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Permission for moorings


BWM

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I have a friend who is looking to moor some boats along the canal adjacent to the pub he runs, visiting craft have always moored there whilst using the pub but he would be glad of the extra income from permanently moored boats. The land in question was historically a wharf.

  Has anyone any experience of a similar situation or can point me in the right direction to obtain information on this?

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30 minutes ago, BWM said:

I have a friend who is looking to moor some boats along the canal adjacent to the pub he runs, visiting craft have always moored there whilst using the pub but he would be glad of the extra income from permanently moored boats. The land in question was historically a wharf.

  Has anyone any experience of a similar situation or can point me in the right direction to obtain information on this?

Does the  run the pub or own the pub ?

Does he own the wharf ?

 

If he doesn't own the wharf then I would suspect he hasn't got much chance. C&RT are trying to reduce the number of on-line moorings.

 

If he does own it, I would assume it would come under the same fee structure as a farmer using his field edge.

C&RT have a policy and a fee structure so if he calls them I'm sure that he will get all the answers.

 

 

In 2006 we set out our policies for long term moorings along the line of the waterways.   This followed a period of challenge by the British Marine Federation who believed that BW was not sufficiently supportive of the development of new marinas by private investors.  We reformed our internal processes to ensure that the granting of consent is given using consistent criteria and published helpful information on a dedicated website, www.britishwaterways.co.uk/marina development .  This resulted in the creation of some 5,000 new offline long term mooring berths between 2006 and 2011.   At the same time, we undertook to start reducing the number of authorised long term moorings along the line of the waterway in some areas and to tightly restrict the creation of new online moorings.  This policy was published and became effective in January 2007, and the policy paper on this subject is still valid.  The policy provisions are re-stated in Policies for Moorings along the Banks of BW Waterways, published in September 2010.  

 

This is the C&RT page on guidance for setting up new moorings :

 

https://canalrivertrust.org.uk/business-and-trade/boating-business/starting-or-expanding-a-boating-business/marinas-and-moorings

 

1. There is a general presumption against the development of new online mooring development. New online moorings are acceptable only if all of the following criteria apply:

(a) There is clear excess demand for moorings in the area with no vacancies at comparable the Trust or third party sites.

(b) There is no prospect in the short or medium term of new off-line mooring development.

(c) There is low density of existing on-line moorings in the area.

(d) There are no operational or environmental constraints to online moorings at the proposed location.

Constraints include high boat traffic volumes, water availability for navigation, and navigational safety.

Edited by Alan de Enfield
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Historically, in 1998 BW decided that there would be no new linear moorings.

In 2008 the land owner farmer here and I achieved a new mooring right for 12 boats, but only after a battle involving threats of section 8 etc and refusal of licences.

I can put you in touch if you so wish. 

Private messages only.

Sam.

Edited by Boater Sam
repetition
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6 minutes ago, Alan de Enfield said:

Does the  run the pub or own the pub ?

Does he own the wharf ?

 

If he doesn't own the wharf then I would suspect he hasn't got much chance. C&RT are trying to reduce the number of on-line moorings.

 

If he does own it, I would assume it would come under the same fee structure as a farmer using his field edge.

C&RT have a policy and a fee structure so if he calls them I'm sure that he will get all the answers.

 

It may come under the EOG rules where C&RT will charge him 50% of the local mooring rate - but - the EOG arrangement may not include a 'commercial operation' which is why he really needs to talk with C&RT.

He runs the pub but i believe has a financial interest in the ownership as well, and certainly will be supported in this decision. The wharf is long gone but i understand that this normally has a bearing on gaining permission. 

  Any idea on the best point of contact at Crt? One of my primary reasons for asking is to find out what potential pitfalls there may be in the application stage and any potential leverage if Crt are unreasonably reluctant-like most busy landlords his patience will be limited, and it would be a shame for any who may benefit to lose out on this opportunity. 

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8 minutes ago, Boater Sam said:

Historically, in 1998 BW decided that there would be no new linear moorings.

In 2008 the land owner farmer here and I achieved a new mooring right for 12 boats, but only after a battle involving threats of section 8 etc and refusal of licences.

I can put you in touch if you so wish. 

Private messages only.

Sam.

Historically, in 1998 BW decided that there would be no new linear moorings.

In 2008 the land owner farmer here and I achieved a new mooring right for 12 boats, but only after a battle involving threats of section 8 etc and refusal of licences.

I can put you in touch if you so wish. 

Private messages only.

Sam.

 

3 minutes ago, Alan de Enfield said:

Try "Business Development"

 

Here is the full policy for him to read and ensure he complies before speaking with them.

 

https://canalrivertrust.org.uk/media/library/1127.pdf

Thanks, i will let him know. 

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9 hours ago, BWM said:

He runs the pub but i believe has a financial interest in the ownership as well, and certainly will be supported in this decision. The wharf is long gone but i understand that this normally has a bearing on gaining permission. 

  Any idea on the best point of contact at Crt? One of my primary reasons for asking is to find out what potential pitfalls there may be in the application stage and any potential leverage if Crt are unreasonably reluctant-like most busy landlords his patience will be limited, and it would be a shame for any who may benefit to lose out on this opportunity

There is an opposing view that other than the few who actually moor there, there is a dis-benefit to everyone else in that it's more boats that we have to slow down for when we pass.  And whilst there is an argument that it's only a small number of boats, these small number of boats at regular intervals add up and hinder navigation. CRT's (and before them BW's) policy of not allowing new linear moorings was probably too little too late, and based on posts above not rigorously enforced. Managing to force CRT to give way may be seen as a victory for the little man against a national monolith, but in reality we're  all the poorer as a result.

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10 hours ago, BWM said:

… visiting craft have always moored there whilst using the pub but he would be glad of the extra income from permanently moored boats

Permanent moorers, even if essentially liveaboards, are not that likely to visit the pub every night.  If the permanent moorings would occupy the space that visiting craft currently use, would discouraging visitors lose almost as much as he gains?

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29 minutes ago, Cheese said:

Permanent moorers, even if essentially liveaboards, are not that likely to visit the pub every night.  If the permanent moorings would occupy the space that visiting craft currently use, would discouraging visitors lose almost as much as he gains?

I've often wondered that, when passing pubs where the moorings are occupied by obviously permanent moorers but guaranteed £2000 a year against a possible profit of £20 a night from a  visiting boat, over the cruising season,  what would you choose? 

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I would suggest researching the original enabling Act for the canal and checking if it has ever been repealed. Nigel Moore will no doubt correct me if I am wrong but my understanding is that many of these Acts gave rights to landowners adjacent to the waterways. My understanding is that BW attempted to repeal these Acts in what is now the BW 1995 Act.

 

Nigel?

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1 hour ago, Cheese said:

Permanent moorers, even if essentially liveaboards, are not that likely to visit the pub every night.  If the permanent moorings would occupy the space that visiting craft currently use, would discouraging visitors lose almost as much as he gains?

But is he likely to make £20 a week profit from every 60foot of his frontage 52 weeks a year.

 

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1 hour ago, ditchcrawler said:

But is he likely to make £20 a week profit from every 60foot of his frontage 52 weeks a year.

 

If in an area popular with hire boats, he might pick up passing trade lunchtime and evenings say 5 days a week during peak season, which could make a lot more than £20.  Admittedly it would be a lot quieter at other times of year.  Perhaps a better offering would be something closer to the winter moorings scheme.

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12 hours ago, jonathanA said:

I would speak to the local mooring manager.

 

i found the one I needed to speak to by ringing crt on there 0303 number. I also found the mooring managers details by looking for crt moorings in the area I was interested in. 

 Thanks, i have done so.

12 hours ago, Mike55 said:

There is an opposing view that other than the few who actually moor there, there is a dis-benefit to everyone else in that it's more boats that we have to slow down for when we pass.  And whilst there is an argument that it's only a small number of boats, these small number of boats at regular intervals add up and hinder navigation. CRT's (and before them BW's) policy of not allowing new linear moorings was probably too little too late, and based on posts above not rigorously enforced. Managing to force CRT to give way may be seen as a victory for the little man against a national monolith, but in reality we're  all the poorer as a result.

As stated in the op, there are already boats stopping there and a well used stretch of visitor moorings, so not a relevant issue here.

11 hours ago, Cheese said:

Permanent moorers, even if essentially liveaboards, are not that likely to visit the pub every night.  If the permanent moorings would occupy the space that visiting craft currently use, would discouraging visitors lose almost as much as he gains?

They are lightly used and there are many visitor moorings available nearby. 

10 hours ago, ditchcrawler said:

But is he likely to make £20 a week profit from every 60foot of his frontage 52 weeks a year.

 

No.

 

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On 20/11/2018 at 20:36, Allan(nb Albert) said:

I would suggest researching the original enabling Act for the canal and checking if it has ever been repealed. Nigel Moore will no doubt correct me if I am wrong but my understanding is that many of these Acts gave rights to landowners adjacent to the waterways. My understanding is that BW attempted to repeal these Acts in what is now the BW 1995 Act.

 

Nigel?

Correct: most canal acts did give rights to create moorings on private offside banks, and these have never been repealed despite the aborted attempt to do so via the 1990 Bill.

 

The wording was usually couched in terms of making places for boats to lie and/or turn around in, thus opening the way for landowners to dig out as far as they wished into their own land if they wished to accommodate more boats than could moor in the canal.

 

Regardless of a few non-binding county court judgments (all argued on different grounds, some dishonest), one case may have reached the High Court, and in that one Mr Stoner QC successfully persuaded the judge - not that the Act did not grant rights to create moorings, but - that the terms did not extend so far as to grant permission to create a marina. This, the most explicit if tacit admission that the right of riparian owners to create moorings alongside the GJC continued to apply (even if not to the extent argued by the marina creator), is contained in a judgment that CaRT understandably refuse to disclose, claiming they have no records of it.

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8 hours ago, NigelMoore said:

Correct: most canal acts did give rights to create moorings on private offside banks, and these have never been repealed despite the aborted attempt to do so via the 1990 Bill.

 

The wording was usually couched in terms of making places for boats to lie and/or turn around in, thus opening the way for landowners to dig out as far as they wished into their own land if they wished to accommodate more boats than could moor in the canal.

 

Regardless of a few non-binding county court judgments (all argued on different grounds, some dishonest), one case may have reached the High Court, and in that one Mr Stoner QC successfully persuaded the judge - not that the Act did not grant rights to create moorings, but - that the terms did not extend so far as to grant permission to create a marina. This, the most explicit if tacit admission that the right of riparian owners to create moorings alongside the GJC continued to apply (even if not to the extent argued by the marina creator), is contained in a judgment that CaRT understandably refuse to disclose, claiming they have no records of it.

I believe that the key here is "OWNER", I would doubt that any 'passer-by' could just lay claim to a piece of canal side land and start to charge for moorings.

 

If I understand the OP then the suggestion is that the manager of a Pub, which lies close to an old wharf would like to turn it into permanent moorings to give him another income stream.

There does not appear to be any suggestion (despite asking) that he has any rights over the wharf.

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It need not be the owner; the right extended to his lessees or “occupiers” - though, naturally, the owner's permission would have to obtain. The case in point had the owner buying the “Lord of the Manor” title to cement his claim, but that was gilding the lily and entirely unnecessary.

 

The Yardley Gobion judgment, from the little I garnered from online comment at the time, was one of those regrettable decisions that attempted to accommodate a recognised authority as best the judge could finagle in the face of the all too obvious. If, as was recognised, the wording obviously allowed the riparian owner to dig out his own land along his whole frontage to a depth of at least 70' (to create the 'lay-by' as was admitted to be possible – of which frequent examples remain), then what difference could it make to the canal company if the owner's land was dug out further? There is no limiting expression in the Act to suggest how few places “for boats to lie” the owner might be permitted.

 

The decision not to appeal was based on the usual pragmatic consideration of costs, the owner being nearly bankrupted by his costs to that point of some £100k if I recall correctly. For BW, however, the judgment was a two-edged sword, as it affirmed the right to create bankside moorings and lay-bys, which could explain their adamant refusal to publish the judgment.

 

In the present context, the very least the Act allowed was the right to build wharves, the only limiting factor as to use thereof was that boats moored to it must not obstruct the main navigable channel (as to which, see the online illustrated details given by BW/CaRT in their informative as to what is acceptable.)

 

It is true that “any passer-by' would have no claim to take over the wharf and start charging for it – but it would be for the true owner to take action over that trespass, not the navigation authority.

 

The caveat to all this, of course, is that regardless of the legal rights, CaRT will take action to prevent use of any wharf unless their palms are well greased. People have had their boats s.8'd and removed from on their own wharves before now, on any number of occasions across a wide region of the country from the K&A to the Trent. So the hotel owner/occupier of the OP, whether he has rights to the wharf or not, would have to make pragmatic decisions as to how to proceed.

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8 minutes ago, NigelMoore said:

It need not be the owner; the right extended to his lessees or “occupiers” - though, naturally, the owner's permission would have to obtain. The case in point had the owner buying the “Lord of the Manor” title to cement his claim, but that was gilding the lily and entirely unnecessary.

 

The Yardley Gobion judgment, from the little I garnered from online comment at the time, was one of those regrettable decisions that attempted to accommodate a recognised authority as best the judge could finagle in the face of the all too obvious. If, as was recognised, the wording obviously allowed the riparian owner to dig out his own land along his whole frontage to a depth of at least 70' (to create the 'lay-by' as was admitted to be possible – of which frequent examples remain), then what difference could it make to the canal company if the owner's land was dug out further? There is no limiting expression in the Act to suggest how few places “for boats to lie” the owner might be permitted.

 

The decision not to appeal was based on the usual pragmatic consideration of costs, the owner being nearly bankrupted by his costs to that point of some £100k if I recall correctly. For BW, however, the judgment was a two-edged sword, as it affirmed the right to create bankside moorings and lay-bys, which could explain their adamant refusal to publish the judgment.

 

In the present context, the very least the Act allowed was the right to build wharves, the only limiting factor as to use thereof was that boats moored to it must not obstruct the main navigable channel (as to which, see the online illustrated details given by BW/CaRT in their informative as to what is acceptable.)

 

It is true that “any passer-by' would have no claim to take over the wharf and start charging for it – but it would be for the true owner to take action over that trespass, not the navigation authority.

 

The caveat to all this, of course, is that regardless of the legal rights, CaRT will take action to prevent use of any wharf unless their palms are well greased. People have had their boats s.8'd and removed from on their own wharves before now, on any number of occasions across a wide region of the country from the K&A to the Trent. So the hotel owner/occupier of the OP, whether he has rights to the wharf or not, would have to make pragmatic decisions as to how to proceed.

But is there a fine distinction between having the right to construct a wharf and having a right for boats to moor to it for purpose other than loading or unloading? I assume that originally the canal owners were quite keen for people to construct wharves as their interest was to promote as much traffic as possible, but on the basis that they could then levy tolls at strategic points. With the demise of that form of income, it might be construed that levying long term mooring charges is a replacement income. Whether the Acts allow that is an interesting question, of course, but it might persuade a friendly judge.

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29 minutes ago, Mike Todd said:

But is there a fine distinction between having the right to construct a wharf and having a right for boats to moor to it for purpose other than loading or unloading? I assume that originally the canal owners were quite keen for people to construct wharves as their interest was to promote as much traffic as possible, but on the basis that they could then levy tolls at strategic points. With the demise of that form of income, it might be construed that levying long term mooring charges is a replacement income. Whether the Acts allow that is an interesting question, of course, but it might persuade a friendly judge.

You are quite right Mike; in that the argument could very easily persuade such a judge. However case law to date within my knowledge – where the rights to use a wharf are declared inalienable from the possession of it – relate the permissible use to the purpose. For example a wharf built for a Broads Hotel/Pub so customers could moor to it while enjoying the services of the Hotel, was deemed to be part of the premises demised. That was for pleasure craft only, not for bringing in pub supplies. Given all the preceding judgments that a wharf carries with it the right of use, then one made and/or used for mooring pleasure craft is not limited to loading & unloading goods or passengers. I know Mr Stoner QC is well aware of this, because he has always been frantic in such cases to repudiate the status of bankside mooring facilities as 'wharves'. That might seem pedantic semantics, but such are of course critical in court!

 

Explicit in most Acts also, is that along with the right to create places for boats to lie, were the rights to keep pleasure boats free of charge. These were rights distinct from the purely commercial operations permitted, so it is necessarily implied that the riparian owners had the right to keep their pleasure boats alongside their land, while not being used for holiday jaunts. Again, there were the usual demands that room should be left for boats to pass each other along the main navigable channel.

 

Nobody (apart from myself of course!) has outlined the case with more precision and accuracy than Nigel Johnson in his evidence before the Planning Inspectorate in the matter of the K&A 'Ladies Bridge' Appeal.

 

https://www.whatdotheyknow.com/request/107044/response/266530/attach/html/3/Evidence of Mr Nigel Johnson.PDF.pdf.html

 

I take issue, as might be expected, with a number of his claims as to the extent of BW statutory powers of regulation, especially where those are claimed upon the basis of ownership rather than statute, but nonetheless the essential point made is that the original canal Acts actually mandated that boats not being used in the course of navigation, including pleasure boats, should be securely moored to the offside of the canal well away from bridges and the like. See his paragraphs 23-26. In the next paragraph he starts fibbing, unfortunately, in the attempt to uphold a (non-existent) statutory requirement for a consent from the navigation authority that never existed until well into the 20thC, but that does not detract from the validity of his cardinal point, which was essentially that mooring of pleasure boats to the offside of canals when not being used for navigation, was a designed element of the canal's use, therefore needing no planning consent. The Inspector agreed.

 

As to mooring charges being a replacement for commercial charges, for all that - as you say - that might convince a hasty  judge, it should be remembered in the first place that canal companies were actually forbidden to levy charges over the commercial use of private wharves (the income from which being reserved unto the private owners), so the question of direct replacement of pleasure mooring charges for commercial mooring charges is an impossibility. The companies' income derived from tolls on goods carried, lock passages, and operation of their own commercial enterprises, as specified in each of the relevant Acts; the replacement income now comes from boat licensing and operation of their own facility provisions and (until the recent flog-off) marinas. Both the implicit and explicit prohibitions on charging for anything else remain in force under terms of the Transfer Order 2012.

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2 hours ago, NigelMoore said:

You are quite right Mike; in that the argument could very easily persuade such a judge. However case law to date within my knowledge – where the rights to use a wharf are declared inalienable from the possession of it – relate the permissible use to the purpose. For example a wharf built for a Broads Hotel/Pub so customers could moor to it while enjoying the services of the Hotel, was deemed to be part of the premises demised. That was for pleasure craft only, not for bringing in pub supplies. Given all the preceding judgments that a wharf carries with it the right of use, then one made and/or used for mooring pleasure craft is not limited to loading & unloading goods or passengers. I know Mr Stoner QC is well aware of this, because he has always been frantic in such cases to repudiate the status of bankside mooring facilities as 'wharves'. That might seem pedantic semantics, but such are of course critical in court!

 

Explicit in most Acts also, is that along with the right to create places for boats to lie, were the rights to keep pleasure boats free of charge. These were rights distinct from the purely commercial operations permitted, so it is necessarily implied that the riparian owners had the right to keep their pleasure boats alongside their land, while not being used for holiday jaunts. Again, there were the usual demands that room should be left for boats to pass each other along the main navigable channel.

 

Nobody (apart from myself of course!) has outlined the case with more precision and accuracy than Nigel Johnson in his evidence before the Planning Inspectorate in the matter of the K&A 'Ladies Bridge' Appeal.

 

https://www.whatdotheyknow.com/request/107044/response/266530/attach/html/3/Evidence of Mr Nigel Johnson.PDF.pdf.html

 

I take issue, as might be expected, with a number of his claims as to the extent of BW statutory powers of regulation, especially where those are claimed upon the basis of ownership rather than statute, but nonetheless the essential point made is that the original canal Acts actually mandated that boats not being used in the course of navigation, including pleasure boats, should be securely moored to the offside of the canal well away from bridges and the like. See his paragraphs 23-26. In the next paragraph he starts fibbing, unfortunately, in the attempt to uphold a (non-existent) statutory requirement for a consent from the navigation authority that never existed until well into the 20thC, but that does not detract from the validity of his cardinal point, which was essentially that mooring of pleasure boats to the offside of canals when not being used for navigation, was a designed element of the canal's use, therefore needing no planning consent. The Inspector agreed.

 

As to mooring charges being a replacement for commercial charges, for all that - as you say - that might convince a hasty  judge, it should be remembered in the first place that canal companies were actually forbidden to levy charges over the commercial use of private wharves (the income from which being reserved unto the private owners), so the question of direct replacement of pleasure mooring charges for commercial mooring charges is an impossibility. The companies' income derived from tolls on goods carried, lock passages, and operation of their own commercial enterprises, as specified in each of the relevant Acts; the replacement income now comes from boat licensing and operation of their own facility provisions and (until the recent flog-off) marinas. Both the implicit and explicit prohibitions on charging for anything else remain in force under terms of the Transfer Order 2012.

I was not intending to suggest that EOG charges replace income from use of the wharves but rather the loss of income from tolls balances the income from EOG which BW (CaRT) can 'reasonably' introduce in he face of a shift in the primary use of the canal. Furthermore, a requirement to do something does not imply that it comes free of charge! (We are required to have a licence but not FOC)

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On 23/11/2018 at 00:42, NigelMoore said:

Correct: most canal acts did give rights to create moorings on private offside banks, and these have never been repealed despite the aborted attempt to do so via the 1990 Bill.

 

The wording was usually couched in terms of making places for boats to lie and/or turn around in, thus opening the way for landowners to dig out as far as they wished into their own land if they wished to accommodate more boats than could moor in the canal.

 

Regardless of a few non-binding county court judgments (all argued on different grounds, some dishonest), one case may have reached the High Court, and in that one Mr Stoner QC successfully persuaded the judge - not that the Act did not grant rights to create moorings, but - that the terms did not extend so far as to grant permission to create a marina. This, the most explicit if tacit admission that the right of riparian owners to create moorings alongside the GJC continued to apply (even if not to the extent argued by the marina creator), is contained in a judgment that CaRT understandably refuse to disclose, claiming they have no records of it.

Thanks 

On 23/11/2018 at 08:54, Alan de Enfield said:

I believe that the key here is "OWNER", I would doubt that any 'passer-by' could just lay claim to a piece of canal side land and start to charge for moorings.

 

If I understand the OP then the suggestion is that the manager of a Pub, which lies close to an old wharf would like to turn it into permanent moorings to give him another income stream.

There does not appear to be any suggestion (despite asking) that he has any rights over the wharf.

The wharf is long gone, it would appear to have been filled in some time after 1938 according to maps of the area. What was the wharf now constitutes the land against which boats would be moored, as inferred in the OP.

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8 minutes ago, NigelMoore said:

Nothing to disagree with in this, but I cannot see any immediate relevance to anything in previous posts?

Now reading the source you cited: Interesting that paras 21 and 39 seem to be inconsistent or whatever: 21 says that the canal company (now CaRT) is the riparian owner on all canals taken into its ownership whilst 39 refers to a riparian owner having to get permission from BW for an EOG mooring!

 

I'm not sure what it is about 23-26 that you consider to be untrue.

 

What was the outcome of the case?

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