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

[Hawkmoth]

That was just what I was trying to say!

 

What some should also recognise is that the guidance has been issued in regard to what CRT will consider to be grounds for withdrawing a licence (or not renewing it) rather than prosecution. This will then leave the boater having to initiate the court action to prove that CRT have been unreasonable.

 

No douby some cases will be lost by CRT. Occasionally as clever motorist discovers a minor admin error and thereby has a speeding ticket set aside. Does not and should not stop the police continuing to enforce proper behaviour.

On the point of motorists you're dead right. I have a friend who was caught doing 127mph on a 50 area and got away with it. i say "goat away with it" it cost him about £3000.00, but he kept his licence and no points.

I just wish that CRT would be more selective in their choice of boater to pursue.

Bob

[Tuscan]

If "necessary" I certainly have a copy of a GJCC distance table, dated (from memory), about 1895, though I haven't brought it into play, so far (!)

 

I don't think any of the GJCC or its arms have been significantly realigned since, so despite its age, its probably still fairly accurate.

Very kind of you to offer this facility to CRT but I think they measure distance in Kilometers now........

[Naughty Cal]

On the point of motorists you're dead right. I have a friend who was caught doing 127mph on a 50 area and got away with it. i say "goat away with it" it cost him about £3000.00, but he kept his licence and no points.

I just wish that CRT would be more selective in their choice of boater to pursue.

Bob

Who would you like them to pursue instead?

[Tony Dunkley]

I don't think C&RT are intending on commencing enforcement on large numbers of generally compliant boaters. This is probably being introduced to solve a problem in specific areas. My reasoning is the new terms and conditions clearly are at odds with the legislation and therefore could be subject to successful legal challenge. I would imagine the last thing C&RT would want is to commence proceedings against a generally compliant boater who has money as this could lead to an immediate injunction against them preventing further action then judical review, and a finding against them, the worst possible outcome in their eyes.

 

What do you see as a 'compliant boater', one who complies with the Law or one who complies with C&RT's 'Guidance', for them it's the latter, but their arrogance usually means they don't consider any outcome other than another inevitable 'win' for themselves.

As far as a boater needing money to get an Injunction, that's a common misconception. The process can be initiated without paying lawyers and the Court Fees for Applications would not be beyond the means of the majority of boaters.

[Alf Roberts]

 

What do you see as a 'compliant boater', one who complies with the Law or one who complies with C&RT's 'Guidance', for them it's the latter, but their arrogance usually means they don't consider any outcome other than another inevitable 'win' for themselves.

As far as a boater needing money to get an Injunction, that's a common misconception. The process can be initiated without paying lawyers and the Court Fees for Applications would not be beyond the means of the majority of boaters.

what we need is the layman's guide to seeking an injunction and the form it should take to bat the ball back at CRT

[jenlyn]

what we need is the layman's guide to seeking an injunction and the form it should take to bat the ball back at CRT

I thought I saw nigel moore put something up on this a little while back?

I am pretty sure he put this link up

 

http://www.justice.gov.uk/courts/rcj-rolls-building/administrative-court/applying-for-judicial-review

Edited February 14, 2015 by jenlyn

[Tony Dunkley]

what we need is the layman's guide to seeking an injunction and the form it should take to bat the ball back at CRT

 

Nigel Moore knows all this stuff straight off the top of his head, but he hasn't been around for the last few days again. All the necessary info. is on that Government Legal website, but it takes a lot of wading through.

[Allan(nb Albert)]

what we need is the layman's guide to seeking an injunction and the form it should take to bat the ball back at CRT

http://uk.practicallaw.com/2-211-3117 ?

[Tony Dunkley]

I thought I saw nigel moore put something up on this a little while back?

 

Your right, he did, I'll try to find it.

[Tony Dunkley]

http://uk.practicallaw.com/2-211-3117 ?

 

Thanks Allan, there's plenty there. I'm trying to remember what Nigel said about the Court fees . . . . the figure of £65 comes to mind, but I'm not completely sure.

[jenlyn]

Thanks Allan, there's plenty there. I'm trying to remember what Nigel said about the Court fees . . . . the figure of £65 comes to mind, but I'm not completely sure.

Yes it was 65 quid

[MtB]

All you need to go boating is a degree in law, a log book signed by a judge, and a GPS record of all your movements from GCHQ.

 

 

No that's what you need to AVOID going boating.

 

 

MtB

[Allan(nb Albert)]

My view of this is that CRT are terrified of the implications of the judge's comments in the Mayers case. Previously when they've scaled back their guidance is has been a change of degree. The problem with the Mayers case is that the judge's comments undermine the whole premise of their guidance. The judge's comments were entirely consistent with the conclusions any sensible person would draw after reading the act and applying some common sense. The term 'bona-fide navigation' can only be defined in terms of the intent behind the navigation, not the distance traveled. Obviously, this makes any prosecution very tricky indeed.

 

CRT's response to this problem is to brush it under the carpet and hope that they can side-step it with 'guidelines' and a robust enforcement approach which determinedly hounds boaters ever onwards, with the threat of a prosecution. It's an approach which many authorities adopt, for good reasons - it usually works. There's a huge risk too though and CRT could easily end up getting a big spanking from a judge from it if they try to carry through a prosecution. The question is: will any boaters stand firm and call CRT's bluff? My guess is they will - boaters can be a damned stubborn bunch! ;-)

 

I think you are right about CaRT being terrified about the Mayers case because BW cherry picked on the Davis case such that they could get away with just watering down their guidance. It is very worthwhile reading the questions that NABO have asked the Trust regarding the case, in particular 7&8 -

Questions to CRT following Mayers Case NABO has asked CRT to respond to the following questions raised by our legal representative as a result of the recent judgement in the case of CRT v Mayers.

We question for example how can CRT enforce, its "no return" rule in the light of this.

We believe the questions we pose below should be explored before any proposed changes to the boaters guidance or license terms and conditions are made.

(For full judgement see: files/CRT_v_Mayers_Judgment_22-11-13.pdf )

1. Why has the judgement CRT v Mayers not been available through CRT considering 1.4 of the judgement? It was released without restriction.

Judgement extract 1.4 This draft written judgement has been sent to Counsel on the usual basis for minor corrections to be suggested. Replies have been received from both Counsel and these have been taken into account in completing judgement. It may now be regarded as a fully written judgement and may be utilised without restriction save that it must not be selectively quoted so as to give a misleading impression as to its contents.

2. Is this judgement now available through the CRT web site?

3. Does CRT now accept that a boat does not have to use its home mooring, reference 6.3 of the judgement?

Judgement extract 6.3 There are clear anomalies in both positions. CRT clearly regard the occupation of moorings by permanently resident boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. A boat which has a home mooring is not required to be bona fide used for navigation throughout the period of the license but neither is it required ever to use its home mooring. The Act requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided that they are far enough apart to constitute different places. If those who are causing overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet and Avon Canal near Bristol and the home mooring could be in Birmingham totally unused.

4. Does CRT accept that Mr. Davies was not the owner and occupier of a houseboat, but a live aboard who was required to move every 14 days to a different place and bona fide navigate?

5. Does CRT accept that Sections 2.3.1 and 2.3.2 are irrelevant as there are less than 100 houseboat certificates in use and none have been issued for the last 20 years?

6. Does CRT accept paragraph 6.3?

See Judgement extract at Q3 above

7. Does CRT accept 7.13 the phrase used bona fide for navigation involves consideration of the purpose of the use, rather than the extent of the movement.

Judgement extract 7.13 The decision is to be found at paragraph 14 In deciding whether the defendants use of his boat relieves him of the requirement to have a permanent mooring the question has to be asked What does the defendant use his boat for? This involves consideration of the purpose for which he uses his boat. Is it to be used for navigation or for some other purpose? If he uses it for navigation, is he so using it throughout the period of the license? It is accepted and asserted by the defendant that he uses it for his home. It seems to me that the use of a boat as a home does not necessarily exclude a co-existent use for navigation. Indeed a person who continuously cruises the waterways in the manner envisaged by the Board might well be living full time on his boat and have no other home . The question remains for what purpose does the defendant use his boat? Is it for navigation? I have come to the conclusion that the defendants use of the boat is not and will not be for navigation. His use of the boat is as his home, and his movement of the boat is not use bona fide for navigation, it is incidental to its use as a home. His purpose in keeping the boat on the short stretch of the canal between Bath and Bradford-on-Avon is so his home is within a convenient distance of his place of work and his social circle. His purpose in moving the boat is to attempt to escape the requirement to have a permanent mooring. His movement of the boat use is not use that is bona fide for navigation and in my judgement the Board was justified in concluding that the applicant did not qualify for the issue of a license.

The phrase used bona fide for navigation involves consideration of the purpose of the use, rather than the extent of the movement

8. Does CRT accept 7.22.7?

Judgement extract 7.22.7 I agree with HH Deputy Judge OMalley DL that the phrase used bona fide for navigation involves consideration of the purpose of use, rather than the extent of the movement. CRT rely heavily on that decision as supporting their position but in respect of the requirement to use a significant part of the network it has precisely the opposite effect.

**** Edited to add, I don't think NABO have yet had a response to this

Edited February 14, 2015 by Allan(nb Albert)

[alan_fincher]

Very kind of you to offer this facility to CRT but I think they measure distance in Kilometers now........

I do wish they wouldn't, although frankly if they have to metricate anything, I'd rather they did that, than put up signs that tell us the total rise of a lock flight in metres.

[Hawkmoth]

Who would you like them to pursue instead?

People who blatantly "take the p*ss" and cause problems for the compliant majority. I don't know who these people are, but the fact that CRT seem to have lost some high profile cases it would seem that they are not picking the right ones.

Bob

[DeanS]

I feel that this new approach is a really good step in the right direction.

 

I also feel that the fact that no statement has been made about how far is "far enough" is helpful, not only to CC'ers (those who actually comply with the spirit of what a continuous cruiser should be) but also to CRT.

 

Anyone who has some knowledge of different areas of the canal network knows that some areas are much more congested than others and so it is obvious that those not complying with the rules in areas of greater congestion are going to be causing more problems than those who pootle about on a stretch of canal out in the sticks.

 

While I am not for one minute suggesting that any continuous cruiser should not be attempting to comply with the rules the fact that no firm direction has been given on distance allows CRT to be a little more lenient in their enforcement of those rules in areas where peoples cruising pattern is not actually causing any problem to anyone.

 

Boater A shuffles his boat around any available moorings as close to central London or a convenient tube station as he can get is going to have to spend some time carefully planning his movement pattern to comply and will get frustrated by struggling to find a vacant place to moor.

 

Boater B has worked out that there are a huge number of canals within easy travelling distance of Central Birmingham and has no problem gently moving his boat around the outskirts of the city in a wide circle and through the course of a year possibly never having to stay in the same place twice and yet being within cycling distance of a railway station or on a decent bus route into the city

 

Boater C finds a spot in the middle of nowhere on The Leeds & Liverpool. He moves his boat every couple of weeks to another spot in the middle of nowhere. When he has gone as far as is practical for him to commute to his place of work he turns around and starts moving through all those "middle of nowhere" moorings to a point as far in the opposite direction as is practical for him.

 

 

Boater A is going to have the hardest job of complying. Boater C is probably the one most likely to be not completely complying but is Boater C actually causing anyone any problems by his cruising pattern? Very probably not?

 

Because CRT have not stated how far is far enough it allows their enforcement team to interpret the rules to suit the situation in their own area.

 

Of course the problem comes when Boater C gets a promotion to the London office and tries to continue with his previous movement pattern then wonders why CRT come down on him like a ton of bricks

 

very well put:)

[Tony Dunkley]

I think you are right about CaRT being terrified about the Mayers case because BW cherry picked on the Davis case such that they could get away with just watering down their guidance. It is very worthwhile reading the questions that NABO have asked the Trust regarding the case, in particular 7&8 -

 

**** Edited to add, I don't think NABO have yet had a response to this

 

I think another contributing factor to C&RT's discomfort with this Judgment is that they didn't expect it ever to be made and handed down.

The proceedings against Geoff Mayers were commenced with one of C&RT's much loved CPR Part 8 Claims and they expected the matter to be at an end after leaving the Court with an Order and an Injunction following a 10 minute hearing at which no Defence could be offerred. Much to C&RT's dismay, Geoff Mayers subsequently persuaded the Court to list the matter for trial, and this Judgment is the result of that trial. Had it not been for Geoff Mayers' actions and determination, which cost him the loss of his boat and his home, this Judgment would not exist.

Edited February 15, 2015 by Tony Dunkley

[costalot]

I think another contributing factor to C&RT's discomfort with this Judgment is that they didn't expect it ever to be made and handed down.

The proceedings against Geoff Mayers were commenced with one of C&RT's much loved CPR Part 8 Claims and they expected the matter to be at an end after leaving the Court with an Order and an Injunction following a 10 minute hearing at which no Defence could be offerred. Much to C&RT's dismay, Geoff Mayers subsequently persuaded the Court to list the matter for trial, and this Judgment is the result of that trial. Had it not been for Geoff Mayers' actions and determination, which cost him the loss of his boat and his home, this Judgment would not exist.

Sounds like Mr Mayer won the battle but lost the war. The lesson I take from this is that in taking CRT to court it might cost you your boat and home!

[kris88]

That's the lesson CRT want you to take from it.

Regards kris

Edited February 15, 2015 by kris88

[Tony Dunkley]

Sounds like Mr Mayer won the battle but lost the war. The lesson I take from this is that in taking CRT to court it might cost you your boat and home!

 

Well, that's not really what happened. Geoff Mayers did not take C&RT to Court, but he intentionally provoked them into taking legal action against him, hoping that the Court would find in his favour and in doing so, expose C&RT's flouting and abuse of the Law.

If, after ensuring that he was fulfilling the relevant statutory requirements of the 1995 Act, he had instigated proceedings with an Application for Declaratory Relief (in respect of C&RT's threatened action against him) then the outcome would have been very different. This was remarked on by the trial Judge at 5.16 of the Judgment, and is another of the reasons why Parry and C&RT didn't want this Judgment to be made generally known and didn't publish it on their website.

[costalot]

Interesting, the way I interpret the judgement is that the judge couldn't provide a decision about the legality of the CRT cc guidelines because of the actions of Mayer in provoking CRT. The judge appears to have rejected all of Mayers claims. He used a lawyer and still lost.

[GoodGurl]

 

Well, that's not really what happened. Geoff Mayers did not take C&RT to Court, but he intentionally provoked them into taking legal action against him, hoping that the Court would find in his favour and in doing so, expose C&RT's flouting and abuse of the Law.

If, after ensuring that he was fulfilling the relevant statutory requirements of the 1995 Act, he had instigated proceedings with an Application for Declaratory Relief (in respect of C&RT's threatened action against him) then the outcome would have been very different. This was remarked on by the trial Judge at 5.16 of the Judgment, and is another of the reasons why Parry and C&RT didn't want this Judgment to be made generally known and didn't publish it on their website.

But they did publish it on their site although they didnt add the full judgement.

https://canalrivertrust.org.uk/publication-scheme/publication-scheme/court-action-to-remove-boats-from-our-waterways

Edited February 15, 2015 by GoodGurl

[Tony Dunkley]

But they did publish it on their site although they didnt add the full judgement.

https://canalrivertrust.org.uk/publication-scheme/publication-scheme/court-action-to-remove-boats-from-our-waterways

That's the Order that was made, completely different thing and quite separate from a Judgment. An Order isn't a partial Judgment, as you would appear to think, and it carries no explanatory wording as to how the decision to make the Order came about. That's why C&RT were happy to publish it, . . . . without the accompanying Judgment.

Edited February 15, 2015 by Tony Dunkley

[cotswoldsman]

But they did publish it on their site although they didnt add the full judgement.

https://canalrivertrust.org.uk/publication-scheme/publication-scheme/court-action-to-remove-boats-from-our-waterways

Is that the correct link? Can't see any reference to the case other than case number boat name etc Edited February 15, 2015 by cotswoldsman

[GoodGurl]

Is that the correct link? Can't see any reference to the case other than case number boat name etc

scroll down to the bottom.

60622

Pearl

Geoffrey Douglas Mayers

10/02/2014

Chester

Court Order Obtained

Edited February 15, 2015 by GoodGurl