Don't trust the Trust anymore.

[tidal]

Y0u can't really expect such things from any organisation, although you should be able to from the people in it. Organisations run on rules and on what the people at the sharp end believe to be (or are told are) the rules, even if they're wrong. They are at risk of losing their jobs if they stand up to their management, which is largely why nobody does any more, in any business or system. The people who suffer are the clients, in this case, us. A court case that actually defines some usable guidelines will definitely be handy.

 

I'm not at all sure that that would necessarily be the case. Wouldn't that depend on whether the guidelines made things better or worse?

 

When trying to define what is or what is not "reasonable in the circumstances" the decision of a court would primarily be about what is or is not reasonable in a particular set of circumstances probably relating to s single individual.

And whilst such a decision might well influence other cases (or even CRT policy), different circumstances might well result in different decisions.

 

When I get a chance I will try and find the comments made by HHJ Pugsley on the abilities of the people who wrote the relevant legislation because that is a large part of the problem

[KenK]

Exactly!

Thanks Ken, I'm aware of what the T&Cs say. Could you tell me what S43 of the Transport act says?

S43(3) I would have to look it up for the exact wording but it is something like this

 

"The board can set such charges for their services and facilities as they wish and apply terms and conditions to those services and facilities as they see fit."

 

It seems like a catch all, however what are the services and facilities?

If as BW and C&RT apply it then it is the use of the canal system and not specific services and facilities.

I suspect it was designed to apply to use of wharfs etc. i.e. services and facilities in excess of the norm. As a, probably not very good example, room service in a hotel, charged in addition to the cost of the room.

 

This section of the act also applies / applied to the Rail Authority which makes it even less likely that it was intended to be used as BW and later C&RT do .

However unless it is ever challenged successfully in a court we are stuck with it.

 

Ken

[Dave_P]

S43(3) I would have to look it up for the exact wording but it is something like this

 

"The board can set such charges for their services and facilities as they wish and apply terms and conditions to those services and facilities as they see fit."

 

It seems like a catch all, however what are the services and facilities?

If as BW and C&RT apply it then it is the use of the canal system and not specific services and facilities.

I suspect it was designed to apply to use of wharfs etc. i.e. services and facilities in excess of the norm. As a, probably not very good example, room service in a hotel, charged in addition to the cost of the room.

 

This section of the act also applies / applied to the Rail Authority which makes it even less likely that it was intended to be used as BW and later C&RT do .

However unless it is ever challenged successfully in a court we are stuck with it.

 

Ken

Thanks Ken, I found a copy of the act while you were typing this so changed my earlier post.

[NigelMoore]

 

There is NO requirement for a boat with a home mooring "to Navigate ......... without remaining ....... one place for more than 14 days"

 

Just to stick my oar in again, with a repetition of what I have said on previous occasions relating to this topic:

 

The 14 day requirement for those with home moorings has nothing to do with either the 1995 Act OR the 1962 Act. Absent the 1995 Act, no boaters would be entitled to remain moored to the towpath any longer than overnight; the statutory right of CC’ers to do so arises from the 1995 Act and that applies to CC’ers only.

 

The ability of non-CC’ers to stay up to 14 days on any one spot on the towpath depends upon the undertaking of CaRT that their licence permits that. It is more that that binds CaRT, than that grants a right which they are incapable of conferring.

 

I appreciate that the distinction may seem unnecessarily subtle, but it would be wise not to make too much out of either of the Acts relied upon - whether negatively or positively.

 

It is the pattern of 14 day usage - unilaterally imposed by CaRT's various versions of guidance - that quite gratuitously engenders the legalistic disputes in either case.

[bassplayer]

Exactly.

 

Some people are so wound up in pointing the finger of blame at CRT that they fail to recognise who is really to blame for this situation.

...or...

 

Some people are so wound up with CRT pointing the finger of blame at boaters that they fail to recognise who is really to blame for this situation.

[Naughty Cal]

...or...

 

Some people are so wound up with CRT pointing the finger of blame at boaters that they fail to recognise who is really to blame for this situation.

Either or. It has the same result.

[NigelMoore]

However unless it is ever challenged successfully in a court we are stuck with it.

 

Well, the subject has already been deliberated upon at some length in High Court proceedings. HHJ Hildyard: -

 

"110. . . . The problem for BWB, which may partly explain its somewhat lukewarm approach to section 43 of the 1962 Act in its submissions (written and oral) before me, is that, since it has not (or has agreed for the purpose of these proceedings not to rely on) a property right, its chosen vehicle for imposition of terms and conditions as to mooring has been a licence (on which terms and conditions regulating mooring are endorsed).

 

111. I have noted already, and it is also relevant in this regard, that in its own notes to accompany a table of proposed new Byelaws (dated February 2010) BWB acknowledge that "Compliance with notices controlling mooring is currently enforced through licence conditions"; and it is indeed on that basis that BWB seeks to justify a new byelaw to "provide clarity and better enable enforcement of compliance with mooring restrictions in areas of congestion." If (as the Claimant contends) no licence is required that vehicle for the imposition of terms and conditions pursuant to section 43(3) of the 1962 Act is not available; and cf Burnett v BWB [1973] 1 WLR 701. Further, BWB has accepted in its own information sheet entitled "General Terms and Conditions for Boat Licences: England and Wales" (June 2011 issue) that:

 

"There are no public law provisions concerning moorings along [bWB's] canals. That is entirely a matter for management by [bWB] as property owners."

 

112. Put shortly, even if the 1962 Act empowered BWB to impose terms and conditions for user by way of permanent mooring, I have not been persuaded that BWB has ever validly exercised such power.” [my bold]

 

It is not precisely on the present point, but it does clarify that exercise of the s.43(3) power is wholly dependant upon there being some specific statutory provision for control of that which it is desired to condition and charge for.

[Bobbin]

Hi Sorry about your problem with the EO, I would ask if he minded that I record the conversation as I have a bad memory, See if he agrees to that!! But always write a letter of complaint mainly because this person may be upsetting others and if there are a few complaints about the same EO the CRT may look into it as he may not be suitable for the job he is doing.

[kris88]

If your planning to use the recorded conversation as evidence ever, then you have to tell the other party that you are recording it.

 

Regards kris

[tidal]

If your planning to use the recorded conversation as evidence ever, then you have to tell the other party that you are recording it.

 

Regards kris

 

Which as I pointed out much earlier in the thread either leads to those involved in a conversation being particularly careful about what they say or refusing to speak at all.

I did the same with the DW&P a couple of years ago and it really changed (for the better) how most interviews went.

[kris88]

 

Which as I pointed out much earlier in the thread either leads to those involved in a conversation being particularly careful about what they say or refusing to speak at all.

I did the same with the DW&P a couple of years ago and it really changed (for the better) how most interviews went.

Completely agree, I didn't think it had been pointed out that you have to let them

Know.

Regards kris

[Tony Dunkley]

 

John,

 

your position seems to be that they need to try and see the problem from your point of view. That is an entirely reasonable position to take.

 

However, there are two points that I would put to you;

 

1) Seeing the problem from your point of view doesn't equate to agreeing to your solution. Even if he tries to see it from your point of view, he needs to find a solution that is going to be acceptable to his boss, and he needs solid information for that. Without solid information, he is going back to his boss and saying "John says he is staying put, he has decided that it is OK to do so, and its none of your business why"

2) You also need to see it from his point of view. Whilst you may be a genuine case, he will also be dealing with dozens of other people who are not genuine cases who are just trying to game the system. Tony Dunkley obviously sees himself as some kind of superhero, standing up for the rights of oppressed boaters with a campaign of making a nuisance of himself and encouraging others to do the same. He isn't helping them. He and others with his attitude are exactly what is hardening attitudes and giving us EOs who are less willing to accept boaters at face value.

 

I'm genuinely interested in knowing a bit more about the train of thought brought you to those conclusions, or are they just the childish and silly, 'off the cuff' remarks that they look like ?

[tidal]

Completely agree, I didn't think it had been pointed out that you have to let them

Know.

Regards kris

No worries Kris

It was post 13 and a lot has happened on here since

[NigelMoore]

S43(3) I would have to look it up for the exact wording but it is something like this

 

"The board can set such charges for their services and facilities as they wish and apply terms and conditions to those services and facilities as they see fit."

 

I would add [again in repetition of many previous posts] that any ‘misunderstanding’ of the Act inevitably owes its seeming authority to the usual omission of the vital qualifying wording when quoted by CaRT.

 

The Act has been amended upon passage of The British Waterways Board (Transfer of Functions) Order 2012, to read:

 

43(3) “Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the British Waterways Board and Canal & River Trust shall each have power to demand, take and recover [or waive] such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit.” [my bold]

 

Basically, if there was nothing in the said “such enactments” that expressly provided for the levying of a charge for a particular service or facility, then absent some later express power, the law considers any such charges prohibited - and the conditioning of the service or facility is bound to that for which they have the ability to charge.

 

[it s only fair to note that Hildyard J was unconvinced on that latter point, but – respectfully – he was as wrong about that as he was about the broad application of s.8.]

 

This is not to say that conditions on towpath moorings [e.g. ‘no return within’ rules; obedience to whims of a Patrol Officer, and erection of time-limiting signage] could not be imposed in future, only that they can only be imposed now, via secondary legislation such as new Byelaws, needing approval of the Secretary of State following public consultation.

 

The reason neither BW nor CaRT ever saw fit to actively promote such new byelaws [already long since drafted at considerable cost in bonuses to the now-departed Legal Director], is that they realised how much cheaper it was to simply tell everyone that they DID have appropriate powers already, under s.43(3). Most believe them.

 

 

 

edit to add: it is unfair of me to say Hildyard J was wrong, when he had actually made no firm decision either way on the point.

Edited September 16, 2015 by NigelMoore

[cotswoldsman]

There are so many liveaboards flounting the rules on CCing,

 

 

That's interesting what is the number for these livaboard flouting the laws for boats without a home mooring?

[matty40s]

That's interesting what is the number for these livaboard flouting the laws for boats without a home mooring?

0800 NOMOORING

[jenlyn]

That's interesting what is the number for these livaboard flouting the laws for boats without a home mooring?

It is odd. We had this when that silent film was done a few months back on k&a. People stating that non moving boats were clogging the canal etc. CRT made a statement a few days later, promoting the fact that they did not have any problems on k&a.

I don't know who to believe anymore..

[NigelMoore]

If your planning to use the recorded conversation as evidence ever, then you have to tell the other party that you are recording it.

 

Whilst I certainly take the very valid point that letting someone know you are recording them will alter the tone of the conversation, I have often used in court, transcripts of recorded conversations - and I have never told the other party that I was recording those conversations. At no time was the acceptability of the evidence ever challenged. The most demanded by opposing solicitors was that copies of the recordings be provided in order that the transcripts be validated.

 

For so long as you are party to the conversation being recorded, then you are committing no offence. It is only when recording the conversations of others in which you are not involved, that relevant offences arise and the evidence become inadmissible.

 

It is only a month ago that I last used such evidence in court, and it was probably instrumental in having a prospective counter claim dismissed without hearing.

[kris88]

Thanks for making that clear, I was under the impression that for it to be used as evidence, you had to make the other party aware.

 

Regards kris

[tidal]

It's a fuzzy area Nigel
Whilst you can do this and most courts will accept it there is always a possibility of a breach of personal privacy.

I always prefer to let people know because a) I think that it is only fair and b ) it does tend to keep things civilised

 

I found the same happened when I brought out my notebook as a reporter

 

edited for erratic forum software

Edited September 16, 2015 by tidal

[NigelMoore]

No quarrel with any of your points tidal.

[bozlite]

The 14 day requirement for those with home moorings has nothing to do with either the 1995 Act OR the 1962 Act. Absent the 1995 Act, no boaters would be entitled to remain moored to the towpath any longer than overnight; the statutory right of CC’ers to do so arises from the 1995 Act and that applies to CC’ers only.

 

The ability of non-CC’ers to stay up to 14 days on any one spot on the towpath depends upon the undertaking of CaRT that their licence permits that. It is more that that binds CaRT, than that grants a right which they are incapable of conferring.

 

So have I understood this properly, Nigel? As a boater with a home mooring I have no legal right to moor up for 14 days, but my licence permits me to do so? Also, as a supplementary question, if I may, are you saying that there is a statutory right to moor overnight? Where does that come from?

 

Thanks.

[NigelMoore]

So have I understood this properly, Nigel? As a boater with a home mooring I have no legal right to moor up for 14 days, but my licence permits me to do so? Also, as a supplementary question, if I may, are you saying that there is a statutory right to moor overnight? Where does that come from?

 

As to the first part, essentially, yes.

 

As to the second part, here is no specific statutory right to moor to a bank that is dedicated to public use for towing; the right derives rather, from the common law recognition that mooring incidental to navigation is inseparable as a matter of practicality, from the right to navigate.

 

All the original canal statutes conferred a public right of navigation, and as that right includes absolutely NO right to moor to private [‘offside’ in the case of canals] banks, and as most such Acts [or the relevant byelaws] denied a right to anchor to the bed of the canals [it would prejudice the integrity of the waterproofing where puddling with clay formed the watertight lining], mooring to the towpath remained the sole option.

 

Since the 1968 abolition of all public and private conferred rights of navigation, the ancillary right to moor became [strictly speaking] a matter of permission – except that absent an express right for the relevant authority to licence the right of navigation with its ancillary rights, no such avenue for control was yet existing.

 

On my understanding, it was only with the approval of the 1976 Byelaws governing keeping and using boats on the artificial parts of the system, that the relevant authority was conferred upon BW. The Pleasure Boat Licence then took the place of the previous conferred rights of navigation, and that necessarily involves the right to moor incidental to that navigation, wherever such mooring was to banks owned and regulated by the authority. [Control over mooring to the offside was always reserved to the riparian owner.]

 

Because the towpath has always been primarily to enable the navigation of boats, the right to moor incidental to that, must – on my argument – be inclusive of, but limited to, such usage.

[bozlite]

As to the first part, essentially, yes.

 

As to the second part, here is no specific statutory right to moor to a bank that is dedicated to public use for towing; the right derives rather, from the common law recognition that mooring incidental to navigation is inseparable as a matter of practicality, from the right to navigate.

 

All the original canal statutes conferred a public right of navigation, and as that right includes absolutely NO right to moor to private [‘offside’ in the case of canals] banks, and as most such Acts [or the relevant byelaws] denied a right to anchor to the bed of the canals [it would prejudice the integrity of the waterproofing where puddling with clay formed the watertight lining], mooring to the towpath remained the sole option.

 

Since the 1968 abolition of all public and private conferred rights of navigation, the ancillary right to moor became [strictly speaking] a matter of permission – except that absent an express right for the relevant authority to licence the right of navigation with its ancillary rights, no such avenue for control was yet existing.

 

On my understanding, it was only with the approval of the 1976 Byelaws governing keeping and using boats on the artificial parts of the system, that the relevant authority was conferred upon BW. The Pleasure Boat Licence then took the place of the previous conferred rights of navigation, and that necessarily involves the right to moor incidental to that navigation, wherever such mooring was to banks owned and regulated by the authority. [Control over mooring to the offside was always reserved to the riparian owner.]

 

Because the towpath has always been primarily to enable the navigation of boats, the right to moor incidental to that, must – on my argument – be inclusive of, but limited to, such usage.

Thanks for such a detailed reply, Nigel - much appreciated.

[johnswateryadventures]

I think the root problem is boaters are treated as a nuisance by CRT managment, rather than the vital element that ensures the waterways are kept open. It was boaters that saved the canals from dereliction, without them there would be no CRT.