CRT Not To Get EA Navigations, Yet

[matty40s]

4 hours ago, Scholar Gypsy said:

All good points.

Much of the debate on the Ouse - and I think  the main reason why GOBA, the main boating group, supported transfer to CRT  -   is over shoaling, dredging,  and people damaging outdrives by running aground.  The hundred foot is also getting quite shallow...

Whether transfer to CRT would improve the situation is not clear to me ....

You would get far better towpaths, tarmaced and fishing competitions in August.....what more do you want.

[Midnight]

21 hours ago, Alway Swilby said:

....................... except maybe the Derwent. 

 

[NigelMoore]

On 28/01/2018 at 12:38, Mike Todd said:

For once I think you are being over-precise. Of course, the payment of a registration fee is not the source of the right to navigate, but, for all practical purposes, it does enable access to that right. No payment, no access. As it now stands, as distinct from what it once was, is that the right to navigate is subject to registration and payment, it is not - in effect - an unencumbered right.

I am tempted to plead ‘mea culpa’, but really, in this context I just can’t bring myself to. Yes, an original free right has been ‘encumbered’ with imposed conditions [as Parliament can do], and certainly, no common law right is unencumbered with the necessity to take account of the overlapping rights of others – but I was answering the post that suggested the ‘licence’ fee was a charge “for being on their water”, and that is simply incorrect. The distinction might seem a fine one, but the very use of ‘licence’ instead of the correct “registration certificate” illustrates the confusion arising from a failure to understand the very real differences where a public right of navigation persists. As quoted, the EA understands this.

On 28/01/2018 at 11:50, OldGoat said:

I'm obliged, Nigel

In a clumsy way I was trying to explain to the complainant that the licence fee did not oblige the EA to provide rubbish facilities et al

Understood Old Goat, but the fact is that when a navigation authority is to be granted a right to charge registration fees in public navigable rivers, the legal position is that this can only be done in consideration of some ‘quid pro quo’. In other words, the authority must have proposed to expend monies for improvements benefitting the boaters, as justification for introducing charges – which naturally impact upon the prior free rights.

I have recently had to point the recent Select Committee considering the Middle Level Bill to the 1830 case of Brett v Beale & Ors, where the judgment of the court was: “One may have a toll traverse by prescription, and so he may have toll thorough, but it ought to be for some reasonable cause which must be shewn.” Concluding: “the king cannot charge his subjects by imposition of toll, unless it be for the benefit of the subjects who are charged, and when there is given a quid pro quo . . . we give authorities to shew that a toll cannot be imposed, unless there is a quid pro quo;”  [my bold]

That being the case, such improvements as have been proffered as the quid pro quo justifying the charges, do indeed become an obligation, not merely a right.

[NigelMoore]

On 28/01/2018 at 12:32, Mike Todd said:

Be careful to distinguish between powers and duties. As I read your extract, EA have the power (ie they may) to spend money on improving facilities but they do not have a duty to do so, certainly not to any defined standard. (Improvement, as such, is an open-ended matter)

By way of illustration of the point I have just made to Old Goat, the ‘justification’ suggested by the Middle Level Commissioners for their proposed charges, is that the proposed improvements by way of supplying hitherto absent facilities are to be constructed according to standards defined by the IWA. As Mr Cameron QC claimed: “It is also the intention of the Commissioners to provide facilities that meet the IWA minimum facility standards. They are set out in the evidence before you. Facilities that achieve that standard as a minimum are intended to be provided. There is also potential for the navigable waterways to be expanded.”

Myself and other petitioners hold the view that such obligatory improvements ought to be incorporated into the primary legislation, rather than being subject to the terms of later undertakings, but at least the basic principle is recognised by the QC, along with an enforceable standard for the improvements.

---

 

[Mike Todd]

9 hours ago, NigelMoore said:

By way of illustration of the point I have just made to Old Goat, the ‘justification’ suggested by the Middle Level Commissioners for their proposed charges, is that the proposed improvements by way of supplying hitherto absent facilities are to be constructed according to standards defined by the IWA. As Mr Cameron QC claimed: “It is also the intention of the Commissioners to provide facilities that meet the IWA minimum facility standards. They are set out in the evidence before you. Facilities that achieve that standard as a minimum are intended to be provided. There is also potential for the navigable waterways to be expanded.”

Myself and other petitioners hold the view that such obligatory improvements ought to be incorporated into the primary legislation, rather than being subject to the terms of later undertakings, but at least the basic principle is recognised by the QC, along with an enforceable standard for the improvements.

---

 

I suspect one problem with including specific standards on the face of the bill is that the Act may outlive those standards. What if, say, IWA ceased to maintain such standards or, even, the IWA ceased to exist? Either there would be nothing to monitor MLC against or primary legislation would be required once again. The trend these days is to make legislation as future-proof as possible which means that some matters have to be done by regulation or other means.

[NigelMoore]

4 minutes ago, Mike Todd said:

I suspect one problem with including specific standards on the face of the bill is that the Act may outlive those standards. What if, say, IWA ceased to maintain such standards or, even, the IWA ceased to exist? Either there would be nothing to monitor MLC against or primary legislation would be required once again. The trend these days is to make legislation as future-proof as possible which means that some matters have to be done by regulation or other means.

 

Exactly what the QC argued. To my mind though, the undertaking as to undertaking improvements simply ought to be part of the primary legislation granting rights to charge by way of compensation for the cost of those improvements. Lawyers could finesse any complexities.

[erivers]

6 minutes ago, NigelMoore said:

 

Exactly what the QC argued. To my mind though, the undertaking as to undertaking improvements simply ought to be part of the primary legislation granting rights to charge by way of compensation for the cost of those improvements. Lawyers could finesse any complexities.

I agree.  The provision in the Primary Legislation could be something as simple as requiring the Authority to "make reasonable provision of facilities suitable for the numbers and types of vessels registered to use the waterway".The definition of "reasonable" might then open up a whole new debate but at least the quid pro quo would be recognised to some extent.

There is to some extent a saving grace in the important amendment suggested by the committee's counsel after hearing the petitioners that registration fees can only be spent on the navigation. At least there is the possibility that any "surplus" funds after general maintenance will be directed to improvements instead of being spent elsewhere.

 

[Mike Todd]

10 hours ago, erivers said:

I agree.  The provision in the Primary Legislation could be something as simple as requiring the Authority to "make reasonable provision of facilities suitable for the numbers and types of vessels registered to use the waterway".The definition of "reasonable" might then open up a whole new debate but at least the quid pro quo would be recognised to some extent.

There is to some extent a saving grace in the important amendment suggested by the committee's counsel after hearing the petitioners that registration fees can only be spent on the navigation. At least there is the possibility that any "surplus" funds after general maintenance will be directed to improvements instead of being spent elsewhere.

 

Be careful what you wish for! Do we have any estimate of how many boats are likely to take up registration with MLC - as distinct from depending on reciprocal arrangements with eg CaRT? If, let us say, the charge for registration was approaching that of a general Gold Licence, then some might opt for the greater value (especially as it is likely to be the preferred option for those not permanently based on ML seeing as either an EA or CaRT licence will be needed to get there). This would then spiral if MLC adopted the strict basis of dividing their 'navigation' costs by the number of licences. 

My previous point still remains - let us suppose that EA/CaRT merge and then there is a move to incorporate other navigation authorities such as MLC. This would remove the validity of the test you propose and open the way for 'remaindering' of the ML if insufficient boats navigate that way.

There is an assumption in Nigel's argument that the income from registrations will at least match the costs - since the definition of 'facilities' is also undefined and open to accretion, I am sure that a creative accountant will have no difficulty in arranging the figures* to show how MLC make a loss on registrations - useful around the time of setting next year's increase. The most useful word remains 'reasonable' as that allows either side to contest the situation in front of a court. Hopefully they will find that Solomon is the duty judge that day!

* consider that a lock and adjacent weir are repaired at the same time. The latter is needed anyway for water control but many of the costs are combined - such as arranging equipment access etc.

[NigelMoore]

1 hour ago, Mike Todd said:

There is an assumption in Nigel's argument that the income from registrations will at least match the costs - since the definition of 'facilities' is also undefined and open to accretion, I am sure that a creative accountant will have no difficulty in arranging the figures* to show how MLC make a loss on registrations - useful around the time of setting next year's increase. The most useful word remains 'reasonable' as that allows either side to contest the situation in front of a court. Hopefully they will find that Solomon is the duty judge that day!

* consider that a lock and adjacent weir are repaired at the same time. The latter is needed anyway for water control but many of the costs are combined - such as arranging equipment access etc.

If such an assumption can be read into what I have said, then I have worded it wrongly, because there is no such suggestion that contributions will at least match expenditure – quite the contrary in this case.

The principle is that “contributions” cannot be demanded except in direct relation to a received benefit. In “olden days” the charges would be fixed in statute, so that whether or not the promoters ended up in profit or not would depend upon the success of their enterprise in encouraging profitable take-up of their facilities.

Much to the dismay of other navigation authorities at the time, BW also, proposed fixed charges for registering boats under their 1970 Bill. The quid pro quo was admitted by ministers to be rather little, but then, as they argued, the amounts demanded were to be very little also [I cannot remember whether the contributions were anticipated to meet expenditure or not – I suspect not].

With the Middle Level Bill, the promoters have been explicit in insisting that the expected revenue from boat registrations will come nowhere near the claimed expenditure on navigation-only works – at most, revenue will only ever be a proportion of current maintenance expenditure, let alone any projected expenditure on possible proposed improvements.

They have agreed to a cap on registration revenue, such that at no time will it ever exceed that spent on navigation-only works. That opens the door to a situation where they could charge at the level of existing expenditure leaving no surplus for improvements at all. They explicitly claim that they will always make a “loss” with regard to their navigation expenditure, even with the registration charges.

The level of their claimed expenditure on navigation obligations as distinct from drainage obligations was subject to challenge from some petitioners, and as you say, it is a complex [perhaps impossible] task to accurately differentiate most of the time. I would say that the navigation-only expenditure would properly relate only to the specific standards to which certain lengths were to be dredged for commercial navigation purposes.

[NigelMoore]

1 hour ago, Mike Todd said:

Do we have any estimate of how many boats are likely to take up registration with MLC - as distinct from depending on reciprocal arrangements with eg CaRT? If, let us say, the charge for registration was approaching that of a general Gold Licence, then some might opt for the greater value (especially as it is likely to be the preferred option for those not permanently based on ML seeing as either an EA or CaRT licence will be needed to get there).

There is no such estimate as I recall. The suggested level of charge for an “average” boat [a 45’ narrowboat] was given as around £300-350/annum, with an extra £10-15 for a Gold Licence to include the Middle Levels.

That would mean that boaters such as the IWA representative – who travels the wider system on a Gold Licence, though keeping his boat on the Middle Levels - would be facing an increase of only £15 max per annum – and the MLC would only be getting that modest extra from boaters choosing that option.

With boaters keeping their boats on CaRT or EA waterways, and using the Middle Levels only for transit, there would be no income whatever under suggested reciprocal arrangements.

[NigelMoore]

The grounds of the IWA disappointment over the failed bid by CaRT is hard for me to see. Their article on the rejection states:

“With increased pressure on general EA budgets through Defra and the need to prioritise other services such as flood control, the funding for navigation seems likely to decrease and navigation assets deteriorate further.  There is evidence that if navigation structures such as locks, bridges and embankments are not maintained to a proper standard this could result in a major failure leading to lengthy closures of the navigation, damage to local economies, increased local flood risk and the need to expend large sums on remedial work.  [my bold]
IWA believes that these matters should be capable of resolution and that a transfer of EA navigations remains the best way to ensure the future of these waterways with the minimum impact on the public purse.” 

 I was gathering the impression that CaRT were living up to the prognostications of Evans & co, in overseeing the BW navigation assets gradually deteriorate, even more so as their expectations of increasing income have been disappointed, and they are seeking loans to cover the serious overheads such as management pay packets.

 I fail to see how taking on even more national assets in need of continuing maintenance will help their budget. Given the rapidly approaching date for withdrawal of DEFRA funding for CaRT, the position can only worsen.

[Alan de Enfield]

My thoughts exactly.

 

51 minutes ago, NigelMoore said:

I was gathering the impression that CaRT were living up to the prognostications of Evans & co, in overseeing the BW navigation assets gradually deteriorate, even more so as their expectations of increasing income have been disappointed, and they are seeking loans to cover the serious overheads such as management pay packets.

 I fail to see how taking on even more national assets in need of continuing maintenance will help their budget. Given the rapidly approaching date for withdrawal of DEFRA funding for CaRT, the position can only worsen.