Boater With Home Mooring - Court Action Started.

[NigelMoore]

 

BWB vs Ward.

 

Yes, thank you. I had thought it was, but trying to confirm by searching for Ward in my laptop, I had only come up with Ward v Scott, a little antiquated and utterly irrelevant! I should have just tried the web.

 

The relevant comments are in the last lengthy paragraph of the judgment –

 

http://canalrivertrust.org.uk/media/library/3773.pdf

[NigelMoore]

Apropos the Ward judge's dismissal of the HRA angle; I think the judge got the ratio wrong when deriding the alternatives available. The test of compliance with the HRA is, of course, not simply whether the action deprives a person of home or property, but whether such action is necessary in a well-ordered society, being such as is necessary to enable an authority to fulfill its function.

 

For example, a housing authority may be entitled to evict a non-paying tenant, because keeping him in place is depriving other people of the home to which they are the more entitled because prepared to contribute according to law – and the job of the housing authority is to provide homes for such people. Unless they can evict the non-contributing tenants, their ability to perform their appointed function for society is impaired. That is a clumsy way of putting it, but is the essence of most recent Supreme Court rulings to the extent that I have understood them. If there are sound management reasons for the action taken, then the HRA is not invoked.

 

Exercising s.8 does none of this. There is no promotion of the ability of the waterway authority to perform their function of keeping the waterways available to all – that function is ensured by exercising the powers entrusted to them for the purpose; they are simply choosing not to exercise them. The “sound management reason” does not exist; indeed, they are arguably abrogating sound management of what they consider the unmanageable.

[nicknorman]

 

Exercising s.8 does none of this. There is no promotion of the ability of the waterway authority to perform their function of keeping the waterways available to all – that function is ensured by exercising the powers entrusted to them for the purpose; they are simply choosing not to exercise them. The “sound management reason” does not exist; indeed, they are arguably abrogating sound management of what they consider the unmanageable.

Dipping in again... An extraordinary conclusion to reach! By not acting as they did they risks a proliferation of boaters deciding not to bother to licence their boats thus cutting their income necessary to maintain the system. Acting as they did sends out a cler message of the consequences of declining to licence one's boat.

 

In your view the fines mechanism is a better option, but you would not say that if you had ever had to implement a fines system on persons with minimal assets and no inclination to pay them. Sometimes you make sense Nigel, but not in this case.

[Tuscan]

Compliance in my view is all about creating normal behaviour which the vast majority follow . Using CRTs own figures this already exists as the number of cases that go beyond an initial warning is minimal. And it is very labour extensive and expensive to progress a S8.

 

If as Nigel says there is an ability to fine a boat that does not move after 14 days (as opposed to not move far enough) then this might be a simpler tool to use (bit like a parking ticket) and might encourage more to move and thus achieve much more than the very long winded S8 process. I assume CRT are very unsure of the legality or workability of this otherwise they would be doing this already rather than these farcical extended stay charges that you can't pay.

[NigelMoore]

By not acting as they did they risks a proliferation of boaters deciding not to bother to licence their boats thus cutting their income necessary to maintain the system. Acting as they did sends out a cler message of the consequences of declining to licence one's boat.

 

But the case in question within this topic is not one that fits your criteria; it is not a case here of someone refusing to licence their boat, this is a case where the licence has been revoked/refused because of claimed mooring infractions.

 

If someone refuses to licence a boat that is required to be licensed, then s.8 is the only option, no question.

[bassplayer]

As most of these debates spring from the subject of people overstaying moorings, I was wondering how many of us have actually been directly affected by it? I don't think I'm the only one who hasn't seen much of a change over the years. What's changed here? More people abusing the system or more people moaning to CRT?

[MtB]

In your view the fines mechanism is a better option, but you would not say that if you had ever had to implement a fines system on persons with minimal assets and no inclination to pay them.

 

Not only that but when the offender is also of 'no fixed address', enforcing the fine becomes effectively impossible.

 

MtB

[cotswoldsman]

Not only that but when the offender is also of 'no fixed address', enforcing the fine becomes effectively impossible.

 

MtB

Can you explain please or maybe a source for that statement would be handy

[phill]

This is a question for NigelMoore really but, of course, is meat for general discussion.

 

Given your thesis about byelaws is proportionality a potential defence for Section 8 cases? Especially those where the Section 8 arises as a result of the licence being removed by CRT.

 

In European Union law there generally acknowledged to be four stages to a proportionality test, namely,[3]

 

there must be a legitimate aim for a measure

the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)

the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it

the measure must be reasonable, considering the competing interests of different groups at hand

 

P Craig and G de Burca, EU Law (5th edn OUP 2011) 526

Edited July 16, 2014 by phill

[NigelMoore]

 

Not only that but when the offender is also of 'no fixed address', enforcing the fine becomes effectively impossible.

 

What I said was “If a boat is clogging up a public mooring, move it off. If the owners do it again, take them to court for obstruction to boot.” In other words, as well. Whether the fines get paid or not, the boat gets moved off immediately and the problem for other boaters resolved on the spot.

 

As the fines are court-ordered, the bailiffs can be put on the case without CaRT having to bother – and isn’t the ‘problem’ under discussion the fact that the boat doesn’t get moved much if at all? Hard to see how hard it would be to track them down in that case, “no fixed abode” or not. Dodging bailiffs might itself be an incentive to move away.

[Captain Zim]

well to a certain extent I can see the logic in that. CRT need to be mindful of cost.

 

However, if we break it down in to it's two parts, then it still seems worthwhile investigating further.

 

1. obstructing boat is moved elsewhere as permitted under current powers - this solves the immediate issue of the boat staying in one place for longer than permitted and bothering people who get upset by that type of thing.

 

2. it is not a requirement that a prosecution is then undertaken. For the first two or three times simply moving the boat a fair distance could serve as a warning. Only after this would CRT need to also prosecute for the offence. If you are caught doing this same thing more than three times then you really are not getting the message, right?

 

As for moving boats with aggressive people on board:

 

1. If you are causing a genuine obstruction, and someone from CRT turns up to ask you to move, and you refuse, then you are by definition what is referred to in law as an a***hole.

 

2. If you want to argue the validity of your mooring, make sure you have good evidence on which to base your argument. CRT must undertake to ensure a level of training for staff that prevents people from making counter-allegations of unfair treatment.

 

3. If they really really need it (because, for example, despite staff being very friendly in their approach the boater is just unreasonable (surely not!), get a local agreement with police that in the event of needing to move a boat, they will attend and keep the peace. There is no reason they can't do this as no warrant is needed for the execution of this particular power.

 

So basically, CRT could simply bring in a policy of:

 

talking to people who may have been noted or reported

asking them in a friendly way to move on if they are causing an obstruction (note: not necessarily every 14 days if there is no issue - after all, some people like to moor up for a bit in out of the way places and I don't really see this as an issue).

If they refuse, turn up and move the boat themselves instead.

After 3 or 4 times of this, start considering prosecution for the offence.

 

Cheaper than court cases they can never win (you can't make the law up no matter who you are), much nicer, and still ensures that those who are genuinely causing an issue (note the use of the word genuinely) are dealt with appropriately and most of the time with no financial impact.

 

All it needs are CRT employees who aren't scared of boaters.And for some boaters to realise that CRT do have a legitimate mandate to manage the canal network which does, regardless of how people might not like it, give them some power to move on boats if they are obstructing moorings or navigation. And if you don't like it that CRT can do this, I suggest you take you chance arguing it with a judge. 'no Your Honour, I don't think the navigation authority have a power to ensure there is clear navigation...'

 

[NigelMoore]

is proportionality a potential defence for Section 8 cases?

 

Absolutely. Proportionality is what it is all about. That is why I say that judges in this context are not asking the correct questions. The questions should be directed at the specific management aims required, whereas thus far the only points considered have been a) whether the legislation provides for the action, and b ) is BW's expression of purpose sufficient?

 

a) is a given; b ) is the only variable. BW's expression of purpose of their “sound management” decision has always been couched in meaningless generalities of 'maintaining order'. The judges have always accepted that BW/CaRT are the only ones in a position to assess the applicability of that test, which is wrong [of course, the authority DOES need to assess this, but when the case comes before the court, it is the court that should be assessing, not ducking out by saying the authority must know best - that violates the whole point of the HRA legislation.

 

This is why s.8 cases should be thrown out for violating the HRA IF there exist alternate sanctions specifically provided for the offences complained off. For refusal to pay for a licence where needed, no other sanction applies; however for breach of the byelaws or primary statutes, there are sanctions specific to those offences which must be applied.

and a greenie for Captain Zim,

[nicknorman]

But the case in question within this topic is not one that fits your criteria; it is not a case here of someone refusing to licence their boat, this is a case where the licence has been revoked/refused because of claimed mooring infractions.

 

If someone refuses to licence a boat that is required to be licensed, then s.8 is the only option, no question.

Which case in question? Your post came directly after references to Ward vs BWB and it was therefore that case I presumed you were alluding to in that comment, and it was within the context of that case that I was replying.

[nicknorman]

 

So basically, CRT could simply bring in a policy of:

 

talking to people who may have been noted or reported

asking them in a friendly way to move on if they are causing an obstruction (note: not necessarily every 14 days if there is no issue - after all, some people like to moor up for a bit in out of the way places and I don't really see this as an issue).

If they refuse, turn up and move the boat themselves instead.

After 3 or 4 times of this, start considering prosecution for the offence.

 

 

I am sure your steps 1 and 2 are already done. I can see lots of problems with step 3 eg where do you move it to? The boater returning to find his boat missing might report it stolen and, although that could be cleared up, might then say that the boat had not been properly tied up, was damaged, stuff was missing etc (whether true or not) and that could really complicate matters. The point being that when you decide to move someone's boat you are taking charge of it and become responsible for what happens to it.

[NigelMoore]

You will note that BW/CaRT have always been alive to the ability to move off obstructing boats, because it has formed one of the Licence T&C’s. What the T&C’s attempt to do is subvert the distinction between the s.8 procedures [i.e. between moving or removing] by having your licence application agree that they CAN charge you anyway. The situation is canvassed in an FoI –

 

https://www.whatdotheyknow.com/request/recovery_of_costs

 

Those who would like to read the Taylor judgment for themselves can read it here –

 

http://www.scribd.com/doc/230222131/Taylor-v-BW-Obstruction

 

The relevant discussion is from page 8G through to page 13C.

[NigelMoore]

Which case in question? Your post came directly after references to Ward vs BWB and it was therefore that case I presumed you were alluding to in that comment, and it was within the context of that case that I was replying.

 

The Tony Dunkley case. Evidently I am at fault for failure yet again to make myself clear. Obviously [i would hope], I am never suggesting that “the sound management reason does not exist” in the abstract, because of course it does – what I intended to convey was that this reason did not apply to the case in question.

 

As to “case in question”, at the forefront of my mind has been the specific situation in this topic, where a Boat Licence was been revoked for alleged breach of mooring controls.

 

Insofar as Ward is concerned, even there the judge was referring to using s.8(2) as an alternative sanction for whatever the offences were [Ward having eventually complied with obtaining the necessary BSSC and allegedly forwarded the licence fee] that BW were exercised over, for which alternate remedies of fines were acknowledged to be available.

 

Not taking the time to read back over the judgment, I think BW there also, were disinclined to issue the Licence for those other reasons [refusal of late-payment charges among them]. So there too, the issue in the end was not refusal to pay for a licence, it was more whether refusing a licence [with the inevitable sanction] was justified as a stronger response to being faffed around in suffering breaches of legitimate controls.

 

The judge agreed that throwing the boater off-system sent a suitable message to others that was preferable to imposing fines - which have to be regarded [because the judge so acknowledges] as the alternative action that had been available to the authority in dealing with the breaches complained of. Ergo, alternative remedies applying, the HRA ought to have applied.

[Captain Zim]

I am sure your steps 1 and 2 are already done. I can see lots of problems with step 3 eg where do you move it to? The boater returning to find his boat missing might report it stolen and, although that could be cleared up, might then say that the boat had not been properly tied up, was damaged, stuff was missing etc (whether true or not) and that could really complicate matters. The point being that when you decide to move someone's boat you are taking charge of it and become responsible for what happens to it.

Phone or email to boater involved? If the boater has neither, then I would suggest that this would be a rare occasion when CRT would have to be careful and act accordingly, i.e. wait for the boater to be in before acting.

 

You won't get a perfect answer. But since this topic never seems to go away, a better solution should be found

Edited July 16, 2014 by Captain Zim

[sueb]

Phone or email to boater involved? If the boater has neither, then I would suggest that this would be a rare occasion when CRT would have to be careful and act accordingly, i.e. wait for the boater to be in before acting.

 

You won't get a perfect answer. But since this topic never seems to go away, a better solution should be found

How long do you suggest staff sit by a boat waiting for the owner to appear?

[Naughty Cal]

How long do you suggest staff sit by a boat waiting for the owner to appear?

They would t need to. They could just leave an official notice where the boat had been.

 

If that's gone when the boater gets back in sure they would contact CRT to find it. Why wouldn't you?

[Paul C]

They would t need to. They could just leave an official notice where the boat had been.

 

If that's gone when the boater gets back in sure they would contact CRT to find it. Why wouldn't you?

 

People don't contact CRT when they've received an enforcement notice though.

People also don't give a (valid, up-to-date) phone number, or an email address. And even if they did, there's no guarantee of getting the call or message answered, or even proof that it was read (and understood), etc.

[Naughty Cal]

 

People don't contact CRT when they've received an enforcement notice though.

People also don't give a (valid, up-to-date) phone number, or an email address. And even if they did, there's no guarantee of getting the call or message answered, or even proof that it was read (and understood), etc.

Why would you not give your licensing authority a valid phone number or email address?

 

It's on the forms each and every time you renew. If it's not up to date renew it.

 

I'm sorry but i would rather CRT had my up to date details incase they find my boat in distress.

 

Why would you not want them to contact you?

 

Unless if course you intend to take the piss. In which case let them take your boat. But don't complain they couldn't contact you!

[MtB]

Can you explain please or maybe a source for that statement would be handy

 

I'm sure you can figure out the difficulties in contacting and someone of no fixed abode in order to enforce a fine if you think about it, even slightly.

 

MtB

[Paul C]

 

Unless if course you intend to take the piss

 

[Captain Zim]

How long do you suggest staff sit by a boat waiting for the owner to appear?

Sorry. I didn't mean literally wait by the boat. I meant deal with those cases slightly differently.

 

As for the question over why someone wouldn't give a phone number, I agree this is always a possibility. But I am slightly confused. It seems to me that quite often, those who shout loudest for something to be done about this menace are also those who pick holes in all the suggestions that come up. What do we actually want? For pisstakers to be shot at dawn and their boats sunk in the channel? We have to start somewhere. So far, there seems to be a genuine improvement as a result of CRT talking to boaters as asking them to do the decent thing. The movement of obstructing boats is simply giving this method a bit more bite without financially inconveniencing either party.

 

I don't advocate moving boats when it is not possible to inform the owner of where their boat is.

 

Leaving notes won't work unfortunately as these can and do go missing. Theoretically it should be possible to work with the local police so that if someone reports a boat stolen, they check a register of boats moved that day. I say theoretically because this sort of thing is always tricky. That said, if enough boats are suddenly being moved and reported as stolen, the police will have a big incentive to work with CRT to manage the situation.

 

Anyhow, if this idea is no good, which is entirely possible, how about some other ideas from all those who want to see the problem sorted. Personally, overstayers, cmers, whatever you want to call them, don't bother me in the slightest. Maybe I've just got too much else to be interested in?

[cotswoldsman]

I'm sure you can figure out the difficulties in contacting and someone of no fixed abode in order to enforce a fine if you think about it, even slightly.

 

MtB

Firstly there is an implication that only those with no fixed abode are the only ones lightly to be fined secondly CRT hold contact details for all boats with a licence