general terms and conditions.

[HaulierP]

We will see what happens when the Tadworth case lands on their desk.

 

Jackie Lewis is the head of the CRT legal department, and backed the attempt to illegally cancel my licence for Tadworth.

Forgive me if I sound ignorant,but the quicker CRT are brought to book over Tadworth the better.

I can appreciate people on here being hesitant regarding yourself,but the wider question is surely

that we look to both Law and Terms and Conditions to both protect our interests and set parameters

of behaviour,this is not happening with CRT

[onionbargee]

Has there already been a thread on the fact that CRT are citing legislation for houseboats in their letters to boaters without a mooring who are not meeting the "cruising pattern" ?

 

 

 

If so anyone got a link ?

 

Quote

 

" if you fail to comply with one of the above options by the end of the 28 day period, the Trust will immediately serve you with formal statutory Notices pursuant to Sections 8 and 13 of the British Waterways Acts 1983 and 1971 respectively (the Notices). Under these Notices, the Trust may remove your boat after first giving you not less than 28 days notice. "

 

 

What is the current thinking on CRT claiming a pleasure boat not moving enough is a houseboat when it suits CRT ?

[NigelMoore]

ALL boats become houseboats [according to CaRT] when CaRT decides to take action against them – simultaneously with remaining pleasure boats! Hence BOTH s.8 and s.13 Notices being served.

The fact that the two categories are legislatively defined as being mutually exclusive, presents no mental barrier to the CaRT lawyers, nor have the courts ever blinked at this logical absurdity.

If you want comment on this, trawl through the Wingfield thread - especially note the transcript of CaRT’s barrister at the first hearing, arguing himself inside out when ‘explaining’ the difficulties involved in reconciling the 1971 definitions of ‘houseboat’ with the requirements of the 1995 Act. That was almost amusing.

[NigelMoore]

First comment on the subject: -

http://www.canalworld.net/forums/index.php?showtopic=78861#entry1639962

And CaRT's introductory comments to the judge: -

http://www.canalworld.net/forums/index.php?showtopic=78861&page=2#entry1640145

 

"So, in the period between about 2010 and February 2013, he had this pleasure boat certificate and that, as I say, was premised on the idea that he was continuously cruising. Now, I referred to it as a pleasure boat certificate because it was called a pleasure boat certificate because that was what was assumed. It was actually a houseboat certificate on the basis of continuous cruising."

[NigelMoore]

"MR. FOWLES: He, therefore, has to show that he was entitled to a houseboat certificate by virtue of continuous cruising; that is to say bona fide navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And I am saying that he had a houseboat certificate for a certain number of years and that was revoked on the basis of s.17 and an application was subsequently refused to renew it on the basis of s.17. The reason why I drew your Honour’s attention to the earlier definition is simply because it uses the same phrase, but otherwise, because of the potential contradiction, I am not sure it is actually particularly helpful.

JUDGE PUGSLEY: I agree with the last three words."

[Allan(nb Albert)]

I stand to be corrected by Nigel's better grasp of the law but my understanding is that houseboats are subject to CaRT's T&C's but other forms of consent are not.

[Allan(nb Albert)]

 

Probably not if the vessel has a home mooring, but if licensed as a boat without a home mooring, a Notice under sec.17 (4) ( c) (ii) would be valid. Boat doesn't move, 28 days later, licence revoked. Section 8 issued?

 

 

edited to eliminate the © !

Within minutes of Ian's post CaRT confirmed that in 2015/16 they had not issued a single notice ...

 

This despite suggesting that two thirds of boaters without a home mooring are 'non compliant'.

 

*** edited to correct date

Edited June 1, 2016 by Allan(nb Albert)

[onionbargee]

Just an idle thought. Ask CRT if you can have a houseboat certificate instead of a pleasure boat licence, they will say no, then you have written evidence that your boat is not a houseboat.

[Higgs]

CRT definition - HOUSEBOAT CERTIFICATES INFORMATION, May 2014

 

What is the definition of a Houseboat?

 

A Houseboat is defined as a boat whose predominant use is for a purpose other than navigation and which, if required for the purpose, has planning permission, for the site where it is moored. A Houseboat may be used for navigation from time to time provided it does not become its predominant use. Houseboat Certificates are generally associated with a particular Canal & River Trust long term mooring permit and carry with them a limited right of assignment of the mooring permit.

 

Note that this is not the same the definition used by HMRC for VAT purposes1

 

2. What’s the difference between a standard Pleasure Boat Licence and a Houseboat Certificate

 

These are alternative forms of licence for keeping a boat on our waterways. The terms and conditions – i.e. your obligations and ours – are essentially the same. You may opt for a houseboat certificate if the predominant use of your boat is NOT for cruising – for example, it is your home and you keep it on a long term mooring.

The main reason why you might want to consider a Houseboat Certificate instead of a standard licence is that, providing you hold a permit issued by the Trust for a long term residential mooring, you gain a limited right of assignment of the permit as and when you decide to sell your boat. The permit and Houseboat Certificate must run concurrently with the same expiry dates.

Edited June 2, 2016 by Higgs

[magnetman]

I recently read somewhere that if one wanted to put a houseboat on a crt on-line mooring they probably would not authorise it and would require a 'salvage bond' in case it was abandoned at some point. Makes sense.

 

I had considered the option of an unpowered vessel for my crt on-line residential mooring but it looks like it would be denied. I may ask anyway.

[NigelMoore]

If serious about wanting a houseboat certificate and anticipating resistance, get in touch with Simon Robbins after reading through his blog -

http://liveaboard-forum.blogspot.co.uk/p/why-ive-spent-20-years-defending-bw.html

[magnetman]

Thanks for that. It would suit my situation as we live on the mooring on one boat (a cruising barge) and have a seperate cruising boat for holidays

 

Would be nice to have the extra space of a houseboat as there are 4 of us !

Edited June 2, 2016 by magnetman

[NigelMoore]

The terms and conditions – i.e. your obligations and ours – are essentially the same.

 

Not quite correct. As Allan pointed out in #231, T&C’s are linked to the houseboat certificate in a way they are not, in respect of pleasure boats; the obligations are NOT the same. CaRT may, under the powers enacted in the 1971 Act, include any unilaterally imposed conditions within the houseboat certificate, contravention of which entitles them to serve a section 13 Notice.

 

13.(2)( a ) – “If any houseboat shall be moored, placed, kept or maintained . . . in contravention of any conditions contained in the houseboat certificate in respect of such houseboat the Board may by notice in writing . . . require the person having control of the houseboat to remove or demolish it . . .”

 

The 1995 Act does not gainsay this; it reinforces it with specific conditions to be included additionally to any unilaterally imposed conditions: “A houseboat certificate . . . shall . . . be subject to the general terms set out in Schedule 1 to this Act in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971.”

 

Hence - for houseboats only - the obligation to grant the certificate when applied for is not constrained by or limited to the pre-requisites listed in s.17.(3) - because sub-section (9) provides that any power to refuse or withdraw a relevant consent granted in this and the previous enactments - as quoted respecting houseboats - is specifically unaffected.

 

No such provisions in prior enactments relate to private pleasure boat registration or licensing. The distinction between pleasure boats and houseboats in this respect is one which neither BW nor CaRT have ever attempted to explain away.

[Higgs]

 

Not quite correct. As Allan pointed out in #231, T&C’s are linked to the houseboat certificate in a way they are not, in respect of pleasure boats; the obligations are NOT the same. CaRT may, under the powers enacted in the 1971 Act, include any unilaterally imposed conditions within the houseboat certificate, contravention of which entitles them to serve a section 13 Notice.

 

13.(2)( a ) – “If any houseboat shall be moored, placed, kept or maintained . . . in contravention of any conditions contained in the houseboat certificate in respect of such houseboat the Board may by notice in writing . . . require the person having control of the houseboat to remove or demolish it . . .”

 

The 1995 Act does not gainsay this; it reinforces it with specific conditions to be included additionally to any unilaterally imposed conditions: “A houseboat certificate . . . shall . . . be subject to the general terms set out in Schedule 1 to this Act in addition to such conditions (if any) as the Board may determine under section 14 (Registration of houseboats) of the Act of 1971.”

 

Hence - for houseboats only - the obligation to grant the certificate when applied for is not constrained by or limited to the pre-requisites listed in s.17.(3) - because sub-section (9) provides that any power to refuse or withdraw a relevant consent granted in this and the previous enactments - as quoted respecting houseboats - is specifically unaffected.

 

No such provisions in prior enactments relate to private pleasure boat registration or licensing. The distinction between pleasure boats and houseboats in this respect is one which neither BW nor CaRT have ever attempted to explain away.

 

 

And you're the chap to point out these things. Apart from - CRT definition (my words), every word is a straight lift from the CRT document.

Edited June 2, 2016 by Higgs

[NigelMoore]

. . . providing you hold a permit issued by the Trust for a long term residential mooring, you gain a limited right of assignment of the permit as and when you decide to sell your boat.

 

This also is incorrect [and yes, I know they are CaRT's words]. Under Part II of Schedule 1 of the 1995 Act - "Terms applicable to sites controlled by Board" - section 5 provides that: "The holder shall be entitled to assign the certificate to a person (being aged 18 or over) approved by the Board whose approval shall not be unreasonably withheld." The only limitation to the right is, as stated, the need to get the Board's approval of the person to whom the certificate is to be assigned - and they would have to show good cause as to why it was reasonable to refuse. It is another element of statutory rights that they have been recently trying to over-ride.

[NigelMoore]

Just an idle thought. Ask CRT if you can have a houseboat certificate instead of a pleasure boat licence, they will say no, then you have written evidence that your boat is not a houseboat.

 

It is a nice idea, but it would not work like that, because refusal of a houseboat certificate could be for reasons other than it not being a houseboat. It could well be for failure to meet any of the other conditions attendant on issue – such as lack of planning consent for the mooring site in question [recognising, of course, that their oral representations at the first Wingfield hearing - that houseboat certificates could be granted on the basis of continuous cruising – are beyond absurd].

 

The fact that they positively issue you with a pleasure boat licence/certificate ought to suffice to establish the correct category, but surprisingly, this is something judges at all levels appear to have difficulty with.

 

[onionbargee]

As the wording is "predominant use" rather than what the craft was designed for, it doesn't specify what the superstructure is, whether boat shaped, or just a pontoon. I looks like a huge loophole in the legislation, that CRT are rubbing their hands with glee about. Even better for them than the " satisfy the board" rubbish. If you moved your boat every 14 days taking one day to cruise and staying 14 days, you are using your boat for predominatly mooring.

[Wanderer Vagabond]

 

This also is incorrect [and yes, I know they are CaRT's words]. Under Part II of Schedule 1 of the 1995 Act - "Terms applicable to sites controlled by Board" - section 5 provides that: "The holder shall be entitled to assign the certificate to a person (being aged 18 or over) approved by the Board whose approval shall not be unreasonably withheld." The only limitation to the right is, as stated, the need to get the Board's approval of the person to whom the certificate is to be assigned - and they would have to show good cause as to why it was reasonable to refuse. It is another element of statutory rights that they have been recently trying to over-ride.

I have to say that I don't quite understand the contradiction between Higgs quote of,"... providing you hold a permit issued by the Trust for a long term residential mooring, you gain a limited right of assignment of the permit as and when you decide to sell your boat...." and your claim that it is incorrect? Surely the terms of the 1955 Act are that with the approval of the board you can assign the certificate to another person, so the right of assignment is in fact conditional (on the approval). The only other alternative I can see is if you could unconditionally assign the certificate, which clearly you cannot, so you do only have a limited right of assignment

Edited June 2, 2016 by Wanderer Vagabond

[NigelMoore]

I have to say that I don't quite understand the contradiction between Higgs quote of,"... providing you hold a permit issued by the Trust for a long term residential mooring, you gain a limited right of assignment of the permit as and when you decide to sell your boat...." and your claim that it is incorrect? Surely the terms of the 1955 Act are that with the approval of the board you can assign the certificate to another person, so the right of assignment is in fact conditional (on the approval). The only other alternative I can see is if you could unconditionally assign the certificate, which clearly you cannot, so you do only have a limited right of assignment

 

The right of assignment itself is not limited, only those to whom it may be assigned – and even then CaRT may not unreasonably withhold the consent to the individual. The effect of such terminology is generally to ensure that authorities do not have unrestricted unilateral rights of refusal; it grants a high degree of certainty to the holders of the rights.

 

I appreciate that it seems a very fine point; the degree to which they have been attempting to limit the right does, however, go beyond even that limitation, and at one point at least, they hoped to disregard ANY right to assign whatsoever, for newly issued permits.

 

I am admittedly not up to speed on how far that has been ameliorated under protest from those concerned, but it is those extraneous limitations that seem to be referred to in Higg's quoted portion, not the statutory one.

 

[Wanderer Vagabond]

 

The right of assignment itself is not limited, only those to whom it may be assigned – and even then CaRT may not unreasonably withhold the consent to the individual. The effect of such terminology is generally to ensure that authorities do not have unrestricted unilateral rights of refusal; it grants a high degree of certainty to the holders of the rights.

 

I appreciate that it seems a very fine point; the degree to which they have been attempting to limit the right does, however, go beyond even that limitation, and at one point at least, they hoped to disregard ANY right to assign whatsoever, for newly issued permits.

 

I am admittedly not up to speed on how far that has been ameliorated under protest from those concerned, but it is those extraneous limitations that seem to be referred to in Higg's quoted portion, not the statutory one.

 

As you say it is a very fine point since I cannot see how you are going to assign the certificate anywhere unless it is to another person (or body) which then has the potential restriction on it. It also seems to be yet another example of badly drafted Waterways law since if the intended presumption was that they holder should have rights of assignation it would be better worded to have said, "..unless, for valid reasons, opposed by the board...." rather than the current,"...with the approval of the board..." since under my suggested wording it would require active intervention by the board. They could still have the requirement for the board to be notified of the assignation, but not asking for their approval, the presumption being that the assignation would go ahead. It seems to me that a lot of this Waterways law was designed to keep lawyers in employment

[NigelMoore]

It seems to me that a lot of this Waterways law was designed to keep lawyers in employment

 

I think that is a little unfair, but I am definitely not going to argue with you over it!

[NigelMoore]

As the wording is "predominant use" rather than what the craft was designed for, it doesn't specify what the superstructure is, whether boat shaped, or just a pontoon. I looks like a huge loophole in the legislation, that CRT are rubbing their hands with glee about. Even better for them than the " satisfy the board" rubbish. If you moved your boat every 14 days taking one day to cruise and staying 14 days, you are using your boat for predominatly mooring.

 

“Predominant use” is CaRT’s amended description, not the statutory wording. It seeks to clarify the position in a more readily understood way – due in large part to the result of representations from Simon Robbins. It isn’t such a bad effort all things considered, even though I personally think it unnecessary, and is actually contradictory to the relevant statutory definitions.

 

Parliament has squabbled over this definition from time to time over the years, respecting more legislation than just the BW ones, recognising inherent absurdities but usually ending up resigning themselves to the status quo.

 

Essentially [for the purpose of the 1971 Act] a houseboat is absolutely anything that is not [inter alia] a boat “which is bona fide used for navigation”. Note [as did Mr Justice Lewis in his musings on the subject] that this is referring to the nature of the boat rather than to whether it is engaged in its designed use. The distinction within the 1995 Act is that CC’ers must be engaged in bona fide navigation throughout the period of the licence, whereas a home moorer could never take his boat out of its marina, yet will for ever remain a pleasure boat which is used for navigation.

 

So whether you navigate continuously; navigate seldom, or never do, the pleasure boat will remain a pleasure boat falling outside of the houseboat definition. Nothing stops CaRT granting a houseboat certificate to a pleasure boat so far as I can see, but the definition itself cannot be extrapolated to include it.

 

A pleasure boat is defined as almost anything that floats other than one solely used as a mooring stage or pontoon; solely used as a tug or for the carriage of goods, or – solely used as a houseboat. So a vessel may be used as a houseboat, but if that is not its sole use [i.e. it is used to navigate also betimes] it will remain a pleasure boat.

 

How that gels with the new CaRT definition I leave to you. It is perhaps unfair to criticise this particular attempt to accommodate differing boater viewpoints too closely – but it is always the unexpected use of altered definitions once accepted, in differing contexts, that contain nasty traps for the unwary.

 

[David Mack]

As you say it is a very fine point since I cannot see how you are going to assign the certificate anywhere unless it is to another person (or body) which then has the potential restriction on it. It also seems to be yet another example of badly drafted Waterways law since if the intended presumption was that they holder should have rights of assignation it would be better worded to have said, "..unless, for valid reasons, opposed by the board...." rather than the current,"...with the approval of the board..." since under my suggested wording it would require active intervention by the board. They could still have the requirement for the board to be notified of the assignation, but not asking for their approval, the presumption being that the assignation would go ahead. It seems to me that a lot of this Waterways law was designed to keep lawyers in employment

A right to do domething, subject to approval, such approval not to be unreasonably witheld is a very common legal wording, the meaning of which is well understood. In this particular circumstance CRT would have to have a good reason not to allow a houseboat certificate to be assigned. And in the event of a dispute it would ultimately fall to a court to decide whether a refusal to assign in a particular case was reasonable.

[Wanderer Vagabond]

A right to do domething, subject to approval, such approval not to be unreasonably witheld is a very common legal wording, the meaning of which is well understood. In this particular circumstance CRT would have to have a good reason not to allow a houseboat certificate to be assigned. And in the event of a dispute it would ultimately fall to a court to decide whether a refusal to assign in a particular case was reasonable.

It may be in common use but it is a gift for lawyers wishing to argue a case. To begin with they can spend hours just debating what is reasonable. With my alternative definition of, "...unless, for valid reasons, opposed by the board.." you could even create a list defining what the valid reasons are. If the valid reason did not appear in the list the matter would not even need to come near a Court but, as I posted to Nigel, the purpose of a lot of the Waterway law seems to be to keep lawyers in employment trying to find different ways to interpret the legislation. Of course both sides of a case insist that their interpretation is the 'correct' one.

[David Mack]

The concept of "reasonable" is even more well established in law. The trouble with having a specific list of criteria for not assigning a houseboat certificate is that the whole process fails or gives a nonsensical result as soon as some situation not envisaged by whoever wrote the list arises. Hence the use of the word "reasonable", to be interpreted as it would be by "the man on the Clapham omnibus".