Boater With Home Mooring - Court Action Started.

[Grace and Favour]

Elizabeth Butler-Schloss may be looking for it along with other (unrelated) misplaced documents?

Edited July 10, 2014 by Grace & Favour
Added (unrelated) for clarity :-O

[Rich]

You make similar comments on many topics, none of which have come up with anything vaguely useful to any of those topics.

 

It would seem your one aim Rich, is to snipe and swipe at people cheaply whilst not providing any useful content in the slightest. Why are you here?

 

Still waiting.

[billS]

He's probably waiting for your swingbridge document......

 

I think that was promised from someone with a completely different forum id...

[Jerra]

 

S.17(9) is, as I understand it, a catch-all disclaimer similar to those protecting [without referencing anything in particular] rights such as the Crown or the Duchy of Cornwall - which are frequent examples in much legislation – whether or not there is any likelihood that those rights could be affected.

 

The enactments referred to in this instance, refer only to Acts specific to BW, and can only be those from 1971 onwards, because that is the date from which the first of the “relevant consents” were introduced.

 

The 1971 Act, for example, laid down that in order to obtain the necessary Pleasure Boat Certificate, information of the boat’s particulars had to be supplied, and the requisite fee produced. That stands. Under s.17(9) nothing in the rest of s.17 affects the power of the authority to refuse an application if the particulars are not given and/or if the fee is not paid – but in effect, that is what an application consists of, and any relevant consent can only be refused or accepted on the basis of a paid-for application.

 

Up until the drafting of the 1990 Bill, no conditions could be placed upon issue of that relevant consent; you paid your money for an adequately described boat, and the authority were obliged to give you the consent. Since 1995, they can now impose the 3 specified requirements, and if you consider that the application itself and the payment are also additional conditions rather than being integral to a request for a licence, then you will be in a position to claim that there are 5 pre-requisite conditions for issue of a licence. So - they are entitled to refuse you a licence if you don't apply for one [!?]

 

Given the [relatively new] option of paying for a licence in instalments, I would accept that a default in payment during the relevant period would entitle the Board to withdraw the consent for that reason.

 

I am dealing only with pleasure boats here, the houseboat certificates may well have had other requirements [such as a suitable mooring] already. Byelaws also, imposed requirement of safety and suitability – but were not capable of being applied to refusal of relevant consents.

 

So basically there was no power of the Board under any other enactment to refuse or withdraw a relevant consent, and such statutory conditions of use of the waterways as might be seen to be applicable [such as a suitable mooring for a houseboat] are in any event now formally subsumed within the 3 identified subsections of s.17.

 

I am open to correction on any of this of course.

Thank you Nigel. I suppose I was getting confused because I wasn't aware that when the word enactments is used it refers only to that particular piece of legislation.

[cotswoldsman]

But that doesn't stop somebody saying that they have a mooring at a legitimate mooring site though. yes they could verify their own LTM,s and BWML marinas but how do they verify the claims of somebody that they moor at 'such an such' farm moorings for example? or private marinas.

2 main ways they can ask the owner of the moorings or if said farmer has for example 5 registered mooring spots and the system shows 10 boaters declared then it would flag up a potential problem

[Quinafloat]

That is not what I said. They know the locations of all placed licenced to offer LTM as they confirmed at a meeting when the question was asked "if I declare a home mooring how do CRT know it is genuine?" Answer from CRT "because we know all legal moorings and marinas" that rather blasted the idea of just making up a home mooring.

 

In view of the fact that a place to keep your boat can be anywhere I would suspect that CaRT are claiming more than they are capable of actually knowing. An acquaintance of mine owns a plot of land with full mooring rights on the middle levels and declares that as his home mooring. This is quite fair as he only visits the CaRT waterways over the summer. CaRT do not recognise this mooring and class him as a continuous cruiser.

 

It is only reasonable that CaRT are ignorant of such moorings, but it would be more reasonable if they accepted that they do not know every "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".

[MtB]

 

I think that was promised from someone with a completely different forum id...

 

Same boat name though.

 

And I thought it was lift bridges.

 

 

MtB

[cotswoldsman]

 

In view of the fact that a place to keep your boat can be anywhere I would suspect that CaRT are claiming more than they are capable of actually knowing. An acquaintance of mine owns a plot of land with full mooring rights on the middle levels and declares that as his home mooring. This is quite fair as he only visits the CaRT waterways over the summer. CaRT do not recognise this mooring and class him as a continuous cruiser.

 

It is only reasonable that CaRT are ignorant of such moorings, but it would be more reasonable if they accepted that they do not know every "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".

Sometimes it does take a long time to clarify one statement they have a record of moorings on their waterways but hey one day they might be able to tell you where to moor in France

[Rich]

 

Same boat name though.

 

And I thought it was lift bridges.

 

 

MtB

Excuse me guys, but am I in anyway being referred to here, or has my paranoia finally getting on top ?

[MtB]

Excuse me guys, but am I in anyway being referred to here, or has my paranoia finally getting on top ?

 

it's yer paranoia!

 

We are referring to Rachel's long, loud and bolshy claim about three or four years ago that she had a method documented for single handers to work the lift bridges on the southern Oxford canal, and boaters who couldn't work them single-handed were fools. She then came up with the most breathtaking string of excuses why she couldn't find the document and tell us the method.

 

The reality is of course that there is no such document and she was windbagging on a subject she knows feck-all about (again), but she refuses to admit this and apologise, and has since changed her username.

 

So nothing to do with you!

 

MtB

Edited July 10, 2014 by Mike the Boilerman

[Guest]

it's yer paranoia!

 

We are referring to Rachel's long, loud and bolshy claim about three or four years ago that she had a method documented for single handers to work the lift bridges on the southern Oxford canal, and boaters who couldn't work them single-handed were fools. She then came up with the most breathtaking string of excuses why she couldn't find the document and tell us the method.

 

The reality is of course that there is no such document and she was windbagging on a subject she knows feck-all about (again), but she refuses to admit this and apologise, and has since changed her username.

 

So nothing to do with you!

 

MtB

 

I just love the forgiving nature of this forum......it does it's membership great credit......

[NigelMoore]

No doubt there have been considerable discussions at which he has told CRT to shove it. They certainly won't be taking him to court for a "first offence".

 

That much is very evident. There was apparently lots of communication, and the boater evidently did indeed tell them “to shove it”.

Personally, I rather think there has been folly on both sides. It does not appear that the boater has his back to the wall [as it were]; he could move back to his mooring and put up with any inconvenience for awhile until the heat dies down – I’m not saying he needs to, but it isn’t always necessary to provoke a fight and make a point just for the sake of it.

 

As I’ve said before, he is at least in the happy position of not needing a ‘relevant consent’ to stay at his home mooring, so the revocation and refusal to grant a new pleasure boat certificate would simply mean that he was precluded from doing what the authority in most instances would prefer that he did – travel.

 

No-one seemingly twigging to the obvious in this respect, it is unlikely to arise, and so will not be adjudicated. Not that the court would be in a position to determine the bounds of the main navigation channel on the relevant section of the Trent anyway [i would not have thought], given that the relevant statute provides for clarification of the boundaries by application to the Secretary of State for approval of an annotated map. Until that was established, any reliance on the appropriateness of s.8 for lack of the relevant consent would needs fail. But as I say, I doubt the issue will be raised.

 

CaRT would have been far better off leaving s.8 proceedings out of it, and if they honestly believed that they were entitled to refuse the Pleasure Boat Certificate, they could/should have applied to the court to impose the applicable daily fine for all the time he made use of the navigation without that relevant consent. Also, if they honestly felt that he had been violating enforceable byelaws on mooring obstruction, they could/should have pursued the remedy for those offences [up to £100/day].

 

As it is, they are not taking him to court for any of the legitimate offences [supposing these had occurred], they are taking him to court for a non-existent offence, asking for validation of an inapplicable remedy. It is sobering to reflect that if a lawyer had not been roped in at the last minute ‘in extremis’, the authority would have successfully bypassed any need to argue the point.

 

In short, they cannot legitimately evict him from the waterway where he is, whether possessed of their Pleasure Boat Certificate or not, because he only needs that to cruise.

[billS]

I just love the forgiving nature of this forum......it does it's membership great credit......

 

Well Mrs S does refer to it as the "C-anal retentive argument forum".

 

Motto - if we weren't sad, we wouldn't be here...

Edited July 10, 2014 by billS

[MtB]

 

 

As it is, they are not taking him to court for any of the legitimate offences [supposing these had occurred], they are taking him to court for a non-existent offence, asking for validation of an inapplicable remedy. It is sobering to reflect that if a lawyer had not been roped in at the last minute ‘in extremis’, the authority would have successfully bypassed any need to argue the point.

 

In short, they cannot legitimately evict him from the waterway where he is, whether possessed of their Pleasure Boat Certificate or not, because he only needs that to cruise.

 

I don't understand why they are 'taking him to court' at all.

 

They're revoked his licence, the Section 8 procedure is in progress, next, they lift his boat out. Where does a court hearing fit in?

 

Surely it's for him to take CRT to court if he considers they've acted ultra vires in revoking his licence.

 

MtB

I just love the forgiving nature of this forum......it does it's membership great credit......

 

Well Rachel was soooooooooo belligerent and unpleasant about it in that thread. It's the Karma she created.

 

 

MtB

[junior]

 

Well Rachel was soooooooooo belligerent and unpleasant about it in that thread. It's the Karma she created.

 

 

MtB

Any chance of a link? Sounds fun!

[NigelMoore]

That cannot be a valid argument. You cannot expect CRT to examine the minutiae of every licence application quoting a home mooring.

 

Keeping to the specific case which I was dealing with, rather than considering generalities, my argument is valid, because they did know the mooring, and they did have written confirmation that the mooring was paid for.

 

Moreover, according to the admittedly hear-say evidence in reports elsewhere [easily debunked if false], the authority’s own Patrol Reports cite some 88 occasions over the years when the vessel was sighted by them on that mooring.

 

As I said, there was never argument that the mooring was in any way unsuitable, simply that they were not satisfied that the arrangement was “genuine”, because he so seldom used it.

[Alan de Enfield]

It is quoted that it is in fact a "PART 8" action NOT a SECTION 8 action.

 

The implication is that they are different - are they, and if so what is the difference.

 

I have googled "Part 8" (re BW or C&RT) and scanned thru the 1995 act but cannot find anything.

[NigelMoore]

 

I don't understand why they are 'taking him to court' at all.

 

They're revoked his licence, the Section 8 procedure is in progress, next, they lift his boat out. Where does a court hearing fit in?

 

Surely it's for him to take CRT to court if he considers they've acted ultra vires in revoking his licence.

 

 

 

I presume that the boater is a live-aboard, and the court procedure in such cases is intended to insulate them from fall-out over the HRA [although I would agree with you, that for most cases sufficient precedent had been set].

 

Yes, in my opinion also, he should have taken them to court for revocation of his consent and/or for refusal to grant the new certificate, supposing he wished to continue moving around the area - which he so obviously does, rather than staying at his mooring.

 

However – you are still making what I believe to be an unwarranted presumption that no question exists over the validity of s.8 proceedings, regardless of whether or not he has a relevant consent.

 

Suppose, to put the situation in a more obvious context by way of example, you had a boat on the tidal Thames, and CaRT s.8’d you because the licence you had taken out for last year’s cruise on their waters had lapsed. Would you accept that they had the right after 28 days to come by and crane you out? I somehow doubt it - you wouldn’t even be on one of their waterways, so how could it be said that their relevant consent was any longer needed?

 

As a more direct example, was the s.8 on Gilgie, which was on BW/CaRT waters [but which had not needed a relevant consent either], valid or not?

[Rich]

 

it's yer paranoia!

 

We are referring to Rachel's long, loud and bolshy claim

Thanks MtB, paranoia I can deal with. But I can't believe that NC could ever be described in such terms. There we go again, I am assuming NC and Rachel have a connection.

 

But it all adds to the interest of the forum. Some days I sit here on the boat trying to summon up the enthusiasm to do a job that will quite happily wait until next week, whenever that is, and that I don't want to do ATM. So have a look on CWDF, there's bound to something there.

[matty40s]

Thanks MtB, paranoia I can deal with. But I can't believe that NC could ever be described in such terms. There we go again, I am assuming NC and Rachel have a connection.

 

But it all adds to the interest of the forum. Some days I sit here on the boat trying to summon up the enthusiasm to do a job that will quite happily wait until next week, whenever that is, and that I don't want to do ATM. So have a look on CWDF, there's bound to something there.

Rachel used to be known as Phyllis on here, which makes it even more confucious-ing.

[Rich]

Rachel used to be known as Phyllis on here, which makes it even more confucious-ing.

So I could be stalked by three entities, Phyllis, Rachel and NC. No wonder my paranoia is peaking.

 

Good fun though, innit?

[Naughty Cal]

I have better things to do with my time than stalk people thanks!

 

ETA: it's Rachael by the way.

Edited July 10, 2014 by Naughty Cal

[NigelMoore]

It is quoted that it is in fact a "PART 8" action NOT a SECTION 8 action.

 

The implication is that they are different - are they, and if so what is the difference.

 

I have googled "Part 8" (re BW or C&RT) and scanned thru the 1995 act but cannot find anything.

 

You are confusing two entirely different things Alan. Part 8 refers to a court procedure, whereas Section 8 refers to BW legislation [the 1983 Act].

 

You needed instead, to google through the courts’ “Civil Procedures Rules”, not BW legislation.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part08

 

Part 8(2) A claimant may use the Part 8 procedure where –

(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact;

 

This procedure requires no hearing or defendant participation, so is a deadly move to make for the unprepared. Of course, it is required for the Claimant to include response information when serving on the Defendant, but these can be frighteningly obscure to the layman – and in this case, it appears that CaRT didn’t bother to include them anyway.

 

Because of the obvious avenue for abuse of the system - as applied - here, so long as the judge or relevant court officer is alert, he can identify such attempts and stop it.

 

http://www.justice.gov.uk/pre-trash-archive/civ-proc-rules-old/_old/pd_part08a

 

3.4

Where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately, he may refer the claim to a judge for the judge to consider the point.

3.5

The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court will allocate the claim to a track and give such directions as it considers appropriate.

 

Seemingly, the boater had the nous to swiftly call in a lawyer who gave good advice re alerting the court as to the true situation, and the judge acted precisely as the Practice Directions 3.5 dictate.

[Rich]

I have better things to do with my time than stalk people thanks!

 

ETA: it's Rachael by the way.

Thanks NC but what about the other three, was two but now Rachael has turned up as well?

[Naughty Cal]

Thanks NC but what about the other three, was two but now Rachael has turned up as well?

That's just your paranoid side creeping up on you again

 

Phylis became Naughty-Cal but has always been Rachael.