Section 8

[Paul C]

But they have already said that they were satisfied that it is a valid home mooring, & have indeed spotted him on it 88 times. They are now saying it doesnt count as a home mooring because he only got it (the valid home mooring) to avoid having to comply with the CC rules. That's a bit like saying you only pay your taxes to avoid getting done for not paying your taxes therefore even though you have paid your taxes it is now going to count as not paying your taxes.

 

Can you quote a reliable source which details what CRT said? And even so, the point I made remains - its possible to be satisfied with something, then more pertinent facts revealed about it, then become unsatisfied by it. The facts don't change, but the knowledge of those facts do.

 

In other words, had CRT known about the use of the home mooring when TD first applied for his licence, they may have declined to issue it at all (instead of issuing a licence, then withdrawing or not renewing it later).

[Tuscan]

Interestingly, while tidying papers today, I came across Nigel Johnson’s third Witness Statement which he had been ordered by the judge to produce, to explain BW’s contempt of court. This is dated 11 November 2011.

 

In explaining how much improved BW’s patrolling activities were since the incident, he says:

 

“The Data Checkers are each provided with a handheld personal date recorder (“PDR”) to enable them to record the location of all vessels they see as they patrol a particular section of a canal on any given day. As they sight a particular vessel they input the index number for the vessel into the PDR and the PDR instantly gives them relevant data regarding that vessel including its licence and mooring details as well as recording the current location of the vessel (linked to GPS).” [my bold]

 

I would not dream of relying on the sworn testimony of a BW/CaRT official to gainsay a CWDF member of course, but [being ignorant myself of the technicalities] thought the proffered information might be of interest.

 

Perhaps there is a difference between the equipment the enforcement staff have compared with the data loggers. my memory might have failed me (not for the first time) but I'm sure I asked Denise Yelland head of enforcement why data loggers didn't talk to boaters at the time if the information came back that they were unlicensed or overstaying and she said the existing equipment didn't currently have this Icapability but she hoped that CRT would make this investment in the future.

[Alan de Enfield]

 

Can you quote a reliable source which details what CRT said? And even so, the point I made remains - its possible to be satisfied with something, then more pertinent facts revealed about it, then become unsatisfied by it. The facts don't change, but the knowledge of those facts do.

 

In other words, had CRT known about the use of the home mooring when TD first applied for his licence, they may have declined to issue it at all (instead of issuing a licence, then withdrawing or not renewing it later).

 

The only source we have is Tony Dunkley himself, who states that C&RT were satisfied that he had a home mooring when the licence was issued, subsequently told him he did not have a home mooring and then had to admit :-

 

...now they say that they do believe I have a home mooring but that it is not a genuine one because I only have it in order to comply with Sect.17(3)©(i) of the 1995 BW Act.

 

Why else would you have one ?

 

So - we are back to the "I licence my car because I have to comply with the law, or, I only pay my taxes because it is a legal requirement" arguments.

[Captain Zim]

 

Does this help :

 

Definition of cruising :

 

1 ) To sail about on a pleasure trip

2 ) To sail about, as a warship patrolling a body of water.

 

 

3 ) To travel about without a particular purpose or destination.

 

Definition of Navigating :

 

 

1 ) To plan, record, and control the course and position of (a ship or aircraft).

2 ) To follow a planned course

It does and it highlights the point I'm trying to understand. Whilst I have no desire to disagree with an honourable member of the judiciary, I think the decision in Davies is flawed.

 

The Act says 'Bona Fide for navigation' not 'Bona Fide Navigation'

 

I believe there is a difference and Alan's post helps to explain why.

[Timleech]

The only source we have is Tony Dunkley himself, who states that C&RT were satisfied that he had a home mooring when the licence was issued, subsequently told him he did not have a home mooring and then had to admit :-

 

...now they say that they do believe I have a home mooring but that it is not a genuine one because I only have it in order to comply with Sect.17(3)©(i) of the 1995 BW Act.

 

Why else would you have one ?

 

So - we are back to the "I licence my car because I have to comply with the law, or, I only pay my taxes because it is a legal requirement" arguments.

Somewhere to moor your boat, I suppose.

 

Tim

[Paul C]

 

The only source we have is Tony Dunkley himself, who states that C&RT were satisfied that he had a home mooring when the licence was issued, subsequently told him he did not have a home mooring and then had to admit :-

 

...now they say that they do believe I have a home mooring but that it is not a genuine one because I only have it in order to comply with Sect.17(3)©(i) of the 1995 BW Act.

 

Why else would you have one ?

 

So - we are back to the "I licence my car because I have to comply with the law, or, I only pay my taxes because it is a legal requirement" arguments.

 

That's the problem (until the court case notes are published), we only have TD's side of the story, and the information so far given is not complete; and he's naturally going to say what his perception of things are, not from an independent point-of-view.. I'll await more info on it.

[cotswoldsman]

Perhaps there is a difference between the equipment the enforcement staff have compared with the data loggers. my memory might have failed me (not for the first time) but I'm sure I asked Denise Yelland head of enforcement why data loggers didn't talk to boaters at the time if the information came back that they were unlicensed or overstaying and she said the existing equipment didn't currently have this Icapability but she hoped that CRT would make this investment in the future.

Could be a number of reasons other than memory loss. Also not sure Data Loggers have the same equipment as Enforcement. Recently I spotted an Enforcement Officer logging my boat and he was able to look at his gizmo and tell me where else I had been logged. It did show I was good at keeping under the radar as I had not been logged for 6 weeks previous but that did cover some of the winter months

[John V]

 

The only source we have is Tony Dunkley himself, who states that C&RT were satisfied that he had a home mooring when the licence was issued, subsequently told him he did not have a home mooring and then had to admit :-

 

...now they say that they do believe I have a home mooring but that it is not a genuine one because I only have it in order to comply with Sect.17(3)©(i) of the 1995 BW Act.

 

Why else would you have one ?

 

So - we are back to the "I licence my car because I have to comply with the law, or, I only pay my taxes because it is a legal requirement" arguments.

 

would that be legalise for.."we think you are taking the pee"

[NigelMoore]

 

Well cruising is not navigating so it is clear that they have been more careful with their choice of words than you.

 

The crux of the argument with the Dunkley case, however, is that this is precisely the equation they are arguing for – that “cruising” IS “navigating”, and, moreover, the T&C requirement to “cruise” is identical to the statutory requirement to be “used bona fide for navigation”.

 

On that basis, their own recognition - that shuffling on and off visitor moorings for 14 days at a time with 24 hour breaks between IS legitimate for boats with home moorings – is contradicted. On this argument, it didn’t matter whether Mr Dunkley did or did not have a home mooring, he was breaching the T&C’s – and for that reason they revoked the licence.

 

There are two distinct claims they are making. One justifying revocation, the other justifying refusal. Whereas the licence was revoked for alleged breach of the T&C’s [on the understanding that the requirement to cruise when off the home mooring equates to the requirement of s.17(3)( c )(ii)], the refusal is based on being dissatisfied with the declared home mooring on the grounds that his lack of intent to use it renders it non-genuine.

 

I believe that the viewpoint mayalld is presenting probably WAS the intent of BW when promoting the Act – i.e. that their intention would best have been understood if s.17(3)( c )(i) had the words “- when not being used bona fide for navigation” added on to it.

 

Unfortunately for the authority, they did NOT add those words, and hence their attempt now, to remedy the default by way of the T&C’s. Unfortunate also, because as the Court said in Stourbridge – “whether the omission was intentional, or arose from inadvertance, it is still an omission” – and as a private Act, any court decision as to the meaning must be that which operates against the authority’s interest.

 

Their intentions respecting the legislation, in other words, are as irrelevant to the issue as [in my belief] the intention of boaters may be, whether respecting reasons for navigating, or for engaging moorings.

 

[NigelMoore]

It does and it highlights the point I'm trying to understand. Whilst I have no desire to disagree with an honourable member of the judiciary, I think the decision in Davies is flawed.

 

The Act says 'Bona Fide for navigation' not 'Bona Fide Navigation'

 

I believe there is a difference and Alan's post helps to explain why.

 

You have hit upon the precise point made by the judge in Brown v CaRT earlier this year.

 

It is only fair to note that the judge said Ihe legislation was "jolly weird" and that it became more weird the closer you looked at it.

[Paul C]

 

You have hit upon the precise point made by the judge in Brown v CaRT earlier this year.

 

It is only fair to note that the judge said Ihe legislation was "jolly weird" and that it became more weird the closer you looked at it.

 

Its fair to note that it was half a trial, and the case abandoned too.

[NigelMoore]

 

Can you quote a reliable source which details what CRT said? And even so, the point I made remains - its possible to be satisfied with something, then more pertinent facts revealed about it, then become unsatisfied by it. The facts don't change, but the knowledge of those facts do.

 

As in my #239 -

 

CaRT solicitor, 26 March 2014 to Tony Dunkley -

 

“. . . if you make an application for a licence on the basis of having a home mooring at – x – we would not issue you with a licence because we would not be satisfied that this mooring would be a place where you intend to reasonably keep and lawfully leave your vessel.” [my bold]

 

The facts pertinent to their refusal on grounds of lack of intent to use the mooring, are the records of his mooring everywhere else but at the mooring. They had those records showing an unchanged pattern of use from 2009 onwards. From the time they declined to renew his permit to moor at their own moorings in 2011, they granted a licence based on his new private mooring - and with the same facts available, renewed that in 2012 and 2013.

 

Remember - they did not revoke his licence for an allegedly fake home mooring; they revoked his licence for not engaging in a cruising pattern that equated to "bona fide navigation". Only upon attempted renewal did they spring the new rationale, this time as a reason for refusal of a new licence.

[cotswoldsman]

 

Its fair to note that it was half a trial, and the case abandoned too.

I thought it was a Judicial Review

[Paul C]

I thought it was a Judicial Review

 

Yeah

[NigelMoore]

 

Its fair to note that it was half a trial, and the case abandoned too.

 

Yes indeed, perfectly fair. How does that affect the point? No-one is making any point about the merits of the Brown case, and I am simply commending Captain Zim for the same degree of insight that the judge in Brown displayed.

 

As I was at pains to explain in the relevant thread, moreover, the judge’s comments do not establish any authority for any proposition or understanding he formulated in the course of the discourse, but they are of value as the shared musings of a higher standard of judge than determined the case in Davies.

 

No more, but certainly no less.

 

[Paul C]

 

But he DOES have a home mooring, so it turns on whether the 'board is satisfied' by his home mooring.

 

The board appears not to be satisfied, but as his home mooring complies with the letter of the law, the board is being unreasonable.

 

Are the board entitled to be unreasonable in their satisfaction, or otherwise? I think there is a general requirement for them to be 'reasonable', but I've no idea where that comes from.

 

 

MtB

 

No need to be patronising.

 

MtB

 

 

 

As in my #239 -

 

CaRT solicitor, 26 March 2014 to Tony Dunkley -

 

“. . . if you make an application for a licence on the basis of having a home mooring at – x – we would not issue you with a licence because we would not be satisfied that this mooring would be a place where you intend to reasonably keep and lawfully leave your vessel.” [my bold]

 

The facts pertinent to their refusal on grounds of lack of intent to use the mooring, are the records of his mooring everywhere else but at the mooring. They had those records showing an unchanged pattern of use from 2009 onwards. From the time they declined to renew his permit to moor at their own moorings in 2011, they granted a licence based on his new private mooring - and with the same facts available, renewed that in 2012 and 2013.

 

Remember - they did not revoke his licence for an allegedly fake home mooring; they revoked his licence for not engaging in a cruising pattern that equated to "bona fide navigation". Only upon attempted renewal did they spring the new rationale, this time as a reason for refusal of a new licence.

 

That's good, its I believe where the whole situation is up to - unless new evidence is revealed in the public domain (which I believe is highly likely, but that's just my gut feeling). Basically CRT aren't satisfied about the mooring, which was put quite well in post #243 about 3 pages ago by MtB (quoted to save trawling back). And because they're CRT, they have the upper hand when TD says "oh yes, you are satisfied" and CRT says "oh no, we're not". TD will need to produce something better than simply saying they ought to be satisfied etc etc. I'm not even sure he can use evidence such as "well loads of other boaters do what I do" because it would be like being in court for speeding, then saying "loads of other motorists speed and don't get caught".

[Tuscan]

Regardless of whether you approve of T Dunkley's cruising habits. You have to ask why CRT have chosen to invest substantial funds in this case. If they win what effect will it have on the wider boating community?

 

Presumably it will not create a precedent as future cases will still need to be judged on a case by case basis. There surely must be a wider reason than just seeking to remove this boater from their waters.

[Paul C]

Regardless of whether you approve of T Dunkley's cruising habits. You have to ask why CRT have chosen to invest substantial funds in this case. If they win what effect will it have on the wider boating community?

 

Presumably it will not create a precedent as future cases will still need to be judged on a case by case basis. There surely must be a wider reason than just seeking to remove this boater from their waters.

 

Time will tell!

[Captain Zim]

 

You have hit upon the precise point made by the judge in Brown v CaRT earlier this year.

 

It is only fair to note that the judge said Ihe legislation was "jolly weird" and that it became more weird the closer you looked at it.

I think the judge was being generous given the circumstances of that case. I don't think it's weird at all.

[NigelMoore]

There surely must be a wider reason than just seeking to remove this boater from their waters.

 

They cannot in law even remove him from the Trent, so long as he stays at his home mooring and the home mooring can be established as outside the main navigation channel.

 

The most they could do is ask for a fine to be imposed for navigating the Trent, with a daily charge for so long as he had continued to navigate since the licence was withdrawn – but they haven’t even done that, so they won’t get anything.

 

That is not what Mr Dunkley wants of course either – he wants to keep on ‘commuting’ with his boat to the places he frequents on this river and the canal, not be stuck on his home mooring for ever.

 

For CaRT and for the general boating public, the best that can be hoped for is some judicial clarification on whether breach of T&C’s are an additional reason for revocation of a licence; whether boaters with home moorings are obliged to bona fide navigate in the same way as those without, and whether home moorings must be used to be valid.

 

[Actually, as I have said previously, that last has already been judicially tested at High Court level.]

 

I don't believe there is a "wider reason" behind this, quite the opposite.

I think the judge was being generous given the circumstances of that case. I don't think it's weird at all.

 

"Generous"? To whom? He wasn't being generous he was being genuine [bona fide even] - perhaps you just had to be there!

[Captain Zim]

The judge knew that review wasn't going anywhere. Why go out of his way to specifically upset CRT when he could add a quick comment about things being 'jolly weird' to enable a bit of face saving....'well this is all jolly weird and I'm not surprised you're in such a pickle. I don't blame either of you for getting so confused. Goodbye, I'm off to my country estate for a spot of shooting.' more diplomatic than outright criticism. Wat now seems fairly clear is that for a long time the meaning of section 17 3 c ii has been subverted in the interests, albeit well intentioned, to make management of the waterways easier.

 

To my mind, and I accept I could be way out here, having had time to read it, the Act is generous to boaters. Maybe something that should be remembered by those who try to push their luck.

Edited August 1, 2014 by Captain Zim

[MtB]

Regardless of whether you approve of T Dunkley's cruising habits. You have to ask why CRT have chosen to invest substantial funds in this case. If they win what effect will it have on the wider boating community?

 

Presumably it will not create a precedent as future cases will still need to be judged on a case by case basis. There surely must be a wider reason than just seeking to remove this boater from their waters.

 

I was musing this point yesterday, and I wondered if the source lies in the CRT Q&A page published a year or so ago where they raised the subject of 'ghost moorings' and stated that CRT would no longer tolerate them and would take action when they found boaters using (abusing) them. Mr Dunkley may just be the unlucky first case.

 

OR... it could be that they selected Mr Dunkley specifically because they knew he'd fight back. Getting a ruling in the county court does not set a precedent but maybe this time around CRT are hoping that should they win, Mr Dunkley will appeal and the higher court WILL set the precedent. Then we'll have some clarity on the issue.

 

Whatever the issue actually is....

 

 

MtB

[NigelMoore]

 

Whatever the issue actually is....

 

That about cuts to the nub of it!

[Allan(nb Albert)]

 

I was musing this point yesterday, and I wondered if the source lies in the CRT Q&A page published a year or so ago where they raised the subject of 'ghost moorings' and stated that CRT would no longer tolerate them and would take action when they found boaters using (abusing) them. Mr Dunkley may just be the unlucky first case.

 

OR... it could be that they selected Mr Dunkley specifically because they knew he'd fight back. Getting a ruling in the county court does not set a precedent but maybe this time around CRT are hoping that should they win, Mr Dunkley will appeal and the higher court WILL set the precedent. Then we'll have some clarity on the issue.

 

Whatever the issue actually is....

 

 

MtB

 

I very much doubt if CaRT selected Tony Dunkley on the basis that he would fight back.

 

If they wanted to do that then he would not have been served with a Part 8 without a response pack.

 

 

 

[NigelMoore]

Why go out of his way to specifically upset CRT when he could add a quick comment about things being 'jolly weird' to enable a bit of face saving....

 

Understood. But I still believe he was genuine.

To my mind, and I accept I could be way out here, having had time to read it, the Act is generous to boaters. Maybe something that should be remembered by those who try to push their luck.

 

Maybe also, it should be remembered just why the Act is as generous as it is to boaters – it is because back then there were sufficient numbers of committed boaters to invest extraordinary amounts of time and energy to participate [over some years] in the Parliamentary process.

If they wanted to do that then he would not have been served with a Part 8 without a response pack.

 

"mistake"

 

"inadvertent"

 

"oversight"

 

etc