Hill v Transport for London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Rimer,MR JUSTICE RIMER |
| Judgment Date | 16 May 2005 |
| Neutral Citation | [2005] EWHC 856 (Ch) |
| Docket Number | HC03C02322 |
| Court | Chancery Division |
| Date | 16 May 2005 |
[2005] EWHC 856 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Rimer
HC03C02322
Mr Kirk Reynolds QC and Mr Philip Kremen (instructed by Hughmans) appeared for the Claimants
Mr Thomas Jefferies (instructed by Eversheds LLP) appeared for the Defendant
(Hearing dates: 15, 16 and 17 February 2005)
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Honourable Mr Justice Rimer
Introduction
The claimants are Norman Hill and Terence Welford. They claim title to certain land by adverse possession. The defendant, Transport for London ("Tfl"), disputes the claim. The disputed land comprises the land lying between, and the airspace enclosed by, ten arches built in about 1930 to support a flyover forming part of the A13 (the East India Dock Road) at Canning Town where it rises to cross the River Lea. The claimants make no claim to the structure of the arches.
Title to the relevant land
The former London County Council was originally the registered proprietor of the road, the structure of the arches, the disputed land and certain adjoining land. That land became vested in the Greater London Council ("the GLC"), which was also the highway authority. It was registered under Title No. LN 42480.
On 18 November 1985, in consideration of £22,000, the GLC transferred part of this land to John Elliott and Alan Bailey. The part transferred comprised a triangle of land to the east of Lanrick Road and to the immediate north of, and adjacent to, the arches. It is known as Iron Bridge Wharf North and was registered under Title No. EGL 174822. On the same day, also in consideration of £22,000, Messrs Elliott and Bailey transferred the same land to Blackwall Transfer Station Limited ("BTSL"), a company of which the two claimants were the sole directors and shareholders. The transfers were subject to the following easement reserved to the GLC, namely:
"a right of access approximately four metres wide along the entire length of the retaining wall for East India Dock Road in favour of the [GLC] as is shown coloured brown on the plan annexed hereto".
That right gave the GLC access to the arches (which remained in its ownership) from Lanrick Road and over Iron Bridge Wharf North.
On 20 November 1985, BTSL took a transfer from John Jennings and Messrs Elliott and Bailey of a larger piece of land also lying to the east of Lanrick Road and adjacent to the northeastern boundary of Iron Bridge Wharf North. This land was known as Moody Wharf and was registered under Title No. NGL 71125.
Some time in 1987, BTSL negotiated a proposed sale of the bulk of its land (mainly comprising Moody Wharf but also part of Iron Bridge Wharf North: I will call it "the Shanks land") to Shanks and McEwan (Southern) Limited ("Shanks") for some £3m. No sale agreement is in evidence.
On 26 February 1988, and before the transfer of any land to Shanks, BTSL transferred the land in both its titles to the claimants, a transfer stated to be for a consideration of £300,000. On 29 March 1988, the claimants and BTSL charged Moody Wharf and part of Iron Bridge Wharf North to Shanks "with the payment … of any monies due from the [claimants and/or BTSL] pursuant to the provisions of an agreement dated 29 th March 1988 and made between [the claimants] (1) [BTSL] (2) and the Mortgagor [sic] (3)." No copy of that agreement is in evidence and I assume that "Mortgagor" should read "Mortgagee", a reference to Shanks. A statutory declaration that the claimants made in 2001 suggests that a contract for the sale of the Shanks land was signed on 26 February 1988, and their evidence is that the Shanks land was transferred to Shanks sometime later. The charges register for Iron Bridge Wharf North indicates, however, that the Shanks sale agreement was dated 29 March 1988. The Shanks land did not include a strip of land immediately adjacent to the arches and forming part of Iron Bridge Wharf North, which the claimants retained.
Down to 1 April 1986, the GLC remained the proprietor of the East India Dock Road, the structure of the arches, the land between them and the airspace enclosed by them (such land and airspace being the disputed land). I shall call all this land "the retained land." The GLC was abolished on 1 April 1986, when (by the combined effect of the Metropolitan Roads Trunking Order 1986 and section 265 of the Highways Act 1980) the retained land vested in the Secretary of State for Transport. As from 1 April 1986, the retained land therefore became Crown land.
From about 1988, and during the 1990s, road improvements in the area were planned. They necessitated the compulsory acquisition of certain land, including the disputed land. A compulsory purchase order was made on 6 August 1998. The title to the retained land—including the disputed land—remained in the Secretary of State until 3 July 2000. On that day, and pursuant to article 2 of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000, the disputed land (with other land) was vested (or purportedly vested) in Tfl. Tfl claims that it thereafter took possession of the arches (and so, therefore, also of the disputed land) on various dates between 11 July and 11 September 2000. The claimants dispute that and say that Tfl did not take such possession until 27 November 2000, but nothing turns on that difference.
The issue raised by the claim is whether (as the claimants contend) at the very moment the disputed land purportedly vested in Tfl on 3 July 2000, Tfl's title was extinguished by the claimants' prior adverse possession. It is no part of the claimants' case that, immediately prior to such transfer (that is, by 2 July 2000), they had extinguished the Crown's title to the land. If the claimants are correct, they are entitled to compensation for the compulsory acquisition of the disputed land although quantum remains to be assessed. If they are wrong, their claim fails. Although the claim is in form therefore about adverse possession, it is in reality about money and not about still disputed claims to possession. The claim turns on whether, at any time on or after 3 July 2000, Tfl could have established a title to the disputed land as against the claimants. The case was argued as if it was a claim by Tfl to recover possession of the disputed land from them.
The Crown's title to the disputed land from 1 April 1986 until 2 July 2000 has raised an issue as to the interpretation of the relevant provisions of the Limitation Act 1980. The argument for Tfl, for whom Mr Thomas Jefferies appeared, is that the scheme of the legislation is that, even if the claimants prove all the adverse possession they assert (namely, from November 1985 onwards), the intervention of the Crown's ownership during that period means that the relevant limitation period has not expired. By contrast, the claimants, for whom Mr Kirk Reynolds QC and Mr Philip Kremen appeared, have submitted that this is wrong, although they accept that on their suggested construction of the legislation they need to prove adverse possession of the disputed land by themselves and their predecessor (BTSL) from a date prior to the Crown's acquisition of its title on 1 April 1986. Mr Reynolds accepted that if any such possession only commenced during the Crown's ownership, the claim fails. To see how these rival arguments arise, it is necessary to consider the relevant provisions of the 1980 Act.
Section 15 ("Time limit for actions to recover land") provides, so far as material:
"(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …
(7) Part II of [Schedule 1] contains provisions modifying the provisions of this section in their application to actions brought by, or a person claiming through, the Crown or any spiritual or eleemosynary corporation sole."
Section 17 ("Extinction of title to land after expiration of time limit") provides:
"Subject to —
(a) section 18 of this Act [which is not material]; and
(b) section 75 of the Land Registration Act 1925;
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished."
Section 75 of the Land Registration Act 1925 ("Acquisition of title by possession") provides, so far as material:
"(1) The Limitation Acts shall apply to registered land in the same manner and to the same extent as those Acts apply to land not registered, except that where, if the land were not registered, the estate of the person registered as proprietor would be extinguished, such estate shall not be extinguished but shall be deemed to be held by the proprietor for the time being in trust for the person who, by virtue of the said Acts, has acquired title against any proprietor, but without prejudice to the estates and interests of any other person interested in the land whose estate or interest is not extinguished by those Acts."
Part II of Schedule 1 to the 1980 Act provides, in paragraphs 10 and 12, so far as material (and omitting references to spiritual and eleemosynary corporations sole):
"10. … section 15(1) of this Act shall apply to the bringing of an action to recover any land by the Crown … with the substitution for the reference to twelve years of a reference to thirty years….
12. Notwithstanding...
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