Section 8

[Naughty Cal]

But why on earth would Rachel have been taken to court if she wasn't guilty?

On a technicality over who's water it was on, which wasnt it turned out CRT (then BW) water.

[Nige G]

Those pesky technicalities eh?

 

Sort of like the technicalities of whether someone is abiding by the letter of the law or CRT's interpretation of the law...

[Naughty Cal]

Those pesky technicalities eh?

 

Sort of like the technicalities of whether someone is abiding by the letter of the law or CRT's interpretation of the law...

 

Dont you have to be on CRT waters for their interpretation of the law to matter?

[Alan de Enfield]

 

Dont you have to be on CRT waters for their interpretation of the law to matter?

 

I expect thats what Tony Dunkley thought when C&RT accused him of overstaying on EA waters.

[carlt]

 

Dont you have to be on CRT waters for their interpretation of the law to matter?

But surely, by your logic, if you were not guilty it would never have got to court...

[Naughty Cal]

But surely, by your logic, if you were not guilty it would never have got to court...

 

It probably shouldn't have. But I did wrong, held up my hands and paid the fine.

 

If I had wanted to be really awkward I could no doubt have dragged the case out longer and proved the point. It wasnt worth it.

 

I expect thats what Tony Dunkley thought when C&RT accused him of overstaying on EA waters.

 

Was he on EA waters?

[Ssscrudddy]

NVM

Edited August 7, 2014 by Ssscrudddy

[Tony Dunkley]

 

I expect thats what Tony Dunkley thought when C&RT accused him of overstaying on EA waters.

I was not on EA waters, but moored to EA land. C&RT(and BW before them) sell Long Term Mooring Permits for some adjoining EA land. They don't have any Agreement with the EA to do this, but have got away with it for many years, eventually becoming sufficiently sure of themselves to think they can exercise control over mooring to other EA owned land nearby. The EA have no issues with boats mooring to their land in this vicinity, and have even gone to the trouble of supplying me with a drawing/map with the boundaries of their land clearly marked.

[Mr Badger]

Sounds pretty much like mooring to privately owned offside land. The CaRT considers that it owns the canal bed and water so its mooring rules apply. It might be a different story on a river if the riparian owner owns the bed.

[Mike Todd]

To return to the general point about whether it is possible for CRT to assert successfully that a licence applicant does not have a home mooring that is reasonably available to them:

 

Clearly there are some simple cases such as:

 

* a mooring that is 40 ft long for a 70 ft boat

* a mooring on a narrow canal for a wide beam boat

* a mooring on a canal that is no longer open for navigation

 

On the other hand there are situations at the other end of the scale:

 

* a mooring not used whilst on a 12 month system wide cruise

* a mooring declared as home mooring but not used by a boat which is kept on aother legitimate mooring

 

The idfficulty, I guess, is that most cases are not as clear cut and a matter of judgement and, in the end, this is why some poeple end up in court with both parties claiming to be acting reasonably. In some cases, it may even be the case that the reasonableness claim is justified on both sides but, because they are using incompatible bits of egislartion - sadly they do exist - someone has to make a decision about which takes priority.

[cotswoldsman]

So is all Ok with wreckferret?

[NigelMoore]

To return to the general point about whether it is possible for CRT to assert successfully that a licence applicant does not have a home mooring that is reasonably available to them:

 

Good examples. Not that the legislation explicitly requires the mooring to be “reasonably available” – but point taken regardless, it would have to be implicit.

 

CaRT’s principal new emphasis however, is that you must be [in effect] continuously cruising while not at your mooring – if you are, no problem with disuse. What they do want to stop is people using the existence of a home mooring to allow them more freedom of movement patterns. Whether the mooring is a "ghost" or not is almost irrelevant.

 

They know they can’t insist that everyone has a home mooring, but what they are attempting is to insist that everyone not at their mooring is a CC’er. It’s almost something of a turn-around from the nineties.

 

In their ideal world, they would make everybody CC'ing houseboats [contradiction in term] – except for the inconvenient bit respecting security of tenure; they don’t care for that at all, which is why they have been cutting back on these Certificates for years [only about 80 Houseboat Certificates remaining, as compared to the 33 thousand odd Pleasure Boats]..

 

It’s not much of a con to weigh against the pro’s for them, I would have thought – but they get the best of both worlds anyway, by treating you as a houseboat AS WELL when they want to dispose of you.

[Tony Dunkley]

Sounds pretty much like mooring to privately owned offside land. The CaRT considers that it owns the canal bed and water so its mooring rules apply. It might be a different story on a river if the riparian owner owns the bed.

Contrary to what BW and now C&RT would like everyone believe, they have no Statutory powers to control moorings and are entitled to control, and charge for, moorings only where they own the land to which vessels are moored. Their argument about charging for the waterspace at a mooring is rubbish, Any licenced boat is paying for the waterspace it occupies regardless of whether it is underway or moored, demanding payment for waterspace at a mooring is, in fact, making the boat owner pay for the same thing twice.

[Paul G2]

Tony,

 

A while back Nigel wrote this:

 

NigelMoore, on 06 Aug 2014 - 11:38 AM, said:

 

On issuing proceedings, they have added in the claim that he was improperly licensed for all the years that he had the boat – i.e. it should have been a houseboat not a pleasure boat. It is because of the lack of that latter that they are asking the court to sanction both s.8 and s.13 action.

 

So it is not a simple rebuttal of a single point of law that is now needed, but rather a multitude of them.

 

Now I am really confused. Is your boat a Dutch Barge or other vessel in excess of 15 tons? Your boat does have a means of propulsion, doesn't it?

 

If CRT are trying to claim that you are a houseboat, doesn't that raise all kinds of problems with HMRC? Being that houseboats are VAT exempt, I should think that HMRC would want as few vessels qualified as houseboats as possible and that attempting to designate your vessel as a houseboat would put CRT at odds with HMRC, not just because of the VAT you may not have to pay but because of the VAT many other owners could reclaim simply because "My boat is just like Tony's"?

 

CRT may be a big fish in their own little pond, but, wouldn't taking on HMRC be biting off a tad more than they can chew? Have you brought, or do you intend to bring, HMRC into the proceedings with CRT?

 

If CRT now claims that your vessel is a houseboat, and has thus been improperly licensed for a number of years, don't they have to take some kind of responsibility for the improper classification? What is their strategy, just pleading stupidity and being gullible to your evil deception for all those years? How are they trying to get around the fact that you "navigate" from one point to another on a regular basis, or that pesky little technicality that you have a means of propulsion?

 

Your case sounds more and more like Alice down the rabbit's hole. It just gets curiouser and curiouser.

[Tam & Di]

If CRT are trying to claim that you are a houseboat, doesn't that raise all kinds of problems with HMRC? Being that houseboats are VAT exempt, I should think that HMRC would want as few vessels qualified as houseboats as possible and that attempting to designate your vessel as a houseboat would put CRT at odds with HMRC, not just because of the VAT you may not have to pay but because of the VAT many other owners could reclaim simply because "My boat is just like Tony's"?

 

A houseboat as defined by HMRC is specific to them - as is their system of tonnage measurement. It is a confusion to apply their definition to this case. The HMRC tonnage measurement is calculated differently even to that used for Gross Registered Tonnage and Nett Registered Tonnage for ships.

Edited August 8, 2014 by Tam & Di

[NigelMoore]

 

A houseboat as defined by HMRC is specific to them - as is their system of tonnage measurement. It is a confusion to apply their definition to this case.

 

Correct. Paul G2's is an interesting point, and an intriguing idea for a line of defence, but it won’t wash for precisely that reason.

.

He is correct that HMRC “want as few vessels qualified as houseboats as possible”, but they will see no reason to get involved, because they don’t care how you or BW/CaRT classify your boat; they concern themselves solely with their own definitions – and it is impossible nowadays for any narrowboat [Tony’s boat is a narrowboat] to qualify as a houseboat for VAT purposes.

 

Under BW legislation by way of contrast, practically anything can be a houseboat – it doesn’t have to be used as either house or boat; it doesn’t even have to be designed as either house or boat, it can be any structure at all, even only part of or wreckage of some structure. It is defined principally in terms of what it isn’t – it can’t belong to BW/CaRT; it can’t be a jetty; it can’t be something designated for breaking up, and most importantly of all, it “does not include any boat . . . which is bona fide used for navigation”. That last is the closest the definition comes to that of HMRC.

 

Significantly, the Certificate is not unilaterally effective, such that it cannot over-ride any requirements of the LPA.

 

As per usual, CaRT are currently scratching their heads and re-writing their views on how to interpret the houseboat definition, but so far as taking legal action is concerned, it doesn’t matter – if the boat is a live-aboard then every s.8 is accompanied by a s.13 relating to houseboats. In most cases, I am not even sure quite why, and I doubt they know themselves [they probably think they need to, just in case it affects the HRA angle – i.e. it shows that because the legislation provides for houseboat demolition, then they have the indisputable power to render people homeless].

 

CaRT justify the re-classification once they want to get rid of the boat, by reference to a claim that a boat that is not currently engaged in navigating escapes the exclusion clause.

 

HMRC on the other hand, would not give the matter a moment’s pause for thought – to their mind the boat will be a navigable one designed or adapted for recreation or pleasure, and regardless of size or previous purpose [as e.g. for commercial carrying], cannot be zero-rated as a houseboat. Even if you declared the boat as an ex-working boat made into your primary residence at an approved residential mooring, as a narrowboat you could not possibly meet the 15 ton lower limit for zero-rating of such craft.

 

You have to remember that the tonnage classification has nothing to do with any standard carrying capacity or gross tonnage – the HMRC tonnage is calculated on a volume basis; the tonnage relates to how much your nominal hold could carry in tea chests. Not only was that always difficult for anything other than the largest narrowboats to qualify, some years ago HMRC specifically altered the factor to be applied in the relevant calculation when dealing with narrowboats, so that it is now an impossibility for one to qualify [i doubt the legality of the move, but that is the situation].

 

So far as “that pesky little technicality” is concerned, it matters to HMRC but not to CaRT, because the ability to navigate a houseboat is accepted in the legislation even though it may not be genuinely intended for that purpose [!!??!!]

 

[Tuscan]

Part of the signed undertaking given to NABO during the passage of the British Waterways Bill

 

Clause 15

The Board undertakes not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by a person or persons.

[Alan de Enfield]

Part of the signed undertaking given to NABO during the passage of the British Waterways Bill

 

Clause 15

The Board undertakes not to treat as a houseboat any vessel which, although not in fact bona fide used for navigation, is not in use as a residence by a person or persons.

 

Which therefore means that any liveaboard can/will be treated as a houseboat

[Paul C]

As I understand it, they use the section 13 (houseboat) procedure in parallel with the section 8 in case anyone uses a defence along the lines of "I'm not a CCer and my boat isn't used bona fide for navigation, therefore section 8 doens't apply to me". Or something like that.

[Alan de Enfield]

C&RT's definition of a houseboat :

 

1.4. Houseboat means a boat whose predominant use is for a purpose other than navigation and

which, if required for the purpose, has planning permission, for the site where it is moored. A

Houseboat may be used for navigation from time to time provided it does not become its

predominant use.

 

Therefore a CC'er Livaboard's boat cannot be a Houseboat

[NigelMoore]

As I understand it, they use the section 13 (houseboat) procedure in parallel with the section 8 in case anyone uses a defence along the lines of "I'm not a CCer and my boat isn't used bona fide for navigation, therefore section 8 doens't apply to me". Or something like that.

 

Section.8 of the '83 Act applies to ANY vessel or part thereof, so houseboats do not escape the clause; the defence you cite cannot work, so could not be a rationale for serving s.13 as well.

 

Section.13 of the '71 Act is redundant, once a s.8 is served, having no practical effect except for the re-classification.

 

The effect of treating every boat issued with a s.8 as a houseboat, is that the claim of it being on the waterways without lawful authority becomes so much more clear-cut. That applies universally also, so that IF it is a houseboat, then whether a pleasure boat licence/certificate is needed or not, they can still apply the section.

[NigelMoore]

a CC'er Livaboard's boat cannot be a Houseboat

 

As I said though, if the CC’er does not comply with the requirement for the boat to be used bona fide for navigation throughout the term of the licence [however that is interpreted], then CaRT consider them to be NOT so using the boat, as to exempt it from the houseboat classification.

 

Of course, if that argument was applied consistently, then EVERY pleasure boat would be a houseboat when not engaged in navigation – which is ridiculous of course, but unless they have their noses rubbed in the quirkier details of the ’71 Act definition, even the most senior judges automatically believe just that.

 

As for the CaRT definition, it is fine, but they don’t let their own published interpretation get in the way of enforcement. And that doesn’t even contain all the spec.s in the T&C’s – which, as I said, are being modified now:

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

[Tam & Di]

You have to remember that the tonnage classification has nothing to do with any standard carrying capacity or gross tonnage – the HMRC tonnage is calculated on a volume basis; the tonnage relates to how much your nominal hold could carry in tea chests.

 

 

Only a fine point, but I believe the ships' volumetric tonnage calculation was based on tuns of wine (c.f. French tonneaux) rather the tea chests.

[Rich]

 

 

 

CaRT’s principal new emphasis however, is that you must be [in effect] continuously cruising while not at your mooring – if you are, no problem with disuse. What they do want to stop is people using the existence of a home mooring to allow them more freedom of movement patterns. Whether the mooring is a "ghost" or not is almost irrelevant.

 

 

 

There is an item about just this matter in the current edition of NABO News.

 

The question is asked that when a boat leaves its marina and enters the canal system does it become a continuous cruiser. The answer from Jackie Lewis ( her position within Canal and River Trust is also in the mag) is that it cannot by definition be a boat without a home. There is also a definition of a ghost mooring in there.

 

Something that puzzles me is Canal and River Trust's attitude to Tony Dunkley. He has a home mooring but cruises elsewhere in the system, apparently. So what, does it matter? Is something terrible about to befall Canal and River Trust because of this? Are hundreds, perhaps thousands, of boaters going try to adopt a similar life style? Or are they pursuing him because they can?

[NigelMoore]

 

Only a fine point, but I believe the ships' volumetric tonnage calculation was based on tuns of wine (c.f. French tonneaux) rather the tea chests.

 

My memory could of course be at fault, but when I was first reading through all the bumpf I had for issuing Certificates of Tonnage for VAT Purposes Only, it was the story of the tea chests that stuck in my brain [that and using machine-gun emplacements on deck to illustrate what did and did not qualify and why].

 

It would certainly explain why making the tonnage limit is so difficult too. It wouldn’t be difficult, surely, to have a hold full of fluid make the limit, whereas something as light as tea would be very difficult, even for a butty capable of carrying 30 tons of heavy goods.

 

I wish I could substantiate what I’ve said, but I must have given away the original VAT publication I had, because the more up to date stuff mentions nothing about it – and I have hunted for it often, just because I remained intrigued.