CRT v Andy Wingfield Update

[Phil.]

By way of keeping everyone up to date re. the progress, or lack of it, of C&RT's latest pointless and idiotic attempt to have me abolished, here is the [my] Witness Statement, ordered to be filed prior to the Directions Hearing, which, according to what the Listings Office in Nottingham told me today, will probably be sometime in early September.

____________________________________

 

Witness Statement of Anthony K. Dunkley

Para. 4, from Line 2 :

The river bank to which 'Halcyon Daze' Index No.52721[ 'the boat' ] is moored is private property and is not under the management or control of Canal and River Trust [ C&RT ].

 

From line 6 :

It is true that the boat is moored at the stated location without a C&RT boat Licence, but the river Trent at Barton-in-Fabis where the boat is moored is a River Navigation listed in Schedule 1 of the British Waterways Act 1971 [as amended - BW Act 1974] upon which there is a Common Law Public Right of Navigation and vessels thereon do not require a boat Licence issued by the Navigation Authority.

Any vessel kept or used within the main navigable channel [MNC] of a Scheduled River Navigation is required under Section 5(1) of the 1971 BW Act to be registered by means of a Pleasure Boat Certificate [PBC] issued by the Navigation Authority. The penalty for keeping or using a vessel within the MNC without such a Certificate in force is prescribed in S.5(2) of the same Act.

Extracts from the British Waterways Act 1971 are exhibited by the Claimant, but the page bearing the above mentioned Section 5 has been omitted entirely from the exhibit.

The river Trent at Barton-in-Fabis is approximately 150 feet wide and the MNC [as defined in C&RT dredging and maintenance documentation] is less than 40 feet wide on this section of the river. My boat has been moored against the privately owned riverbank at this location since the last PBC expired on 31 August 2015 and is therefore well outside of the MNC. Whilst it remains so, it is exempted from the requirement for a PBC under Section 4(1) of the 1971 Act.

Having now fully recovered from a lengthy and debilitating illness, I am presently undertaking repair and refitting work on my boat. On completion of this work it is, as C&RT have been made aware, my intention to apply for a new PBC prior to resuming use of the vessel on the river Trent and other adjoining waterways for which no boat Licence is required.

 

From line 10 :

C&RT is not entitled to remove my boat from 'the Property', or the waterway, under Section 8 of the 1983 British Waterways Act as is stated.

The statutory powers under the 1983 Act entitle C&RT to remove vessels 'sunk, stranded or abandoned' in any waterway, or to remove any vessel left or moored without 'lawful authority', in a waterway owned or controlled by them.

My boat is not 'sunk, stranded or abandoned', and the Common Law PRN applicable on the entire navigable length of the river Trent is the 'lawful authority' for my boat to be on the river Trent, with or without a current PBC.

 

Para.5 :

It is stated that my boat is moored on C&RT's 'Property'. This is untrue. The river bank to which the boat is moored is privately owned, and ownership extends to the centre of the river.

 

Para.6 :

In as far as this has any relevance to this Claim, this paragraph is a concoction of both distorted and misrepresented truths, half truths and untruths.

In January 2014 C&RT informed me that they had 'revoked' my boat Licence. This action was solely in order to facilitate a Claim, identical to the present one, to remove my boat from their waters.

At that time my boat, which was not Licensed, and did not need to be, but was registered by means of a current PBC, valid until 30 June 2014, was in constant, almost daily use, on the river Trent mainly between Barton-in Fabis and Holme Pierrepont, downriver from Nottingham, and was frequently and regularly moored overnight near to Holme Lock.

The grounds for revoking what C&RT incorrectly referred to as a Licence were variously stated as contraventions of Licence Terms and Conditions by either ''mooring too frequently and for too long whilst cruising'' or "not cruising sufficiently whilst mooring away from the boat's 'home' mooring'', or ''not complying with the C&RT Cruising Guidelines for boats without a 'home' mooring'', none of which makes any kind of sense, or are lawful grounds under Section 17(4) of the 1995 BW Act to terminate either a boat Licence or a PBC.

C&RT issued a Claim [No.A00NG769] in June 2014 for the removal of my boat from their waters, a Defence was filed, and I applied to renew my boat's PBC just prior to the normal annual renewal date on 1 July 2014, but C&RT refused the renewal of the PBC on the grounds that, despite having issued the two preceding annual PBC's on the basis of my having a 'home' mooring, a mooring where the boat could be lawfully kept when not in use, at Barton-in-Fabis, they now chose to believe that the mooring didn't really exist.

 

Para.7 :

After a further interval and confirmation from the landowner that my mooring really did exist C&RT issued, not a new Licence, but a new PBC for my boat, and Discontinued the Claim, whilst complaining that my use of the mooring that they had questioned the existence of, and my ongoing compliance with the statutory conditions for holding a PBC had rendered their Claim "worthless and academic".

 

Para.9, from lines 2 to 25.

C&RT's erroneous beliefs as to the extent of the main navigable channel [MNC] of a river navigation, and the unsupportable assertion that it extends over the full width of the river from bank to bank are shown to be incorrect in the wording of their own General Canal Byelaws.

 

Byelaw 19(1) states :~

Navigation of Pleasure boats:

19. (1) A pleasure boat when meeting, overtaking or being overtaken by a power-driven vessel other than a pleasure boat shall as far as possible keep out of the main navigable channel.

 

If, as C&RT claim, the MNC did extend for the full width of the navigation, then it would not be possible for any conventional vessel to comply with this Byelaw, and the only type of craft capable of compliance when confronted by either an oncoming or overtaking commercial vessel would be an amphibious vessel able to remove itself onto dry land under it's own power, or a canoe or similar craft which could be manhandled out of the water.

As either type of craft is in a very small minority of the vessels that customarily use, or have used, C&RT's navigable waterways, it is not conceivable that this Byelaw was drafted with such vessels in mind.

 

Para.19.

In making this specious Claim, C&RT are well aware that in the event of my compliance, at any time prior to trial, with their unlawful demands that I obtain that which they misleadingly and wrongly describe as a 'Rivers only Licence' for my boat whilst it is confined to use on a Scheduled, PRN River Navigation, they would be obliged to Discontinue, as they were, in similar circumstances, in July 2014.

I believe that, far from being necessary to (quote) - "enable C&RT to comply with it's statutory duty to ensure that the inland waterways controlled by C&RT are safe, well managed and properly conserved", this Claim for Declaratory and Injunctive Relief is both contemptuous of Statute, in that it disregards the distinction made between a boat Licence and a Pleasure Boat Certificate made in Section 5(1) of the 1971 BW Act and Section 17(1) of the 1995 BW Act, and amounts to an attempt to prevent an individual from exercising a Common Law Public Right, and that as such it is asking the Court to act beyond it's powers and jurisdiction.

I respectfully ask that the Claim be struck out.

 

Statement of Truth.

I believe that the facts stated in this Statement are true.

Dated day of 2016

 

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Anthony Kenneth Dunkley

Defendant

Surely the last line should read, I respectfully ask that the claim is struck out, and costs are awarded to me for the inconvenience at having to deal with this. Edited August 2, 2016 by Phil.

[Sir Nibble]

It seems to me that cart's position in respect of the extent of the MNC effectively usurps the power to repeal the PRC

[bargemast]

What a beautiful clear and very polite piece of proper writing, I must say that I admire Tony for not letting CaRT get away with their DIY laws.

 

CaRT should get rid of Shoosmiths that seems to know as little about the laws as Cart themselfs, and pay Tony to explain what's written in the original laws, that would save them a lot of money.

 

Good luck Tony,

 

Peter.

[NigelMoore]

I believe that, far from being necessary to (quote) - "enable C&RT to comply with it's statutory duty to ensure that the inland waterways controlled by C&RT are safe, well managed and properly conserved", this Claim for Declaratory and Injunctive Relief is both contemptuous of Statute . . .

 

Could be worth making the observation that if s.8 really was necessary to “enable C&RT to comply with it’s statutory duty . . .” then they and their predecessors had never been able to comply with their statutory duty before 1983, and that BW Scotland still is unable to comply.

[NigelMoore]

CaRT should get rid of Shoosmiths that seems to know as little about the laws as Cart themselfs, and pay Tony to explain what's written in the original laws, that would save them a lot of money.

 

I could be wrong, but my firm belief is that everyone within CaRT’s legal department is fully conversant with the relevant legislation, and that they understand it perfectly well; better than anyone in Shoosmiths or elsewhere. It is their day job after all; who has more time and resources to devote to the subject?

 

They do not employ external law firms in order to get endorsements of their understanding, but to get opinions on what arguments could be presented for how they wish the legislation to be interpreted.

 

Despite all the ‘lawyer’ jokes, not too many firms are as prepared as Shoosmiths to take on clients with these BW and CaRT requirements, so the choice is more limited than would ordinarily be the case.

 

They don’t need to save a lot of money; the less in the pot the more reason to stall maintenance, and so long as wages and bonuses are covered [and so long as the PR budget suffices], then the executive are achieving their goals. The [relative] peanuts involved in lawsuits is worth it as PR to demonstrate how on the ball they are. Not only does it look good to prospective ‘friends’, but it helps satisfy the clamours of those in their boating clientele who demand action over perceived mickey-takers.

 

[bargemast]

 

I could be wrong, but my firm belief is that everyone within CaRT’s legal department is fully conversant with the relevant legislation, and that they understand it perfectly well; better than anyone in Shoosmiths or elsewhere. It is their day job after all; who has more time and resources to devote to the subject?

 

They do not employ external law firms in order to get endorsements of their understanding, but to get opinions on what arguments could be presented for how they wish the legislation to be interpreted.

 

Despite all the ‘lawyer’ jokes, not too many firms are as prepared as Shoosmiths to take on clients with these BW and CaRT requirements, so the choice is more limited than would ordinarily be the case.

 

They don’t need to save a lot of money; the less in the pot the more reason to stall maintenance, and so long as wages and bonuses are covered [and so long as the PR budget suffices], then the executive are achieving their goals. The [relative] peanuts involved in lawsuits is worth it as PR to demonstrate how on the ball they are. Not only does it look good to prospective ‘friends’, but it helps satisfy the clamours of those in their boating clientele who demand action over perceived mickey-takers.

 

As you are dealing with them to help and advise some people against their, as I (mis)understood unlawful actions, also with the Geoff Mayers sad story in mind, I had the impression that they didn't know the (real) laws very well, you are surely right saying that they (CaRT) know the relevant législations perfectly well.

 

Peter.

[boathunter]

When I worked designing mobile phone mast sites we used Shoesmiths, they're excellent at getting a positive result when they really shouldn't. They have no scruples whatsoever. In fact they would chuckle at the naivety of the idea of scruples.

Edited August 3, 2016 by boathunter

[Jim Riley]

I bought a house that had been repossessed, shoosmiths were operating for the vendor, they slipped a clause in saying that if there were any outstanding utility bills left by the previous owner, I should be responsible. Sharp practice!

 

Auto text edit.

Edited August 4, 2016 by Jim Riley

[Stilllearning]

I bought a house that had been repossessed, shoosmiths were operating for the vendor, they slipped a clause in saying that if there were any outstanding utility bills left by the previous owner, I should be responsible. Sharp practice!

Auto text edit.

Did you notice in time and refuse the clause?

[MtB]

Did you notice in time and refuse the clause?

 

 

Its an interesting one, that. Many buyers would not want to risk losing the house for a squabble over who is responsible for bills of perhaps a hundred or two, which may not exist. Assuming they noticed they the clause that is.

 

Interesting illustration of how Shoesmiths don't 'play fair' in other areas too though.

[Jim Riley]

Did you notice in time and refuse the clause?

Our solicitor checked everything out, nothing owing so we went ahead. He was intrigued but not surprised to hear of shoosmiths reputation in the canal world.

[Dyertribe]

Its an interesting one, that. Many buyers would not want to risk losing the house for a squabble over who is responsible for bills of perhaps a hundred or two, which may not exist. Assuming they noticed they the clause that is.

 

Interesting illustration of how Shoesmiths don't 'play fair' in other areas too though.

However, as my tenants from hell left without paying the gas bill of 1.5k and the

Electricity Bill of a similar amount, that's one clause I'd be rejecting!

[MtB]

However, as my tenants from hell left without paying the gas bill of 1.5k and the

Electricity Bill of a similar amount, that's one clause I'd be rejecting!

 

 

I hope you didn't pay it. It is the tenant's debt not yours.

 

The tenant was their customer not you.

But good point how large these debts can become!

[Dyertribe]

I hope you didn't pay it. It is the tenant's debt not yours.

 

The tenant was their customer not you.But good point how large these debts can become!

No I didn't pay but unfortunately the electricity company installed a prepayment meter which it appears would cost a fortune to get removed.

[Stilllearning]

It is interesting how different the system is here. On the day of the signing of the Acte de Vente ( when the property passes from ownership of the vendor to the purchaser), I go round the house with the two parties to the Acte, verifying the state of the property, any inventory that has been agreed, plus any other clauses that might have been written into the contract, and read the meters. Anything outstanding can just be deducted by the Notaire, from the amount owed to the vendor. The government can also, retrospectively, have oversight of all Actes de Vente and call them in if there are or appear to be any irregularities to do with tax etc.

[Up-Side-Down]

 

Could be worth making the observation that if s.8 really was necessary to “enable C&RT to comply with it’s statutory duty . . .” then they and their predecessors had never been able to comply with their statutory duty before 1983, and that BW Scotland still is unable to comply.

 

(pedant alert!)

 

Scottish Canals

[NigelMoore]

 

(pedant alert!)

 

Scottish Canals

Always good to have precision, and I fully understand why Scotland would want the name change - but so far as I am aware, in legislation they remain British Waterways (as per amended Acts following the Transfer).

 

I would be curious to know whether any Scottish legislation provided for an official name change.

[Lampyrichard]

Always good to have precision, and I fully understand why Scotland would want the name change - but so far as I am aware, in legislation they remain British Waterways (as per amended Acts following the Transfer).

 

I would be curious to know whether any Scottish legislation provided for an official name change.

No legislation so far.

 

They remain 'British Waterways (Scotland) Trading As Scottish Canals' on all the official paperwork we get.

 

Richard

 

(Forth & Clyde)

[NigelMoore]

No legislation so far.

 

They remain 'British Waterways (Scotland) Trading As Scottish Canals' on all the official paperwork we get.

 

Richard

 

(Forth & Clyde)

That's fine; they can be "trading as" anything they like without needing anything more, while remaining BW Scotland officially.

[gazza]

No I didn't pay but unfortunately the electricity company installed a prepayment meter which it appears would cost a fortune to get removed.

We had a pre payment elecricity meter in our old house courtesy of the previous occupiers - as you say they electric co wanted a fortune to change it.

 

My tip is to wait till it needs replacing, ring em up and ask for a credit meter, they changed ours to a credit meter no bother at no extra cost.

[Dyertribe]

We had a pre payment elecricity meter in our old house courtesy of the previous occupiers - as you say they electric co wanted a fortune to change it.

My tip is to wait till it needs replacing, ring em up and ask for a credit meter, they changed ours to a credit meter no bother at no extra cost.

Good advice, thanks.

How do you know when it needs replacing?

[gazza]

Good advice, thanks.

How do you know when it needs replacing?

They sent us a letter asking for access to replace it, I phoned the number on the letter.

 

At a guess I would say it was 2003/4 ish. We had been in the house since 94 so the meter would have been at least 10 years old.

 

Got a bit tucked up on our new house, they fitted a reconditioned single rate dial type meter, no night rate

Was surprised to see a whirling aluminium disc instead of a digital meter! That was 2010.

[Jerra]

They sent us a letter asking for access to replace it, I phoned the number on the letter.

 

At a guess I would say it was 2003/4 ish. We had been in the house since 94 so the meter would have been at least 10 years old.

 

Got a bit tucked up on our new house, they fitted a reconditioned single rate dial type meter, no night rate

Was surprised to see a whirling aluminium disc instead of a digital meter! That was 2010.

We have been in this house since 82 and the meter has never been replaced. So I wonder how long they really expect them to last.

[gazza]

We have been in this house since 82 and the meter has never been replaced. So I wonder how long they really expect them to last.

Dunno if domestic pre pay meters are different?

 

All of our meters across 4 sites at work have been replaced over the last 15 years.

 

 

I have a feeling a smart meter is my only hope of quickly getting rid of the single rate meter in our house, that's a whole other can of worms!

Edited August 4, 2016 by gazza

[Dyertribe]

Only another 9 years to go then!