CRT v Andy Wingfield Update

[waterworks]

As in the terms of the usual Injunction Orders? The judges will assume it means that CaRT then possess the unilateral power to exercise their own discretion as to whether they give permission.

CRT have no authority to refuse a licence application if all the conditions are met, what ever legal cases have occurred in the past. Am I correct ?

[NigelMoore]

Yes.

[Tony Dunkley]

As stated in an earlier Post the inclusion of scheduled rivers in the standard form of Injunction Order that C&RT deceive Judges into making takes the County Courts way beyond their authority and powers. Nonetheless, the ongoing effect of these Orders is misunderstood and overrated by boaters who find themselves on the receiving end of one.

At 2) in the Order, the wording is very clear that the things forbidden by the Order only continue to be forbidden if done "without the prior consent of the Claimant", which of course is C&RT, who grant their "prior consent" by issuing a boat Licence.

Hence, whilst breaching the Order may well end up with you behind bars, the practical effect of them can be neutralized, even on the day they're made if you so wish, by buying either a boat Licence or a Pleasure Boat Certificate. That is certainly what I would do if ever C&RT were successful in obtaining one against me.

 

There is a C&RT boat Licensing Agent [Castle Marina] only a few minutes walk from Nottingham County Court, and a few minutes on the phone would locate a temporary 'home' mooring for a CC'er wanting to do the same. Of course, were the CC'er to give up the newly acquired 'home' mooring immediately after being issued with a new Licence, then C&RT would have to begin the whole ridiculous process all over again with the Injunction becoming effective once again only from the time that the post Injunction Licence is once again revoked.

Edited March 9, 2016 by Tony Dunkley

[Alan de Enfield]

I understand that the following 'justifies' the removal of the licence, but am I misunderstanding that this means they can also refuse to re licence if the 'default has not been remedied' ?

 

If—

(a)(subject to subsection (6) below) the vessel does not comply with the standards applicable to the vessel on the date when the consent was granted; or

(an insurance policy is not in force in respect of the vessel; or

©either—

(i)(in the case of a vessel in respect of which a relevant consent is issued pursuant to subsection (3) © (i) above) it appears to the Board that a mooring or other place such as is referred to in subsection (3) © (i) above is not available for the vessel; or

 

(ii)(in the case of a vessel in respect of which a relevant consent is issued pursuant to subsection (3) © (ii) above) the vessel has not in fact been used bona fide for navigation in accordance with the said subsection (3) © (ii);

the Board may give notice requiring the holder of the relevant consent to remedy the default within such time as may be reasonable (not being less than 28 days).

(5)If the holder of the relevant consent does not comply with any notice served pursuant to subsection (4) above then the relevant consent shall determine on the date the notice expires.

[NigelMoore]

I understand that the following 'justifies' the removal of the licence, but am I misunderstanding that this means they can also refuse to re licence if the 'default has not been remedied?

You are not misunderstanding. They can refuse on those grounds - but on no other.

[Tony Dunkley]

I understand that the following 'justifies' the removal of the licence, but am I misunderstanding that this means they can also refuse to re licence if the 'default has not been remedied' ?

 

If—

(a)(subject to subsection (6) below) the vessel does not comply with the standards applicable to the vessel on the date when the consent was granted; or

 

(an insurance policy is not in force in respect of the vessel; or

 

©either—

 

(i)(in the case of a vessel in respect of which a relevant consent is issued pursuant to subsection (3) © (i) above) it appears to the Board that a mooring or other place such as is referred to in subsection (3) © (i) above is not available for the vessel; or

 

(ii)(in the case of a vessel in respect of which a relevant consent is issued pursuant to subsection (3) © (ii) above) the vessel has not in fact been used bona fide for navigation in accordance with the said subsection (3) © (ii);

the Board may give notice requiring the holder of the relevant consent to remedy the default within such time as may be reasonable (not being less than 28 days).

 

(5)If the holder of the relevant consent does not comply with any notice served pursuant to subsection (4) above then the relevant consent shall determine on the date the notice expires.

 

As Nigel has said, C&RT cannot refuse to issue a Licence/PBC if the applicant fulfills the three requirements of S.17(3)[c] of the '95 Act, and this puts C&RT's victims, such as Andy Wingfield, in a far stronger position than they generally seem to believe themselves to be in.

 

The dubious and questionable nature of the entire Licence revoking and Section 8'ing process that C&RT have concocted leaves both the process itself, and the instigators of it, vulnerable to similar dubious and questionable tactics on the part of the targeted boaters.

Whilst I would never advocate the use of such tactics as an alternative to a soundly based legal challenge to C&RT's abuse of process, I feel that subjecting C&RT to some interim doses of their own medicine is both justified and worthwhile.

 

Andy Wingfield called me a couple of nights ago, and although he's quite settled and fairly content where he now is, he would prefer to be back in the Nottingham area with his family relations and friends but the fear that he would once again come under immediate attack from C&RT prevents him from doing so.

 

The climate of fear that C&RT have created on our waterways appears to me to be their sole notable success since coming into being.

Edited March 9, 2016 by Tony Dunkley

[Mike Todd]

Indeed Mike, I was not taking issue with what you said, rather with the overlooking [intended or not] of Tony's point. There were no other letters that I know of; I do not believe they were drafted badly in terms of what they wished to say - they simply demanded that he demonstrate a period of cruising before isssuing a consent on that basis. It necessarily involved navigating contrary to Statute.

 

Prior to discontinuing that first action, they finally accepted that Tony had the required land-owner's consent to his mooring and issued his certificate based on Home mooring as before; there was never an issue with the status of the mooring itself - they revoked the licence on failure to conform to CC guidelines, then refused to accept his mooring because he had not used it, then refused to accept he had a right to it [despite having accepted it previously].

As you imply, the goalposts keep moving one this one (for all of us!) One of the even-less clear aspects is what obligations lie on boaters with a home mooring with regard to moving, other than the usual 14 or more limited situations.

 

Whilst I would seriously deprecate any attempt to impose the 'no home mooring' requirement on everyone else, I do sympathise with the difficulty in dealing with cases of phantom home moorings, potentially let to more than one boater.

 

However, I am unclear about the extent of the problem - sledgehammers and nuts could come to mind. Always remembering that every new bit of rule or regulation always brings with it unanticipated, even unintended, consequences which can bite even the best of intentions.

 

Going back to AD's case, my comment about drafting was based on his reading of the letter that appeared to imply that he should cruise without a licence (the previous one having been revoked) in order to prove his entitlement to a new licence. But perhaps I have misunderstood the sequence of events (which is fairly tortuous in this case which seems to me to keep slipping from one category to another on, probably, the intent of both parties)

[Tony Dunkley]

 

Going back to AD's case, my comment about drafting was based on his reading of the letter that appeared to imply that he should cruise without a licence (the previous one having been revoked) in order to prove his entitlement to a new licence. But perhaps I have misunderstood the sequence of events (which is fairly tortuous in this case which seems to me to keep slipping from one category to another on, probably, the intent of both parties)

 

It is becoming increasingly apparent from your incessant groping for reasons to excuse or explain C&RT's antics that you have either failed to recognize and understand what they're doing, or that you sympathize with it, but are reluctant to say so openly.

 

My 'case', as you call it, was never about anything other than C&RT hoping to demonstrate that they were able to impose CC'ing rules on a boater with a [home] mooring, which is plain enough for all to see and understand from what has been written about it on this Forum and published by Nigel Moore on Scrib'd.

 

I resent your suggestion of any attempt on my part to confuse or complicate what was in reality a perfectly simple but unwarranted dispute which, to have any prospect of success for the instigators of it, could not be conducted honestly.

[NigelMoore]

Do you know of any recent cases where a licence has been refused even though the boater has now complied with whatever it was brought the action in the first place?

 

I could perhaps have added Geoff Mayers to the example of Tony. In Geoff's case however, I don't recall a flat refusal to issue a new licence once he followed the judge's suggestion to obtain a home mooring and apply for one; they simply ignored his request.

 

That constituted, of course, a constructive refusal to abide by the judge's insistence that he would hold them to the agreement to issue a new licence once Geoff obtained a mooring, as though that agreement was a formal undertaking to the court. I believe that it remains a possibility for Geoff to take action against them for Contempt of Court; I simply have not been able as yet to find out the procedure for that.

[NigelMoore]

One of the even-less clear aspects is what obligations lie on boaters with a home mooring with regard to moving, other than the usual 14 or more limited situations.

 

Whilst I would seriously deprecate any attempt to impose the 'no home mooring' requirement on everyone else . . .

 

My personal view is that there IS no difference under law, between the requirements of HM’ers and CC’ers once away from a legitimate mooring; the refinements over the “pattern of movement” debated over the years are outwith the legislative terms applicable to either. The intent of BW and Parliament in drafting 17(3)( c ) was simply to avoid situations where boats were left such that they obstructed the use of public facilities by others.

 

That has been made abundantly clear in the quotations from the relevant sections of the Commons Select Committee Minutes, which I have uploaded for anyone to read for themselves, besides quoting the pertinent bits on here from time to time.

 

It is not, in other words [on my argument], that Tony was exempt from CCing requirements because he had a home mooring, rather that all boaters can legitimately indulge in MtB’s pattern of movement [to give another example of what CaRT were objecting to with Tony] whether they have a home mooring or not.

 

Tony accurately suggests that having adequately [in their view] established that patterns of movement apply additionally to the 14 day ‘rule’ in the case of CC’ers, CaRT decided that those additional requirements should apply to HM’ers as well, when off their moorings, and chose his situation as a vehicle for establishing court approval of that.

 

It was a poor choice.

 

For clarity - I agree, as said, that the same requirements should apply; I dispute the nature of the requirements.

 

[NigelMoore]

I do sympathise with the difficulty in dealing with cases of phantom home moorings, potentially let to more than one boater.

 

Once again, while “phantom moorings” would be a legitimate cause of concern [it would involve fraudulent applications], the concept of shared home moorings was actively presented to Parliament by BW as a good answer to any objections over imposition of what some saw as a financially onerous requirement.

 

Whatever the arrangements with the mooring provider in respect of such juggling of shared use, for so long as a mooring was available to a boater throughout the year, then according to BW the home mooring requirement would be legitimately met.

 

Again, for so long as such a boater never left their boat in any one place longer than 14 days at a time, there was never any requirement to actually use that mooring. It was to be there, available, should the boat need to be left longer unattended. Nothing prevented the boat being left anywhere else either, for so long as the place it was left was one that fitted the suitable criteria.

 

[NigelMoore]

Going back to AD's case, my comment about drafting was based on his reading of the letter that appeared to imply that he should cruise without a licence (the previous one having been revoked) in order to prove his entitlement to a new licence. But perhaps I have misunderstood the sequence of events . . .

 

I rather think you have – and it is entirely natural that any right-minded person would assume that CaRT could not have meant what they said.

[cuthound]

The concept of shared moorings is not new and used extensively in the shareboat market. In 22 years of shared ownership our boats only had 2 years of a dedicated mooring, and both of those years were at the same marina.

[Mike Todd]

 

Once again, while “phantom moorings” would be a legitimate cause of concern [it would involve fraudulent applications], the concept of shared home moorings was actively presented to Parliament by BW as a good answer to any objections over imposition of what some saw as a financially onerous requirement.

 

Whatever the arrangements with the mooring provider in respect of such juggling of shared use, for so long as a mooring was available to a boater throughout the year, then according to BW the home mooring requirement would be legitimately met.

 

Again, for so long as such a boater never left their boat in any one place longer than 14 days at a time, there was never any requirement to actually use that mooring. It was to be there, available, should the boat need to be left longer unattended. Nothing prevented the boat being left anywhere else either, for so long as the place it was left was one that fitted the suitable criteria.

 

Most marinas are probably technically shared moorings as the T&Cs (?in response to avoidance of residential classification?) often allow the owner to move boats around - the only commitment is that the boat can moor somewhere in the marina. If demand rose, relative supply, compared with the apparent current situation, then some owners might be tempted to 'over-book' and so there would be an interesting case all round.

 

The situation which is supposed to be of concern, though I have not seen much evidence of it in fact, is where several boaters knowingly take the same mooring (where there is no alternative option at all) with no real intention to use said mooring.

 

Today's Supreme Court ruling regarding certain tax avoidance schemes brings right back into play the notion of intent. Boaters using such a scheme could well run the risk that the case against them is based on the fact that although they declare a home mooring they have, based on evidence to meet the man on the Clapham Omnibus test, shows not intent to use it.

 

I rather think you have – and it is entirely natural that any right-minded person would assume that CaRT could not have meant what they said.

I agree. The highlighted caveat was merely a normal caution that I cannot claim to have all of the evidence - beyond that I was fully accepting the problem highlighted by AD in his earlier posting.

 

Outcomes in complex legal/procedural/contractual matters can often be what appear to be substantially different, depending on fine detail of the circumstances. Especially in situations when pushed either side of a rather ;large category difference.

The concept of shared moorings is not new and used extensively in the shareboat market. In 22 years of shared ownership our boats only had 2 years of a dedicated mooring, and both of those years were at the same marina.

Just shows how difficult it is to sort sheep and goats!

[Tony Dunkley]

On 9 February 2016, I received the following letter from Shoosmiths. I posted up the letter in #985 on 11 February 2016, and the response in # 1010 on 15 February 2016 :~

Mr Anthony Dunkley

Craft “Halcyon Daze” Index no 52721

Moored on the Trent Navigation

Barton

NG11 0AL

Our Ref LVG/M-253260

Date 9 February 2016

Dear Sir

BOAT "HALCYON DAZE" INDEX NUMBER 52721

UNLAWFULLY MOORED AT BARTON ON THE TRENT NAVIGATION

We have been instructed to act on behalf of Canal & River Trust (“CRT”) in relation to the above boat

which is unlawfully moored or kept on an inland waterway owned or managed by our client.

We refer to the Notice of intended removal of a vessel under Section 8 of the British Waterways Act

1983 dated 5 January 2016 and the Notice requiring removal of a houseboat under Section 13 of the

British Waterways Act 1971 dated 5 January 2016 both of which were served on you by our client by

way of the Notices being affixed to your boat.

 

Following expiry of the Section 8 and Section 13 Notices your boat remains unlawfully moored on our

client’s waterway.

The purpose of this letter is to put you on formal written notice that in the event that you fail to remove

your boat from the inland waterways owned or managed by CRT within 14 days from the date of this

letter, court proceedings will then be issued against you by our client in the County Court immediately

without further notice for:-

[a] a declaration confirming that CRT is entitled to remove your boat from its inland waterways

pursuant to its statutory powers under Section 8 and Section 13 of the British Waterways

Acts 1983 and 1971 respectively; and

an injunction to restrain you from mooring your boat on or to any part of CRT’s waterways and

requiring you to remove your boat immediately; and

[c] an order for costs against you.

We trust this will not become necessary and that you will remove your boat within the next 14 days.

If you are in any doubt as to your position we would suggest that you obtain legal advice.

Finally, please note that a copy of this letter is also being delivered to your boat.

Yours faithfully

SHOOSMITHS LLP

 

Today marks a clear 4 weeks since the above declared deadline for me to desist from exercising the common law PRN, by keeping my boat at a private mooring on the Trent at Barton-in-Fabis, and I have neither removed my boat, nor have C&RT issued the threatened proceedings.

 

To explore the remote possibility that C&RT may have reconsidered their position and decided to limit themselves to exercising the statutory powers they do actually have, I sent the following E-mail to the Head of Enforcement, Dense Yelland, earlier today :~

 

Ms Yelland,

In your last brief E-mail, dated 3 February 2016, you failed to address the question I had raised with regard to the Trusts mistaken belief that it has the authority and powers to rescind the common law public right of navigation on the Trent and other scheduled rivers.

Since then the only further communication I have received concerning this matter has been a letter from Shoosmiths dated 9 February 2016 stating the Trust's intention to commence legal proceedings within 14 days in the event of my not complying with the unlawful demand that I cease to exercise the public right of navigation by removing my boat from the river Trent.

As we are now four clear weeks past your deadline date and no Claim has been issued, it occurs to me that the Trust may possibly have reviewed and reconsidered it's position.

Should this be so, then I sincerely hope that this signals the end of the Trust's habitual use of inappropriate and inapplicable legislation in efforts to augment the statutory powers conferred by Parliament with fictitious, self-conferred concoctions of it's own making.

Signed, A.K.Dunkley.

_________________________________________________

[Alan de Enfield]

Maybe too early to suggest a 'win' but it certainly looks as if C&RT are having a 'review' of the situation.

Keep up the good work - greeny awarded.

[bargemast]

Tony I must say that I really enjoy reading your nicely worded letters to CaRT.

 

Now I hope that they'll be polite enough to answer your mail, and apologize for their bad- and unlawful behavier.

 

Peter.

[Hawkmoth]

Tony I must say that I really enjoy reading your nicely worded letters to CaRT.

 

Now I hope that they'll be polite enough to answer your mail, and apologize for their bad- and unlawful behavier.

 

Peter.

Don't hold your breath!

Bob

[bargemast]

Don't hold your breath!

Bob

 

Don't worry Bob, I wasn't planning on doing that, still have a few things that I would like to do on my bucket list.

 

Peter.

[Tony Dunkley]

The only reaction so far is this automated response from the Head of Enforcement :~

 

Please be aware that I am in meetings for most of Tue 22 and Wed 23 March and will have little access to emails during this time. If the matter is urgent please contact Customer Services on 03030 404040 and ask to be redirected to another member of the enforcement team.

Thank you.
Denise.

 

I would suspect that fairly prominent on the agenda for this 2-day 'meeting' marathon will be today's High Court hearing to determine the outcome of C&RT's Application to either have the Claim against them arising out of their unlawful seizure of a boat at Newark struck out, or failing that, to at least have Nigel Moore excluded from assisting the owner.

[PaulG]

You are not misunderstanding. They can refuse on those grounds - but on no other.

But in at least one case, BW claimed to have been successful in obtaining an injunction that, according to them, forbade the boater "from entering, navigating or mooring the boat or any other vessel on or to any part of the canal system".

 

One assumes that the actual injunction contained the words "owned, controlled by, administered by" or similar since I doubt the court imagined that it had the authority to impose a worldwide ban....

 

https://waterscape.crtrust.org.uk/features-and-articles/news/1016/judge-orders-removal-of-boat-from-gloucester-and-sharpness

[NigelMoore]

But in at least one case, BW claimed to have been successful in obtaining an injunction that, according to them, forbade the boater "from entering, navigating or mooring the boat or any other vessel on or to any part of the canal system".

 

One assumes that the actual injunction contained the words "owned, controlled by, administered by" or similar since I doubt the court imagined that it had the authority to impose a worldwide ban....

 

https://waterscape.crtrust.org.uk/features-and-articles/news/1016/judge-orders-removal-of-boat-from-gloucester-and-sharpness

Two points:

 

First is that the wording of the Order is described in that article, not quoted. It is likely that the Order included the usual 'without prior consent'.

 

Second is that that was pre- Davies, following which the guidance had to be amended.

[onionbargee]

Are these CaRT related court orders published online ?

[Tony Dunkley]

Are these CaRT related court orders published online ?

 

Yes, they are fairly well hidden on the C&RT website in what they call their "publication scheme" [ that really should say 'scheming'] under 'Court action to remove boats from our waterways'.

There is a short passage of dishonest and nauseatingly hypocritical claptrap preceding the list, and it hasn't been updated since it was, apparently, 'edited' on 13 November 2015. The last entry is now for 20 March 2015.

[NigelMoore]

I would suspect that fairly prominent on the agenda for this 2-day 'meeting' marathon will be today's High Court hearing to determine the outcome of C&RT's Application to either have the Claim against them arising out of their unlawful seizure of a boat at Newark struck out, or failing that, to at least have Nigel Moore excluded from assisting the owner.

They failed to have the Claim struck out.

 

The Master did strike out the Statement of Case, the material in which he said could be useful later in proceedings, but it was inappropriate at this juncture. He felt there was sufficient within the Particulars of Claim to found the case, and has given us a month to revise that into a more suitable format.

 

They have failed to block my assistance; probably galling them the most just now, but I do have to prove my worth with the revision.

 

Leigh is delighted: he thought at one stage we had lost, so was all the more tickled when it sunk in that we had achieved a 2:1 win and his case survives this first round of attack.