looking for an expert in the interpretation of statute

[waterworks]

I want to find someone qualified who is interested in an informal project to look at a issue that affects the licence contracts of up to 30,000 boat owners. It will not be of much interest to anyone else and will be quite complicated referring to legislation dating back to 1962.

A basic summary is that the Canal and River Trust is offering statutory boat licences but claiming they are contracts, they cant be both as cancelling a contract still leaves the boat owner the legal right to a licence.

Anyone interested in a previously unsolvable problem ?

[efpom]

I have had a brief look – s.43(3) of the Transport Act 1962 https://www.legislation.gov.uk/ukpga.../46/section/43

seems to me to give the power to the Trust to make “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.”

Those charges are not any type of statutory licence.

They are akin to parking charges made by local authority owned car parks. whereby the "parker" enters into a contract with the owner giving him/her licence i.e. the contractual right, to occupy a parking space, on payment of the charge.
Local authorities are "a “creature of statute”" as is the Trust.

[Huxie]

For info, the opinion of a ‘canal legislation expert’ was posted back in 2016:
https://legalbeagles.info/forums/for...18#post1040018

" 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"

[waterworks]

This is the first paragraph of the boat licence contract in question. It seems the claim its issued under the 1962 transport act and not the 1995 British Waterways Act is false and the claim they can revoke it for breach of non statutory conditions is also false. The licence is being offered under false pretenses but no one can do anything about this without a hugely expensive court case, possibly judicial reveiw (the ombudsman does not deal with legal matters). This isn't right but a situation that has no practical solution.

GENERAL TERMS AND CONDITIONS FOR BOAT LICENCES
(EXCLUDING BUSINESS LICENCES)
Introduction
In accordance with s.43(3) of the Transport Act 1962, boat licences are subject to the conditions which
apply to the Use of a boat on any Waterway which We own or manage. These are necessary to protect
third parties and to help Us manage the Waterways well for the benefit of all Our users. If You breach any
of these Conditions the Trust can terminate Your Licence, which may result in the removal of Your boat
from Our Waterways.

[atticus]

If I have read the last post but one correctly, Nigel Moore dealt with that point.

[waterworks]

So what can be done to force the Canal and River Trust to stop lying about the nature of its licences ?

[R0b]

I suggest you take a read at the case decision below which discusses the rights of CaRT under s43 of the Transport Act 1962, and perhaps it goes to some way in answering the questions you pose. The judgment is not that long but so I would suggest a full read is worthwhile though some of the key discussion is from para. 9 onwards and specifically para. 12.

Brown, R (on the application of) v Canal River Trust [2012] EWHC 3133 (Admin) (16 November 2012) (bailii.org)

[waterworks]

I suggest you take a read at the case decision below which discusses the rights of CaRT under s43 of the Transport Act 1962, and perhaps it goes to some way in answering the questions you pose. The judgment is not that long but so I would suggest a full read is worthwhile though some of the key discussion is from para. 9 onwards and specifically para. 12.

Brown, R (on the application of) v Canal River Trust [2012] EWHC 3133 (Admin) (16 November 2012) (bailii.org)

Thanks for providing that.

I dont understand how the 95 act sets the 3 mandatory conditions for the granting of a licence but the 62 act then gives the power to add any further conditions to that licence the CRT sees fit, which they claim in their licence document any breach of which gives them tne power to cancel that licence, surely if your licence was cancelled for breach of these extra conditions not in the 95 act you would still meet the 3 conditions of the 95 act and either retain a lawful licence or just apply for a new one ?

If the power to add any terms and conditions to licences existed in 1962 then why did they go to the massive effort of putting the 95 bill through parliament to set the terms and conditions for licences ?

If they had relied on the 62 act they would now have all their licencing and mooring problems solved ,could revoke them at will and add any conditions they liked.