Liveaboards being evicted in UK

[rotrax]

T.E. Jordan, Victorian Childhood, themes and variations, 1996, estimates some 30 to 50,000 children were living on English canals in the late 19th century.

Gym, golf, bowls clubs all pay for their own facilities. I hope leisure users of the canal system are happy to bear the entire cost of their 'club'.

His estimate is no more than that. As the min and max are so far apart it is clear he had no real idea and was just guessing.

The funding of canals is a complicated and structured business. Not only do the allow the current boat users somewhere to use their craft, but they are important sources of water for industry, agriculture and domestic supply. AFAIK there is no club-just an annual licence that comes with responsibilities should you be granted one.

This role could become even more important in the future if climate change affects the rainfall.

None of this gets away from the fact that SOME rule breakers have been moved on from the mooring spots they hogged at the expense of others.

IMHO they engineered their own fate by not complying with the licence conditions.

 

[Bru]

T.E. Jordan, Victorian Childhood, themes and variations, 1996, estimates some 30 to 50,000 children were living on English canals in the late 19th century.'.

A couple of critical points there dgadee

1. Late 19th century. See what I wrote! That is during the period where competition from the railways had forced families out of their homes and onto the boats. The canals had been around for more than two centuries by then. Families living aboard was a largely short lived phenomenon lasting from the mid to the late 1800s (a period of no more than 30 to 40 years). A relatively small cadre of boating families stuck it out into the 20th century, most moved back ashore as soon as they possibly could

2. That figure of 30 to 50000 children living aboard canal boats is highly suspect and disputed by many canal historians. It would correlate to at least 6,000 or even 8,000 or 10,000 families living aboard boats on the canals and there simply weren't that many boats in service with accomodation. Even the single largest carrying company had fewer than 400 boats in service at its peak (and mostly running as pairs with one family on two boats). It's hard to estimate accurately but at their peak there cannot have been more than 3 or 4,000 working boats on the canals. Perhaps half of the total needed to accomodate T.E. Jordan's 50,000 children! I don't know where the author got his figures from but they appear to be a wild, and many suspect wildly inaccurate, guess*

The families that did live aboard were less than enthusiastic about admitting to it (it led to difficulties with regard to childrens education, public health act regulations limiting the number, ages and sex of people living aboard the boats etc.) meaning that they endeavoured to avoid the census and public health inspections if at all possible and if they couldn't (and this has been related to me by first hand anecdote) they'd shuffle kids around boats, send them to aunties cottage for the night and so on to keep the numbers legal.

3. The families living aboard boats, and there were plenty of them (probably a few hundred though rather than a few thouand), did NOT park in one place and stay there. They were constantly on the move, that after all being the point and purpose of the excercise. There is no way that you can use the existence in the past of live aboard working boat families as a justification for squatting on the towpath in the 21st century

* There are two sources of relevant official records.

The census (1851, 61, 71, 81, 91, 1901 and 1911, the 1841 census is of little use) and Local Authority public health records. The census information is patchy, as related above the canal boatmen would avoid the census takers if they could and even if they were collared by the enumerator on census night, and enumerators were proactively sent to laying up places and wharves, they didn't necessarily tell the truth

By the late 19th century every canal boat with accomodation had to be registered with a Local Authority who would inspect the boat and determine the maximum number of people, and of what age and sex, the boat could accomodate. The "Registered at xxxxxx No.123456" painted along the top band of the cabin side on working narrowboats relates to this registration. However, these records do not record the number of people actually living on board each boat, only the maximum that the boat can accomodate.

And then there is another little pertinent fact that you are overlooking ...

The families that did live aboard the working boats had no right to do so. With few exceptions, they did not own the boats and could be moved from one boat to another at the drop of a hat. There were very few places where it was acceptable practice to tie up (known as laying up places) and if you weren't working you'd be kicked off the boats pdq. In the horse boating days it wasn't a desperately bad life (it compared quite favourably with being down the pit, for example!) because the needs of the horse limited the working day. With the arrival of the motor boat the job got a whole lot harder with long days, no shelter from the weather and most loads having to be man handled (and trust me, by the time you've assisted in shovelling 22 tons of coal out of the hold of a narrowboat you realise what bloody hard work they were putting up with day in, day out)

And anyway, as interesting as the history is, not of it is the least bit relevant. With just one single exception that I know of, the boat people had all moved off the boats by the end of the 1960s (most of them had quit in the post war years). And they would have had no time whatsoever for people lurking on the towpath getting in their way, speed was everything because you were paid by the load.

 

[Bru]

Gym, golf, bowls clubs all pay for their own facilities. I hope leisure users of the canal system are happy to bear the entire cost of their 'club'.

and now to deal with the second part

This merely demonstrates your ignorance with regard to the inland waterways

Boaters are only one section of the user demographic (and not the largest either). Anglers, walkers, cyclists (a bone of contention but thats another story) etc make up the majority of the users.

The canals perform a vital drainage function in many areas and of course they are a valuable wildlife resource

The taxpayer funding of the canal system, inadequate though it is, is and long has been generally equable with what the state would have to spend to deal with the residual results of shutting down the canals anyway (whether by accident or design, and having been involved in waterways politics at the highest level for some years I would hesitate to say its accidental). It is though unfortunate for C&RT that the treasury raided BWs extensive and valuable property portfolio

Leisure boaters currently provide a significant slice of the funding cake for C&RT (although C&RT would have you believe otherwise because they want to squeeze a LOT more money out of the boating community which they see as a cash cow that is far from being bled dry), more than any other user group (only anglers contribute significantly financially and they're getting squeezed now as well)

The people you are seeking to defend do not, by and large, contribute financially to the inland waterways. As I've already pointed out, the campaigners will cherry pick the handful of cases where the boats actually had a current licence and paid for a (non-residential) mooring however the majority of cases actually involve boats with no licence, which do not pay for a mooring and which occupy facilities provided for boaters who DO pay their way

 

[dgadee]

Very sensible report here:

http://www.london.gov.uk/sites/default/files/Moorings report agreement draft FINAL.pdf

No mention of golf, bowls, clubs etc..

 

[Bru]

Very sensible report here:

http://www.london.gov.uk/sites/default/files/Moorings%20report%20agreement%20draft%20FINAL.pdf

No mention of golf, bowls, clubs etc..

You were the one that mentioned golf, bowls and clubs so I fail to see the point of that remark

Yes, it's not a bad report but it repeatedly overlooks one critical issue. C&RT does not have a remit under its terms of reference to follow up on the suggestions made in the report

For example, the trustees of C&RT would find themselves in a great deal of bother if they failed to fully exploit the market potential of legitimate residential moorings in the London area

The report also blithely overlooks the sad fact that the cost of investment in facilities for boaters is not quickly recovered by an increase in income from boaters (if indeed it is ever recovered) and C&RT simply does not have the funds to carry out the sort of investment programme in facilities the report advocates

In places the report is rather naive and in one respect it is certainly disengenuous because it is notably lacking in any suggestions that the London Assembly should be taking more active role, especially financially! Indeed, the recommendations that would require money to be spent to implement are invariably aimed at C&RT which doesn't have any money to spare

 

[Capt Popeye]

It's quite a while since last I looked at this thread, but NigelMoore's post resonates with reason.

Certainly, people - families - have lived on the 'cuts' since they were originally hand-dug. In other parts of Europe, many families still live-aboard their barges, albeit rather larger ones than we are used to seeing on the Kennet and Avon! Some of the arguments advanced earlier in the thread carry the stench of 'nimbyism', which wafts out from the meetings of local parish councils.... The Civil Parish I live in does not even have a stretch of canal running through its curtilege, but there is one not far away. One of the more vociferous PCs has taken to doing her Lycra Joggling along there, and is much offended to find liveaboards complete with wood stoves, children and old bicycles along the way. Those who make the most protest around here are concerned only for the 'gentrification' of the district and the growth in apparent value of their properties. NOT ONE of them contributes a penny-piece to the income of the C&RT.

This thread drew attention to the proper and legally-protected rights of British people, citizens, parents, who happen to live in/on their own properties, which are located in/on British waterways..... and to some abuses of power by a public quango which wrongfully deprived some of those vulnerable citizens of their privately-owned homes, their boats, while preventing would-be witnesses including local journalists and councillors from being present. That is fascism.

It is illuminating to note how some people are far more enthusiastic about enforcement of rules and rather less so about protection of vulnerable individuals. I'm with NigelMoore in calling for a management approach to perceived problems. People are always embroiled in problems, and the Human Rights Act is intended to address some of the worst abuses. IMHO the law should be used to protect vulnerable people before it is used to 'gentrify' a publicly-owned amenity.

Ah well, obo says it right again, his tired ole eyes see through the mist and smoke screens see it as it is, or should be :encouragement:

Would suggest that, the canals were never built for anglers, but the angling pressure groups have exerted so much influence over inland waterways that the idea of waterways as a navigation for boats has been surpassed by anglers (no not fishermen, as they are a professional working group, anglers are not)

 

[rotrax]

Ah well, obo says it right again, his tired ole eyes see through the mist and smoke screens see it as it is, or should be :encouragement:

Would suggest that, the canals were never built for anglers, but the angling pressure groups have exerted so much influence over inland waterways that the idea of waterways as a navigation for boats has been surpassed by anglers (no not fishermen, as they are a professional working group, anglers are not)

But your reply is simplistic.

The canals were built for carriage of goods. This no longer takes place in any meaningfull way.

Leisure use has taken over big time. the water and margins are wildlife havens-often in urban situations-the towpaths are used for walking and cycling while the bit with water in floats leisure boats.

Erbas-who has much more admin. based insight than me due to his involvement in inland waterways groups, has told us all what way is up.

I know from personal experience of over 40 years canal use how things have changed, and on reflection I can confirm that Erbas has got it right.

Of course, it is never good to deprive someone of their home.

But the ones who cheat the system and abuse it, put two fingers up to authority and contribute nothing but grief to the majority of users need to be addressed.

In many cases they are intelligent dropouts who know all the angles and know how to use the system to get what they percieve is their right, or to drag out proceeding untill the last possible moment before complying or Foxtrot Oscaring to another location where the dance-and an expensive one-starts again.

I have no problem with liveaboards on our canal system.

I have a serious problem-practical when I am narrowboating-when there are no mooring places near the towns, villages and pubs that have short term moorings for ALL canal users. When liveaboads usurp these and stay for months they are out of order.

When liveaboads moor permanently alongside the towpath and create hippy colonies with out of control dogs, piles of rubbish and junk it changes the whole apperance of a stretch of water. From rural idyll to urban horror.

I have experienced this many times.

Old Bilbo's comments may have some truth in his area. I doubt the canalside residents in Milton Keynes feel the same.

Why should a non canal user contribute directly? We all contribute indirectly through the Central Government grants paid to CRT.

I think his comments about fascism are OTT. The CRT would no doubt handle a similar situation in a different manner if required-they will have gained from the unfortunate experience.

 

[Bru]

Would suggest that, the canals were never built for anglers, but the angling pressure groups have exerted so much influence over inland waterways that the idea of waterways as a navigation for boats has been surpassed by anglers (no not fishermen, as they are a professional working group, anglers are not)

Have you actually spent any significant time on or about the canals? Or even actually seen one at all???

Oh granted if you try hard enough you'll find some stretches of canal that see plenty of maggot danglers and rarely a boat. I suggest you start your search around the nether regions of the Birmingham Canal Navigations where the appearance of a boat is often greeted with delight by the anglers (a passing boat stirs up the fish and they often catch just ahead of you)

I think his comments about fascism are OTT. The CRT would no doubt handle a similar situation in a different manner if required-they will have gained from the unfortunate experience.

It is worth bearing in mind that the particular incident in question, widely sensationalised and used to hold C&RT up as the bad guys, was managed on scene primarily by the police and social services. My understanding (from people fairly directly involved) is that it was Social Services who wanted the towpath closed and the police to keep the public and press at a distance to protect the privacy of the woman concerned.

C&RT were in a no win situation. They cannot arbitraily pick and choose when to enforce the byelaws, that's a significant part of what got British Waterways into such a mess over this issue. All they can do is ensure that the appropriate agencies are involved and that they have consistently done

A couple of other points ...

Two oft repeated bits of misdirection are that a> C&RT use section 8 when there are alternative methods of enforcement and that b> the C&RT definition of continuous cruising is not what was originally intended

On the first point, section 8 seizure of a vessel IS a last resort. In every single case that I am aware of it has been the final step in a lengthy process of negotiation and discussion to try and resolve the situation without getting legal about it. However, if a vessel owner persistently refuses to comply with the byelaws (in a nutshell, if they do not have 1> a Boat Safety Certificate and/or 2> insurance and/or 3> an appropriate licence and/or 4> a legitimate mooring and/or 5> they are lurking rather than continuous cruising) ultimately Section 8 is the only remaining option.

On the second point, although I was not personally involved in the negotiations with British Waterways I was in the information loop as an IWA branch officer and the original intention, as incorporated in the draft legislation, was to require EVERY licence holder to have a recognised permanent mooring. Continuous Cruising was a negotiated concession to cater for the estimated 200 to 300 boat owners at that time who were genuinely travelling around the system without a permanent base. It wasn't as well thought out as it could have been, in hindsight, but it was DEFINITELY not intended to cater for people with commitments such as work, schooling, health care issues etc.

 

[NigelMoore]

Two oft repeated bits of misdirection are that a> C&RT use section 8 when there are alternative methods of enforcement . . . section 8 seizure of a vessel IS a last resort . . .

It SHOULD be a last resort. It is NOT so used. Talking of protracted ‘negotiation and discussion’ is what amounts to ‘misdirection’. In what way is enforcement of the byelaw offence of keeping and using a boat on the waterway without a licence [where the relevant byelaw requires that] - through the court channel provided for in that respect – in any way inappropriate and/or ineffective?


The ‘lengthy process’ of communication referred to has nothing whatsoever to do with the alternative sanction available, and using s.8 as a last resort can only be characterised as such when the first resort - of applying to the court for enforcement and punishment for failure to abide by the relevant byelaw - has been tried.

 

[Bru]

It SHOULD be a last resort. It is NOT so used. Talking of protracted ‘negotiation and discussion’ is what amounts to ‘misdirection’. In what way is enforcement of the byelaw offence of keeping and using a boat on the waterway without a licence [where the relevant byelaw requires that] - through the court channel provided for in that respect – in any way inappropriate and/or ineffective?


The ‘lengthy process’ of communication referred to has nothing whatsoever to do with the alternative sanction available, and using s.8 as a last resort can only be characterised as such when the first resort - of applying to the court for enforcement and punishment for failure to abide by the relevant byelaw - has been tried.

OK, I'll bite. What alternative sanction is available to C&RT (through the courts or otherwise) if a vessel is on their waterways without an appropriate licence and/or is in breach of the licence terms and conditions and the owner therof refuses to rectify that situation?

(Bearing in mind that your own case was an exception due to the tidal nature of your moorings, we are talking here about non-tidal man made waterways owned in trust by and operated by the Canal and River Trust)

This situation has been ongoing for decades and in many cases the vessels in question have been unlicensed and uninsured for decades. Abuse of the Continuous Cruising licence is also widespread. C&RT are now doing what the vast majority of legitimate waterways users (who abide by the rules) have been pressing BW to do for many a long year and that is to use the powers they have to properly enforce the byelaws.

So what do you propose C&RT should do about illegal liveaboards?

 

[NigelMoore]

OK, I'll bite. What alternative sanction is available to C&RT (through the courts or otherwise) if a vessel is on their waterways without an appropriate licence and/or is in breach of the licence terms and conditions and the owner therof refuses to rectify that situation?

(Bearing in mind that your own case was an exception due to the tidal nature of your moorings, we are talking here about non-tidal man made waterways owned in trust by and operated by the Canal and River Trust)

QUOTE]


Forget my case; it was raised only by you in the first instance so far as I can recall. I will respond to comments made on that in due course, but it has little to do with the general issue in debate under this topic [other than illustrating the inappropriate preferred approach of the authority, even when knowing full well that the law is against them].


If anyone has brought onto any relevant waterway [or has allowed to be kept on that waterway] a boat without the Pleasure Boat Licence as required according to the General Canal Byelaws of 1976, then the sanction provided for is to take the errant owner to court for that failure to abide by the Byelaw.


Upon any finding by the court that the owner has breached that Byelaw, the court may Order the relevant compliance with the Byelaw upon penalty of imprisonment for Contempt of Court. Additionally, the court can impose a fine for breach of the Byelaw of up to £100, on top of any costs awards.


Some County Court judges, as, doubtless, such as yourself, may consider such penalties [involving as it inextricably does, a criminal record] as being derisory, but those penalties are what Parliament has approved as the appropriate sanction for the breach – and unless and until that sanction has been applied and found wanting in achieving remedy of the breach, the ultimate sanction of s.8 has been used inappropriately and in clear violation of the HRA.

 

[Bru]

Forget my case; it was raised only by you in the first instance so far as I can recall. I will respond to comments made on that in due course, but it has little to do with the general issue in debate under this topic [other than illustrating the inappropriate preferred approach of the authority, even when knowing full well that the law is against them].

For the sake of accuracy, no it wasn't raised by me in the first instance. I merely pointed out that, as you know, your case does not set a precedent applicable elsewhere as the decision in your favour (with which I have no argument, in so far as it goes) was predicated on the tidal waters issue.

If anyone has brought onto any relevant waterway [or has allowed to be kept on that waterway] a boat without the Pleasure Boat Licence as required according to the General Canal Byelaws of 1976, then the sanction provided for is to take the errant owner to court for that failure to abide by the Byelaw.

Upon any finding by the court that the owner has breached that Byelaw, the court may Order the relevant compliance with the Byelaw upon penalty of imprisonment for Contempt of Court. Additionally, the court can impose a fine for breach of the Byelaw of up to £100, on top of any costs awards.

Some County Court judges, as, doubtless, such as yourself, may consider such penalties [involving as it inextricably does, a criminal record] as being derisory, but those penalties are what Parliament has approved as the appropriate sanction for the breach – and unless and until that sanction has been applied and found wanting in achieving remedy of the breach, the ultimate sanction of s.8 has been used inappropriately and in clear violation of the HRA.

Actually, I'm not even going to dignify that piece of misdirection and misinformation with a response. We'll just end up going around in circles and you have a vested interest in the matter whereas I am merely a (now) disinterested bystander who happens to know the facts. Have fun ...

 

[NigelMoore]

Actually, I'm not even going to dignify that piece of misdirection and misinformation with a response. We'll just end up going around in circles and you have a vested interest in the matter whereas I am merely a (now) disinterested bystander who happens to know the facts. Have fun ...

That is a disappointing response from someone with an obvious depth of historical understanding of the situation. There is neither misdirection nor misinformation in what I have stated.


Anyone on relevant waterways absent a required Pleasure Boat Licence [the situation with which we are dealing in this topic] is in breach of the 1976 Byelaws –


http://www.britishwaterways.co.uk/media/documents/foi/legal/BW_General_Canal_Bye-laws.pdf


On page 32 of the above link, clause 2(1) provides:


“No person shall knowingly cause or permit to be brought, kept, let for hire or used on any canal (not being a river waterway) any pleasure boat unless there is then in force in relation to the pleasure boat a pleasure boat licence.”


The prescribed penalty for breach of that [and any of the other byelaws] is: clause 5 -


“Any person who contravenes the foregoing or any of the Board’s General Canal Bye-laws . . . shall be liable on summary conviction to a penalty not exceeding one hundred pounds for each offence . . .”


That is the FIRST action to be undertaken by the authority for breach of that offence – NOT s.8.



In fact, there is no necessity even to ask a court to convict under that byelaw – s.5 of the 1983 Act grants them the right to apply to the court simply for payment of the Licence fee –

"Recovery of Charges

“(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same . . . the Board may . . . recover from him a sum equal to - ( a ) the amount of the charge which is due or payable;

(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge may, in addition to dealing with him in any other way, order him to pay to the Board any sum which the Board are empowered to recover under this section.”

So there are in fact TWO alternative recourses open to the authority.


It is a matter in which I am completely disinterested, as the byelaw does not apply in circumstances such as my own – as confirmed in the first instance by Hildyard J. I therefore have NO vested interest, other than that which informs anyone concerned with appropriate exercise of legal powers by the relevant authority.


The avowed intent from yourself not to “dignify” my post with any response notwithstanding, for those with active interest in the subject matter, the above legislation ought to be examined and informed opinion reached on whether any “misdirection and misinformation” has been promoted.


For so long as such penalties as quoted above have been provided for by Parliament, the application of more draconian measures [as with s.8] in lieu of the less onerous penalties [as prescribed in the Byelaws] must necessarily fall foul of the HRA. This is because of previous UK decisions in line with published analysis of the EU legislation –

In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test for determining proportionality. Lord Clyde observed, at p 80, that in determining whether an act, rule or decision is arbitrary or excessive the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective." [my emphasis]

According to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca, the test of proportionality is generally acknowledged to comprise 4 stages:

• there must be a legitimate aim for a measure
• the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)
• the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it
• the measure must be reasonable, considering the competing interests of different groups at hand.

 

[rotrax]

That is a disappointing response from someone with an obvious depth of historical understanding of the situation. There is neither misdirection nor misinformation in what I have stated.


Anyone on relevant waterways absent a required Pleasure Boat Licence [the situation with which we are dealing in this topic] is in breach of the 1976 Byelaws –


http://www.britishwaterways.co.uk/media/documents/foi/legal/BW_General_Canal_Bye-laws.pdf


On page 32 of the above link, clause 2(1) provides:


“No person shall knowingly cause or permit to be brought, kept, let for hire or used on any canal (not being a river waterway) any pleasure boat unless there is then in force in relation to the pleasure boat a pleasure boat licence.”


The prescribed penalty for breach of that [and any of the other byelaws] is: clause 5 -


“Any person who contravenes the foregoing or any of the Board’s General Canal Bye-laws . . . shall be liable on summary conviction to a penalty not exceeding one hundred pounds for each offence . . .”


That is the FIRST action to be undertaken by the authority for breach of that offence – NOT s.8.



In fact, there is no necessity even to ask a court to convict under that byelaw – s.5 of the 1983 Act grants them the right to apply to the court simply for payment of the Licence fee –

"Recovery of Charges

“(2) If any person from whom any charge is due or by whom any charge is payable fails without reasonable excuse to pay the same . . . the Board may . . . recover from him a sum equal to - ( a ) the amount of the charge which is due or payable;

(3) A court before which a person is convicted of an offence under any of the specified enactments arising from or involving any failure to pay a charge may, in addition to dealing with him in any other way, order him to pay to the Board any sum which the Board are empowered to recover under this section.”

So there are in fact TWO alternative recourses open to the authority.


It is a matter in which I am completely disinterested, as the byelaw does not apply in circumstances such as my own – as confirmed in the first instance by Hildyard J. I therefore have NO vested interest, other than that which informs anyone concerned with appropriate exercise of legal powers by the relevant authority.


The avowed intent from yourself not to “dignify” my post with any response notwithstanding, for those with active interest in the subject matter, the above legislation ought to be examined and informed opinion reached on whether any “misdirection and misinformation” has been promoted.


For so long as such penalties as quoted above have been provided for by Parliament, the application of more draconian measures [as with s.8] in lieu of the less onerous penalties [as prescribed in the Byelaws] must necessarily fall foul of the HRA. This is because of previous UK decisions in line with published analysis of the EU legislation –

In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test for determining proportionality. Lord Clyde observed, at p 80, that in determining whether an act, rule or decision is arbitrary or excessive the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective." [my emphasis]

According to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca, the test of proportionality is generally acknowledged to comprise 4 stages:

• there must be a legitimate aim for a measure
• the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect)
• the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it
• the measure must be reasonable, considering the competing interests of different groups at hand.

So what you are saying is that the CRT have proceeded with these cases in the wrong way.

You may be right, but at least, unlike the BWB they are achieving something.

Perhaps the courts DID ask themselves the questions and came to the conclusion to proceed.

I really dont know.

Do you?

 

[NigelMoore]

So what you are saying is that the CRT have proceeded with these cases in the wrong way.

. . .

Perhaps the courts DID ask themselves the questions and came to the conclusion to proceed.
QUOTE]

That is right – the 1983 Act provides [under s.5] that unpaid licence fees may be pursued in Court – and apart from anything else, it has to make sense that recovery of monies owed is sought, together with accrued costs. The 1976 Byelaws provide that suit can be made for breach, which an be additionally or alternatively to such an action for recovery of debt. Asking a court to sanction removal of someone’s home under the s.8 process does not entail getting that money – indeed, it necessarily denies all potential future income from that boater in relation to the removed boat. All that can be recovered under a s.8 process [if the boat is worth enough] is the actual incurred costs of the court and subsequent removal.


Did the courts in previous cases ask themselves the HRA applicable questions I quoted? Not that I know of, as I said. They have considered the HRA in the context of s.8 of course, but universally [and with High Court approval] they have taken the view that the authority is the one best placed to determine the proportionality of their own actions. The issue then, becomes one of simply asking whether the law gives them the power to do what they want: it does, so the action is rubber-stamped. Basically, the County Court considers that the questions do not need to be asked because the authority will have asked and answered them for themselves, and that it is inappropriate for the courts to “open the gate” to peer behind for the motivations and rationalisations.



The situation was clarified by Hildyard J in the relevant judgment in my case – “Looking first at the public authority’s justification for doing as it has done, in many cases there will in effect be a presumption of proportionality. As made clear in cases such as Powell and Pinnock. it is unusual for Local Authorities to be required to justify their decision because it is ordinarily to be assumed that everything has been done properly and for legitimate management reasons.” [my emphasis]


I should, however, note that there have been a number of s.8 cases where the judges have decreed that the offender should be given the chance to pay what they owed, rather than approving removal of their boat forthwith. In some instances they have even set out payment plans. In doing so, whether because of an eye to the HRA or not, they were effectively adhering to the spirit of the HRA and demanding that the less onerous route be travelled first.


In the only published judgment [BWB v Ward] which considered in any context the alternative course - of pursuing for breach of the Byelaws - the judge dismissed that alternative out of hand as being of "derisory" punishment value. I cannot help feeling that such an expression of contempt for the provisions sanctioned by Parliament was ill-advised.


The judge in fact quoted from Lord Hope in the Powell decision that Hildyard J referred to. That was in respect of housing authorities, but the principle is identical – “Practical considerations indicate that it would be demanding far too much of the judge in the County Court faced with a heavy list of individual cases to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should be best administered. The court is not equipped to make those decisions which are essentially concerned with housing management. This is a factor to which great weight must always be given and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.” [my bold]


As I have said, the question of whether the “less onerous” remedy should have been applied first, was contemptuously swept aside in this instance, without reference to the HRA. Evidently, it would have been demanding far too much of that particular County Court judge, faced with his heavy list of individual cases, to have considered Lord Clyde’s observation in the privy Council judgment and ask himself “whether . . . the means used to impair the right or freedom are no more than is necessary to accomplish the objective."


If the legitimate objective is ensuring that all boats on the waterways are properly licensed, then good managerial decisions will involve invoking the appropriate course of action to ensure that. Using s.8 does not even pretend to do so, it simply sends out a warning to others of what can happen, and that is the closest it comes to ensuring compliance.


In short, the answer is that to the best of my knowledge the relevant questions have not been asked by any court. The much publicised recent case of Tony Dunkley DID offer the opportunity for these questions to be asked by the court, but having read through the Defence in which these points were raised, CaRT filed, instead, for a Notice of Discontinuance.

 

[Bru]

The misdirection here is that you are proposing that C&RT should pursue people through the courts for payment of a licence fee and/or for breach of the byelaws when the outcome of such court action would not materially acheive anything worthwhile

What you are asking C&RT to do is to introduce months, probably years, of further delay and legal process into the procedure for dealing with this situation which will benefit only the defendants and the lawyers

Your argument is a lawyers argument. It's twisting the law to cause delay, obfuscation and confusion

The reality is that the Canal and River Trust do not want a court order for payment of a licence fee to which the vessels in question have, through the owners actions, already rendered themselves ineligible.

What they want is liveaboards who do not have a legitimate permanent mooring with planning permission and who are not genuine continuous cruisers (by the definition of continuous cruiser originally proposed by user groups such as IWA, NABO and RBOA and generally accepted by all but the people who are flouting the rules) gone.

Gone as in off the trusts waterways

Such illegal boats are not entitled to a pleasure craft licence so pursuit through the courts for the licence fee is a crock

Fining the owners thereof £100 is derisory (and a judge has agreed that it is so) so that is a waste of time

Locking the owners therof up in prison for contempt of court would be draconian so that goes out of the window

And at the end of any of your proposed lesser measures the vessel in question would still be on the trusts waterways and they would still have to pursue the owner thereof to get it removed. If the owner of a non-compliant vessel refuses to comply with the byelaws after discussion and negotiation, the eventual inevitable outcome is going to be a Section 8 notice (which C&RT do not, actually, need to go to court over although they do on the grounds that the recipient of the notice will almost inevitably appeal to the courts anyway)

Cards on the table - I have no sympathy for people, in any walk of life, who ignore the rules. I don't have much time for people who use clever legal arguments to avoid the rules either. The rules are clear to anyone who uses simple common sense (the man on the Clapham omnibus in legal terms) - you cannot live on the canals unless you have a residential mooring (and a residential licence) unless you are cruising around the canals (and not hanging around in one particular area either)

PS. The Tony Dunckley case isn't terribly relevant in the overall scheme of things. for the sake of the last remaining reader, as I understand it he has a legitimate mooring for his boat (upon which he lives) but he regularly (some say routinely) spends weekends on a local visitor mooring. There is an argument that this breaches the byelaws but it's a shakey one and one suspects that C&RT were advised by their legal people that it wasn't worth pursuing.

 

[NigelMoore]

The topic under discussion is, as I understood it, whether the authority is going about things the right way in evicting liveaboards from the waterways.

My answer is that they are not, because they are omitting from their management procedures the first recourse powers available to them. The court action for recovery of debt &/or byelaw breach is a relatively quick and easy process requiring none of the trained legal expertise of expensive barristers - it a simple and provable question of fact, so it does not involve abstruse construction of ambiguous private legislation. It is not a lawyer’s charter.


The action either results in the licence fee being paid up with a smallish fine added plus strictly limited court costs, or it does not and CaRT would then be able to s.8 and remove it without further ado. Declaratory Relief as to that [in the event of non-compliance] could be incorporated into the claim.


This addresses the majority of cases, which are where boaters have refused to pay up. The court cases where the authority has sought to justify s.8 on interpretive legal grounds, boil down to only 3 that I am aware of.


As to the draconian nature of imprisonment, I would suggest that it is a far lesser sanction than taking their home, and would in any event only arise in instances where a court decision was deliberately flouted.


The Tony Dunkley case was one where the authority sought to remove the boater’s home under s.8 – the topic of this thread. That makes it relevant I would have thought. That case was most definitely a case involving convoluted legal construction with an inappropriate sanction sought.


In his case – disregarding the argumentative issues and accepting for the sake of argument that they were entitled to refuse his money for a licence renewal – the appropriate sanction if he continued to cruise the Trent without a Pleasure Boat Certificate was a £50 fine and a daily charge of £5 for every day he continued to do so following conviction. Imprisonment for contempt of court being always an option for the court to decide upon.


It was failure to try that route first that raised the HRA test, and consequently formed a significant element within his Defence.


I see nothing within anything I have written that implies support for flagrant abuse of the system; refusal to pay due fees, and/or flouting of the law. I do explicitly demand that the authority itself act within the law; it does not always do so and is currently paying back thousands of pounds of criminally extracted fees as some people slowly come to realise that they are entitled to reimbursement. The sums are piddling to the authority so they don’t care very much, but the situation illustrates the extent that they have been prepared to go in reliance on boater ignorance.


It was the thankfully departed previous CEO who despite his failings nevertheless identified the crucial need for the new administration to be seen as above reproach –as he told The Merits of Statutory Instruments Committee in April 2012:


“As a charity, we will survive only if our reputation is good.”


Everything I have said thus far is by way of urging those administering the waterways to act in a way that ensures their survival.

 

[Bru]

The action either results in the licence fee being paid up with a smallish fine added plus strictly limited court costs, or it does not and CaRT would then be able to s.8 and remove it without further ado.

But there is the fundamental fallacy in your argument

Your argument is based on the assumption that the issue is one of licence fees not being paid

My counter-argument is that the issue is one of licence conditions not being met and in most cases in circumstances where they cannot and realistically will not be met. Any ancilliary non-payment of licence fees is a side issue

It would be perverse in the extreme for C&RT to pursue through the courts payment of a licence fee for a licence that they have revoked due to persistent breaches of the licence terms and conditions!

As I'm not a contributor to C&RTs limited coffers I care not whether they spend vast sums of money pursuing people for unpaid fines, unpaid fees and the ultimately, as you very well know would be the case, finally pursuing section 8 removal of the offending vessel because whilst you will always find the occasional Ton Dunckley where the case has been mishandled and, indeed, the occasional Nigel Moore where a killer legal argument from left field moves the goalposts, in 9 out of 10 of the cases the matter is a straightforward long term abuse of the system by people who have zero intention of resolving the issue unless legally forced to do so

Oh and I do think there is an issue with your approach criminalising people over what is a civil matter. Section 8 does not leave people with a criminal record, court fines, payment orders and convinction for contempt, far from being the lesser penalty you seem to think it is, is to me using a sledgehammer to crack a nut (and it's cracking the wrong nut anyway)

 

[rotrax]

And there you have it...............................

 

[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.