Bridgewater permits and licenses

[gigoguy]

49 minutes ago, Graham Davis said:

Doesn't matter if Barton Tank is swung or not, it is still a swing bridge, and I understand that it is swung each year for maintenance.
And I suggest you check where Pomona Lock is. 
Look under Dock 3 in this link:
https://en.wikipedia.org/wiki/Manchester_docks

 

Try reading the Forum Guidelines!

you do not have to pass through pomona lock to travel along the bridgewater canal and the tank might be opened once a year to test it but it doesn't have to be operated to pass along the bridgewater canal either. So to pass from one end to the other there are NO locks or swing bridges to operate.

[Graham Davis]

You wrote :
""For goodness sake the canal's only 40 miles long and there are no locks or swing/lift bridges""

Factually incorrect, plus you have to cross Barton Tank if heading for Liverpool/Wigan. 
I have cruised it.

 

 

[gigoguy]

4 hours ago, TheDuker said:

I agree, and I was not looking to devalue the worth of full and open discussion in any way. I do, however, believe that gigoguy's cause, or at least what I believe his cause to be, is not best served by attempting to provoke litigation with all it's attendant risks.

I'm not trying to provoke litigation I'm trying to highlight the fact that litigation isn't possible because they have no legal authority to charge the toll in the first place. I wrote to them 15 times saying I'd pay the toll if they showed me authority to charge it. I got nothing at all from Land and Properties or BCCL. Eventually I got a letter from a Peel solicitor threatening me with libel (For Wales's sake I think a qualified solicitor might have a better idea of what he can sue me for than wiki stupidea) If I didn't stop posting on a forum. That they were committing criminal offences.

Then they said i wasn't being fair. They were very fair when I had to discharge myself from hospital and endanger myself and my boat to stop them possessing it illegally weren't they? Then he said if they couldn't charge they'd have to close the canal and it would all be my fault. Since then  I've had nothing. He's taken his ball home and doesn't want to play anymore.

I really can't see what he can sue me for or even try to claim through the CC or small claims. There is no sign telling me how much i have to pay or why I have to pay. Just that I MUST pay if I want to stay more than 7 days or return within 28. 

I'm not trying to provoke litigation I'm trying to bring some order to the nonsense. But as you know that's not as easy as one might have initially envisaged. 

As I know others are trying to do.

[gigoguy]

5 minutes ago, Graham Davis said:

You wrote :
""For goodness sake the canal's only 40 miles long and there are no locks or swing/lift bridges""

Factually incorrect, plus you have to cross Barton Tank if heading for Liverpool/Wigan. 
I have cruised it.

 

 

You do pass over it but you DON'T operate it. It's done by a man or used to be. Now it's never used. Except if you're right and I've never seen it, opened once a year to check it still works.

You DO NOT operate any locks or swing bridges anywhere along the Bridgewater canal

[gigoguy]

1 hour ago, Graham Davis said:

You wrote :
""For goodness sake the canal's only 40 miles long and there are no locks or swing/lift bridges""

Factually incorrect, plus you have to cross Barton Tank if heading for Liverpool/Wigan. 
I have cruised it.

 

 

And do you have to contradict everything i say?

Do you realise just how ridiculous that makes you look?

[Graham Davis]

Having presented cases in Courts in a previous occupation, I know that one of the most important aspects is to be accurate with the all the facts pertinent to that case. 
You were not accurate in your comment therefore I corrected it. If you had phrased it differently I would have agreed with you.
If you are inaccurate in these simple facts, how many other inaccuracies are there in your whole case against Peel?

 

 

[rusty69]

21 minutes ago, Graham Davis said:

Having presented cases in Courts in a previous occupation, I know that one of the most important aspects is to be accurate with the all the facts pertinent to that case

[cuthound]

11 hours ago, Graham Davis said:

Doesn't matter if Barton Tank is swung or not, it is still a swing bridge, and I understand that it is swung each year for maintenance.
And I suggest you check where Pomona Lock is. 
Look under Dock 3 in this link:
https://en.wikipedia.org/wiki/Manchester_docks

 

Try reading the Forum Guidelines!

On my first trip up the Bridgewater, on a hire boat in 1988, we had to wait at Barton Swing Aqueduct whilst a ship passed underneath. Fascinating, but in my excitement to see the ship, I forgot to take a camera.

What a missed opportunity. I will probably never witness that again. 

Edited October 8, 2017 by cuthound
To unmangle the effects of autocorrect.

[rowland al]

1 hour ago, Graham Davis said:

Having presented cases in Courts in a previous occupation, I know that one of the most important aspects is to be accurate with the all the facts pertinent to that case. 
You were not accurate in your comment therefore I corrected it. If you had phrased it differently I would have agreed with you.
If you are inaccurate in these simple facts, how many other inaccuracies are there in your whole case against Peel?

 

 

But this isn't a court is it? It's a discussion forum. Any chance you could make comments which are pertinent to the discussion rather than pick on trivial points to attack the OP?

 

[Guest]

3 hours ago, Graham Davis said:

 

Edited October 8, 2017 by MJG
Cannot be bothered.

[ditchcrawler]

1 hour ago, cuthound said:

On my first trip up the Bridgewater, on a hire boat in 1988, we had to wait at Barton Swing Aqueduct whilst a ship passed underneath. Fascinating, but in my excitement to see the ship, I forgot to take a camera.

What a missed opportunity. I will probably never witness that again. 

I have been through it on the MCS and had it open for us. This was about 5 years ago. If Snowdrop still runs from Salford to Liverpool  then it still opens. I see they are still running this year so I suspect they still need to swing the aqueduct http://www.merseyferries.co.uk/cruises/Manchester-Ship-Canal-Cruises/Pages/default.aspx

[cuthound]

6 minutes ago, ditchcrawler said:

I have been through it on the MCS and had it open for us. This was about 5 years ago. If Snowdrop still runs from Salford to Liverpool  then it still opens. I see they are still running this year so I suspect they still need to swing the aqueduct http://www.merseyferries.co.uk/cruises/Manchester-Ship-Canal-Cruises/Pages/default.aspx

Thanks Brian,

Looks like there are no more cruises on the MSC on the 2017/18 calender. 

I will bookmark the link above and look again in April next year, with a view to treating Mrs Hound and my self to a trip on "Dazzle" (neè Snowdrop) along the MSC.

[TheDuker]

15 hours ago, TheDuker said:

I feel that to allow that the word 'left' - being the past participle of 'leave' - can be employed in referring to a boat which is in use (ie.- underway or moored with someone onboard) is to condone a slackness in the use of language advantageous to those wishing to distort the true and intended meaning in the context in which the word is/was used. Surely, were it intended that boats in 'use', whether moored or underway, were to be the subject of 1(a) of S.9 of the 1960 MSC Act, then the word 'remains' [in any canal, river, waterway etc.] would replace 'left' ?

and :

14 hours ago, NigelMoore said:

If your position was to stand - and I would emotionally favour your interpretation - then the same would necessarily apply to s.8 of the 1983 BW Act, wherein the power to remove boats extends only [other than to boats "sunk, stranded or abandoned"] to boats "left or moored" within the jurisdictional area "without lawful authority".

Were they to be correct and honest in this matter, it appears that the BCCo. would favour it too. On their Licensing webpage they have seriously compromised their own chances of successfully arguing to the contrary by stating that - "All C&RT craft are subject to the terms and conditions of the Bridgewater Canal whilst they remain on our waterway."

The "left or moored"  wording employed in defining 'relevant craft' in S.8(1) of the '83 BW Act is, I feel, a clear reflection of the true intentions and purpose behind S.8 powers, in contrast with the specious utilization of that particular piece of legislation to which BW, and now C&RT, became addicted.

Edited October 8, 2017 by TheDuker

[mayalld]

On 10/6/2017 at 20:55, erivers said:

The notion that pleasure craft were not envisaged at the time when tolls were first set is not borne out by the Canal Rates, Tolls, and Charges, No. 2 {Bridgewater, etc. Canals), Order Confirmation Act, 1894

Section 25 clearly recognises "pleasure vessels" and also excludes them from the statutory schedule of tolls:

The 2012 Order which transferred the Bridgewater undertaking from the MSCC to the Bridgewater Canal Company does grant powers to make byelaws to require registration of vessels, to impose conditions for registration and to make reasonable charges and to impose specific penalties on conviction for breach.  

But no byelaws have ever been made under that Order.

 

However, this is of no help to you, as a later act applied the MSC toll regime to the Bridgewater. Any prior legislation as to tolls on the Bridgewater ceased to have effect at that point.

[mayalld]

On 10/7/2017 at 00:11, gigoguy said:

And despite what Ian says and how many bits of stuff he keeps coming up with. The ONLY piece of legislation Peel say gives them authority to charge is s52 of the 1962 Transport Act.

(3)Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the [F5British Waterways Board [F6and Canal & River Trust] F7...] shall [F8each] have power to demand, take and recover [F9or 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.

What would you say that means?

This is s43(3), which s52 applies to non-BW/non-CRT canals.

As to the bold type, it isn't what any of us says it means that matters. s43(8) tells you what it means

The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board [F17and Canal & River Trust], the use of any inland waterway owned or managed by them by any ship or boat.

 

 

On 10/7/2017 at 13:57, NigelMoore said:

I do not believe that is correct Dave – not without more being provided for in any transfer.

If CaRT were handed the Bridgewater Canal, the existing legislative framework would remain in place, and would be binding on CaRT. If charges have been permitted, those would transfer, but equally if they were not, then the prohibition still would apply – unless the Transfer Order specifically provided otherwise

Transfers to BW [now CaRT] of other waterways were provided for within the 1983 Act, section 10, where, if the existing authority did not object, “the Secretary of State may on application to him by the Board make an Order transferring to the Board all or part of the undertaking of any navigation authority and any functions or property of such authority.”

Sub-section (3) provides that the effect of such an Order may contain various provisions, specifically [as pertinent to this issue] “( b ) the amendment, adaptation or repeal of local enactments”, and ( c ) the classification of the waterways as per the 1968 Act, and “( e ) the inclusion of any such inland navigation in Schedule 1 to the Act of 1971:”

Of course, in practical terms CaRT would be highly unlikely to pass up the opportunity to have any such Order amend/repeal existing Bridgewater legislation, to enable them to bring the canal within their existing licensing scheme - so far as rivers are concerned at least, the several Orders that have been made to date under the 1983 Act have certainly specifically included those within the Schedule 1 river waterways, and thus made boats liable to chargeable Pleasure Boat Certificates as per the 1971 Act, even where they had enjoyed express freedom from any charges prior to the Order.

So my point may be pedantic, because the answer would be as you say, but just not automatically, by way of a simple transfer of undertakings; express provision would need to be made.

I understand that the transfer of the Rochdale canal was on that basis.

Frankly, CRT are unlikely to accept any transfer that comes under a different legislative regime.

[mayalld]

21 hours ago, cuthound said:

Thanks Brian,

Looks like there are no more cruises on the MSC on the 2017/18 calender. 

I will bookmark the link above and look again in April next year, with a view to treating Mrs Hound and my self to a trip on "Dazzle" (neè Snowdrop) along the MSC.

Not so!

The last cruise of 2017 departs from Liverpool TODAY at 11am, and returns tomorrow.

I too have done the MSC cruise, and well remember that they actually had trouble with Barton Aqueduct, and that we had to hold off for around half an hour whilst it was swung. I have also been on the Bridgewater and had to wait because there was a ship passing through.

[erivers]

1 hour ago, mayalld said:

However, this is of no help to you, as a later act applied the MSC toll regime to the Bridgewater. Any prior legislation as to tolls on the Bridgewater ceased to have effect at that point.

Yes Dave, that is agreed and the reference was not intended to imply otherwise but just to correct your point about pleasure craft not being envisaged within earlier legislation.

The Manchester Ship Canal Act 1950 (and to a less certain extent some earlier MSC Acts from 1920 on) does bring the Bridgewater into the MSC statutory regime under which the 1961 byelaws were made and still apply.  But those byelaws do not prescribe charges for pleasure craft or penalties for default.

The authority to make byelaws requiring registration, to prescribe charges for pleasure craft and define offences and penalties for default comes from the 2012 Transfer of Undertaking Order.  But, as far as I am aware,  no byelaws have ever been made under that Order.

There remains under the MSC Act 1960 the power to remove vessels 'left' in the waterway for more than a month but only then after a period of notice has been given in the prescribed form.

 

[NigelMoore]

3 hours ago, mayalld said:

Frankly, CRT are unlikely to accept any transfer that comes under a different legislative regime.

Insofar as the ability to charge is concerned, yes; they have hitherto sought as undoubtedly they would in future, to amend any legislative freedom from licensing and registration charges – although the level of charges will still be affected by the nature of the transferred waterways [i.e. whether subject to PRN or not]. Canals have and would be brought within the standard CaRT licensing scheme, while rivers have and would be brought into the 1971 registration scheme.

However, to date so far as I am aware, remaining legislation peculiar to the differing waterways within the Cart jurisdiction would be and has been, applicable still. Hence, for example, different byelaws still apply to those different waterways. I do not think that wholesale abolition of entire legislative frameworks have been enacted, so the different legislative regimes of the additional waterways have continued to apply. The River Ouse and Foss Navigation Byelaws are one example of an existing legislative regime of transferred waterways continuing to apply [although the River Ouse was brought within the Scheduled rivers of the 1971 Act and so made liable to the registration requirement].

That is not to say that entire replacement could not happen, and examples of abolitions of existing byelaws are contained within the existing BW Byelaws. For example in 1966 the River Lee General Byelaws were abolished so that the general BW Byelaws would apply instead. In 1972 further byelaws regarding water-skiing were applied to all waterways in BW’s control, and penalties were increased under the Gloucester & Sharpness Canal and the River Severn Navigation [which yet retained their specific byelaws]. The 1976 additions, on the other hand, would apply to any additional canal [other than a river waterway] brought into the fold – though I strongly suspect that any specific freedom of use would still need to be expressly abolished as part of any Transfer Order, in order to give that full effect.

I am probably being pedantic yet again, but it is important I think. The EA, as an example of how this works, has a number of different waterways under its control, but each of them retain their specific legislative regime, and only the 2010 Order unifies the registration requirements.

Edited October 9, 2017 by NigelMoore
as pointed out by a fellow pedant, I got the year wrong for Environment Agency (Inland Waterways) Order 2010.

[gigoguy]

6 hours ago, mayalld said:

As to the bold type, it isn't what any of us says it means that matters. s43(8) tells you what it means

Yes that was p2 s43. And  s8 does include the waterway as part of the services. However (8) of that section shall apply to any independent inland waterway undertaking, as those subsections apply to the Boards.

So we're back where we started. Yes they can charge for what they can charge for but they can't charge for anything that is exempt from charges, unless new by laws have been passed to allow the charge.

I can't understand why we're still arguing. The Acts are clear in ever respect. If it's exempt it's exempt and no one has sent me anything at all that says

Tolls and charges

Wood 5 bob a ton

stone 3 bob a ton

pleasure craft 2 bob a mile, day, week?

Nothing nowhere is there a charge for pleasure boats. If someone can just send that I'll shut up. Until they do I say Peel can't charge a toll for pleasure craft and THEY are the ones breaking the law by charging one.

I've just had some very interesting news from an FOI request I put in. I'm now waiting for the police professional standards dept to get back to me and i think a few doors are going to be knocked on. I'm running a sweep on who gets cut loose first. The boss, the puppet, the traffic warden or the bin man. As the bin man is only a subby it's going to be hard to call.

 

[mayalld]

4 hours ago, erivers said:

Yes Dave, that is agreed and the reference was not intended to imply otherwise but just to correct your point about pleasure craft not being envisaged within earlier legislation.

The Manchester Ship Canal Act 1950 (and to a less certain extent some earlier MSC Acts from 1920 on) does bring the Bridgewater into the MSC statutory regime under which the 1961 byelaws were made and still apply.  But those byelaws do not prescribe charges for pleasure craft or penalties for default.

The authority to make byelaws requiring registration, to prescribe charges for pleasure craft and define offences and penalties for default comes from the 2012 Transfer of Undertaking Order.  But, as far as I am aware,  no byelaws have ever been made under that Order.

There remains under the MSC Act 1960 the power to remove vessels 'left' in the waterway for more than a month but only then after a period of notice has been given in the prescribed form.

 

OK, so to distil what is a whole raft of legislation down to just the relevant;

• Any Bridgewater legislation prior to the MSCC Act transferring the Bridgewater regime is of no effect here
• Any private legislation that prohibits the making of a charge prior to 1962 continues to be effective post the 1962 transport act. Any legislation that limits charges ceases to have effect.
• The transfer order imposes a new restriction on charges (they must be reasonable), and restates the earlier prohibition on charges that are already prohibited, in a slightly differing form.

The lack of new bye-laws is irrelevant, because the transfer order makes no mention of charges having to be promulgated by bye-law.

So, the question of can they charge actually distils to a point that Nigel and I have argued MANY times regarding s43.

Nigel would argue (and I hope I reflect his argument correctly here) that as a creature of statute can only do what its creating statute empowers it to do, anything that it is not empowered to do is prohibited, and that as such the general power to charge in s43 extends only to things that can already be charged for, as other charges are prohibited.

I would argue to the contrary for three reasons, each of which stands alone and would rebut alone even if the other reasons fail;

1. Whilst it may indeed (and this is open to some debate, as post companies act 2006 the law has shifted) be the case that a legal person can only do what it's creating document empowers it to do, there is a qualitative difference between those things that a legal person is prohibited from doing by its creator, and those things that it has not been enabled to do. The mere omission of a power is not a prohibition, it is a lesser inhibition which can be overturned by a later general permission to do all things not actually prohibited.
2. If the first argument fails, and mere omission does amount to a prohibition, then this prohibition is a prohibition at common law, not a prohibition by statute. Both the 1962 Act and the 2012 order refer to prohibitions in "any enactment". A prohibition at common law is not a prohibition in an "enactment", so it is not within the scope of the exceptions to the right to levy charges.
3. If both the prior arguments fail, and application of the common law together with an enactment does amount to a "prohibition in an enactment", the result is a legal absurdity, since it stands to all appearances to grant powers, but in fact grants no powers other than those that exist. Had this been the intention, it could have been stated far more clearly in terms of "where there currently exists a power to levy a charge, any limit to that charge is abolished". As such, even if the ordinary construction of the clause is that lack of earlier mention amounts to a prohibition, such an interpretation leads to an absurdity, and it must be concluded IN THIS CASE that this was not the intention, and the clause should be construed accordingly.

If Nigel's argument is right, then I cannot CURRENTLY see the basis upon which BCC can charge, absent any evidence of a right to charge for pleasure boats in unrepealed legislation.

If my argument is right then I cannot CURRENTLY see any basis upon which their right to charge can be assailed, absent evidence of an actual exemption for pleasure boats in unrepealed legislation.

Whilst this is a re-hash of a discussion that Nigel and I have had many times before, it does bring a new angle, because on previous occasions it has been argued that BW/CRT cannot rely on s43, because they had gone back to parliament seeking new powers to charge, which amounts to an implicit acceptance that s43 didn't grant what they need and/or an abandonment of those powers.

As the present case doesn't involve CRT, that elephant in the room is gone. BCC can simply say "BW said they needed more powers, but they were wrong. We hold to the line that s52, s43 and the transfer order are sufficient of themselves"

 

[mayalld]

6 minutes ago, gigoguy said:

Yes that was p2 s43. And  s8 does include the waterway as part of the services. However (8) of that section shall apply to any independent inland waterway undertaking, as those subsections apply to the Boards.

So we're back where we started. Yes they can charge for what they can charge for but they can't charge for anything that is exempt from charges, unless new by laws have been passed to allow the charge.

I can't understand why we're still arguing. The Acts are clear in ever respect. If it's exempt it's exempt and no one has sent me anything at all that says

Tolls and charges

Wood 5 bob a ton

stone 3 bob a ton

pleasure craft 2 bob a mile, day, week?

Nothing nowhere is there a charge for pleasure boats. If someone can just send that I'll shut up. Until they do I say Peel can't charge a toll for pleasure craft and THEY are the ones breaking the law by charging one.

 

See my other post which crossed with yours.

Your argument is that unless a previous enactment has specified a charge for something, it is prohibited to make that charge, and the transfer order's general power to charge doesn't remove that prohibition.

My argument is that where there is no charge in a prior enactment, there wasn't an actual prohibition, but that charges were impossible due to the common law,and that the general power in 1962 and 2012 overrides that (statute always beats common law).

So, my view is that the absence of an explicit charge in earlier acts doesn't help you. You actually need something that says "pleasure boats free of charge"

 

[NigelMoore]

1 hour ago, mayalld said:

Whilst this is a re-hash of a discussion that Nigel and I have had many times before,

 

Without re-hashing that dispute yet again, I would argue only that if the Courts were right to make the finding [as e.g. in Stourbridge v Wheeley] that absence of a right in an enabling Act to levy a charge for a particular use amounted to a prohibition, then that “otherwise prohibits” arises from statutory law rather than common law.

That said, cases such as Stourbridge depend upon the conferring of a right for the public to use boats on their canal, subject only to whatever charges were specifically permitted. If no such general rights were conferred [and I have not read any relevant Acts that convince me they were], then the issue does not arise and the court findings in such cases are simply inapplicable. In that case, your suggestion that [effectively] a contractual arrangement licensing passage of boats would be permissible, has merit.

With the caveat that my comments depend only on what has been revealed thus far in the forums, it seems that only riparian owners were at one point permitted free use of the canal with pleasure boats, and that there could well be implied repeal of that use, within the late clause granting rights of removal of boats left more than a month without the company’s consent.

I am not confident that implied repeal applies where express liberty has not been explicitly removed [ref: Robertson v Network Rail] – but it is a potential argument for Bridgewater residents to be obliged to pay for consent. As to passage of non-resident boats, as I have said earlier, that same clause re: boat removals would suggest that there could be no redress for the company respecting boats that never remained on the canal for longer than a month. The clause seems to cut both ways, and if boats chose not to enter into contractual licences for temporary passage only, then removal of such boats prior to the statutory month and a week is not possible, and non-statutory reliefs would have to be sought on alternative premises.

It could be argued that the terms of the boat removal clause imply a liberty to transit the canal so long as you do not dawdle over it and abuse the privilege. Just a suggestion.

[gigoguy]

http://www.manchestereveningnews.co.uk/news/greater-manchester-news/bridge-toll-rise-causes-traffic-1198015

This is Peel Holdings. Pay for maintenance my left cheek. I bet they haven't painted it in 20 years!

OK Graham 19 years 11 months and 28 days! You know because you was there.

[Pie Eater]

10 years ago that was printed.

[gigoguy]

5 hours ago, mayalld said:

See my other post which crossed with yours.

Your argument is that unless a previous enactment has specified a charge for something, it is prohibited to make that charge, and the transfer order's general power to charge doesn't remove that prohibition.

My argument is that where there is no charge in a prior enactment, there wasn't an actual prohibition, but that charges were impossible due to the common law,and that the general power in 1962 and 2012 overrides that (statute always beats common law).

So, my view is that the absence of an explicit charge in earlier acts doesn't help you. You actually need something that says "pleasure boats free of charge"

 

Up until the 70'/80's the Rochdale canal was also still privately owned and they charged 30 quid a boat to do the nine locks from Castlefield to Piccadilly basin where it joined the Ashton canal.

In order to do the Cheshire ring boaters had to go into the RCCL office on Dale street in M/c and pay the toll. As the other privately owned canal on the ring. Why weren't MSCCL charging for the crossing from Trent and Mersey or from Leigh?

There is NO way that MSCC would have missed out on that if they could have had a slice. That toll was all that kept the Rochdale open and it only just about did that.

Another piece of information I'm awaiting are accounts. They will show every penny charged for every vessel from when the canal opened to when they stopped receiving toll income. I don't think we have any problem proving implied and historic exemption

4 minutes ago, Pie Eater said:

10 years ago that was printed.

Oh well then they really do need to put the toll up and cause 2 mile tail backs every week day morning and afternoon then. If they've got to paint it every 10 years!

Edited October 9, 2017 by gigoguy