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The Norfolk Broads Forum / Broads Authority Issues / Adjacent Waters Tolls
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Posted By Discussion Topic: Adjacent Waters Tolls

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MarWak
Sep-25-2017 @ 10:34 AM                           Permalink
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If you think it is arbitrary and unfair to charge adjacent waters tolls at full annual rate you may be interested that I have written to six Broads area MPs seeking their assistance in changing BA's policy on this. There are strong legal reasons for saying this toll is unlawful and unconstitutional and it is a disgrace that it is allowed to go on. Note - I'm not saying BA can't charge an adjacent waters toll: since 2009 Broads act they have that power, merely that to charge full rate is profoundly WRONG! Also that they hide behind the fact that their powers to charge come from 2009 Act rather than Harbours Act, so the toll cannot be challenged by appeal under S.31 Harbours Act. This is an affront to justice, given that non-payment is a criminal offence. Obviously I would welcome support in this. Happy to supply full (rather tedious legal background) to anyone interested. Letters to MPs/NSBA/RYA very welcome!

Marshman
Sep-25-2017 @ 1:29 PM                           Permalink
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My guess is that to change it, some amendment in primary legislation will be required and to be honest there are few people actually affected by it.

If that does require a change in legislation then with the best will in the world, I think it unlikely as them in London may well be busy on other issues!

Paladine
Sep-25-2017 @ 1:31 PM                           Permalink
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Welcome to the forum, MarWak.

What do you think would be a fair policy for the BA to adopt in this regard?

"..for the avoidance of any doubt, the broads are not legally a national park and do not come under the national park legislation, and nor will they."
Parliamentary Under-Secretary of State for DEFRA (Hansard 2015)

Paladine
Sep-25-2017 @ 1:59 PM                           Permalink
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Marshman, the 2009 Act only extended the power of the BA to impose a toll on vessels in adjacent waters, it didn't impose it or set any levels itself.

Section 11(2) says "The Authority may make byelaws for the purpose of providing for the registration of vessels in the navigation area or on adjacent waters, and for the determination and recovery of tolls in respect of vessels moored, used or navigated in the navigation area or on adjacent waters."

Section 2(14) says "The Broads Authority Vessel Registration Byelaws 1997 (other than byelaws 23 and 28) shall be deemed to have been made under this section, and shall have effect as though the references in those byelaws to the “navigation area” included adjacent waters."

Therefore, the level, and collection, of tolls comes under the Registration Bye Laws, so there would be no need for a change to any primary legislation, in my view. No need for any change to the bye law, either.

It would be entirely a matter for the BA, when setting the annual tolls, to add another category of toll for vessels which are moored/used in adjacent waters and which never enter the navigation. The problem is how to be sure a vessel in that category never does enter the navigation in any toll year. The same difficulty would arise with a pro rata toll.  

"..for the avoidance of any doubt, the broads are not legally a national park and do not come under the national park legislation, and nor will they."
Parliamentary Under-Secretary of State for DEFRA (Hansard 2015)

Harlequin
Sep-25-2017 @ 4:06 PM                           Permalink
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Therein lies the problem.
If everybody was totally honest and trustworthy the BA would be able to vary this charge (should they wish to). However we all know that in the real world some would certainly abuse this difference to free-load. It is not worth the trouble that the BA would encounter.

We already know that there are those that do their utmost to dodge the normal tolls as it is. We have had some of them on here using weasel words to try to justify their actions and pretend that they are doing nothing wrong. And that is when the rules are written clearly in black and white. Give them another potential route and they will certainly exploit that too.

So for that reason I think that they are best to leave things as they are. Too many cans of worms open already.


MarWak
Sep-25-2017 @ 7:16 PM                           Permalink
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First point: It would not be necessary to change any legislation at all: BA has the power to charge a toll and to set the rate.
Secondly, I'm not aware how many boats pay full toll for being kept in adjacent waters but I do know from my own experience that it is gravely unjust to have to pay £600 for nine months moored in a private boatyard basin, never entering the navigation area. Under the 'old' system there was no possibility of charging in adjacent waters. Certainly a few people did try to sneek into the navigation area unpaid, but they rarely got away with it because the River Inspectors knew their patch, even in the days before instant data from the tolls office - so good in fact that BA have done away with the paper tolls licence on each boat.

The fact is that the adjacent waters toll is a charge made under S.27 of Harbours Act (see High Court judgement in BAvFry). As such there is a legal obligation that it should be 'reasonable'. This toll is not 'reasonable' in the legal sense - it is arbitrary: 'We can't be bothered to work out a fair charge so we'll charge everyone the same whether they enter our harbour or not'. It is unreasonable also because it bears no relationship with the possible benefits the toll payer can derive from it, particularly as in fact BA is expressly forbidden from acting as harbour authority in adjacent waters. It is further unreasonable because there is a tried and established precedent for dealing with the matter fairly - based on the SORN system for car tax Indeed in justifying the proposal in parliament during passage of the 2009 Act an undertaking was given to progress this and it is scandalous this has been ignored, simply because it is far more lucrative to rip boat owners off with the full toll.
What is even more objectionable is that BA have persuaded DfT that the S.31 Appeal procedure does not apply to adjacent waters tolls because, they say, the toll is authorised by the 2009 Act, rather than by Harbours Act like all other Broads tolls. They are simply wrong about this (Again see judgement in BAvFry). This means that the Adjacent Waters toll is a creature abhorrent to English law: a tax punishable by criminal conviction for non-payment but where there is no legal process to challenge either the amount or the propriety of the charge. There are, fortunately very few such animals in a democracy- and it is entirely unacceptable that BA have got away with it so long because there is apparently no process to challenge them. Personally I'm not prepared to be exploited any longer!

MarWak
Sep-25-2017 @ 7:25 PM                           Permalink
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Paladine is, as often the case, right: It would require no changes to statutes or byelaws to change BA's current practice, merely a wish to play fair!
There is a clear precedent for fair treatment in this situation, which is the SORN process for car tax. It would be lawful for BA to charge a modest registration fee to cover the cost of this SORN process, whereas it is certainly not lawful to attempt to defray harbour authority expenditure via the adjacent waters toll.This has gone on long enough!

MarWak
Sep-25-2017 @ 7:34 PM                           Permalink
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I'm not sure why my eariler post can't be shown - maybe I went on too long!. Briefly the adjacent waters toll is a charge pursuant to S.27 Harbours Act and so must be 'reasonable'. The adjacent waters toll is definitely not reasonable: it is arbitrary and bears no relation to the benefit the payer can derive from it. Being a S.27 charge it is also outside the scope of the S.31 appeals process which does apply to other tolls. So its a tax with criminal prosecution for non-payment, where there is no process for review of amount or propriety. That is abhorrent to English law. Is certainly abhorrent to me!

Paladine
Sep-25-2017 @ 9:03 PM                           Permalink
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”...the Adjacent Waters toll is a creature abhorrent to English law: a tax punishable by criminal conviction for non-payment but where there is no legal process to challenge either the amount or the propriety of the charge.”

There is a legal process for challenge, and Mr Fry followed it.

In the case of the Broads Authority v Fry the initial decision of the Crown Court, which had been in favour of Mr Fry, was quashed and the case was returned to the Crown Court for reconsideration. The Crown Court then decided that the toll charge was reasonable.

My question remains. What would be considered to be a fairer system?

"..for the avoidance of any doubt, the broads are not legally a national park and do not come under the national park legislation, and nor will they."
Parliamentary Under-Secretary of State for DEFRA (Hansard 2015)

Paladine
Sep-25-2017 @ 9:32 PM                           Permalink
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”There is a clear precedent for fair treatment in this situation, which is the SORN process for car tax.”

The comparison between the treatment of road vehicles and that of boats hardly bears scrutiny.

The Continuous Insurance Enforcement Regulations 2011 were introduced to tackle the problem of uninsured vehicles. In order to avoid a Fixed Penalty Notice for no insurance dropping onto the door mat, or possible prosecution and the risk of having the vehicle seized and destroyed, even though the vehicle is kept on private land and is not used on a public road, an owner can complete a Statutory Off Road Notice and send it to DVLA.

The DVLA has access to the Motor Insurance Database, so there is nowhere to hide. The DVLA has well over 5,000 employees and an annual budget of over £400 million.

Just what would a SORN for boats look like? How would it be administered and enforced? And yes, there would need to be new legislation.



"..for the avoidance of any doubt, the broads are not legally a national park and do not come under the national park legislation, and nor will they."
Parliamentary Under-Secretary of State for DEFRA (Hansard 2015)

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