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The Norfolk Broads Forum / Broads Authority Issues / Toll charges are reasonable
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Posted By Discussion Topic: Toll charges are reasonable

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MarWak
Oct-02-2017 @ 1:09 AM                           Permalink
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Daz I paid the £600 toll for two years because, when I was BA's Ch. Navigation Officer I always told people they were better to pay up then challenge the toll demand by S.31 appeal. DtP were initially sympathetic and listened to my argument, but when they relayed my complaint to BA they suddenly changed their tune, and told me they could not continue to deal with my appeal because the adjacent waters toll was made under Broads Act powers, not Harbours Act powers. I took this at face value until I recently read the High Court judgement in BA v Alan Fry where ther is long discussion of the adjacent waters toll. The judges held that the adjacent waters toll is a harbour charge made under s27 of Harbours Act and as such there is clearly an obligation that the charge is 'reasonable' (in the legal sense). So DtP and BA are wrong to say that S.31 is not applicable beause it is a Broads Act power.
However the judges also stated clearly that the toll is made under S.27 Harbours Act and is not a 'Ship, Passenger or goods' due made under S.26, as are other Broads Tolls, and most similar harbour charges. Unfortunately, it is fairly clear that the S.31 appeals procedure applies to S.26 charges but not to S.27 charges. So, perversely, although the judges established clearly that the toll must be 'reasonable', by saying it is a S.27 charge they also disqualified it from S.31 appeal. I doubt they really intended to do that and actually I think they misdirected themselves that the toll is not a 'ship, Passenger or goods due' - in all material respects it fits neatly into the relevant definition in the Act.
This a good example of the sort of mumbo jumbo that gets the law a bad reputation and I do not think for one moment that BA were so cunning to intend this situation to apply. If there was one ounce of integrity in the organisation BA would accept that the toll is a 'ship, passenger or goods' due and allow it to be considered under the S.31 process, by DtP Ports Division officers who understand the meaning and requirements of 'reasonableness', and as I have said, I would be prepared to be bound by that decision. I think it is completely unjustifiable that BA continue to hide behind the fact that the toll appears to fall between two different sections of the same act, both of which require charges to be reasonable but only one of which has an appeal mechanism.

MarWak
Oct-02-2017 @ 1:19 AM                           Permalink
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Paladine - Please see my reply above to Daz: the High Court judgement in BA v Fry makes it plain and clear that the adjacent waters toll is a harbour charge made under S.27 Harbours Act 1964, like almost all similar charges in UK harbours. Yes, it is Broads Act 1999 which authorises BA to use their Harbours Act powers in Adjacent Waters - but the toll is a harbour charge and is required to be 'reasonable' in the legal sense - which I say it is not!  Yes, that is merely my (quite well qualified) opinion, but all I am asking is the right to have that opinion tested by DtP Ports division, as I would have in this situation in any other harbour in the land!

daz3210
Oct-02-2017 @ 1:20 AM                           Permalink
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So.....

However the judges also stated clearly that the toll is made under S.27 Harbours Act and is not a 'Ship, Passenger or goods' due made under S.26, .......

That being the case, why should the BA accept anything otherwise? There appears to be a court judgement setting out the position, which seemingly you claim to accept, but explicitly do not......


Wocka Wocka Wocka

MarWak
Oct-02-2017 @ 1:55 AM                           Permalink
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Harlequin, Marshman, Terry et al - Drat! I am unmasked! Well I wasn't exactly hidden was I?

No there is no hidden agenda: I think the decision to charge tolls in adjacent waters was a wrong one, but undoubtedly BA have now got that power, and I am not challenging it.

I  got caught by the adjacent waters toll, as I have described. My beef is that the policy is to charge adjacent waters boats at full rate and I think that is really unfair and flies in the face of all reasonable established harbour practice. As I said, when people complained to me at BA about their toll I always told them they should pay up then appeal to DfT under S.31 Harbours Act, on the basis that if they were successful we would refund their toll. So that is what I did. At first DfT were sympathetic and seemed to agree that to charge full rate appeared unreasonable, but when they relayed my complaint to BA I believe they were told the toll was made under the Broads Act and therefore S.31 did not apply. They refused to process my appeal further. For nearly two years I accepted that. It was only on reading the High Court judgement in BA v Fry that I realised BA and DfT were wrong on that point, and so BA were carrying on with a profoundly unfair toll because nobody could challenge them.
I have spent nearly thirty years Harbour Mastering in harbours around England and Scotland, trying to play fairly, and I have never come across any harbour authority persevering with a charge so far out of kilter with established fair practice, and the fact that BA have conspired to thwart a genuine appeal makes it even worse. You can suspect my motives all you like, but as a lawyer, a seaman and a traditional harbour master, I find the adjacent waters toll situation profoundly unacceptable. Yes, I am surprised so many people seem content to shrug their shoulders while they are being ripped-off, but I am not content, and I warn you all that if they are allowed to get away with this, other abuses will follow.
All I am asking is the right to test my views in an impartial but experienced tribunal as the law provides in similar cases throughout the land.

Paladine
Oct-02-2017 @ 9:26 AM                           Permalink
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Around 0215 today, a post was made on FB, by MarWak, that he had been blocked from this site:

”...to find that, when I try to post my response I find access forbidden by the web-master. So much for freedom of expression!”

That was about 20 minutes after he had posted his reply to other posts. There have been no posts following his, other than this one, so I find it very hard to give any credibility to his statement.

NBF does not have a policy of hiding contentious threads, not does it (to my knowledge) block members, for other than serious breaches of the ToS, which would not apply in this case.

Would a member of ‘the team’ please confirm whether MarWak has, or has not, been blocked?


"..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)

daz3210
Oct-02-2017 @ 10:10 AM                           Permalink
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I too got access forbidden messages last night.

Since this morning I can access the forum, I can only assume that the weevils had had a wobbly and screwed up the web server.

As far as the s31 appeal goes, if the DtP and BA did as Marwak suggests and conspired to refuse his appeal, surely there is a due process to follow to have the matter heard in some form of court.

If the case is so strong as Marwak suggests, I cannot understand why he has not followed that process......

Wocka Wocka Wocka

Paladine
Oct-02-2017 @ 10:32 AM                           Permalink
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MarWak, you have made many references to the case of Broads Authority v Fry as supporting your assertion that payment of the full adjacent waters toll on vessels that don’t use the navigation is unreasonable and that it should be possible to object to the charges under S.31 of the 1964 Harbours Act. Perhaps you would post here the relevant passage(s) from that judgement that you think support your view.

As the judgement is quite complicated to read, I have selected what I think are relevant passages, and have emphasised sections which suggest to me that your reasoning is flawed. The paragraph numbers are those from the judgement.

On the matter of whether there is a requirement for the adjacent waters charge to be reasonable, under the 1964 Act, the judgement has this to say:

32. Mr McCracken suggested that, because the definition section in the 2009 Act (see section 2(1)), provided the meanings set out were to apply the "unless the context otherwise requires" and because it is clear that in adjacent waters the Authority is not a Harbour Authority, notwithstanding the reference in the definition of "toll" to a charge levied by the Authority under section 26 of the Harbours Act 1964 and to "any charge levied in respect of a vessel moored, used or navigated in any adjacent waters", the limitation in section 27 would not apply. It is fair to say that the point was not developed or explored. [my note: section 27 is the ‘reasonable’ section]

So the court simply commented that the reasonableness had not been explored by the Crown Court.

33. It would, as my Lord cogently observed, have been very odd for Parliament to have provided that within the navigation area the power to impose charges has to be reasonable but that outside the navigation area, where the Authority is not acting as a Harbour Authority, it is subject to no constraint. Such an interpretation would add to the respondent's complaint that he is being made to pay for no service, and that Parliament had chosen to allow the Authority to impose whatever charges it deemed appropriate, subject only to perversity and Wednesbury unreasonableness in respect of vessels moored, used or navigated on adjacent waters. I do not consider that could have been the intention of Parliament when it amended the 1988 Act, with consequential amendments to the scope of the power of the Authority to make charges. As I have said, however, that issue was not before the Crown Court.

Again, while suggesting that Parliament had not intended that charges in the navigation area should be reasonable, but that charges in adjacent waters should not, it was said that that was not the issue before the Crown Court.

On the matter of how the level of charges can be challenged, the judgement says:

49...A separate method of challenging ship, passenger and goods dues is provided in section 31 of the 1964 Act.

50. The charges levied on a vessel moored in any adjacent waters are clearly not "ship, passenger and goods dues"...


The judge could not be any clearer that section 31 of the 1964 Act does not apply to adjacent waters charges. Later, it is said:

52. For that reason, I would, like my Lord, quash the decision of the Crown Court and direct that the matter be remitted to the Crown Court to determine afresh on the basis no doubt of evidence from both sides as to whether or not the charges levied in respect of Mr Fry's vessel are reasonable.

This puts the ball firmly back in the Crown Court to determine the reasonableness or otherwise of the charge levied on Mr Fry’s vessel. So it appears that the arbiter of the ‘reasonableness’ of adjacent waters charges is the court, not the DfT. In this particular case, I believe the Crown Court determined that the levy WAS reasonable.

I don't disagree with you that having to pay what is, essentially, a charge to use the navigation, when no use is made of the navigation, is unfair and unreasonable, but I think you are going the wrong way about presenting your case. I might have suggested going down the Local Government Ombudsman route, but there is a 12 month cut-off and I think you might be out of time.

(HTML errors edited)


"..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)


This message was edited by Paladine on Oct-2-17 @ 10:35 AM

Mercator
Oct-02-2017 @ 10:45 AM                           Permalink
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'Morning, Paladine ...

Only just picked up on your question - but I can confirm there is nothing within admin to indicate MarWak was, or indeed has been, blocked from the Forum.

Probably just a hiccough as suggested by daz3210.

Steve.


Steve & Maggie.


Not quite an ancient mariner ..... though some say he was at sea before Pontius was a pilate !

MarWak
Oct-02-2017 @ 11:45 AM                           Permalink
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Yes, the post apparently blocked last night has now appeared. My suspicions were, thankfully unfounded. I thought that, like other terrorists, I had been banished to the Dark Web!

I need to consider Paladine's comments closely and will do so, but in the meanwhile it is good to see that someone at least is taking the matter seriously.

Jean&Brian
Oct-02-2017 @ 11:58 AM                           Permalink
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I to can confirm that no one has been blocked possibly just site maintenance by the host server, I trust that the comment on facebook will be rectified.

          Brian


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