CRT v Andy Wingfield Update

[Dave Clinton]

Why don't you go and do what is basic research then?

 

...on behalf of all boaters

[MtB]

Same reason as you don't...

[Bod]

 

Don't worry Bod, if you had a Houseboat Certificate, you'd know about it. They're a completely different thing, issued only subject to having a concurrent residential mooring contract, and as far as I know there are nowadays only about 60 to 70 of them in force. This practice of claiming that a boat is a houseboat when it suits them to do so is another of BW / C&RT's nasty little ploys, used as a matter of routine to accompany Section 8 Notices, and as Nigel says, must be disputed from the outset of any action or proceedings.

Am I correct in thinking, that houseboats have a very different set of terms & conditions.

Which can make them easier to remove.

 

Bod

[Higgs]

From the CRT site.

 

Section 13 of the British Waterways Act 1971 states that it is unlawful to moor or keep any houseboat (defined mainly as any vessel not used for navigation) on the Trust’s waterways without a valid licence. It further gives the Trust the power to remove or (ultimately) demolish a houseboat if, following proper notice, the owner does not first remove it.

 

 

It does say "kept on the Trust's waterways". I like that bit. It must mean that vessels kept off the Trust's waterways do not require a licence. Without the NAA, that means all private marinas. The vessel, being removed from the Trust's waterway, by CRT's definition of the waterways act, is not required to be licenced.

 

We would all like to have our cake and eat it, sometimes. It's a way of life for CRT.

Edited August 29, 2015 by Higgs

[cotswoldsman]

Am I correct in thinking, that houseboats have a very different set of terms & conditions.

Which can make them easier to remove.

 

Bod

 

They need a section 13 but what CRT do now with Livaboards is serve a Section 8 and 13 at the same time

[Dave Clinton]

Same reason as you don't...

I already have.

[Higgs]

 

They need a section 13 but what CRT do now with Livaboards is serve a Section 8 and 13 at the same time

 

 

Serving a section 13 on a boat that is not houseboat-licensed must make the whole thing a non starter, section 8 included. If there is a specific category of houseboat licence and that is not what a boat has, then, it is not licenced as a houseboat. I suppose I could willy nilly define my home mooring declaration as possibly CC.

 

Could call the cat, a dog.

Edited August 29, 2015 by Higgs

[MtB]

I already have.

 

GFY

 

[NigelMoore]

 

 

Serving a section 13 on a boat that is not houseboat-licensed must make the whole thing a non starter, section 8 included. If there is a specific category of houseboat licence and that is not what a boat has, then, it is not licenced as a houseboat. I suppose I could willy nilly define my home mooring declaration as possibly CC.

 

Could call the cat, a dog.

 

One would think so. I argued this in my case, because the relevant definitions are mutually exclusive – you CANNOT be one, if you are the other. But yes, to use your expression, as it suits them they “call the cat a dog” and I have never heard either professional counsel or judiciary demur at the tactic.

 

CaRT’s counsel started off with [an highly inaccurate] analysis of the judgments in my case, because they had been cited in the Skeleton Argument and authorities of Andy’s counsel.

 

He correctly observed that in my case BW had not insisted upon the “wrongfully classified” argument, such that it was of no relevance to Andy’s situation. There, he insisted upon classifying Andy’s boat as properly having a Houseboat Certificate, despite in fact having a Pleasure Boat Certificate.

 

MtB – Bod is correct in post #28, when thinking that the T&C’s are different. Importantly, in distinct contrast to the Pleasure Boat, CaRT may modify and increase the applicable T&C’s as they wish, and those ARE tied to the Certificate.

 

It is possible and right for us to challenge the unilateral imposition of arbitrary T&C’s for our pleasure boat licences, and possible and right for us to deny that agreement and adherence to T&C’s is bound up with the right to the licence.

 

No such challenges are open to those with a Houseboat Certificate.

 

What also arises – very rarely to date, it is admitted, is the geographic applicability of the Houseboat legislation.

 

Pleasure Boat “relevant consents” are not universally required, which was the core issue of mine that was addressed by the 2012 Hildyard judgment. Obviously, they are not required off CaRT waters [cue Higg’s point], but neither are they required anywhere on unamended public navigable rivers. Only the PB Certificates are required, on those rivers where the PRN has been appropriately amended under the ’71 Act, and those certificates apply only to the main navigable channel of the scheduled rivers. So there is in fact ample scope for some boaters who do not wish to use the boat as anything other than a “harbour sailor” to avoid the need for a relevant consent. Hence: where such relevant consents are NOT required, s.8 is inapplicable.

 

No such limitation applies to Houseboats.

[Higgs]

 

 

It is possible and right for us to challenge the unilateral imposition of arbitrary T&C’s for our pleasure boat licences, and possible and right for us to deny that agreement and adherence to T&C’s is bound up with the right to the licence.

 

No such challenges are open to those with a Houseboat Certificate.

 

What also arises – very rarely to date, it is admitted, is the geographic applicability of the Houseboat legislation.

 

Pleasure Boat “relevant consents” are not universally required, which was the core issue of mine that was addressed by the 2012 Hildyard judgment. Obviously, they are not required off CaRT waters [cue Higg’s point], but neither are they required anywhere on unamended public navigable rivers. Only the PB Certificates are required, on those rivers where the PRN has been appropriately amended under the ’71 Act, and those certificates apply only to the main navigable channel of the scheduled rivers. So there is in fact ample scope for some boaters who do not wish to use the boat as anything other than a “harbour sailor” to avoid the need for a relevant consent. Hence: where such relevant consents are NOT required, s.8 is inapplicable.

 

No such limitation applies to Houseboats.

 

 

To avoid all boats becoming classed as houseboat and becoming part of a catch-all category arising from an abolishing of the leisure boat licence, how easy would it be for CRT to achieve this aim of declassifying the leisure boat?

Edited August 29, 2015 by Higgs

[Bod]

Nigel

My reading of the 1971 BW act.

The Act only applies to pleasure boats on river waterways as defined in the schedule. But houseboats on the inland waterways.

A houseboat is specifically not a vessel used for "Bona Fide" for navigation. i.e. A licence for a boat without a home mooring, requires it to be used "Bona Fide for navigation", therefore cannot by definition be a houseboat.

 

Bod

 

https://canalrivertrust.org.uk/media/library/2060.pdf

 

Link to 1971 act on C&RT website.

 

ED to add link

Edited August 29, 2015 by Bod

[NigelMoore]

 

 

So do CRT argue the boat was incorrectly licensed as a pleasure boat then, when it had a pleasure boat licence?

 

Yes.

 

"JUDGE PUGSLEY: Yes, well let us get the position in the factual context that presents in this case. Did the defendant ever have a houseboat certificate?

 

MR. FOWLES: Yes, your Honour. Well, no, that is not quite right. The position is as follows. Until 2010, Mr. Wingfield had a permanent mooring and, therefore, he was able to obtain a houseboat certificate.

 

JUDGE PUGSLEY: Yes.

 

MR. FOWLES: He lost his permanent mooring around 2010. Thereafter, he obtained a different kind of licence – I think it was a pleasure boat certificate – on the basis that what he was doing was continuous cruising. He was using the boat bona fide for navigation. So, in the period between about 2010 and February 2013, he had this pleasure boat certificate and that, as I say, was premised on the idea that he was continuously cruising. Now, I referred to it as a pleasure boat certificate because it was called a pleasure boat certificate because that was what was assumed. It was actually a houseboat certificate on the basis of continuous cruising." [my bold]

[magnetman]

 

 

There is one reason and one only, for anyone to want a Houseboat Certificate: if you genuinely ARE a static houseboat on a recognised BW/CaRT residential mooring, then you OUGHT to benefit from the Statutory provisions within the 1971 Act, whereby you gain a measure of security of tenure, inclusive of some ownership of the transferable value of the boat/mooring combination.

 

Even then, however, you need to be aware of CaRT plans - long since set in train to deny and abolish this sole benefit to the Certificate, via [yet again] amended T&Cs.

 

I thought CRT or BW had done away with the transferability of residential moorings already. I am on a CRT residential mooring and a houseboat cert does look interesting except I have a cruising boat so possibly not applicable anyway.

[MtB]

Nigel

My reading of the 1971 BW act.

The Act only applies to pleasure boats on river waterways as defined in the schedule. But houseboats on the inland waterways.

A houseboat is specifically not a vessel used for "Bona Fide" for navigation. i.e. A licence for a boat without a home mooring, requires it to be used "Bona Fide for navigation", therefore cannot by definition be a houseboat.

 

Bod

 

https://canalrivertrust.org.uk/media/library/2060.pdf

 

Link to 1971 act on C&RT website.

 

ED to add link

 

Is there not a distinction to be drawn between 'is' and 'used for'?

 

I've seen a chisel used as a screwdriver, but it remains a chisel.

[magnetman]

A houseboat can not have a means of self propulsion afaik

[NigelMoore]

A houseboat is specifically not a vessel used for "Bona Fide" for navigation. i.e. A licence for a boat without a home mooring, requires it to be used "Bona Fide for navigation", therefore cannot by definition be a houseboat.

 

Ahh, but you see Bod, by CaRT logic once you have failed to conform to what they define as "bona fide for navigation" you automatically become NOT a pleasure boat under the 1971 definition. Therefore, you become a houseboat.

 

This debate highlights yet another example of the "cake and eat it" mentality that imbues CaRT thinking. In fact, the 1971 definitions as to type of vessel properly apply to the designed purpose of the vessel. That remains a constant regardless of whether the boat is used for its designed purpose [to navigate] or not.

 

The way CaRT seek to construe the legislation, boats would be re-classifiable from one to t'other on a fortnightly basis, according to whether they were moored up or moving. All marina-bound boats would be houseboats most of the year, except for their annual trip to the Dog & Duck - except, again, they would not, because the legislation actually works the other way around for genuine houseboats: once you begin navigating, a Houseboat Certificate becomes DEEMED a Pleasure Boat Licence/Certificate for so long as you continue navigating.

[LoneWolf]

 

Yes.

 

"JUDGE PUGSLEY: Yes, well let us get the position in the factual context that presents in this case. Did the defendant ever have a houseboat certificate?

 

MR. FOWLES: Yes, your Honour. Well, no, that is not quite right. The position is as follows. Until 2010, Mr. Wingfield had a permanent mooring and, therefore, he was able to obtain a houseboat certificate.

 

JUDGE PUGSLEY: Yes.

 

MR. FOWLES: He lost his permanent mooring around 2010. Thereafter, he obtained a different kind of licence – I think it was a pleasure boat certificate – on the basis that what he was doing was continuous cruising. He was using the boat bona fide for navigation. So, in the period between about 2010 and February 2013, he had this pleasure boat certificate and that, as I say, was premised on the idea that he was continuously cruising. Now, I referred to it as a pleasure boat certificate because it was called a pleasure boat certificate because that was what was assumed. It was actually a houseboat certificate on the basis of continuous cruising." [my bold]

 

disingenuous little ****s aren't they

[NigelMoore]

 

disingenuous little ****s aren't they

 

Just wait until you read the legislative analysis supporting the nonsense.

[Bod]

Have any parts of the 1971 act been changed by later acts?

 

Bod

[LoneWolf]

 

Just wait until you read the legislative analysis supporting the nonsense.

 

err....cant wait

 

 

i'm glad we're doing this. I'm also glad there are people like you & Tony around

[Higgs]

A houseboat can not have a means of self propulsion afaik

 

I think that is HMRC's definition. CRT and HMRC do not define houseboat in the same way.

 

 

Page 1of 1

HOUSEBOAT CERTIFICATES INFORMATION, May 2014

1. What is the definition of a Houseboat?

A Houseboat is defined as a boat whose predominant use is for a purpose other than navigation and which, if required for the purpose, has planning permission, for the site where it is moored. A Houseboat may be used for navigation from time to time provided it does not become its predominant use. Houseboat Certificates are generally associated with a particular Canal & River Trust long term mooring permit and carry with them a limited right of assignment of the mooring permit.

Note that this is not the same the definition used by HMRC for VAT purposes1

2. What’s the difference between a standard Pleasure Boat Licence and a Houseboat Certificate

These are alternative forms of licence for keeping a boat on our waterways. The terms and conditions – i.e. your obligations and ours – are essentially the same. You may opt for a houseboat certificate if the predominant use of your boat is NOT for cruising – for example, it is your home and you keep it on a long term mooring.

The main reason why you might want to consider a Houseboat Certificate instead of a standard licence is that, providing you hold a permit issued by the Trust for a long term residential mooring, you gain a limited right of assignment of the permit as and when you decide to sell your boat. The permit and Houseboat Certificate must run concurrently with the same expiry dates.

3. Tell me more about assignability of mooring permits

Long term mooring agreements are specific to an individual, not to a particular boat. This applies widely and not only on Canal & River Trust moorings.

The 1971 and 1995 Acts enable a licence holder to assign the unexpired portion of their Houseboat Certificate to the new owner of the boat when it is sold, subject to our consent. This means that if you sell your boat with (say) three months licence and mooring permit left, the new owner can make use of these. We can withhold consent under certain conditions – for example, if you or the new owner has a history of not complying with licence terms. The conditions are listed in the mooring agreement2

Over many years, it was our practice to allow assignment not only until the expiry date, but then to also permit the new owner to renew, thus enabling a succession of owners to sell a boat at its mooring. This was more generous than the provisions contained in the statute (which provides for assignment only of the remaining portion of the certificate). This practice ceased in 2012.

4. I paid a premium for my boat because it had a mooring permit – are you saying that I will not be able to recoup that when I come to sell?

NO. If you purchased your boat on its mooring and were assigned the mooring permit with our consent, you in turn will be permitted to assign the mooring permit when you come to sell your boat – subject the reasonable conditions mentioned above. We may ask you for evidence that the assignment was made with our consent.

5. So what does ‘assignment of the unexpired portion’ of the permit mean?

Simply that they may remain on the previous owner’s mooring until its permit expires. At that point, they may apply via our mooring sales website for the vacancy, or move away from the site.

1 HMRC Reference Notice 701/20 (April 2012) 7.1 What is a houseboat? A houseboat is defined for the purposes of VAT as being a floating decked structure which is designed or adapted for use solely as a place of permanent habitation and which does not have the means of, and which is not capable of being readily adapted for, self-propulsion. 2 See http://canalrivertrust.org.uk/about-us/consultations/completed-consultations - foot of page, in particular Proposed mooring agreement for holders of houseboat certificates. This is pending publication as a Canal & River Trust document by our commercial moorings team.

Edited August 29, 2015 by Higgs

[Bod]

C&RT's definition of a houseboat.

HOUSEBOAT CERTIFICATES INFORMATION, May 2014
1. What is the definition of a Houseboat?
A Houseboat is defined as a boat whose predominant use is for a purpose other than navigation and which, if
required for the purpose, has planning permission, for the site where it is moored. A Houseboat may be used for
navigation from time to time provided it does not become its predominant use. Houseboat Certificates are
generally associated with a particular Canal & River Trust long term mooring permit and carry with them a limited
right of assignment of the mooring permit.
Note that this is not the same the definition used by HMRC for VAT purposes

 

To my reading, a houseboat used mainly for cruising, will revert to a pleasure craft.

But a long term moored, pleasure craft, can never become a houseboat, unless it is recertificated as such.(Subject to the mooring being fully residential, council tax etc.)

 

Bod

[Dave Clinton]

 

GFY

 

YAAPLT

[NigelMoore]

Have any parts of the 1971 act been changed by later acts?

 

Yes, but not in any way germane to this argument, and the changes have been more in the way of additions than alterations.

[magnetman]

Thanks Higgs and Bod

 

I was indeed thinking of the HMRC definition as part of my idea was to somehow remove the vat from my mooring fee when I was looking into the whole situation.

 

Sorry :offtopic: