K&A boater Matthew Jones yesterday won his appeal against CRT’s attempt to strike out the Article 8 elements of his defence against eviction from CRT’s waterways under Section 8 of the British Waterways Act 1983. The case will now be remitted back to Bristol County Court where Mr Jones will be able to put his Article 8 arguments in full. Mr Jones’s solicitor Community Law Partnership writes:
Where it is written
The study that Nigel Moore has put in to the various Waterways Acts, their application and, most importantly, misuse by CRT, is awe-inspiring and unrivalled. It would not be exaggeration to say that he is the foremost current authority on waterways law.
One of the pieces of law that CRT rely on for much of their hyperbole and abuse is Section 43 of the 1962 Transport Act that they claim entitles them both to charge as they see fit and levy terms and conditions over all their activities.
Nigel, in this article published on Canalworld forum; makes a superb analysis of this section, what it applies to and what it most certainly doesn’t.
Context is all, and is the one thing that most people fail to see when dealing with this bit of legislation in particular. It is surprising, because the very wording of the oft-quoted section demands that it be read subject to the preceding sub-sections and to preceding enabling Acts.
The result of reading it in isolation is to form a view that this Act confers, for the first time, rights to charge for use by boats of the canals, and to impose conditions on such use. It does no such thing.
From the very beginning, over two centuries ago now, canal companies were granted the right to charge for use by boats of their waterways, and to make conditions for such use. Nothing changed in those respects from the enabling Acts until now. What HAS changed, is the degree of limitations applicable to the setting of charges and conditions.
None of these could ever have applied to the grant of permission for boats to enter the waterways; the canals were all of them subject to the public right of navigation. It is not that boats were not subject to conditions attached to the exercise of their right – they were, as provided for in primary and secondary legislation. All boats exercising the public right to enter and use the canals, for example, were required by primary legislation to be registered. All such boats were also required to conform to the conditions of use as set out in the various byelaws. Penalties were set out for breach of these. That still applies, having nothing to do with boat licences, nor with PBC’s.
Originally, the canal companies were set fixed levels of charges for the uses they were entitled to charge for [and unless those uses were specified, they were not entitled to charge at all]. Additionally, conditions attached to the services and facilities for which they were entitled to charge were often legislated also. An example of the latter is that while the GJCC were entitled to create wharves and commensurate facilities on any offside land they had purchased for the purpose – just as private riparian landowners were – they were not entitled [by contrast with the private owners], to say who could or could not avail themselves of those facilities; they had to be open to all.
The awkwardness of the system meant that new legislation had to be passed every time it was necessary to upgrade the charge levels in line with current costs.
These rigid price structures and conditions – differing with every one of the multitudinous companies – were modified in a series of subsequent national legislation. Not what could be charged for and conditioned, which remained then as now, subject to express and implied prohibitions, but how and at what level.
The Transport Act 1947 set out a reform applicable to all the nationalised companies within the British Transport Commission, under section 76 headed “Charges Schemes”. This provided that: –
“The Commission shall from time to time prepare, and submit to the Transport Tribunal for confirmation, drafts of schemes (hereafter in this Act referred to as “charges schemes”) for determining, as respects the services and facilities provided by the Commission to which the schemes respectively relate –
a ) the charges which are to be made by the Commission and
b ) where it is necessary or expedient to do so, the other terms and conditions which are to be applicable to the provision of those services and facilities, including, in particular, terms and conditions as to the liability of the Commission for loss or damage.”
So the disparate levels of charges under the prior enabling Acts was to be brought under a unified scheme, appropriate to the unified companies under the aegis of the BTC. These charges and related T&C’s were to be submitted to an independent Tribunal for approval.
In 1958 the BTC’s Charges Scheme was approved by the Tribunal, coming into force on the 1 June 1958. It laid down that –
“4. The Commission may in the case of any inland waterway of the Commission make such charges as may be reasonable –
(1) for the use thereof by any ship or boat;
(2) for the provision by them of towage thereon;
(3) for the provision of port facilities at or in connection with any dock thereon; and
(4) for the use of any services and facilities connected with such port facilities . . .”
“5. Any questions as to the reasonableness of any charge made by the Commission under paragraph 4 of this Scheme shall be determined on the application either of the Commission or of the person liable to the charge by the Transport Tribunal to the exclusion of any other Court.”
“6. The Commission may make the use of any of the services and facilities to which this Scheme relates subject to such reasonable terms and conditions (not being provisions as to the amount of any charges) as the Commission may from time to time determine.”
“7. Any questions as to the reasonableness of any term or condition imposed or sought to be imposed by the Commission under paragraph 6 of this Scheme shall be determined by the Transport Tribunal.” [my emphasis]
The difference between the 1958 Scheme and everything which applied previously, was that the rigid and disparate charges levels were abolished in favour of a uniform level of charge across all relevant waterways, and the T&C’s attached to the service/facility charged for, were likewise made uniform. For both charge levels and T&C’s, the only restriction was that these were to be “reasonable”; the test for reasonableness determinable by the Transport Tribunal in case of challenge.
What interested parties need to ask then, is wherein lies the difference between the Charges Scheme 1958 and the Transport Act 1962?
The 1962 Act [which abolished all Charges Schemes under the 1947 Act] clarifies that the charging regime applies only to the uses chargeable under the enabling Acts, while removing the burden of reasonableness on the charges and on the related terms and conditions for the chargeable services and facilities.
So s.43 introduces nothing new in terms of what can be charged for and conditioned; it simply removes all restrictions and oversight as previously obtained, such that BW could set charges, and set T&C’s for the chargeable services and facilities “as they see fit”.
The latter four words form the ONLY point of difference from all that went before.
The 1962 Act, far from giving CaRT open licence to charge for whatever they liked and to impose conditions for whatever they liked, on a unilateral basis, is in fact the one bit of legislation that specifically confirms the legislative principle that these charges and conditions cannot be made with respect to anything that had not previously been authorised as chargeable.
The licensing of boats on the canals, and the registration of boats on the rivers, was never encompassed within pre-1962 legislation, hence nothing in s.43 could possibly apply to those. When those became law under primary legislation, the conditions for issue were laid out – and to start with, nothing more was required for either, other than a paid for application. The PBC’s to begin with were subject to rigid price structures, but when boat licences became compulsory those prices were abolished and the PBC simply pegged to 60% of the Licence [which BW could charge for as they wished].
The BW Act 1983 added an extension to byelaw making powers, so that issue of the boat Licence could be made subject to compliance with prescribed standards of construction and equipment of vessels, but that was never implemented, and the section was repealed under s.36 and Schedule 3 of the 1995 Act – which substituted the BSSC condition instead. The 1995 Act added the only other two applicable conditions, to which issue of relevant consents [to include the PBC’s as well] were to be subject.
*PBC is a Pleasure Boat Certificate, which CRT disingenuously refer to as a Rivers Only Licence. It is, legally speaking, not a licence as none is needed on those rives for which the Public Right of Navigation still exists.
Usually when CRT wins a Section 8 case it publishes the judgement (if there is one) on its web site. However, it made an exception in the case it won against Geoffrey Mayers, the reason being that this judgement confirms that it would be unlawful for CRT to set a minimum distance that continuous cruisers must travel to comply with the law. The Judge also stated that a boat with a home mooring does not have to actually use its mooring, something else that CRT would prefer us not to know about.
The IWA’s response to the news that Nick Brown discontinued his Judicial Review of CRT’s Guidance for Boaters Without a Home Mooring is alarmingly off-piste. IWA Chair Les Etheridge weighed into the discussion saying “Visitor moorings on the inland waterways need to be managed with the best interests of the whole boating community”.