Boater Sues C&RT for Section 8

[NigelMoore]

Within the PLA’s jurisdiction, “fairway” means a regular course or track of shipping, comprising all marked and/or charted navigable channels within the Thames . . .”

So in the broad tidal stretch at least, “fairway” there embraces more than just the main navigable channel; it embraces all marked and/or charted navigable channels.

 

Have just received notice from the Court that "Due to unforeseen circumstances, the hearing on 10 June 2016 can no longer go ahead." We now have to provide new dates to avoid "to assist the court with re-listing this hearing as soon as possible."

[onionbargee]

Within the PLAs jurisdiction, fairway means a regular course or track of shipping, comprising all marked and/or charted navigable channels within the Thames . . .

 

So in the broad tidal stretch at least, fairway there embraces more than just the main navigable channel; it embraces all marked and/or charted navigable channels.

 

Have just received notice from the Court that "Due to unforeseen circumstances, the hearing on 10 June 2016 can no longer go ahead." We now have to provide new dates to avoid "to assist the court with re-listing this hearing as soon as possible."

 

Are you using your own money to fight these cases Nigel ? If so I think we should have a crowd fund to at least pay off some of your costs ?

[matty40s]

Nigel has won plenty off the ShoosmithsBWInc already.

[NigelMoore]

Are you using your own money to fight these cases Nigel ? If so I think we should have a crowd fund to at least pay off some of your costs ?

 

The thought is appreciated, but this is not my case – I am only helping out to the extent that the Court allows - so my only very minor expenditure [in monetary terms] is the occasional train fare and shoe leather. Leigh could doubtless use some help; it is costing him a considerable amount in fees and transcripts, and CaRT may yet try to get the court to demand payment of prior costs in order that he be allowed to continue, and/or to demand Security for Costs.

 

I don’t foresee that happening, but it is a possibility that has already been raised by Mr Stoner as a possible tactic.

 

[onionbargee]

We will have a whip round and get your shoes resoled then ?

[Loafer]

I'd be happy to contribute. Maybe only a tenner, but I'd contribute. I enjoy the posts.

[NigelMoore]

Just in – revised date for the next Case Management Conference in Leigh’s case, following adjournment of the June 10th hearing.

https://www.scribd.com/doc/315692540/Ravennscroft-v-CaRT-Notice-of-New-CMC-Hearing

Now set for 1st September.

Just as well, really, I am still ploughing through the stodgy murk of CaRT’s amended Defence.

[mayalld]

Just in – revised date for the next Case Management Conference in Leigh’s case, following adjournment of the June 10th hearing.

 

https://www.scribd.com/doc/315692540/Ravennscroft-v-CaRT-Notice-of-New-CMC-Hearing

 

Now set for 1st September.

 

Just as well, really, I am still ploughing through the stodgy murk of CaRT’s amended Defence.

 

 

Nigel, as this thread seems to be focussing on the concept of where the "Main Navigable Channel" is, it seems as good a place as any to throw another consideration into the works (or possibly a spanner), prompted by some of the more recent discussions around the legal basis of licencing.

 

It is common ground that a River Registration is required to use a boat on a CRT River Waterway, which is defined as the Main Navigable Channel, but disputed as to the extent of the Main Navigable Channel. If, as I have suggested, the Main Navigable Channel is bank to bank along the principal course of a river, then a River Registration is required even for boats that are at the side and never move. If, as you have suggested, the Main Navigable Channel is (broadly) the middle third, such a boat would not require a River Registration.

 

However that has, hitherto, been considered as the end of the story.

 

Let us now consider the 1976 bye-laws;

 

3 (1) No person shall knowingly cause or permit to be brought, kept let for hire or used on any canal (not being a river waterway) any pleasure boat unless there is then in force in relation to the pleasure boat a pleasure boat licence.

 

Now, at first glance, this is simply not relevant, because we are talking about a boat on a river, but let us look at how the bye-law defines terms;

 

"canal" means any canal or inland navigation belonging to or under the control of the Board and includes any works lands or premises belonging to or under the control of the Board and held or used by them in connection with such canal or inland navigation

 

The word canal is given a specific and broad meaning that goes beyond its ordinary dictionary meaning, and actually encompasses both canals and rivers for the purposes of this bye-law.

 

So.....

 

If only the middle third of the river is the "Main Navigable Channel" that is the "River Waterway" for the purposes of needing 1971 Act Registration, the other two thirds at the edges are within the scope of "canal (not being a river waterway)", and a licence is required.

[Giant]

Now, at first glance, this is simply not relevant, because we are talking about a boat on a river, but let us look at how the bye-law defines terms;

 

"canal" means any canal or inland navigation belonging to or under the control of the Board and includes any works lands or premises belonging to or under the control of the Board and held or used by them in connection with such canal or inland navigation

 

The word canal is given a specific and broad meaning that goes beyond its ordinary dictionary meaning, and actually encompasses both canals and rivers for the purposes of this bye-law.

 

So.....

 

If only the middle third of the river is the "Main Navigable Channel" that is the "River Waterway" for the purposes of needing 1971 Act Registration, the other two thirds at the edges are within the scope of "canal (not being a river waterway)", and a licence is required.

Nigel, as this thread seems to be focussing on the concept of where the "Main Navigable Channel" is, it seems as good a place as any to throw another consideration into the works (or possibly a spanner), prompted by some of the more recent discussions around the legal basis of licencing.

 

I don't see how that advances the debate really. If registration is only required on the main navigable channel, and the MNC is only part of the river, then only that part of the river is an "inland navigation belonging to or under the control of the Board", the area outside the MNC being outside their control since registration is not required there. So we're back to the original dispute over the effective meaning of the main navigable channel.

[Alan de Enfield]

 

I don't see how that advances the debate really. If registration is only required on the main navigable channel, and the MNC is only part of the river, then only that part of the river is an "inland navigation belonging to or under the control of the Board", the area outside the MNC being outside their control since registration is not required there. So we're back to the original dispute over the effective meaning of the main navigable channel.

 

 

Good point - and - if I remember correctly in the dim and distant past some one posted a 'note' from BW saying that they were only responsible for the MNC (it was when the question of dredging was raised).

 

Maybe 'it' works like this :

 

There is a cost to maintain - it is not BW / C&RTs responsibility

Potential to generate income - it is BW / C&RTs responsibility

[Mike Todd]

 

 

Good point - and - if I remember correctly in the dim and distant past some one posted a 'note' from BW saying that they were only responsible for the MNC (it was when the question of dredging was raised).

 

Maybe 'it' works like this :

 

There is a cost to maintain - it is not BW / C&RTs responsibility

Potential to generate income - it is BW / C&RTs responsibility

That BW only had a responsibility to dredge the main third does not, on its own, imply that they did or did not have any other responsibility - or benefit.

[Alan de Enfield]

That BW only had a responsibility to dredge the main third does not, on its own, imply that they did or did not have any other responsibility - or benefit.

 

Can you substantiate your suggestion that only the 'main third' is the main navigable channel, or is the only part C&RT must dredge ?

C&RT seem to suggest that the Main Navigable Channel is bank-to-bank but they only have to dredge a narrow portion of the MNC

 

C&RTs own "Navigation Maintenance Standards" show that they will maintain (for example) a dredged channel 12mts wide x 1.8 metres deep from Cromwell to Gainsborough

 

12 metres is nowhere need a 'third' of much of this stretch of River

 

Shardlow to Meadow Lane Lock is shown to be 'maintained' at 7 metres wide x 1.3 metres deep

Edited June 17, 2016 by Alan de Enfield

[mayalld]

 

I don't see how that advances the debate really. If registration is only required on the main navigable channel, and the MNC is only part of the river, then only that part of the river is an "inland navigation belonging to or under the control of the Board", the area outside the MNC being outside their control since registration is not required there. So we're back to the original dispute over the effective meaning of the main navigable channel.

 

I don't see that this applies.

 

Up until 1971, they had no powers to require a registration at all, and in that year they were empowered to require registration in the MNC.

 

Before that, there had been no mention as to the extent of their powers over rivers, and we must assume that the extent of their remit is the extent of the remit of (in this case) The Trent Navigation Company, whose undertakings were transferred by the Transport Act 1947.

 

Indeed, the fact that the 1971 Act mentions the MNC tells us that the writ of the Navigation Authority runs wider in respect of its other powers.

 

So, if the argument about the MNC being the middle third holds true, the position as to licencing etc is that from 1971 to 1976 there was a period when a registration was only required if you entered the fairway, but from 1976 a licence was required outside the fairway.

 

As the number of boats that remain permanently in the fairway is approximately zero, and as a licence is always an acceptable alternative to a registration, it could be that there has been nobody legitimately eligible for a River Registration for the past 40 years, and that BW got it right when they called it a Rivers Only Licence!

[Alan de Enfield]

Certainly in the 1975 Bye Laws they had the powers to issue 'Pleasure Boat Licences"

 

Bye-Laws
1. These Bye-laws shall apply to every canal or inland navigation in England and Wales belonging to or under the control of the British Waterways Board. These Bye-laws shall come into operation at the expiration of twenty-eight days after their confirmation by the Secretary of State.

 

“pleasure boat” includes any yacht, launch, randan, wherry, tender, skiff, gig, dinghy, shallop, punt, canoe, float or other ship, boat, vessel or craft (including amphibious craft and hovercraft) but does not include any commercial vessel or houseboat.
“pleasure boat licence” means a licence issued in writing by the Board to the owner of a pleasure boat enabling him to navigate such boat on a canal.

Display of Licences Display of licences 3.

(1) The owner of a pleasure boat or commercial vessel shall not knowingly cause or permit to be used on a canal any pleasure boat or commercial vessel in respect of which a pleasure boat licence or commercial vessel licence has been issued unless the licence for the time being in force is displayed on the pleasure boat or commercial vessel in such a manner and position as to be clearly visible from outside the pleasure boat or commercial vessel at all times.

(2) No person shall knowingly cause or permit to be concealed a pleasure boat licence or commercial vessel licence required to be displayed on a pleasure boat or commercial vessel in accordance with this Bye-law

[mayalld]

Certainly in the 1975 Bye Laws they had the powers to issue 'Pleasure Boat Licences"

 

Bye-Laws

1. These Bye-laws shall apply to every canal or inland navigation in England and Wales belonging to or under the control of the British Waterways Board. These Bye-laws shall come into operation at the expiration of twenty-eight days after their confirmation by the Secretary of State.

 

pleasure boat includes any yacht, launch, randan, wherry, tender, skiff, gig, dinghy, shallop, punt, canoe, float or other ship, boat, vessel or craft (including amphibious craft and hovercraft) but does not include any commercial vessel or houseboat.

pleasure boat licence means a licence issued in writing by the Board to the owner of a pleasure boat enabling him to navigate such boat on a canal.

Display of Licences Display of licences 3.

(1) The owner of a pleasure boat or commercial vessel shall not knowingly cause or permit to be used on a canal any pleasure boat or commercial vessel in respect of which a pleasure boat licence or commercial vessel licence has been issued unless the licence for the time being in force is displayed on the pleasure boat or commercial vessel in such a manner and position as to be clearly visible from outside the pleasure boat or commercial vessel at all times.

(2) No person shall knowingly cause or permit to be concealed a pleasure boat licence or commercial vessel licence required to be displayed on a pleasure boat or commercial vessel in accordance with this Bye-law

Probably best to leave the 1975 bye laws out of it. The 1976 bye laws repealed and replaced them.

[Mike Todd]

 

Can you substantiate your suggestion that only the 'main third' is the main navigable channel, or is the only part C&RT must dredge ?

C&RT seem to suggest that the Main Navigable Channel is bank-to-bank but they only have to dredge a narrow portion of the MNC

 

C&RTs own "Navigation Maintenance Standards" show that they will maintain (for example) a dredged channel 12mts wide x 1.8 metres deep from Cromwell to Gainsborough

 

12 metres is nowhere need a 'third' of much of this stretch of River

 

Shardlow to Meadow Lane Lock is shown to be 'maintained' at 7 metres wide x 1.3 metres deep

I did not suggest it all! I was responding to a post that did do so but I was pointing out that even if it were true id did not support the conclusion that was being sought.

[NigelMoore]

 

The word canal is given a specific and broad meaning that goes beyond its ordinary dictionary meaning, and actually encompasses both canals and rivers for the purposes of this bye-law.

 

So.....

 

If only the middle third of the river is the "Main Navigable Channel" that is the "River Waterway" for the purposes of needing 1971 Act Registration, the other two thirds at the edges are within the scope of "canal (not being a river waterway)", and a licence is required.

 

Bravo! While this essentially relates to one of the arguments CaRT are already putting forward, you have not only put it far better and clearer than they have, you have .had the courage to define the logical outcome where they have avoided it. It is definitely superior in force, and I shall be most interested to see whether they will adopt it [as they have some of your earlier lines of argument on this subject].

 

Boiled down to its essence, however, it is still a line of argument categorically rejected by Hildyard J in his 2012 Judgment, which means that CaRT [having declined to appeal it] are precluded from trying it on afresh – it would entail attempted re-litigation.

 

Setting that aside, however - because we are not constrained by that limitation on CaRT – the argument is worthy of a response.

 

It founders, in my opinion, on two grounds at least: one, a matter of reductio ad absurdum when the effect is viewed within context of all the relevant legislation; another, a matter of the very definition on which you ground the argument.

 

Taking the ‘common sense’ aspect first – if what you claim was correct [and as I said, it is effectively what CaRT are claiming as an “in the alternative” argument], then the owners of all those boats that were kept permanently moored to the banks of the affected rivers, never actually using the main navigable channel or any part of the river at all, would be forced to pay 40% more for their 'relevant consent' to be there than those using the full facility of the river and its locks etc. Statute should not be construed so as to make the effect of it a matter of ridicule - and the practical effect of the argument would instead, therefore, be what CaRT argue, i.e. that implied repeal of the 1971 Act has taken place. [No such thing has taken place, of course, because the 1995 Act specifically recognses the persistence of the pleasure boat certificates].

 

Crucial to the failure of the argument, however, is the very section on “Interpretation” which you have cited as to the meaning of “canal” [which is here defined exactly as the term “inland waterways” is defined in the 1971 Act and others].

 

The heading begins by qualifying all the following definitions as to meaning, by the words: “except so far as the context otherwise requires”. Setting the usage of the word “canal” in the immediate context of granting permission for a boat to navigate thereon, it has to be immediately obvious that the byelaw cannot be rationally applied to a great deal of what the word “canal” [as with “inland waterways”] is said to mean.

 

A permit is unlikely to be granted allowing boats to navigate through CaRT’s buildings and parking lots for example, despite the fact that those are included within the cited definition. Such ‘common sense’ absurdities aside, the context of the use to be permitted forces a limitation to the definition in that respect, and the persistence of the public right of navigation over the rivers would need to be explicitly over-ridden for any licensing scheme to be imposable on ANY of the navigable channels, main or secondary [as the 1968 Act did with the conferred PRN’s over the canals]. This is why Hildyard J recognised the persistence of the legislation's care respecting minimising interference with the PRN's.

 

BW were always sensitive to this fact, and to the distinction between licences and registrations – the EoG Moorings ‘informative’, for all the attempted twists of logic employed therein, does at least clarify this aspect clearly – and the current insistence within the pleadings on calling all ‘relevant consents’ [including pleasure boat certificates for the river waterways] “licences”, is directly counter to the legal fact.

 

The uncomfortable fact is, that included within the "canal" [as defined without taking context into account], are sections of tidal rivers - the Trent between Cromwell Lock and Gainsborough being one example. Yet the 1975 Act empowering the licensing of vessels through the medium of byelaws such as the one cited, expressly forbids the application of any such byelaws to tidal waters.

 

What you have done is to be open as to the rebuttable logical conclusion, whereas CaRT have swerved the issue and instead concluded that the river registration scheme of 1971 has been effectively abolished [more in tune with your conclusions in #463].

 

 

I don't see how that advances the debate really. If registration is only required on the main navigable channel, and the MNC is only part of the river, then only that part of the river is an "inland navigation belonging to or under the control of the Board", the area outside the MNC being outside their control since registration is not required there. So we're back to the original dispute over the effective meaning of the main navigable channel.

 

This is wrong; both Mike Todd [#461] and mayalld [#463] are correct in understanding that CaRT’s responsibilities extend over the whole navigation; it is only the registration scheme that is limited to the main navigable channel. Byelaws, for example, had always applied to usage of the rivers long before registration was introduced – introduced, in no small part because of the difficulties claimed by BW in enforcing byelaw adherence against boats that were unidentifiable due to lack of any ID number that could be traced to an owner.

[NigelMoore]

 

Up until 1971, they had no powers to require a registration at all, and in that year they were empowered to require registration in the MNC.

 

I agree – but how does that gel with the belief that s.43 already empowered them to set whatever conditions they liked on whatever waterways they controlled?

 

Indeed, the fact that the 1971 Act mentions the MNC tells us that the writ of the Navigation Authority runs wider in respect of its other powers.

 

And – turning it the other way around - the fact that control of the whole of the rivers vis-a-vis byelaws etc remained, emphasises the point that only a portion of the navigable rivers was singled out for the registration scheme [the byelaws specifically imposed regulation of movement both within and without the main navigable channel].

[NigelMoore]

Probably best to leave the 1975 bye laws out of it. The 1976 bye laws repealed and replaced them.

 

Quite so – and Alan, the 1975 version did NOT confirm that they had “powers to issue pleasure boat licences”.

 

If you read it carefully, it simply provided that IF you held a licence for pleasure or commercial craft, then you had to display it prominently. Nothing whatever to say that you had to have one in the first place [which they obviously realised very swiftly, however belatedly].

 

It would be interesting to look through the Parliamentary material for the 1975 Act comparing that with the preparation of the 1975 Byelaw, to work out the relevant chronology of drafting and to clarify the intent.

 

[NigelMoore]

To keep people up to date, here is the transcript of proceedings in CaRT’s Strike-Out Application hearing earlier this year –

https://www.scribd.com/document/319017943/Ravenscroft-v-Canal-and-Rivers-Trust-23-03-16-Proc

The Case Management hearing will finally [we hope] be heard on September first.

[Mike Todd]

To keep people up to date, here is the transcript of proceedings in CaRT’s Strike-Out Application hearing earlier this year –

 

https://www.scribd.com/document/319017943/Ravenscroft-v-Canal-and-Rivers-Trust-23-03-16-Proc

 

The Case Management hearing will finally [we hope] be heard on September first.

 

To save me trawling back many pages to see if you have already done this, but can you say what was your reaction to the hearing? I found it quite fascinating, but then I am a procedural nerd!

[NigelMoore]

I was delighted for Leigh, who had felt as the day went on that the case would be struck out after all – largely I suspect, because the QC, as is his usual tactic, took up so much of the time belabouring his points while trying to leave room for face-saving if needed. Leigh couldn’t see where we were getting a look in.

For myself, though, I felt it a disgraceful waste of time in a desperate attempt to throw the whole thing out – which was never going to happen. They DID succeed in getting the Statement of Case struck out – but really, how did that help them? As the Master said: it was not needed at all at this stage, and the material could still be introduced when appropriate later down the line.

As for all the guff about being incapable of getting to grips with a morass of material, without a nice neat summary, they had already understood the bones of the case from the summaries I had provided within the Statement already.

The Master had little room to manoeuvre according the strict rules of the game, but he displayed excellent judgment in suggesting, off his own bat, ways of redrafting the Claim Form to fit the rules, such that the case could proceed anyway. It has to be said though, that in all previous cases where I have supplied similarly prodigious amounts of material and supporting evidence, there has been no quibble raised - so to complain about it this time around was just silly, adding further to the bills raised against CaRT with absolutely NO beneficial outcome for them.

 

Of course, IF they had succeeded in having the whole case slung out, that would have been a different story; IF they had succeeded in having my assistance barred, they would doubtless have thought the effort worthwhile, but I would always have been able to help to the best of my ability behind the scenes anyway, with the raw material already fleshed out in the Statement. It would have been the oral presentation in Court that Leigh would have been severely disadvantaged over.

 

I do wonder though, if CaRT had ever properly sat down to think this through; would they really have preferred Tony, for example, to step in as litigation friend instead of my calm and gentle self?

The only concern I have, is that I may have since too drastically pared down the Particulars of Claim, in a way that leaves it open to CaRT to object to bringing up material that had been in the Statement, but not reproduced in the amended Particulars. We’ll see; I had to demonstrate to the Master that we were willing to follow his guidance.

The whole procedural palaver of dealing with CaRT’s futile moans does mean that instead of having had the case heard and disposed of by now, we are still at the starting blocks. That is more than a little annoying. On the other hand, we now have so much more ammunition and argument having had the extra time to debate the issues and research them, so we are in a better position. Swings and roundabouts.

[Mike Todd]

I was delighted for Leigh, who had felt as the day went on that the case would be struck out after all – largely I suspect, because the QC, as is his usual tactic, took up so much of the time belabouring his points while trying to leave room for face-saving if needed. Leigh couldn’t see where we were getting a look in.

 

For myself, though, I felt it a disgraceful waste of time in a desperate attempt to throw the whole thing out – which was never going to happen. They DID succeed in getting the Statement of Case struck out – but really, how did that help them? As the Master said: it was not needed at all at this stage, and the material could still be introduced when appropriate later down the line.

 

As for all the guff about being incapable of getting to grips with a morass of material, without a nice neat summary, they had already understood the bones of the case from the summaries I had provided within the Statement already.

 

The Master had little room to manoeuvre according the strict rules of the game, but he displayed excellent judgment in suggesting, off his own bat, ways of redrafting the Claim Form to fit the rules, such that the case could proceed anyway. It has to be said though, that in all previous cases where I have supplied similarly prodigious amounts of material and supporting evidence, there has been no quibble raised - so to complain about it this time around was just silly, adding further to the bills raised against CaRT with absolutely NO beneficial outcome for them.

 

Of course, IF they had succeeded in having the whole case slung out, that would have been a different story; IF they had succeeded in having my assistance barred, they would doubtless have thought the effort worthwhile, but I would always have been able to help to the best of my ability behind the scenes anyway, with the raw material already fleshed out in the Statement. It would have been the oral presentation in Court that Leigh would have been severely disadvantaged over.

 

I do wonder though, if CaRT had ever properly sat down to think this through; would they really have preferred Tony, for example, to step in as litigation friend instead of my calm and gentle self?

 

The only concern I have, is that I may have since too drastically pared down the Particulars of Claim, in a way that leaves it open to CaRT to object to bringing up material that had been in the Statement, but not reproduced in the amended Particulars. We’ll see; I had to demonstrate to the Master that we were willing to follow his guidance.

 

The whole procedural palaver of dealing with CaRT’s futile moans does mean that instead of having had the case heard and disposed of by now, we are still at the starting blocks. That is more than a little annoying. On the other hand, we now have so much more ammunition and argument having had the extra time to debate the issues and research them, so we are in a better position. Swings and roundabouts.

 

how long were you in court?

[NigelMoore]

how long were you in court?

A couple of hours.

[Mike Todd]

A couple of hours.

Sounds quite lengthy for a directions hearing/strike out application but I'm no expert.