Contracts, Charges, and Conditions

[Mike Todd]

Just to be clear - are you saying the developer is in this instance the 'authority' or that the LPA is being asked to enforce the provisions of a private contract/ registered covenant?

As I understand it - I have a teeny bit of experience but not enough to be sure - is that restrictive covenants can only be enforced by the 'beneficial owner'. The covenant with an estate development is with the developer in the first instance who then has to enforce it. Unless it is a planning condition then the LPA has no role. What I do know is that after the passage of time such covenants become increasingly hard to enforce, but some overage clauses can be quite valuable. (ie where the purchaser agrees to pay a proportion of any development gain in the event that the property is developed eg a new house is built in a large garden of the first house) However, more frequently these days such clauses get priced into the deal.

 

The benefit to the developer quickly erodes as they are mainly concerned to enhance the value of the property during the time that the estate is being developed (which can be over several years in the case of multi phases works such as those at the former Nash Mills site on the lower Grand Union. Once the site is complete I would expect them to lose all interest! It would be interesting to hear a legal expert on who then can enforce the covenant in the event that eg the majority of residents on an estate feel aggrieved at the loss of an amenity that they think they paid for.

 

The point of my example (and it may not be the best in context but it was what came to mind) was that where there are collective benefits it is necessary for there to be an 'authority' who can enforce them. This involves both powers and duties. It is not necessarily a perverse or autocratic authority that enforces conditions.

[Iain_S]

Following on from Dave's contribution, I had another look at the contentious (although not the only one!) clause in Section 43 of the 1962 Transport Act.

 

 

(quoted as amended)

 

(2) Paragraph (b ) of the foregoing subsection shall not be read as exempting the 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.

 

What is the subject of the verb "prohibits"? I would suggest that there is no other option than the word "it" in the same clause. To what, then, does "it" refer? It has to refer to "any local enactment". The other possibility is that "it" refers to "paragraph (b )", but that renders "or otherwise prohibits" meaningless, as paragraph (b ) does not prohibit the making of charges, merely removing the limits, both upper and lower.

 

Dave is right: the important bit is "any local enactment" and

 

 

 

The Act is explicit that it doesn't take away any exemption from charges provided in any Local Act.

which is the only purpose of sub section 2.

[WotEver]

 

What is the subject of the verb "prohibits"? I would suggest that there is no other option than the word "it" in the same clause. To what, then, does "it" refer? It has to refer to "any local enactment".

It's a very long time since I took English Grammar but I would agree with both of your conclusions. The very clumsily worded sentence reads to me that "If there's any local enactment that prohibits charging then that remains in force and CaRT may not use Paragraph B as an excuse to start charging". Edited January 6, 2017 by WotEver

[NigelMoore]

It's a very long time since I took English Grammar but I would agree with both of your conclusions. The very clumsily worded sentence reads to me that "If there's any local enactment that prohibits charging then that remains in force and CaRT may not use Paragraph B as an excuse to start charging".

 

The man in the Clapham omnibus would have been proud of you all.

[RobertBrooks]

Putting every word under a microscope might fall down because who ever worded it might be a twit.

 

We could be trying to analyse nonsense.

[Mike Todd]

Putting every word under a microscope might fall down because who ever worded it might be a twit.

 

We could be trying to analyse nonsense.

Alas, that is what law is often about!

[Alan de Enfield]

Putting every word under a microscope might fall down because who ever worded it might be a twit.

 

We could be trying to analyse nonsense.

 

Individually words have a certain meaning and make sense.

 

Putting them together in a sentence, and varying the context, can have a dramatic effect on what they mean.

 

According to QI, the English Language has over 250,000 words (the highest number of any language), and yet we still have multiple meanings of the same word - up to 28 meanings in one instance.

 

How is one expected to understand / interpret correctly something that was written many years ago when the meaning was either understood at the time, or, was deliberately made 'vague' - & we don't know which it was, or how it should be interpreted 'today'.

[NigelMoore]

 

How is one expected to understand / interpret correctly something that was written many years ago when the meaning was either understood at the time, or, was deliberately made 'vague' - & we don't know which it was, or how it should be interpreted 'today'.

 

It actually gets far worse. I meant to post this up in response to a comment by IainS, but couldn’t find the relevant comment [as to words not changing meaning because used in legislation]. The uncomfortable fact is that it has been held possible for legislation to use wording having a specialist meaning in law that differs entirely from common usage.

 

See Bennion on Statute Law reference Ridgeways v Alts.

 

“A word or phrase may have ‘a special legal meaning derived from its legislative history’: Ridgeway Motors (Isleworth) Ltd v ALTS Ltd [2005] EWCA Civ 92, [2005] 2 All ER 304, at [29].”

 

Actually it is clearest in 30:

 

“The arguments about the natural and ordinary meaning of "proceeding", "action" "enforcement" and "execution" are insufficient to displace the special or technical meaning of "an action upon a judgment" adopted in Lamb and followed through by Parliament into s24(1) of the 1980 Act. Even though this result may follow from the perpetuation by Parliament, via the Law Reform Committee, of an erroneous view of the meaning of an "action" in the Limitation Acts, it is not, in my judgment, an unsatisfactory result . . .” [my emphasis]

 

Personally I believe that this was an outrageous judgment, intended to circumvent the ethos behind all Statutes of Limitation in favour of the government [in the form of HMRC] being able to pursue their debtors to the grave and beyond. HMRC had applied to be a party to the action precisely because this was a result they wanted – which they characterised as being “in the public interest”. Although permission to appear was refused, their submissions were allowed!!!

 

The “partnership” between courts and government - as let slip by the Master of the Rolls in a 1986 judgment - has never been more apparent than in this case, emphasised by the fact that although the “public interest” argument over this “pure point of law” persuaded the court to allow the arguments of the government department into the proceedings, when the prayer was placed before the House of Lords for permission to appeal this travesty, it was denied on the grounds that the case did NOT comprise one “on a pure point of law in the public interest”.

 

It all comes down to what exactly the courts consider to be “in the public interest”. The only way it makes sense to me in this context, is that they equated the public interest - not in the usual sense of affecting the interests of the public, but - as affecting the “public purse”.

 

There is some grim satisfaction for me in that this judgment, overturning as it did, decades of common ground, resulted in the courts being promptly swamped with hitherto stale claims for bankruptcy and winding up petitions, such that government had to swiftly bring in reforms allowing such proceedings to be handled with minimum bureaucratic involvement, and bankrupts are now automatically discharged after 12 months I believe.

 

Anyway, for the record I do not believe that there is any such ambiguity or special meanings involved in s.43. Even mayalld and I are by now pretty well on the same page with this, and I was not being sarcastic in suggesting that the previous ‘re-writes’ in common parlance had caught the plain meaning.

[NigelMoore]

On the other hand - from the 2010 to 2011 Ombudsman Report Introduction:

 

"But, sadly, too often the legal position is unclear. Relevant legislation is contained in a series of Acts, not easily accessible or understandable to the average person, and at times confusing and capable of significantly different interpretation even by those experienced in such matters. This situation does potentially seriously disadvantage individual citizens, who may find it difficult to ascertain their rights and responsibilities, and even to obtain legal advice in such a specialist area. British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case . . ."

 

She was referring to the 'main navigable channel' definitions.

[Alan de Enfield]

On the other hand - from the 2010 to 2011 Ombudsman Report Introduction:

 

"But, sadly, too often the legal position is unclear. Relevant legislation is contained in a series of Acts, not easily accessible or understandable to the average person, and at times confusing and capable of significantly different interpretation even by those experienced in such matters. This situation does potentially seriously disadvantage individual citizens, who may find it difficult to ascertain their rights and responsibilities, and even to obtain legal advice in such a specialist area. British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case . . ."

 

She was referring to the 'main navigable channel' definitions.

 

Was it following those revelations that the ombudsman position was 'closed / dissolved / removed' and a couple of years later re-introduced by a C&RT appointee (rather than the previous independent incumbent)

[NigelMoore]

An interesting thought.

 

 

 

edit to add: I couldn't possibly comment.

Edited January 7, 2017 by NigelMoore

[RobertBrooks]

As I see it, CaRT are determined to use sect.43 as permission to do anything they want, even override the boaters statutory rights. Some where, maybe not on here, I saw a post with an official letter from CRT saying if you break any of our terms and conditions we will revoke your licence, so until such time as the intent of sect.43 has been settled boaters have no rights, or security to their boats and their homes, they are just living in a legal no mans land hoping they are not the next victim of CaRT.

 

Why would anyone invest money in a boat under these conditions ?

[Arthur Marshall]

Why would anyone invest money in a boat under these conditions ?

To be honest, because it simply doesn't affect most of us. I would be very surprised if I ever break any of the T&Cs, though I do intend to read them to check. A fair proportion of boats never even leave their moorings, so they aren't going to either. Which doesn't mean that I don't care about those who it does affect, nor about the legality of it all. Edited January 7, 2017 by Arthur Marshall

[MtB]

To be honest, because it simply doesn't affect most of us. I would be very surprised if I ever break any of the T&Cs, though I do intend to read them to check. A fair proportion of boats never even leave their moorings, so they aren't going to either. Which doesn't mean that I don't care about those who it does affect, nor about the legality of it all.

 

My thoughts too. Although I'd question the use of that word 'invest' by Mr Brooks.

 

One needs to be a canny buyer to buy a boat that goes UP in value.

Edited January 7, 2017 by Mike the Boilerman

[tomsk]

 

My thoughts too. Although I'd question the use of that word 'invest' by Mr Brooks.

 

One needs to be a canny buyer to buy a boat that goes UP in value.

Dependant on the amount of work and time you want to invest in the craft and the added value obtainable surely?

 

I see no reason why it would not be possible to buy, live on and refurbish a 'dooer-upper' for a small profit given the right circs and skill-sets.

 

But as strictly leisure plaything depreciation is inevitable

[MtB]

Dependant on the amount of work and time you want to invest in the craft and the added value obtainable surely?

 

I see no reason why it would not be possible to buy, live on and refurbish a 'dooer-upper' for a small profit given the right circs and skill-sets.

 

But as strictly leisure plaything depreciation is inevitable

 

 

Nor do I, but Mr Brooks seemed to be asserting the T&Cs are a major impediment to doing this.

Edited January 7, 2017 by Mike the Boilerman

[tomsk]

 

 

Nor do I, but Mr Brooks seemed to be asserting the T&Cs are a major impediment to doing this.

 

I cannot see why they should be.

 

Programme, budget and planning. Programme, budget and planning.....

 

Repeat the Mantra.

[RobertBrooks]

Nor do I, but Mr Brooks seemed to be asserting the T&Cs are a major impediment to doing this.

I didn't mean it impeded it, I meant the investment of tens of thousands in a boat to live on with an aim of cruising the majority of the connected waterways which are manadged by CaRT has no secure legal basis if they claim it is mandatory that you sign a contract that they claim entitles them to do anything they want under sect.43, including the first paragraph of the contract which states "Any breach of these Conditions would entitle the Trust to terminate your Licence which may result in the removal of your Boat from our Waterways." Which in effect removes any statutory rights the boater has, if such a clause could be enforced.

 

This only matters to a boater when things go wrong, then they find they have been living on the water with no rights, in a legal void, the only way to enforce their rights is by a legal action to challenge CaRTs interpretation of the law, something not a viable option for the average person.

 

Compared to owning a house it is a very insecure basis to live on.

[Arthur Marshall]

Compared to owning a house it is a very insecure basis to live on.

Not so sure about that. Ask the people still suffering after the floods over the past few years. You get subsidence, rising damp, dry rot...

Yes, there are some people who have endless trouble with CRT, and sometimes there are no good reasons for it, and sometimes there are. What you don't hear about on here is CRT's side of any story, and what else you don't hear about are the hundreds of stories of people who have never had any trouble at all but have lived on their boats happily for years. You do have to keep a sense of proportion.

And you also have to remember that anyone's "rights" can be infringed at any time, and the only way to keep them is to fight for them one way or another,. After all, that's how they got them in the first place - whatever the Americans say, no-one gets born with any.

[MtB]

I didn't mean it impeded it, I meant the investment of tens of thousands in a boat to live on with an aim of cruising the majority of the connected waterways which are manadged by CaRT has no secure legal basis if they claim it is mandatory that you sign a contract that they claim entitles them to do anything they want under sect.43, including the first paragraph of the contract which states "Any breach of these Conditions would entitle the Trust to terminate your Licence which may result in the removal of your Boat from our Waterways." Which in effect removes any statutory rights the boater has, if such a clause could be enforced.

 

This only matters to a boater when things go wrong, then they find they have been living on the water with no rights, in a legal void, the only way to enforce their rights is by a legal action to challenge CaRTs interpretation of the law, something not a viable option for the average person.

 

Compared to owning a house it is a very insecure basis to live on.

 

 

Yes I see what you mean. Thanks for clarifying.

 

I'd say however, compared to renting a house, living on a boat and CCing remains a far more secure prospect. Living on a boat has never been 100% secure and I doubt it ever will be.

 

 

 

(Edit out the spelling era.)

Edited January 9, 2017 by Mike the Boilerman

[RobertBrooks]

Not so sure about that. Ask the people still suffering after the floods over the past few years. You get subsidence, rising damp, dry rot...

Yes, there are some people who have endless trouble with CRT, and sometimes there are no good reasons for it, and sometimes there are. What you don't hear about on here is CRT's side of any story, and what else you don't hear about are the hundreds of stories of people who have never had any trouble at all but have lived on their boats happily for years. You do have to keep a sense of proportion.

And you also have to remember that anyone's "rights" can be infringed at any time, and the only way to keep them is to fight for them one way or another,. After all, that's how they got them in the first place - whatever the Americans say, no-one gets born with any.

Dry rot doesn't affect the legal basis of the house does it.

[NigelMoore]

 

My former post quoted all the relevant legislative items in chronological order; if I CAN find it again I will post it up, because I believe it reveals the incremental progression of rights to charge perfectly.

 

Found it.

 

To reprise that previous posting: NO new powers to charge [ i.e. powers to charge for things not previously allowed] were conferred by s.43 of the 1962 Transport Act. The canal companies were ALWAYS entitled to charge for the services and facilities they supplied – that was the very raison d’etre of their existence; it was just that what they were entitled to charge for and how those charges were determined, was limited by the terms of their enabling Acts. The ‘problem’ [exacerbated when the various companies were amalgamated under the one body - the British Transport Commission], was that the limitations on levels and methods of determining allowable charges, plus the limitations on the conditions imposable for use of those, were varied and complex, leading to obvious difficulties in managing the restricted income streams, which in many cases were set at no-longer profitable levels.

 

Under the British Transport Commission Act 1947 the BTC were entitled to rationalise to some extent the multiplex system of charges, which was accomplished under The British Transport Commission (Inland Waterways) Charges Scheme 1958. This provided that:

 

PART II CHARGES

 

s.4 The Commission may in the case of any inland waterway of the Commission make such charges as may be reasonable – [my bold]

 

(1) for the use thereof by any ship or boat;

(2) for the provision by them of towage thereon;

(3) for the provision of port facilities at or in connection with any dock thereon; and

(4) for the use of any services or facilities provided by them at any dock thereon being services or facilities connected with such port facilities;

Provided –

( a ) that nothing in this paragraph shall apply to any charges made by the Commission for the carriage of merchandise or passenger, and

( b ) that nothing in sub-paragraph (1) of this paragraph shall apply to the use of –

(i) that part of the |Grand Union Canal which is below Gauging Lock No. 100 at Brentford by barges, or other vessels which do not proceed above that Lock; or

(ii) that part of the River Lee Navigation which is below Old Ford Locks, including the backwaters thereof but not including the Limehouse Cut.

 

s.5 Any question as to the reasonableness of any charge made by the Commission under paragraph 4 of this Scheme shall be determined on the application either of the Commission or of the person liable to the charge by the Transport Tribunal to the exclusion of any other Court.

 

PART III TERMS AND CONDITIONS

 

6. The Commission may make the use of any of the services and facilities to which this Scheme relates subject to such reasonable terms and conditions (not being provisions as to the amounts of any charges) as the Commission may from time to time determine.

7. Any questions as to the reasonableness of any term or condition imposed or sought to be imposed by the Commission under paragraph 6 of this Scheme shall be determined by the Transport Tribunal.

 

The effect of the above can be readily understood. The specific levels of allowable charges for many of the services and facilities were replaced by such levels of charge as would be reasonable [testable by the Tribunal]; this did not, however apply to charges relating to cargoes or passengers, which remained at the levels set by the enabling Acts.

 

The power to set terms and conditions for the applicable services and facilities [which meant this was inapplicable to the carriage of goods or passengers] was likewise expanded to make these such as might be reasonable, rather than as fixed by the enabling Acts.

 

So although the 1958 Charges Scheme [under Part V of the Transport Act 1947] went some considerable way towards rationalising and increasing the levels of charges for much of the waterways operation, it did not apply to all elements of their operation, and the tolls for carriage of goods etc - excluded from the Scheme - were amongst the most varied, complex and restricted of the allowable charges.

 

It was this situation that the relevant section of the 1962 Act [Part II Transport Charges and Facilities] was introduced to remedy.

 

As always, it is necessary to read the whole of the section from the beginning in order to realise the effect of it in the proper context.

 

As amended post the 2012 Transfer Order, Section 43 commences by enacting that -

 

sub-section 1

 

( a ) all charges schemes under Part V of the Transport Act 1947, shall cease to have effect, and

( b ) no local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them – [my bold]

(i) for the carriage of passengers or goods,

(ii) for the use of . . . any inland waterway by any ship or boat,

(iii) for services and facilities connected with the carriage of passengers or goods, or with the use of . . . any inland waterway by any ship or boat, or

(iv) for services and facilities in or connected with a harbour,

 

(whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the British Waterways Board or the Canal and River Trust. [my bold]

 

So the entire section is clearly intended: NOT to allow new avenues of chargeable services or facilities, but in abolishing the 1958 Charges Scheme, to remove the still existing limitations on the levels of charges for the carriage of goods and passengers etc, and to remove the limitation on the Board’s discretion for ALL the chargeable services [i.e. the requirement to be reasonable].

 

Sub-section 2 - clarifies that the above provisions were NOT intended to set BW/CaRT free from any limitation on WHAT they could charge for. [if any further clarity on this was needed, one need only take the example of the much later Statutory Instrument that was needed in order to allow BW to sell treated water additionally to their previous ability to simply sell water.] There is NOTHING in the section that gives powers to charge for that which they previously had no powers to charge for; the sub-section expressly states that this section is NOT intended to be read that way.

 

Sub-section 3 - the oft elliptically quoted section – further clarifies that for all the allowable charges BW/CaRT were entitled to make, not only were all fixed limitations on levels of charge abolished – to include [as the BTC Scheme did not] those relating to the carriage of goods or passengers – but also the general requirement to be reasonable! From that day on, the levels of charge, and the setting of terms and conditions for ALL of their then chargeable services and facilities, could now be made as the Board saw fit.

Edited January 17, 2017 by NigelMoore

[Tuscan]

So given the 14 day towpath mooring at no charge. Is CRT able to charge for bookable visitor moorings where no extra service is being provided? Similarly the £25 charge if one stays longer than the advertised time on a visitor mooring?

[NigelMoore]

All enabling Acts provided for charging to moor to offside banks owned by the proprietors; if you can find an enabling Act that provided for charging to moor to the towpath, then yes, their successor could do so.

 

Given that [for example] the Grand Junction Canal Company Act 1801 actually prohibited ANY use of the towpath for private pleasure boats, the idea that use of the towpath for mooring AT ALL would have been contemplated [other than overnight by boats permitted to use it for travelling], let alone as a chargeable service, seems highly unlikely.

 

I would not, personally, object to charging for use of specifically dedicated visitor mooring facilities where those included services and facilities unavailable anywhere else along the towpath, provided only that those were made available to all in turn on a limited time basis. That, however, would be a view based on pragmatic desirability rather than strict legality.

 

The penal charge is another thing altogether. IF it was permitted to moor to the dedicated visitor moorings for so long as that charge was paid, such that no offence would be committed for as long as the boater was prepared to pay, then it would be a legitimate charge; If, as with Taylor v BWB, the charge was intended as a penalty that conveyed no right to the use, then of course that would be ultra vires.

[Mike Todd]

All enabling Acts provided for charging to moor to offside banks owned by the proprietors; if you can find an enabling Act that provided for charging to moor to the towpath, then yes, their successor could do so.

 

Given that [for example] the Grand Junction Canal Company Act 1801 actually prohibited ANY use of the towpath for private pleasure boats, the idea that use of the towpath for mooring AT ALL would have been contemplated [other than overnight by boats permitted to use it for travelling], let alone as a chargeable service, seems highly unlikely.

 

I would not, personally, object to charging for use of specifically dedicated visitor mooring facilities where those included services and facilities unavailable anywhere else along the towpath, provided only that those were made available to all in turn on a limited time basis. That, however, would be a view based on pragmatic desirability rather than strict legality.

 

The penal charge is another thing altogether. IF it was permitted to moor to the dedicated visitor moorings for so long as that charge was paid, such that no offence would be committed for as long as the boater was prepared to pay, then it would be a legitimate charge; If, as with Taylor v BWB, the charge was intended as a penalty that conveyed no right to the use, then of course that would be ultra vires.

I think that at the moment the only bookable mooring is Rembrandt Gardens. Having used this twice I am convinced that a charge does indeed offer something extra - it gives the certainty of having a mooring that makes it sensible to navigate there in the first place. It also includes the administration and supervision to ensure that the offered booking is actually kept available ie it is not pinched by someone who does not read signs!

 

A general charge would be another matter, especially if it did not offer identifiable benefits, but a reasonable extension of the RG experiment could well be in the general interest albeit that its very existence is clearly a limitation on someone.