forced to agee to contract

[waterworks]

I live on a canal boat, and buy a yearly licence for my boat, the authority in charge of the canal is demanding that I agree to their own terms and conditions contract before they renew my licence. However the licence is entirely issued under 3 statutory conditions set out in the 1995 BW act section 17 ( 3), as I understand it no contract can try to override statute.

Should I just agree to the contact in the knowledge that it is unlawful, and unenforceable or should I refuse, let them break the law by refusing my licence, and end up in court when they seek a court order to remove my boat from their waterways ?

If I agree to it I will then be in the same position if they revoke my licence due to breach of contract, which would be just as illegal.

[des8]

Re: forced to agee to contract

Hi and welcome
The different authorities for different waterways all seem to have separate terms and condtions.
Is there a particular T&C you object to, or is this a matter of principle?

Obviously the terms and conditions cannot override statute

[waterworks]

Re: forced to agee to contract

Well they are saying to me in writing that they will refuse my licence unless I agree to this contract, and claiming the absolutely stupid idea that the 1962 transport act gives them the authority to put their own conditions on a statutory licence, these licences were not " invented" until 1975 ! The licences are issued under the three conditions set out in the 1995 BW act section 17 (c).

The authority is trying to con licence holders into believing the licence is subject to contract, so they can get around their statutory duty, which limits what they can do.

This "contract" is regularly revised without any agreement from the licence holder, while its only got a few unlawful terms in it now, there is no telling what it may change to in future, so in principle I would rather not agree to it.

[des8]

Re: forced to agee to contract

Have you read the Transport Act 1962 (which has not been repealed)?
Ask them which section of that act they refer to.

[des8]

Re: forced to agee to contract

Refer transport Act 1962 sec 43 (3)
Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the [F5British Waterways Board[F6and Canal & River Trust]F7...]shall[F8each]have power to demand, take and recover[F9or waive]such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit.

[waterworks]

Re: forced to agee to contract

Yes they claim section 42 allows them to do this, though at first glance and out of context it does read like that, but I assure you that it has to read it in context with prior acts, I am not an expert, but there is one, and he can explain it in detail. Without going into detail If this section allowed this, all the further acts would be overridden and pointless, and there are around ten more up to 1995, and in 1962 they must have boarded a time machine to 1974 when mandatory licences were first introduced, in 62 there was a public right of navigation on all our canals. These two facts alone prove that the 62 act could not possibly apply to licences ?

[des8]

Re: forced to agee to contract

Can you provide a link to the Terms and Conditions to which you object, please?

[waterworks]

Re: forced to agee to contract

I don't object to the terms and conditions as such, I object to them creating a contract as a precondition to the issue of a licence, which is statutory. They may or may not be entitled to create a contract for use of their facilities, but it can't override the statute in the 1995 BW act that sets the three conditions for the issue of a licence, or revocation of it.

You notice the quote you highlighted in red does not mention licences, only services and facilities.

[des8]

Re: forced to agee to contract

can you, and do you, operate your boat without the use of their facilities?

[waterworks]

Re: forced to agee to contract

No, but that is not the point, is it not unlawful to demand agreement to a contract before carrying out a statutory duty ?

Like I said previously I may agree to a contract to use their facilities, but this does not affect my licence in any way.

I will have to post this long quote from an expert in canal legislation before we can go any further, which should explain things. I do not claim its right or wrong, as this hasn't been proven in court yet.

" The issue of boat licences is NOT a matter of contract, certainly as ordinarily understood; it is a matter of statutory obligation.

As CaRT inconsistently recognise: issue of a boat licence upon a paid for application is mandatory if the 3 statutory obligations on the boat owner have been complied with. Both applicant and issuer are bound to conform to that regulatory framework. IF it could be said that this was a matter of contract, then those are the ONLY terms applicable to it.

In itself, that disposes of the OP’s questions. I would add only that “interpretations” of the law [more accurately perhaps, ‘understanding’ of the law] is obligatory for both parties in the matter. That is not an “add on” of course. However, within the bald statements from CaRT regarding issue of licences, their obligation to issue the licence on compliance with those statutory conditions is acknowledged, as is their inability to impose further unilaterally contrived conditions such as boat appearance etc. So the interpretation aspect appears to be uncontentious.

Having said that, my description of their recognition as inconsistent arises from the additional claims made by CaRT elsewhere, that the licence IS a matter of contract dependant upon compliance with unilaterally imposed Terms and Conditions, such that breach will entitle revocation. That is clearly erroneous.

I have said it before, but it needs saying again: keeping and using a boat on the canals is conditional upon obtaining a licence for the boat [which is to be issued on compliance with the statutory requirements]; failure to obtain that licence carries specified penalties.

Use of the canals by that licensed boat is conditioned by further requirements, breaches of which carry their own specified penalties [which do NOT include revocation of the licence].

CaRT, as was the case with all their predecessors, are entitled to impose further conditions of use of the canals [that are not tied to the boat licence] through the medium of byelaws, which will carry the specified penalties for breach. These must be sanctioned by the Secretary of State. Without such sanctioned byelaws, there can be no penalty for breach of a unilaterally imposed condition; such conditions will remain advisory codes of conduct without penalties.

There are plenty enough of byelaws conditioning how a licensed boat may use the canals [referenced within the licence “T&C’s”], and breach of any of them could cost you a not insignificant amount and a criminal record; what it cannot do is entitle revocation of the licence.

The questions would never arise had not CaRT [as BW before them] attempted to govern licence issue by such circumlocutory and entangling methods, the only point of which appears to be streamlining enforcement by limiting that to the most draconian weapon in their arsenal. On the whole, I would observe that they are largely successful on the practical front, regardless of legalities.


What is of more importance is that C&RT are not using the 1995 BW Act to reference their T&C's against but the much more dubious S43 (3) of the 1962 Transport Act.

Well they do reference many terms and conditions to the byelaws, which, as I have said, are valid conditions for use of the waterways but not relevant to issue of the licence. The distinction has to be made between conditions for issue of the boat licence, and conditions governing the licensed boat’s use of the waterways.

The conditions under which licensed boats may enjoy the use of the waterways are laid out in the byelaws sanctioned by Parliament over the years since 1965 – which now include the requirement to hold a boat licence.

As to s.43(3), mandatory boat licences were not in existence at the time of the 1962 Act, and all canals and rivers then enjoyed a public right of navigation, such that law forbad the demand for such licences, let alone the levying of charges and the setting of conditions for them.

It was not until 1968 that conferred rights of navigation were abolished; not until 1975 that byelaw making powers were extended to control entry onto, keeping and using boats on the canals; not until 1976 that the pertinent byelaw was introduced making a boat licence a mandatory condition for keeping and using a boat on the canals, and not until 1995 that statutory conditions were laid down for issue of those, compliance with which conditions made issue mandatory.

So even setting aside my own arguments over the breadth of application of s.43(3) in general, it is difficult to see how the 1962 clause has room to apply in this case. Supposing that it would otherwise apply, the terms of the 1995 Act would have nullified its application in this particular instance, the later Act taking precedence.

None of which invalidates the power of the byelaw conditions for everyone using the waterways; breach those at your financial and reputational peril, even if you can [under law anyway], retain your boat licence.

You're quite correct in what you say, . . . there is no "do anything you want" clause, despite what C&RT, and BW before them, would have people believe.

S.43(3) of the 1962 Transport Act simply gave BWB, and the other three Boards, powers to charge for and condition the use of the services and facilities each provided, and what it does state is :~

"Subject to this Act and to any such enactment as is PART III mentioned in the last foregoing subsection, the Boards shall have power to demand, take and recover such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit."
the board can set its own charges, and make use of its services and facilities as they see fit, which are subject to bylaws

The 'Boards' referred to are/were the British Railways Board, the London Transport Board, the British Transport Docks Board, and the British Waterways Board.

It is vital to note that S43(3) gives BWB [and thus their successors] the power to condition the 'use' of services and facilities, but NOT to condition the 'right to use' those services and facilities. Conditions of use were imposed, and enforced, initially by means of Byelaws, the breaching of which is a criminal offence punishable by a fine, and later via statute, with prescribed remedies for specific offences of non-compliance laid down within the relevant Act.

Also worthy of note, and something which completely destroys C&RT's claim that S.43(3) is a 'catch all' clause that gives them unfettered powers to do as they wish, is that if S.43(3) was as all encompassing and far reaching as they would have you belieS.43(8) of the 1962 Act defines 'services and facilities' with regard to BWB :~

"The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board, the use of any inland waterway owned or managed by them by any ship or boat."

Also worth bearing in mind is that at the time this legislation went onto the statute books there was a statutory Public Right of Navigation on canals, derived from the original enabling Acts, preventing the question, or possibility, of refusing permission for any vessel to be kept or used on any waterway from ever arising.

"I don't quite get the difference between what you said before "the use of" and "the right to use".

The conditions imposed on the 'use' of services and facilities regulated the manner of use and defined that which was/is allowed or not allowed, with trangressions [of Byelaws] being a criminal offence punishable by a fine, but it did not, and could not, include denying the right to use those services and facilities as a sanction for non-compliance with the conditions, due to the then continuing existence of the PRN on the canals.

The 1962 Act simply gave the newly formed British Waterways Board the powers to charge for and impose conditions on the use of all navigations it either owned or controlled but the statutory PRN, the right to use the navigation, remained in place on the canals. When the PRN on the canals was extinguished by the 1968 Transport Act it became a purchasable right [under later Acts] to use the navigations in the form of a boat Licence.

Later legislation, S.17 of the 1995 Act, defined/specified the only circumstances under which BW/C&RT can refuse/revoke a boat Licence or PBC for the scheduled river navigations.

Nigel Moore"

[des8]

Re: forced to agee to contract

So to go back to your first post, you stated the contract was unenforceable.
Hmm, not quite accurate as your quote above shows:
"It is vital to note that S43(3) gives BWB [and thus their successors] the power to condition the 'use' of services and facilities, but NOT to condition the 'right to use' those services and facilities. Conditions of use were imposed, and enforced, initially by means of Byelaws, the breaching of which is a criminal offence punishable by a fine, and later via statute, with prescribed remedies for specific offences of non-compliance laid down within the relevant Act."

You also intimated that if you agree the T&Cs, you would break them :"If I agree to it I will then be in the same position if they revoke my licence due to breach of contract"
Any special reason. or just a challenge?

So; 1)if you don't agree ,the terms & conditions you won't get your licence,upon which you intend to initiate expensive court action.
If you win in court you get your licence but still effectively can't use the waterway without agreeing to the T&Cs
2) if you agree the T&Cs you get your licence and can use the waterway.

I believe in standing up for principles, but I really don't see the point of your stand in this instance.A bit quixotic perhaps

A quote from the thread in that other place:
In reality, if CRT take you on, as they must if it is a point of principle with far reaching consequences, the likelihood of you losing increases, the bill for failure gets bigger, the time to act gets shorter. Eventually you could end up in Contempt of Court - and soon in prison

[waterworks]

Re: forced to agee to contract

Do you not agree that they cannot legally refuse to issue a licence because of non agreement to a contract ?

I am claiming there are no terms and conditions I have to abide by other than statute and bylaw, which I intend to do.

Do you see that licences are wholly statutory matters, and the rules of behaviour on the canals are governed by bylaws. How can a contract override either ?

[des8]

Re: forced to agee to contract

I do understand what you say.
I don't understand why you are making a stand over the matter as you do not disagree with those T&Cs.
You agree their terms and conditions of use (I'm not sure that it is a contract) and you get your licence.
Read that thread on the other forum and you will note that the cost of enforcing your principle may be high.
Your choice.

[waterworks]

Re: forced to agee to contract

There are already terms and conditions that are contrary to the legislation, one for instance states " if we need to move your boat because it is an obstruction you agree to repay our costs" this is contrary to the 1995 BW act, so which is it ?

My point was that even if I agree to this contract I am still in the position of having to challenge such unlawful terms if they apply to me.

[des8]

Re: forced to agee to contract

How is that term contrary to the British Waterways Act 1995 Sec18 (3) which refers back to British Waterways Act 1983 Sec 8 (3)
The relevant sections read:
1995 Act: Any vessel moored or allowed to remoor in contravention of subsection (1)[ie causing an obstruction] above shall be deemed to be a relevant craft for the purpose of section 8 (Removal of vessels) of the Act of 1983

1983 Act: All expenses incurred by the Board in (a) the removal, storage or destruction of the relevant craft;(b) the removal or storage of any furniture, tackle andapparel of the relevant craft, or any cargo, goods, chattelsand effects on board the relevant craft; or(c) marking, watching, buoying or otherwise controllingthe relevant craft;may be recovered by the Board from the owner of the relevantcraft.