Waterways Acts

[Tony Dunkley]

Many civil cases are withdrawn following informal review of both sides (sometimes with a judge more interested in resolution than principle) or after an out-of-court settlement.

 

There was no 'out of Court' settlement, and nothing informal about C&RT dropping the 2014 Claim against me following recognition that they were on a hiding to nothing after being served with the Defence and receiving a valid and un-refuseable PBC application for the boat in question.

 

In a final throw of the dice and, presumably, hoping to come out of it with a little less egg on their faces and something in the way of costs, rather than simply filing a Notice of Discontinuance, which is the procedure laid down in the CPR's for ending an action in such circumstances, they pushed the matter to a second Hearing to obtain a ruling on the Discontinuance despite that being entirely at the Claimant's discretion, and NOT requiring the agreement of the Court.

Edited September 19, 2016 by Tony Dunkley

[NigelMoore]

 

Thanks for the clarification. The Wingfield case is obviously not brilliant for boaters who oppose CRT on similar issues, and rightly as you say didn't set a precedent, or argue on the terms under discussion here. BUT people are quoting side issues from eg BWB vs Geoff Mayers case regarding home mooring use, which has much the same validity. I think we all need to be careful with what are merely untested opinions; what are barely/vaguely relevant court cases; and what is actually useful in a robust debate or subsequent court case. Until a court case which pretty directly relates to these issues occurs, none of us really know how far CRT can use the 1962 Act to impose conditions and charges etc. Of course, the wording of the Act is mightily convenient for CRT and doesn't look brilliant for argumentative boaters, so CRT are going to look towards it as a solution to a number of its issues.

 

“Much the same validity” as what? I completely agree that we need to be careful what we quote, and to be aware as to the strength of the precedent/persuasive nature of what we quote, but quoting obiter dicta from County Court judges is not without some value. Despite not being binding, they are of some “persuasive” value, and can be helpful indications of how a higher level of the judiciary might see things.

 

In line with that approach, BW/CaRT have often promoted the findings of the judge in the Davies case. Everyone agrees that they are not binding, but every judge thus far has taken cognisance of them, even though not formulating decisions based on them.

 

Equally, there is the same value in quoting the Mayers judgment. The Judge did not have to say what he did – he specifically told Geoff that his arguments could not enter the judicial consideration of his case – but he obviously recognised and sympathised with his plight, and deliberately included his extensive commentary, which can have no other purpose than to provide a hopefully persuasive viewpoint for future reference. It is therefore only right that his voluntary obiter dicta be quoted where appropriate to context, albeit with recognition of its limited power.

 

As to the s.43 argument, CaRT will never run that in any Court above the County level; they know only too well that it is good only for duping trusting boaters, and, perhaps, County Court Judges with an overload of cases to be dispatched with speed.

 

People forget, but they have already had their chance to fully argue this at High Court level in my own case, and desisted. Having expected them to rely on this rather heavily, I devoted some considerable length of argument over the topic in my Skeleton.

 

Much to Hildyard J’s evident puzzlement, BW forebore to respond to that other than to agree with the limitations to the section I have always argued for! The Judge described this as a “somewhat lukewarm approach to section 43 of the 1962 Act in its submissions (written and oral) before me.” Having no argument from them, the Judge made no finding on the matter – though he did comment that he was not convinced that BW had ever validly exercised the clause in respect of the section of waterway we were dealing with.

 

“• In his written submissions the Claimant depicted section 43(3) of the 1962 Act as BWB's "all-time favourite", a "universal catch-all power of the broadest application, enabling them to control virtually anything done on waters under their control."

 

• In anticipation of BWB placing predominant reliance on that provision the Claimant devoted considerable time and research (set out in some 40 paragraphs of his Skeleton Argument) to its true construction. He urged that, both as a matter of logic and coherence, and consistently with case law to the effect that the powers of BWB should be restrictively construed (again citing Stourbridge Canal Company v Wheeley (1831) 2 B. & AD. 792 and Swan Hill Developments Limited and others v BWB [1997] EWCA Civ 1089), any powers conferred by section 43(3) of the 1962 Act should be read as confined to charging and prescribing terms and conditions for use expressly made subject to the control of the BWB and not for use exercised as of right (such as user pursuant to PRN). He also cited extracts from evidence given in Select Committee to the effect that BWB recognised that its powers under section 43(3) of the 1962 Act were uncertain as to their precise scope .

 

• In the event, BWB did not appear to me to put such great reliance on the section. In BWB's Skeleton Argument the only reference to it was accompanied by BWB's acceptance that "the ability to utilize section 43(3) is not available to BWB, pursuant to section 43(2) if, in the context of the present case, section 43 of the 1793 Act provides for a freedom from the relevant charge." Although perhaps the extent of this concession is not ideally clear, I understand BWB thereby to accept that section 43 of the 1962 Act not only does not enable it to make a charge in respect of use of the GUC pursuant to PRN, but also that section 43 of the 1962 Act does not provide it with power to make the exercise of PRN, or the enjoyment of any other rights recognised and preserved by the 1793 Act (which both parties accepted is a "local enactment" for the purposes of section 43 of the 1962 Act), subject to any terms or conditions.” [my emphasis]

 

I do not agree with Hildyard J that the extent of BW’s “concession” was not clear. It is sufficiently clear that BW accepted the view I have been promoting so tediously often in this Forum, that where freedom from charges was expressly provided for in enabling Acts, or where such charges were “otherwise prohibited”, s.43 could NOT apply.

 

[alan_fincher]

Yes, you are wrong. As I said above, the £25 per year Carrying Licence deal was limited to Willow Wren only.

Blue Line's own 3 x pairs, and mine as the regular Winter time sub-contractor, had to fork out toll payments on tonnage for every load we ploughed round the Atherstone pound with.

 

Michael Streat described it as " honorary unpaid dredging", and having to pay BWB for the privilege of doing it didn't go down at all well with us.

Not long after the traffic ceased, the Atherstone pound was treated to the extensive dredging it had needed for years, but which BWB had been able to get away with not doing, thanks to the regular passage of loaded boats.

Well I found why I thought that, Tony.

 

Alan Faulkner says in his booklet "Willow Wren, The Story of a Canal Carrying Company".....

 

As a result the Board agreed to introduce the licensing system for a trial period for the Willow Wren boats and also the small fleet operated by Blue Line Canal Carriers Ltd. The licence fee was £25 per annum.

You seem to be saying Alan Faulkner is incorrect on this point, then?

[furnessvale]

 

 

You seem to be saying Alan Faulkner is incorrect on this point, then?

No one is infallible. I have identified two errors or unwarranted assumptions in Faulkner's FMC book which I have communicated to the publisher without response.

 

George ex nb Alton retired

[Graham Davis]

I don't get it.

 

There are people on here implying, but not proving, that the licencing system we have now is illegal. So how do they think the system is to be funded if no-one pays the licence?

 

I note that someone said they refused to accept the Terms & Conditions of their licence when they last renewed, however isn't there an "implied consent" once you have accepted the licence, no matter what was said previously?

[stovepipe]

I don't get it.

 

There are people on here implying, but not proving, that the licencing system we have now is illegal. So how do they think the system is to be funded if no-one pays the licence?

 

I note that someone said they refused to accept the Terms & Conditions of their licence when they last renewed, however isn't there an "implied consent" once you have accepted the licence, no matter what was said previously?

You're right, you dont get it.

[NigelMoore]

 

The optional Licence idea had also been extended to some of the carrying boats that were still operating back in the 1960's. Somewhat strangely the scheme was confined to Willow Wren, who could buy an annual commercial licence for £25 per boat instead of running a Tolls account with Leeds office.

 

Might that not have applied only to your particular area, at that time, Tony? The BWB Annual Report of 1964 says:

 

“When 1964 began the Board had already withdrawn from operations in the south-east, but they were still in process of reducing their operations in the north-west. Some private operators expressed an interest in operating the boats in that area on a licence (as distinct from toll) basis, and the Board – having in mind particularly that some of the ‘boat people’ might welcome an opportunity to continue their trade – agreed to extend the experimental licence arrangements introduced on the Grand Union in 1963 to the parts of the Shropshire Union Canal and the Trent and Mersey Canal (with through-route use of the River Weaver from Anderton to Weston Point, in order to take up cargoes at the latter place. The experimental licensing arrangements have been made for a period of two years. In the case of the south-east licences, the two year period terminates at the end of 1965. For the north-west licences (which, as just mentioned, started significantly later) the end of the period is 31st December, 1966.” . . . “The licences have been fixed at £21 a year for the north-west and £25 a year for the south-east.”

 

So there were two different commercial boat licences, one cheaper than the other, depending on where you operated. From what you have said, it seems the WW boats came under the south-east division?

 

[Tony Dunkley]

Well I found why I thought that, Tony.

 

Alan Faulkner says in his booklet "Willow Wren, The Story of a Canal Carrying Company".....

 

You seem to be saying Alan Faulkner is incorrect on this point, then?

 

I've no idea who Alan Faulkner is, or where, or who, he got his information from, but what I know comes from knowing Michael Streat personally and being directly involved with Blue Line's carrying activities whilst working for them.

The annual Licence deal and the consequent savings on toll payments were just one aspect of the help and support that British Waterways gave to Willow Wren; the other major one being the handing over of most of the remaining narrowboat carrying fleet for a peppercorn rent after the 1963 freeze up when, lime juice, piles and cement jobs excepted, BW pulled out of narrowboat carrying.

Edited September 19, 2016 by Tony Dunkley

[stovepipe]

 

There are only three statutory conditions for a licence, anything else is fiction. What you can and can't do on the canals is governed by bylaws.

 

Imagine the police commissioner asking you to sign a contract to abide by the law, but in there are some he has just made up. " you must buy sandwiches for police officers when asked to do so " you would not sign it, I hope ?

Edited September 19, 2016 by stovepipe

[Alan de Enfield]

There are only three statutory conditions for a licence, anything else is fiction. What you can and can't do on the canals is governed by bylaws.

 

Imagine the police commissioner asking you to sign a contract to abide by the law, but in there are some he has just made up. " you must buy sandwiches for police officers when asked to do so " you would not sign it, I hope ?

 

It is actually illegal to provide drink or food free-of-charge to an on duty Policeman

 

(That was part of the 'Landlords Licence' training and an exam question)

[Paul C]

There are only three statutory conditions for a licence, anything else is fiction. What you can and can't do on the canals is governed by bylaws.

 

Imagine the police commissioner asking you to sign a contract to abide by the law, but in there are some he has just made up. " you must buy sandwiches for police officers when asked to do so " you would not sign it, I hope ?

 

In your police analogy, let's take another example: Police provide their services to football clubs on match days, should this be provided free, or the football clubs charged for it?

[NigelMoore]

There are people on here implying, but not proving, that the licencing system we have now is illegal. So how do they think the system is to be funded if no-one pays the licence?

 

I must have missed something Graham, because I see nowhere that anybody has claimed that the licensing system we now have is illegal.

 

The licensing system we now have is a matter of secondary legislation in the form of approved byelaws, drafted and approved under the authority of the BW Act of 1975. Can’t get more legal than that.

 

What some of us have been saying is that prior to that date, pleasure boat licences were not legally mandatory [no matter what BW had been saying]. Even so, that is not the same as saying that those pre-1976 licences were illegal, although it would have been illegal for BW to have evicted non-licensed boats from their waterways. But they could not have done that anyway – remember that s.8 powers to remove boats from the waterways if left there without lawful authority, only came into being AFTER the boat licences were made mandatory under the byelaw.

 

What IS being challenged, is the legal BASIS of the pleasure boat licence, which is where you may [understandably] have become confused. In respect of the current licensing system, that might seem a pernickety approach, but it is in fact important, when the terms of issue are considered.

 

From their very beginning to this date, BW/CaRT claimed s.43 of the 1962 Act as underpinning the right to compel licensing of boats. That is how they continue to paint the situation, because it allows them to claim that breach of the attached T&C’s empowers revocation of the licence.

 

The claim is simply untrue; they can only revoke licences or registration certificates on failure to abide by s.17 of the 1995 Act. These “relevant consents” are not the matter of contract they once were, pre-1976; CaRT have a statutory obligation to issue them upon the s.17 conditions being met.

 

For clarity, addressing any concerns as to conditions of use of the waterways – those that are set out in byelaws are compulsory already [and always had been], breach of which can be – and should be – punished by action in the Magistrates Courts. You are liable to such action whether or not you have a licence [and indeed, not having a licence is itself a breach punishable under such action].

 

The difference all this makes, is the difference between CaRT being able to use boat seizures as the tool for enforcement of byelaws [and extraneous unilateral rules], or not.

 

[stovepipe]

In your police analogy, let's take another example: Police provide their services to football clubs on match days, should this be provided free, or the football clubs charged for it?

I can't see the link to that question, its a specific question about policing, the police like C&RT should do whatever they see fit within the law. The T&C's document is illegal as would be the police attempting to create their own laws by tricking you into signing a civil contract.

Edited September 19, 2016 by stovepipe

[stovepipe]

I don't get it.

 

 

 

I note that someone said they refused to accept the Terms & Conditions of their licence when they last renewed, however isn't there an "implied consent" once you have accepted the licence, no matter what was said previously?

A contract that claims to override the law is null and void whether agreed to or not.

 

Quote

 

"An illegal agreement, under the common law of contract, is one that the courts will not enforce because the purpose of the agreement is to achieve an illegal end. "

Edited September 19, 2016 by stovepipe

[Paul C]

I can't see the link to that question, its a specific question about policing, the police like C&RT should do whatever they see fit within the law. The T&C's document is illegal as would be the police attempting to create their own laws by tricking you into signing a civil contract.

 

I can't see why you decided to introduce a ridiculous "must buy sandwiches for the police" argument into the debate. I'm sorry you can't see the link, I will explain it. The 1962 Act allows CRT to charge for services, and set terms and conditions on them. As well as these extra services, CRT have an overall role as a navigation authority. In a similar analogy, the police have an overall role as law enforcement, but their role extends beyond this, one of these areas is that they provide services eg presence of football match days.

[mayalld]

 

I must have missed something Graham, because I see nowhere that anybody has claimed that the licensing system we now have is illegal.

 

The licensing system we now have is a matter of secondary legislation in the form of approved byelaws, drafted and approved under the authority of the BW Act of 1975. Can’t get more legal than that.

 

What some of us have been saying is that prior to that date, pleasure boat licences were not legally mandatory [no matter what BW had been saying]. Even so, that is not the same as saying that those pre-1976 licences were illegal, although it would have been illegal for BW to have evicted non-licensed boats from their waterways. But they could not have done that anyway – remember that s.8 powers to remove boats from the waterways if left there without lawful authority, only came into being AFTER the boat licences were made mandatory under the byelaw.

 

What IS being challenged, is the legal BASIS of the pleasure boat licence, which is where you may [understandably] have become confused. In respect of the current licensing system, that might seem a pernickety approach, but it is in fact important, when the terms of issue are considered.

 

From their very beginning to this date, BW/CaRT claimed s.43 of the 1962 Act as underpinning the right to compel licensing of boats. That is how they continue to paint the situation, because it allows them to claim that breach of the attached T&C’s empowers revocation of the licence.

 

The claim is simply untrue; they can only revoke licences or registration certificates on failure to abide by s.17 of the 1995 Act. These “relevant consents” are not the matter of contract they once were, pre-1976; CaRT have a statutory obligation to issue them upon the s.17 conditions being met.

 

For clarity, addressing any concerns as to conditions of use of the waterways – those that are set out in byelaws are compulsory already [and always had been], breach of which can be – and should be – punished by action in the Magistrates Courts. You are liable to such action whether or not you have a licence [and indeed, not having a licence is itself a breach punishable under such action].

 

The difference all this makes, is the difference between CaRT being able to use boat seizures as the tool for enforcement of byelaws [and extraneous unilateral rules], or not.

 

 

OK, let us look at a hypothetical situation.

 

As you have noted, prior to 1976, BWB couldn't impose compulsory licences, but could offer them as an alternative to the statutory scheme of charging, and from what Tony says, these licences represented a considerable saving compared to the tolls.

 

So, it would appear that CRT have complete freedom to offer non-statutory licences under s43, provided they also offer statutory licences as well.

 

Is there anything to stop them tripling the price of a statutory licence, and at the same time introduce a non-statutory licence at the same price as the current licence?

[Tony Brooks]

A contract that claims to override the law is null and void whether agreed to or not.

 

Quote

 

"An illegal agreement, under the common law of contract, is one that the courts will not enforce because the purpose of the agreement is to achieve an illegal end. "

 

It is also voidable in that either party can discontinue the contract because of the lack of legality.

 

I rather wonder how CaRT would react is a large number of boaters informed them that they were voiding the contract on the grounds of lack of legality.

[NigelMoore]

 

OK, let us look at a hypothetical situation.

 

As you have noted, prior to 1976, BWB couldn't impose compulsory licences, but could offer them as an alternative to the statutory scheme of charging, and from what Tony says, these licences represented a considerable saving compared to the tolls.

 

So, it would appear that CRT have complete freedom to offer non-statutory licences under s43, provided they also offer statutory licences as well.

 

Is there anything to stop them tripling the price of a statutory licence, and at the same time introduce a non-statutory licence at the same price as the current licence?

 

The difference between commercial craft annual licences and tolls, was significant - £25 as opposed to an average annual toll income of £150 per boat.

 

The difference in income from pleasure boats is unclear; the advantage to both parties would have been administrative more than financial I suspect. In 1964 the average combined licence and mooring income for a pleasure boat was £7.30. You could use that to pass through the river locks free of toll, or you could use a 6 month lock-pass, or pay as you went. It was proposed to reduce the lock pass by 10% and increase the lock charge by the same, but I don’t know whether they implemented that, nor do I know what the comparison between those and the licence would have been.

 

The best I can figure from memory, is that BW estimated an increase of income on the rivers of a bit over £3,000 per annum once the 1971 registration scheme became law, so in that respect the cost would have been disadvantageous to boaters limiting their use to the rivers.

 

Anyway – to answer your following query, any voluntary, non-statutory licence scheme would not, by definition have to have ANY statutory underpinning; consequently s.43 still would not enter into it.

 

There is nothing other than fear of public outrage to stop CaRT tripling the existing licence fee; the statutory provisions allow them to charge what they like for these, and the only constraint is that the PBC cannot be charged more than 60% of the PBL.

 

Could they now, offer an alternative, non-statutory licence at a cheaper price but subject to agreed conditions? My immediate reaction is to say no; they could not dispense with a licence once made mandatory – but I will not commit myself on that just yet; it is an interesting concept.

 

What they can do, is create different classes of pleasure boat licences, and the only constraint re: costs is that they cannot be greater than the standard, so, just maybe, your intriguing idea has possibilities.

 

[stovepipe]

I can't see why you decided to introduce a ridiculous "must buy sandwiches for the police" argument into the debate. I'm sorry you can't see the link, I will explain it. The 1962 Act allows CRT to charge for services, and set terms and conditions on them. As well as these extra services, CRT have an overall role as a navigation authority. In a similar analogy, the police have an overall role as law enforcement, but their role extends beyond this, one of these areas is that they provide services eg presence of football match days.

 

"The 1962 Act allows CRT to charge for services, and set terms and conditions on them."

 

That is not a fact, the correct interpretation of section 43 (3) 1962 TA has not been settled.

[stovepipe]

The difference between commercial craft annual licences and tolls, was significant - £25 as opposed to an average annual toll income of £150 per boat.

The difference in income from pleasure boats is unclear; the advantage to both parties would have been administrative more than financial I suspect. In 1964 the average combined licence and mooring income for a pleasure boat was £7.30. You could use that to pass through the river locks free of toll, or you could use a 6 month lock-pass, or pay as you went. It was proposed to reduce the lock pass by 10% and increase the lock charge by the same, but I don’t know whether they implemented that, nor do I know what the comparison between those and the licence would have been.

The best I can figure from memory, is that BW estimated an increase of income on the rivers of a bit over £3,000 per annum once the 1971 registration scheme became law, so in that respect the cost would have been disadvantageous to boaters limiting their use to the rivers.

Anyway – to answer your following query, any voluntary, non-statutory licence scheme would not, by definition have to have ANY statutory underpinning; consequently s.43 still would not enter into it.

There is nothing other than fear of public outrage to stop CaRT tripling the existing licence fee; the statutory provisions allow them to charge what they like for these, and the only constraint is that the PBC cannot be charged more than 60% of the PBL.

Could they now, offer an alternative, non-statutory licence at a cheaper price but subject to agreed conditions? My immediate reaction is to say no; they could not dispense with a licence once made mandatory – but I will not commit myself on that just yet; it is an interesting concept.

What they can do, is create different classes of pleasure boat licences, and the only constraint re: costs is that they cannot be greater than the standard, so, just maybe, your intriguing idea has possibilities.

 

It sounds like a public body deciding to privatise itself, basically mugging off Parliament, challenges to the power of Parliament don't usually go well ?

 

Many interviews without coffee at the house of commons for Richard Parry I would think ?

[Paul C]

"The 1962 Act allows CRT to charge for services, and set terms and conditions on them."

 

That is not a fact, the correct interpretation of section 43 (3) 1962 TA has not been settled.

 

What do you mean "correct interpretation has not been settled"?

 

Anyway, regarding its factual accuracy, here is the legislation:

 

"Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the Boards shall have power to demand, take and recover such charges for their services and facilities, and to make use of those services and facilities subject to such terms and conditions, as they think fit."

[NigelMoore]

 

It is also voidable in that either party can discontinue the contract because of the lack of legality.

 

I rather wonder how CaRT would react is a large number of boaters informed them that they were voiding the contract on the grounds of lack of legality.

 

IF these licence applications were in fact contracts, they would be illegal for the simple reason that the authority is not empowered to enter into such a contract, whether the other party was willing or not; CaRT have no freedom to deny applications for a licence unless a contractual agreement is entered into.

 

But what difference would it make if large numbers of boaters said they were voiding the “contract”? Very little at all, that I can see. The Licence itself is not invalidated, nor can the statutory requirements for it be voided; nor, indeed, could liability under the byelaws and other statutes be side-stepped. The subject only becomes an issue when CaRT seek to revoke the licence on this basis. That is the time to step forward and make the relevant challenge.

 

[churchward]

It would be sensible for CRT to encourage CCers and liveaboards to report directly to them about maintenance etc required - they are generally the ones with the knowledge and awareness of the system to be able to warn of problems arising.

I agree that there should (must) be room for all types of boating including CCing and live aboards. I don't agree though for your reason why it should be this way. Your statement assumes that CCers and liveaboards will know (i.e. travel) the system more/better than other boaters. This will be true of people who travel the system widely be they ccers or not. In fact I have often found for instance that I travel in a year more hours than a given CCer does.

[Alan de Enfield]

 

What do you mean "correct interpretation has not been settled"?

 

Anyway, regarding its factual accuracy, here is the legislation:

 

"Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the Boards shall have power to demand, take and recover such charges for their services and facilities, and to make use of those services and facilities subject to such terms and conditions, as they think fit."

 

Is the Canal a 'service' or 'facility' ?

[magnetman]

Sorry if this is a bit personal but

 

Stovepipe

 

Are you onionbargee?

 

Sorry to be direct but all this swapping of names gets a bit confusing.

 

And apologies if you aren't