CaRT's CC rules are unlawful
A JUDGMENT in a Canal & River Trust Section 8 court case confirms that it would be unlawful for the Trust to set a minimum distance that continuous cruisers must travel to comply with the law, and CaRT knew this for over a year but kept it secret, but is revealed by National Bargee Travellers Association.
This shoots down in flames its rules that continuous cruisers must move its defined lock/ miles and not immediately return to the same place, as the judgment also states a continuous cruiser can do exactly that. This judgment was handed down in November 2013 but CaRT has not published it, unlike other judgements in Section 8 cases. Yet despite knowing about this judgment for a year, CaRT is still currently attempting to set a minimum distance that continuous cruisers must travel in order to comply with the law!
Not required to use its mooring
To add to CaRT's woes the judge in the case, HHJ Halbert, stated that a boat with a permanent mooring is not required ever to use its mooring, though the Trust had been trying to enforce that it should.
The judgment in the case of CaRT v Mayers states that repeated journeys between the same two places would be 'bona fide navigation' if the boater had specific reason for making repeated journeys over the same stretch of canal. HHJ Halbert also stated that any requirement by CaRT to use a substantial part of the canal network was not justified by Section 17(3)(c)(ii) of the British Waterways Act 1995 because the requirement to use the boat for bona fide navigation is 'temporal not geographical'.
Did not disclose judgment
CaRT held two meetings with boating user groups on 22nd September and 3rd November 2014 in which it tried to persuade the groups to agree a minimum distance that boaters without home moorings must travel every three months and over their licence year to avoid enforcement action.
CaRT did not disclose this judgment at either meeting.
The history
In 2011, BW re-wrote the Mooring Guidance for Continuous Cruisers to remove the words 'the law requires a genuine progressive journey (a cruise) around the network or a significant part of it' as a result of the judgement in British Waterways v Davies, reported in narrowboatworld. (BW slammed over 'precedent' statement). The guidance was renamed Guidance for Boaters Without a Home Mooring.
In 2003, British Waterways tried to introduce the Draft Moorings Code or Lock Miles Rules, which would have required continuous cruisers to travel at least 120 different lock-miles every three months without using the same stretch twice. This draconian proposal was dropped by British Waterways following the threat of legal action by a boating user group and in 2004 the Mooring Guidance for Continuous Cruisers was published instead.
Tony Dunkley
Yet in spite of this judgment CaRT started court action in early 2014 against a boat dweller Tony Dunkley, that was widely publicised in narrowboatworld, (The Tony Dunkley fiasco) who did not use his home mooring. It has now dropped the Section 8 claim against liveaboard Tony Dunkley. And of course we know realise why!
So the whole set of continuous cruising and mooring rules CaRT has been trying to force upon boaters is unlawful, and have been so for over a year, yet it still attempted to implement them!
The judgment
The relevant paragraphs of the CaRT v Mayers judgment are reproduced below:
7.22.3
I consider the requirement imposed by CaRT that a substantial part of the network is used cannot be justified by relying solely on section 17(3). That section requires 'bona fide navigation throughout the period of the
licence' not 'bona fide navigation throughout the canal network'. The requirement is temporal not geographical. In my view it does NOT follow from:
Such journey or cruise must take place 'throughout the period of the licence.' that it' therefore requires progression round the network or at least a significant part of it.
7.22.4
If a person who lived permanently on his or her boat had specific reason for making repeated journeys over the same stretch of canal between two points sufficiently far apart to be regarded as different places, it would in my view be purposeful movement by water from one place to another and hence 'bona fide navigation'. In the course of argument I used the example of someone who lived on his boat but was also using the vessel commercially to move coal from a mine to an iron foundry only a few miles away and then returning empty for another load.
7.22.5
To take an extreme example, in its heyday, the Mersey Ferry operated continuously to and fro over the same stretch of water which is less than a mile wide. No one would ever have accepted the suggestion that the ferry boats were not bona fide used for navigation throughout the period of their operations.
6.3
There are clear anomalies in both positions. CaRT clearly regard the occupation of moorings by permanently resident boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. A boat which has a home mooring is not required to be 'bona fide used for navigation throughout the period of the licence' but neither is it required ever to use its home mooring. The Act requires the mooring to be available, it does not say it must be used.
The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places. If those who are causing the overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet & Avon canal near Bristol and the home mooring could be in Birmingham and totally unused.