1

CLAIM NO AOONG769

IN THE NOTTINGHAM

COUNTY COURT

B E T W E E N

CANAL & RIVER TRUST CLAIMANT

- and -

ANTHONY DUNKLEY DEFENDANT

DEFENCE

OF DEFENDANT

28TH JULY 2014

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INTRODUCTION

I, Anthony Dunkley of nb Halcyon Daze do say as follows:

I lay out my defence in this matter in this document.

CAVEAT

1. As a Litigant in Person, 24 days is insufficient time to obtain adequate advice

to fully set out my defence in this matter. In addition, I have requested documents

that are relevant to this case under the Data Protection Act 1998 [DPA] from the

Claimant and other organisations. The Claimant has taken more than 80 days to

respond to my Subject Access Request in contravention of the DPA.

I expect to receive the documents I have requested from the Claimant between 15th

July 2014 and 28th July 2014. There will be insufficient time for me to study and

make a full assessment of these documents. I expect to receive documents from

other organisations after 28th July 2014.

Under the circumstances I would hope for the Court’s permission to amend my

defence before the date of the full trial in the light of further advice and information

that I receive.

I also make application to the Court for full disclosure by the Claimant in the event

that I do not receive all the documents that I listed in my DPA request.

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ISSUES TO BE DECIDED BY THE COURT

2. In my submission the following issues lie for the Court to determine:

a. Whether a mooring or other place where the vessel can reasonably be

kept and may lawfully be left is available for Halcyon Daze;

b. Whether Halcyon Daze is required to use its home mooring;

c. Whether Halcyon Daze is being used for navigation;

d. Whether Halcyon Daze is a Pleasure Boat or Houseboat;

e. Whether Halcyon Daze is guilty of mooring offences;

f. Whether breach of the Claimant's boat licence conditions 2.1, 3.1, 7.2

and Schedule 2A, entitles revocation of the licence;

g. Whether the Claimant acted ultra vires in revoking and refusing the

licence of Halcyon Daze;

h. Whether the Claimant’s action is a violation of my rights under the

European Convention on Human Rights and,

i. Whether Halcyon Daze requires a licence at all, to simply remain

outside the main navigational channel.

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ISSUES NOT IN DISPUTE

3. It is agreed by both parties that Halcyon Daze complies with the standards

applicable to that vessel and that an insurance policy is in force in respect of the

vessel as required by s.17(3)(a) and (b) of the British Waterways Act 1995.

APPLICABLE LEGISLATION

4. The various Acts and legislation that apply are:

s.17 British Waterways Act 1995

s.8 British Waterways Act 1983

s.1, s.4, s.5 and s.6 British Waterways Act 1971

Schedule 1 British Waterways Act 1971

s.43 Transport Act 1962

Common Law Public Right of Navigation on rivers and river navigations (recorded in

Magna Carta 1215)

Art 8 and Art 1 Protocol 1 European Convention on Human Rights

KEY ELEMENTS OF LEGISLATION COVERING BOAT LICENSING: BRITISH

WATERWAYS ACT 1995

5. s.17 of the British Waterways Act 1995 defines the conditions of boat licences:

6. s.17(1) provides definitions of the terms used:

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“houseboat certificate” means a houseboat certificate issued under the Act of

1971;

“licence” means a licence issued by the Board in respect of any vessel

allowing the use of the vessel on any inland waterways;

“pleasure boat certificate” means a pleasure boat certificate issued under the

Act of 1971;

“relevant consent” means a houseboat certificate, a licence or a pleasure boat

certificate"

7. A Pleasure Boat Certificate is now normally referred to as a "Rivers Only

Licence". The majority of private pleasure boats hold what is now referred to as a

"Standard Canal and River Licence". Only around 83 Houseboat Certificates exist on

the waterways managed by the Claimant.

8. s.17(3) defines the conditions that must be met before a licence (a "relevant

consent") will be granted:

"Notwithstanding anything in any enactment but subject to subsection (7)

below, the Board may refuse a relevant consent in respect of any vessel

unless—

(a) the applicant for the relevant consent satisfies the Board that the vessel

complies with the standards applicable to that vessel;

(b) an insurance policy is in force in respect of the vessel and a copy of the

policy, or evidence that it exists and is in force, has been produced to the

Board; and

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(c) EITHER—

(i) the Board are satisfied that a mooring or other place where the vessel can

reasonably be kept and may lawfully be left will be available for the vessel,

whether on an inland waterway or elsewhere; OR

(ii) the applicant for the relevant consent satisfies the Board that the vessel to

which the application relates will be used bona fide for navigation throughout

the period for which the consent is valid without remaining continuously in any

one place for more than 14 days or such longer period as is reasonable in the

circumstances."

9. A mooring under s.17(3)(c)(i) is referred to as a "home mooring". A boat

licensed under s.17(3)(c)(ii) is colloquially known as a "continuous cruiser". (c)(i) and

(c)(ii) are mutually exclusive: a boat licensed under (c)(i) is not required to comply

with the movement pattern defined in (c)(ii).

10. The Claimant has promulgated "guidance" or "guidelines" applicable to boats

licensed under (c)(ii) entitled "Guidance for Boaters Without a Home Mooring". The

guidance purports to explain the boat movement that is required for boats licensed

under (c)(ii). The guidance does not apply to boats licensed under (c)(i).

11. It is not in dispute that Halcyon Daze complies with the requirements of s.17(3)

(a) and (b). No requirement is set out that a pleasure boat that is licensed under

s.17(3)(c)(i) with a home mooring must be used bona fide for navigation, or to meet

any of the other conditions set out in s.17(3)(c)(ii), [but if it is to be distinguished from

a houseboat it must be inferred that it is a vessel bona fide used for navigation.]

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ISSUE 1: WHETHER A MOORING OR OTHER PLACE WHERE THE VESSEL CAN

REASONABLY BE KEPT AND MAY LAWFULLY BE LEFT IS AVAI LABLE

12. A home mooring is available for Halcyon Daze at Field End Mooring, known as

The Spinney, Trentside, Barton in Fabis, Nottinghamshire NG11 0AG. I rent the

mooring from Darren Woods for the sum of £850.00 per annum. I pay this fee in two

instalments each year. Mr Woods rents the field and the mooring space from the land

owner. The mooring space that I rent from Mr Woods consists of 80 feet of river bank.

The depth of water at the bank is at least 3 feet in normal conditions. Halcyon Daze

is 50 feet long and has a draught of 2 feet 6 inches. I have rented the mooring from

Mr Woods since December 2011. I informed the Claimant of this fact on 12th

December 2011. The mooring is available exclusively to me at any time. I refer the

Court to the evidence of Mr Woods, who will attend the trial as a witness. [AD1]

13. It is self-evident that the mooring at Field End Moorings is a mooring. The

length of space along the bank; the depth of water and the exclusivity of the mooring

agreement demonstrate that the vessel can reasonably be kept there. It had been

accepted by the Claimant as a satisfactory mooring for Halcyon Daze between 12th

December 2011 and 3rd January 2014. The adjacent mooring space is currently

accepted by the Claimant as a satisfactory mooring for Mr Woods' boat Hopper 11.

14. The River Trent Navigation is a natural river and therefore the riparian owner

of the land at Field End Moorings also owns the bed of the river to the centre.

Whether boats are permitted to moor there or not is entirely under the control of the

landowner, as acknowledged by the Claimant in their “End of Garden Moorings ”

Informative. [AD2]

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15. The Informative states: “2. Natural parts of rivers managed by BW but which are not owned by it: Where BW is navigational authority but does not own the bed of the river, a boater

needs a licence from BW to cruise the river. However, the boater does not need to

pay BW a mooring fee as well because BW does not own the river bed. As

mentioned earlier common law rules of riparian ownership usually apply”.

16. On the Claimant’s own recognition therefore, permission from the riparian

owner is the only permission that is required to moor boats there. I have permission

to moor Halcyon Daze there by virtue of my mooring agreement with Mr Woods and

by virtue of the fact that my mooring fee payments are not in arrears. Pursuant to

paragraphs 38 and 39 of Moore v British Waterways [2013] EWCA 73 (Civ) there

is no prohibition on boats being moored there, so that the vessel may lawfully be left

at that mooring.

ISSUE 2: WHETHER HALCYON DAZE IS REQUIRED TO USE IT S HOME

MOORING

17. s.17(3)(c)(i) of the British Waterways Act 1995 states that in order for a boat to

be licensed it must meet the condition that:

”(i) the Board are satisfied that a mooring or other place where the vessel can

reasonably be kept and may lawfully be left will be available for the vessel, whether

on an inland waterway or elsewhere"

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18. There is no requirement stated for the vessel to use the mooring, merely that a

mooring will be available. Similarly there is no requirement for the mooring to be

"bona fide" or genuine; indeed this is a superfluous requirement because whether a

home mooring "will be available for the vessel", or not, is a question of fact.

19. The Practice Direction on the Citation of Authorities [2001] 1 WLR 1001 states

that County Court cases may not be cited unless they are "cited in a County Court in

order to demonstrate current authority at that level on an issue in respect of which no

decision at a higher level of authority is available". No other decision apart from the

decision cited below exists at County Court level or at a higher level regarding the

issue of whether a boat licensed under s.17(3)(c)(i) of the British Waterways Act 1995

is required to use its home mooring.

20. In his judgment [AD3] in the case of CaRT v Geoff Mayers of 22nd November

2013 Claim No ONH00407, in the Chester County Court, HHJ Halbert stated:

"6.3 There are clear anomalies in both positions. CRT 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) [of the British

Waterways Act 1995] nor the guidelines [Guidance for Boaters Without a

Home Mooring i.e. those licensed under s.17(3)(c)(ii)] 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 to ever use its home mooring. The Act requires that the mooring is

available, it does not say it must be used. The guidelines also have this

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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 and Avon Canal near Bristol

and their home mooring could be in Birmingham and totally unused.

6.4 The result is that CRT require GDM to acquire and pay for a home mooring

which he cannot afford and would not use at all. He could then do exactly what

he wants to do. It was conceded on behalf of CRT in the course of argument

that if GDM acquired a home mooring for Pearl, he would be left undisturbed

provided he did not infringe the 14 day requirement which would be the case if

he behaved as he wished to as described at the end of paragraph 5.8.

6.5 This would be of no advantage whatever to CRT. They charge exactly the

same for a continuous cruising licence as they do for a home mooring licence.

The home mooring would most probably be in a private marina so the fees for

that would not benefit CRT. They would be payable to the marina owners

(Marina owners do pay a small charge to CRT for the water supply via the

canal but it is not significant).

6.6 The result would be that by paying about £25 a week (which he can ill

afford) to a third party with no significant advantage to CRT, for a mooring he

does not want and would not use, GDM would be free to do what he told

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me he wants to do . So would any other resident boat owner who could afford

a mooring. This would do nothing to ease the overcrowding in certain areas

which is causing the concern." [my emphasis in bold throughout]

21. A Freedom of Information Act request was made by Nick Brown [AD4] for:

"all the information you hold regarding the amount of time a boat licensed under s17

3 c i of the 1995 Act is required to be moored on its home mooring during the

contract period of its licence. "

In its response dated 3rd October 2012 the Claimant stated that:

"We do not hold this information as no time frames are stipulated ."

22. In its response dated 23rd May 2014 to a Freedom of Information Act request

that I made for "All the information you hold on the amount of time a vessel licensed

under s.17(3)(c)(i) of the British Waterways Act 1995 must use its Home Mooring

during the Contract period of the Licence" -

the Claimant stated that:

"We do not prescribe the amount of time a vessel must use a home mooring."

23. On the Claimant’s own recognition therefore, Halcyon Daze is not required to

use its home mooring for any prescribed amount of time. In any case, Halcyon Daze

is in regular daily use elsewhere on the River Trent.

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24. The decision to refuse a new Certificate based on my non-use of my genuine,

paid-for mooring is contrary to established precedent by which this court is bound.

In the case of Moore v British Waterways the last surviving boat – ‘Gilgie’ – was

acknowledged in para. 5 of the Order of Mr Justice Hildyard to be validly licensed and

entitled to cruise “British Waterways managed inland waterways in accordance with

the terms and conditions of the licence issued in respect of the vessel ‘Gilgie’”.

25. It was clearly established in the trial of the case that ‘Gilgie’ had at all times

since August 2007 been validly licensed on the basis of her declared, genuine home

mooring on the tidal Thames nearby. It was also clearly recognised that at no time

between 2007 and 2012 had ‘Gilgie’ ever returned to that mooring.

26. The decision of the High Court judge that ‘Gilgie’ was validly licensed and

entitled to cruise BW waters on that basis, is clear precedent that a boat needs only

to have a genuine home mooring available for use - without any necessity to actually

use it – in order to comply with s.17(3)(c)(i). [AD5]

27. The eventual validation of the mooring at which ‘Gilgie’ was situated at the

time of the s.8 Notice, gives Appeal Court sanction to the understanding that for so

long as any alternative mooring/s utilised during the term of the licence are

themselves lawful, no breach of the relevant condition exists.

28. The action of the Claimant in refusing to grant a new Certificate for the

reasons they have given is therefore unjustifiable. Bringing this action on the grounds

that their unlawful refusal entitles them to the ultimate sanction, is therefore an abuse

of process. The action should be summarily dismissed on this basis alone.

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ISSUE 3: WHETHER HALCYON DAZE IS BEING USED FOR NAV IGATION

29. Halcyon Daze is in regular use for navigation. On most days I drive Halcyon

Daze a distance of between 2 and 3 miles to the vicinity of Meadow Lane Lock,

Nottingham. I do so because I own a commercial barge Selby Michael which is

moored on the River Trent navigation near Meadow Lane Lock by Nottingham Forest

football ground. I am a commercial barge and tug skipper by trade and I hold a

Commercial Licence for Selby Michael issued by the Claimant.

30. I visit Selby Michael regularly in order to ensure that it is safe on its moorings;

that its mooring ropes are the right length for the depth and flow of water and to carry

out routine maintenance. It has been laid up in recent months but I carry goods with

Selby Michael when I am contracted to do so. There is no pedestrian or road access

to the mooring and there is a high fence separating the river bank from the land. The

only access to Selby Michael is by water.

31. On other days I drive Halcyon Daze a distance of between 5 and 6 miles to

Trevithick's boatyard at Lenton Chain, travelling via the Wide Hole a mile beyond it in

order to turn round. I do this in order to continue renovating my father's old boat, a

100-year old Dutch lifeboat which is out of the water in Trevithick's yard.

32. The only times that I have not made these journeys regularly since December

2011 is during the two weeks after 15th October 2012 when I was admitted to

hospital suffering from a respiratory illness; when the engine of Halcyon Daze had

broken down and I fitted a new part in April 2013 and when I fitted a replacement

engine in August to September 2013. On these occasions I informed the Claimant

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that I was unable to navigate and the Claimant gave permission for Halcyon Daze to

moor for longer than 14 days.

33. Weeks v Ross [1913] 2 KB 229 ; Crown Estate Commissioners v Fairlie

Yacht Slip [1979] SC156 and R v Goodwin [2006] 1 WLR 546 all provide definitions

of "navigation".

34. In Weeks v Ross the Court held that a passenger pleasure trip boat that

travelled back and forth along a mile and a half of river and canal at Exeter was

navigating. Bray J stated:

"In my opinion there could be no other proper finding than that the vessel was

used for navigation".

35. In Crown Estate Commissioners v Fairlie Yacht Slip the Court held that

navigation is:

"the action or practice of passing on water by vessels of all kinds", [concurring

with the Oxford Dictionary definition of navigation.]

36. In R v Goodwin the Court of Appeal held that:

"those authorities which confine 'vessel used in navigation' to vessels which

are used to make ordered progression over the water from one place to

another are correctly decided."

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37. Halcyon Daze is used on most days to travel from one place to another place

by water for the specific purposes that I have stated above. Therefore Halcyon Daze

is frequently bona fide engaged in navigation, as well as used for navigation.

ISSUE 4: WHETHER HALCYON DAZE IS A PLEASURE BOAT

38. s. 3(1) of the BW Act 1971 defines pleasure boats and houseboats:

"'pleasure boat' means a yacht, launch, randan, wherry, tender, skiff, gig,

dinghy, shallop, punt, canoe, float, or other ship, boat, vessel or craft but does

not include a vessel being used solely as a tug or for the carriage of goods or

a houseboat or a mooring stage or a pontoon"

"'houseboat means any boat or barge or any vessel or structure or any part,

remains or wreckage thereof whether or not the same shall be used or

intended to be used for human habitation but does not include any boat ,

barge, vessel or structure

(a) which is used bona fide for navigation ;

(b) which is on an inland waterway with the written consent of the Board for

the purpose of being broken up or disposed of; or

(c) which is owned or used by the Board; or

(d) which consists of a floating or fixed pier or jetty bona fide used by pleasure

boats".

39. A pleasure boat is not expressly defined as a boat that is “used bona fide for

navigation”, but it must be inferred that a vessel that is not "used solely as a tug or

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for the carriage of goods or a houseboat or a mooring stage or a pontoon" is “used

bona fide for navigation” and as the definition of "Houseboat" excludes vessels that

are "used bona fide for navigation" then Halcyon Daze cannot be a Houseboat under

this Act.

40. It is an important point to note that the classifications are mutually exclusive.

41. It is further important to note that the phrase refers to “used for” navigation,

rather than “engaged in” navigation. Most validly classified “Pleasure Boats” spend

most of their time in marinas; they do not become “Houseboats” by reason of their

not engaging in navigation for those extended periods.

42. It is specifically irrelevant to these definitions whether Halcyon Daze is my

home, contrary to the assertion of the Claimant in paragraph 12 of the witness

statement of Stuart Garner. [see the statutory definition above – “whether or not the

same shall be used or intended to be used for human habitation”. ] Therefore

Halcyon Daze is a Pleasure Boat. A home mooring being available for Halcyon Daze

[and all other legal stipulations met], it is mandatory for the Claimant to issue a

Pleasure Boat Certificate for the vessel.

ISSUE 5: WHETHER HALCYON DAZE HAS COMMITTED MOORING OFFENCES

43. The Claimant alleges that I have overstayed at Holme Lock. Holme Lock is

situated within Holme Lock Cut. Holme Lock Cut is a quarter of a mile long. The

North side of Holme Lock Cut is in Colwick and the South side of Holme Lock Cut is

in Holme Pierrepoint adjacent to the National Water Sports Centre.

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44. I use Halcyon Daze on most days to travel along the River Trent Navigation to

other places, frequently to travel to Lenton Chain; the Wide Hole, and Meadow Lane

Lock. In addition I have moored Halcyon Daze in several different places within

Holme Lock Cut both on the Colwick side and on the Holme Pierrepoint side.

45. The Claimant defines "overstaying" in this context as mooring for longer than

14 consecutive days in one place. I have not moored Halcyon Daze for longer than

14 days at Holme Lock or within Holme Lock Cut except with the permission of the

Claimant. This is conceded by the Claimant in its letter of 3rd December 2013.

46. The Claimant's briefing paper [AD6] on Non-Compliant Continuous Cruising of

27th September 2012 states on page 6 that:

"Visitor moorings are differentiated from casual moorings along the towpath

(where the time limit for staying in any one place is 14 days) by (as a

minimum) welcome signs, shorter time limits and mooring rings. They are

typically located at access points convenient for nearby shops and services.

What they currently lack is an indication of permissible return times. This of

course makes it difficult to enforce since boaters may legitimately move away

for as little as 24 hours and then return. We are planning new signage which

will make clear the number of days in a calendar month that a boater may

make use of a visitor mooring."

47. Leaving aside the issue of whether there are in fact official Visitor Moorings at

Holme Lock, the Claimant makes it clear in this document (written to inform its

Trustees of the legal and policy framework regarding a particular issue) that it is

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legitimate to move away from a specific mooring and return 24 hours later in the

absence of signs prohibiting return. There are no such signs in the vicinity of Holme

Lock Cut. It follows that I am not prohibited from using Halcyon Daze to navigate in

this way; in paragraphs 38 and 39 of Moore v British Waterways [2013] EWCA Civ

73, the Court held that:

"England, it may be said, is not a country where everything is forbidden except

what is expressly permitted: it is a country where everything is permitted

except what is expressly forbidden."

48. The essence of the complaint is that I have not cruised according to the

guidelines referred to above, for those licensed according to s.17(3)(c)(ii), making my

moorings consequently unlawful. The charge ignores the fact that as I was licensed

under s.17(3)(c)(i), I was, as CaRT records my having said to the Enforcement

Officer, not obliged to cruise according to any such requirements, whether as

interpreted by CaRT or in any other way.

49. That my understanding of the differing requirements under the two ‘classes’ of

pleasure boat licence is in fact shared by CaRT, is demonstrated by the written

answers provided by Jackie Lewis [CaRT’s head of legal] to the National Association

of Boat Owners, as published recently in their July 2014 Newsletter. [AD7] In

response to the question: “When a boat leaves its marina mooring and enters the

canal does it become a continuous cruiser?”, Ms Lewis replied: “No. If the boater in

question has a home mooring in the marina, they do not (indeed cannot by definition)

become a boat without a home mooring when they leave the marina. As stated under

point 1 above, sections 17(3)(c)(i) and 17(3)(c)(ii) are mutually exclusive .”

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50. Ms Lewis was asked: “A boat leaves a marina in April to spend the next two or

three months cruising. Is it subject to the bona fide navigation requirement (e.g. from

A to B and thence to C)?” Her answer: “As in question 3 above, if the boater in

question has a home mooring in the marina, they will not be subject to the bona

fide navigation requirement under section 17(3)(c)( ii). However they will be

subject to the Trust’s licence terms and conditions and will be required to cruise and

only moor for short periods of up to 14 days in one place whilst cruising away from

their home mooring.”

51. Especially relevant to the present charge that my home mooring is not

genuine, so that I must be treated as a s.17(3)(c)(ii) licensee, is her response to

“What is meant by a ghost mooring?” She wrote: “A ‘ghost mooring’ is a term used to

describe a mooring that cannot legitimately be a ‘home mooring’ as required by

section 17(3)(c)(i) but attempts are made to use it as such. In other words it is a

sham arrangement to avoid the need to obtain a genuine home mooring. Examples

include a single mooring that is let to a number of boaters who couldn’t all possibly

use the same mooring, or a fabricated mooring address that doesn’t exist in reality. A

mooring that is nowhere near the area in which a boater is cruising so that it is never

used would also constitute a ‘ghost’ mooring.” The court should appreciate that none

of these exampled characteristics apply to my situation.

52. I maintain that I am entitled to rely on the representations of CaRT as above.

53. The list of sightings provided by the Claimant is not an accurate record of the

movements of Halcyon Daze. The Claimant has failed to record the almost daily use

of Halcyon Daze to travel to Lenton Chain, the Wide Hole or Meadow Lane, and has

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also failed to record that Halcyon Daze has not been moored at any location within

Holme Lock Cut for longer than 14 days except where the Claimant has given

permission to stay longer.

54. The Claimant has produced sightings of Halcyon Daze that purport to allege

that the boat has been seen moored on its property. There is a wall on the North side

of Holme Lock Cut, in Colwick, that is owned by the Environment Agency. I often

moor Halcyon Daze there overnight. The Environment Agency being the riparian

owner, I do not require the Claimant's permission to moor to the Environment

Agency's wall.

55. The evidence of the Claimant’s witness Mr Garner must be held as

questionable, given that this is not the only instance in which he has relied on reports

such as those exhibited, to issue s.8 and s.13 Notices in circumstances where the

boater, allegedly at least, claims to have the ability to prove that his cruising pattern

was more than compliant with any CC’ing requirements, even as interpreted by

CaRT. The most recent example of many, is evidenced in an internet forum [AD8] -

http://www.canalworld.net/forums/index.php?showtopic=68619

“Just got one !! [a s.8 Notice] This is despite being in touch with the local mooring

officer AND the enforcement officer (stuart Garner)

Got a pre CC1 a few weeks ago for not travelling far enough (no over staying) but the

information CRT had via the data loggers was way out by a country mile, and I can

back this up with witnesses that are ALL CRT staff.”

“. . . So I come home from work today to find a section 8 notice ?????”

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“The crt say I have only moved a distance of 10km over several months when in fact I

have travelled to the head of navigation (chesterfield canal) and back to the Trent, a

total of around 70 miles. This included 8 locations on the way out and 7 on the way

back. Apart from one 24hr visitor mooring (the Boat Inn at Hayton) none of my stops

were on visitor moorings and none were longer than 14 days (I have not been

accused of over staying)”

56. This situation, where presumptions can be made as to patterns of use and

times at moorings based on infrequent sightings, has been a genuine concern for

many compliant boaters who cannot necessarily positively prove the extent of their

movement, and this case exemplifies the problem.

ISSUE 6: WHETHER BREACH OF CRT BOAT LICENCE CONDITI ONS 2.1, 3.1,

7.2 AND SCHEDULE 2 ENTITLES REVOCATION OF THE LICEN CE

57. The Claimant alleged on 3rd December 2013 that "we consider you have

broken the Conditions of your Licence as you have been moored at Holme Lock

Visitor Mooring for longer than 14 days and/or have not been mooring for short

periods whilst cruising".

58. The Claimant alleges that I have breached conditions 2.1, 3.1, 7.2 and

Schedule 2 of the General Terms and Conditions for Boat Licences.

Condition 2.1 states: "The Licence allows you to use the Boat in any Waterway

including mooring for short periods while cruising. ‘Short period’ means up to

14 days or less where a local restriction applies. The Licence does not permit

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mooring for any longer period. Daily charges may be applied for staying longer

than the maximum time allowed."

Condition 3.1 states: "The Licence does not allow you to moor the Boat in any

Waterway except for short periods whilst cruising (see Condition 2.1 above).

This Licence does not give a right to moor that is sufficient to meet the

requirement in the British Waterways Act 1995 for the Boat to have a Home

Mooring."

Condition 7.2 states: "You must comply with Navigation Rules (details of which

are set out in Schedule 5), relevant Acts, Bye-Laws and Regulations and

follow our lawful directions, spoken or written (including signs). This includes

signs that prohibit mooring or limit the period you may moor the Boat at

specific locations."

Schedule 2 states: "The boat must have a home mooring (as defined in the

Licence Terms and Conditions) – somewhere you can lawfully leave your boat

when it is not being used for cruising."

59. The Claimant provided no definition of “cruising” in its letter of 3rd December

2013 save to refer to the guidance for boats licensed without a home mooring

("continuous cruisers") under s.17(3)(c)(ii) of the British Waterways Act 1995:

"Cruising involves using your boat genuinely for navigation to go on a journey.

I refer you to the section of the Licence General Terms and Conditions headed

“Guidance for Boats Without a Home Mooring” which sets out the definition of

23

navigation and confirms that the terms “cruise” and “cruising” used within the

guidance refers to using a boat genuinely for navigation."

60. As Halcyon Daze was licensed under s.17(3)(c)(i), with a home mooring, it

was and is not required to meet the alternative conditions specified in the guidance

for "continuous cruisers".

61. The Claimant also stated:

"As such when your boat is not going on a journey, the Licence makes its clear

that your boat should be kept at your home mooring at Barton in Fabis."

62. I refer the Court to Issue 2 above; paragraphs 6.3 to 6.6 of the judgment of

HHJ Halbert in the case of CaRT v Geoff Mayers , and to the comments of CaRT’s

Head of Legal in para.s 49-51 above.

63. The Claimant has declined to provide a definition of "cruising" that is

applicable to boats licensed with a home mooring under s.17(3)(c)(i). In a Freedom

of Information response dated 23rd June 2014 to Allan Richards, the Claimant stated:

"With regard to the use of the term "cruising" in the Canal & River Trust's

General Terms and Conditions for Boat Licences (Ts and Cs), the Trust has

not published any information that defines the term. Furthermore "cruising" is

not defined in any the legislation relating to cruising of boats in the inland

waterways owned and managed by the Trust.

24

In the absence of a definition of the term in the above mentioned legislation

and in the Trust's Ts and Cs, the term will have its ordinary dictionary meaning.

The term in dictionaries suggest that cruising involves movement/travel. In the

Oxford and Cambridge online dictionaries and Law Dictionary online for

example...".

64. Law Dictionary Online gives the following definition of "cruise":

"A voyage or expedition in quest of vessels or fleets of the enemy which may

be expected to sail through any particular track of the sea, at a certain season

of the year the region in which these cruises are performed is usually termed

the rendezvous or cruising latitude. When the ships employed for this purpose,

which are accordingly called cruisers .....".

65. Cambridge Dictionary Online gives the definition:

"a journey on a large ship for pleasure, during which you visit several places".

66. Oxford Dictionary Online gives two main definitions, one relating to vehicles

and aircraft and the other relating to boats:

"Sail about in an area without a precise destination, especially for pleasure"

with an example use of: "she cruised the canals of France in a barge".

67. The Claimant was asked by Mr Richards to confirm the Oxford Dictionary

Online definition of "cruising" but declined to do so on 4th July 2014. [AD9]

25

68. In paragraph 96 of the judgment in Moore v British Waterways [2012] EWHC

182 (Ch), Hildyard J stated that following the authority of Proprietors of the

Stourbridge Canal v Wheeley [1831] 2 B & Ad 792 , the Claimant:

"'...can claim nothing which is not clearly given to them by the Act(s).' I accept

this; and thereby both implicit parts of the proposition, being (a) the BWB, not

being a natural person but a creature of statute, has only those powers with

which it is endowed by statute and (b) in the event of ambiguity, such powers

should ordinarily be strictly construed if a wider construction would deprive a

member of the public of an existing right."

69. Swan Hill Developments & ORS v British Waterways Bo ard [1997] EWCA

Civ 1089 and McCarthy and Stone (Developments) Ltd v Richmond up on

Thames LBC [1989] UKHL 4 endorse this principle.

70. In purporting to modify the definitions in s.3(1) of the British Waterways Act

1971 and the requirements set for boats licensed under s.17(3)(c)(i) of the British

Waterways Act by means of the General Terms and Conditions for Boat Licences, the

Claimant is acting ultra vires. Statutes are not modifiable other than by Parliament.

71. In paragraph 109 of Moore v British Waterways [2012] EWHC 182 (Ch) ,

Hildyard J stated that s.43(3) can be applicable -

"provided that [the Claimant] has the means of imposing those terms and

conditions (in right of ownership, by consent or by permissible Bye-laws)".

26

72. See also McCarthy and Stone v London Borough of Richmond upo n

Thames [1992] UKHL . A statutory authority can make no charge other than those

expressly permitted by statute. s43(3) of the Transport Act 1962 is a conditional

clause subject to the relevant limitations of the prior Acts, applicable only to those

powers to charge within those enabling Acts.

73. The rights of the Claimant to set terms and conditions by means of s43(3) of

the Transport Act 1962 is tied to the services and facilities provided for which powers

to charge were granted. s43(3) of the Transport Act 1962 is not a blanket catch-all; if

it had been, then much of the subsequent Acts (the British Waterways Acts of 1971,

1974, 1975, 1983 and 1995 for example) would not have been necessary.

74. Hildyard J continued in para.112: "Put shortly, even if the 1962 Act empowered

BWB to impose terms and conditions for user by way of permanent mooring, I have

not been persuaded that BWB has ever validly exercised such power."

75. The Claimant claims that s.43(3) of the Transport Act 1962 empowers it to

impose contracts such as the General Terms and Conditions for Boat Licences. In

Attorney General v Wilts United Dairies [1921] 37 T LR 884 the Attorney General

had argued that the levying of certain charges, whilst not perhaps expressly or

impliedly provided for by statute, was nonetheless a contractual matter of agreement

between the parties. Atkin LJ stated clearly, in response to this argument:

"It makes no difference that the obligation to pay the money is expressed in

the form of an agreement. It was illegal for the Food Controller to require

such an agreement as a condition of any licence . It was illegal for him to

27

enter into such an agreement. The agreement itself is not enforceable against

the other contracting party ..." [my emphasis in bold]

76. The Claimant's own published policy statement of August 2010 [AD10],

"Moorings along the banks of BW Waterways", in giving an "Overview of BW’s

statutory framework", correctly states:

"The British Waterways Act 1995 limits to three specific criteria our ability to

refuse to licence a boat." Having listed those criteria, it continues: "There are

no statutory provisions for BW to refuse a licence on the grounds of say,

congestion..."

77. That being so, the Claimant cannot refuse to issue a licence on the grounds,

for example, of failure to agree to accept terms and conditions. On its own showing,

therefore, any claim that it could refuse a licence except upon agreement to extra

conditions is contradictory. If s.17 of the British Waterways Act 1995 limits the

Claimant to just the three specific refusal criteria, it has no power to impose others.

78. The insistence on acceptance of terms and conditions that go beyond the

statutorily empowered ones therefore, is ultra vires.

79. In this respect I note that the 1995 Act differentiates between Pleasure Boat

and Houseboat consents, in that for the Houseboat consent ONLY, by reason of s.14

of the 1971 Act, the consent is subject to published terms and conditions, copies of

which [if not incorporated into the Certificate] must be available and referred to in the

Certificate. No such provision attaches to issue of Pleasure Boat consents.

28

80. In any event, I have complied with the licence conditions that the Claimant

alleges I have breached.

81. I have complied with Conditions 2.1 and 7.2 because I have not moored

Halcyon Daze for periods of longer than 14 days in any one place except with

permission from the Claimant. I have not breached any local restrictions that specify

a mooring time limit of less than 14 days; no signs exist at the location where the

Claimant alleges I have breached these conditions.

82. I have complied with Condition 3.1 and Schedule 2 because I use Halcyon

Daze most days to travel to different places along the River Trent Navigation. Since

Halcyon Daze is in use for navigation on most days, it is not being kept or left at

Holme Lock and no lawful necessity compels it to return to its home mooring.

83. The Claimant has not provided any evidence that I did not put things right as

requested by the Claimant's letter of 3rd December 2013. The sightings of Halcyon

Daze between 3rd December 2013 and 2nd January were taken at intervals of 14

and 15 days, this is too infrequent to provide reliable evidence that Halcyon Daze

had not navigated to other places and returned to Holme Lock Cut.

ISSUE 7: WHETHER THE CLAIMANT ACTED ULTRA VIRES IN TERMINATING

AND REFUSING THE LICENCE OF HALCYON DAZE

84. s.17(4) and s.17(5) of the British Waterways Act 1995 define the reasons why

a boat licence issued under s.17(3) may be terminated. These reasons are:

29

(4) If—

(a) (subject to subsection (6) below) the vessel does not comply with the

standards applicable to the vessel on the date when the consent was granted;

or

(b) an insurance policy is not in force in respect of the vessel; or

(c) either—

(i) (in the case of a vessel in respect of which a relevant consent is issued

pursuant to subsection (3) (c) (i) above) it appears to the Board that a mooring

or other place such as is referred to in subsection (3) (c) (i) above is not

available for the vessel; or

(ii) (in the case of a vessel in respect of which a relevant consent is issued

pursuant to subsection (3) (c) (ii) above) the vessel has not in fact been used

bona fide for navigation in accordance with the said subsection (3) (c) (ii);

the Board may give notice requiring the holder of the relevant consent to

remedy the default within such time as may be reasonable (not being less than

28 days).

(5) If the holder of the relevant consent does not comply with any notice

served pursuant to subsection (4) above then the relevant consent shall

determine on the date the notice expires.

85. I have provided accepted evidence [see AD1] that a home mooring is

available for Halcyon Daze as defined in s.17(3)(c)(i). Therefore I am not required to

comply with s.17(3)(c)(ii), else having the two distinct conditions is redundant. The

Claimant maintains that it terminated the licence of Halcyon Daze for breach of

mooring guidance. Termination of a boat licence for a reason that is not defined in

s.17(4) is ultra vires.

30

86. The Claimant has applied the wrong test in later claiming not to be satisfied I

have a home mooring; the test is whether it is available, not whether I use or intend

to use it for some unstated [and legally unquantifiable] minimum period.

ACTIONS OF THE CLAIMANT

87. The Claimant terminated the licence of Halcyon Daze on 3rd January 2014.

The licence had a further 6 months to run. Termination of a boat licence by the

Claimant means that a boat is treated by the Claimant as an unlicensed boat.

88. S.8(1) and s.8(2) of the British Waterways Act 1983 state that the Claimant

may remove "any vessel which is sunk, stranded or abandoned in any inland

waterway or in any reservoir owned or managed by the Board or which is left or

moored therein without lawful authority and includes any part of such vessel".

89. "Without lawful authority" in this context can only mean without a relevant

consent as defined in s.17(1) of the British Waterways Act 1995. Halcyon Daze is not

sunk, stranded or abandoned. The Claimant has unreasonably and unlawfully

revoked the relevant consent, so that the absence of lawful authority for Halcyon

Daze to use the waterways is a situation of the Claimant's own unlawful creation.

UNLAWFUL USE OF S.8 BRITISH WATERWAYS ACT 1983

90. The Claimant is acting ultra vires in applying for an injunction alongside the

Declaration it seeks. S.8 of the British Waterways Act 1983 does not empower the

Claimant to obtain an injunction imposing sanctions beyond what Statute provides.

31

PUBLIC RIGHT OF NAVIGATION ON RIVERS

91. I navigate on the River Trent Navigation and my home mooring is situated on

the River Trent Navigation. Until the Claimant terminated the licence of Halcyon Daze

the vessel was licensed with a Rivers Only licence [Pleasure Boat Certificate]. The

River Trent Navigation is a natural river. A common law Public Right of Navigation

has existed on all navigable natural rivers since Time Immemorial and is recorded in

the Magna Carta of 1215. The Public Right of Navigation extends to those parts of

natural rivers that have been canalised or diverted in order to improve navigability;

see Moore v British Waterways [2009] EWHC B12 (Ch) .

92. The British Waterways Act 1971 confers the power to the Claimant to make a

charge for registration of pleasure boats kept or navigated in the main navigable

channel of the rivers listed in Schedule 1 of the Act; Schedule 1 includes

"The Trent Navigation from the tail of Meadow Lane Lock, Nottingham, to

Gainsborough Bridge".

93. The Public Right of Navigation on rivers means that the Claimant is required to

issue a Pleasure Boat Certificate if the conditions defined in the British Waterways

Act 1971 are met. This is mandatory. This requirement on the Claimant is reflected in

the wording of s.6(1) of the British Waterways Act 1971. This states that:

"The Board, on payment to them for the registration of any pleasure boat ...

together with such additional information as the Board shall, from time to time,

determine, shall ... (c) issue to the applicant a pleasure boat certificate..."

32

94. The "additional information" referred to above is further defined in s.17(3) of

the British Waterways Act 1995. It is not in dispute that the additional information

required by s.17(3)(a) and s.17(3)(b) exists and has been provided by me. What is

disputed by the Claimant is the third and final requirement defined in s.17(3)(c)(i).

The Claimant disputes whether "a mooring or other place where the vessel can

reasonably be kept and may lawfully be left" (a "home mooring") is available for

Halcyon Daze.

95. A home mooring is available for Halcyon Daze and therefore the Claimant

acted ultra vires in refusing my renewed application for a Pleasure Boat Certificate

for Halcyon Daze, following the revocation of 3rd January 2014. The terms of the

British Waterways Act 1971 in conjunction with s.17(3)(a), (b) and (c)(i) of the British

Waterways Act 1995 and the Public Right of Navigation mean that the Claimant must

grant a licence for Halcyon Daze on payment of the licence fee and provision of the

required information. This is not discretionary. This is in contrast to the artificially

constructed canals where the Public Right of Navigation was abolished by the s.105

of the Transport Act 1968. This is why the Pleasure Boat Certificate for the scheduled

rivers exists, and why it is different from the Standard Canal and River Licence.

96. In Crown Estate Commissioners v Fairlie Yacht Slip [19 79] SC156, the

Court held that there is a right to moor temporarily in the course of navigation where

a Public Right of Navigation exists. However the Court made no finding regarding

what length of time constitutes "temporary". Therefore in exercising my right to

navigate on the River Trent Navigation I also have the right to moor for temporary

periods. Temporary periods includes mooring overnight and mooring for the purpose

of carrying out maintenance and repairs and during periods of illness.

33

INTERPRETATION OF PRIVATE OR LOCAL ACTS OF PARLIAMENT

97. The British Waterways Acts of 1971, 1983 and 1995 are Private Acts of

Parliament. Private or Local Acts have to be construed in favour of the public where

there is any real doubt as to their meaning.

98. Halsbury’s Rules of English Law Volume 44 (1) paragraph 1497 states:

"Where there is any real doubt as to its meaning, a Private Act must be

construed strictly against the promoters. It follows that, as between the

promoters and members of the public, a Private Act shall be construed liberally

in favour of the public, so that

(1) Clauses to preserve general rights will be widely interpreted.

(2) Clear words must be used to impose a charge on individuals or to deprive

individuals of earning rights...".

99. Historically the purpose of this was to protect the rights of the public from the

commercial interests of the canal companies. The rights would originally have been

Public Rights of Navigation and/or use of the waterways or adjoining land and rights

to exemption from tolls or charges for such use. Such rights were either affirmed or

created by the original canal Enabling Acts (such as the Trent and Mersey Canal Act

1766). This rule ensures that the commercial and other activity enabled by the

Private or Local Act does not impinge on the rights of the public.

100. This case is a dispute about the interpretation of s.17(3)(c)(i) of the British

Waterways Act 1995 and s.3(1) and s.6(1) of the British Waterways Act 1971.

34

Therefore there is doubt about the meaning of these provisions. It follows that the

Claimant has not construed either of these Acts liberally in favour of the public.

101. Although the Claimant is a charitable company exercising statutory powers, its

activities are run on a commercial basis as far as possible. Indeed, this has been the

case for many years; its predecessor British Waterways agreed objectives with the

Department of the Environment on 31 July 1984, which included:

"General: 1) Consistent with its statutory powers, the Board should so far as

practicable run its affairs on a commercial basis."

102. In context of this matter the rule of interpretation protects a member of the

public, who holds a boat licence, against an interpretation of the British Waterways

Acts 1995 and 1971 that places the commercial activities of the Claimant above my

right to exercise the Public Right of Navigation on the Claimant’s waterways .

103. The rules set out by Halsbury on the interpretation of Private or Local Acts of

Parliament have not been followed by the Claimant. The Claimant disputes my

compliance with these Private Acts. According to Halsbury's Rules the Court should

give me the benefit of the doubt and construe the British Waterways Acts 1971 and

1995 liberally in my favour.

UNREASONABLE REFUSAL TO LICENCE HALCYON DAZE

104. The Claimant has unreasonably refused to be satisfied that a home mooring is

available for Halcyon Daze. I have provided written evidence to the Claimant of the

35

nature of the mooring agreement; the name and address of the landlord that I rent

the mooring from, and the amount and frequency of payment of the mooring fee. The

Claimant is aware that the landlord I rent the mooring from also has a boat that is

licensed by the Claimant that is moored in the berth adjacent to my mooring.

105. The Claimant has renewed my boat licence without question each year until

now, on the basis of s.17(3)(c)(i). The most recent date that the Claimant renewed

the licence was 1st July 2013. S.17(3) of the British Waterways Act 1995 refers to the

need to satisfy the Claimant and/or for the Claimant to be satisfied that the conditions

in s.17(3) are met. They were so satisfied all those years, and cannot now, arbitrarily

and unreasonably, change their mind. The movement pattern of Halcyon Daze has

not changed since I first licensed the boat in July 2009, at a time when my home

mooring was with the Claimant.

106. I first rented the mooring in Barton in Fabis in December 2011, upon

termination of my previous mooring agreement with the Claimant. The Claimant then

renewed the licence in July 2011; July 2012, and July 2013, indicating that it was

satisfied that the conditions in s.17(3)(c)(i) were still being met.

107. Therefore the Claimant's decision to terminate the licence on 3rd January

2014 is unreasonable and the Claimant has acted unreasonably in exercising its

statutory powers, contrary to the authority of Associated Provincial Picture Houses

v Wednesbury Corporation [1947] 1KB 223 .

108. This action was also contrary to my Legitimate Expectation that the authority

would act consistently with its past acceptance of the mooring as being available.

36

109. The Claimant has acted irrationally in providing, at different times, five different

reasons for taking enforcement action and then for revoking the licence of Halcyon

Daze:

On 7th March 2014: "you have failed to satisfy us that either your boat is

lawfully moored at a home mooring or that you are continuously cruising"

On 26th March 2014: "if you make an application for a licence on the basis of

having a home mooring at Barton in Fabis we would not issue you with a

licence because we would not be satisfied that this mooring would be a place

where you intend to reasonably keep and lawfully leave your vessel"

On 27th March 2014: "If a home mooring has been declared in the boat

licence application then the boat is allowed to use the waterways for short

periods of 14 days or less where a local restriction applies."

On 10th April 2014: "We terminated your previous licence because you were

not complying with conditions 2.1 and 3.1 of the boat licence terms and

conditions... Your boat has been overstaying in locations along the waterway

owned and managed by the Trust."

On 27th June 2014: "The reason for our decision is because we are not

satisfied that the home mooring you have declared in the application form is a

genuine home mooring. We acknowledge that on 13th April 2014, Mr Woods

confirmed to us in writing that you were currently renting a mooring from him.

However we are not satisfied that this is a genuine arrangement."

37

ISSUE 8: WHETHER THE CLAIMANT HAS CONSEQUENTLY VIOL ATED MY

RIGHTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

110. Halcyon Daze is my home and therefore my rights to respect for my home

under Article 8 of the Convention are engaged. Halcyon Daze belongs to me and

therefore my rights to peaceful enjoyment of my possessions under Article 1, Protocol

1 of the Convention are engaged. I seek directions from the Court for the Claim form

to be amended to reflect this.

111. The Claimant is seeking unlawfully to dispossess me of the home which

belongs to me and to deprive me of my rights to use Halcyon Daze. Therefore my

Article 8 and Article 1, Protocol 1 rights would be violated if the Claimant obtains the

Order and Injunction it is seeking, contrary to the Human Rights Act 1998 [HRA].

112. Even if, which is denied, the authority were otherwise entitled to deprive me

of my home and property, the HRA invalidates the s.8 action because appropriate

alternative action has not been taken respecting the alleged breaches - the

underlying reasons why the licence was revoked and refused. The test of

proportionality in applying Statutes otherwise breaching the HRA must be applied

113. In de Freitas v Permanent Secretary of Ministry of Agr iculture, 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

38

connected to it; and (iii) the means used to impair the right or freedom are no more

than is necessary to accomplish the objective ."

114. The objective for the Claimant has been to make me conform to cruising and

mooring patterns of its choice. Where, and for so far as, they are entitled to limit use

of moorings under the byelaws, appropriate sanctions for breach of those are set out

by Parliament. The Claimant has never sought to implement any of the legitimate

sanctions for the alleged offences; their only recourse has been to what they and the

Courts have acknowledged as the most draconian power at their disposal.

115. 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.

116. For so long, therefore, as the Claimant has the less onerous means of

applying sanctions to ensure compliance with mooring restrictions, as laid down by

their legislation, then the application of the statute involving interference with my

Human Rights is incompatible with the HRA, and therefore illegitimate.

39

117. It is important for the court to recognise that the less onerous ways of

achieving CaRT’s legitimate objectives [providing that relevant offences were proven]

range from fines and daily penalties amounting to some hundreds of pounds, to

imprisonment for contempt of court. It cannot be rationally considered that these are

derisory sanctions of nil value to the authority in seeking to obtain its objectives.

118. It is a further consideration that in fact, the relief sought by the Claimant

amounts to a punitive only sanction rather than to encouragement of compliance. If

there is a question of whether any particular boat is legitimately present on the

waterway – whether being navigated or simply kept at a mooring – then the logical

desired operational end is to ensure that the boat obtains the “relevant consent” to be

on the waterway. Removal of the boat from the jurisdiction cannot attain that end.

119. It is further worth noting the reference made Mr Justice Hildyard to the relevant

Select Committee minutes relating to the 1995 Act. British Waterways had

acknowledged to the Committee that s.8 powers were of a draconian nature, the

exercise of which in most circumstances was almost inconceivable, and which were

entirely inappropriate as an enforcement tool to control moorings – which was their

rationale for seeking more mooring controls.

120. Regarding the charge of being on the waterway without lawful authority, even

supposing I was in violation of the law in navigating the river without the Pleasure

Boat Certificate, a “less onerous” sanction is provided for by way of summary fine

and daily fine, so that the legitimate aim of the authority can be accomplished without

impairing my Human Rights, so that here too, the HRA nullifies application of the

more extreme measures sought.

40

121. The British Waterways Act 1971 s.5(2) provides by way of sanction for the

offence of navigating the river waterway without a licence: “Any person who

contravenes subsection (1) of this section shall, for each offence, be liable to a fine

not exceeding twenty pounds and a daily fine of two pounds.” [This was later

amended to £50 and £5 respectively.]

122. Parliament having provided this means to accomplish the objective of having

all vessels using the navigation registered, the application of the s.8 procedure is

considerably “more than is necessary to accomplish the objective .”

123. For the argument “necessary for the efficient management” to hold water, their

actions need to be seen to be measured and proportionate to the specific, identified,

legitimate end; the generalisation is insufficient. Mr Justice Hildyard’s Supplemental

Judgment of 2013 [AD11] is apposite and applicable to this present case –

“In such circumstances, as it seems to me, I do not think I am obliged to accept

without question that BWB had good and sufficient reason to do what they did.”

ISSUE 9: WHETHER A LICENCE IS REQUIRED FOR HALCYON DAZE

124. s.4 of the British Waterways Act 1971 states:

Part II: Pleasure Boats

(1) This Part of this Act applies to the main navigable channel of each of the

inland waterways specified in Schedule 1 to this Act which channel so

specified is in this Act referred to as a "river waterway".

41

(2) The description of any waterway contained in the said schedule shall be

read subject to any order made by the Secretary of State for further defining

the waterway by reference to a map.

125. The Act specifically limits application of the Pleasure Boat Certificate to use of

the main navigable channel of the River Trent. For so long as my boat is moored out

of that channel, I need a Licence/Certificate only to navigate the river, so that s.8

eviction from the river altogether is inapplicable.

126. The 1971 Act Registration requirements were based specifically on the then

current statutory Thames Conservancy Registration requirements. [AD12] For the

EA waters only, this statute has now been amended to require all boats kept even

out of the main navigation channel, to be registered. The EA explanation of the

change in legal requirement is given on: -

https://www.whatdotheyknow.com/request/186513/response/463014/attach/3/WT125

66%20Response.pdf

“Prior to the Environment Agency (Inland Waterways) Order 2010 the Environment

Agency had no powers to enforce against any vessel that was not “in use” on the

Thames, irrespective of where the vessel was moored , e.g. in a marina, a

backwater or on the main channel of the Thames.

The significant change the 2010 Order introduced is for the requirement for any

vessel 'kept' on Environment Agency controlled waters to be registered, when

undertaking registration enforcement we make no distinction was a vessel is 'used' or

not, we also do not distinguish between private and non private marinas and

boatyards."

42

127. No such Statutory Instrument has been passed with respect to CaRT

waterways, and the BWB River Registration Certificate requirements remain identical

to those that had held sway on the Thames until the 2010 Order.

128. Certainly, my home mooring at Barton in Fabis is outside the main channel,

and a licence is not required to moor Halcyon Daze there or to use it outside the main

channel. At time of writing I am moored at my home mooring while I have work to

undertake on my neighbour/landlord’s boat, and no statutory power exists to

legitimately force me off this location. The Claimant’s instant action is therefore,

besides an abuse of my Human Rights, also an abuse of process.

129. I will wish, however, to use Halcyon Daze for navigation throughout the River

Trent Navigation as hitherto, and I wish to purchase a Pleasure Boat Certificate in

order to legitimately do so. Having fulfilled all the statutory requirements for obtaining

this, neither the revocation of my previous licence nor the refusal of my renewed

application can be upheld in law. I ask the court to order the issue of my Certificate.

DECLARATION

I believe the facts stated in this statement are true.

Anthony Dunkley

Defendant

28th July 2014

43

CLAIM No. AOONG769

IN THE NOTTINGHAM COUNTY COURT B E T W E E N CANAL & RIVER TRUST

CLAIMANT

- and - ANTHONY DUNKLEY

DEFENDANT

DEFENCE OF DEFENDANT 28TH JULY 2014