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onionbargee

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By which statement you argue eloquently against yourself, if the additional powers in the 1995 Act already existed why did they go to so much effort?

 

So much effort and they didn't achieve what they wanted, which you say they already had, the power to make a license subject to a mooring.

 

Seems a bit daft really. They have, according to you and nobody else, not even CRT, the power to say 'no mooring, no license' so they ask Parliamenf for a power they already have, Parliament says 'no' and yet you maintain they still have this power?

 

Even Lewis Carroll is struggling with this one. Six impossible things before breakfast indeed.

 

You are seeing this in a very binary fashion.

 

Either they do or do not have a power, and in the final analysis that is what would be determined.

 

However, as with much of the law, it isn't over until the fat lady sings (the fat lady being the Supreme Court), and until that happens (which it won't, because they now rely on the 1995 Act powers), the question as to whether they already had those powers remains unanswered.

 

You ask "why?". Why would they go to all that effort, and not achieve what they wanted.

 

I say "spectacular bullet in foot event".

 

They had (or perhaps I should say "they probably had") all the powers that they needed. but those powers rested upon s43, and it was recognised that there was an arguable case against those powers. Note that "an arguable case" doesn't mean that the argument was valid.

 

So, they set out to emphatically underline some of their powers, and put them beyond the reach of any legal challenge to s43. However, it all went badly wrong for them. They didn't get some of what they wanted, and other bits were reworded such as to make them ambiguous in the extreme.

 

I don't doubt that if they had known what they were going to get as the 1995 Act in the end, they would have decided not to go for it, and stick with the s43 powers, as the 1995 Act has been even more subject to litigation than s43 might have been.

 

However, having set out to have certain powers enshrined in statute, the genie was out of the bottle. They could hardly turn round and then claim the powers that they already had, immediately after claiming that they needed an Act.

 

So, the effect of the 1995 was that various powers that it is near certain that they did have became far less certain, and the powers that they gained were so badly worded that whilst more certain than before were less useful than the powers they probably already had.

 

Given the regular posts that tell us how incompetent CRT are today, why be so ready to believe that they got it right in the early 1990s?

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As you note, the 1976 bye-laws make licences compulsory (other than for commercial vessels on commercial waterways, which I suggest remain a matter of contract) . . .

 

That would have to be correct – but as a matter of curiosity [i admit to ignorance of the relevant historical and/or current facts], are commercial licences still issued in respect of commercial waterways, rather than continuing to apply the toll system of charging? The 1965 Report referred to the experiment with licences, but did that continue?

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(9) Nothing in this section shall affect any power of the Board under any other enactment to refuse or withdraw a relevant consent.

 

Now, if we assume that lawyers are paragons of virtue, not seeking to maximise revenue, we might assume that;

 

1) they thought that there were rights to revoke licences [relevant consents] already subsisting

2) they were clear that they were NOT seeking to say that these were the only powers to revoke a licence [relevant consent].

 

so, the question is "what powers do they have already" . . .

 

True enough. The powers that they might have to refuse or revoke relevant consents other than the 3 conditions of s.17(3) must be sought for within any of the other enactments referred to.

 

NO other enactments relate to provisions governing licences for pleasure boats or commercial vessels, so far as I am aware. The only “any other enactment” relating to either of those would have to be sought for in legislation post the 1975 Act that made these a statutory creation – and I can find nothing relevant. Post 1976 BW could have set out relevant terms and conditions to which the licences were to be subject via byelaws, but never did; they chose to employ the primary legislation of the 1995 Act in lieu thereof.

 

That leaves the certificates for pleasure boats and houseboats. NO “other enactment” governed conditions for issue of the pleasure boat certificates, beyond the application requirements themselves [including fees and provision of information]. If you applied for a certificate giving the required information with the relevant fee, then no other conditions were applicable until the 1995 Act was passed [this point was explicitly argued by BW in contending for the need for the 1995 Act; s.43 was recognised as having no possible application in respect of the river registrations].

 

That leaves houseboat certificates as the only instance where other conditions allowing for refusal and/or revocation had been enacted.

 

The grant of power to issue these was explicitly contingent on local authority approval – if that did not exist, no houseboat certificate could be unilaterally granted: 1971 Act, s.13(1) & (5).

 

Assignment of the houseboat certificate was expressly subject to such conditions (including conditions relating to the prevention of pollution) as they think fit”. S.14(1)

 

The 1995 Act itself provided a set of general terms [set out in Schedule 1 of the Act] to which the houseboat certificate was subject “in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971.”

 

Included within the compulsory terms was the provision that where grant of mooring consent lay outwith BW’s powers, the certificate would cease to have effect upon withdrawal or expiry of the third party’s consent – it would automatically be determined [or effectively revoked, in other words]. The same condition applied to planning consent. In both cases BW/CaRT would have no choice but to refuse the certificate if the necessary conditions were not met at time of application.

 

No other “relevant consent” has been made “subject to” such terms and conditions, and only the houseboat certificate was obliged to contain, or refer to an attached document containing, a copy of these terms and conditions to which it was subject. If such wording was deemed necessary in respect of those but no others, the situation ought to be crystal clear.

 

It follows that houseboat certificates are the only “relevant consents” to which “any (relevant) other enactment” applies.

 

Edited by NigelMoore
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The point I would make is that the 1995 Act, whilst providing 3 very specific requirements that, if not met, allow it to refuse a licence (and by the exception proving the rule implying that these are the ONLY reasons to refuse a licence) . . .

 

I do not believe that the “exception proving the rule” maxim is the basis for restricting reasons for refusal/revoking to those specified. The wording is that [with the provisos of s.9 acknowledged] they “may refuse a relevant consent UNLESS” the 3 conditions are met. The inescapable corollary is that IF the 3 conditions are met, they may not refuse.

 

No “other enactment” as per s.9 applying to any other than houseboat certificates, it follows that for all other relevant consents these remain the only 3 pre-conditions governing issue of the licence/certificate.

 

Given CaRT’s published acknowledgement of this, the debate on the point is of intellectual interest only.

 

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. . . the question is "what powers do they have already", which is why I seek to determine what the statutory basis of a licence is.

 

I have put forward s43 of the 1962 Act, but I am open to being proved wrong. The Acts of 1971, 1975, 1983 and 1985 all recognise that a licence exists, but seem silent as to what authority there is for a licence, as do the 1976 bye-laws.

 

If s43 is actually the original statutory basis, and the later legislation simply made rules that related to this creation of the 1962 Act, then there is no apparent limitation to the board's powers to revoke a licence, and the additional powers in 1995 actually already existed.

 

How could s.43 grant powers to demand BW’s licence as a condition for having a boat on the canals and rivers, while the public rights of navigation subsisted? Any authority to grant permission to do something can only exist – as a minimum - where that permission is not already existing, unrepealed.

 

If, despite the legal impossibility, licences were a "creation of the 1962 Act", then they were a statutory obligation from that time, and the subsequent Acts relating to them were wholly unnecessary - ALL of them, insofar as they relate to to boat licences and registrations, not just the 1995 Act. Furthermore, the General Canal Byelaws from 1965 onwards were a waste of time and money also; all byelaws could have been dispensed with, and unilaterally determined terms and conditions of use of the waterways could have been made an integral part of the boat licences from 1962 onwards.

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I've posted the question before of why are CRT using the section 8 process against non licence payers, instead of other easier and cheaper remedys available to them..

 

They have ignored the assertions that a purely monetary claim is not all that was open to them and have restricted their argument to that alone.

 

The original Defence stated:

 

The management decision to seek the removal of the unlicensed vessel from waterways owned or managed by the Trust, as distinct from pursuing a monetary penalty, being a question of degree, was legitimate given that:

 

(i) A consequence of pursuing 'only' a monetary sum remains an unlicensed vessel, especially in the context of a boat owner (namely the Claimant) who has failed to respond to numerous requests to obtain a licence and who, as evidenced by the terms of his Statement of Case, denies that he is required to obtain a licence;

 

(ii) A consequence of pursuing 'only' a monetary claim is that a boat owner can seek to effectively pay for a licence in arrears as opposed to in advance, thereby obtaining an advantage over other boaters as well as depriving the Trust of monies due to it;

 

(iii) A consequence of pursuing 'only' a monetary claim is the disproportionate requirement of the Trust to seek payment of monetary sums, potentially on a frequent basis, thereby shifting the balance from a boater seeking consent from the Trust to be on the relevant waterway and paying accordingly, to the Trust having to seek payment; and

 

(iv) A consequence of pursuing 'only' a monetary claim is that the boater and the applicable vessel will not have agreed to the numerous terms and conditions applicable to all boaters for the benefit and safety of all those using the inland waterways owned and/or managed by the Trust.

 

The amended Defence added:

 

(v) A consequence of pursuing `only' a monetary claim is that the boater will circumvent the basic requirements contained in section 17(3) of the 1995 of having a boat safety certificate and insurance, which is to the benefit of all users of the inland waterways, as well as obtaining a home mooring or continually cruising. Indeed the boater will circumvent the entire licensing regime; and

 

(vi) A consequence of pursuing `only' a monetary claims is that the Trust is forced to incur the costs, including in legal proceedings, when it is unknown to the Trust, especially in circumstances where the boater has not responded to the prior correspondence from the Trust that would have occurred, whether the boater can pay those costs, let alone the monetary sum for which judgment is sought.

 

The question of why they ought not to have prosecuted the offence in the Magistrate's Court - which would, of itself, provide adequate answer to most of the above - has been [perhaps understandably] left unanswered.

 

Edited by NigelMoore
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. . . I invite you to imagine that the 1995 Act never existed.

 

What powers to refuse a licence would CRT have in that scenario?

 

No powers whatever to refuse a pleasure boat certificate, nor to refuse either pleasure boat or commercial vessel licences, if applied for with fee and required information;

 

Power to refuse a houseboat certificate in situations where there was lack of a mooring consent and/or planning consent, and/or if the attached conditions were not met.

 

Would it have mattered so much? All the byelaws governing use of the waterways by the boats thus licensed/registered would have remained enforceable, as they are now. More could have been passed if so desired [and still can]. Refusing licences merely opens the gate to removing a paying customer, while doing nothing to address any abuses of the rules.

 

 

Edit to add: Your argument that licences are based on s.43 of the 1962 Act is of course what BW and CaRT have maintained for a very long time. It is the only straw they can hang onto in this regard [even though it could never have been argued to apply pre-1968, and could not have been mandated until 1975].

 

Even so [as you acknowledge], BW were aware of the controversial aspect of that. What is curious is that despite the fact that there were “no saving provisions” in s.43 [to use a favoured argument of Mr Stoner] as to geographic limitations, the distinction between canals and rivers was openly admitted in respect of boat licensing, and powers to refuse them.

 

For the sake of others not so well informed, on day one of the House of Lords presentation in 1990, Mr Lockhart-Mummery QC told them that “These licences are issued and charged for pursuant to the Board’s powers under Section 43(3) of the Transport Act 1962.” . . . “There has been uncertainty, let me say straightaway – and this is one of the regions where there have been different views as to the legal position expressed – as to the level of detail which can be prescribed under section 43(3) in relation to licences.” . . . “because there has been uncertainty as a matter of law as to the extent of the powers available under section 43(3) . . .”

 

Three years later, on day one of the presentation to the Commons Select Committee, BW acknowledged that those alleged powers could not be applied to the rivers at all: “The distinction is between that power on the one hand which regulates canals and accordingly regulates pleasure boats on canals, and pleasure boat certificates which are granted pursuant to the British Waterways Act 1971 which places on us a mandatory duty to issue a certificate provided an application is made for it and the fees are charged. Those are the conditions, and the regulation of pleasure boats on rivers is limited by the terms of that litigation.” [i suspect he meant legislation] . . . “That is quite an important, fairly basic point in one’s mind that in terms of the rivers being controlled, we are obliged in terms of the 1971 Act, absent this legislation [i.e. the 1990 Bill that became the 1995 Act], to issue a certificate if the application is made for it, whereas we have a wider power, the exact scope of which may be controversial, in terms of the 1962 Act.”

 

Edited by NigelMoore
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How about a motor and butty fixed together breasted up, let's say for instance by welded closed chains bow and stern, putting aside any practicle issues, there is nothing in law i know of saying this is not one craft for licencing purposes, would CRT have to accept it under the " what is not expressly prohibited is allowed" rule ?

 

( I know for a fact they won't. )

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How about a motor and butty fixed together breasted up, let's say for instance by welded closed chains bow and stern, putting aside any practicle issues, there is nothing in law i know of saying this is not one craft for licencing purposes, would CRT have to accept it under the " what is not expressly prohibited is allowed" rule ?

 

( I know for a fact they won't. )

If you planned to do any moving it would have to be either a short boat or a short butty to get through locks.

 

If they are fastened together permanently surely it isn't a butty and a boat it is a single boat so you just apply for a licence for the correct length etc and don't mention a butty.

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I've posted the question before of why are CRT using the section 8 process against non licence payers, instead of other easier and cheaper remedys available to them.

 

I can only guess the answer is malicious.

 

For light relief, BW's early ostensible views, dating to 29 June 1993, in their presentation to the Commons Select Committee -

 

BW’s barrister assuring the Committee: “the Board, like any other body possessing similar byelaw powers, it is not in their own interests to start expending huge amounts of court time pursuing people who are accidentally moored in a way that is an obstruction. It is in that sense a fairly unlikely scenario that a malevolent Board is going to spend huge amounts of time and effort prosecuting people in those circumstances.”

 

BW were asked: “Is licence revocation realisable?”, and the response was: “I am sure that had we thought that was the appropriate way to go forward that would have been a provision in the Bill. We believe that this is the appropriate way to go forward. Licence revocation would remove the ability of the individual to carry on using their pleasure boat even after they had mended their ways, if you follow me.” [my bold]

 

Very sensible approach too, but as we have seen with Andy Wingfield and others, the present authority is fully prepared to spend huge amounts of time and effort prosecuting holders of paid up boat licences for mooring against private property, let alone on the towpath for longer than necessary. Worse, BW having failed to get this made an offence, CaRT revoke the licence and s.8 the boat.

 

So does that make them, in their predecessor’s words, “malevolent”?

 

It brings to mind the plaintive protests of BW to the Committee a bit earlier: “You make it sound as if we are going to go to court every time a boat is moored which is an obstruction, which is plainly not the Board’s intention.” The Chairman responded: “But you will accept that – my colleague said that to Mr Dodd I think – it is not you we are worried about, or the present enlightened Board, but it is their successor who we do not know.”

 

Now, we do know.

 

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However, having set out to have certain powers enshrined in statute, the genie was out of the bottle. They could hardly turn round and then claim the powers that they already had, immediately after claiming that they needed an Act.

 

Regarding the validity of conditioning licences on the T&C’s, this also from Tuesday 29 June 1993, BW’s presentation to the Commons Select Committee on mooring control clauses –

 

Essentially we have put into the pleasure boat license conditions the type of mooring advice that is, to a degree, in the provisions of the Bill. We similarly put advice with regard to moorings in the Waterways Code for Boaters, which every license holder is sent . . . This however is an advice code and my advice is that this is not a legally enforceable document. It is merely advice which we give to our boaters. - [there is] no remedy for breach of the code conditions at all and therefore the powers that we seek in the Bill enable us to clearly establish where boats should and should not moor and have a simpler and clearer means of dealing with breaches.”

 

Those powers they were seeking did not survive passage of the Bill, so the situation remains that as conditions attached to the licence, they are not enforceable as law.

 

Needless to say, they relied back then, as they do now, on s.43 to justify conditioning the licence with such “advice”, and allegedly empowering them to revoke a licence for any breach – even though such breach carried no legal remedy, as admitted.

 

Regardless, however, whether s.43 would have so empowered them at the time [upon which we profoundly disagree], the fact that the 1995 Act s.17 restricted them to the 3 reasons for refusal has laid an emphatic gloss upon any such alleged powers in this respect, under the doctrine of implied repeal. So IF you are right regarding the scope of s.43, in other words, you are equally right that this was a "spectacular bullet in foot event".

 

The new approach taken since passage of the Act - disregarding the truth of what I have quoted you as saying above - has been to act as though none of all the previous palaver with Parliament is relevant; they have realised that they can succeed in doing what they want virtually all the time, simply by unilaterally asserting their right to do so. Why bother with the expense and trouble of getting new byelaws?

 

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However, having set out to have certain powers enshrined in statute, the genie was out of the bottle. They could hardly turn round and then claim the powers that they already had, immediately after claiming that they needed an Act.

 

Please forgive my going slightly off topic, but Dave Mayall's comment here immediately struck a chord. This is precisely what the Environment has done in the Thames Marina case which they lost in a lower court and is now going to appeal at the High Court.

 

The EA's application for the 2010 Order sought to add Thames 'adjacent waters' to the statutory definition of the river given in the 1932 Act, and did so by specifically describing those 'adjacent waters' as "any lake, pit, pond, marina or substantially enclosed water adjacent to any of the waterways to which this Order applies and from which a vessel may be navigated (whether or not through a lock or similar work) into the waterway."

 

The Environment Agency "set out to have certain powers enshrined in statute". On the adjacent waters powers they failed; the Secretary of State ordered the provision to be removed.

 

The Environment Agency "turned round and then claimed they already had these powers, immediately after claiming that they needed an Act."

 

That same genie is out of more than one navigation authority's bottle!

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I paid the licence renewal on another boat I own ( not Tadworth) today, the customer services person asked me if I agreed to the terms and conditions, I said no, he said I have to because they are "the law" and the licences are issued under " section 43 of the 1962 transport act" !! I said I just wanted my statutory licence please, we came to some kind of agreement, where neither of us gave way but it went through, he probably just ticked the box anyway. Obviously I don't expect a customer services operator to get involved in the legal points, but he was reading what he had been told to read off his screen.

 

Note that they tried to put a late payment charge on, but they had put a block on my account from before it expired on the 30 th April to 2nd of June, when I challenged it, they claimed they had took it off as a "goodwill gesture" ! I feel honoured not to be defrauded, cheers CRT.

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It is highly likely that they could have done the same think through s43 and bye-laws, but clearly it was felt that primary legislation would be the gold plated way to achieve it, and put certain things beyond any dispute at all.

 

They could certainly have achieved their objectives via byelaws [though not, in my opinion of course, through s.43]; the extension of powers in that regard was so provided for in 1975 and then in 1983.

 

I think it might be helpful if I tried putting the relationship between licences and conditions of use of the waterways in a slightly different way.

 

BW had always had the power to make byelaws conditioning the way boats could use their waterways; this they inherited from the British Transport Commission under the 1954 Act. What those byelaw making powers could NOT include, was any way of making compliance with any such conditions a pre-requisite for allowing boats to be kept or used on the waterways. Nobody, at the time of BW’s set-up in 1962, could prevent boats being kept or used on any of the waterways – no ‘permission’ [i.e. ‘licence’] was required from BW in other words, in order to have a boat on the system.

 

It was not until the 1975 Act that the byelaw making powers were extended so that entry onto and use of the waterways could be made subject to conditions. The byelaw passed the following year made possession of a licence the compulsory pre-requisite condition. No such byelaw could have been passed without the 1975 extension of powers to do so, nor could that extension of powers to do so have been possible without the prior extinguishment of navigation rights over the canals in 1968.

 

Further byelaws conditioning the issue of that licence could have been promoted under the terms of the extended power, but BW chose the primary legislation route instead. In fact, the later extended powers to create byelaws prescribing standards for boats wanting a licence, granted under s.3 of the 1983 Act, were actually abolished under the 1995 Act!

 

The fact is that both these former Acts are an acknowledgement that s.43 was not applicable - years before BW's arguments in 1990, that it was the statutory power behind licensing, even while simultaneously arguing that the powers they sought through the Bill were essential. [The one cogent reason presented for the Bill was, as I suggested earlier, the recognition that s.43 could not apply to the rivers, and that uniformity was desirable. That s.43, on their argument, could have obviated the need for the 1971 Act also, apparently did not cross their mind].

 

Some examples of BW's rationale for promoting a Bill rather than byelaws:

 

Day 1 Commons Select Committee [Mr Drabble for BW]

 

One of the specific problems which the Bill is intended to introduce is that there is in existing legislation the power to make byelaws governing standards, but it has never been used for the simple pragmatic reason that if you promote a byelaw setting out a set of standards . . . you cannot change it or promote any alteration without promoting a whole new byelaw and going through all the consent provisions which are applicable to byelaws.”

 

Day 6

 

“. . . I do not disguise the position that as far as the mooring provisions of this Bill are concerned, matters such as 17, 18 and 19, we could achieve the same result by an updated set of byelaws, which would impose a penalty, if we did it in contemporary circumstances, of £1,000. It is simply thought appropriate, as there was a level and it was our intention to make uniform provision, to do it in this manner.”

 

Day 7

 

“. . . the Board did obtain at one stage an ability to impose standards by way of byelaws . . . the Board has never used those powers . . . It never used those powers because it is becoming increasingly apparent that unless one takes the view that you can make a byelaw which enables you to change the standards from time to time to deal with fairly rapid technical developments, one is otherwise caught with a wholly unwieldy system and every time you want to change the details of standards, one needs to promote a new byelaw and achieve approval in that way.” . . . “we undoubtedly still do have the power to promote byelaws imposing standards on all boats on all canals and rivers in England and Wales.” [no longer of course] “Sir, for the reasons I have given it has never been thought appropriate to exercise those powers and instead we seek the powers that are in the Bill explicitly on the basis that they are actually a more appropriate way of grappling with technical issues such as standards.”

 

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