Liveaboards being evicted in UK

[NigelMoore]

I am gaining an impression of contending with remora and host. The criticisms tend to fail in light of the decisions actually decreed in many of the cases brought over the past couple of years. Some judges have, as I suggested, ordered that boaters be given the chance of paying up the dues owed, only in default of that allowing the authority to action s.8. The threat of prison is decreed in all other cases where the boater fails to remove the boat themselves.

As published on CaRT’s website -

02/04/12 Roger Nisbet Order to pay court costs of £583 and to remove boat from the system on pain of imprisonment.

29/05/12 Tamara Edwards Consent Order disposition: Boater to pay £10,477.32 according to attached schedule, for overdue and current licence and mooring fees. In default of which s.8 procedure approved. No Order for costs.

31/05/12 Terry Smith Order that boater pay £1,341.59 at rate of £100/month, in default of which s.8 approved and boater liable to imprisonment if boat not removed.

18/06/12 Neil Harvey Order that boater pay court costs of £787, and pay licence fees due at the rate of £75/week, in default of which s.8 approved and boater liable to imprisonment if boat not removed.

21/06/12 Jerry Payne Order that boater pay court costs of £780 and to remove boat from the waterway on pain of imprisonment.

26/06/12 Tom Hudson Order that boater pay court costs of £892.50, and to remove boat from waterways on pain of imprisonment.

5,6/07/12 Michael Mitchell Consent Order disposition: boater to pay court costs to be assessed and to remove boat from waterways on pain of imprisonment.

13/08/12 Stuart Clarke Order that boater pay court costs of £995 and to remove boat from waterways on pain of imprisonment.

17/09/12 Shane Pike Consent Order disposition: Boaters to pay agreed sum of £1,000 and to remove boat from the waterways on pain of imprisonment.

02/10/12 George Ward Order that authority entitled to costs, s.8 procedure approved.

08/10/12 Anthony Berry Order that boater pay court costs of £1147, and installment plan of £174.58/month for current and licence fee arrears, in default of which s.8 approved.

19/10/12 Benjamin Webster Order that boater pay court costs of £1375 and to remove boat from the waterways on pain of imprisonment.

28/01/13 Jennifer Burden Order that boater pay court costs of £577 and to remove boat from the waterways on pain of imprisonment.

05/02/13 Glyn Whitehurst Order that boater pay court costs of £687.50 and to remove boat fron the waterways on pain of imprisonment.

20/03/13 William Fletcher Order that boater pay court costs of £995 and to remove boat from waterways on pain of imprisonment.

05/08/13 Andrew McLiveen Order that boater pay court costs of £687.50 and to remove boat from the waterways on pain of imprisonment.

05/08/13 Amsel Butler Order that boater pay court costs of £391 and to remove boat from the waterways on pain of imprisonment.

10/10/13 Lesley Horne Order that boater pay court costs of £20,000 and to remove boat from the waterways on pain of imprisonment; in default of which s.8 approved.

17/10/13 Mark Ambler Order that boater pay court costs of £790 and to remove boat from waterways on pain of imprisonment.

27/11/13 Nigel Moore Order that CaRT pay 75% of boater’s costs at Appeal and court below, s.8 action declared illegal.

11/12/13 Pamela Purfield Order that boater pay court costs of £933 and to remove boat from the waterways on pain of imprisonment.

10/02/14 Geoffrey Mayers Order that boater remove boat from the waterways on pain of imprisonment; no Order as to costs.

13/02/14 Jennings & Clark Order that boaters pay court costs of £1,039 and to remove boat from the waterways on pain of imprisonment.

CaRT actually provide insufficient information to determine how many of these cases involve revocation/refusal of licences for perceived failure to abide by CaRT’s interpretation of the law. Ward was a thoroughly peculiar case that was pursued only by reason of late payment and quibble over a late-payment fee that had allegedly been tendered nonetheless, post commencement of proceedings. That makes Mayers the only case I know from the above list that proceeded because the licence had been revoked.

 

[Bru]

I'm increasingly unclear on exactly what point you are trying to make Nigel

That lengthy list, which I have neither the time nor the inclination to look into in detail, appears to contain all of two judgements in favour of the defendant (one of which is, I assume, the latest episode in your own unique saga) and a handful where a section 8 order is subject to conditions (the defendant making payment as ordered)

The significant majority of the cases appear to result in an order for costs in favour of C&RT and an order to remove the vessel on pain of imprisonment

That, in fact, appears to be the process you were demanding C&RT follow in an earlier post?

 

[dgadee]

Erbas wants to keep the law here "simple". The point others have been making seems to me to be that the legal issues are wider and not just lawyer's points.

Unfortunately, you can't pick and choose which parts of law you like and ignore the bits you don't like.

 

[Bru]

Erbas wants to keep the law here "simple". The point others have been making seems to me to be that the legal issues are wider and not just lawyer's points.

Unfortunately, you can't pick and choose which parts of law you like and ignore the bits you don't like.

The law is the law. I dont want to keep it "simple", I just want it upheld (in all walks of life, I thoroughly dislike people who flout the law and don't abide by the rules of society but that's another matter)

In this specific case the law itself is, in fact, quite simple. In the case of continuous cruising licences rather too simple since it is open to interpretation. C&RT have one interpretation (as set out in their guidance notes), a small but vociferous group of people who fall foul of that interpretation do protest loudly. Unless somebody can produce evidence to the contrary my understanding to date is that the C&RT interpretation has been upheld by the courts

My point in response to Nigel's post was that I could not, and still cannot, see the benefit to C&RT or to society of criminalising "illegal" liveaboards when there is a simple mechanism available to deal with the problem (e.g. Section 8) which does not result in a criminal record or court judgement against the defendant (in fact, as I've previously pointed out, C&RT do not even have to go to court to issue a Section 8 notice although they elect to do so)

Since the outcome of most of the cases listed by Nigel is an order requiring the removal of the vessel from C&RT waterways anyway, why mess about?

At the bottom of all the legal arguments and maneouverings, it does come down to a simple question of whether you uphold the byelaws or not. BW went with the lazy route of failing to enforce the rules leaving C&RT with a right mess to sort out.

 

[dgadee]

You keep on setting the complexities aside as though only bye laws matter. You are simply wrong there.

 

[Bru]

You keep on setting the complexities aside as though only bye laws matter. You are simply wrong there.

Nope, you keep on wanting to abrogate the rules by introducing irrelevant complexities, You are simply wrong there!

In effect, what you want to do is leave the rule breakers with the spoils of their illegal activities to the detriment of the legitimate users who have been complaining about the lack of enforcement of the byelaws for decades (I can personally attest to that from as far back as the early 1990's). I cannot and will not condone that

There is a very good argument for making some arrangements to make a limited number of legitimate residential moorings available for the use of long term liveaboards who are now being caught in the enforcement net. However there are a raft of problems with that (and the time of everybody involved in this argument would be better spent trying to address these problems, in so far as they can be addressed).

The first issue is that C&RT cannot, within the powers available to them, simply create residental moorings out of thin air. A residential mooring requires planning permission and the planning authorities have been loathe to grant that permission (usually permitting one, or at the most two, residential berths in any mooring development for security purposes)

The second issue is that in many cases (although not all) the illegal liveaboards are not willing to move

The third issue is that legitimate residential moorings have a very high market value. C&RT does not have a remit to provide "social housing" moorings (arguably, perhaps, it should have but it doesn't) and the trustess are legally obliged to maximise the value of the trusts assets (this also rears its ugly head in an ongoing issue over the auctioning of moorings)

The fourth issue, coupled to the third, is that in many cases the "illegal" liveaboards cannot actually afford to pay for a mooring.

You see, this really isn't a simple issue at all. Having been involved at the highest level in the politics of it (albeit somewhat over a decade ago) I'm well aware of that. I suggest you're not seeing the bigger picture as well as you perhaps think you are!

 

[NigelMoore]

The ‘bare-bones’ details of the concluded court cases I posted up, comprise the raw information disclosed by CaRT, of court actions taken to evict liveaboard boaters [as has been said, s.8 does not require a court case to effect, these are undertaken to insulate the authority from potential fall-out over the HRA, and hundreds of boats have been seized and removed without any court being involved]. I am putting relevant information ‘out there’ for the benefit of those who like to learn for themselves and make up their own minds based on facts.

It is simply untrue to say “Your argument is based on the assumption that the issue is one of licence fees not being paid” as opposed to “the issue is one of licence conditions not being met”. It isn't one or the other. I referred to “court action for recovery of debt &/or byelaw breach” – byelaw breaches being the only enforceable conditions attaching to a licence, other than the 3 laid down in the 1995 Act. The issue of how far the Licence Terms & Conditions can be used to justify revoking a licence is a separate subject I won’t enter into here. Obviously though, the s.17 conditions apply universally to all 'relevant consents'.

Of course court action to recover debt applies only to those who have not paid for their licence – which is the scenario most people calling for s.8 actions appear to believe is the most common. And as I had said previously, the published list of concluded s.8 cases demonstrates that even [some] judges dealing with s.8 applications have been able to see that recovery of the debt instead of eviction from the waterways was the more appropriate course of action, where that was evidently the reason for the application.

In those cases it would have been far better for the authority to have taken the simple step of seeking that recovery timeously, instead of seeking eviction, and doing so only after allowing the debt to mount up to many thousands of pounds.

For the majority of cases in that list, it is simply not possible to determine the reason for the actions, because the judgments are not published. That means that we can only take the authority’s word for it that most such actions are taken against licence-evaders. As I said in the last post, on the available evidence nearly all of the cases listed would, therefore, have been actions for non-payment, with some exceptions.

That makes the less onerous actions available the most applicable. Apart from the few instances where judges have decreed a payment plan instead of simply rubber-stamping the evictions, the end result of the s.8 process involves absolutely no recovery of monies owed – which is ridiculous and un-businesslike apart from anything else.


The point I take from that list regarding the sanction of imprisonment is that this is a threat contained within every one of the s.8 approval Orders anyway – there is nothing of itself remarkable therefore, in suggesting that this would apply to the less onerous actions for byelaw breach instead of for eviction. I also disagree that a prison term [should that be pushed for] is more draconian than seizure of one’s home. If the intent is to focus the mind on compliance with the “rules” - for the offenders and the onlookers - then the prison term is very effective, and still leaves the person with their home to return to.

Further, in the principal example of the petition, it could be considered that providing a warm, protected cell for the winter [if that was the extent to which the authority wished to press the issue] would have been far kinder than leaving the woman on the towpath mid-winter with nothing but what she stood up in.

At the end of the day, however, the sanction of imprisonment would only apply to deliberate disobedience of the Court Order – exactly as it already does with s.8 actions. Before that happened, there would have been a simple CCJ, recoverable under an enforcement Order, by bailiffs.

There are a few cases in that list where we know from outside information that they have resulted from revocation of licence for failure to abide by “the rules”.

Those scenarios enter more complex grounds. There are contested and uncontested instances. I will deal with this in more detail later, but for now it suffices to say that if there is a clear breach of a byelaw or s.17 condition, then the appropriate penalty is the one laid down by Parliament for that breach, and no more draconian action should be taken unless and until that recourse has been tried and found wanting. There is nothing in such a statement involving lawyer-speak and loopholes; it is simply saying that the authority should exercise its management powers in preference to its purely penal powers.

Those situations that involve disputed interpretations of the “rules” are in some ways even more inappropriately dealt with by the s.8 process, although it was the avowed intention of BW to embark on a series of such actions, purely in order to accrue a portfolio of CCJ’s affirming their developing interpretations of enforceable boater conduct.

The Dunkley case was the latest of those, designed to establish: first, that boaters with home moorings have to comply with the ‘Continuous Cruiser’ guidelines when away from their mooring, and second, that licences can be refused if otherwise legitimate home moorings have not been used within the previous licence period. People's homes and property should not be used as the stakes in a gamble that litigation will result in approval of new rules hitherto undreamt of.

My advice to anyone told to keep on the move or to widen their area of travel would be in the first instance to comply, but if you really feel that strongly, that your interpretation of the rules should be fought for, then do not wait for CaRT to take you to court - apply for Judicial Review of their decision to revoke/refuse the licence. Alternatively, if they pre-empted you in that, having filed their own s.8 claim first, then lodge a counterclaim.

Unless you do, your arguments as to interpretation will NOT be aired, because once that licence is removed you are undeniably on the waterway without lawful authority and s.8 WILL be rubber-stamped, without any need for the court to look behind the reasons for your having no licence. This was the problem for Geoff Mayers.

The other thing to remember is that you need to be both very sure of the worth of the fight, and absolutely confident – not only that you are right, but – that you are capable of persuading a court that you are right. Forget notions of ‘justice will prevail’ etc, the courts will always start from the presumption that the promoters of legislation are best placed to construe the meaning of that legislation, for all the lip-service given to Stourbridge v Wheeley et al. For logistical reasons alone, the County Courts are not really the place to start either, for the reasons given in the quote from Lord Hope. They are too busy to give such more complex issues the needed time.

People should realise that I am not gainsaying anything said regarding the need to enforce legitimate rules, nor regarding the need for boaters to comply with those, I am pointing out that sauce for the goose is sauce for the gander; the authority must play by the rules also, and bypassing the legal avenues created specifically for the relevant breach of the law is wrong. Section 8 if you must, but it is illegitimate to do so without having tried the appointed route first.


Take an historical view – chronologically, the specified penalties for breach of the relevant licensing byelaws, and for breach of the statutory provisions for river waterway registration, were in place years before the 1983 Act was passed with its added class of vessels for the purpose of s.8.

 

[Bru]

I'm outta this thread folks. That doesn't mean I agree with the latest posts but I have neither the time nor the inclination to get involved in a detailed, protracted and ultimately futile discussion

And anyway, I'm going sailing for a week tomorrow which is much more fun!

 

[rotrax]

I'm outta this thread folks. That doesn't mean I agree with the latest posts but I have neither the time nor the inclination to get involved in a detailed, protracted and ultimately futile discussion

And anyway, I'm going sailing for a week tomorrow which is much more fun!

Have a great time.

First mate and I are picking up a 65 foot narrowboat on the 24th out of Worcester.

I hope its got a licence..........................

 

[Croak]

Snip Quote "only after allowing the debt to mount up to many thousands of pounds."

If someone doesn't pay you, you are a fault for allowing them to get into dept?

 

[NigelMoore]

Snip Quote "only after allowing the debt to mount up to many thousands of pounds."

If someone doesn't pay you, you are a fault for allowing them to get into dept?

Of course – if you have allowed that situation to continue for years without taking prompt action. If someone fails to pay you rent for example, you are foolish to allow them to carry on living in your property. You are not at fault for the initial debt, but it is your irresponsibility if you allow the situation to continue.

In one of the cases listed, for example, the boater had been allowed to rack up a couple of years worth of arrears in licence and mooring fees, amounting to around £16,500. That is very bad management.

 

[Croak]

Of course – if you have allowed that situation to continue for years without taking prompt action. If someone fails to pay you rent for example, you are foolish to allow them to carry on living in your property. You are not at fault for the initial debt, but it is your irresponsibility if you allow the situation to continue.

In one of the cases listed, for example, the boater had been allowed to rack up a couple of years worth of arrears in licence and mooring fees, amounting to around £16,500. That is very bad management.

Now I have a problem taking any of the rest of the things you say seriously.

 

[NigelMoore]

So: I say if someone defaults on payment you should take prompt action to recover the debt before it grows, it is bad management not to do so; you can’t take that seriously – which suggests that your idea of good management is to let debts ride for a couple of years before doing anything about it.


You might of course have a point, if it is possible to have a statutory rate of interest applied to the accruing sum, whereupon the eventual success of the court action would have ensured a better rate of interest than if you had had the money in the bank. However I see no evidence in the Court Order I referred to that that was the case.

 

[Croak]

So: Do you think that The canal system should be a free for all with anybody staying where they want for as long as they want, Without having to pay for any maintenance because the controlling body is a little incompetent and hasn't got the money to employ the best managers or the best lawyers. A little bit of anarchy in "England"?

 

[NigelMoore]

I post up pages of material observing that there are regulations controlling use of the canals, with powers granted to ensure compliance with those, carrying specified sanctions which I have stated ought to be implemented – and it is suggested I want a free-for-all? That is pigeonholing at its most simplistic.


The problem highlighted by this topic’s heading is that the authority is NOT implementing proper management control, with prompt action and consistent enforcement of the existing legislation. They first try persuading people to go along with them [but not invariably] then give up – because that is what s.8’ing boats amounts to, if it is not to be regarded purely as a scare tactic for others.


That is not to say that s.8 does not have its place – but that place is at the end of the road, the specified sanctions having been attempted first.


The controlling body pays far more for its managing executive than most such bodies [the previous CEO had a salary greater than the Prime Minister’s and the current CEO not much less], while they employ the top QC in this field [along with entire firms of specialists] on a more or less permanent retainer. The current enforcement budget is £2.7 million per annum.

 

[rotrax]

After long reflection I am coming to the conclusion that REAL canal users and boat owners-the ones who love the rural beauty and urban infrastructure of these historic waterways -are the ones who obey the rules and pay their fees.

The ones who end up in court-for whatever reason-are the ones outside of this simple and easy to adhere to situation.

If it is a lifestyle choice to be a liveaboard on our inland waterways, do as required in any other lifestyle choice and pay what is neccessary to achieve it, and abide by the regulations and bylaws on the way.

If you are outside this, expect action from the authority with responsibility for enforcement.

Simples........................

 

[Croak]

I post up pages of material observing that there are regulations controlling use of the canals, with powers granted to ensure compliance with those, carrying specified sanctions which I have stated ought to be implemented – and it is suggested I want a free-for-all? That is pigeonholing at its most simplistic.

It is a shame those sanctions have to be carried out. Similar to people who do not pay Road tax or those that set up camp in laybys. I am on the side of the authorities.

The problem highlighted by this topic’s heading is that the authority is NOT implementing proper management control, with prompt action and consistent enforcement of the existing legislation. They first try persuading people to go along with them [but not invariably] then give up – because that is what s.8’ing boats amounts to, if it is not to be regarded purely as a scare tactic for others.

"Scare tactics" are fine by me, hopefully it will scare some of the other non compilers into complying and then some more of CRTs money can be used for the maintenance of the canals. If you don't do X, Y is going to happen and we are not joking, it is what happens in a civilized society.

That is not to say that s.8 does not have its place – but that place is at the end of the road, the specified sanctions having been attempted first.


The controlling body pays far more for its managing executive than most such bodies [the previous CEO had a salary greater than the Prime Minister’s and the current CEO not much less], while they employ the top QC in this field [along with entire firms of specialists] on a more or less permanent retainer. The current enforcement budget is £2.7 million per annum.

£2.7 million what a shame, I suppose this is CRTs fault and not that of the non licence payers and the Stationary Continuous Cruisers.

 

[NigelMoore]

There is little to disagree with in that statement. What it does overlook is the fact that, while most people ending up in the enforcement regime will be ‘legitimate targets’, not all are. This thread is not, so far as I can see, upset over appropriate enforcement but over inappropriate enforcement.


It is simply contrary to fact to suggest that those who end up in court never include those who pay their fees and obey the rules. The vast majority will not, of course, but cases exist where law-abiding boaters DO end up in court and get thrown off the waterways. That has happened betimes, for example, not for legitimate purposes of proper management, but in the pursuit of development partnerships and deals offering greater income than licence-paying boaters.


Over a dozen boats were thrown off the Grand Union Canal some years ago - their applications for boat licences refused - to make way for the adjacent housing developer to build pontoons for expensive residential moorings under a lease of the riverbed from BW. It is only now recognised by the courts that BW had had no right to demand boat licences in that situation anyway – but the Patrol Officer Reports from a few years previous reveal that BW themselves knew this all along.


Other instances occur when the authority wants a test case to approve an interpretive extension of existing legislation. In such cases, boaters who have paid their dues and lived by interpretations of the rules that had previously been approved by the authority, have found themselves in court proceedings nonetheless. The much publicised case of Paul Davies was a case in point, his actual movement being approved previously, and would even be approved currently under recent guidance. He only fell foul of an interpretation of the rules that depended on the purpose of his movement, not the extent of it. The question that cries out to be asked in that case is – what difference does it make to management of the waterways whether somebody obeys the rules only to keep within the rules, as distinct from obeying the rules incidentally to pursuing other purposes? Guidance as to interpretation was subsequently amended in light of the judge’s disapproval of some aspects.


The Tony Dunkley case was another one intended to test emerging new interpretive strictures, where a boater had paid his dues for decades, and cruised according to existing guidelines regarding boats with home moorings. There might be some ground for hope that the withdrawal of that case indicates a developing realisation that, as with the Davies case, such tactics have the potential to backfire.


So it is important not to class everyone as automatically in the wrong just because they get caught up in court proceedings, nor to class objectors to injustice as people against all enforcement.

 

[Croak]

There is little to disagree with in that statement. What it does overlook is the fact that, while most people ending up in the enforcement regime will be ‘legitimate targets’, not all are. This thread is not, so far as I can see, upset over appropriate enforcement but over inappropriate enforcement.


It is simply contrary to fact to suggest that those who end up in court never include those who pay their fees and obey the rules. The vast majority will not, of course, but cases exist where law-abiding boaters DO end up in court and get thrown off the waterways. That has happened betimes, for example, not for legitimate purposes of proper management, but in the pursuit of development partnerships and deals offering greater income than licence-paying boaters.


Over a dozen boats were thrown off the Grand Union Canal some years ago - their applications for boat licences refused - to make way for the adjacent housing developer to build pontoons for expensive residential moorings under a lease of the riverbed from BW. It is only now recognised by the courts that BW had had no right to demand boat licences in that situation anyway – but the Patrol Officer Reports from a few years previous reveal that BW themselves knew this all along.

But that is BW not CRT. Were their homes remove from the canal or were they asked to go somewhere else?

Other instances occur when the authority wants a test case to approve an interpretive extension of existing legislation. In such cases, boaters who have paid their dues and lived by interpretations of the rules that had previously been approved by the authority, have found themselves in court proceedings nonetheless. The much publicised case of Paul Davies was a case in point, his actual movement being approved previously, and would even be approved currently under recent guidance. He only fell foul of an interpretation of the rules that depended on the purpose of his movement, not the extent of it. The question that cries out to be asked in that case is – what difference does it make to management of the waterways whether somebody obeys the rules only to keep within the rules, as distinct from obeying the rules incidentally to pursuing other purposes? Guidance as to interpretation was subsequently amended in light of the judge’s disapproval of some aspects.

I thought this was still someone who should have had a residential mooring.

The Tony Dunkley case was another one intended to test emerging new interpretive strictures, where a boater had paid his dues for decades, and cruised according to existing guidelines regarding boats with home moorings. There might be some ground for hope that the withdrawal of that case indicates a developing realisation that, as with the Davies case, such tactics have the potential to backfire.


So it is important not to class everyone as automatically in the wrong just because they get caught up in court proceedings, nor to class objectors to injustice as people against all enforcement.

Phantom Moorings are people still trying to break the spirit of the rules, in my opinion.

 

[Tranona]

So it is important not to class everyone as automatically in the wrong just because they get caught up in court proceedings, nor to class objectors to injustice as people against all enforcement.

It is inevitable that disputes will arise between users and CRT (or any other authority) where there are different interests and the law is open to interpretation. That is why there are courts to rule in disputes based on a consistent interpretation of the law. It is clear that CRT "wins" most cases - that is the courts uphold their interpretation. When this does not happen it sets a precedent and interpretation changes in future cases when the facts are the same. However, by their nature few disputes are identical in fact - they arise because they do not seem to "fit".

In most of the cases cited here there is not a dispute that is "new" - that is, it is very clear that the person is in the wrong, but chooses to ignore that fact (for whatever reason) or believes that the law is wrong and should not apply to them. The authority therefore has no option but to use the powers available to them, and as the record shows the court supports them in most cases. Where the court does not support the action one hopes that the authority behaves differently in future events where the facts are the same.