I am beginning to be concerned

[rufus2015]

If they refuse to answer if I have moved enough or not then I don't think they have a leg to stand on. ( they are providing me with an answer to this so far ) that section you quoted does not say I have to provide any evidence of my movements to satisfy the board , it says will be used, not is being or has been.

[Allan(nb Albert)]

 

C&RT have to provide "nothing" to you.

According to the law (1995 Act) it is the obligation of the boater "to satisfy the board"

 

(i)the Board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; or

 

(ii)the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.

 

Your stance ("I have told the enforcement officer ....") would appear to be as aggressive as C&RTs

Not quite Alan.

 

There is a difference between (i) and (ii) as you conveniently highlighted in red!

 

The obligation (of a licence applicant) to satisfy the board only exists in (ii).

 

As someone with a 'home mooring' who has been granted a licence on that basis it would be up to the board to demonstrate why Dean no longer has a 'home mooring'.

 

However, it is rather a side issue as the trust were not threatening him with breach of the 1995 Act but rather contravention of its terms and conditions which attempt to override that Act

Edited August 17, 2015 by Allan(nb Albert)

[NilesMI]

However, it is rather a side issue as the trust were not threatening him with breach of the 1995 Act but rather contravention of its terms and conditions which attempt to override that Act

The licence T&C would attempt to override the Act if they required the licencee to do something which was specifically prohibited by the Act, or if they denied the licencee somthing which was specifically provided for in the Act.

 

The Act does not say anything about how long a boat with a home mooring may remain in the same place when not at its home mooring.

 

I understand there is a fundamentalist view that because no time limit is specified in the 1995 Act, any time limit specified in licence T&C cannot be enforced. But that is to ignore the powers given to CRT as successor to BW, in another Act, to issue licences subject to terms and conditions, as they see fit. So I tend to the view that as a 14 day limit is not specifically ruled out by the 1995 Act, and it would be very difficult to challenge on the basis that it is disproportionate, unreasonable or discriminatory, it almost certainly is enforceable.

[ROBDEN]

Looks like I was wrong...again.

 

I've always thought that the burden of proof was on the accuser.

 

Rob....

[Allan(nb Albert)]

The licence T&C would attempt to override the Act if they required the licencee to do something which was specifically prohibited by the Act, or if they denied the licencee somthing which was specifically provided for in the Act.

 

The Act does not say anything about how long a boat with a home mooring may remain in the same place when not at its home mooring.

 

I understand there is a fundamentalist view that because no time limit is specified in the 1995 Act, any time limit specified in licence T&C cannot be enforced. But that is to ignore the powers given to CRT as successor to BW, in another Act, to issue licences subject to terms and conditions, as they see fit. So I tend to the view that as a 14 day limit is not specifically ruled out by the 1995 Act, and it would be very difficult to challenge on the basis that it is disproportionate, unreasonable or discriminatory, it almost certainly is enforceable.

I think you will find that BW attempted to impose mooring restrictions in the Bill which became the 1995 Act.

 

However BW were unable to convince that powers they already had were insufficient.

[jenlyn]

The licence T&C would attempt to override the Act if they required the licencee to do something which was specifically prohibited by the Act, or if they denied the licencee somthing which was specifically provided for in the Act.

 

The Act does not say anything about how long a boat with a home mooring may remain in the same place when not at its home mooring.

 

I understand there is a fundamentalist view that because no time limit is specified in the 1995 Act, any time limit specified in licence T&C cannot be enforced. But that is to ignore the powers given to CRT as successor to BW, in another Act, to issue licences subject to terms and conditions, as they see fit. So I tend to the view that as a 14 day limit is not specifically ruled out by the 1995 Act, and it would be very difficult to challenge on the basis that it is disproportionate, unreasonable or discriminatory, it almost certainly is enforceable.

Sort of makes sense really

Edited August 17, 2015 by jenlyn

[NilesMI]

However BW were unable to convince that powers they already had were insufficient.

So Parliament did not think extra powers were required. Maybe because sufficient powers to restrict mooring were already available to BW by varying the licence T&C as they saw fit?

 

Perhaps BW wanted something additional on the face of the Bill, but the fact they didn't get it doesn't mean they can't regulate mooring by other means.

 

The 1995 Act does not mention BSS either. Does that mean CRT cannot make BSS a requirement in their licence T&C?

[Tony Dunkley]

So Parliament did not think extra powers were required. Maybe because sufficient powers to restrict mooring were already available to BW by varying the licence T&C as they saw fit?

 

Perhaps BW wanted something additional on the face of the Bill, but the fact they didn't get it doesn't mean they can't regulate mooring by other means.

 

The 1995 Act does not mention BSS either. Does that mean CRT cannot make BSS a requirement in their licence T&C?

 

True, it doesn't mention the BSS specifically, but 17[3](a) covers it.

[Alan de Enfield]

Not quite Alan.

 

There is a difference between (i) and (ii) as you conveniently highlighted in red!

 

The obligation (of a licence applicant) to satisfy the board only exists in (ii).

 

As someone with a 'home mooring' who has been granted a licence on that basis it would be up to the board to demonstrate why Dean no longer has a 'home mooring'.

 

However, it is rather a side issue as the trust were not threatening him with breach of the 1995 Act but rather contravention of its terms and conditions which attempt to override that Act

 

Whilst I basically agree with your comments, what you appear to have missed is that for boats WITH a home mooring, the board "must be satisfied .........". The onus is on the boater to satisfy the board that a home mooring is available.

 

The point I was making is that for boats with EITHER a home mooring, or without a home mooring, whilst the criteria are different, the boater is responsible for informing and satisfying the board.

 

There is no obligation (under the Act) for C&RT to explain why they are not satisfied, only to inform you when they are satisfied, which they do by issuing a licence.

[NilesMI]

 

The point I was making is that for boats with EITHER a home mooring, or without a home mooring, whilst the criteria are different, the boater is responsible for informing and satisfying the board.

I hadn't missed that point. I agree that because the 1995 Act specifically requires it, the onus is on the applicant for a licence to satisfy the trust.

 

 

True, it doesn't mention the BSS specifically, but 17[3](a) covers it.

Exactly.

 

Just as, in respect of boats with a home mooring, the 1995 Act doesn't mention a 14 day mooring limit specifically, s.43 of the Transport Act 1962 covers it.

[Alan de Enfield]

I hadn't missed that point. I agree that because the 1995 Act specifically requires it, the onus is on the applicant for a licence to satisfy the trust.

 

 

 

My response was to Allan (Albert) not to yourself.

The reply was in answer to the point :-

 

The obligation (of a licence applicant) to satisfy the board only exists in (ii).

 

Which as both you and I agree is wrong.

 

[magpie patrick]

But they are different obligations in 1) the board must be satisfied that the licencee has "a mooring or other place where the vessel can reasonably be kept and may lawfully be left..."

 

"Can reasonably be kept" presumably precludes declaring a mooring that would require sea passage or craning out to get to. Before a mooring was a requirement this question was still asked and "at the back of the garage" wasn't an adequate answer, even though dad's boat was a car top dinghy.

[Alan de Enfield]

But they are different obligations in 1) the board must be satisfied that the licencee has "a mooring or other place where the vessel can reasonably be kept and may lawfully be left..."

 

 

 

I fully agree that they are different obligations - however - there is still an obligation ( in both I & ii) for the boater to satisfy the board. That is the only point I am trying to make.

 

The board has no other obligation to the boater*, other than to issue a licence.

 

*Apart from, obviously, providing a waterway, etc. etc.

[Tony Dunkley]

Exactly.

 

Just as, in respect of boats with a home mooring, the 1995 Act doesn't mention a 14 day mooring limit specifically, s.43 of the Transport Act 1962 covers it.

 

No, I was referring to S17[3](a) of the 1995 Act. The 1962 Act is an irrelevancy in this matter, although much loved, and regularly aired, by the habitual logic manglers in the BW / C&RT Legal Dept.

[NilesMI]

No, I was referring to S17[3](a) of the 1995 Act. The 1962 Act is an irrelevancy in this matter, although much loved, and regularly aired, by the habitual logic manglers in the BW / C&RT Legal Dept.

I look forward to reading your explanation of why, exactly, the 1962 Act is irrelevant.

[Athy]

I was sad when we decided to give up boasting.

Really? I always thought that you were content to be a modest fellow.

[MtB]

Really? I always thought that you were content to be a modest fellow.

 

 

This site is the most brilliant sauce of typos isn't it?!

(Just to hand you an open goal, Mr Athy )

[Athy]

 

 

This site is the most brilliant sauce of typos isn't it?!

 

Yes. Some of us relish it.

[Alan de Enfield]

Yes. Some of us relish it.

 

Back to Branston again !!

[MtB]

Very god, keep 'em coming!

[Athy]

Very god, keep 'em coming!

Christ, not another typo?

[NigelMoore]

I look forward to reading your explanation of why, exactly, the 1962 Act is irrelevant.

 

Actually, a more pertinent explanation would account for the relevancy of all subsequent legislation - granting rights to charge and condition use of the waterways - if the ‘received’ interpretation of the 1962 Act is accepted.

 

The only way the subsequent private Acts would make sense [if accepting the premise], would be if they were all considered efforts by BW to promote limitations to their otherwise unfettered powers under the public Act.

 

Somehow, such an explanation simply does not ring true, so I too, look forward to anybody’s alternate explanation that properly and logically addresses the point.

 

The 1962 Act IS of course relevant; apropos of a previous suggestion that CaRT specific legislation amends/extends their powers to set whatever conditions they like, the Transfer Order of 2012 specifically amended the 1962 Act to read so that CaRT too, were “subject to” the same limitations in this respect as were BW before them.

[nb Innisfree]

Really? I always thought that you were content to be a modest fellow.

Ha, just spotted that, I won't edit, shame to.

[Emerald Fox]

Christ, not another typo?

 

That was the Son of all Typos.

[nb Innisfree]

 

That was the Son of all Typos.

We've had the Father and Son of typos.