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gigoguy

Bridgewater permits and licenses

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4 minutes ago, NigelMoore said:

I am afraid not, quite. I am saying that IF there was a right for non-Bridgewater pleasure boats to navigate the canal, THEN the company would be prohibited from charging for it – unless and until they had the byelaws passed to which they are entitled.

So to have a chance of winning any court action brought by Peel over non-payment a boater would need to:

A/ show evidence there WAS (at some point) a right for non-Bridgewater pleasure boats to navigate without payment
B/ show that there have been no byelaws passed to change that.

Is it possible to provide evidence that no byelaws exist or would it be for Peel to provide evidence of the existence of such byelaws?

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20 minutes ago, Midnight said:

So to have a chance of winning any court action brought by Peel over non-payment a boater would need to:

A/ show evidence there WAS (at some point) a right for non-Bridgewater pleasure boats to navigate without payment
B/ show that there have been no byelaws passed to change that.

Is it possible to provide evidence that no byelaws exist or would it be for Peel to provide evidence of the existence of such byelaws?

It's A that seems to be the crucial point, as without that, B is irrelevant. 

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11 minutes ago, Arthur Marshall said:

It's A that seems to be the crucial point, as without that, B is irrelevant. 

Just trying to understand how the courts would view it, but following that line of thought, to successfully defend any action, you would surely need both.

In Gogoguy's case I believe he is he is saying "show me the evidence you can charge" not "I can show why you can't". If Peel took him to court would the court ask Peel for evidence they could charge or ask Gigoguy to show evidence why they can't? IMO that may have a significant bearing on the outcome.

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20 minutes ago, Midnight said:

So to have a chance of winning any court action brought by Peel over non-payment a boater would need to:

A/ show evidence there WAS (at some point) a right for non-Bridgewater pleasure boats to navigate without payment
B/ show that there have been no byelaws passed to change that.

Is it possible to provide evidence that no byelaws exist or would it be for Peel to provide evidence of the existence of such byelaws?

Within the very restricted limits of my knowledge of the situation, I do not see as yet how Peel could legitimately bring an action for non-payment. Even so, I would not count on a County Court finding against them.

Supposing they could and did bring such an action, then yes, your A & B would apply. Though you would need only to show that non-Bridgewater pleasure boats were entitled to navigate in the first place. I have seen nothing in the little I have looked at that persuades me that this is the case. It IS possible to demonstrate that no relevant byelaws have been passed; the only extant applicable byelaws are the Bridgewater Canal Byelaws 1961. If I were a Peel lawyer, I would be suggesting that obtaining relevant new byelaws would be a worthwhile investment.

Nonetheless, I imagine that rather than bringing a small claims action for fees owed, they would be more likely to bring an action for trespass accompanied by an injunction request, as do CaRT in all their live-aboard s.8 Claims. Without evidence of a PRN, that would probably be indefensible [charges need not enter the picture, only the absence of consent], and you could find yourself banned for life and in a situation where flouting the Order would place you in contempt of court. It is what I would do in their position, should I know that a PRN had never been conferred in favour of the general public. I am not suggesting that they would be entitled to do so necessarily - s.9 giving constrained powers of action in case of trespass might suggest that the implied prohibition rule applies - but I know for certain that, regardless, Peel would win, because so many hundreds of such injunction cases have been brought on as little or less grounds, by both CaRT and the EA - successfully.

It would be considerably more difficult for them to justify a trespass action against a mere passage where the boat never moored up during transit, but again, you would have to climb high through the court system to have a chance of getting the necessary deliberation time of a truly impartial judge [a gamble] in order to successfully defend against it.

Would Peel bother? Perhaps not, for so long as the boat never touched the sides as it were, and did the transit only on rare occasions. If they faced a flotilla of boats challenging them, such a reaction might be more likely.

 

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14 minutes ago, NigelMoore said:

Within the very restricted limits of my knowledge of the situation, I do not see as yet how Peel could legitimately bring an action for non-payment. Even so, I would not count on a County Court finding against them.

Supposing they could and did bring such an action, then yes, your A & B would apply. Though you would need only to show that non-Bridgewater pleasure boats were entitled to navigate in the first place. I have seen nothing in the little I have looked at that persuades me that this is the case. It IS possible to demonstrate that no relevant byelaws have been passed; the only extant applicable byelaws are the Bridgewater Canal Byelaws 1961. If I were a Peel lawyer, I would be suggesting that obtaining relevant new byelaws would be a worthwhile investment.

Nonetheless, I imagine that rather than bringing a small claims action for fees owed, they would be more likely to bring an action for trespass accompanied by an injunction request, as do CaRT in all their live-aboard s.8 Claims. Without evidence of a PRN, that would probably be indefensible [charges need not enter the picture, only the absence of consent], and you could find yourself banned for life and in a situation where flouting the Order would place you in contempt of court. It is what I would do in their position, should I know that a PRN had never been conferred in favour of the general public. I am not suggesting that they would be entitled to do so necessarily - s.9 giving constrained powers of action in case of trespass might suggest that the implied prohibition rule applies - but I know for certain that, regardless, Peel would win, because so many hundreds of such injunction cases have been brought on as little or less grounds, by both CaRT and the EA - successfully.

It would be considerably more difficult for them to justify a trespass action against a mere passage where the boat never moored up during transit, but again, you would have to climb high through the court system to have a chance of getting the necessary deliberation time of a truly impartial judge [a gamble] in order to successfully defend against it.

Would Peel bother? Perhaps not, for so long as the boat never touched the sides as it were, and did the transit only on rare occasions. If they faced a flotilla of boats challenging them, such a reaction might be more likely.

 

Thank you Nigel for that and your patience with those of us who don't fully understand the way the courts work.

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3 hours ago, Athy said:

Oh, I certainly believe that, as I have read in the pages of the thread that it is, or has been, a busy link route. But compared with the number of boaters on the Grand Union and other Midlands/South canals, their numbers must be smaller.

I don't think that any Northerner would say "Norf" instead of "North" - now watch one pipe up and declare that he certainly does pronounce it that way!

It is part of a major cruising ring I think

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3 hours ago, gigoguy said:

And that is to reduce traffic on the oldest canal in the country. If we didn't have the bridgewater

Another incorrect statement - & wrong by several centuries

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19 minutes ago, ditchcrawler said:

It is part of a major cruising ring I think

You may be right, I don't know. I have never boated in those parts.

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35 minutes ago, Midnight said:

Thank you Nigel for that and your patience with those of us who don't fully understand the way the courts work.

Agreed, on all points!
Unfortunately it can be said ad infinitum but you cannot make people listen.

16 minutes ago, Alan de Enfield said:

Another incorrect statement - & wrong by several centuries

Certainly The Exeter Canal pre-dates it by some years!
 

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1 hour ago, NigelMoore said:

Nonetheless, I imagine that rather than bringing a small claims action for fees owed, they would be more likely to bring an action for trespass accompanied by an injunction request

But they are not likely to do that to every boat that enters the canal and they're not really in a position to do it to me for just refusing to pay one toll unless they prove they can charge it, are they?

What are they going to apply to the court to ban me for.....being annoying?

For wikistupidea addicts https://en.wikipedia.org/wiki/Bridgewater_Canal

'Often considered to be the first "true" canal in England,'

Pity it doesn't apply to some posters in serious debates hey?

Edited by gigoguy

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40 minutes ago, ditchcrawler said:

It is part of a major cruising ring I think

It is part of the Cheshire Ring (currently closed at Marple Locks), as well as providing a link to the cross penine waterways.

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8 minutes ago, gigoguy said:

I think Tony Robinson found a ditch that dinosaurs used to piss in and drag prey along .........does that count?

Why not just accept that you are posting incorrect information - if, as it appears, you are relying on wikipedia for your arguments, then you are going to get a 'good hiding'.

Anyone can input anything onto Wikipedia, there are no checks on its accuracy, & your 'case' needs to be built on accurate facts.

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6 hours ago, NigelMoore said:

With reference to my previous comments regarding riparian rights of pleasure boat use [rather specific, hence not a general public right], the 1766 Act, s.XCIII provides:

And it is hereby provided and further enacted by the authority aforesaid, that it shall and may be lawful to and for the owners and occupiers of any lands adjoining to the said Canal, to use any pleasure boat and boats upon the said Canal, not passing through any lock without the consent of the said company of proprietors, their successors or or assigns, and without paying any rate or duty for the same; so as the same be not made use of for carrying any goods, wares, or merchandize; and so as the same shall and do not obstruct or prejudice the navigation of the said intended Cut or Canal, or the towing-paths on the sides thereof.”  [my bold]

 Unless – as is of course possible – that very specific freedom from pleasure boat charges for riparian owners/occupiers was rescinded in some later legislation, then that exemption applies still, under the most recent provisions re: charges. That does not help the question of charges for passage through the canal by non-riparian boat owners, but does address the question over whether pleasure boat use was contemplated in the earliest Acts, with the accompanying express freedom from charges for qualifying owner/occupiers.

But does Section 29 of the 1759 Act not provide the right for "all persons" to "navigate upon the said Cut or Canal" upon payment of such rates or duties as shall be demanded by the said Duke etc. "not exceeding the rate hereinafter mentioned". 

The "rate hereinafter mentioned" is restricted to charges for merchandise carried by vessels.  Those charges are amended by the 1894 Tolls Order which still recites that nothing in its (new) schedule shall apply to pleasure boats or affect the tolls or charges, if any,which the Company are authorised to charge or make in respect of such boats under the provisions of any Act of Parliament.

Bridgewater Canal Act 1759

Section 29

Provided always, and be it further enacted by the authority aforesaid, That all persons whatsoever shall have free liberty to use with horses, cattle, and carriages the private roads and ways, and with boats or other vessels the navigable Cuts or sluices to be made by virtue of this act, for the purpose of conveying coal, stone, timber, and other goods, wares, merchandise and commodities whatsoever to or from the said Cut or Canal trenches or passages, and also to navigate upon the said Cut or Canal, trenches or passages, with any boats or vessels not exceeding thirty tons burthen, and to use the said wharfs or quays for loading and unloading coals and other goods, and the said towing-paths for haling and drawing such boats and vessels, upon payment of such rates or duties as shall be demanded by the said Duke, his heirs, or assigns, not exceeding the rate hereinafter mentioned.

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5 minutes ago, Alan de Enfield said:

Why not just accept that you are posting incorrect information - if, as it appears, you are relying on wikipedia for your arguments, then you are going to get a 'good hiding'.

Anyone can input anything onto Wikipedia, there are no checks on its accuracy, & your 'case' needs to be built on accurate facts.

I thought the whole point of Wikipedia is that everyone can review what is input and get it changed if proven inaccurate. Unlike many other mainstream media outlets of course.

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2 minutes ago, rowland al said:

I thought the whole point of Wikipedia is that everyone can review what is input and get it changed if proven inaccurate. Unlike many other mainstream media outlets of course.

I doubt that ‘everyone’ will review Wikipedia – but you are, in principle, correct as ‘anyone’ can review and submit correct information (or their version of what they consider ‘correct’ to be)

 

It rarely happens and therefore anyone looking to build a case on un-proven internet comments is a fool.

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10 minutes ago, erivers said:

But does Section 29 of the 1759 Act not provide the right for "all persons" to "navigate upon the said Cut or Canal" upon payment of such rates or duties as shall be demanded by the said Duke etc. "not exceeding the rate hereinafter mentioned". 

The "rate hereinafter mentioned" is restricted to charges for merchandise carried by vessels.  Those charges are amended by the 1894 Tolls Order which still recites that nothing in its (new) schedule shall apply to pleasure boats or affect the tolls or charges, if any,which the Company are authorised to charge or make in respect of such boats under the provisions of any Act of Parliament.

Bridgewater Canal Act 1759

Section 29

Provided always, and be it further enacted by the authority aforesaid, That all persons whatsoever shall have free liberty to use with horses, cattle, and carriages the private roads and ways, and with boats or other vessels the navigable Cuts or sluices to be made by virtue of this act, for the purpose of conveying coal, stone, timber, and other goods, wares, merchandise and commodities whatsoever to or from the said Cut or Canal trenches or passages, and also to navigate upon the said Cut or Canal, trenches or passages, with any boats or vessels not exceeding thirty tons burthen, and to use the said wharfs or quays for loading and unloading coals and other goods, and the said towing-paths for haling and drawing such boats and vessels, upon payment of such rates or duties as shall be demanded by the said Duke, his heirs, or assigns, not exceeding the rate hereinafter mentioned.

This has been my argument as we both know. That only tolls that apply need be paid and there have never been tolls applied to pleasure boats. As I said I'm waiting for some very sensitive information. I can't say exactly what or where from on here....spies you know. But when I have it I hope it will make an even stronger case for implied if not prove explicit exemption. From what little i have heard though it should be the latter.

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1 hour ago, gigoguy said:

This has been my argument as we both know. That only tolls that apply need be paid and there have never been tolls applied to pleasure boats. As I said I'm waiting for some very sensitive information. I can't say exactly what or where from on here....spies you know. But when I have it I hope it will make an even stronger case for implied if not prove explicit exemption. From what little i have heard though it should be the latter.

Those are the only tolls that apply because it is only the boats listed (commercial carriers) which have the "free liberty" to use the canal.

There is no provision stated for the charging of tolls for pleasure craft because there is no "free liberty" for the use of pleasure craft i.e. you have no explicit right to use the Bridgwater for navigation purposes as a pleasure boater (I think that is what Nigel was hinting at earlier but happy to be corrected). 

That would turn your earlier argument about needing express legal permission to carry out an act on its head since by your own logic you shouldn't be there at all. It's therefore in your own interest that you were wrong on that score even though you don't acknowledge it.

The reciprocal arrangement with CRT provides you with permission to use the Bridgwater as a CRT licence holder but only if abiding with the constraints of that arrangement. By all means gain support and work to ensure they are adhered to by Peel and even lobby for better terms but if you don't want to abide by what is contained within them you have to arrange permission to use the Bridgwater direct with Peel. There is a mechanism for that which is of course to buy a Bridgwater licence.

All the above is based simply on what I have read and understood here. I don't claim to know the legislation personally and I may have an incomplete picture. However it looks to me that you are trying to pick an argument one grounds where there isn't one to pick.

JP

Edited by Captain Pegg
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1 hour ago, erivers said:

But does Section 29 of the 1759 Act not provide the right for "all persons" to "navigate upon the said Cut or Canal" upon payment of such rates or duties as shall be demanded by the said Duke etc. "not exceeding the rate hereinafter mentioned". 

The "rate hereinafter mentioned" is restricted to charges for merchandise carried by vessels.  Those charges are amended by the 1894 Tolls Order which still recites that nothing in its (new) schedule shall apply to pleasure boats or affect the tolls or charges, if any,which the Company are authorised to charge or make in respect of such boats under the provisions of any Act of Parliament.

Bridgewater Canal Act 1759

Section 29

Provided always, and be it further enacted by the authority aforesaid, That all persons whatsoever shall have free liberty to use with horses, cattle, and carriages the private roads and ways, and with boats or other vessels the navigable Cuts or sluices to be made by virtue of this act, for the purpose of conveying coal, stone, timber, and other goods, wares, merchandise and commodities whatsoever to or from the said Cut or Canal trenches or passages, and also to navigate upon the said Cut or Canal, trenches or passages, with any boats or vessels not exceeding thirty tons burthen, and to use the said wharfs or quays for loading and unloading coals and other goods, and the said towing-paths for haling and drawing such boats and vessels, upon payment of such rates or duties as shall be demanded by the said Duke, his heirs, or assigns, not exceeding the rate hereinafter mentioned.

I am not going to flatly contradict you erivers, because I agree that it is arguable – but for me it is too tenuous an argument, one which I would not be comfortable with making in court.

For all that the s.29 wording is loose enough to separate out the right for “all persons whatsoever” . . . “to navigate upon the said Cut or Canal”, when read in context it seems to me that this refers only to the rights of anybody to use boats for the purpose of conveying coal, stone, timber, and other goods, wares, merchandise and commodities whatsoever to or from the said Cut or Canal trenches or passages, and also to navigate upon the said Cut or Canal, trenches or passages”. 

For the right to use any boats for purposes other than the conveying of goods, the and alsowould have to be taken to confer a right in the following wording that was independent of the preceding words. To me, a natural reading suggests that the differentiation on either side of theand alsorefers only to geography; you can use boats to carry goods to and fromthe waterway, and also along the waterway.

There seems to me to be 4 elements to the section:

1)    Use by horses, cattle, carriages, boats and other vessels, of the land and water access ways “to and from the said Cut or Canal” – for transporting goods; and also

 2)    Use by those boats or other vessels [so long as not transporting more than 30 tons of goods] “upon the said Cut or Canal”; and to

 3)    Use the wharves for loading & unloading such goods; and

 4)    Use the towpaths for drawing such boats or vessels as are transporting those goods.

I admit that the wording is messy, and the tenet of construction of private Acts such as this should operate against the promoters of the Act in favour of the public – but, there is the wider context of the succeeding Acts. If s.29 of the 1759 Act gave rights to anybody to use boats for pleasure as well as for carriage of goods, what rights were conferred by s.93 of the 1766 Act, some 7 years later, that were special to riparian owner/occupiers?

If the former Act had any relation to pleasure boats, the later Act’s provision was entirely redundant, pretending to confer a special right for some, that was already available to them, as indeed it was to all.

For me, the distinction is made clearer when comparing the enabling Acts of later companies. Section 74 of the 1793 Grand Junction Canal Company Act, in the equivalent section to that quoted, states:

And be it further enacted, that all persons whomsoever shall have free liberty to use, with horses, cattle, and carriages, the private roads and ways (except the towing paths), and likewise the sluices, trenches, or passages, to be made by virtue of this Act, for the purpose of conveying any minerals, merchandise, timber or other goods, wares, merchandise, and other things, to and from the said canal and collateral cuts, and every part thereof, without paying anything for the same; and also to navigate, and pass upon, and use the said canal and collateral cuts, with any boats or vessels (of pleasure or otherwise), and to employ the said wharfs and quays  . . . and also to use the said towing paths . . . upon payment of such rate, as shall be demanded by the said Company of Proprietors, not exceeding the sums herein-before mentioned . . . etc, etc.” [my bold – and using a ‘clear text’ BW version that I have not checked against the original].

 In that section the first “and also” divides that which was free [the to and from] from that which could be chargeable [the navigate and use].

 The difference however in the immediate context of rights to navigate is clear to me: that the original BC Act provides only for commercial boats, whereas the original GJCC Act provides expressly for both commercial and pleasure boat PRN, and does not limit pleasure boat use to riparian owners.

Edited by NigelMoore
formatting

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2 hours ago, gigoguy said:

But they are not likely to do that to every boat that enters the canal and they're not really in a position to do it to me for just refusing to pay one toll unless they prove they can charge it, are they?

What are they going to apply to the court to ban me for.....being annoying?

 

Agreed, they are unlikely to apply for injunctions against every non-paying boater traversing their canal; it would be hugely counter productive I would think. That is not to say they could not. It would not be on the grounds that you had not paid the charge, per se, but on the grounds that you had not obtained their consent. In other words, even if they have no grounds whatsoever for charging you for the privilege, they would have every ground they need for claiming you used their canal without their permission, if there is no general PRN.

Being annoying might be the underlying reason they would get the court to ban you of course! It would not form part of the grounds pleaded.

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2 hours ago, Alan de Enfield said:

Why not just accept that you are posting incorrect information - if, as it appears, you are relying on wikipedia for your arguments, then you are going to get a 'good hiding'.

Anyone can input anything onto Wikipedia, there are no checks on its accuracy, & your 'case' needs to be built on accurate facts.

Alan, I've been saying that from the beginning, but it seems that the fact isn't getting through, and all I get is insulting comments.

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