The Port of London Authority v Tower Bridge Yacht & Boat Company Ltd
|England & Wales
|Mr Justice Mann
|14 October 2013
| EWHC 3084 (Ch)
|Case No: HC11CO0165
|14 October 2013
 EWHC 3084 (Ch)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
7 Rolls Buildings
London EC4A 1NL
Mr Justice Mann
Case No: HC11CO0165
Mr Charles Harpum (instructed by PLA) for the Claimant
Mr David Holland QC (instructed by Browne-Jacobson LLP) for the Defendant
Hearing dates: 20th–24th May, 5th–7th June, 10th June 2013
HTML VERSION OF JUDGMENT
Introduction and geography
This case concerns the nature and extent of mooring rights on the Thames in an area known as Downings Roads. A short distance downstream from Tower Bridge, on the south bank, one finds St Saviour's dock, now a small inlet with a road at one end, the Thames at the other and lined by old buildings. A bridge crosses its mouth (designed, as it happens, by Mr Lacey, the man behind the defendant company). Immediately downstream of that entrance one finds a collection of substantial barges (currently 29 in number, but it can vary by one or two) which are lived on by a significant number of people (more than 100). They are moored a few yards offshore, but connected to the land by a pontoon or walkway coming from what is said to be a public passageway called Mill Stairs. Most of the barges are residential (houses on the water), but there are communal barges which provide shared facilities including semi-permanent "collar barges" to which the residential barges are directly or indirectly fixed, and one called the "Arts Ark", which holds a grand piano (apparently stored, wrapped up, in the open air, somewhat remarkably) and on which concerts and other events are also held. Some of the barges have substantial gardens on them — not just small plants, but some substantial shrubs and small trees. Another barge stores "black water" and one provides bicycle storage. The collar barges are owned by the defendant ("TBY"). The other barges are owned by individuals and they have licences from TBY which entitle them to moor at the moorings. As well as providing a site for moorings, TBY also provides facilities such as electricity, and arranges for waste removal. The barges now constitute a significant community of people living on the water in central London.
A large number of aspects of this dispute can only be understood by frequent reference to plans, both current and historic. The present physical arrangement can be best seen from the plan in Appendix 1. On that can be seen the various fixed barges and the pontoon/walkway arrangement. On the land side the pontoon leads from a passageway to "Mill Stairs". Those stairs were, until their removal, steps leading down to the river at a point at which ferrymen could be engaged to carry people across the Thames or to another destination along the Thames. There used to be a significant company of such watermen providing such services there. The steps down have long since disappeared, as has a stone walkway on the river bed which, at low tide, enabled customers to reach the boats. The pontoon now goes from what would have been the top of the stairs, accessed through a passageway (technically probably still a highway) through a building known as Reeds Wharf, owned by Mr Lacey. From there a visitor crosses a stretch of planking on to a permanently moored collar barge, then over another "bridge" of planking and on to one of several more collar barges. A collar barge is one which is permanently moored and to which other boats can, in turn, be moored. The arrangement in the current community is that there are some 8 collar (or otherwise permanent) barges permanently moored and the residential barges are each attached to those collar barges or moored to each other with the innermost barge being moored to the collar barges. The "Areas for berths" can be seen on Appendix 1; the actual arrangement of the residential barges can be seen on the photograph at Appendix 7.
The moorings of the collar barges (but not the residential barges) take the form of some form of fixing mechanism in the bed of the river (a "mooring root"), or in two cases to rings fixed to a wall on the land, to which heavy chains are attached. Those chains are then attached to the collar barges. It is moorings such as those which are the subject of this action. Mr Lacey, on behalf of the defendant company, claims to have the benefit of 25 such roots, though he currently uses only 10, and he claims that they are "ancient moorings", by which he means moorings which have been there since before 1857 (the significance of that date will become apparent). If he is right about that then he does not need a licence to have the moorings; there is a dispute as to his entitlement to replace them though. If and insofar as they date from a date after 1857 he claims to be entitled to them through estoppel or limitation. All but one of the roots are above the waterline at low water. At low water many of the barges rest on the bed of the river.
The claimant ("the PLA"), is the authority in whom the bed of the river is vested, and claims that the defendant company has no such entitlement. It says that the laying and maintenance of any such moorings requires a licence, which the defendant does not have. It accepts that any moorings which pre-date 1857 do not, as such, have to be licensed, but it disputes the factual assertion that the moorings pre-date 1857 and disputes the estoppel and limitation claims. There are about 23 to 25 roots which come into the historical picture, but at the trial the PLA confined its claim for a declaration to 10 roots on which work was actually done.
The case therefore primarily involves a determination of whether or not the defendant requires a licence. At the outset of the trial Mr Charles Harpum, who appeared for the PLA, made it clear that if it wins the PLA will not be requiring the removal of the barges. It will merely require a licence, through which it would be able, so far as necessary and appropriate, to control the moorings.
These proceedings take the form of a claim by the PLA to declaratory relief as to the nature of the rights, if any, of the defendant in relation to the moorings, which is said to require declarations as to the "true meaning and effect" of a key piece of legislation. There is also a claim for damages for trespass with an alternative claim for payment of all sums received by the defendant for authorising the mooring of vessels at the moorings. There was no material reference at the trial to the financial aspects of the claim, which will have to be dealt with later, so far as relevant, though by the same token there was no express abandonment of them. I shall not say anything about them in this judgment. The defendant counterclaims for a declaration that it is entitled to use all 23 moorings, a declaration that it is entitled to registered as proprietor of the moorings at HM Land Registry and that it is entitled to use the moorings as a right appurtenant to its title to an adjacent passageway called Mill Stairs. This last point no longer arises in the litigation.
The form of the pleadings is said to justify and require a further inquiry beyond that which turns on the existence or otherwise of these moorings in 1857, namely what the nature of the defendant's right to moor (if any) is. By the end of the trial the defendant was arguing for rights under a franchise, and rights under the Limitation Acts. These are points that I deal with relatively shortly at the end of this judgment.
I add one last introductory point. It is clear that what is now concerning the PLA in practical terms is not so much the actual presence, whereabouts and status of all the individual moorings. It is the overall use, and particularly the physical extent (footprint), of the moorings. That particular concern is, however, not directly in issue in these proceedings. It is the status of the moorings (which enables the extent) which is.
Mr Charles Harpum appeared for the PLA; Mr David Holland QC appeared for the defendant. Before the hearing started I had two views of the site of the dispute, one at low tide and one at high tide. Those views (and particularly the former) were of great assistance in understanding the surroundings and the case.
Some terminology, concepts and engineering
In order to understand some of the history and some of the evidence it will be useful to have the meaning of some important expressions and concepts established at this stage. The following points are drawn from the evidence of various witness who gave evidence before me.
(a) "Mooring root". As explained above, this is something that is placed in the bed of the river to which a mooring chain can be attached. Historically they might have been of wood or stone. Some of the wooden ones were very substantial because they had to be capable of holding large sea-going vessels. Some of them would be anchors — single fluke anchors, usually, because one would not want the upper fluke projecting from the river bed, particularly if boats grounded at low tide. In more modern times concrete has been used, as have engine blocks. In yet more modern times a screwed root would be deployed, but that requires more specialist equipment, and on the Thames such roots are only deployed by the PLA which has the specialist equipment. A mooring in the ground is called a "ground mooring" (appropriately enough).
(b) "Bridle chains" or "bridles". A boat may be moored directly to a chain emanating from a root, or it may be attached to another, perhaps lesser, chain, which is itself attached to a main mooring chain. These other chains are called "bridle chains".
(c) "Breasting chains". These are chains which are arranged so as to prevent lateral, as opposed to fore and aft, movement.
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