Win or lose in High Court - C&RT has problems
May 2017 - It is now certain that C&RT's Head of Boating, Mike Grimes, will not appear at a four-day hearing in the High Court starting on Thursday, May 18, reports Allan Richards.
Mr Grimes left C&RT's employ at Easter. In February, The Floater questioned if he would be willing to attend court to back up his witness statement in the case of Ravenscroft vs C&RT ( Did C&RT's Head of Boating fall or was he pushed? ).
The Trust has subsequently been confirmed that he will not appear. Instead, and at the eleventh hour, C&RT have substituted a watered-down witness statement from Tom Deards, C&RT's new Head of Legal.
In the revised statement, Deards does not claim, as Grimes did, that a public right of navigation no longer exists on the Trent.
As previously reported in The Floater, on 26th January 2015 Leigh Ravenscroft's boat was seized by C&RT on the basis that it did not have a Pleasure Boat Certificate (PBC) allowing use of the River Trent and in order to recover arrears of PBC fees.
At the four-day hearing, the High Court will decide on a number of issues, the primary one being did Mr Ravenscroft actually require a PBC?
Two other issues will also be decided. The first relates to C&RT's duty to act proportionally. The law says what C&RT should do in the case of a boat not having a PBC. However, the Trust totally ignored this, thus denying Mr Ravencroft the opportunity of defending an action brought against him. Instead, they seized his boat!
The other issue relates to the seizure of the boat as security for outstanding fees which is unlawful. C&RT admit this but say the refusal to return the boat pending payment of alleged fees was a 'mistake'. However, no explanation is given as to how this 'mistake' occurred.
The main issue (the requirement to have a PBC) hangs on the definition of 'main navigable channel'. A public right of navigation still exists on the River Trent but, following the British Waterways Act 1971, it is unlawful to 'keep, hire or use' any pleasure boat in the main navigable channel of certain parts of the Trent Navigation.
It is C&RT's defence that 'main navigable channel' means the full bank to bank width of the river and not the channel that C&RT dredges or otherwise maintains to allow commercial craft of maximum dimensions to navigate.
However, it does not take long for C&RT's argument to fall apart. Byelaws require pleasure boats to move out of the main navigable channel to make way for commercial craft.
That's rather difficult if the main navigable channel is the full width of the waterway. Worse still, information published on C&RT's website suggests that 'main navigable channels' can actually move! Again, rather difficult if the channel extends the full width of the waterway.
C&RT's full width argument also looks poor when the comments of in the Waterways Ombudsman's 2010/11 report are taken into account. In case No 516, Hilary Bainbridge stated that British Waterways were interpreting 'main navigable channel' to mean the full width of a waterway for licencing purposes.
She added ' I pointed out that that interpretation of 'main navigable channel' was not the one British Waterways had applied previously when dealing with complaints about lack of maintenance under moorings. Then they had argued that, as their maintenance obligations in the Transport Act 1968 applied only to the main navigable channel, they were not obliged to dredge under moorings, only the central part of the waterway'.
Years later, C&RT is still claiming that they don't need to maintain mooring depth because they only have a statutory responsibility to maintain the main navigable channel.
The following extract is taken from TERMS & CONDITIONS FOR A MOORING ON CANAL & RIVER TRUST WATER WHICH IS ACCESSED FROM PRIVATE PROPERTY (updated January 2017) - 'The Trust does not warrant that there will always be adequate depth of water at the Mooring Site and is not responsible for maintaining the waterway wall or bank in sufficient condition to provide safe access to the boat moored alongside it. Where statutory maintenance obligations apply to a waterway they apply to the main navigable channel only'.
It is very unlikely that the court will agree to two different legal interpretations of 'main navigable channel'. The problem for C&RT is that it is a no-win situation. If the court decides that main navigable channel is not 'bank to bank', as seems likely, it will be a disaster for them as they will have lost on the main issue.
If, however, they win on this issue, then they have the problem that they will be pursued to maintain the depth of moorings, waterway walls and banks as part of their statutory duties by customers and land owners.
It's a no-win for C&RT either way.
Photos: (1st) The River Trent - is the navigation bank to bank or not? (2nd) Tom Deards, C&RT's new Head of Legal, (3rd) Mike Grimes ex-CRT Head of Boating.