Section 8

[Alan de Enfield]

Quinafloat, on 06 Aug 2014 - 3:54 PM, said:

I doubt that it was the intent of the 1995 act that people should return to their home mooring after cruising otherwise the act would say so, but it was probably the expectation that people would do so, and in reality that is what happens. This leaves the question of when a cruise starts or ends. That would seem to rest entirely with the boater as it is not defined in the Act. It is only when the boater deems that a cruise has ended that it actually ends. Similarly a cruise starts when the boater deems it so. If a boater with a home mooring goes on a cruise for e.g. 3 years I do not see that the boater is doing anything wrong. If they return to their mooring and start a new cruise the next day they are surely, perfectly entitled to do so.

 

The bit about about boaters returning to their home mooring to to ensure that there are mooring spots for people cruising is just a pure red herring as that was also not part of the Act. It is no more than coincidental that it is a consequence of boaters returning to their home mooring, as most do regularly.

 

A fair summary of the situation - have a green-boogie.

 

The intent was clear, that there was no need to return to your Home Mooring, however the world (and number of boats) has moved on in the last 20 years - this leads to the argument of the Act no longer being fit for purpose rather than individuals 'pushing' the boundaries or contravening the 'spirit of the law'.

 

Going back to a post of about 10 pages ago - could part of the problem be the requirement to navigate, rather than cruise.

 

Definitions from the Online Dictionary :

 

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

Those WITH a home mooring can cruise - ie amble about without 'particular purpose or destination', whilst those WITHOUT a home mooring must 'bona fide navigate' to comply with their licence T&Cs

Edited August 6, 2014 by Alan de Enfield

[NigelMoore]

 

I don't doubt that this is right but I haven't been able to find any reference to it in the British Waterways Board (Transfer of Functions) Order 2012. Does anyone know exactly where it is set out?

 

The power to promote Bills in Parliament was conferred on BWB by s.17 of the Transport Act 1962.

 

17 Power to promote and oppose Bills

(1)Each Board may, with the consent of the Minister, promote Bills in Parliament and may oppose any Bill in Parliament.

(2)The power conferred by subsection (1) of this section shall be in lieu of any power to promote or oppose Bills which a Board might otherwise possess under the provisions of this Act as successors to the persons carrying on any undertaking, and, in particular, the persons carrying on any undertaking transferred to the Commission by the Transport Act, 1947, but nothing in this section shall be construed as prejudicing any power exercisable by any Board as successors to apply for orders, and oppose applications for orders, including orders subject to special parliamentary procedure.

(3)In the application of this section to Scotland, " Bill in Parliament" includes an order under the Private Legislation Procedure (Scotland) Act, 1936.

 

Following the 2012 Transfer Order, the Canal and River Trust were NOT added to this by way of amendment, instead the wording was amended to reflect the fact that BWB were now only continuing to exist [and with that power], in Scotland.

 

Schedule 2 of the Transfer Order -

 

Amendments to Transport Act 1962 and Transport Act 1968

9. After subsection (1) of section 17(45) (power to promote and oppose Bills), insert—

“(1ZA) In the application of subsection (1) to the British Waterways Board, the reference to the Minister is to be read as a reference to the Scottish Ministers.”.

 

So the amended 1962 Act now interpolates:

 

(1A)The British Waterways Board may, with the consent of the Scottish Ministers, promote Bills in the Scottish Parliament and may oppose any Bill in the Scottish Parliament]

 

The Canal and River Trust have not been entrusted with that power.

 

Of course, it is correct that anyone could ask Parliament to amend or pass new laws; any member of the public can do so, as any member of the public can oppose new Bills. BW spent a great deal of money and effort on lobbying Parliament over the years, and I am sure that CaRT continue with this.

[carlt]

It seems clear to me that the INTENT of the 1995 Act was that boats should, when not moving to and fro for the pleasure of the owner, when not being used as a boat, be returned to a home mooring, so as to ensure that mooring spots were available for people to-ing and fro-ing....

 

 

Now, we can argue until the cows come home that the Act doesn't say that, and so finding loopholes is fair game, and for so long as it lasts all well and good. However, in time, CRT will seek new powers.

If that was the intent then there would be no "either....or" paragraphs clearly distinguishing the required boating patterns of those with and without a home mooring.

 

There are no loopholes and your interpretation is like accusing someone of deliberately exploiting a loophole in the speeding laws by not exceeding the speed limit.

[NigelMoore]

The thing is, CRT have a reasonable argument that boats with home moorings which camp out on the towpath cause problems for their management of the waterways. They should be able to make a good case to Parliament on the reasonableness of that argument. It should't be necessary for them to take speculative action against individuals and cause them worry, stress and lumber them with a financial liability, just to make a point.

 

I just don’t agree that there are any problems with management of the waterways under present legislation. The situation today is identical with that argued by BW back in the nineties, when seeking to convince Parliament that their extra clauses on mooring control were essential.

 

The simple historical fact is that Parliament looked at the available legislation in that regard, and concluded that “operationally you are OK”. And so they still are – they just [!] need to adjust their thinking, to implement the pragmatic direct actions available, and to give up their acquired taste for dictatorial extremism.

 

It is exactly that perverse desire to make criminals out of non-compliant boaters that characterised their approach then, and which ensured that Parliament would not give them the extra rope to hang their boating customers with. It would take a distasteful government indeed, which could review the minutes of the nineties; see how the concerns were borne out in the following decades, and yet give the authority what they have always wanted.

 

[Naughty Cal]

 

A good example of 'pushing it' would be to have a home mooring but to leave your boat on a (nicer) VM for 14 days, then return to your jhome mooring for one day, then go back to the same VM for a further 14 days, then return to your home mooring for one day, and repeat this ad infinitum.

 

THAT would be 'pushing it'. Behaviour within the letter of the the law but taking the piss (to put it colloquially)? Definitely, IMO.

 

MtB

A nice mooring such as Holme Lock perhaps

[Captain Zim]

Thee is

 

 

You characterise it as pushing on the part of the licencee by virtue of his behaviour, but CRT themselves have accepted that failing to CC is not actionable if the boat has a home mooring, even when that home mooring is never used as a place to keep the boat. How is the licencee "pushing" if he simply obtains a home mooring and abides by the other restrictions? He surely has a reasonable expectation that action won't be taken against him.

 

If anyone is "pushing" it is CRT, who having accepted that it was not neccessary to actually keep a the boat at the home mooring are now saying that failing to keep it there is evidence of bad faith or deliberate deception by the licencee. By the way, I don't think it's the case that they have said that they aren't satisfied the mooring is a place where the boat can reasonably be kept (and that TD has "admitted" this by saying he finds it difficult to access) however much others on here seem to think that is the issue.

Sorry, once again I was talking about things in general and after many other pages of this thread as I didn't really want to discuss the specifics of a case that's not been to court. Again, I don't disagree with your viewpoint. There are undoubtably, moving away from the court case, some boaters who hang around areas for far longer than the 14 days they are permitted. This causes CRT to act and I was merely saying, in agreement with Dave Mayall, that this type of thing could eventually give CRT the evidence they need to convince someone to sponsor a private bill. Unlikely but not out of the question.

 

And the reason I said this, slightly off topic I suppose, is because after much discussion I've come to the conclusion that the 1995 act is actually quite reasonable as it stands. And if there had been an intent to add things like 'a boat must return to its home mooring when not cruising' this would have been in there.

Edited August 6, 2014 by Captain Zim

[NigelMoore]

 

Promoting primary legislation, which is something government departments do, is not the same as being permitted to lobby for a change to the law.

 

Providing CRT abide by the rules on lobbying and employing lobbying firms, not paying MPs to ask questions, etc. I don't see what rules would prevent them making a case. Other charities, trusts, companies, organisations do it all the time. Even bodies which could be described as offshoots of government, such as the police, often argue strongly for or against legislation and provide evidence to the Public Bill Comittees which scrutinise Bills in the HoC.

 

Cavendish Communications was the really active political smoocher for BW for years, although another firm was also employed.

 

http://whoslobbying.com/uk/cavendish_communications

http://whoslobbying.com/uk/british_waterways

 

It does not appear that CaRT have continued the relationship – not admittedly, anyway, the website I linked to does not provide any information past early 2012.

 

Some years ago Cavendish briefly trumpeted the extent of effective lobbying they were doing on BW’s behalf, advertising how successfully they were overcoming the bad publicity surrounding BW – organising dinners with politicians, and facilitating personal engagements etc.

 

There must have been something there that rang alarm bells in BW’s PR department, because the relevant web page was shut down pretty fast, never to re-appear. Initially, CaRT did retain Cavendish, but put out feelers for less governmentally focussed organisations very quickly, in an effort apparently to distance themselves from the government ‘brand’.

 

Champollion came to be the firm entrusted with increasing CaRT’s political influence, though this has not been as successful as one might hope – an important failure in my mind was with the Planning legislation.

 

http://champollion.co.uk/case-study/canal-river-trust/

 

[NigelMoore]

I was merely saying, in agreement with Dave Mayall, that this type of thing could eventually give CRT the evidence they need to convince someone to sponsor a private bill.

 

Moving away from the hypothetical, it is undoubtedly true that the internecine squabbling and lack of ‘fair play’ already does damage, in inciting the authority to take action beyond their strict remit – whether new laws get promoted or not.

 

Given, however, that so much of the complaining is not by those most directly affected, and that the evidence of complaints directly to the authority appears to have little substance, then could it be said with any fairness that the complainers create more problems than the perceived 'piss-takers'?

[Captain Zim]

Yes. Almost certainly. But those who complain and complain loudly will always have disproportionate influence unfortunately.

 

And whilst they have even the slightest hint of a valid complaint it's very hard to counter them.

Edited August 6, 2014 by Captain Zim

[NilesMI]

And the reason I said this, slightly off topic I suppose, is because after much discussion I've come to the conclusion that the 1995 act is actually quite reasonable as it stands. And if there had been an intent to add things like 'a boat must return to its home mooring when not cruising' this would have been in there.

 

Well, not disagreeing with you either, I'm still left wondering what you would do if in the position of a person who had taken out a licence for their boat with a home mooring, but had their licence revoked or not renewed on th basis that you hadn't kept the boat there.

Even if you didn't think the 1995 Act was reasonable, it is the law of the land and in such a hypothetical situation you would appear to be abiding by it. Would you allow CRT to push you off their water, or would you think you had a valid argument to make that their action was unjustified?

[Paul C]

 

Well, not disagreeing with you either, I'm still left wondering what you would do if in the position of a person who had taken out a licence for their boat with a home mooring, but had their licence revoked or not renewed on th basis that you hadn't kept the boat there.

Even if you didn't think the 1995 Act was reasonable, it is the law of the land and in such a hypothetical situation you would appear to be abiding by it. Would you allow CRT to push you off their water, or would you think you had a valid argument to make that their action was unjustified?

 

You're making the assumption that's what the issue is here, but we simply don't have all the information. Whilst I thank TD for posting, he's not posted 100% of the information and he probably doesn't want to post CRT's evidence against him. He might not even know or understand it all. There is a reason CRT aren't satisfied with his mooring, we don't know the reason, and I doubt its simply because he doesn't use it (much). I shall await the court case and its publication with interest, rather than jumping to conclusions based on partial information.

[NigelMoore]

I'm still left wondering what you would do if in the position of a person who had taken out a licence for their boat with a home mooring, but had their licence revoked or not renewed on th basis that you hadn't kept the boat there.

 

Don’t forget that the Dunkley s.8 is not restricted to the issue of the home mooring. The initial revocation of the licence was for failing to adhere to the “Terms & Conditions”, in not cruising as required when away from the home mooring [equating, as they did, “cruising” with “bona fide navigation”].

 

The invalid home mooring rationale only came into the picture as a reason to refuse a renewed application.

 

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.

[Captain Zim]

 

Well, not disagreeing with you either, I'm still left wondering what you would do if in the position of a person who had taken out a licence for their boat with a home mooring, but had their licence revoked or not renewed on th basis that you hadn't kept the boat there.

Even if you didn't think the 1995 Act was reasonable, it is the law of the land and in such a hypothetical situation you would appear to be abiding by it. Would you allow CRT to push you off their water, or would you think you had a valid argument to make that their action was unjustified?

If that were me, I would think that what I'd done was within the law and I would politely but firmly

tell CRT the same. I disagree with those who say that mooring on a nice vm and then moving for 1 day is piss taking. I can't see anywhere in the Act that would stop me from doing that. Again, without trawling back and dredging up the posts I've made, the law to me seems quite clear on the matter and I think you and I are in agreement. What would be out of order, is having a home mooring and mooring for one month in one spot. (providing that the one spot was actually somewhere others wanted to moor. Otherwise I'm not fussed).

Look, there are nice spots. Have the 14 days and move on. Those with a home mooring can come back whenever they like. By moving on they've given others the chance, albeit limited, to arrive and moor. So too, theoretically, can ccers as far as I can tell, but I wouldn't advise it. Anyway, as I've said, the other posts are buried in here but I don't want to bore anyone by resurrecting them. And for that reason, I'm out.

 

ETA that's the last time I agree with Mr Mayall

Edited August 6, 2014 by Captain Zim

[MtB]

 

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.

 

 

Blimey they've really got it in for Mr Dunkley haven't they? They seem determined to have him off the system. 'Belt and braces' hardly seems to cover their approach, does it?

 

I'd love to know what he's done to provoke such a response. He may have done nothing beyond 'pushing the limits' but feels as though there is a personal vendetta being played out here.

 

 

MtB

[NigelMoore]

He may have done nothing beyond 'pushing the limits' but feels as though there is a personal vendetta being played out here.

 

That's all it takes.

 

And if the situation provides an opportunity to display a bit of strength with a possibly supportive statement from the courts, so much the better. If the courts don't exactly play ball, there is always the one department that is unfailingly effective.

 

But in fairness, the s.13 approach has always been their back-up position in every live-aboard s.8 action.

[Barry]

 

 

Blimey they've really got it in for Mr Dunkley haven't they? They seem determined to have him off the system. 'Belt and braces' hardly seems to cover their approach, does it?

 

I'd love to know what he's done to provoke such a response. He may have done nothing beyond 'pushing the limits' but feels as though there is a personal vendetta being played out here.

 

 

MtB

 

I agree - and I suspect that the personal vendetta from CRT is fuelled by TD's politically motivated campaign in support of his own case. I suspect that he has done himself no favours at all in CRT's eyes by taking an antagonistic stance. Of course its entirely possible that some senior managers in CRT were just looking for someone like TD to flex their muscles on to reinforce their perception of how the waterways should be run

[MtB]

 

I agree - and I suspect that the personal vendetta from CRT is fuelled by TD's politically motivated campaign in support of his own case.

 

Ah, I haven't seen ANY of that. Would I need to have been a frequent visitor to NBW to have noticed? Or is he tub-thumping elsewhere too?

 

 

I suspect that he has done himself no favours at all in CRT's eyes by taking an antagonistic stance.

 

 

This seems likely if he is as antagonistic in real life as on here...

 

 

 

 

Of course its entirely possible that some senior managers in CRT were just looking for someone like TD to flex their muscles on to reinforce their perception of how the waterways should be run

 

 

This seems likely too, and I guess it's what I was driving at. Combative and awkward boater meets combative and belligerent CRT manager. Each rubs the other up the wrong way and BOOM! Court case results.

 

Looks like an 'ego' battle being played out. Could have been over anything if not moorings.

 

 

MtB

 

[Barry]

 

Ah, I haven't seen ANY of that. Would I need to have been a frequent visitor to NBW to have noticed? Or is he tub-thumping elsewhere too?

 

 

<snip>

 

 

MtB

 

 

Post 94 of this thread

[NigelMoore]

 

This seems likely if he is as antagonistic in real life as on here...

 

 

Combative and awkward boater meets combative and belligerent CRT manager. Each rubs the other up the wrong way and BOOM! Court case results.

 

Looks like an 'ego' battle being played out. Could have been over anything if not moorings.

 

 

Having met Tony briefly, I would have to remark on a significant ‘disconnect’ between online and real-life personalities. Not an unusual phenomena I suspect [i fondly imagine that I come across online as a genial and placatory advocate of peace, love and tolerance, whereas I know that real life acquaintances have unaccountably formed firm opinions to the contrary].

 

Then again, we tend to show different sides of our personalities in response to different stimuli, and I have no doubt that MtB’s observations are illustrative of the penetrating insight of a man of considerable perspicacity.

 

Not that such situations are suficient justification for taking up the court's time and the public's money.

[MtB]

Blimey that's a first time I've ever been called a perspicacity! Might have to Google it laters....

 

My experience of meeting people in real life from on-line is that is that in comparison with their real life, three-dimensional, real personalities, only one of those dimensions seems to show through in their on-line persona. And often it is magnified. Maybe Mr Dunkley is like this.

 

 

MtB

Edited August 6, 2014 by Mike the Boilerman

[Naughty Cal]

 

 

Blimey they've really got it in for Mr Dunkley haven't they? They seem determined to have him off the system. 'Belt and braces' hardly seems to cover their approach, does it?

 

I'd love to know what he's done to provoke such a response. He may have done nothing beyond 'pushing the limits' but feels as though there is a personal vendetta being played out here.

 

 

MtB

You have seen the way he posts on here.

 

I fully suspect he has taken the same stance with CRT

[carlt]

 

 

I fully suspect he has taken the same stance with CRT

 

I seem to recall a similar attitude to the enforcing authority when someone was done for speeding (didn't you subsequently suggest that you may have been innocent after all, despite having been taken to court?)

[MtB]

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

[Ssscrudddy]

It was the birdges fault

[MtB]

That had me puzzled for a sec, then I realised you meant the lfit birdge.

 

 

MtB