‘LAIM NO: BOING135, IN THE NOTTINGHAM COUNTY COURT. BETWEEN: CANAL AND RIVER TRUST -and- ANDREW WINGFIELD (aka ANDY WINGFIELD) 1. It is admitted that the Defendant is the owner of, and resident on, the vessel named "Hildegard" Index Number 45205, c/o 46 Musters Road, Nottingham NG2 7PR. 2. It is denied that the Claimant is entitled to a declaration permitting the Claimant to remove the Hildegard pursuant to section 8 of the British Waterways Act 1983 and Section 13 of the British Waterways Act 1971 as claimed at paragraph | of the claim form or at all. Further, it is averred that the land the Defendant is moored to is not within ‘the ownership and/or control of the Claimant.4. Contrary to the assertion in paragraph 9, the issue of human habitation is expressly removed from the 1971 houseboat definition, while the purpose of the vessel is the ed to nav defining factor. As a boat genuinely desi fe, Hildegard can only be a pleasure boat, regardless of whether it is laid up or moored for extended periods, and regardless of whether it is lived on or not. The only relevant le} slation affecting this case is, therefore, Part I] of the 1971 Act, not Part III as alleged. 5, It is denied that the Defendant has not complied with his ‘licence’ conditions. He has moved Hildegard every 14 days until he s unable to do so while needing to attend hospital for a bleeding stomach complaint, and subsequently fractured his leg. The Claimant has failed to consider that there were any special reasons and/or circumstances outside the Defendant's reasonable control preventing the Defendant from moving his boat, It is averred that the Defendant suffered from medical problems as set out herein above which rendered him unable to move Hildegard. 6. The Claimant was informed about the Defendant's special reasons and/or circumstances outside his control on various dates and in particular on 8 September 2014 as to why he was having difficulties moving. The Claimant has failed to give any or any adequate consideration to the special reasons advanced on behalf of the Defendant when considering whether to take enforcement action against him, 7. The Claimant revoked the Defendant's ‘licence’ on or about 17 November 2014. The Defendant has not moved his boat from that date as he is unable to legally navigate or the Defendant to move from his pre 2 main navigable channel where he i boat certificate, whereas moored outsid the requirement does not apply. 8. The extent of the Claimant’s right to demand the pleasure boat certificate on the River Trent is currently the subject of a High Court challei CaRT, Claim No: HC/2015/001906. e in the case of Ravenscroft v9. For the avoidance of doubt it is submitted that the Defendant has a home mooring and has moved his boat in accordance with condition 2.1 of the General Terms and Conditions for Boat Licences (Excluding Business Boat Licences) issued April 2014 ("the General Terms") save for when he was physically unable to do so and after the Claimant revoked his licence. 10. It is further submitted that the Claimant is in error in asserting that taking up alternate, legitimate private moorings, for any period of time, is a breach of licensing conditions, whether the relevant consent is based on Home Mooring or Continuous Cruising. 11. In circumstances such as the present, where the Defendant has moored to private land not in the ownership of the Claimant, no impediment has been occasioned to the Claimant’s duty to keep the public moorings spaces under its control. It follows that the action taken by the Enforcement Officer in revoking Hildegard’s pleasure boat certificate for reasons of alleged overstaying is misconceived, and unlawful. 12. The declarations and injunction sought by the Claimant are based upon the Defendant having had his pleasure boat certificate revoked, and a new one refused. Hildegard is as a consequence, on their argument, “/eft or moored — on their waterways without lawful authority” and thus susceptible to action under the 1983 Act, section 8. It is essential to understand that, in the circumstances, the above actions by the Claimant are contrary to law. 13. As publicly recognised by the Claimant, the law allows for only 3 reasons for refusing a “relevant consent”. If those 3 pre-conditions are met [as they are in this case], the Claimant has no grounds for either revoking or refusing the relevant consent. The British Waterways Act 1995, section 17(3) states: “the Board may refuse a relevant consent in respect of any vessel unless —* the 3 following conditions are met. The 3 conditions ARE met; Hildegard had [and has] a current Boat Safety Certificate as per s.17(3)(a); an insurance policy in force as per s.17(3)(b), and a recognised paid up home mooring as per s.17(3)(c)(i). It is therefore fully entitled to the relevant consent.14. It is submitted that any attempt to withhold a relevant consent on the grounds of alleged breach of licence Terms & Conditions outwith those of the 1995 Act, is to subvert the clear provisions of Parliament respecting issue of the relevant consent. It is the Claimant violating the law in this case, not the Defendant. 15. It is further submitted that any alleged breaches of mooring restrictions — where applicable - fall to be dealt with under any relevant and appropriate legislation conceming those. For the avoidance of doubt it is denied that the Defendant has breached any such lawful restrictions. 16. Schedule 2 of the General Licence Terms and Conditions acknowledges that: “There are no public law provisions concerning moorings along the Trust's canals, This is entirely a matter for management by the Trust as property owners.” As noted in para, 2 of this Defence, the Claimant is not a relevant property owner in the instant case. 17. Further to the above, the “General Information Sheet Relating to Offside Moorings” Part 2 acknowledges: “Where BW is navigation authority but does not own the bed of the river, a boater needs a licence from BW to cruise the river. However, the boater does not need to pay BW a mooring fee as well because BW does not own the river bed. As mentioned earlier common law rules of riparian ownership usually apply.” 18, Section 20(1) of the British Waterways Act 1995 provides: “the Board shall have due regard to the desirability of refraining from interference with private rights and established mooring practices and shall not prevent the mooring of any vessel which could laufully have been moored pursuant to any such private right...” 19. In the premises, it is submitted that the Claimant has no powers to prevent or interfere with the mooring of Hildegard to the private property where it is now located. 20, It is averred that the Claimant failed to exercise its discretion adequately or at all when considering whether it would be proportionate to apply for an injunction and/or failed to consider whether the Defendant would be able to comply with an injunction.21. It is denied that the Claimant is entitled to the width of the injunction that they have claimed as set out at paragraph 2(a) and (b) of the Claim Form. It is averred that there is no evidence to suggest that the Defendant would not comply with any injunction granted against him. 22. Further, the width of the injunction claimed extends to all waterways within the Claimant’s control, whereas some of those areas are not subject to any licence requirement at all, while in the rivers with amended public rights of navigation [such as the River Trent], the requirement is limited to the main navigable channel as aforesaid. 23. In such circumstances the 2012 Judgment of HHJ Hildyard in Moore v BWB applies, and the Claimant is legally prevented from banning boats from waterways outside of any applicable legislative restraints upon public rights of navi 24. Further, it is denied that the Claimant is entitled to a declaration requiring the removal of Hildegard from the River Trent; the Claimant has failed to consider relevant considerations when coming to their decision to pursue an injunction and seek seizure of the Defendant's vessel. The Claimant has failed to consider the Article 8 rights of the Defendant adequately or at all. The Claimant has failed to consider: a. that the Defendant had a broken leg and/or other health issues which impeded his progress around the River Trent; b. whether the Defendant would be able to comply with his licence conditions within a reasonable peri c, that the Defendant would be rendered homeless, and . that other, less onerous statutory processes are available to the Claimant under the BWB Act 1971, and under section 18 of the BWB Act 1995, which are specifically designed to enforce compliance with the relevant licensing and mooring requirements.26. In the premises, the 2013 Appeal Court judgment in Moore v BWB therefore applies, and the mooring of Hildegard to private offside moorings on the river is lawful. 27. If, contrary to the above, the mooring was unlawful, then the appropriate action would have been to enforce the relevant mooring provisions with the statutory sanctions available. As submitted earlier, revoking and/or refusing the relevant consent is not a means available to the Claimant for remedying that perceived mischief. 28. In the premises it is submitted that the Claimant's decision to seek an injunction and deprive the Defendant of his home is disproportionate, and amounts to a breach of his Article 8 rights in breach of Schedule 2 of the Human Rights Act 1998. 29. Further, it is submitted that the Claimant has failed to consider the Defendant's Article 8 rights when taking proceedings against the Defendant and failed to consider whether their process accorded due deference to the Defendant's Article 8 rights. 30. Further still, it is submitted that the Claimant failed to consider the Article 8 rights in not applying the tests for determining proportionality as adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69. Lord Clyde observed, at p 80, that in determining whether an act, rule or decision is arbitrary or excessive the court should ask itself: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."31. It is submitted that the Defendant has accepted and abided by the objectives explained as relevant by the Claimant in the previous proceedings before HHJ Pugsley. 32. Yet further still, it is submitted that the Claimant has failed to consider the Defendant's Article 8 rights in refusing to apply the less onerous statutory sanctions [provided for in the 1971 Act, section 5(2), as amended in the 1975 Act, s.7(a)] in respect of the alleged breaches of the relevant legislation requiring possession of the “relevant consent”. This is contrary to the accepted tests of proportionality according to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca: + there must be a legitimate aim for a measure + the measure must be suitable to achieve the aim (potentially with a requirement of evidence to show it will have that effect) + the measure must be necessary to achieve the aim, that there cannot be any less onerous way of doing it + the measure must be reasonable, considering the competing interests of different groups at hand. 33. For avoidance of doubt, as outlined earlier, it is denied that the Defendant’s lack of a current relevant consent is his responsibility, as he had paid for the full year before it was unlawfully revoked by the Claimant, with 3 months left to run. 34, Further, it is the Claimant who has unlawfully refused to issue a new pleasure boat certificate, in circumstances where all the pre-requisites of the British Waterways Act 1995 as to s.17(a): (b), & (c)(i) obtain, and where they have received [and still hold] payment for the next full year. This payment was sent by standing order from the Defendant’s bank at the appointed renewal date, and the Claimant purports to hold this against the Defendant's ‘account’, instead of supplying the relevant consent as they are obligated to do under the British Waterways Act 1995. 35. Even i for any breach of the 1971 Act section 5(1), the “less onerous” way of dealing with it is provided for in section 5(2) as aforesaid, backed by the 1983 Act section 5. it were accepted for the sake of argument that the Defendant was responsible37. In the premises the Claimant, at no time, appears to have considered the Defendant's Article 8 rights, and/or his personal circumstances and/or the hardship which he would suffer if required to move from his mooring. It is submitted that the hardship to the Defendant would be profound as he would be rendered homeless. In the premises it is averred that an injunction should not be granted at this stage and/or that the declaration should be refused. 39. The Claimant's application for costs is specifically denied. I believe that the facts stated in this Defence are true. A Nigflield Signed: ‘Mr Andy Wingfield Date: &/10/201S 30 September 2015 Garden Court Chambers Limited 56-60 Lincoln's Inn Fields London WC2A 3LS ‘VALERIE EASTY