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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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Harlequin
Sep-25-2017 @ 10:06 PM                           Permalink
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MarWak.
On the face of it your thoughts seem fairly reasonable. but as others have started to point out it is unlikely that anything will change.

1. It seems that the legal route has been tried already, and failed.
2. The BA do have justifiable reasons to be cautious even IF they wanted to change this.
3. Not many people are affected by this so I am afraid that you are unlikely to get a huge deal of support. People tend to only get involved if they are personally impacted.
4. There have been other fairly widely supported issues that have got nowhere at all. The BA are pretty competent at defending their stances.
5. Support that you will get is likely to be from the usual nay sayers who go after the BA for every little thing that they can think of. Unfortunately they will not help your case as they are not really taken seriously.

So all in all I think that you will find this a difficult ask. But if you are determined to try all I can say is good luck to you.
Alternatively accept the status quo and move your boat to a hard standing somewhere? That may be considerably cheaper.  

  



This message was edited by Harlequin on Sep-25-17 @ 10:08 PM

MarWak
Sep-25-2017 @ 11:47 PM                           Permalink
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Well, Paladine, I'm hesitant to disagree with you but I believe the SORN process is a perfectly good analogy: BA already has a compulsory boat registration process enforceable by byelaw prosecution. They do not charge for registration but legally they are entitled to do so. It might require amended registration byelaws, but not, I think, changes to legislation. The judges in BA v Fry were in fact critical of BA for not having updated byelaws in light of 2009 Act. Very simple to make it  the rule that boats must be either full toll paid or declare SORN. BA can hardly argue that this would be hard to monitor when they have just got rid of the tolls receipt formerly carried on every boat! They undertook to progress this in parliament but realised they could get away with charging the full toll.
I disagree also that there is a way to appeal the adjacent waters toll. Alan Fry's original case was all about BA's right to charge, which I do not dispute, his case was not about the reasonableness of the charge. True, the Divisional Court did remit the matter to the Crown Court who did find it reasonable, but Alan Fry represented himself in I believe a very hurried hearing, against BA's silk. The matter of reasonableness was never sensibly discussed. In any event it is not binding precedent. In reality it is no defence to byelaw prosecution in a Magistrates Court to allege the charge is unfair or unreasonable - they are simply not equipped to deal with what is a complicated matter of legal definition. I really believe this is a profoundly unjust toll which needs to be challenged properly in court and it is shocking that the S.31 process has been denied as means to do so. I have offered to assist NSBA, who are the appropriate body to do so, with the cost of so doing.

MarWak
Sep-25-2017 @ 12:01 AM                           Permalink
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Harlequin - I'm not deterred by the fact that this BA procedure seems to have become well established. I have a bit of a history of winning legal disputes against conventional advice! I don't agree either that it should be of interest only to those affected (of whom I am one).The situation regarding Adjacent Waters tolls is, or should be, of grave concern for everyone interested in Broads boating because it is an example of a powerful body, locally, abusing its powers and riding rough shod over the protections which are provided in the legislation. My boat is already moved (by road) down to Essex where it was always intended to go, but the advice to 'move out if you don't like it' is just the sort of defeatist nonsense that is music to the ears of despots and tyrants who do these things 'because they can'.

MarWak
Sep-25-2017 @ 12:48 AM                           Permalink
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Parking the matter of denial of the S.31 Appeal Process for the moment....

The adjacent waters toll is unlawful because BA are forbidden to carry out Harbour Authority functions in adjacent waters (and indeed usually they do not do so).By specifically charging toll on adjacent waters boats, and claiming that the toll goes to meet harbour type expenditure they are plainly charging adjacent waters boats as a class or category for a service from which they, by definition, are unable to benefit. This is patently an unreasonable policy and therefore unlawful.

Conversely, BA does not charge for boat registration but it is entitled to do so. So a charge for registration in connection with a SORN type process would be lawful. However the law is clear that a charge for an administrative act, such as registration must not generate a profit - it must reflect the true cost of the registration process - certainly very much less than the full annual toll rate currently charged.

As previously stated the adjacent waters toll is unreasonable also because it is arbitrary because no attempt has been made to fairly assess the cost to BA of the services provided in adjacent waters (even if it were lawful to charge for these, which it isn't!)

It is unreasonable also because it bears no relation to the benefit derived by the payer.

It is unreasonable because it is a charge on a group or class of boat owners who by definition cannot benefit from most of the services it claims to support.

It is unreasonable as being a charge void for want of consideration. (This was the basis on which Crown Court aquitted Alan Fry - however it is clear that, being a statutory charge in the nature of a tax, it is not essential to demonstrate in every case that the particular payer derives some benefit).

I do not suggest BA set out or intended to get themselves into such a bad situation - it stems from their inexperience in Harbour Law and the really labyrinthine relationship between Harbours Act and Broads Act. However they have spent a great deal of money pursuing Alan Fry and one cannot help wondering if that is not as much about where his boat is moored. Otherwise why would they waste so much money defending the indefensible?

Marshman
Sep-26-2017 @ 8:20 AM                           Permalink
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I think that by introducing your comments to include SORN you have probably shot yourself in the foot as surely everyone realises that to introduce a SORN policy on the Broads would be a complete no no as far as boats are concerned.

This comes from time and time again but with some boats in and out of the water like yo yo's and some every winter, how on earth would you police it? The BA's tolls department is very small and relies on seasonal help and even the head of Tolls does another job!! So what in effect you are saying, is that whilst you feel you have a compelling argument, you would like others to help pay for such a policy, so you can benefit??? Effectively!!

I think you should choose to fight an easier battle somehow!!!

Paladine
Sep-26-2017 @ 9:22 AM                           Permalink
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MarWak, while I am sympathetic to your frustration with the situation, I am concerned that the comments you have made on here so far may weaken your arguments. I believe there is much wrong with the way the BA operates, but only strong, clear and correct action can make any difference. Allowing avoidable chinks in that action can only be detrimental. While I am being critical, I intend my criticism to be helpful to you.

For example (my emphases):

”It might require amended registration byelaws, but not, I think, changes to legislation.”

That statement is incorrect. Bye laws are part of the legislation.

” The judges in BA v Fry were in fact critical of BA for not having updated byelaws in light of 2009 Act.”

What Lord Justice Beatson said was:

”In these circumstances, it is surprising that the Broads Authority have not updated the bylaws to reflect the current position. They have power to do so. It may be that they have not done so because they respect Parliament's decision to provide for automatic amendment in the form given by section 11(14). The result, however, is a certain complexity and lack of transparency, which does not flow from the decisions made by those framing the primary legislation.”

While that might appear critical, he did give an explanation as to why the BA, very reasonably, may have chosen not to update the bye law. There was no legal reason for them to have done so.

”True, the Divisional Court did remit the matter to the Crown Court who did find it reasonable, but Alan Fry represented himself in I believe a very hurried hearing, against BA's silk. The matter of reasonableness was never sensibly discussed.”

This paragraph brought to my mind the very old proverb ”that every man who is his own lawyer, has a fool for a client.”

”This is patently an unreasonable policy and therefore unlawful.”

That a policy is unreasonable does not mean that it is unlawful per se.

”...being a statutory charge in the nature of a tax...”

A toll is not a tax, pure and simple. Look at the legal definitions.

I could go on, but this is not the best place to conduct detailed legal arguments. You are mixing personal opinions with legal arguments, but if you wish to argue law, you need to be more dispassionate, IMO.


"..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)

MarWak
Sep-26-2017 @ 10:57 AM                           Permalink
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Paladine Unsurprisingly, I disagree with much of what you say. Its quite wrong to say the byelaws are part of the legislation - they are made under powers given by legislation but the process for making or amending byelaws is very much less complicated or costly. The BA policy of charging full toll on adjacent waters could very quickly and simply be changed.
It has been said that a SORN type system would be very unpopular. I don't see why: once you have accepted that BA have the power of adjacent waters toll then surely a fairly priced SORN certificate is preferable to a grossly over-priced annual toll you are not using! The point made about it being costly to manage is also wrong:at present there is a very limited short visit toll system but largely you pay the full toll on first launching and it lasts until next end March. With a SORN system it would remain an offence to be in the navigation area without a full toll, as presently. It would be no more difficult to police the SORN system than presently and in fact the recent ditching of the tolls receipt on each boat demonstrates that BA have very rapid up to date information on the current tolls status of each boat. This is not an argument at all!
I'm very surprised that among the many voices perpetually carping about BA and its often minor or irrelevant misdeeds there are apparently so few who either through ignorance, laziness or narrow self-interest are willing to condemn the current system for the cynical rip=off that it really is! I believe, with quite a lot of relevant experience, that the adjacent waters toll is a blatant abuse of power and it is able to continue precisely because of the attitudes being displayed here!

MarWak
Sep-26-2017 @ 11:07 AM                           Permalink
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Marshman - You are wrong about the cost of a SORN system and your comment about it being a 'No-N0' is simply irrational.
Also totally wrong about my suggestions being borne of self-interest: I no longer have a boat in the Broads at all so I am not currently a toll-payer. The boat on which I was caught for Adjacent Waters toll is long-gone (by road) to Essex as always intended.It seems to be a typical Norfolk response, if confronted by an argument you don't support, to divert attention by discrediting your opponent's motives, and it is the reverse of constructive debate!

daz3210
Sep-26-2017 @ 11:14 AM                           Permalink
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If it comes down to the fact that the BA cannot lawfully act as a Harbour Authority on adjacent waters, what exactly do you define as 'acting as a Harbour Authority'?

Thinking logically, would that include patrolling to identify boats sitting in adjacent waters?

If that is the case, under what authority can the BA act to identify vessels sitting in adjacent waters if they are not identifiable from waters in which they can act as a Harbour Authority?

Wocka Wocka Wocka

TerryTibbs
Sep-26-2017 @ 11:27 AM                           Permalink
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The SORN scheme is policed and enforced mainly by the use of ANPR detection equipment which is fitted in thousands of police vehicles and in many speed camera and ANPR cameras set up all over the country. The Broads does not have access to these and I would say that no case could be made for the expennditure needed to instal such a system.

Dave


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