Port of London Authority v Ashmore
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 2009 |
| Neutral Citation | [2009] EWHC 954 (Ch) |
| Docket Number | Case No: HC08C02172 |
| Court | Chancery Division |
| Date | 08 May 2009 |
[2009] EWHC 954 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Mr Stephen Smith QC
Case No: HC08C02172
Charles Harpum (instructed by Port of London Authority) for the Claimant
The Defendant appeared in person
Hearing date: 10th February 2009
Stephen Smith QC sitting as a Deputy Judge of the Chancery Division:
Introduction
This is a claim by the Port of London Authority (“the Authority”) against Rupert Gerald Ashmore, the owner of the sailing barge “Atrato”. The Authority was represented before me by Charles Harpum of counsel, for whose scholarly research I am most grateful; Mr. Ashmore appeared in person.
Atrato is a flat bottomed boat which in her heyday in the early part of the 20 th century was able to access wharves and jetties in and off the Thames River which larger sailing vessels could not reach; she is 84.4 feet long. In 1945 she had an engine installed.
Mr. Ashmore purchased Atrato in 1980. In 1983 Mr. Ashmore sailed Atrato to Albion Wharf (now known as Albion Riverside) in the Thames, close by Battersea Bridge; he dropped anchor, tethered her to the bank fore and aft via the mooring rings set into the wall (which represents the bank of the river at that point), and she has been there ever since, save for a short period of 2 months, 5 years ago, when she was moved to dry dock in Brentford for an overhaul.
Mr. Ashmore had no permission from the Authority to do what he did: the Authority claims that he has been a trespasser on their property since 1983. Nor did he have any express permission to use the mooring rings, though that is not a concern of the Authority because the Authority is not the riparian owner. Mr. Ashmore has at all times lived on Atrato, sometimes alone, sometimes with others, and in those 26 years he has paid nothing to anyone in respect of his residence (his only outgoings in that respect being the premium on Atrato's insurance policy and her registration fees). Mr. Ashmore currently works in the theatre industry in London.
The Authority now wishes to register title to the bed of the Thames. Mr. Ashmore objects to the application in so far as it concerns the area of the bed upon which Atrato comes to rest twice a day at low tide. Mr. Ashmore claims “squatters' rights” to that part of the bed of the river, in other words that he has acquired title to that part of the bed by adverse possession. The Authority disputes Mr. Ashmore's claim, because, so it contends, Mr. Ashmore has not been in sufficient factual possession of the relevant area of the bed of the river; and because, so it also contends, the acts of possession relied upon do not unequivocally demonstrate an intention to possess that area. In its Part 7 claim form the Authority seeks possession of the part of the river bed or foreshore which is occupied by Atrato (together with the space above the bed through which the river flows, and the air column above that); the Authority also seeks an injunction to restrain further trespasses by Mr. Ashmore and declaratory relief. There is no express claim for mesne profits.
On 3.11.08 Master Teverson ordered (by consent) that the following issue be tried as a preliminary issue:
“Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:
(a) the title to the sea or river bed or the foreshore has not been registered; and
(b) the vessel rests on the bed or the foreshore at low tide.”
Master Teverson also directed that the parties should endeavour to agree a statement of assumed facts on the basis of which the preliminary issue was to be determined. I do respectfully question the wisdom of such a direction in a case where a litigant is in person, because litigants in person will not necessarily appreciate what facts are relevant to their case on the legal issues which are raised.
An agreed statement of assumed facts was produced for the purposes of the trial before me only (and without prejudice to the parties' respective pleaded cases). As that statement is not lengthy I shall set it out in full:
“1. The Claimant is a statutory body which, under the terms of the Port of London Act 1968 (“the 1968 Act”), is charged with responsibility for the conservancy of that part of the River Thames that is tidal, as defined more precisely by section 2(1) and Schedule 1 of the 1968 Act.
2. Except where the ownership of the fee simple of the foreshore and bed of the tidal part of the River Thames is vested in some third person, it is vested in the Claimant. It was first vested in the Claimant's predecessor in title, the Thames Conservators, pursuant to the Thames Conservancy Act 1857. The Claimant succeeded to the rights and property of the Conservators pursuant to the Port of London Act 1908.
3. The part of the River Thames which is tidal is necessarily subject to the common law public right of navigation.
4. The Atrato, which is owned by the Defendant, is a sailing barge, believed to have been built in 1898 and rebuilt in 1945. It is approximately 84.4 feet long, 18.6 at the beam and has an internal depth of 6 feet. It is a vessel of some 63 tons or thereabouts.
5. Since at least June 1983, Atrato has been moored in the River Thames at or off Albion Riverside, Hester Road, Battersea, London SW11, adjacent to the part of Albion Riverside that was formerly Albion Wharf. For the purposes of the Preliminary Issue it is assumed that Atrato has been moored in the same place for an unbroken period in excess of 12 years. The vessel's position at its mooring (and therefore its footprint) will not have remained static but will necessarily have moved by reason of wind and tide.
6. The part of the River Thames where Atrato is moored is tidal and is within the limits set out in section 2(1) and Schedule 1 of the 1968 Act. Accordingly, unless the Defendant has acquired title to the fee simple of the bed of the River Thames by adverse possession, that title is vested in the Claimant. The title to this part of the bed and foreshore of the River Thames has not yet been registered at the Land Registry.
7. The depth of the River Thames immediately adjacent to the place where Atrato is moored is shown on the chart annexed to the Particulars of Claim and it indicates the depth of the water to be between 3 and 3.2 metres above the chart datum. The chart datum in this part of the River Thames is 2.29 metres below Ordnance Datum (Newlyn) which is approximately the level of the Lowest Astronomical Tide, which is the lowest low water that can be expected in normal circumstances. Accordingly, although the place where Atrato is moored is always under water at high tide, and there is clearance under that vessel at that and other times, it rests on the exposed foreshore at low tide.”
In his skeleton argument Mr. Harpum made two important concessions of law which it is also appropriate to record at this juncture.
First, Mr. Harpum accepts in principle that title to the bed of a tidal river can be acquired by adverse possession, in the light in particular of the decision of Lindsay J in Roberts v. Swangrove Estates Ltd [2007] 2 P & CR 17.
Secondly, Mr. Harpum concedes that whilst it is accepted that the River Thames where Atrato is moored is subject to the public right of navigation, that of itself would not prevent Mr. Ashmore from acquiring title by adverse possession.
Relevant principles of law
The ability to acquire title to unregistered land by adverse possession (more accurately, to bar the title of the paper title owner) derives from the provisions currently found in the Limitation Act 1980. Section 15(1) of that Act provides:
“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 other person through whom he claims, to that person.”
Schedule 1 paragraph 11(1) substitutes 60 years for any action by the Crown to recover foreshore in any tidal waters, but that provision has no application in this case because the relevant part of the bed of the River Thames has long since ceased to be in the ownership of the Crown. It is accepted by the Authority that the applicable limitation period in this case is 12 years.
Section 17 of the 1980 Act, which applies to land where (as here) title is not yet registered (different rules now apply to registered land), provides that at the expiration of the period prescribed by the Act for any person to bring an action to recover land, “the title of that person to the land shall be extinguished”.
The modern starting-point for a consideration of the law on adverse possession is the speech of Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v. Graham [2003] 1 AC 419, which itself relies heavily on the judgment of Slade J in Powell v. McFarlane (1977) 38 P & CR 452, the judgment of the same judge in the Court of Appeal in Buckinghamshire County Council v. Moran [1990] Ch 623 and the judgment of the first instance judge in the Moran case (Hoffmann J, who had been one of the successful advocates in the Powell case).
In Pye the House of Lords allowed the squatters' appeal from the decision of the Court of Appeal, and restored the decision of the first instance judge that the squatters had demonstrated sufficient factual possession of the land at issue in that case (viz. four fields totalling 25 hectares). In paragraph 40 of his speech, Lord Browne-Wilkinson said that there are two elements to a claim of legal possession which a squatter needs to establish (the burden falling upon the...
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