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cobaltcodd

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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 smile.png

Posted Yesterday, 06:44 PM

stovepipe, on 18 Sept 2016 - 6:14 PM, said:snapback.png

I didnt agree to the terms and conditions on my last licence renewal anyway, I made it very clear at the time, which sent the customer services phone operator into meltdown, but nothing has happened yet, the universe hasn't imploded, I'm guessing they just ticked the box anyway.

 

Similar thread here, http://www.canalworl...ic=86258&hl= on+my +last +licence +renewal&page=1

 

See post Nos 52, 53 & 68

Edited by Ray T, Yesterday, 07:00 PM.

Edited by Ray T
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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."

 

I know I've read it. So what ?

 

There is a difference of opinion on what it means, the C&RT say it is a stand alone clause that allows then to do anything they want, others don't agree. I've read Nigels detailed explanation of it's context on here before, I think you have too, I can't add anything to that.

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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."

 

A bit outdated Paul. The current wording, following amendments made by the 2012 Transfer Order, is –

 

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.”

 

This is NOT granting a power to charge for services and facilities, and to set terms and conditions for using them.

 

The crucial wording is what the sentence begins with: “Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection

 

The original enactments the section refers to had ALREADY conferred those powers, and the following Acts of the British Transport Commission had already confirmed those.

 

What the 1962 iteration did, was to change the constraints then in force, as to levels of charge and to setting of conditions. Originally, there were set levels and set conditions; the BTC Acts lifted those restrictions and merely required that these be “reasonable”; the 1962 Act abolished the need to be reasonable. That is the ONLY difference the Act makes to anything going before; the ONLY new aspect is the substitution of the words “as they see fit” for “as may be reasonable”.

 

Anything not chargeable under the original enactments remained not chargeable, and if that was not sufficiently evident from the preamble to subsection 3 quoted here, subsection 2 had already driven home the point explicitly:

 

Paragraph ( b ) of the foregoing subsection shall not be read as exempting the British Waterways Board or Canal & River Trust from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge.” [my bold]

 

This is what BW accepted in their pleadings in my case, as quoted by Hildyard J, as I posted earlier. They are not free to resile from that position in any future litigation.

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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?

We have as in the licence payers have , are you in fact a licence payer or are you meaning CRT HAVE .

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

 

 

Its open to interpretation. I don't believe a definitive list exists.

Its an interesting question though.

 

A canal, or a river navigation, is not in itself a 'service' or a 'facility', but the USE of them by "any ship or boat" is defined as such in S.43(8) the 1962 Act.

It is important to note that only 'use' is so defined, and to 'keep' a boat on a canal or river navigation is NOT included as utilizing a 'service' or 'facility'.

Seems definitive enough to me, and certainly doesn't require any 'interpreting' in a attempt to make it appear to mean something different !

Edited by Tony Dunkley
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A bit outdated Paul. The current wording, following amendments made by the 2012 Transfer Order, is –

 

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.”

 

This is NOT granting a power to charge for services and facilities, and to set terms and conditions for using them.

 

The crucial wording is what the sentence begins with: “Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection

 

The original enactments the section refers to had ALREADY conferred those powers, and the following Acts of the British Transport Commission had already confirmed those.

 

What the 1962 iteration did, was to change the constraints then in force, as to levels of charge and to setting of conditions. Originally, there were set levels and set conditions; the BTC Acts lifted those restrictions and merely required that these be “reasonable”; the 1962 Act abolished the need to be reasonable. That is the ONLY difference the Act makes to anything going before; the ONLY new aspect is the substitution of the words “as they see fit” for “as may be reasonable”.

 

Anything not chargeable under the original enactments remained not chargeable, and if that was not sufficiently evident from the preamble to subsection 3 quoted here, subsection 2 had already driven home the point explicitly:

 

Paragraph ( b ) of the foregoing subsection shall not be read as exempting the British Waterways Board or Canal & River Trust from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge.” [my bold]

 

This is what BW accepted in their pleadings in my case, as quoted by Hildyard J, as I posted earlier. They are not free to resile from that position in any future litigation.

 

Yes that's all accepted, the problem is CRTs interpretation of the applicability of the 1962 Act (when it comes to imposing charges such as the £25 overstay fee, or the terms and conditions of a licence) differs so wildly from yours. I believe CRT sought expert legal advice on this, why if its so wrong, was this type of advice given to them?

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A canal, or a river navigation, is not in itself a 'service' or a 'facility', but the USE of them by "any ship or boat" is defined as such by the 1962 Act.

It is important to note that only 'use' is so defined, and to 'keep' a boat on a canal or river navigation is NOT included as utilizing a 'service' or 'facility'.

Seems definitive enough to me, and certainly doesn't require any 'interpreting' in a attempt to make it appear to mean something different !

I cant read these acts without getting a headache, they read like Stanley Unwin wrote them to me.

 

Yes that's all accepted, the problem is CRTs interpretation of the applicability of the 1962 Act (when it comes to imposing charges such as the £25 overstay fee, or the terms and conditions of a licence) differs so wildly from yours. I believe CRT sought expert legal advice on this, why if its so wrong, was this type of advice given to them?

Who did they get this advice from ?

 

Their own legal team ?

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I cant read these acts without getting a headache, they read like Stanley Unwin wrote them to me.

 

I don't think the Professor of Gobbledygook was involved in drafting any waterways legislation, but it is beyond doubt that C&RT are now employing some of his direct descendants to 'interpret' it for them.

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A canal, or a river navigation, is not in itself a 'service' or a 'facility', but the USE of them by "any ship or boat" is defined as such in S.43(8) the 1962 Act.

It is important to note that only 'use' is so defined, and to 'keep' a boat on a canal or river navigation is NOT included as utilizing a 'service' or 'facility'.

Seems definitive enough to me, and certainly doesn't require any 'interpreting' in a attempt to make it appear to mean something different !

That's interesting.

 

The environment agency (Thames region) recently had some changes made with regards to licensing which means that if you have a boat afloat on there water you need a license / registration plate.

 

Previously they had to prove the boat was being used. I think this change took place a few years ago.

 

No idea as to the mechanism or how the requirements were changed and I think there may be a challenge in process anyway so it may not be valid :unsure:

 

All a bit technical.

 

I think it's quite sensible to pay for things orherwise at some point they might be withdrawn or made more expensive.

 

I've always had a bit of a doom and gloom outlook to be fair :lol:

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Its a bit unfair when no one is sure what the legislation actually intended without funding a judicial review, why should ordinary people have to fork out for this to prevent being taken for a ride by a ( partly) public body ?

 

Crowd fund a judicial review ASAP and settle this once and for all, if they are permitted to create a licence contract they can then get on with it, while I sell my boat, because living on a boat would become a very expensive and micro managed chore.

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Its a bit unfair when no one is sure what the legislation actually intended without funding a judicial review, why should ordinary people have to fork out for this to prevent being taken for a ride by a ( partly) public body ?

 

Crowd fund a judicial review ASAP and settle this once and for all, if they are permitted to create a licence contract they can then get on with it, while I sell my boat, because living on a boat would become a very expensive and micro managed chore.

 

The winning side is entitled to claim their costs back from the losing side (normally).

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The environment agency (Thames region) recently had some changes made with regards to licensing which means that if you have a boat afloat on there water you need a license / registration plate.

 

Previously they had to prove the boat was being used. I think this change took place a few years ago.

 

No idea as to the mechanism or how the requirements were changed and I think there may be a challenge in process anyway so it may not be valid unsure.png

 

All a bit technical.

 

Nothing really technical about it magnetman. You are correct – up until 2010, boats kept but not used on the Thames did not need to register. That changed with the passage of a Statutory Instrument called The Environment Agency (Inland Waterways) Order 2010. That made it mandatory for boats to be registered whether used or merely kept on the Thames [and other EA waters].

 

There is no challenge to the Order; such a thing is not possible. What you are probably thinking of is the challenge to the SCOPE of the Order – i.e. as to whether it covers adjacent waters or just EA waters; as to the latter, there is no argument.

 

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There is no challenge to the Order; such a thing is not possible.

 

Not now it isn't. Same as an Act of Parliament which has been enacted.

 

But a draft TWA Order is publicised and anybody can submit an objection within the specified objection period. Depending on the number of objections received a public inquiry may be held, and eventually the Secretary of State decides whether to make the Order with or without modifications or to refuse it.

 

TWA Orders have been refused following objections. I know, as I have worked on some that failed!

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Nothing really technical about it magnetman. You are correct up until 2010, boats kept but not used on the Thames did not need to register. That changed with the passage of a Statutory Instrument called The Environment Agency (Inland Waterways) Order 2010. That made it mandatory for boats to be registered whether used or merely kept on the Thames [and other EA waters].

 

There is no challenge to the Order; such a thing is not possible. What you are probably thinking of is the challenge to the SCOPE of the Order i.e. as to whether it covers adjacent waters or just EA waters; as to the latter, there is no argument.

 

Yes i think the challenge is to do with a boat in a marina.

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Yes that's all accepted, the problem is CRTs interpretation of the applicability of the 1962 Act (when it comes to imposing charges such as the £25 overstay fee, or the terms and conditions of a licence) differs so wildly from yours. I believe CRT sought expert legal advice on this, why if its so wrong, was this type of advice given to them?

 

I have no idea whether they really have sought expert legal advice – to have continued to trot out this nonsense under guise of having received legal advice, they would have to have asked someone else other than Mr Stoner QC, who wrote their skeleton argument in my case, and who accepted that this section does not create a power to charge for anything that had previously been forbidden. Mr Stoner being the foremost specialist in this field of BW legislation, finding someone to gainsay him would have involved an awful lot of trawling through the undergowth of "pay enough & we'll say what you want" sophists.

 

Of course, they could have deliberately adopted the view that only expressly stated prohibitions were meant [ignoring the “otherwise” bit and all precedent judgments on the topic], such that if something wasn’t specifically excepted, they were free to charge for it – but frankly I don’t think so. I think that they just ignore advice, and simply continue to trot out the spiel that suits them. Let's face it - the subsection quoted in isolation sounds so good does it not? Especially when, as usual, it is quoted elliptically, leaving out the pesky spoiler at the begining.

 

As to the T&C's, they keep contradicting themselves over that; it is impossible for them to maintain consistent answers to awkward questions over the intent of the unambiguous 1995 Act re: licences. They will never let it go though, not while the present incumbants of office hold sway.

 

But a draft TWA Order is publicised and anybody can submit an objection within the specified objection period.

 

The same applies, of course to a privately promoted Act of Parliament. Even the government ram-rodded Public Bodies Bill was put out for consultation.

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Yes i think the challenge is to do with a boat in a marina.

 

The one you will probably be thinking of involved two dozen boats in a couple of marinas. Big mistake – the boaters pooled resources and employed a competent barrister to fight their cause, and won.

 

The EA is appealing that decision I believe, but not the other case they lost, over the classification of houseboats in a marina on the Anglian waterways.

 

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........The powers exist but the effort/cost to properly enforce it just aren't there. Basically laws need to be simple and easy to enforce otherwise they are useless or irrelevant......

....but much better for laws that are acceptable that we comply with voluntarily......

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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.

Also, as I understand it, on the grounds of being an 'unfair' contract. The important point about a valid contract is that there is an equality of what each side has to do for the other and any attempt to smuggle in a clause that seriously imbalances that arrangement can lead to voiding the contract.

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Do you know what? A friend and myself took the boat to Braunston and back today, with a quite passable meal at the Boathouse.

 

Whilst on the trip, licence contracts, Waterways Acts and ticking boxes never crossed my mind.

 

 

A glorious day. smile.png

shocking :huh:

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Yes that's all accepted, the problem is CRTs interpretation of the applicability of the 1962 Act (when it comes to imposing charges such as the £25 overstay fee, or the terms and conditions of a licence) differs so wildly from yours. I believe CRT sought expert legal advice on this, why if its so wrong, was this type of advice given to them?

 

A hint perhaps of the level of legal advice sought can be discovered in the following:

 

Someone has put the direct question to CaRT over the use of s.43 vis-a-vis boat licences, and the applicability of the T&C’s as binding terms upon which holding a licence is subject. The question being made through the WhatDoTheyKnow website, CaRT initially responded: “We are not obliged to provide answers to questions when we do not already have the relevant information to answer the questions in a recorded form, such is the case here. The information you have requested in therefore not held by us.”

 

The requester then queried who in CaRT he should ask, and they had the courtesy to post a lengthy reply from one of their paralegals, some 2 months later. This contained much of the usual nonsense, and the requester replied on 28 August with a series of very pertinent questions relating to what had been published. No reply to that has yet been made; a polite query as to when an answer may be expected was posted today.

 

Based on the time delay over the previous CaRT response, this query is perhaps premature – another month or so would fit the previous time frame better. However, I somehow doubt that he will get any further response. I hope to be pleasantly surprised to be shown wrong.

 

It could well be helpful, though, to those interested, to read the Q&A session thus far - with the paralegal perspective laid out clearly - which can be found here :–

 

https://www.whatdotheyknow.com/request/enforcement_officers_authority_t?nocache=incoming-845555#incoming-845555

 

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