Evicting Liveaboards, What's the Truth?

[rotrax]

As I understand it to be granted a CRT licence you agree to abide to certain conditions. You sign a document, so no surprise should await.

If, at some later stage you are found to be in breach of what you agreed to, your licence can be revoked. A requirement is a permanent mooring. Without a permanent mooring it is possible to be a "continuous cruiser"-IE cruising pretty well non stop around our extensive canal system. Trouble is, during the BWB era there was little enforcement-or the will to enforce. Those who stated they were continuous cruisers and cheated are now having their collars felt by the CRT-and they dont like it!

Without said licence your boat cannot remain on the waterway.

The canals have ALWAYS charged for use, formerly by tolls and after nationalisation by licence. There is no right of free navigation as a general rule.

People are not being evicted per se, but their boats are having the licence revoked for non complience. Ergo, not allowed on CRT waterways.

The above may be a little simplistic, but its what is happening.

 

[Tranona]

Because the powers to demand the general canals and rivers licence are granted under legislation [dating to 1976] and the terms under which those licences can be granted or withheld are granted under legislation [dating to 1995].

Any further amendment, therefore, to create a new form of licence with different terms, would have to be granted under legislation.

In fact, and this was a large part of my point: the terms of what is colloquially known as the Continuous Cruising licence WERE set out in that latest of relevant legislation - that of 1995.

That was 17 years BEFORE CaRT was set up, and there is absolutely nothing in the Transfer of Functions Order nor in any other legislative authority that has since amended those terms.

It was inaccurate, in other words, to ascribe the CC licence to CaRT rather than BW; an example of very muddled ideas arising from ignorance. Not that anyone can be blamed for such ignorance, but presenting such a description as though it originated from knowledge is misleading.

Sorry for my apparent ignorance - but are you saying that CRT are acting illegally? If their powers derive from the 1995 Act rather than the 2012 then not sure what practical difference it makes. If you are inferring that the current licencing regime is not legal then pretty sure that either the expansive lawyers at CRT would have advised the CRT or the litigious people who get involved in this subject would have challenged it in court.

Seems to me that as neither of these has happened and the courts have consistently found in favour of CRT the only issue seems to be that I made a mistake (through ignorance) and you have corrected me.

 

[NigelMoore]

. . . the only issue seems to be that I made a mistake (through ignorance) and you have corrected me.

Exactly right – and I apologise for the unnecessary tone of my response. I was in a filthy mood at the time, attempting to file Corporation Tax online, and I should not have visited my ill-humour on anyone other than HMRC.

I would only note that the courts have not consistently found in favour of CaRT in relation to the licensing conditions, and in two cases at least, CaRT discontinued their action in order to avoid contrary findings being memorialised in judgments.

 

[NigelMoore]

As I understand it to be granted a CRT licence you agree to abide to certain conditions. You sign a document, so no surprise should await.

If, at some later stage you are found to be in breach of what you agreed to, your licence can be revoked.

This is largely why the recent uproar – and it is not just the petitioners who are up in arms about the new Terms & Conditions; NABO has come out strongly against both the tone and the approach, as well as pointing out the illegalities of some of them.


Essentially, you do NOT have to agree to anything in order to be granted a licence; all you need do is comply with the conditions set by Parliament and CaRT are obliged to give it to you. They cannot (legally) impose any further and additional conditions by way of alleged contractual agreement. Nor can they (legally) revoke your licence for failing to abide by those.


The issues involved are not solely the ‘refinements’ of what constitute CC’ing; there are attempted over-rides of statutory rights and protections, and there is the imposition of the CC ‘rules’ on any boats with a home mooring, whenever they leave their mooring.

 

[rotrax]

The issues involved are not solely the ‘refinements’ of what constitute CC’ing; there are attempted over-rides of statutory rights and protections, and there is the imposition of the CC ‘rules’ on any boats with a home mooring, whenever they leave their mooring.

I am not aware of the imposition of CC rules on licence holders away from their home mooring, unless they breach the local mooring times.

As you must be aware many sites have limited mooring times-48 hours, 7 days etc.

These apply to ALL craft, not just those without a home mooring who are CC ing.

Please link to instances where what you suggest is happening.

 

[Tranona]

Exactly right – and I apologise for the unnecessary tone of my response. I was in a filthy mood at the time, attempting to file Corporation Tax online, and I should not have visited my ill-humour on anyone other than HMRC.

I would only note that the courts have not consistently found in favour of CaRT in relation to the licensing conditions, and in two cases at least, CaRT discontinued their action in order to avoid contrary findings being memorialised in judgments.

Apology accepted.

Two out of how many? Are you now suggesting that CRT are acting illegally? Or are you saying that the current terms and conditions operated by CRT are inconsistent with the 1995 Act? If so it seems surprising that in all bar two cases the courts have upheld the CRT actions.

 

[NigelMoore]

I am not aware of the imposition of CC rules on licence holders away from their home mooring, unless they breach the local mooring times.

As you must be aware many sites have limited mooring times-48 hours, 7 days etc.

These apply to ALL craft, not just those without a home mooring who are CC ing.

Please link to instances where what you suggest is happening.

CaRT have elaborated on the meaning of “cruise” when away from your home mooring; it is not simply that the 14 day [or less if signposted] rule applies, but that the cruising pattern and range itself applies - as with the way CaRT interprets s.17(3)( c )(ii) of the 1995 Act.

NABO’s website quotes Jackie Lewis in words which were recently published and handed around at a ‘consultation’ meeting a few weeks ago: -

http://www.nabo.org.uk/index.php/re...nd-conditions-for-boaters-with-a-home-mooring

“In accordance with Condition 3.1 and 3.2 of the revised terms and conditions, if you have a home mooring, you must cruise on the waterway whilst you are away from your home mooring, stopping only for short periods (defined as 14 days or less if a local restriction applies). This requirement to cruise is the same as it's always been - it is not an amendment to the terms and conditions.

What it means to “cruise” on the waterway depends upon the period of time your boat is away from its home mooring. The longer it spends away from its home mooring, the greater the range of movement expected. As an extreme, if you never returned to your home mooring for the entire period of your licence, we would expect you to cruise continuously and therefore your pattern of movement should be the same as that of a boat without a home mooring. In contrast, however, if your boat spends the majority of the time on its home mooring and only leaves to cruise for short periods of time, then the range of movement expected for each cruise will be much more limited.

To explain further, every time you return to your home mooring (provided that this is not merely for a nominal period in an attempt to circumvent the rules), your cruise ends and “the clock” is effectively re-set. The next time you leave, you start on a new cruise, the extent of which will depend upon the time spent away from the home mooring. If you are away for just a weekend, that cruise will be quite short in terms of distance. On the other hand, if you are away from your home mooring for several months, we would expect to see a much greater range of movement.

By way of example, it would be perfectly acceptable to leave your home mooring for weekend, cruise a short distance and moor for 48 hours (at a legitimate mooring site) and then return to your home mooring, and this pattern of movement could be repeated on several weekends throughout the year. However, shuffling between two locations close together, neither of which is your home mooring, for an extended period is not permitted as that shuffling is not "cruising". “

 

[NigelMoore]

Two out of how many?

Two out of three.

Rest of the questions will have to wait a day or so.

 

[rotrax]

CaRT have elaborated on the meaning of “cruise” when away from your home mooring; it is not simply that the 14 day [or less if signposted] rule applies, but that the cruising pattern and range itself applies - as with the way CaRT interprets s.17(3)( c )(ii) of the 1995 Act.

NABO’s website quotes Jackie Lewis in words which were recently published and handed around at a ‘consultation’ meeting a few weeks ago: -

http://www.nabo.org.uk/index.php/re...nd-conditions-for-boaters-with-a-home-mooring

“In accordance with Condition 3.1 and 3.2 of the revised terms and conditions, if you have a home mooring, you must cruise on the waterway whilst you are away from your home mooring, stopping only for short periods (defined as 14 days or less if a local restriction applies). This requirement to cruise is the same as it's always been - it is not an amendment to the terms and conditions.

What it means to “cruise” on the waterway depends upon the period of time your boat is away from its home mooring. The longer it spends away from its home mooring, the greater the range of movement expected. As an extreme, if you never returned to your home mooring for the entire period of your licence, we would expect you to cruise continuously and therefore your pattern of movement should be the same as that of a boat without a home mooring. In contrast, however, if your boat spends the majority of the time on its home mooring and only leaves to cruise for short periods of time, then the range of movement expected for each cruise will be much more limited.

To explain further, every time you return to your home mooring (provided that this is not merely for a nominal period in an attempt to circumvent the rules), your cruise ends and “the clock” is effectively re-set. The next time you leave, you start on a new cruise, the extent of which will depend upon the time spent away from the home mooring. If you are away for just a weekend, that cruise will be quite short in terms of distance. On the other hand, if you are away from your home mooring for several months, we would expect to see a much greater range of movement.

By way of example, it would be perfectly acceptable to leave your home mooring for weekend, cruise a short distance and moor for 48 hours (at a legitimate mooring site) and then return to your home mooring, and this pattern of movement could be repeated on several weekends throughout the year. However, shuffling between two locations close together, neither of which is your home mooring, for an extended period is not permitted as that shuffling is not "cruising". “

Seems perfectly acceptable to me-as well as what most canal users do anyway. It looks as if they are only proposals at this stage anyway.

What fault do you find with the logic in these proposals? Compared to the late 60's up to the early 80's when I owned a narrowboat and used it all year round the waterways are really busy. It is a different time and perhaps now is the time for more relevant rules-relevant to the majority of CRT waterway users.

 

[NigelMoore]

Seems perfectly acceptable to me-as well as what most canal users do anyway. It looks as if they are only proposals at this stage anyway.

What fault do you find with the logic in these proposals? Compared to the late 60's up to the early 80's when I owned a narrowboat and used it all year round the waterways are really busy. It is a different time and perhaps now is the time for more relevant rules-relevant to the majority of CRT waterway users.

They were proposals at the stage when Jackie Lewis commented on them but are now implemented – and you will note that she claims the relevant bits were clarification only, of the existing version. Clarification was considered necessary following the discontinued case against Tony Dunkley on precisely this point.

I did not say I found any fault in the logic of the proposal. You challenged the fact that CC’ing requirements were being imposed on home moorers when away from their mooring and I provided the link you requested to the official line concerning this.

Whether new rules are required or not - which is debatable - it is for CaRT to seek Secretary of State approval for these via secondary legislation. They are not entitled to amend their primary legislation through illegal contractual impositions. It is an offence for them to do so under the Contempt of Sovereign rule, and the illegality of the contrivance is firmly established by the Court of Appeal in Attorney General v Wilts United Dairies, CA, [1921] as upheld by the House of Lords.

 

[NigelMoore]

it seems surprising that in all bar two cases the courts have upheld the CRT actions.

Actually, given that the Dunkley case is the sole action to date arising from the demand under T&C’s that home moorers comply with CC’ing rules when away from their mooring, and that the Wingfield case was more akin to Davies, then the Dunkley case is the ONLY known case brought on revocation/refusal of a boat licence for failure to abide by non-statutory T&C’s - and was discontinued. A new licence was granted -not on agreement to follow CC guidelines as initially demanded, but on receipt of confirmation that his home mooring was authorised by the ultimate landowner [always previously accepted].


So out of the two cases revolving around CC interpretation, the record is 50:50 – with the “General Guidance” having to be redrafted following criticism by the judge in Davies, even where he approved the action.

It is relevant to observe that virtually all of the published court cases to remove boats from the waterways, that resulted in Court approval, were undefended cases actioned by BW/CaRT under the Part 8 procedure; they were ‘rubber-stamping’ exercises wherein no argument over legislative interpretation arose.

These were all cases involving unlicensed boats – predominantly the fault of the owners, but in one or two cases involving revocation/refusal of a licence. CaRT had the opportunity with the Mayers case – which he had deliberately provoked in order to obtain damning comment on their “Guidance” – to seek Court approval of the “Guidance”, but in the end chose to rely solely on the incontrovertible fact of Mayers being unlicensed.

The embarrassing thing in that case was that, although the judge recognised that he had to [?] approve removal of the boat for being unlicensed, and no comment relative to Mayer’s complaint over the “Guidance” could form any part of the judgment, nonetheless chose to record pertinent ‘obiter dicta’ in very clear criticism of precisely the ‘interpretations’ that the new T&C’s rely on.


As to the section 8 cases record where challenge was initiated by boaters, CaRT have fared ill. An early challenge [in that case to powers under s.8(5)] was Taylor v BWB in 2001. In that instance the judge approved action under s.8(5), but denied BW’s right to charge for the costs of the action [as they would have been entitled to under s.8(2)]. He found in favour of the Breach of Contract element of the case and awarded compensation to be paid by BW.


The 2012 Hildyard judgment and subsequent Appeal Court findings in that, confirmed that six s.8 notices had been illegally issued in 2007 – and thereby established that an earlier County Court judgment in DeVere & Graham v BWB had been wrongly decided over the eviction under s.8 of another 6 or more boats.

 

[Tranona]

This still does not answer my question - which arises from your point (which you seem to think important) that the legislation is 1995, and not in the 2012 establishment of the CRT. Does this make any actions over licences potentially illegal? - or is it just a red herring? Or is it just action against licenced boats that are breaking the terms and conditions of their licence?

 

[NigelMoore]

This still does not answer my question - which arises from your point (which you seem to think important) that the legislation is 1995, and not in the 2012 establishment of the CRT. Does this make any actions over licences potentially illegal? - or is it just a red herring? Or is it just action against licenced boats that are breaking the terms and conditions of their licence?

As I explained previously, my initial response was on a point of historical accuracy only.

CaRT are bound by, and empowered by, all previous relevant waterways legislation back to the enabling Acts from the 15^th to 19^th Centuries. These have, however, been amended in certain respects by subsequent legislation, so one needs to be careful to research what reliance you can place on them as current law.

For clarity - the date of the Act establishing the pre-requisites for licence issue is unimportant so far as its efficacy is concerned. If you don’t meet the requirements CaRT can revoke or refuse the licence.

Those are, however, the ONLY reasons to revoke or refuse a licence. Actions against boaters breaching the T&C’s may or may not be lawful; if the action taken is revocation of the licence for breach of T&C’s rather than the 3 statutory requirements of the 1995 Act, then that action IS illegal.

If a particular T&C is a statement of statutory or byelaw control of how the boat is USED once licensed, then taking the actions specified therein is lawful; taking s.8 action following a revoked licence is not.

Adherence to the T&C’s cannot, in summary, form any pre-condition for issue of a licence, nor can that licence be subject to revocation for breach of them.

Many of the T&C’s are simple good practice guidelines, but a few are outright violations of boaters’ statutory rights, which CaRT claim you are signing away by accepting the licence. That is dishonest nonsense.

 

[NigelMoore]

For those interested in reading judicial commentary on the “Continuous Cruising” guidelines rather than CaRT’s own interpretation, or those of the even less informed commentators, the transcript of the NBTA application for Judicial Review repays reading, but even more to the point is the judgment in Mayers –

. http://www.communitylawpartnership.co.uk/attachments/article/284/mayers%20judgment%20pdf.pdf

Pages 15 to 17 are the relevant ones.

 

[MinorSwing]

For those interested in reading judicial commentary on the “Continuous Cruising” guidelines rather than CaRT’s own interpretation, or those of the even less informed commentators, the transcript of the NBTA application for Judicial Review repays reading, but even more to the point is the judgment in Mayers –

. http://www.communitylawpartnership.co.uk/attachments/article/284/mayers%20judgment%20pdf.pdf

Pages 15 to 17 are the relevant ones.

The judgment seems so obvious that it's a wonder that it had to go to Court.

 

[Chris_d]

For those interested in reading judicial commentary on the “Continuous Cruising” guidelines rather than CaRT’s own interpretation, or those of the even less informed commentators, the transcript of the NBTA application for Judicial Review repays reading, but even more to the point is the judgment in Mayers –

. http://www.communitylawpartnership.co.uk/attachments/article/284/mayers%20judgment%20pdf.pdf

Pages 15 to 17 are the relevant ones.

Unless I am reading it wrong that decision was in CRT's favour and seems logical?

 

[duncan99210]

Unless I am reading it wrong that decision was in CRT's favour and seems logical?

Yes, and the judge said that his judgement was not to be selectively quoted.......

 

[NigelMoore]

Unless I am reading it wrong that decision was in CRT's favour and seems logical?

The decision was logical and in CaRT’s favour.

The essential point is to appreciate just WHAT was in CaRT’s favour. Mayers boat was on the waterway without the relevant authority, with no reasonable justification for staying put.


That was not the reason why they had withdrawn his licence in the first place, which had been withdrawn on the basis that his movement pattern did not accord with BW/CaRT’s interpretation of the law. It was that interpretation that Mayers had sought to challenge. He had claimed that being iced in was reasonable circumstantial justification for not moving after 14 days; BW/CaRT said he had to [somehow] move anyway.


When it came to trial, that situation no longer obtained; Mayers had stayed put simply to provoke the litigation, and CaRT decided not to test the validity of their reasons for withdrawing his licence.


Under those circumstances, the judge had little leeway – he had no choice but to address the simple fact of whether Mayers was entitled to remain on the waterways without a licence. The interesting part of the judgment is that, despite the fact that nothing he could say respecting Mayers’ argument could possibly affect that decision, he nonetheless chose to comment on the respective analyses of CaRT’s Guidance for Boaters Without a Home Mooring.


While insisting that his comments on the validity of the Guidance were strictly obiter dicta, he nonetheless memorialised his critique within the judgment – and it is that critique that currently forms the most recent persuasive judicial analysis of the Guidance.

 

[NigelMoore]

Yes, and the judge said that his judgement was not to be selectively quoted.......

I believe you are thinking of the comment of the judge re: the Judicial Review hearing?

It applies to all such hearings and judgments of course. In the case of the Judicial Review hearing there was no judgment; what is available is the transcript of proceedings, wherein the judge was making 'on the fly' comments exploring his own assessments as he went along - formulating his opinions in a non-determinative way as the debate progressed. Nothing there could be held as anything more authoritative than that, for all that it is useful insight into the judicial approach.


The Mayers' judgment was a different thing altogether - though of course, quotation should never be dishonestly selective.

 

[Chris_d]

The decision was logical and in CaRT’s favour.

The essential point is to appreciate just WHAT was in CaRT’s favour. Mayers boat was on the waterway without the relevant authority, with no reasonable justification for staying put.


That was not the reason why they had withdrawn his licence in the first place, which had been withdrawn on the basis that his movement pattern did not accord with BW/CaRT’s interpretation of the law. It was that interpretation that Mayers had sought to challenge. He had claimed that being iced in was reasonable circumstantial justification for not moving after 14 days; BW/CaRT said he had to [somehow] move anyway.


When it came to trial, that situation no longer obtained; Mayers had stayed put simply to provoke the litigation, and CaRT decided not to test the validity of their reasons for withdrawing his licence.


Under those circumstances, the judge had little leeway – he had no choice but to address the simple fact of whether Mayers was entitled to remain on the waterways without a licence. The interesting part of the judgment is that, despite the fact that nothing he could say respecting Mayers’ argument could possibly affect that decision, he nonetheless chose to comment on the respective analyses of CaRT’s Guidance for Boaters Without a Home Mooring.


While insisting that his comments on the validity of the Guidance were strictly obiter dicta, he nonetheless memorialised his critique within the judgment – and it is that critique that currently forms the most recent persuasive judicial analysis of the Guidance.

I must have read it differently then, I thought the iced in bit was dismissed as CRT would have compromised on a delay if the intent was there to move, but it wasn't. The judge supported CRT's continuous cruising intepretation as far as I could see.

I'm not going to comment any further as this will just become another epic, but the key point made for me that the judge recognised, was that the Canal system was not there to be lived on.