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

[NigelMoore]

 

As you yourself have said, more than once, it is central to English Law that we do not begin from a starting point of everything being prohibited unless expressly permitted, but from a starting point that everything is permitted unless prohibited.

 

You have told us that as a creature of statute, BW (like the canal companies) can do only those things that its creators empowered it to do.

 

As such, prior to the 1962 Act, the BTC as successor to the companies had;

• Certain expressly granted but unlimited powers
• Certain expressly granted but limited powers
• Certain express prohibitions which take away some powers that might otherwise flow from the above.
• Everything else, which is neither permitted nor prohibited, but which as a creature of statute is ultra-vires.

The 1962 Act had the following effects;

• The limits on powers were revoked
• The express prohibitions were confirmed
• The scope of the powers were extended

The fact that prior to the act, certain charges could not be made was not a prohibition, but a lack of provision. The 1962 Act remedied that.

 

A well expressed come-back argument, but which still does not answer the question: what form of prohibition against charges could there be, “otherwise” than expressly worded prohibition against a charge? There has to be one.

 

My understanding is that even though not expressly providing for freedom from charge, the absence of explicit rights to charge in an enabling Act “otherwise prohibits” any such charge. Centuries of case law on this very subject unanimously confirm the point – much of it dealing specifically with the canal Acts.

 

I referred to this way back in the Pillings thread when we had the same discussion, and brought up the modern case of McCarthy & Stone v Richmond LBC. That judgment quoted with approval from an even earlier case:

 

"In Attorney-General v. Great Eastern Railway Co. (1880) 5 App.Cas. 473, Lord Blackburn said, at p. 481: 'where there is an Act of Parliament creating a

corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited; ...' [my emphasis]

 

http://www.bailii.or...KHL/1989/4.html

 

Hence, I believe, the s.43 wording to embrace BOTH express freedom from charge AND otherwise prohibiting any charge.

 

I was rather trusting that you would come up with your own basis for distinguishing between “expressly provides for freedom from charges” and “otherwise prohibits.” Because the two conditions are so clearly enunciated, there must be such a distinct meaning to each – it is an “either/or” case, and you have not explained your understanding of the alternative; you have blended them into one or seemingly dismissed the alternative as inapplicable somehow.

 

Besides which, the constitutional point you remind me of exists to protect the rights of natural persons [the public] - including protection against statutory bodies given certain powers over those natural persons. It does not apply to statutory bodies existing by reason only of creation for specified limited purposes.

 

When such a body wishes to justify having powers to impose charges upon the populace in the promotion of their enterprises, they must carefully delineate the precise extent of the powers in that regard they want Parliament to approve. It is the public that must be protected under common law principles from a company’s unilateral extrapolation of their statutory powers over the public.

 

Reprising Stourbridge v Wheeley –

 

“The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this, – that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act.” [my emphasis]

 

It is this distinction between natural persons and creatures of statute that your response does not properly account for when relying on the constitutional principle.

 

The other ‘modern’ judgment I have previously referred to, regarding the absence of express statutory provision for a charge to be taken as a prohibition against that charge - Attorney General v Wilts United Dairies – is pertinent also to the challenge over the legalities of imposing non-statutory conditions to issue of a licence. CaRT’s [and others'] argument that accepting the licence is a binding contractual agreement to the T&C's, is contradicted by Lord Justice Atkin in response to the same line of argument:

 

“It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party . . .” [my emphasis]

[junior]

There aren't any towpath moorings like this in the London area, or anywhere on the Lee and Stort, (except the new ones at Leyton Marsh) they're all offside and gated, usually with a bit of garden, so you are getting a bit more than a ccer or a winter moorer.

Well that depends if you count Cowley North, Browns Meadow in Uxbridge and Springwell, all classed as London I believe and Towpath side with no facilities. Also they are reasonably cheap and usually have vacancies.

[Captain Zim]

Nigel, I'm sure you've covered it previously but what of this in the '62 Act

 

 

(8)The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board, the use of any inland waterway owned or managed by them by any ship or boat.

[boathunter]

They did not respond to my attempts to negotiate. They stole my boat on the day, or day after, Sally Ash announced her retirement. Sally Ash was not going to allow me to stay on the waterways. (Much of what happened to me was 'personal' and 'gender related' as I had challenged the women in the offices and female 'enforcement androids', quite rightly, but considered by them to 'confrontational' and 'abusive'. If you argue with them, as you should, allegations will be made, in court, that you are violent and abusive. Shoosmiths, and other solicitors routinely do that when women are involved. It's a form of 'entrapment' which Shoosmiths are fond of using - because the courts fall for it {note its widespread use in 'family' court cases.})

This to me is an interesting point Geoff. I've seen the same happen to people for all kinds of reasons. Step over the acceptable level of debate and the original point is ignored while you are found guilty of abuse.

 

They pursued others with a home mooring they were not permanently using to get another case to overthrow the decision in my case regarding the use, or not, of a home mooring. Some took 'evasive' action. One person 'fled' to the Bridgewater Canal. Tony Dunkley stood his ground exposing, in the process, more of their 'dirty tricks'. Your criticism of him on this site is indicative of the ignorance of many of you. He stood up to them as I stood up to them. What are you doing?

 

To be fair there are only about half a dozen people on this site who criticise Tony. Just because people reading don't type a reply doesn't mean they believe one thing or another. You should have more faith in people being able to form a picture over time.

 

If this endless and pointless discussion of arbitrary rules that, clearly, no-one understands is what living on a boat has become then it's not worth the effort is it. That's exactly what BW and CRT want - all fighting amongst ourselves while they, and their 'army' of spies and denouncers - the boat clubs, identify and pick off the 'troublemakers. I lost interest in it years ago and only stayed for the 'argument'.

Geoff I hope you can find some enjoyment from life now.

I notice you post very long posts and get no replies. You can be sure that people are reading your posts though. It seems to be taking a few "cases" but with your experience followed by Tony's rather better one and with also help from Nigel Moore on here, things will get to a state where people routinely know how to head CRT off before their licences are revoked causing the courts to have to look at why they are being revoked rather than judging on the legality of removing an unlicenced boat. I don't think your efforts have been in vain.

[Willber G]

I notice you post very long posts and get no replies. You can be sure that people are reading your posts though.

I certainly am. I have no particular axe to grind and try to learn as much as I can from all sides of any issue, and there a many knowledgeable and experienced people on here from all points of the spectrum.

I did read Geoff's account of his experiences with "Pearl" and found it interesting and poignant.

[Lady Muck]

Well that depends if you count Cowley North, Browns Meadow in Uxbridge and Springwell, all classed as London I believe and Towpath side with no facilities. Also they are reasonably cheap and usually have vacancies.

i dont because neither do CRT

[junior]

i dont because neither do CRT

I thought 'London' according to CRT goes as far as Stockers/Bridge 175.

[alan_fincher]

Well that depends if you count Cowley North, Browns Meadow in Uxbridge and Springwell, all classed as London I believe and Towpath side with no facilities. Also they are reasonably cheap and usually have vacancies.

 

 

i dont because neither do CRT

 

 

I thought 'London' according to CRT goes as far as Stockers/Bridge 175.

 

The CRT Long Term Moorings Price List counts all those moorings, (and even Batchworth), as the "London Market Area".

 

However I'm not sure about suggesting that somewhere like Springwell is cheap - I guess it depends on how you define cheap. Moorings there regularly go for amounts massively in excess of the guide prices, and (like most of these), it is an unserviced bit of towpath - no more.

 

A "vacancy" is only a "vacancy" if you can beat any other high bidder of course. There is usually strong competition at at least Springwell and Batchworth.

Edited February 21, 2015 by alan_fincher

[junior]

 

 

 

 

 

The CRT Long Term Moorings Price List counts all those moorings, (and even Batchworth), as the "London Market Area".

 

However I'm not sure about suggesting that somewhere like Springwell is cheap - I guess it depends on how you define cheap. Moorings there regularly go for amounts massively in excess of the guide prices, and (like most of these), it is an unserviced bit of towpath - no more.

Yes, correct. Rather than saying they were cheap, i should have said that the advertised guide price is considerably less than at other CRT 'London' LTM sites. I was merely pointing this out to counter the often stated argument that there are no moorings available in 'London' even if people did want them.

[NigelMoore]

Nigel, I'm sure you've covered it previously but what of this in the '62 Act

 

 

(8)The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board, the use of any inland waterway owned or managed by them by any ship or boat.

 

I probably have dealt with this before, but it doesn’t hurt to do so again, because on the face of it I can see how people can read that explanatory section as somehow expanding the uses that could be charged for, to include boating on the water.

 

In fact, of course, use of the waterways by public owners of boats was practically the ONLY facility the canal companies provided – the railways, by contrast, were scarcely open for all the public to use with private trains, simply on payment of a toll to do so.

 

The canal companies, unlike the railways, made their money from the charges placed upon other peoples' boats for the privilege of their using the waterways – so there was nothing new in the quoted section, it just clarified the distinctive nature of the waterways’ charging schemes – most of them relating to the use of the inland waterway by boats. There were other ways they could earn money of course; they could usually provide wharfing and berthing facilities on their own offside land, and provide certain services [much as the private riparian owners could], but the main income was from use of the waterway by the public.

 

Later on, they might apply for permission to run their own carrying company, or to become a water provider etc, but these were usually undertaken under the umbrella of a separate company [also inherited under the BTC Act].

 

The predominant source of income was nonetheless derived from charging the boats according to the nature and tonnage of the cargo they carried on the waterway, sometimes factoring in the distance, sometimes factoring the number of locks used, etc, etc. In the case of the Stourbridge company referred to in the court case I mentioned, their scheme provided charging for passage through locks – so that if you did not use the locks, you could be charged nothing. Much the same situation obtained on the rivers, which were able to charge only if you used a lock, whether carrying cargo or not.

 

Pleasure boats were largely allowed free use, with some exceptions – for example on the Grand Junction Canal they could use the sections between locks freely, and if they used a lock [much of the section was on canalised rivers] they could so free for so long as there was water flowing over the spillways; if there was not, and they drained down water in using the lock, they were liable to a charge as though they were a commercial boat carrying a certain tonnage of goods.

 

So virtually all the income was derived from use of the waterway by boats, according to the various formulae – and if the formula did not cover a particular use, or use of a particular section, then – as Stourbridge and others discovered – they were prohibited from levying charges for those. This prohibition – expressly provided or otherwise – has carried through to CaRT via the terms of s.43 which explicitly confirmed the prohibition in the terms of the amended Act since the Transfer Order [the amended current version now names the Canal and River Trust as not exempted from the limitations to charging, along with the surviving element of British Waterways in Scotland].

 

[Examples of expressly defined freedom from charges for all boats including commercial, are the sections of the River Brent below the Gauging Lock, and the River Lee below Old Ford Lock.]

 

So yes, the services and facilities for which CaRT can charge naturally include all uses of the waterways by boats that are specifically chargeable under the Enabling Acts. The new extended powers to licence the boats themselves rather than rely on the various toll systems, came much later than the ’62 Act, and with these hitherto non-existent powers came the specific parameters of charges associated with them. It took separate Acts of Parliament to establish these new powers; the '62 Act could not possibly empower such control over use of the waterways by any ship or boat. Hence the "otiose" comment by NABO.

 

As to rights to condition these uses of the waterways, the original canal companies were always free to impose these – same as CaRT are – through the means of byelaws. All these were subsequently repealed after nationalisation under the British Transport Commission Acts, which created new powers to create byelaws covering a range of areas [but which powers needed to be extended later, as they were in 1975, to permit byelaws governing entry onto the canals by boats, and for them to be kept and used thereon.]

 

Sometimes, as with BW in 1990, the canal companies preferred a presumably faster route to extra control than by creating byelaws, by including the conditions in their successive Acts, as these were petitioned for as seemed necessary – some of the companies had numerous Acts in quick succession over the years.

 

An example could be seen once again with the GJCC - while pleasure boats had the right to use the canal largely free from toll [and the manner of their use was largely unregulated], the first years of opening even only so far as Uxbridge, proved this to be so popular that they were seriously interfering with the efficient use of the waterway by the commercial boats, whose use was the profitable core of the company's business. Accordingly, before the canal was even opened all the way through to Braunston, the 1801 GJCC Act included prohibitions against pleasure boaters from using the towpath, or from sailing.

 

The 1995 Act, as I have said, imposed the only applicable conditions upon issue of pleasure and commercial boat licences, while the extant byelaws form the core of the enforceable T&C’s. The 1971 Act on the other hand, had already granted the power for BW to impose non-byelaw terms and conditions on houseboats only, without further reference to Parliament.

 

The right to set terms and conditions for businesses run by the canal companies [as distinct from the charges for boat use of the waterway] would have been integral with the power to run such businesses as they were empowered to run. Certain restrictions were placed on those, as well as price ceilings – both of which were abolished under s.43.

 

Sorry if a lot of that was repetitive.

[NigelMoore]

As relevant background, since the BWB (Transfer of Functions) Order 2012 the section debated reads:

 

"(2) Paragraph ( b ) of the foregoing subsection shall not be read as exempting the British Waterways Board or Canal & River Trust from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge."

 

http://www.legislation.gov.uk/uksi/2012/1659/schedule/2/made

[Captain Zim]

Thanks Nigel. So in essence:

 

The need for charges as allowed by the 62 Act were superseded by the '95 Act

 

There is no provision for conditions to be attached in the '95 Act

 

Any conditions made under the '62 Act are meaningless by virtue of the fact try refer specifically to charges (money earned) which is now earned in a different way.

 

Correct?

[Lady Muck]

Yes, correct. Rather than saying they were cheap, i should have said that the advertised guide price is considerably less than at other CRT 'London' LTM sites. I was merely pointing this out to counter the often stated argument that there are no moorings available in 'London' even if people did want them.

They're not in Hackney

[NigelMoore]

Thanks Nigel. So in essence:

 

The need for charges as allowed by the 62 Act were superseded by the '95 Act

 

There is no provision for conditions to be attached in the '95 Act

 

Any conditions made under the '62 Act are meaningless by virtue of the fact try refer specifically to charges (money earned) which is now earned in a different way.

 

Correct?

 

Not quite, Captain Zim, if I am permitted some pedanticism. Your suggested simplifications relate really only to boat licences/certificates, rather than to all the other things for which charges can be made, so that distorts the understanding somewhat.

 

* The charges covered by the ’62 Act remain valid – it is just that such charges could not possibly apply to e.g. boat licences/certificates, because such did not and could not exist [other than as voluntary simplifications of the toll system] back in 1962.

 

Nor could the charges previously allowed be reasonably [in my opinion] be added as supernumerary to the licence fee – so they could not, by way of example, now charge separately for use of locks on top of the licence fee, even though such a charge was specifically provided for under a previous Act. This was made clear in the ’71 Act for example if I recall correctly.

 

However such of the charges as relate to non-boating use of the canal itself could be wharfage and storage facilities, for example, and for those services and facilities they could charge what they liked on whatever T&C’s they liked, as per the '62 Act. Then too – if they provide facilities such as visitor moorings with water; power and rings etc, then they would equally be entitled to charge for use of those [as distinct from simply designated stretches of towpath]. I would hesitate to claim that they could not set conditions of use on those either; I believe they could.

 

* The ’95 Act itself provided for conditions to be attached to the licence – limited to those specified therein. Also, there is nothing in that Act that interferes with the right to set conditions of use of the licensed boat via byelaws, as had already been approved and in force for decades by then. CaRT specifically retain the power to promote further byelaws for the purpose.

 

Bear in mind that the ability to set conditions regulating entry onto; using, and keeping boats on the canals, only arose from the Byelaw-making powers extended under the force of the 1975 Act. Prior to that such power did not exist - and could most certainly not have arisen from s.43 of the '62 Act! It took specific Parliamentary authority more than a decade later to even provide for the possibility.

 

What the ’95 Act does not provide for, is any unilateral provision of enforceable conditions to issue of the licence on their own authority – except in the case of the Houseboat Certificates. Boat licences and certificates are within the purview of much later legislation than the '62 Act, and can only be charged for or conditioned on the terms of the relevant later statute, not that of 1962.

 

* I think that your final point is too sweeping, although yes, you have hit upon the core of the relationship between charges and conditions – the ability to set conditions under s.43 applies to the approved things for which they could charge.

 

The charges for Pleasure Boat and Commercial Boat Certificates and Licences would fall, in my view, under the different and later, specific provisions surrounding those [and by way of an example that they are of a different ‘order’, there is certainly a ceiling on the price of rivers only certificates - as a proportion of the ‘universal’ Licence - though there does not appear to be any ceiling as such on the ‘universal’ Licence, other than perhaps the need to consult the now defunct IWAC. I’d have to look that up to confirm, but haven’t the time at present.

[Hawthorn]

Gosh. As a newbie, seems to me that this discussion has become more and more complicated to follow. Would just like to pick out and agree with one comment from earlier. The canal system is a network. It joins places. Boats are vehicles, the essential feature of a boat is that it glides across water from place to place. Just as the owner of a campervan or caravan would not be allowed to live on the verge of a road, so no one should expect to live on the towpath. The reason for requiring boats to move goes right back to 'Poor Law' when a person without a home was required from parish to parish within 14 days. This was because if they stayed longer and became destitute they would be the responsibility of the parish. So 'place' could be defined by 'parish'. CRT seem to like putting up all sorts of signs so perhaps they could put up some signs to show where 'place' A becomes 'place' B. If a boat is too long in one place, the owner should just be asked, 'why'. The answer will show whether the boat is used primarily for travelling (bona fide navigation) or as a home with essential links to one place.

 

And so yes of course it's about money as it was on the days of Poor Law. Those who have home moorings contribute more to the upkeep of the waterways than those who don't. CRT do not have enough money. Why is it that those who contribute the least shout the loudest about unfair treatment.

 

There has been some discussion about why boats with a home mooring can cruise the same location without challenge. It seems self evident to me, but in case I'm missing something just how can you use a home mooring without returning to it again and again?

[Captain Zim]

Once again, thanks Nigel. I think, for the purposes I'm interested in, that being cruising licences for boats, I'm clear on it now. My summary was sweeping but again, I wanted to put it in a way that might be relevant to most users of the canal, though I accept not all. You are quite right that when I refer to charges, I am specifying licence fees and not all the other bits they could justifiably charge for. Cheers

 

ps my reference to conditions attached to licenses in the '95 act meant above and beyond those in the act itself. In the way thatuch legislation, indeed much pre-dating 95 has wording such as 'the authority may impose such conditions as they see fit etc etc' The fact that this was not included despite being common practice elsewhere says a lot as well I think.

[jenlyn]

Gosh. As a newbie, seems to me that this discussion has become more and more complicated to follow. Would just like to pick out and agree with one comment from earlier. The canal system is a network. It joins places. Boats are vehicles, the essential feature of a boat is that it glides across water from place to place. Just as the owner of a campervan or caravan would not be allowed to live on the verge of a road, so no one should expect to live on the towpath. The reason for requiring boats to move goes right back to 'Poor Law' when a person without a home was required from parish to parish within 14 days. This was because if they stayed longer and became destitute they would be the responsibility of the parish. So 'place' could be defined by 'parish'. CRT seem to like putting up all sorts of signs so perhaps they could put up some signs to show where 'place' A becomes 'place' B. If a boat is too long in one place, the owner should just be asked, 'why'. The answer will show whether the boat is used primarily for travelling (bona fide navigation) or as a home with essential links to one place.

And so yes of course it's about money as it was on the days of Poor Law. Those who have home moorings contribute more to the upkeep of the waterways than those who don't. CRT do not have enough money. Why is it that those who contribute the least shout the loudest about unfair treatment.

There has been some discussion about why boats with a home mooring can cruise the same location without challenge. It seems self evident to me, but in case I'm missing something just how can you use a home mooring without returning to it again and again?

Can you explain what makes you believe home moorers contribute more to the waterways?

[Jerra]

Can you explain what makes you believe home moorers contribute more to the waterways?

I assumed he meant the money collected from NAAs which obviously CCers don't pay. Perhaps I have got my ideas mixed up.

[jenlyn]

I assumed he meant the money collected from NAAs which obviously CCers don't pay. Perhaps I have got my ideas mixed up.

I'd rather he explained, especially seeing as your only "assuming "

[Sabcat]

Gosh. As a newbie, seems to me that this discussion has become more and more complicated to follow. Would just like to pick out and agree with one comment from earlier. The canal system is a network. It joins places. Boats are vehicles, the essential feature of a boat is that it glides across water from place to place. Just as the owner of a campervan or caravan would not be allowed to live on the verge of a road, so no one should expect to live on the towpath. The reason for requiring boats to move goes right back to 'Poor Law' when a person without a home was required from parish to parish within 14 days. This was because if they stayed longer and became destitute they would be the responsibility of the parish. So 'place' could be defined by 'parish'. CRT seem to like putting up all sorts of signs so perhaps they could put up some signs to show where 'place' A becomes 'place' B. If a boat is too long in one place, the owner should just be asked, 'why'. The answer will show whether the boat is used primarily for travelling (bona fide navigation) or as a home with essential links to one place.

 

And so yes of course it's about money as it was on the days of Poor Law. Those who have home moorings contribute more to the upkeep of the waterways than those who don't. CRT do not have enough money. Why is it that those who contribute the least shout the loudest about unfair treatment.

 

There has been some discussion about why boats with a home mooring can cruise the same location without challenge. It seems self evident to me, but in case I'm missing something just how can you use a home mooring without returning to it again and again?

 

None of that is even remotely true. Nigel Moore posted links a while ago to the various debates in parliament when the laws were drafted. The 14 days was almost plucked out of thin air. The poor laws you refer to also had nothing to do with 14 days, a person had to be resident in a parish for 40 days

[George94]

i await with bated breath.

 

Makes a welcome change to find somebody with sweet breath, instead of baited breath.

[Arthur Marshall]

Can you explain what makes you believe home moorers contribute more to the waterways?

Financially, because we pay our licence fee same as a CC, and a mooring fee which is about half as much again. A CC contributes more by helping to keep the system open and working throughout the year, while quite a lot of us HMers don't actualy use the canals as much, and some, of course, don't move at all (like about a third of the boats on my last couple of moorings).

[jenlyn]

Financially, because we pay our licence fee same as a CC, and a mooring fee which is about half as much again. A CC contributes more by helping to keep the system open and working throughout the year, while quite a lot of us HMers don't actualy use the canals as much, and some, of course, don't move at all (like about a third of the boats on my last couple of moorings).

So the Trust gets all the money from anyone paying for a home mooring?

[cotswoldsman]

Financially, because we pay our licence fee same as a CC, and a mooring fee which is about half as much again. A CC contributes more by helping to keep the system open and working throughout the year, while quite a lot of us HMers don't actualy use the canals as much, and some, of course, don't move at all (like about a third of the boats on my last couple of moorings).

CRT have had the largest take up of winter moorings this year. As one who had paid for a winter mooring for 5 months what category do I fall into when it comes to paying money to CRT?

Edited February 21, 2015 by cotswoldsman

[Sabcat]

I think it's a hugely corrosive argument to have - who pays most. It's not even slightly productive and can never achieve anything other than animosity and division along arbitrary and spurious lines. I say this from the comfort of my home mooring.