Section 8

[mayalld]

 

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?

 

If your statement were accurate, then I don't think CRT would care.

 

However, the actual situation is that TD DOESN'T cruise.

 

He simply shuffles about in a limited area whilst using his home mooring as a kind of get out of jail free card.

[Captain Zim]

 

If your statement were accurate, then I don't think CRT would care.

 

However, the actual situation is that TD DOESN'T cruise.

 

He simply shuffles about in a limited area whilst using his home mooring as a kind of get out of jail free card.

When he shuffles, does he navigate?

[NigelMoore]

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?

 

What bothered CaRT with Mr Dunkley was his habit of mooring in pretty well the same place near their visitor moorings at Holme Lock with, at times, only brief periods away before the next 14 day stint. It offends them, in other words, in the same way and for the same reason it offends the “piss-taker” accusers on here.

 

Notwithstanding their acknowledgement in the recent Report to the Trustees that moving off a visitor mooring for as little as 24 hours and returning for another 14 days is actually legal, they don’t like it. The particular officer dealing with the situation having something of a reputation for his manner on the towpath, and Mr Dunkley’s response to criticism being such as might be inferred from his Forum contributions, the recipe was there for bruised egos.

 

As I have illustrated before, an Enforcement Officer’s actions will be backed up by his superiors regardless of rights or wrongs; and in this instance there was a considerable period of concerted effort and internal discussion between relevant departments anyway, over dealing with the open affront to their wishes.

 

The Ombudsman backed their chosen play, and Mr Parry likewise.

[Tuscan]

If your statement were accurate, then I don't think CRT would care.

 

However, the actual situation is that TD DOESN'T cruise.

 

He simply shuffles about in a limited area whilst using his home mooring as a kind of get out of jail free card.

So you are saying that this boils down to a definition of cruise - so if this is legally defined for those with a home mooring then it should be a short hearing.

[NigelMoore]

When he shuffles, does he navigate?

 

He "cruises", as generally understood, by dictionary definition [as Alan de Enfield has posted up], but he does not “cruise” as CaRT wish to define that – he does not, in other words, use his boat “bona fide for navigation [as they understand that] throughout the period” he is away from his home mooring, even though complying with the ’14 day rule’.

[Rich]

 

If your statement were accurate, then I don't think CRT would care.

 

However, the actual situation is that TD DOESN'T cruise.

 

He simply shuffles about in a limited area whilst using his home mooring as a kind of get out of jail free card.

 

The accuracy of which statement do you query?

 

If he has a home mooring why does he need to cruise?

 

He gives every appearance of complying with the conditions of a boat with a home mooring, doesn't he?

[Tam & Di]

 

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]. ...... 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.

 

I had a quick look on-line and shipspotting.com (!!) says: "The word 'ton' does not refer to a weight ton at all. It was originally derived from the word 'tun' and referred to the 252-gallon barrel used in the wine trade in the days of sail. Then a convenient way of estimating a ship's size was to calculate how many of these barrels she could carry and that figure was used as the ship's 'register tonnage.' From that tradition there evolved 'Gross Register Tonnage' (GRT) and 'Nett Register Tonnage' (NRT). These were a measure of the enclosed space in the ship calculated on the basis of a ton being 100 cubic feet. 'Gross' being the total space, while 'Nett' was the total space less that used for machinery and accommodation".

 

The HMRC ton is also volumetric but calculated different way. A bit beside the point for this issue though.

[NigelMoore]

The HMRC ton is also volumetric but calculated different way. A bit beside the point for this issue though.

 

Maybe a little off-topic but fascinating, and I don't think the main subject discussion will be derailed!

[Alan de Enfield]

For further delectation - Definition of "Cruise" from 6 dictionaries :-

 

 

Sail about in an area without a precise destination, especially for pleasure.

 

A voyage on a ship or boat taken for pleasure or as a holiday and usually calling in at several places.

 

Wander about a place in search of a casual sexual partner

 

To go or move along, especially in an unhurried or unconcerned fashion

 

To travel about or journey over.

 

To travel without destination or purpose

[Captain Zim]

For further delectation - Definition of "Cruise" from 6 dictionaries :-

 

 

Sail about in an area without a precise destination, especially for pleasure.

 

A voyage on a ship or boat taken for pleasure or as a holiday and usually calling in at several places.

 

Wander about a place in search of a casual sexual partner

 

To go or move along, especially in an unhurried or unconcerned fashion

 

To travel about or journey over.

 

To travel without destination or purpose

Can you define shuffle?

[Alan de Enfield]

Captain Zim, on 08 Aug 2014 - 1:21 PM, said:

Can you define shuffle?

 

This seems to cover most options

 

¹shuf·fleverb \ˈshə-fəl\

: to slide your feet along the ground or back and forth without lifting them completely

: to move things or people into a different order or into different positions

: to mix (playing cards) before playing a game so that no one knows what order they are in

shuf·fledshuf·fling \-f(ə-)liŋ\

CloseStyle: MLA APA Chicago

Full Definition of SHUFFLE

transitive verb

1

: to mix in a mass confusedly : jumble

2

: to put or thrust aside or under cover <shuffled the whole matter out of his mind>

3

a: to rearrange (as playing cards, dominoes, or tiles) to produce a random order

b: to move about, back and forth, or from one place to another : shift <shuffle funds among various accounts>

4

a: to move (as the feet) by sliding along or back and forth without lifting

b: to perform (as a dance) with a dragging, sliding step

[Captain Zim]

That's brilliant. Thanks. Now we've just got to work out where either of those terms appear in the 1995 Act.

[Allan(nb Albert)]

 

 

This seems to cover most options

 

¹shuf·fle verb \ˈshə-fəl\

: to slide your feet along the ground or back and forth without lifting them completely

: to move things or people into a different order or into different positions

: to mix (playing cards) before playing a game so that no one knows what order they are in

shuf·fledshuf·fling \-f(ə-)liŋ\

CloseStyle: MLA APA Chicago

Full Definition of SHUFFLE

transitive verb

1

: to mix in a mass confusedly : jumble

2

: to put or thrust aside or under cover <shuffled the whole matter out of his mind>

3

a: to rearrange (as playing cards, dominoes, or tiles) to produce a random order

b: to move about, back and forth, or from one place to another : shift <shuffle funds among various accounts>

4

a: to move (as the feet) by sliding along or back and forth without lifting

b: to perform (as a dance) with a dragging, sliding step

 

When I asked CaRT what 'cruising' meant a couple of months back they mentioned 'shuttle' rather than 'shuffle'.

 

[Tony Dunkley]

 

 

This seems to cover most options

 

¹shuf·fle verb \ˈshə-fəl\

: to slide your feet along the ground or back and forth without lifting them completely

: to move things or people into a different order or into different positions

: to mix (playing cards) before playing a game so that no one knows what order they are in

shuf·fledshuf·fling \-f(ə-)liŋ\

CloseStyle: MLA APA Chicago

Full Definition of SHUFFLE

transitive verb

1

: to mix in a mass confusedly : jumble

2

: to put or thrust aside or under cover <shuffled the whole matter out of his mind>

3

a: to rearrange (as playing cards, dominoes, or tiles) to produce a random order

b: to move about, back and forth, or from one place to another : shift <shuffle funds among various accounts>

4

a: to move (as the feet) by sliding along or back and forth without lifting

b: to perform (as a dance) with a dragging, sliding step

 

There' a bit more in Post 508 about other disgraceful things I was doing whilst shuffling.

[Nige G]

There' a bit more in Post 508 about other disgraceful things I was doing whilst shuffling.

 

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.

 

 

After just reading Nigel Moore's report on his court case(http://www.bargee-traveller.org.uk/?page_id=128) it would appear to my untrained eye that there are some similarities with both cases here?

[Tony Dunkley]

 

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?

Yes, I was wondering the same thing until I read the C&RT Statement they have submitted to the Court in support of their application for an Injunction. It seems that they believe there will not be a future for the waterways unless they can have me abolished. The relevant extract from their Statement is quoted in the following e-mail, sent to the CEO some two weeks ago and, as yet, unanswered.

 

Mr. Parry,

I am curious as to whether or not you are aware of, and agree with, why it has been deemed to be necessary to remove me and the boat I live on from all waterways under C&RT control, in order to , and I quote from a C&RT statement to be used against me in Court . . . " to enable C&RT to comply with it's statutory duty to ensure that the inland waterways controlled by C&RT are safe, well managed and properly conserved."

The implications of this remarkable statement are, of course, that my continued presence, beyond this the 50th year since I began living and working on this country's waterways, will result in those very same waterways becoming unsafe, mis-managed and falling into decline . . . something a great many of your boat owning customers believe to have already occurred under C&RT's stewardship.

It may be that you sincerely believe that my continued presence constitutes a very real and serious threat to the future of our waterways . . . after all you will be claiming this in open Court having already submitted it in writing. If, however, you really think, as everyone who has seen it up to now does, that it is one of the most ridiculous statements ever made, then the question arises of why you are intending to rely upon it in Court as credible evidence?

Please refrain from time wasting and stalling by responding with any red herrings such as . . . "sub judice so we can't comment" . . . or any thing similar. I am not asking questions about the expensive, unwarranted, disproportionate and legally inappropriate action that C&RT is taking against me, but I am questioning whether C&RT and the personnel responsible for it's day to day operation and administration are, in fact, fit for purpose.

Signed A.K.Dunkley

[Rich]

 

Yes, I was wondering the same thing until I read the C&RT Statement they have submitted to the Court in support of their application for an Injunction. It seems that they believe there will not be a future for the waterways unless they can have me abolished. The relevant extract from their Statement is quoted in the following e-mail, sent to the CEO some two weeks ago and, as yet, unanswered.

 

Mr. Parry,

I am curious as to whether or not you are aware of, and agree with, why it has been deemed to be necessary to remove me and the boat I live on from all waterways under C&RT control, in order to , and I quote from a C&RT statement to be used against me in Court . . . " to enable C&RT to comply with it's statutory duty to ensure that the inland waterways controlled by C&RT are safe, well managed and properly conserved."

The implications of this remarkable statement are, of course, that my continued presence, beyond this the 50th year since I began living and working on this country's waterways, will result in those very same waterways becoming unsafe, mis-managed and falling into decline . . . something a great many of your boat owning customers believe to have already occurred under C&RT's stewardship.

It may be that you sincerely believe that my continued presence constitutes a very real and serious threat to the future of our waterways . . . after all you will be claiming this in open Court having already submitted it in writing. If, however, you really think, as everyone who has seen it up to now does, that it is one of the most ridiculous statements ever made, then the question arises of why you are intending to rely upon it in Court as credible evidence?

Please refrain from time wasting and stalling by responding with any red herrings such as . . . "sub judice so we can't comment" . . . or any thing similar. I am not asking questions about the expensive, unwarranted, disproportionate and legally inappropriate action that C&RT is taking against me, but I am questioning whether C&RT and the personnel responsible for it's day to day operation and administration are, in fact, fit for purpose.

Signed A.K.Dunkley

 

 

That is an astonishing statement but there are some around who won't see anything wrong in it. I can only assume that there is much more to this than we have been told. Are you hurtling round the system breaking lock beams, causing leaks and generally promoting mayhem. Actually I don't think you are but as has been said Canal and River Trust wouldn't be taking you to court if there wasn't a reason, and I don't think the reason will come to light very readily.

 

Your email to Parry seems quite reasonable and it will be interesting to see if you ever get a reply. You are a customer of what is a monopoly. I know that NC thinks that there are alternatives but she really hasn't a clue. The problem you have is that as the big cheese of a monopoly he doesn't have to bother with your inconsequential queries. Where are you going to go or to whom are you going to complain.

 

The more that comes out about this matter the more serious in appears. Canal and River Trust don't seem to be answerable to anyone unless they have the expertise or money to fight. It would appear that even with either or both of these two qualities Canal and River Trust's word is accepted without too much querying.

 

Something is rotten in the state of Denmark.

[NigelMoore]

 

That is an astonishing statement . . .

 

It is in fact a fairly standard bit of waffle, establishing for the benefit of the court that there are objectives of public interest that the authority is entrusted to achieve.

 

In the most general of terms, actions establishing their ability to impose such sanctions respecting use of the waterways as are necessary if they are to be capable of achieving their objectives, need to be affirmed as “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” [Article 6(2) of the European Convention on Human Rights.]

 

In other words, the waffle is designed to counter any attempt at having their power to violate Article 6(1) through the processes of s.8 and s.13 declared incompatible with the boater’s "right to respect for his private and family life, his home and his correspondence."

 

Essentially [to paraphrase], if the public interest can only be served at the expense of private human rights, so be it - in such circumstances the HRA does not apply. The authority only needs to establish the public benefit that their power is designed to achieve, hence the vacuous blurb quoted. The court will buy into it, for the reasons I have quoted elsewhere.

[Rich]

 

The court will buy into it, for the reasons I have quoted elsewhere.

 

Does the court buy into it without any questions being asked, such as "in what way will the canal system fail if this man is left in peace, acting within the regulations". If nothing is queried that is a shocking indictment of the courts.

[NigelMoore]

 

Does the court buy into it without any questions being asked, such as "in what way will the canal system fail if this man is left in peace, acting within the regulations". If nothing is queried that is a shocking indictment of the courts.

 

They may well ask such questions, but the presumption is always that the authority knows best. The position [as I posted earlier elsewhere] is that quoted by the judge in BW v Ward, paragraph 12, page 11 [from Lord Hope in Hounslow v Powell [2011] 2 AC 186] -

 

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

 

This was in respect of housing authorities, but the exact same principle applies:

 

“Practical considerations indicate that it would be demanding far too much of the judge in the County Court faced with a heavy list of individual cases to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should be best administered. The court is not equipped to make those decisions which are essentially concerned with housing management. This is a factor to which great weight must always be given and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.” [my bold]

 

The fact is, that even in the High Court, the same principle applies, and even where no “necessity” can be demonstrated – as in my own case – the doctrine is not applied. In the words of Hildyard J [paragraph 213] -

 

http://www.bailii.org/ew/cases/EWHC/Ch/2012/182.html

 

"BWB have never advanced any argument based on necessity by reason of threat to, or obstruction of, safe navigation. They have asserted a right, but they have been less forthcoming as to why its exercise is pressing or necessary for the purposes of discharging their designated functions. There is little to weigh in their favour in the scales of proportionality. My provisional view is that the purported use of the draconian power conferred by section 8, without prior warning and in the absence of any identified and real threat or obstruction to safe navigation, with the effect of depriving the Claimant of his home, is not proportionate." [my bold]

 

But this made no difference at all. In the subsequent judgment on the Human Rights point after hours of debate on the issue [for which I was very ill-equipped]. The judge agreed that Human Rights were infringed, but agreed with BW that the breach should not be permitted to disallow the exercise of BW’s statutory functions [as he saw them].

 

If you are interested in the debate and conclusion, I can supply links to them, but I would have to upload them first.

[NigelMoore]

Supplemental Judgment, paragraphs 11 &12, Hildyard J stated:

 

“BWB's initial decision to serve Section 8(2) notices is questionable not only in terms of the process but also, and substantively, because BWB appears to have proceeded upon the footing that the vessel in question had been moored for four months, whereas it is now accepted that in fact it had only been moored for one month, This was not, furthermore, the only flaw in BWB's approach. I was also concerned by BWB's then appreciation as to the effect of Section 105.

 

In such circumstances, as it seems to me, I do not think that I am obliged to accept without question that BWB had good and sufficient reasons to do what they did. It is justified and necessary for me to go on to consider expressly the question of proportionality.”

 

But, having done so, paragraphs 13 & 14 –

 

“Looking first at the public authority’s justification for doing as it has done, in many cases there will in effect be a presumption of proportionality. As made clear in cases such as Powell and Pinnock. it is unusual for Local Authorities to be required to justify their decision because it is ordinarily to be assumed that everything has been done properly and for legitimate management reasons. The flaws in BWB's approach tend to militate against that presumption in this case. Further, BWB has been somewhat reticent in its explanation as to why the vessel in question had to be moved on with such haste.

 

I have been troubled by this. Even so, it does not seem to me that there is sufficient warrant for me to second-guess BWB's conclusion that these vessels, being unlawfully moored, it should, in the exercise of its management of the GUC, move or remove them in accordance with Section 8; nor that I should peer into that reasoning beyond being satisfied that it is not obviously misplaced. So although I have thought it appropriate to look at the proportionality, I do not intend to review further a legitimate management decision, particularly having regard to my earlier conclusion that BWB had no improper purpose in exercising its powers, even if it was mistaken as to their true basis.” [my emphasis]

[NigelMoore]

OK, have uploaded the morning debate on the human rights angle –

 

http://www.scribd.com/doc/236267967/Moore-v-BWB-Human-Rights-Debate-Feb-2012

 

And the supplemental judgment arising –

 

http://www.scribd.com/doc/236267717/Supplementary-Judgment-Moore-v-BWB

 

[Paul G2]

For further delectation - Definition of "Cruise" from 6 dictionaries :-

 

 

Sail about in an area without a precise destination, especially for pleasure.

 

A voyage on a ship or boat taken for pleasure or as a holiday and usually calling in at several places.

 

Wander about a place in search of a casual sexual partner

 

To go or move along, especially in an unhurried or unconcerned fashion

 

To travel about or journey over.

 

To travel without destination or purpose

 

If only there were a brothel in the vicinity, Mr. Dunkley would surely have the perfect defense.

 

On a more serious note.....

 

If the judge is always going to take the position that CRT management is always right, then what is the purpose of the court? Is not the burden of proof on the Plaintiff (CRT) and does not the presumption of innocence rest with the defendant? If, in fact, it is the position of the court that CRT is always right and that the court is not in a position to, or simply should not, question CRT's managerial decisions, then would the judge not in effect be ruling not only that British courts are but a showpiece to rubber stamp the managerial decisions of a quasi-governmental monopoly, but also that CRT management is, in fact, omnificent, infallible and answerable to no one? Furthermore, if defendant could show instances where CRT management had made mistakes, would that be sufficient to persuade the court that CRT must be answerable to the law of the land, or would it be purposeless in the respect that, under the doctrine adopted in (the aforementioned cases), the court hearing is just a sham as the court will always find that it must rule in favor of CRT?

 

If CRT takes the position that they are always right, even if it means that they can apply their own definitions to words, contrary to accepted general usage, and that they can define watercraft in any way they see fit, contrary even to rulings made by the high court, are they not, in essence, abrogating the authority of the local court and trying to dictate to the local court how it must rule in their favor, regardless of what the law says?

 

From everything that Nigel has quoted above, it sure seems that previous courts have taken the position that CRT can tell the court what to do and that CRT can interpret the law any way they see fit, rather than rely upon the court to apply the law in a fair and impartial manner.

 

It would seem like Mr. Dunkley's first task is going to have to be to convince the judge that s/he needs to look at the law, as it is written, and not allow CRT to simply use him/her as their pawn to enhance their power and authority in a manner that Parliament clearly attempted to prohibit. One thing Mr. Dunkley might point out to the court is his 50 years experience on the canals, whilst CRT is being led by someone who's main experience is with trains and having to deal with schedules, tracks, flashing lights and grade separations.

 

There is one other technicality that, if it exists, Mr. Dunkley might be able to capitalize on. The stated reason that he "cruises" in the manner that he does is that, due to physical infirmities/limitations, it is difficult if not impossible for him to access his mooring from the closest available parking spot. Over here we have the Americans with Disabilities Act, which is a law that dictates how and what accommodations must be made to ensure that people with disabilities have access to all the things people without disabilities can access. If you have similar laws on the books, it could be that Mr. Dunkley is entitled to access and parking that is closer to the mooring that he is renting from CRT. Faced with a ruling on whether or not they had to provide handicapped access to all, or even part, of their facilities, CRT might just decide that prosecuting Mr. Dunkley is more trouble than it is worth.

[NigelMoore]

. . . and that CRT can interpret the law any way they see fit, rather than rely upon the court to apply the law in a fair and impartial manner.

 

You may be labouring under a slight [emphasising ‘slight’] misapprehension.

 

My selected quotes demonstrate the court’s approach to the validity under the HRA of managerial decisions to apply powers that breach an individual’s human rights under the Convention – that is not the same thing as the court's accepting without question the managerial interpretation of what powers are available to them.

 

So while I would agree that the British courts have effectively adopted policies that negate the country’s approach to, and acceptance of, the EU Convention on Human Rights [so that the accountability of public authorities to the HRA is effectively removed], the acknowledged bias only [!] goes that far. It is but illustrative of their bias [which is rigorously denied] towards acceptance of the authorities’ interpretation of their statutory powers in the first instance.

 

It is still just possible, in other words, to persuade a court that the authority’s interpretation of their statutory powers is incorrect – it is just that if you fail to do so, you can forget about asking the court to apply the test of proportionality to the application of that power – that is the area in which the judiciary appear to have openly abrogated all determinative responsibility in favour of the authority wielding the power.

 

I hope that I have managed to make sense there, it is a bit early in the morning for my synapses to connect properly.

 

Put another way, it is not “that CRT can interpret the law any way they see it”, instead it is that if the court decides the law can be interpreted the "way they see it," then the managerial decision to apply it, even when abusive of human rights, is to be rubber-stamped.

 

For this same reason. any argument along the lines suggested in your last paragraph would be equally hopeless.

[Mike Todd]

 

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

That's a syllogistic error