the action.

 

There is no reference in any law that says you must use your home mooring so many times per month/year but C&RT have decided they can make a law (without any recourse to Parliament) that says you must return home so many times a year, and even then do not tell you how many times that must be "moving goalposts" spring to mind.

Alternatively, they are exploring what may be a written anomaly in the byelaws to see if, in law, the same conditions apply to those with a home mooring as those without. I know what it says, and how it can be interprteted, I'm not a lawyer or a judge

 

Richard

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BUT why can they not impose terms and conditions it is upto the individual to accept or not surely same as going into a pub that has a dress code or having a car on the public highway .One is landlords terms &conditions the other is law .

 

The root cause of your puzzlement I suspect, is a lack of understanding of the crucial difference between ‘created’ and ‘natural’ persons under law.

 

Yes, any ‘natural’ person – whether an individual or a corporation – can set themselves up to provide a service and invite the public to deal with them on such terms and conditions as they see fit.

 

That is not the case with ‘created’ persons, where the terms of their dealing with the public are set out explicitly by statute and which cannot be amended or added to otherwise than by further statute.

 

CaRT is the successor to the myriad of created canal companies, all of whom were allowed to treat with the public on the agreed terms at inception. Some of those were modified wholesale upon nationalisation and amalgamation into the British Transport Commission, thence to BWB and now CaRT.

 

Amendments, additions and subtractions can be and were made by means of both public and private statutes between 1947 and 2012. The private Act of 1995 was the last piece of relevant legislation adding to the powers of BW – specifically and relevantly in the present context, providing for an ability to refuse or revoke the “relevant consents”, where such had been provided for as the pre-requisite for using and keeping boats on the majority of the waterways under their management.

 

Statute having provided that relevant consents can only be refused/revoked if one or more of the 3 detailed conditions in the 1995 Act are not met, then only some further amending legislation can alter that. It is not open to CaRT as a ‘creature of statute’ to invent its own terms upon which the public must deal with it. Its predecessor was granted a power [inherited by CaRT] to set terms of use for such services as it is empowered to provide, but these still need the sanction of Parliament.

 

So, for example, control over HOW the waterways are used by boats is something the authority can draw up byelaws for, which can be submitted to the Secretary of State for his approval [after relevant consultation etc]. This was granted under the BTC Act 1954, with expansion of that which was possible to condition, consequent upon the 1962 Transport Act.

 

The power to create byelaws conditioning WHETHER boats can use the waterways which no longer enjoyed public rights of navigation, was not added until 1975. This was promptly acted upon, resulting in the 1976 byelaws rendering pleasure boat licences compulsory for the canals. But these last byelaws included no conditions of acceptance, which BW only got around to obtaining through their last private Act. Seeing that BW were promoting their Bill for that to cover other stuff as well, it seemed to them only sensible to include the licence conditions in that, instead of separately drafting relevant byelaws.

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It's been conclusively shown earlier in the thread that CRT have no right to impose conditions for granting a licence beyond having insurance and a BSS.

 

MtB

". . . . we are not satisfied that the mooring at Barton-in-Fabis is a
genuine home mooring that falls within the above stated section 17(3)©(ii) of the 1995 Act.
Enclosed is your refused licence application and your cheque for the licence fee.
Yours sincerely"
They do think they can do that though . . . . from a C&RT letter dated 27 June 2014
Edited by tony dunkley
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Ok for that Nigel its clarified a lot.

What a pity that the creation of CRT did not take the opportunity before being put into place of rewriting the statutes.

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tony dunkley, on 14 Jul 2014 - 8:26 PM, said:tony dunkley, on 14 Jul 2014 - 8:26 PM, said:

 

. . . from a C&RT letter dated 27 July 2014

 

 

You might need to amend that.

tony dunkley, on 14 Jul 2014 - 8:26 PM, said:tony dunkley, on 14 Jul 2014 - 8:26 PM, said:

 

". . . . we are not satisfied that the mooring at Barton-in-Fabis is a
genuine home mooring that falls within the above stated section 17(3)©(ii) of the 1995 Act.
Enclosed is your refused licence application and your cheque for the licence fee.
Yours sincerely"
They do think they can do that though . . . . from a C&RT letter dated 27 July 2014

 

 

Do they really mean 17(3)C (ii)

C) either

 

(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or

 

(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.

 

I cannot see any requirement to have a mooring under "3Cii", certainly "3Ci" but thats not what they have said - unless it is a 'typo' by yourself ?

Edited by Alan de Enfield
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There was precisely such a length just to the west of muirhill until it was all strimmed back! That finishes it for the rare plants but the no mooring signs are still there.

 

Which section is that? my recollection from when I worked the Trust's Trip boat, is that the entire Murhill/Dundas section is concrete edge and was always mowed to the edge, not that there was much earth between the towpath and the edge for anything to grow any way.

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Alternatively, they are exploring what may be a written anomaly in the byelaws to see if, in law, the same conditions apply to those with a home mooring as those without.

 

There is no differentiation in any of the relevant byelaws between boats having acquired their licence through 17(3)( c )(i) or (ii). The relevant half-dozen byelaws re: obstruction whether on navigation or towpath, apply to all boats of whatever relevant consent or none.

 

They may well be testing whether the court will decide boaters with home moorings are subject to ‘the 14 day rule’ &/or to the movement requirement of those without home moorings, to close a perceived “gap” in the relevant statute.

 

If so, they have made a spectacularly poor choice of test case - but as others have noted, it was never intended that the case be fought, just railroaded through.

 

You might need to amend that.

 

Do they really mean 17(3)C (ii)

C) either

 

(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or

 

(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.

 

I cannot see any requirement to have a mooring under "3Cii", certainly "3Ci" but thats not what they have said - unless it is a 'typo' by yourself ?

 

It was a 'typo' by CaRT [presuming the originator did actually know what they were referring to!]

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Statute then. I don't eat and breathe this stuff like you Nigel

 

Is it not (ii) because they don't accept the mooring as being 'real'. If he hadn't got a mooring, he is a CCer and must comply with ii

 

Richard

Edited by RLWP
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You might need to amend that.

 

Do they really mean 17(3)C (ii)

C) either

 

(i) the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or

 

(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.

 

I cannot see any requirement to have a mooring under "3Cii", certainly "3Ci" but thats not what they have said - unless it is a 'typo' by yourself ?

Cut and pasted from C&RT letter. In fact the 17(3)c(ii) anomaly was commented on by Nigel Moore previously.

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There is no differentiation in any of the relevant byelaws between boats having acquired their licence through 17(3)( c )(i) or (ii). The relevant half-dozen byelaws re: obstruction whether on navigation or towpath, apply to all boats of whatever relevant consent or none.

 

They may well be testing whether the court will decide boaters with home moorings are subject to ‘the 14 day rule’ &/or to the movement requirement of those without home moorings, to close a perceived “gap” in the relevant statute.

 

If so, they have made a spectacularly poor choice of test case - but as others have noted, it was never intended that the case be fought, just railroaded through.

 

It was a 'typo' by CaRT [presuming the originator did actually know what they were referring to!]

 

So - hypohetically - C&RT produce this letter / argument in court saying that TD's mooring doesnt comply with "Section 3 C ii" - is TD's Solicitor able to say this is a load of rubbish as no requirement exists - case dismissed, or can C&RT say Oops - sorry mistake, we really meant "Section 3 C i".

 

Surely in something as imprtant as a court case there should be some attention paid to "detail" ?

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". . . . we are not satisfied that the mooring at Barton-in-Fabis is a

 

genuine home mooring that falls within the above stated section 17(3)©(ii) of the 1995 Act.

 

Enclosed is your refused licence application and your cheque for the licence fee.

 

Yours sincerely"

 

They do think they can do that though . . . . from a C&RT letter dated 27 June 2014

Tony, I'd take it up directly with Richard Parry if I were you. I'd go down the lines of harrasment and causing unreasonable distress....

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To my reading the only question, not asked, which could shed some light.

Would Mr Dunkley's boat fit on the mooring in question?

If it fits, C&RT problem.

If it doesn't, Mr Dunkley has the problem.

 

Bod

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There was precisely such a length just to the west of muirhill until it was all strimmed back! That finishes it for the rare plants but the no mooring signs are still there.

i don't know this stretch or know what rare plants they were trying to protect but it is not uncommon for part of the management of rare plants and or habitats to require striming or mowing as could be in this case

or of course it could be incompetence

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You know the bridge where the signs are for the hop pole? Just at the end of the concreted section? just after that. There were signs saying no mooring due to rare plants, then it got strimmed.

 

That would presumably be Winsley Hill bridge, there certainly used to be a sign advertising the Hope Pole on it. Things must have changed since I last boated that section, as either side of the bridge was always cut, in fact there were often boats moored there, more south of the bridge than North of it, I have no recollection of any no mooring signs, but it was fifteen years ago.

Edited by David Schweizer
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Tony, I'd take it up directly with Richard Parry if I were you.

 

What for?

 

Richard Parry long ago assured us that he would personally examine and approve every case involving evictions of live-aboard boaters. He has already examined what the legal department have put before him in this case, and has given them his usual go-ahead.

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So - hypohetically - C&RT produce this letter / argument in court saying that TD's mooring doesnt comply with "Section 3 C ii" - is TD's Solicitor able to say this is a load of rubbish as no requirement exists - case dismissed, or can C&RT say Oops - sorry mistake, we really meant "Section 3 C i".

 

Surely in something as imprtant as a court case there should be some attention paid to "detail" ?

 

It does not form part of their formal court submission, it’s a letter that will be exhibited, amongst doubtless many others, that explained to the boater why they revoked a licence and refused a new one. They can say ‘oops’ the statute reference was a typo; the court would presume that to be obvious.

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What for?

 

Richard Parry long ago assured us that he would personally examine and approve every case involving evictions of live-aboard boaters. He has already examined what the legal department have put before him in this case, and has given them his usual go-ahead.

It's different when people are directly confronted....they can't hide behind paperwork and other people...what is there to be afraid of? The truth maybe?

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It does not form part of their formal court submission, it’s a letter that will be exhibited, amongst doubtless many others, that explained to the boater why they revoked a licence and refused a new one. They can say ‘oops’ the statute reference was a typo; the court would presume that to be obvious.

I take it we know Mr Dunkley declared his mooring

 

Richard

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Is it not (ii) because they don't accept the mooring as being 'real'. If he hadn't got a mooring, he is a CCer and must comply with ii

 

I don't believe so, I think the typist was just careless/ignorant.

 

[For the rest, I wasn't having a 'dig', just reflexively indulging my pedanticism.]

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The head of legal reports direct to Richard Parry, with his hands on customer service approach there is no way that he is unaware of this case. Underneath his touchy freely approach rest assured there is a steely interior.

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