CANAL & RIVER TRUST OUTLINES POLICY FOR BOATERS WITHOUT A HOME MOORING

[Sir Nibble]

I reckon this is probably a fairly typical 14 days boating for a mooring holder. 14 days off work to go boating yippee! Where shall we go?

Lend the boat to some mates as passage crew to get out of our usual cruising area. Spend 14 days exploring as much as possible of an unfamiliar waterway including maybe 3 days in a historic city. Hand boat over to more mates as passage crew and turn up next weekend to put boat to bed on mooring and take crew home.

I honestly believe that for almost every mooring holder 14 days in one "place" is most likely due to a breakdown or similar disaster and is a great disappointment.

This is purely about Tony Dunkley if the truth be known.

[boathunter]

Does everyone have to fit what's fairly typical then?

[NigelMoore]

That legislation EXPLICITLY permits them to impose terms and conditions, and to levy charges.

 

It would be more accurate to put that the other way around: to say that s.43 explicitly permits them to levy charges, and to impose such terms and conditions upon the provision of the charged-for service/facility as they chose. It is a distinction that is not merely pedantic, but key to the whole issue.

 

I know we have gone the rounds on this one before, but I am responding yet again for the sake of those new to the topic.

 

I was interested to see that NABO’s legal advisors have taken up this point, and that their team has put the matter directly to CaRT in the simplest possible manner that I have myself have previously seen fit to present on this forum – to wit, that if s.43 of the ’62 Act can be understood in the way CaRT promulgate, then all the subsequent private Acts promoted by BW were a pointless waste of money, and utterly redundant [“otiose” was the word NABO used].

 

Any understanding of this section has to commence with the context. The section appears under Part III headed “Transport Charges and Facilities”, so that everything following has to be understood as clauses defining what the authority would be able to do respecting the things they were empowered to charge for. Terms & conditions in this context define the rules under which both parties contract to agree when voluntarily entering into a chargeable contract for provision of services and/or facilities.

 

This is given emphasis in this Part of the Act in that it clarifies [s.43(2)] - what does not really need clarifying, but which is added for the avoidance of any doubt – that this section must not be taken to open up all possible uses of the waterways by boats to the expressed new freedoms granted by Parliament to the authorities via s.43.

 

In case the wording of the Act suffered any attempt to construe it as enabling imposition of charges and conditions of supply for all and any use of the waterways by boats, it expressly stated that the clause did NOT apply to anything which they had not [under the underlying Enabling Acts], been previously permitted to charge for.

 

Originally, there were uses of the waterways, by boats and other businesses, for which complicated and unwieldy charging systems applied; limits set on those charges, and constrictions on the terms and conditions applying to those chargeable services and facilities. The ’62 Act aimed to lift the restrictions and simplify the charging schemes. It did NOT empower BW to start charging for anything they chose, and to set T&C’s for that which had previously been free from charge.

 

s.63 of the same Act [Part IV, Miscellaneous and General] is an example of the statutory limitations under which BW [as the other Boards and all Statutory Bodies] laboured: it gave limited powers to sell abstracted water. What it did not expressly do, was allow them to engage in water purification and charge extra for that. As a consequence, they later obtained approval for a Statutory Instrument giving them that power – they could not have set charges and associated T&C’s of sale on such a service otherwise, despite s.43.

As to charging for pleasure boats, let alone setting terms and conditions on their using the canals and rivers: that was impossible - except in such instances as these were expressly provided for [such as, in some parts of the system, being able to charge if the boat using a lock used water].

 

In short, as pertinent to this topic, s.43 gave no power to demand and charge for a pleasure boat licence anywhere on the system, let alone condition the issue of one.

 

When powers were eventually granted [1971] enabling them to demand river registration certificates, these were specifically constrained - in that issue was compulsory on provision of the necessary details and payment. BW’s legal representation during the 1990 Bill was emphatically clear that the Act had given them absolutely no leeway to set any other conditions on issue of the certificate, for all that s.43 of the ’62 Act existed.

 

In all common sense [!?] this was because they were prohibited from imposing any conditions of use for a use which was the public’s as of right under common-law. Neither – despite any narrow interpretation of s.43 – could they levy any charges for such use until Parliament expressly permitted it. The levying of charges under the strictly circumscribed conditions allowed for under the ’71 Act was not controlled by s.43 of the ’62 Act; it was controlled by the specific enactment of the ’71 Act – as were the strictly limited conditions attaching to that power to demand a chargeable registration certificate. The ’62 Act, s.43 could not - and did not - enter into the picture.

 

By way of emphasis that no s.43 control [as to terms and conditions] could be allowed to operate upon the public right of navigation in excess of that provided for in the ’71 Act, even when the power to get approval for byelaws controlling use of the waterways was later [1975 Act] extended to include creating terms and conditions regulating entry onto and use of BW waterways [why? if s.43 had already conferred such powers independent of byelaws?] this power was expressly prohibited from being used to control access to and use of the tidal waters.

 

As a pertinent matter of historical fact, no such byelaws even for the non-tidal parts of the system, have ever been applied for and approved.

Not enjoying the freedom from restriction under the terms of the ’62 Act, the level of charges for the issue of river registration certificates was strictly set by Parliament [in the 1983 Act] at a percentage of any charges levied for the all-system river and canal pleasure boat Licences, as were eventually provided for under the terms of the 1975 Act and the resultant relevant new 1976 Byelaw.

 

One can argue all one likes, in concert with the authority, for the unfettered nature of the supposed s.43 right for CaRT to charge and condition as they see fit for any use of the system by boats, but the subsequent historical record of legislation since 1962 proves otherwise [as was noted by HHJ Hildyard when addressing the point].

 

The point made acknowledging lack of statutory sanction is likewise very telling, and the suggestion that courts could remedy the lacunae is invalid. No court can impose a sanction upon non-compliance with any unauthorised and unilaterally imposed terms and conditions as do not have Parliamentary authority, so the absence of any such sanctions as are specified - as they are, respecting those of the T&C's as repeat byelaws - means that there is no relevant relief that the courts can be asked to impose.

 

For clarity and completeness and “for the avoidance of doubt” as legal speak has it – many of the existing and proposed T&C’s DO have Parliamentary authority and specified sanctions; as when they re-iterate statutory requirements and byelaws. Otherwise? They are of no value whatsoever beyond what they originally were bruited as: sensible guidance to desirable behaviour.

[Sir Nibble]

Does everyone have to fit what's fairly typical then?

Of course not. I am simply trying to make the point that for a large number of boaters their boating time is limited to time off work and they will make the best use of it. I would suggest that the number of boaters who would spend more than 14 days within the area of their home mooring with any degree of regularity is extremely small. So small in fact as to be negligible, unless one wants to nail Tony Dunkley. This in my view stinks of a malicious misuse of authority. Edited February 19, 2015 by Sir Nibble

[boathunter]

Of course not. I am simply trying to make the point that for a large number of boaters their boating time is limited to time off work and they will make the best use of it. I would suggest that the number of boaters who would spend more than 14 days within the area of their home mooring with any degree of regularity is extremely small. So small in fact as to be negligible, unless one wants to nail Tony Dunkley. This in my view stinks of a malicious misuse of authority.

Well I agree to a point, but Tony was picked on seemingly for getting up the nose of the local enforcement officer, which as much as I respect Tony I don't find too difficult to believe. Are you suggesting the change in terms and conditions is purely for him?

Edited February 19, 2015 by boathunter

[Sir Nibble]

Well I agree to a point, but Tony was picked on seemingly for getting up the nose of the local enforcement officer, which as much as I respect Tony I don't find too difficult to believe. Are you suggesting the change in terms and conditions is purely for him?

I cannot conceive of there being enough mooring holders with this sort of pattern of movement to be any kind of a problem anywhere. I would say that the spotlight has been cast on the issue by Tony's case. It could be that CaRT foresee a possible issue with this in the future or they are seeking to lay down a framework for when they suspect a "paper" mooring.

[Tony Dunkley]

This is purely about Tony Dunkley if the truth be known.

 

I'd love hear how you worked that one out !

[bassplayer]

 

Please don't call me a liar when I tell you what I have seen with my own eyes.

I didn't call you a liar.

 

Please don't call me a liar when I tell you what I have seen with my own eyes.

I didn't call you a liar and that's just a cheap shot. You've done exactly what you accuse me of (read your original reply to me). That's why I had a dig back. You ask me for evidence but I speak as I find and hear just like you do.

 

You could have saved your time and effort replying as I spent a few months on the K&A from Reading to Bath less than 2 years ago. I was very happy using pins and a plank when required, isn't shallow water part of boating? We often moor away from official VM's, even on the Thames, it can be magical in some places. I respect that your view on the K&A is backed up by years of experience.

 

As for secret deals etc, we all know it goes on. If you are going on about the masons I've already made or clear I don't have a problem with them. I personally didn't join because I'm a bit cynical about any organisation which is exclusive, each to their own I suppose.

 

If you chose to nibble away at others views then don't be surprised if they nibble back.

[jenlyn]

I'd love hear how you worked that one out !

It's a general view. It's been mentioned. I don't doubt it.

[Tuscan]

I was at a meeting with Sally Ash which got very heated (I believe it was the day it was then later stated she was going to 'retire') she was saying she wanted to control ghost moorings - and the principle way she was going to do this was to introduce the no return rule. When challenged re why she intended to effect the cruising pattern of all boaters to target a few she said it was a major problem. When I challenged again by asking her to quantify the scale of the problem she blustered but admitted she did not know how many ghost moorings there were. The morale of this story was that yet again CRT created a solution to a problem that they were unable to quantify that effected all boaters to target a few.

[jenlyn]

Should have called them the t&d's, lol

[Sabcat]

I was at a meeting with Sally Ash which got very heated (I believe it was the day it was then later stated she was going to 'retire') she was saying she wanted to control ghost moorings - and the principle way she was going to do this was to introduce the no return rule. When challenged re why she intended to effect the cruising pattern of all boaters to target a few she said it was a major problem. When I challenged again by asking her to quantify the scale of the problem she blustered but admitted she did not know how many ghost moorings there were. The morale of this story was that yet again CRT created a solution to a problem that they were unable to quantify that effected all boaters to target a few.

 

The thing is, the problem - if it really exists - isn't even solved by these T&Cs, only the timid will take any notice. Anyone with enough nouse to understand the 1995 act and how it provides for them to bridge hop if they get a cheap mooring somewhere will know the T&cs are pretty much meaningless. There's already a well known judgement (Mayers) which has this described in detail. Your account of the meeting with Sally Ash makes me think CRT are run by crazy people desperate to make themselves look stupid.

[Bod]

 

The thing is, the problem - if it really exists - isn't even solved by these T&Cs, only the timid will take any notice. Anyone with enough nouse to understand the 1995 act and how it provides for them to bridge hop if they get a cheap mooring somewhere will know the T&cs are pretty much meaningless. There's already a well known judgement (Mayers) which has this described in detail. Your account of the meeting with Sally Ash makes me think CRT are run by crazy people desperate to make themselves look stupid.

 

But they will need a judge to tell them.

 

Bod

[Sabcat]

 

But they will need a judge to tell them.

 

Bod

 

Sure but there's enough info out there now online and other people and groups organising themselves that I don't think people need to have much in the way of fear. Tony Dunkley's experience and Tuscan's account of their complete lack of a clue of the problem they think they need to solve is indicative of an organisation that doesn't know it's arse from it's elbow.

 

Take that along with the experiences of people that have previously supported and tried to work with CRT and have now reached similar conclusions and it seems to me that there's a great deal of trouble ahead. An inadequate pot of cash being pissed away on making up unenforceable T&Cs is only a minor part of the problem.

[Gordias]

I'd be interested to see a definition of "the problem that doesn't really exist". It sounds like a "Straw Man" which works only because it's undefined.

 

 

CaRT's objectives are obvious, and don't need to be justified by a major problem: they want to be able to control the amount of time boats are allowed to moor at different places.

 

Among other things they clearly want to:

• Stop any one boat occupying any towpath mooring longer than 14 days except by permission from CaRT
• Provide "visitor moorings" that may not be occupied by any one boat for more than a specified time that's less than 14 days
• Allow boats to moor in one place for longer than 14 days under appropriate circumstances (such as during the winter)

There's no point in arguing that these are "bad objectives". They are clearly intended to ensure that moorings are shared fairly between all boaters. There are clearly places and time periods where demand for moorings exceeds supply, and a means to share the scare resource (mooring spots) is good for boaters as a group ... but less convenient for individuals who don't want to share.

 

Naturally there's nothing wrong with interpreting the law in a way that doesn't support these objectives. It's certainly open to different interpretations, and the "official" meaning and scope can only be established in court.

 

On the other hand all the claims that "there is no problem", and implications that CaRT is acting in bad faith make no sense. They're looking for ways to share access to a scarce resource by some other means than "first in place has an unlimited right to occupancy". Their means may or may not be in accordance with the 1995 act, but their objectives are definitely reasonable.

Edited February 20, 2015 by Gordias

[bassplayer]

I'd be interested to see a definition of "the problem that doesn't really exist". It sounds like a "Straw Man" which works only because it's undefined.

 

 

CaRT's objectives are obvious, and don't need to be justified by a major problem: they want to be able to control the amount of time boats are allowed to moor at different places.

 

Among other things they clearly want to:

 

• Stop any one boat occupying any towpath mooring longer than 14 days except by permission from CaRT
• Provide "visitor moorings" that may not be occupied by any one boat for more than a specified time that's less than 14 days
• Allow boats to moor in one place for longer than 14 days under appropriate circumstances (such as during the winter)

There's no point in arguing that these are "bad objectives". They are clearly intended to ensure that moorings are shared fairly between all boaters. There are clearly places and time periods where demand for moorings exceeds supply, and a means to share the scare resource (mooring spots) is good for boaters as a group ... but less convenient for individuals who don't want to share.

 

Naturally there's nothing wrong with interpreting the law in a way that doesn't support these objectives. It's certainly open to different interpretations, and the "official" meaning and scope can only be established in court.

 

On the other hand all the claims that "there is no problem", and implications that CaRT is acting in bad faith make no sense. They're looking for ways to share access to a scarce resource by some other means than "first in place has an unlimited right to occupancy". Their means may or may not be in accordance with the 1995 act, but their objectives are definitely reasonable.

 

Despite what some may believe (and I have said this before), I recognise that there is a problem in some localised areas. In particular London. Certainly over the large part of the system I've travelled there isn't a problem. In the end the problem is in the mind of the beholder. For example, someone might think the world revolves around them and feel that they should expect a mooring right outside a pub every time they take the boat out.

 

Believe it or not, when I first started travelling extensively I thought a bit like that. Fortunately over time I realised the world didn't revolve around me.

 

Where there is a real problem locally, by all means fix it, but applying the same fix everywhere across the system isn't always appropriate and incurs unnecessary wastage of important funds. Ok, Richard Parry has said he wants to see more boats moving. I ask again...1) How is that going to free up more VM's when many CM'ers don't actually occupy VM's? (They will if they are forced to move around). 2) How is more movement on the system going to generate revenue? (if anything the extra wear and tear will cost CRT.....and more queues at locks).

[Sabcat]

I'd be interested to see a definition of "the problem that doesn't really exist". It sounds like a "Straw Man" which works only because it's undefined.

 

 

CaRT's objectives are obvious, and don't need to be justified by a major problem: they want to be able to control the amount of time boats are allowed to moor at different places.

 

Among other things they clearly want to:

• Stop any one boat occupying any towpath mooring longer than 14 days except by permission from CaRT
• Provide "visitor moorings" that may not be occupied by any one boat for more than a specified time that's less than 14 days
• Allow boats to moor in one place for longer than 14 days under appropriate circumstances (such as during the winter)

There's no point in arguing that these are "bad objectives". They are clearly intended to ensure that moorings are shared fairly between all boaters. There are clearly places and time periods where demand for moorings exceeds supply, and a means to share the scare resource (mooring spots) is good for boaters as a group ... but less convenient for individuals who don't want to share.

 

Naturally there's nothing wrong with interpreting the law in a way that doesn't support these objectives. It's certainly open to different interpretations, and the "official" meaning and scope can only be established in court.

 

On the other hand all the claims that "there is no problem", and implications that CaRT is acting in bad faith make no sense. They're looking for ways to share access to a scarce resource by some other means than "first in place has an unlimited right to occupancy". Their means may or may not be in accordance with the 1995 act, but their objectives are definitely reasonable.

 

Of those stated objectives you've made up there, which ones aren't already covered by existing rules/legislation for all boaters regardless of a home mooring status?

 

I'll give you a clue. None of them.

[Gordias]

 

Of those stated objectives you've made up there, which ones aren't already covered by existing rules/legislation for all boaters regardless of a home mooring status?

 

I'll give you a clue. None of them.

 

This thread is full of claims that having a home mooring means people don't have to follow any of those rules.

 

You should direct your comment to them.

[Sabcat]

 

This thread is full of claims that having a home mooring means people don't have to follow any of those rules.

 

You should direct your comment to them.

 

I'm directing it at you because you claim to know what CRTs aims are.

 

To clarify it for you though, the new T&Cs, based on Tuscan's conversation with Sally Ash, appear to be to tackle the problem of "ghost moorings". A boater with a home mooring, however spectral it might be, can moor in one place for 14 days, the same as a CCer then they must move to a different place, the same as a CCer. The difference is they can then shuffle back 14 days later, there's no requirement for them to use the boat "bona fide for navigation".

[Jerra]

 

I'm directing it at you because you claim to know what CRTs aims are.

If you read carefully what was written it says "it is obvious" which is an opinion not a statement of knowing facts.

 

Incidentally it is an opinion I agree with.

[Gordias]

 

I'm directing it at you because you claim to know what CRTs aims are.

 

To clarify it for you though, the new T&Cs, based on Tuscan's conversation with Sally Ash, appear to be to tackle the problem of "ghost moorings". A boater with a home mooring, however spectral it might be, can moor in one place for 14 days, the same as a CCer then they must move to a different place, the same as a CCer. The difference is they can then shuffle back 14 days later, there's no requirement for them to use the boat "bona fide for navigation".

 

I said CaRT's objectives regarding the new T's and C's and more generally about controlling mooring, are obvious.

This is because they've provided a lot of information about them on their web site and in comments in the "table of changes" for the new T's and C's - there's enough information to draw some conclusions about both their motivations and their longer-term objectives regarding mooring.

 

Are you suggesting in your last paragraph that the new T's and C's have no effect on boaters with a home mooring? If not, I'd like to understand what you believe is the effect of the lack of the requirement to use the boat "bona fide for navigation" is on a boater with a home mooring? For example does it ever remove the 14-day towpath mooring limit? Does it allow a "home moorer" to stay longer on a VM than a CCer?

Edited February 20, 2015 by Gordias

[bassplayer]

.....the new T's and C's and more generally about controlling mooring, are obvious.

 

I think it's about making sure boats move. I don't know if you read my reply or have chosen to ignore it but I'd be interested in your response. I agree with your sentiment about everyone trying to share moorings fairly but forcing CM'ers who don't use VM's to move isn't a solution. Provided they pay a licence maybe they should be commended for not wearing out the infrastructure like the rest of us

[Paul C]

Provided they pay a licence maybe they should be commended for not wearing out the infrastructure like the rest of us

 

Thus effectively obtaining for themselves a "mooring" in a possibly prime spot, for free.

 

If I go into a shop and buy a Mars Bar, is it fair that someone else goes into the shop, simply takes the Mars Bar and walks out the shop without paying for it?

[bassplayer]

 

Thus effectively obtaining for themselves a "mooring" in a possibly prime spot, for free.

 

If I go into a shop and buy a Mars Bar, is it fair that someone else goes into the shop, simply takes the Mars Bar and walks out the shop without paying for it?

Not free if they pay for a licence. Now I see your problem. You are jealous. If you pay for a mooring you will probably (but not always) be paying for the privileges of security, on line...water, electricity, disposal facilities, social facilities, maybe even a bar if it's a boating club.

 

Of course if you think you aren't getting a good deal then try CC'ing.

[Paul C]

 

If you pay for a mooring you will probably (but not always) be paying for the privileges of security, on line...water, electricity, disposal facilities, social facilities, maybe even a bar if it's a boating club.

 

What if someone pays for a mooring and its towpath-side (not offside) and gets none of those listed items? Should they pay £0 over and above the boat licence they also need?