The Mayor and Burgesses of the London Borough of Hounslow v David Frank Devere
|England & Wales
|Mr Justice Morgan
|14 June 2018
| EWHC 1447 (Ch)
|Case No: CH-2017-000286
|14 June 2018
 EWHC 1447 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Case No: CH-2017-000286
Mr Christopher Jacobs (instructed under the Bar Public Access Scheme) for the Appellants (apart from Mr DeVere)
Mr DeVere appeared in person
Mr Gary Blaker QC (instructed by K & L Gates LLP) for the Respondent
Hearing dates: 30 April and 1 May 2018
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.
This is an appeal, with permission granted by Marcus Smith J on 22 January 2018, on specified grounds of appeal only, against the order dated 17 November 2017 made by His Honour Judge Wulwik sitting in the County Court at Central London.
The Appellants are Mr DeVere, Mr Roberts, Mr McGonagle, Mr Mendoza, Mr Javor and Mr McCrudden. The Appellants were some of the Defendants in the proceedings in the County Court; the other Defendants have not appealed. Mr DeVere appeared in person in the County Court and on this appeal. The other appellants were represented on this appeal by Mr Jacobs who did not appear at the trial in the County Court.
The Respondent is the London Borough of Hounslow (“Hounslow”) which was the Claimant in the County Court. It was represented on this appeal by Mr Blaker QC who also did not appear at the trial.
The order under appeal
The order of 17 November 2017 referred to “the Claimant's land” and to “the River Works”, both of these terms having been defined in the Particulars of Claim. I will continue to use these terms in this judgment. The Particulars of Claim defined “the Claimant's land” as the freehold land on the south side of High Street, Brentford which was registered at the Land Registry under title number NGL163915 and defined “the River Works” as the works which were the subject of the River Works Licence of 20 August 1996 (“the Licence”).
By the order, the judge:
(1) ordered the Appellants within 21 days to remove certain vessels which were owned by them or under their control from their present moorings alongside the Claimant's land and the River Works;
(2) ordered the Appellants within 21 days to remove certain cables, pipes, walkways, gangplanks, ladders and other means of access or services running from or connected to their vessels to the river embankment and adjoining land;
(3) ordered that the Appellants, after removal of their vessels be restrained from a number of activities in relation to the Claimant's land and the River Works;
(4) declared that, if the Appellants failed to comply with the above orders, then the Claimant could remove the vessels and the other items referred to above left on the Claimant's land and the River Works and dispose of them as it say fit without incurring liability, civil or criminal, to the Appellants;
(5) ordered the Appellants to pay damages and/or mesne profits in the amounts specified in the order;
(6) made provision for the Appellants and the other Defendants to pay the Claimant's costs.
The extent of the Claimant's land
The Claimant's land is the land comprised in title number NGL163915, of which Hounslow is the registered proprietor. The registered title states that where the land abuts the River Thames the boundary of the land is the line of mean High Water of Medium Tides from time to time. In his judgment, the judge described the history of the use of this land. It had previously been used by Brentford Gas Works and the judge said at :
“The Gas Works supplied town gas to Brentford, with raw materials arriving by boat on the River Thames. The Gas Works included crane staging with coal hoppers, gangways, staging, fender piles, ladders, conveyers and dolphins. The Gas Works were closed in 1965, the site was cleared on the landward side and was partially cleared in the river.”
Hounslow acquired the Claimant's land in 1971 and developed it as a public open space as to which the judge made the following findings at :
“The freehold land in the Claimant's title number in NGL163915 was redeveloped to provide Watermans Park which opened on 26 March 1982 and which was intended by the Claimant to be a public open space for recreational use only. It is said by the Claimant to be an important recreational facility for local residents providing a number of walkways, areas of grass and a children's playground, maintained by the London Borough of Hounslow for public recreational use only, and with the local authority undertaking grass cutting, planting, cleaning and maintenance of the park. The local authority assert that users of the park have a bare licence to use the park as a public open space for recreational use only.”
The judge made specific findings as to the boundary of the Claimant's land in two respects. The first specific finding concerned the ownership of a river wall which he dealt with at –. He described the position of the river wall and held that it was included within Hounslow's registered title and was therefore part of the Claimant's land. The second specific finding related to the eastern boundary between Watermans Park and Victoria Steps which he held, at –, was the subject of a boundary agreement between Hounslow and Victoria Steps Quay Ltd which was noted on Hounslow's registered title and which was effective to define the eastern boundary of the Claimant's land.
The application to adduce further evidence
Mr DeVere had contended before the judge that the river wall was not included in the Claimant's land. Mr DeVere's Appellant's Notice contained a ground of appeal seeking to challenge the judge's finding as to the ownership of the river wall. Mr DeVere's application for permission to appeal was considered by Marcus Smith J at an oral hearing on 22 January 2018. Mr DeVere was represented by counsel at that hearing. At the same hearing, Marcus Smith J dealt with the application by the other Appellants for permission to appeal. He gave a reasoned judgment dealing with the applications before him. His reasons addressed the grounds of appeal put forward by the other Appellants but did not specifically address the grounds of appeal put forward by Mr DeVere and, in particular, did not address the ground of appeal relating to the ownership of the river wall. However, the order which was drawn up to give effect to the decision made on 22 January 2018 was that Mr DeVere should be permitted to appeal on his grounds of appeal but only to the extent to which those grounds matched the grounds on which the other Appellants were given permission to appeal. Mr DeVere was refused permission to appeal on all other grounds and this refusal therefore extended to the ground of appeal relating to the river wall.
Notwithstanding the refusal of permission to appeal in relation to the ownership of the river wall, on 3 April 2018, Mr DeVere applied for permission to adduce what he said was further evidence which he submitted showed that the river wall was not part of the Claimant's land. At the hearing of the appeal, Mr DeVere made submissions in support of his application to adduce this evidence. He did not address the issue of the court's jurisdiction to permit him to adduce this evidence and then, presumably, to advance a ground of appeal that the judge was wrong to hold that the river wall was part of the Claimant's land, even though he had earlier been refused permission to appeal on that ground.
As Mr DeVere had been refused permission to appeal in relation to the ownership of the river wall, he is not entitled to raise that issue on this appeal unless I am persuaded to re-open the earlier refusal of permission to appeal on this ground pursuant to CPR 52.30. I only have power to re-open the earlier refusal of permission to appeal under that rule if I take the view that it is necessary to do so in order to avoid real injustice and that the circumstances are exceptional and it is therefore appropriate to re-open the refusal of permission to appeal and that there is no other effective remedy.
The most recent authority on the jurisdiction conferred by CPR 52.30 is where the earlier authorities were reviewed. The jurisdiction can only properly be invoked where the integrity of the earlier decision to refuse permission to appeal was critically undermined and where there is a powerful probability that the decision on permission to appeal would have been different, if the integrity of the earlier decision had not been critically undermined: see at  and .
Mr DeVere did not make any submissions as to how the integrity of the decision to refuse him permission to appeal in relation to the ownership of the river wall had been undermined. As I have indicated, Mr DeVere was represented by counsel at the hearing on 22 January 2018 and I have no reason to think that anything untoward happened at that hearing.
The suggested further evidence related to endorsements which had been made on 25 February 1972 in respect of three licences granted to the Brentford Gas Company on 17 June 1878. Mr DeVere told me that the three licences (but without the endorsements) were before the judge at the trial. The judge did not specifically refer in his judgment to the three licences although he did say that Mr DeVere's “historical analysis has been rejected in previous proceedings”...
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The Mayor and Burgesses of the London Borough of Hounslow v David Frank Devere
...for handing down Mr Justice Morgan 1 On 14 June 2018, I handed down judgment in this case. The neutral citation of that judgment is  EWHC 1447 (Ch). That judgment was in relation to an appeal against the order dated 17 November 2017 made by His Honour Judge Wulwik sitting in the Coun......