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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Port of London Authority v Ashmore [2009] EWHC 954 (Ch) (08 May 2009) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2009/954.html Cite as: [2009] EWHC 954 (Ch), [2009] 19 EG 111, [2009] 4 All ER 665 |
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CHANCERY
DIVISION
Strand. London. WC2A 2LL |
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B e f o r e :
Between:
____________________
PORT OF LONDON AUTHORITY |
Claimant |
|
and |
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RUPERT GERALD ASHMORE |
Defendant |
____________________
Charles
Harpum (instructed by Port of London Authority) for the Claimant
The Defendant appeared in person
Hearing date: 10th February 2009
____________________
Crown Copyright ©
Stephen Smith QC sitting as a Deputy Judge of the Chancery
Division:
Introduction
"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."
"1. The Claimant is a statutory body which, under the terms of the Port of London Act 1968 ("the 1968 Act"), ischarged
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 thechart
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."
Relevant principles of law
"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.
"(1) A sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial is to understand that, without the requisite intention, in law there can be no possession."
"…. there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend, he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession."
"The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."
"is not an intention to own or even an intention to acquire ownership but an intention to possess."
And in para. 43 he accepted the reformulation of the test by Slade J in Powell, as one that requires an intention:
"in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow."
"75. ....[the squatters] did everything which an owner of the land would have done and when an experiencedchartered
surveyor, called on behalf of the plaintiffs, was asked in cross-examination what an occupying owner of the disputed land might have done over and above what was done by [the squatters] between 1984 and 1997, he was unable to think of anything.
76. I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion."
Analysis
"Except for the public right of navigation and the Crown rights in the soil ... I see no reason, if the plaintiffs' contention be correct, why they should not in twelve years acquire the fee simple in the soil of the area they occupy under the Real Property Limitation Act."
Mr. Harpum submitted (correctly) that the Judge's observation was an obiter dictum. He also submitted that it was wrong and that I should not follow that guidance in this case.
the land upon which the boat rests at low tide. True it may be, as Mr. Harpum submitted, that at high tide a frogman could have gained access to the bed of the river underneath Atrato, but even if that were not to be regarded as a legitimate use of the public right of navigation, the agreed statement of assumed facts contains no reference to frogmen having swum underneath Atrato (whether employed by the Authority or otherwise), and the point is therefore in this case an academic one.
"Does a squatter, to succeed, have to prove that the acts of possession on which he relies have blanketed the whole of the area he claims?"
The Judge answered that question in the negative and made the following observations, with which I respectfully agree:
"63. There is thus ample authority for the proposition that acts on one part of an area may be treated as constituting possession of the whole area provided that there is "such a commoncharacter
of locality as would raise a reasonable inference" that, if a person were possessed of one part of it as owner then he would so possess the whole of it. Plainly, the principle has been applied to rivers and there is nothing about an area being frequently entirely covered with water and not having visibly marked-out boundaries where it adjoins other waters that denies its application.
64. ... Quarrying, opencast mining and dredging come to mind as examples where it may only be on limited parts and over a period of years that the squatter can conduct operations on the land he possesses. Unless a practical view is taken of possession of part representing possession of the whole there would be many cases in which acquisition of the whole by actual possession would be impossible."
"a series of acts, often, I accept, with a large elapse of time between them, but which relate to widely spread parts [of the disputed area] and, whilst none alone would have been at all conclusive, together they are such as to have a cumulative force as all of them tend towards the same conclusion, namely that there has been unchallenged and at least spasmodic control and possession [of the disputed land by the squatter]."
"In general, intent has to be inferred from the acts themselves."
(a) an exercise of the public right of navigation;
(b) an exercise of riparian rights by a riparian owner;
(c) a licence, which might or might not be coupled with a lease of the moorings themselves;
(d) an easement for the benefit of the land on the shore or bank.
heard full argument on the point I would go further and find that in this case Mr. Ashmore has established the necessary fact of possession and intention to possess, to have acquired title to the relevant part of the bed of the Thames adjacent to Albion Riverside.