Is C&RT's Boat/Location Logging System Fit for Purpose?

[NigelMoore]

 

Which has precedent, T&C's or Statute requriments?

 

I think you mean precedence? The Statute has precedence, over-riding anything and everything else prior to it, including all previous statutes that might otherwise contradict it. Only a later statute can repeal it – certainly not any unilaterally imposed T&C’s. [This is not to say that all of the T&C’s are unenforceable, because most of them are but reminders of the Byelaws governing use of the waterways, which carry their own penalty regime. However those are the only penalties applicable; withdrawal of a "relevant consent" for anything other than what is sanctioned in the '95 Act is forbidden.]

Were C&RT correct to withdraw the home mooring licence, when the requirements for that licence were being met?

 

No.

Edited August 13, 2014 by NigelMoore

[NigelMoore]

This is the record for Platypus. Obviously only the last 10 years in each of these cases are being collected. This looks different from the others, not really being a ‘sightings’ record, just a licensing one.

 

[Bod]

Thanks Nigel, my spelling went wonky.

Unless there are Byelaws covering Tony's case, then are we about there?

 

Bod

[NigelMoore]

 

Do C&RT have the powers/right to put such requirements into their T&Cs ? - is this not just another way around amending the 1995 Act for which they have no authority to do so ?

 

They have the ability to put whatever they like into their T&C’s. It is meaningless, however, other than guidance on good conduct, if those conditions carry no Parliamentary approved sanctions.

 

It is certainly an attempt to amend the 1995 Act, and a hopelessly misconceived one. They have become so pixilated with their misreading of s.43 of the ’62 Act that they can’t seem to comprehend the absurdity of what they are trying on.

 

But read the Meyers judgment – the judge even there did not read the '62 statute, he quoted from that portion only as presented to him. Not that it would have made any difference – as I said earlier, even if BW had been given unconditional power to condition use of their waterways, in this respect the later Act would have abolished it by the doctrine of “Implied Repeal”.

[NigelMoore]

Unless there are Byelaws covering Tony's case, then are we about there?

 

"We" were always “there” Bod.

 

We still would be, even if Tony had breached a relevant byelaw. For breach of any byelaw there is an approved sanction – which would be the only sanction to apply.

 

As it is, there is no applicable byelaw on mooring. The only potential sanction available would come about if they believed he was obstructing other boaters from using the towpath and mooring.

 

The problem is not the law, it is the persuadable perception of the law. The CaRT legal team, in-house and outhouse [i almost corrected that latter as I wrote it, except that it read so aptly anyway], are past masters at the art in this field.

[NigelMoore]

This is the record for Rocking Horse. It has never moved since 1991, save for one brief trip onto our slipway, when my predecessor offered free blacking in return for using it to brace shuttering for the poured concrete walling of the upgraded tidal grid.

 

[Nige G]

This all begs the question as to why CRT are using such draconian enforcement measures?

 

Are the laws in the acts not allowing them to slap simple "fines" or penalty charges (or whatever you'd like to call them) on boaters for not complying with their T's&C's?

 

Why does the enforcement team come across in this case, and the many other cases I've read about recently, as being over zealous to the point of fanatical dictators in that they will not bend or compromise and are wasting 100's of £1,000's to pursue these cases in court to, what appears to me, stamp their authority firmly in the face of anyone who questions them?

 

It reminds me of many elements of the police force where they are trained that they are never wrong and to NEVER change their mind about anything lest it should destroy a tiny bit of their authority.

[NigelMoore]

This might be more interesting – they provided 2 different reports for Lazy Daze, for roughly the same period –

 

 

 

[NigelMoore]

Are the laws in the acts not allowing them to slap simple "fines" or penalty charges (or whatever you'd like to call them) on boaters for not complying with their T's&C's?

 

Some of the T&C’s re-iterate Byelaws – for those, yes, there are simple fines applicable [not that CaRT can impose them, they can take them to court for the relevant offence and the court imposes the fine. No arguments on law etc, just a penalty for established breach [very easy to prove].

 

For licence evasion also [or for dereliction in payment for same, which is not perhaps quite the same thing] they can take out a simple action for recovery of the debt.

 

Obstruction can be dealt with under byelaws or statute, the statute in this instance creating a wide field of responses from simply moving the boat along, through fines far greater than applying to byelaws, all the way through to [arguably perhaps] removal altogether.

 

If the condition carries no sanction, it is unenforceable. Just because it is in the T&C’s is meaningless.

 

As for the preference for s.8 over the milder penalties? My re-iterated answer is: taste.

[cotswoldsman]

 

This comes down to the definition of "place".(location)

How far apart are two different places?

 

 

CRT are very close to releasing maps defining "place" they have used all sorts of different criteria for defining place. In some cases it is simply a town, village etc and in other cases it is between bridges or locks all very random

[NigelMoore]

I have no idea whether this means anything to anybody, it is a different layout - the handwritten annotation below it said this was all they had on Kalzar –

 

[GUMPY]

Nigel let me ask this hyperthetical question;

I pay for a legit home mooring on the GU 20 miles from my work, however there is a good piece of offside bank next to an industrial estate that is a short walk from my work. The owner of the access doesnt care if I cross his car park to get to my boat and is not interested in charging. I moor on this spot for a few years only leaving to fill with water once a week or so. The boat is not blocking or causing an obstruction of any kind in fact its such a good spot to moor that Royal Mail even allow me to use it as my postal address......

 

What sanctions if any can CRT bring against me?

[NigelMoore]

Further to all the Records posted, it occurs to me that it would be useful for the experts to see the originating patrol sighting record which provided the information in the first place. I'll copy a brief selection of those so comparison can be made directly between patrol officer records and the computerised records.

 

[bearing in mind that these all date back a few years - i.e. the Patrol Officers didn't have fancy gadgets then, I don't think.]

Nigel let me ask this hyperthetical question;
I pay for a legit home mooring on the GU 20 miles from my work, however there is a good piece of offside bank next to an industrial estate that is a short walk from my work. The owner of the access doesnt care if I cross his car park to get to my boat and is not interested in charging. I moor on this spot for a few years only leaving to fill with water once a week or so. The boat is not blocking or causing an obstruction of any kind in fact its such a good spot to moor that Royal Mail even allow me to use it as my postal address......

What sanctions if any can CRT bring against me?

 

None.

 

Legally.

[Quinafloat]

CRT are very close to releasing maps defining "place" they have used all sorts of different criteria for defining place. In some cases it is simply a town, village etc and in other cases it is between bridges or locks all very random

 

This does not surprise me, they have, de facto, defined place with their location codes. As a consequence they have defined the distance you have to move to be in another place (location code). It will be interesting to see if their demarcation is acceptable to both boaters and judges. I welcome it's publication, what CaRT consider an adequate distance to move has remained a mystery for too long.

 

Of course clear demarcation of "Place" will make it much easier for CCers that wish to move the absolute minimum distance but will probably have no effect on anyone else.

[NigelMoore]

As I understand it (Nigel M will corrct I am sure) that EoG charges are principally to do with canal moorings where CRT own the canal bed and the charge is, effectively, for mooring in the water adjacent to the land. It is up to the land owner as to whether they charge additionally for the right to use the land to access the boat or for securing mooring ropes.

 

The situation on rivers is always a bit different and, as was found in the case regarding the River Brent, may hinge on quite complex hsitory of riparian rights - ie who owns the rights to use the water.

 

It may not be even a slight correction, but the EoG charge is a charge for occupying water space exclusively, the claim being that it is trespass over their land to float over it without their consent. It cannot be a charge for mooring on their land where no connection is made to it by way of anchor or mudweight, permanent or temporary.

 

edit to add: your identification of the riparian right to be use of the water is absolutely correct, and it is the element I have had the greatest difficulty in conveying to judges unfamiliar with this sphere of the law. Property law experts get fixated on issues of trespass without considering the impact on that of navigation rights. They appear to be blind to the concept of usufruct.

 

A navigation right [whether arising from common law, statute, or licence], gives the right to keep and use a boat on the water - as stated clearly in the 1968 Transport Act, and as stated less clearly [but stated nonetheless] in the T&C's of BW/CaRT licences. Keeping and using a boat on those waters where that right exists, cannot be trespass. The mere keeping of a boat on the water in a stationary position when not in use, necessarily, however, involves an attachment to land. It becomes a trespass when that attachment is not with permission of the owner of the land to which the attachment is made.

Edited August 13, 2014 by NigelMoore

[Quinafloat]

I have no idea whether this means anything to anybody, it is a different layout - the handwritten annotation below it said this was all they had on Kalzar –

 

 

It looks like a simple screen shot, however the screen has tabs hiding information that the screen operator can click on. For that reason it is much more cryptic than a report. It's far too "muddy" for me to make out any significant detail.

Edited August 13, 2014 by Quinafloat

[Tony Dunkley]

It certainly is rather a muddle, and C&RT themselves seemed to be more than a little uncertain of what they needed to accuse me of. In the end they settled for none of the four options you have listed, but decided that I was not complying with Clauses 2.1 and 3.1 of the Licence T&C's by mooring while not cruising. The correspondence in which they have attempted to explain and justify this reads a bit like part of a script from the TV sitcom Yes Minister and they have been careful not to include it in their evidence for the Court, opting instead to present me as an unlicenced Houseboat.

In an even more bizarre follow up to C&RT initiating Court proceedings, they have now suggested that if I demonstrate to them that I am prepared, in future, to comply with their Licence T&C's by "cruising" with my unlicenced (House)boat, then they will consider renewing my Licence and suspending the "enforcement" proceedings.

If anyone can confirm that I would not be infringing copyright law by posting the relevant correspondence on this Forum, then I would be pleased to do so.

Someone has just confirmed it's OK to post C&RT e-mails addressed to me, so here are the ones I referred to in Post 334 suggesting that I cruise around in my unlicenced Houseboat.

 

C&RT to me dated 23 July 2014 :-

 

Dear Mr Dunkley

 

Thank you for your email below. If the current absence of your boat from the vicinity of Holme Lock is an indication that you are starting to cruise that is encouraging. As we explained to you at court on the 4th of July 2014, our interest is in being satisfied that you cruise when you navigate your boat away from your home mooring on inland waterways controlled or managed by CRT. If you are keeping a record of your boats movement and the short periods of not moving your boat whilst on CRTs inland waterways and you provide us with these details, we can take these into account together with our own sightings to satisfy ourselves that you are cruising. It would be as helpful to you as it would be to us if you informed us of the current location of your boat. We would have to monitor the situation over a period and would have to have your assurance that you would not be reverting back to what has been the pattern of movement that led to your licence being revoked. We would only consider suspending the enforcement action if there is demonstrable evidence that you are willing to cruise. This could then progress to the issue of a new licence.

 

 

C&RT to me dated 28 July 2014 :-

 

Dear Mr Dunkley

 

I refer to your email below.

 

Since your boat moved from the Holme Lock vicinity from 17^th July, we have not seen the boat as yet. We endeavour to check our inland waterways every 14 days. If in the course of those checks we do note over a period that any specific boat is not complying with the licence terms and conditions then the enforcement process may be followed; this is what happened in the case of Halcyon Daze resulting in the action we have taken to date. As our licence terms and conditions apply to the inland waterways we own or control, it follows that our checks are confined to those inland waterways. We do not check sections of rivers and waterways that are not within our ownership and control and we do not check marinas or other moorings where boats are moored off the waterway.

 

As stated in my email of 23 July 2014, if we find from our monitoring data going forward that over a period of time Halcyon Daze is cruising when it is on the inland waterway and not overstaying during stops whilst cruising then we would be willing to suspend the enforcement action. If you wish to provide your own evidence of the movement of your boat whilst on the waterway (such as a movement log which may include photographs), we would consider it together with our own monitoring records. The provision of your own supporting evidence is a matter for you, you are not obliged to provide it, but if you wish to show that you are now complying with our rules for using the inland waterways, then you may take the view that your supporting evidence may be of assistance to you.

 

 

My reply on 30 July 2014 . . . as yet unanswered :-

 

Thank you for your e-mail of 28 July 2014 ref. the above vessel. The contents of both this and your e-mail of 23 July 2014 do, however, raise some concerns which I think must be addressed before we can progress.

In the Witness Statement of S.A.Garner dated 9 June 2014 it is stated in Para.12 . . . "The Defendant's boat ( Halcyon Daze I.No.52721) . . . . . . . . . which is not used for navigation falls within the definition of a houseboat". Is it not somewhat inconsistent that you are now, in respect of the same vessel, referring to "cruising" and " that you would not be reverting back to what has been the pattern of movement that led to your licence being revoked"? The Canal & River Trust seems to have adopted it's predecessors standard working procedure of saying whatever happens to suit their purposes at the time, regardless of the subsequent self contradictory statements that inevitably arise from such practices. I do not, however, propose to dwell upon this point as there are two potentially far more serious matters arising from your suggestions.

Despite complying with all requirements of Section 17(3)© of the 1995 BW Act you have refused to renew the Licence for the above vessel and it is, therefore,currently unlicenced, by C&RT's own doing.

In March 2014 C&RT were alerted ( by me) to Clauses in the Terms & Conditions in the Policies of some Boat Insurers that cover was conditional on the vessel having a current Navigation Authority Licence. You are now inviting me to use my boat without a current Licence regardless of the possibility that the vessel may not be covered by Insurance as a direct consequence of C&RT's unlawful refusal to issue a Licence.

On page one of your General Terms and Conditions for Boat Licences it says . . . "Please note that it is also a criminal offence to use or keep a boat on our waterways without a licence".

Do C&RT intend to grant permission ( in writing ) for me to use my unlicenced, and, due solely to C&RT, possibly uninsured boat to cruise around enough to persuade you that you really should renew my Licence?

Signed A.K.Dunkley.

 

 

I know this is looking a bit off topic, but, maybe not. At the start of this thread I asked if C&RT's Boat/Location Logging System was Fit for Purpose. Perhaps I should have widened the scope of the question to include the C&RT staff who make use of it.

Edited August 13, 2014 by tony dunkley

[NigelMoore]

Took me awhile for the content of that exchange to sink in!

 

It would be funny, if only . . .

[Hawkmoth]

The lockies on the tidal Trent and Ouse locks make a note of all boats going through the locks.

 

They don't appear to be logged on the system though as our boat has only ever been logged on its home mooring!

So what happened when that 'stolen' boat was found on the Fossdyke when there was no record of it going though Torksey?

Bob

[matty40s]

 

 

I know this is looking a bit off topic, but, maybe not. At the start of this thread I asked if C&RT's Boat/Location Logging System was Fit for Purpose. Perhaps I should have widened the scope of the question to include the C&RT staff who make use of it.

 

I look forward to NaughtyCals opinion of this - she will obviously blame you for misleading the CRT enforcement teams into making such stupendous decisions.

[Alan de Enfield]

The lockies on the tidal Trent and Ouse locks make a note of all boats going through the locks.

 

They don't appear to be logged on the system though as our boat has only ever been logged on its home mooring!

 

Is this case of another 'porky' from C&RT, or a mistake by NC ?

 

Email from C&RT

 

Dear Mr Dunkley

 

I refer to your email below.

 

Since your boat moved from the Holme Lock vicinity from 17^th July, we have not seen the boat as yet. We endeavour to check our inland waterways every 14 days. If in the course of those checks we do note over a period that any specific boat is not complying with the licence terms and conditions then the enforcement process may be followed; this is what happened in the case of Halcyon Daze resulting in the action we have taken to date. As our licence terms and conditions apply to the inland waterways we own or control, it follows that our checks are confined to those inland waterways. We do not check sections of rivers and waterways that are not within our ownership and control and we do not check marinas or other moorings where boats are moored off the waterway

[NigelMoore]

I’m curious about one aspect of those emails –

 

The Order of the Court setting things in motion was dated 4 July, with a deadline for the Defence to filed by the 28th and a directions hearing 1 September.

 

The email dated 5 days before deadline for the defence says: “ We would only consider suspending the enforcement action if there is demonstrable evidence that you are willing to cruise.”

 

They could have suspended enforcement action prior to filing with the court, but after? Under what mechanism can a Claimant “suspend” the court action and leave it in limbo, while waiting to see whether the Defendant could build up a documented history for an unspecified period of “compliant” cruising?

 

Not that it is what Tony wants either of course, but presumably they don’t want him to undertake to stay put at his home mooring, because that would make it impossible to demonstrate “evidence that you are willing to cruise”, and [it would seem] make it impossible for them to keep track of him either, &/or build up their own record of cruising behaviour.

 

I utterly fail to see a court accepting any suggestion that an action like this should be placed on indefinite hold, on a ‘maybe we’ll see how it goes’ basis.

 

Perhaps they could come up with a draft Tomlin Order, which could finalise the action in a way acceptable to both parties?

[Paul G2]

I’m curious about one aspect of those emails –

 

The Order of the Court setting things in motion was dated 4 July, with a deadline for the Defence to filed by the 28th and a directions hearing 1 September.

 

The email dated 5 days before deadline for the defence says: “ We would only consider suspending the enforcement action if there is demonstrable evidence that you are willing to cruise.”

 

They could have suspended enforcement action prior to filing with the court, but after? Under what mechanism can a Claimant “suspend” the court action and leave it in limbo, while waiting to see whether the Defendant could build up a documented history for an unspecified period of “compliant” cruising?

 

Not that it is what Tony wants either of course, but presumably they don’t want him to undertake to stay put at his home mooring, because that would make it impossible to demonstrate “evidence that you are willing to cruise”, and [it would seem] make it impossible for them to keep track of him either, &/or build up their own record of cruising behaviour.

 

I utterly fail to see a court accepting any suggestion that an action like this should be placed on indefinite hold, on a ‘maybe we’ll see how it goes’ basis.

 

Perhaps they could come up with a draft Tomlin Order, which could finalise the action in a way acceptable to both parties?

If you take this one step further into fantasyland, in order to allow Tony to demonstrate a cruising pattern, they would have to issue a license. If they issued a license, they would have no cause for action and Tony could ask for, and most likely get, a dismissal.

 

If Tony could just get his energy focused on the legal issues at play here, and do well at the 1September hearing, he could probably win this case.

[Quinafloat]

Having first read the above email exchange a few hours ago, and re-read it twice more since then I am still awestruck. It reminded me of the story of the desk bound admiralty person who decreed that warships moving upstream in a river should keep to the right, and warships moving downriver should keep to the left.

[Tony Dunkley]

Having first read the above email exchange a few hours ago, and re-read it twice more since then I am still awestruck. It reminded me of the story of the desk bound admiralty person who decreed that warships moving upstream in a river should keep to the right, and warships moving downriver should keep to the left.

Could it be the same person, now employed by C&RT?