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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> London Borough of Hounslow v Devere & Ors  EWHC 1447 (Ch) (14 June 2018)
Cite as:  EWHC 1447 (Ch)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF HOUNSLOW
- and –
|(1) DAVID FRANK DEVERE
(2) VERNON CARROLL ROBERTS
(3) ROGER MCGONAGLE
(4) PAUL MENDOZA
(5) STEPHEN ALEXANDER JAVOR
(6) PETER MCCRUDDEN
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
Crown Copyright ©
MR JUSTICE MORGAN:
The order under appeal
(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 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."
"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 application to adduce further evidence
The River Works
"66. Licensing of works
(1) (a) The Port Authority may for a consideration to be agreed or assessed in accordance with section 67 (Consideration for licence) of this Act and on such terms as they think fit, including conditions as to variation and revocation of the licence and reassessment of the consideration from time to time, grant to a person a licence to carry out, construct, place, alter, renew, maintain or retain works, notwithstanding that the works interfere with the public right of navigation or any other public right.
(b) A works licence granted under paragraph (a) of this subsection to carry out, construct, place, alter, renew, maintain or retain works in, under or over land belonging to the Port Authority shall be deemed to confer on the holder of the licence such rights in, under or over land as are necessary to enable the holder of the licence to enjoy the benefit of the licence."
Location: Watermans Park, Brentford.
Brief Description PLA No. for Drawing Staging (elevated roadway); remains of staging; 11507 A, B, C 7 frames; remains of coal hopper staging; " 7 concrete piers ashore, with wooden fenders; " 6 concrete piers midstream; " 20 wooden fender piles, upper end of site; 7529, 1341B 3 wooden fender piles, lower end of site; 9532 3 fender units; 125.5449, 125.6364 1 x 3 pile, 1 x 4 pile dolphins, upper end of coal hopper site; 125.6222 1 x 3 pile, 1 x 4 pile dolphins, lower end of coal hopper site; 125.5621 2 x 12" intake pipes (short lengths, disconnected); 207A, 13270 2 x 18" intake pipes with penstock; 125.3120 Electric cable under backwater (disconnected); 125.4597 Concrete retaining wall (over council sewer); 125.6436".
1. The Port of London Authority ('PLA') permit the person named in Schedule 1 of this Licence to maintain and retain the Works described in Schedule 2 of this Licence ('the Works') from the date hereof (subject as set out hereafter).
2. (1) The consideration for this Licence shall be the annual sum (payable from the starting date set out in Schedule 2) agreed from time to time between the parties or assessed in accordance with Section 67 Port of London Act 1968 ('the Act').
3. The Licensee agrees to observe and perform the obligations set out in Schedule 3 of this Licence and procure that its servants, agents and contractors observe and perform these obligations.
4. Subject to Section 69 of the Act (Appeal to the Board of Trade (now Department of Transport)) the PLA may in any of the following circumstances revoke this Licence by giving to the Licensee not less than the period of notice mentioned in Schedule 2 [the period mentioned in Schedule 2 was 3 months] to expire at any time provided always that such revocation shall be without prejudice to any right or remedy of either party in respect of any antecedent breach of the provisions of this Licence:
(i) if the Licensee … shall be in breach of any of the terms of the Licence … and the Licensee shall fail to remedy such breach within such reasonable period as the PLA shall require
(ii) if any person (other than the Licensee its servants agents or contractors) shall carry out any activity in relation to the Works in breach of Section 70(1) of the Act
(iii) if the PLA shall require revocation of the Licence for navigational or river regime reasons connected with their statutory duties
(v) if the Licensee parts with the ownership of the Works and this Licence is not terminated under the provisions of clause 5(1) below.
Sale/Removal of Works by Licensee
5. (1) Where the Works are sold by the Licensee to a third party ('the transferee') and the transferee applies for and is granted a new licence for the Works this Licence shall terminate with effect from the date of the new licence such termination to be without prejudice to any right or remedy of either party in respect of any antecedent breach of the provisions of this Licence.
5. (2) The Licensee may end this Licence by giving to the PLA notice expiring at any time after the Works have been removed from the River Thames and the riverbed has been reinstated to the PLA's reasonable satisfaction.
Removal/alteration of Works by PLA
6. If the Licensee does not alter or remove the Works in accordance with the Licensee's obligations hereunder the PLA may at its option remove or alter the Works and recover from the Licensee on demand any reasonable expenses incurred by the PLA in so doing.
7. (1) This Licence is personal to the Licensee (save that the rights granted by this Licence may be exercised by the Licensee's servants, agents and contractors subject to the terms and conditions of this Licence and under the Licensee's supervision and control) and is not assignable.
Limitation of Rights Granted
8. This Licence does not confer on the Licensee any right which would or might obstruct private rights appurtenant to any riparian land.
Section 66 Grant
9. This Licence is issued under Section 66 of the Act and does not constitute consent under any other provisions of that Act or under any other Private or General Act of Parliament and nothing in this Licence shall imply or warrant that the Works may be used for any of the purposes herein authorised.
Obligations of the Licensee
1. To pay the consideration promptly as it falls due and not exercise or seek to exercise any right or claim to withhold the consideration or any right or claim to legal or equitable set-off and also to pay the PLA's reasonable charges and costs in connection with the grant of this Licence and the initial negotiation of the consideration…
5. To pay all outgoings including (without prejudice to the generality of the foregoing) any rates in respect of the Works.
Execution and Maintenance of Works
6. To execute and maintain the Works to the PLA's reasonable satisfaction.
Alteration of Works
7. Where alteration of the Works is at the sole discretion of the PLA required for navigational and/or river regime reasons, to alter the Works from time to time to such extent and within such time as the PLA may by notice reasonably require.
Removal of Works
8. Before expiration of any notice of revocation or on expiry of this Licence, should the PLA so require by notice in writing, to remove the Works from the River Thames and to reinstate the riverbed to the PLA's reasonable satisfaction.
9. To indemnify the PLA against all actions, proceedings, claims, demands, damages, expenses, costs and losses arising out of the Works, the use of the Works or the grant of this Licence including without prejudice to the foregoing any claims by either holders of licences under Section 66 of the Port of London Act 1968.
Release of PLA liability
10. Not to make any claim against the PLA in respect of any loss or damage to the Works arising out of the proper exercise by the PLA of their statutory duties or powers.
Siltation and Erosion
11. To accept responsibility for any siltation or erosion caused by the Works.
Marking, Lighting and Fendering
12. To mark, light and fender the Works as the PLA's harbour-master may from time to time direct if he considers such marking, lighting or fendering necessary for navigational or river regime reasons.
13. Not without the written consent of the PLA which so far as is lawful shall not be unreasonably withheld, to use the Works other than the staging as a public walkway.
14. Not to do or allow to remain upon in, under or at the Works anything which may constitute a nuisance or which may cause damage or inconvenience to the PLA or anyone on the Thames or to the riverbed or anything in or on the river and not to use the Works or anything moored thereto for any illegal or immoral purpose.
15.To comply with the lawful requirements of any government department, local or public authority regarding the Works and to indemnify the PLA against any expenses reasonably incurred by the PLA in complying with such requirements as may be imposed on the PLA.
Entry by PLA
17.To permit the PLA to enter on the Works without notice in the case of an emergency or at reasonable times on 48 hours' notice to inspect the Works."
More detail as to the River Works
The legal character of the River Works
"I do not consider that riparian rights attach to the jetties.
The jetties were constructed pursuant to a licence granted by the P.L.A. under section 243 of the Act of 1920. That section, to which reference has already been made, authorised the P.L.A. to grant to any owner or occupier of any land adjoining the Thames a licence to make a jetty immediately in front of his land and into the body of the Thames. In the case of the raw sugar jetty (and we are informed in the case also of the refined sugar jetty), the relevant licence authorised Tate & Lyle to construct a specified jetty in the river Thames off the refinery premises of Tate & Lyle subject to the express condition that Tate & Lyle would remove the jetty on seven days' notice. It seems to me that a jetty thus erected on the foreshore of the Thames vested in the P.L.A. was only a chattel and not realty forming part of the bank of the river belonging to Tate & Lyle, and that such a jetty is not capable of attracting riparian rights. The Court of Appeal (1982) 80 L.G.R. 753 , 787, reversing Forbes J., said, and I agree, that the jetties
"are not part of the riparian tenement, although they are connected to it. They are artificial structures put into the stream under licence and built, not upon the land of the riparian owner, but upon that of the P.L.A. Riparian rights are rights attaching to the fee simple of the land ex jure naturae and it is not easy to see how, at common law, they can become attached to something which is not part of the fee simple and of which the riparian owner has nothing but a permissive and revocable enjoyment." " [Emphasis added]
(1) described Hounslow's claim as a claim in trespass; ;
(2) described the Claimant's land and the River Works: -;
(3) made findings as to the extent of the Claimant's land: -;
(4) discussed the effect of the Licence and held:
" The Claimant the London Borough of Hounslow is the party that is to retain the River Works under the Licence. It has possession and control of the River Works under the Licence subject only to the terms of the Licence.
 The restrictive user clause in Schedule 3, paragraph 13, means that the Claimant can only use the River Works for the staging as a public walkway, subject to obtaining the PLA's written consent for any use which so far as is lawful should not be unreasonably withheld. However, the fact that the use of the River Works is restricted in this way does not detract from the retention of the River Works by the Claimant under the Licence. The Claimant the London Borough of Hounslow has the exclusive right to use the River Works subject only to the terms of the Licence and to obtaining the PLA's written consent for any other use of the River Works, such consent not to be unreasonably withheld.
 The River Works Licence regulates the use of the River Works by the Claimant and is not confined to the public walkway. Pursuant to Section 66(1)(b) of the Port of London Act 1968, the rights deemed to have been conferred by the River Works Licence on the Claimant the London Borough of Hounslow include '…such rights in, under or over the land as necessary to enable the holder of the licence to enjoy the benefit of the licence'.
 As the Claimant says, it has the right by virtue of the River Works Licence to retain possession of the River Works against all persons other than the PLA exercising a right of entry under Schedule 3, paragraph 17, of the Licence. It does not matter that the Claimant is currently making only limited use of the River Works with the PLA's consent.
 This is underlined by the letter from the PLA to the London Borough of Hounslow dated 8 August 2017, the letter at D1135 stating:
'It is the PLA's understanding that the licence granted to the council enables the council to retain the river works as defined in the licence on the PLA's land and to occupy that land exclusively, to the extent necessary to enjoy the benefit of the licensed works. The river works belong to the council who must maintain them while the licence continues and remove them from the PLA's land when it comes to an end'."
(5) described in detail the nature and extent of the moorings for the Appellants' vessels: -;
(6) described in detail the position in relation to electricity cables and water pipes servicing the Appellants' vessels: ;
(7) stated that Hounslow as riparian owner had a private law right to gain access to its frontage by boat and that the mooring by the Defendants interfered with that right and also prevented Hounslow surveying and maintaining the river wall: ;
(8) held that as Hounslow was in possession of the Claimant's land including the river wall, it was not open to the Defendants to claim that someone else owned that land including the river wall: ;
(9) noted that Hounslow claimed that it was in possession of the River Works and for Hounslow (if not in possession of the River Works) to be able to obtain relief in trespass, it only needed to demonstrate an interference with its rights under the Licence, citing Manchester Airport plc v Dutton  QB 133: -;
(10) held that the running of electricity cables and water pipes over the Claimant's land amounted to trespass to that land: ;
(11) held that the mooring to the river wall and to the River Works was a trespass as was the running of electricity cables and water pipes across the Claimant's land and attached to the River Works: ;
(12) held that the Defendants were entitled to use Watermans Park for recreational purposes but this did not permit them to cross Watermans Park to access their vessels or for other purposes ancillary to the unlawful mooring of their vessels: -;
(13) held that when the Defendants climbed on or stepped over the railings at the edge of the walkway to get to their vessels, they contravened Byelaw 6 of the Byelaws made by Hounslow which applied to Watermans Park; Byelaw 6 stated that "no person shall without reasonable excuse climb any wall or fence … or any barrier, railing post or other structure": -;
(14) held that although the Thames Path ran through Watermans Park, the ability of the public to walk along the Thames Path through Watermans Park was with the permission of Hounslow and was not pursuant to a public right of way: –;
(15) held that the entitlement of the Defendants to use Watermans Park was for recreational purposes only: ;
(16) held that Hounslow had not acquiesced for more than 20 years in the mooring of the Defendants' vessels and the running of electricity cables and water pipes: -;
(17) discussed whether the Defendants could establish a defence based on adverse possession of the river bed although Hounslow did not claim to own the river bed and the PLA were not a party to these proceedings: -;
(18) held that the Defendants did not have a defence under Article 8 of Article 1 of the First Protocol in Schedule 1 to the Human Rights Act 1998: -;
(19) held that Hounslow was entitled to injunctions to prevent trespass and unlawful interference with the Claimant's land and the River Works; -;
(20) noted that Hounslow had abandoned its claim for damages in respect of damage to property on the ground that it could not identify the individuals responsible for the damage: ;
(21) held that the Defendants were liable for damages for trespass/mesne profits: -; the amount of the damages awarded against each Defendant was determined following judgment being handed down on 17 November 2017.
The grounds of appeal
The first ground of appeal
The second ground of appeal
"59 So we need to consider whether the rights conferred by the Licence were possessory. There are two elements to the concept of possession: (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 amounts to a sufficient degree of physical custody and control will depend on the nature of the relevant subject matter and the manner in which that subject matter is commonly enjoyed. The existence of the intention to possess is to be objectively ascertained and will usually be deduced from the acts carried out by the putative possessor: J A Pye (Oxford) Ltd v Graham  UKHL 30,  1 AC 419 ."
(1) Hounslow has laid out Watermans Park as a public open space under its statutory powers;
(2) Hounslow has made Byelaws which control the use of Watermans Park;
(3) the public enter upon Watermans Park as the licensees of Hounslow;
(4) Hounslow maintains Watermans Park; the judge specifically referred to acts of grass cutting, planting, cleaning and maintenance.
(1) these items had been in use as part of the Gas Works but that use ceased in 1965;
(2) these items were not removed when the use of the Gas Works ceased; the inference would seem to be that they were left in situ because they were doing no harm to the PLA, who were prepared to permit them to remain, and leaving them in situ avoided having to pay for their removal;
(3) the Licence refers to these items because Hounslow needs the permission of the PLA for these items to remain in situ;
(4) Hounslow does not have any need to use these items; when it applied for the Licence it proposed that it would not make any use of them;
(5) paragraph 13 of Schedule 3 to the Licence at the present time only permits the River Works to be used as the staging of a public walkway; thus, there is no current permitted use of these items;
(6) Hounslow has responsibility for these items under the Licence;
(7) Hounslow has the power to take these items away and, in certain circumstances, can be required by the PLA to take these items away;
(8) the judge did not make any specific findings as to any activities carried out by Hounslow in relation to these items;
(9) the judge did not make any finding as to whether Hounslow paid rates for these items;
(10) whilst these items are affixed to the river bed, title to them is vested in the PLA and not in Hounslow;
(11) paragraph 17 of Schedule 3 to the Licence obliges Hounslow to permit the PLA to enter on the River Works on giving notice, or without notice in the event of an emergency; this paragraph suggests that the PLA is not otherwise entitled to enter on the River Works; the reference to the River Works includes the items now being considered.
"(i) the court has power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence; and
(ii) in every case the question must be, what is the reach of the right, and whether it is shown that the defendant's acts violate its enjoyment."
The third ground of appeal
The fourth ground of appeal
The fifth ground of appeal
The sixth ground of appeal