England and Wales Land Registry Adjudicator

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

IN THE MATTER OF TITLE AGL208200

 

Case Numbers: REF/2011/0733/0734/0735/0736/0737/0738/0739/0742/0749/0751

 

BETWEEN

Port of London Authority

 

APPLICANT

 

and

 

David Frank DeVere & Others

 

RESPONDENTS

 

(References under Group 1)

 

Property Address: Bed and foreshore of the River Thames at Watermans Park, Brentford: Brentford Ait to the River Brent

 

 

AND IN THE MATTER OF TITLE AGL203923

 

Case Numbers: REF/2011/0740/0741/0744/0745/0746/0747/0752/0753/0755

 

BETWEEN

Port of London Authority

 

APPLICANT

 

and

 

James Wilson Muggoch & Others

 

RESPONDENTS

 

(References under Group 2)

 

Property Address: Part of the bed and foreshore of the River Thames adjoining the Hollows, Brentford

 

Before: Mr Edward Cousins sitting as the Adjudicator to HM Land Registry

 

Sitting at: Victory House, 34 Kingsway, London WC2B 6EX

On: 23 ^rd, 24 ^th and 25 ^th October 2012

 

 

Applicant Representation: Mr Christopher Stoner QC, instructed by the Legal Department, Port of London Authority

Respondent Representation: See Paragraph 8 and Annex 2, below

 

 

DECISION

 

 

KEYWORDS: Trial of a preliminary issue as to whether the Applicant can establish documentary title to part of the bed and foreshore of the River Thames; the “ad medium filum” rule; true construction of the words “in front of or immediately adjacent to”; Port of London Act 1908, sections 1, 7; Port of London Act 1912; Port of London Act 1968, section 212, and Schedule 11; Thames Conservancy Act 1857, sections 50, 51; Thames Conservancy Act 1894, sections 58, 59; Port of London (Consolidation) Act 1920, section 7; Crown Lands Act 1702, section 5; Crown Lands Act 1853, section 5; Crown Lands Act 1829, section 8; Law of Property Act 1925, section 62(3); Poor Law Amendments Act 1868, section 27;

 

Cases referred to: Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B & Ad 792; R v The Board of Works for the Strand District (1863) 4 B & S 526; 122 E.R. 556; Piper v Wakeford [2008] EWCA Civ 1378; Joyce v Rigolli [2004] EWCA 79; Neilson v Poole; R v Musson (1858) 8 E & B 900; 120 E.R. 336; Duke of Bridgewater v Bootle – cum – Linacre (1866) LR 2 QB 4; Feather v R (1865) 6 B & S 257; Baxendale v Instow Parish Council [1982] Ch 14 at 26B to 29C; White v Taylor (No 2) [1969] Ch 160; Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896; Chartbrook Limited v Persimmon Homes Ltd [2009] 1 AC 1101; Blanchfield v Att Gen of Trinidad and Tobago [2002] UKPC1

 

THE APPLICATION

1.                   By an application made in Form FR1 dated 1 ^st July 2009 (“the First Application”) the Port of London Authority (“the Applicant”) applied to HM Land Registry to register land edged red on the plan accompanying the Application. This is to be found in the bundle of documentation prepared for the hearing. [1] The land edged red is defined in Box 2 of the Application as being the “Part of the bed and foreshore of the River Thames adjoining The Hollows, Brentford, between Kew Bridge and Brentford Ait.” The Application is supported by a statutory declaration made on 20 ^th April 2009 Mr John Anthony Allan Ball who is the Applicant’s Head of Property. The land the subject of the First Application has been given the pending title number AGL203923. A number of objections were made to the First Application, the objectors being defined as the “Group 2 respondents”. This is in accordance with the designation used in the Order made by the Adjudicator dated 15 ^th August 2011.

 

2.                   By a further application made in Form FR1 dated 16 ^th November 2009 (“the Second Application”) the Applicant applied to HM Land Registry to register land edged red on the plan accompanying the Application. [2] The land edged red is defined in Box 2 of the Application as being the “Foreshore and bed of the River Thames at Waterman’s Park, Brentford: Brentford Ait to the River Brent.” The Second Application is supported by a statutory declaration made on 10 ^th November 2009, again by Mr Ball. A number of objections were also made to the Second Application, the objectors being defined as the “Group 1 respondents” in accordance with the designation used in the Order dated 15 ^th August 2011.

 

3.                   In so far as the First Application is concerned the Land Registry has delineated the red land by reference to an illustrative plan to which I shall refer hereinafter as the “First Application Plan”. In so far as the Second Application is concerned the Land Registry has delineated the red land by reference to a notice plan to which I shall refer hereinafter as the “Second Application Plan”. In this Decision I shall refer to the land the subject matter of the First and Second Applications generically as the “Red Land”.

 

4.                   Put shortly, the basis of the Applicant’s case is that it is asserted that the Red Land was vested in it by virtue of section 7 of the Port of London Act 1908 (“the 1908 Act”), and other statutory provisions. A number of objections were made to the First and Second Applications it being contended that the Red Land delineated on the First and Second Application Plans is not vested in the Applicant. Suffice to say that a number of substantive challenges have been made to both Applications by a number of respondents which include claims for adverse possession of the foreshore and river bed. However, the hearing which took place in October 2012 was concerned with a preliminary issue (“the Preliminary Issue”) which had been identified during the procedural stages following the referral of the various cases to the Adjudicator by HM Land Registry (“the Adjudicator”).

 

5.                   Accordingly, this Decision is directed to the resolution of the Preliminary Issue. Not all of the Group 1 and Group 2 respondents have chosen to contest the Preliminary Issue, but instead seek to assert the resolution of their substantive claims in the event that the Applicant establishes title to the Red Land under the pending title numbers AGL208200 and AGL203923. At this stage, therefore, those persons are playing no part and did not appear, nor were they represented, at the hearing. The identity of these respondents is set out in Annex 1 to this Decision. Those respondents who have made representations to the Preliminary Issue are hereinafter referred to as “the Respondents”.

 

THE PRELIMINARY ISSUE

6.                   On 15 ^th August 2011 the Adjudicator ordered that there be the hearing of the Preliminary Issue defined as follows:-

 

“5. The Adjudicator will first consider, as a preliminary issue, whether or not the Applicant has established documentary title to the [Red land].

 

6. Only if and insofar as the Adjudicator determines that the Applicant can establish documentary title to the Properties will the Adjudicator then go on to consider the Respondents’ various claims to have:-

 

(1)    Defeated that title by adverse possession, and/or

(2)    Have any interest in the Property.”

 

REPRESENTATION

The Applicant

7.                   Christopher Stoner QC represented the Applicant at the hearing of the Preliminary Issue.

 

8.                   Insofar as the Respondents are concerned the position with regard to representation is somewhat complex. I have set out in Annex 2 my understanding of the position as to representation of these various parties who appeared at the hearing of the Preliminary Issue.

The Respondents

Group 1 References

 

Case Number: REF/2011/0733/0734/0736/0749

 

Title Number: AGL208200

 

Property: Bed and foreshore of the River Thames at Watermans Park, Brentford: Brentford Ait to the River Brent

 

Applicant: Port of London Authority

 

Respondents: David DeVere (REF/2011/0733), London River Company Ltd. (REF/2011/0734), John James Crabtree (REF/2011/0736), James Mason (REF/2011/0749)

 

 

Group 2 References

 

Case Number: REF/2011/0744/0746/0753/0755

 

Title Number: AGL203923

 

Property: Part of the bed and foreshore of the River Thames adjoining the Hollows, Brentford

 

Applicant: Port of London Authority

 

Respondents: London River Company Ltd. (REF/2011/0744), David DeVere (REF/2011/0746), Morlandia Ltd. (REF/2011/0753), Susan Penhaligon (REF/2011/0755)

 

9.                   In the Group 1 references Statements of Case have been filed by the following Respondents:

 

(1)                David Frank DeVere (the First Respondent) - Statement of Case filed 6 ^th October 2011;

(2)                The London River Company Limited (the Second Respondent) - Statement of Case filed 6 ^th October 2011;

(3)                John James Crabtree (the Fourth Respondent) - Statement of Case filed 8 ^th November 2011;

(4)                James Edward Mason (the Ninth Respondent) - Statement of Case filed 6 ^th October 2011.

 

10.               In the Group 2 references Statements of Case have been filed by the following Respondents:

 

(1)                The London River Company Limited (the Third Respondent) - Statement of Case filed 6 ^th October 2011;

(2)                David Frank DeVere (the Fifth Respondent) - Statement of Case filed 6 ^th October 2011;

(3)                Morlandia Limited (the Eighth Respondent) - Statement of Case filed 8 ^th November 2011;

(4)                Susan Penhaligon (the Ninth Respondent) - Statement of Case filed 8 ^th November 2011.

 

SKELETON ARGUMENTS AND PRELIMINARY SUBMISSIONS

The Applicant

11.               In support of its case the Applicant relied upon a comprehensive Skeleton Argument dated 12 ^th October 2012. I shall deal with the various points made by the Applicant in detail, below.

 

The Respondents

12.               The Respondents in general have relied upon their statements of case in support of their opposition to the First and Second Applications. However, in addition written submissions have been made by a number of the Respondents. In the case of Mr DeVere he has also made a number of written representations since the conclusion of the hearing. [3]

 

Mr DeVere

Original submissions

13.               Mr DeVere made detailed written submissions described as “Six Outline Submissions” sent under cover of a letter dated 15 ^th October 2012. [4] In the covering letter Mr DeVere states that the London River Company Limited (REF/2011/0734) and Mr Mason (REF/2011/0749) had asked that these submissions stand as their written submissions as well.

 

Subsequent representations

14.               Following the conclusion of the hearing of this case on 25 ^th October 2012 Mr DeVere under cover of a letter dated 27 ^th October 2012 provided further written submissions ostensibly in reply to the oral submissions made by Mr Stoner QC, on behalf of the Applicant, during the course of the hearing. Specifically Mr DeVere said he wished to respond to the submissions made by Mr Stoner QC in answer to his submission that the interest held by the Applicant’s predecessors in title was a “determinable fee”, or a “determinable usufruct”. This he asserted meant that the Applicant not no legal interest capable of registration. In a further letter dated 3 ^rd November 2012 Mr DeVere explained that as part of his “continuing archival research” he had recently examined the archival bundles associated with the construction of Kew Bridge in 1782 which included a copyhold deed of November 1784. Under cover of a yet further letter dated 18 ^th December 2012 Mr DeVere provided a copy of the copyhold deed itself which he said indicated that the foreshore to the low water mark of the River Thames was part of the wastes of the Manor of Ealing. I shall refer to these submissions/representations made by Mr DeVere and the Applicant’s subsequent response in its letter dated 13 ^th November 2012 in more detail, below. [5]

 

15.               The Applicant has chosen not to respond to the letter from Mr DeVere dated 18 ^th December 2012, or its contents, although it did respond to the Mr DeVere’s earlier letters dated 27 ^th October 2012 and 3 ^rd November 2012. Since the receipt by Mr DeVere of the Applicant’s letter dated 13 ^th November 2012 he has responded in a letter dated 2 ^nd February 2103 where he takes issue with the points raised by the Applicant. He asserts that there is clear evidence that the foreshore was part of the Manor of Ealing both before and after 1857 which, he says, the Applicant is choosing to ignore.

 

 

 

Mr Crabtree, Morlandia Limited and Susan Penhaligon

Preliminary issues - application

16.               At the commencement of the hearing Mr Stafford-Michael (with Mr Jarman) made it be known that they were instructed to represent Mr Crabtree, Morlandia Ltd and Ms Penhaligon. [6] Oral submissions were made at the outset by Mr Stafford-Michael that oral evidence should be given particularly of an expert nature directed to the true construction of the various deeds and documents. The admissibility of “extrinsic” evidence relating to the production of some of these documents was also challenged. Mr Stafford-Michael stated that “for the record” he wished it to be known that the documentary evidence relied upon by the Applicant was fragmentary and hearsay and objectionable. It was contended by him that this would give rise to procedural unfairness if such “hearsay” evidence were to be admitted. Mr Stoner QC took issue with these submissions.

 

17.               With regard to Morlandia Ltd, a separate point was raised by Mr Stoner QC as to whether the company had provided the requisite authority through its company director (Mr Alonso) to Mr Morton/ Mr Stafford-Michael and Mr Jarman to represent it during the hearing. On hearing representations on the matter I was satisfied that Mr Alonso had provided the requisite authority.

 

18.               During the afternoon of the second day of the hearing (24 ^th October 2012) Mr Stafford-Michael and Mr Jarman then produced a written skeleton argument on behalf of Mr Crabtree, Morlandia Limited and Miss Penhaligon in support of applications made by Counsel. This skeleton argument advanced further submissions on the points taken at the commencement of the hearing on the Preliminary Issue directed to whether the Applicant could demonstrate documentary title to the Red Land. Other issues were also raised as to (1) extrinsic evidence; and (2) the fairness of the hearing in that the Applicant had elected not to call oral evidence thereby (it was contended) depriving the Respondents of their desire to cross-examine the Applicant’s witnesses, in particular Mr Ball, the Applicant’s Head of Property.

 

19.               The basis of the applications made by Mr Stafford-Michael (and Mr Jarman) was that the First and Second Applications should be, in effect, summarily dismissed, or the hearing be adjourned to enable the Applicant properly to research the question of title. It was submitted that this required a search of all available records, and without effecting such a search it could not be said that the Red Land fell within the grant. It was contended by Mr Stafford-Michael that witnesses should be called by the Applicant in order to prove the Applicant’s documentary case and should be cross-examined on the efficacy of the various deeds and documents upon which the Applicant relied. In particular Mr Stafford-Michael wished to cross-examine the Applicant’s witnesses on the circumstances surrounding the January 2009 Deed of Compromise which he described as a self-serving document. In this regard it was also suggested that legal professional privilege had been waived by the disclosure of the 19th century Opinion provided by Mr Wolstenholme and Mr Eldon Banks [7] and that it was profoundly unfair that the Applicant had not disclosed Counsel’s Opinion prior to this Deed being drawn up. I then heard submissions from Counsel for the Applicant in answer to the points made.

 

Decision

20.               I thereafter ruled on the submissions and rejected the applications made by Mr Stafford-Michael. My reasons were as follows – the applications were made at a very late hour and no prior notice had been given to the Applicant, or the Adjudicator of this. Indeed, nobody was aware until shortly before the commencement of the hearing that Mr Stafford-Michael and Mr Jarman had apparently been instructed on behalf of the three Respondents in question. Further, I found that there was absolutely no merit in the submissions as it was a matter for the Applicant to decide on the proper course of proving its case on the true construction of the deeds and documents in question together with reliance upon extrinsic evidence, if necessary. The Applicant was under no duty to call live witnesses. There was no obligation to rely upon expert evidence, and indeed (as I pointed out to Mr Stafford-Michael) it is the court’s function to make appropriate rulings on the true construction of the same which I found would not be assisted by the introduction of expert evidence. In short, I found that the various deeds and documents could be construed on their face. If the interpretation of such documents did not bear out the meaning asserted by the Applicant then I would find against the Applicant on the Preliminary Issue, but I would not be aided by expert evidence in this process. I also rejected the submission that legal professional privilege had somehow generally been waived by the introduction of the 19 ^th century Opinion from Mr Wolstenholme and Mr Eldon Banks.

 

21.               Accordingly, I dismissed the applications and the hearing proceeded. The aspect of the admissibility of extrinsic evidence I deal with below. [8]

 

CHRONOLOGY OF PRINCIPAL EVENTS

22.               18 ^th December 1856 – Articles of Agreement between City of London and Crown [9] (“the December 1856 Articles of Agreement”)

24 ^th February 1857 – Indenture between The Queen’s Most Excellent Majesty (1) Charles Alexander Gore (2) Mayor, Commonalty & Citizens of London (3) [10] (“the February 1857 Conveyance”)

17 ^th August 1857 – Thames Conservancy Act [11] (“the 1857 Act”)

30 ^th April 1862 - Plans of land retained by Crown apparently drawn up. These plans have since been lost [12]

1885 - Case stated to Counsel, Mr Wolstenholme and Mr Eldon Bankes, in relation to questions that had arisen between the Crown and the Thames Conservators including “regarding those portions of the river bed and shore adjacent to the land belonging to the Crown.”

1887/1888 - Larger copy plans of those made in 1862 showing land retained by Crown drawn up. These plans have since also been lost [13]

1894 - Thames Conservancy Act 1894 [14] (“the 1894 Act”)

21 ^st December 1908 – Port of London Act 1908 [15] (“the 1908 Act”)

1910 - Plans of land retained by Crown, believed to be based on those prepared in 1887/1888 [16]

22 ^nd December 1911 – Agreement between Commissioner of His Majesty’s Woods etc (1) & PLA (2) assigning entitlement to income [17] (“the December 1911 Agreement”)

7 ^th August 1912 - Port of London Act 1912 [18] (“the 1912 Act”)

1 ^st January 1913 – Conveyance between King (1) George Granville Leveson Gower (2) and the Applicant (3) in respect of entitlement to income [19] (“the January 1913 Conveyance”)

1920 - Port of London (Consolidation) Act 1920 [20] (“the 1920 Act”)

1968 – Port of London Act 1968 [21] (“the 1968 Act”)

26 ^th January 2009 – Deed of Compromise made between The Queen (1) The Crown Estate Commissioners (2) and the Applicant (3) [22] (“the January 2009 Deed of Compromise”)

11 ^th January 2010 – Deed of Variation made between The Queen (1) The Crown Estate Commissioners (2) and the Applicant (3) [23] (“the January 2010 Deed of Variation”)

 

BACKGROUND TO THE APPLICANT’S CASE

23.               The Applicant is the statutory successor to the Thames Conservators it having been created by the 1908 Act. Its stated purpose is:

 

“administering, preserving and improving the Port of London and otherwise for the purposes of this Act”. [24]

 

24.               The Applicant is the navigational authority for the Port of London, the limits of which are identified in the current 1968 Act. [25]

 

25.               In the mid-19 ^th Century there was a significant dispute between the Crown and the City of London as to the ownership of the River Thames. Proceedings were issued in the High Court of Chancery in February 1844:

 

“… for the purpose of establishing the Title of Her Majesty in right of Her Crown to the bed and shores of the River Thames within the flux and reflux of the tides and to certain encroachments upon such shores…”. [26]

 

26.               By the December 1856 Articles of Agreement a settlement was reached (some 12 years after the proceedings had been commenced) between the Crown and the City of London. The terms of the Articles are fully recited in the recitals to the February 1857 Conveyance [27] and the 1857 Act. [28]

27.               In essence, it was agreed that:

(1)                The Mayor and Commonalty and Citizens of the City of London withdrew their claims to the bed and soil of the River Thames and admitted the title of the Crown;

(2)                The proceedings in the High Court of Chancery were to be discontinued;

(3)                The Commissioner of Her Majesty’s Woods, Forests and Land Revenues would, before 1 ^st March 1957 convey to the Mayor, Commonalty and Citizens of the City of London, as conservators of the River Thames,

“all the estate, title and interest of Her Majesty in right of her crown of, in and to the Bed and Soil of the River Thames within the flux and reflux of the tides…”. [29]

 

(4)                Excepted from the conveyance, however, was to be:

“.. the Shores or Bed of the said River or any Encroachments Embankments or Inclosures thereupon or therefrom in front of or immediately adjacent to any Lands, Buildings, or Hereditaments whereof or whereto Her Majesty, or any Person or Persons in trust for Her, is or are now seised or entitled in possession, reversion or remainder, or which may now be the Property of any Department of Her Majesty’s Government or in the Possession of such Department or of any Officers of the same.”

 

(5)                The City of London would account to the Crown for one third of its revenues from the property transferred, with the balance of the monies to be used for the purpose of improving the navigation.

 

28.               The February 1857 Conveyance as executed included the same exception as that previously recited in the December 1856 Articles of Agreement. [30]

 

29.               The 1857 Act was subsequently enacted. This statute created “The Conservators of the River Thames” and, by section 50, the property which had been vested in the Mayor, Commonalty and Citizens of the City of London by the 1857 Conveyance was statutorily vested in the Conservators. Section 51 of the 1857 Act recited the same exception as had been included in the December 1856 Articles of Agreement and the February 1857 Conveyance.

 

30.               It is the Applicant’s case that the statutory vesting of the Applicant’s title as freehold owner of the Red Land, as originally conveyed from the Crown to the Mayor, Commonalty and Citizens of the City of London by virtue of the February 1857 Conveyance, can be traced through from the 1857 Act and a number of subsequent Acts, namely the Thames Conservancy Acts and the Port of London Acts, to the 1908 Act.

 

31.               The Applicant also points to a number of noteworthy geographical features, namely:

(1)                In the immediate vicinity of part of the Red Land there are two channels forming the River Thames. The two channels run either side of some islands (“the Brentford Aits”).

(2)                The Red Land lies on the opposite side of the River Thames from Kew Gardens. It is accepted in the Applicant’s Statement of Case (at paragraph 31) [31] that what is now known as Kew Gardens was, as at the date of the December 1856 Articles of Agreement and the February 1857 Conveyance, in the possession or ownership of the Crown Manor of Richmond. Accordingly it is accepted by the Applicant that the southern half of the River Thames, and (where there are two channels surrounding the Brentford Aits) the southern half of the northern channel, were excepted from the December 1856 Articles, the February 1857 Conveyance and the 1857 Act.

(3)                Thus, that part of the Red Land (all of which all lies on the northern side of the River Thames) also lies to the north of the islands known as the Brentford Aits. It is common ground that the Brentford Aits are within the ownership of the Crown.

(4)                Accordingly, it is submitted by the Applicant that to the south of the Brentford Aits the half of the southern channel which is nearest to the Aits falls within the exception provision. This, when linked with the land retained by the Crown by reason of its interest in what is now Kew Gardens means the whole of the southern channel to the south of the Aits is Crown Land.

(5)                It is also submitted by the Applicant that to the north of the Brentford Aits, the half of the northern channel which is closest to the Aits remains Crown Land. The other half is the Red Land.

 

32.               Accordingly, it is contended by the Applicant that the Red Land primarily comprises the northern half of the channel between the Brentford Aits and the northern bank of the Thames, as shown on the plan annexed to the Second Application. [32] The Red Land only forms half of the entire River Thames in the circumstances when it is situated away from vicinity of the Brentford Aits.

THE ISSUES

33.               The Applicant submits that the sole issue to be determined, in accordance with the Order dated 15 ^th August 2011, is whether it can establish paper title to the Red Land. It is the Applicant’s case this is primarily be a matter of submission based on the historical deeds and documents and the statutory provisions contained in the bundles prepared for the hearing.

 

34.               In addition the Applicant has identified a number of further issues raised by those Respondents who challenge the Applicant on the Preliminary Issue. These are defined as follows:

(1)                What is the true construction and proper interpretation of the exception contained in the December 1856 Articles of Agreement, the February 1857 Conveyance and the 1857 Act? Essentially it is asserted by the Respondents (and particularly by Mr DeVere) that the words “in front of” mean the entire width of the River Thames, such that merely by virtue of the Red Land being opposite what is now known as Kew Gardens, the Applicant cannot hold the title to the same. As Mr DeVere put it in his submission, “in front of” means “right across” the river.

(2)                Whether the Red Land, at the time of the December 1856 Articles of Agreement and the February 1857 Conveyance, was in fact part of the Manor of Ealing, such that it formed part of the lands (particularly the foreshore) excepted from the December 1856 Articles of Agreement and the February 1857 Conveyance. This essentially the main plank of Mr DeVere’s case.

(3)                Whether, as contended and in particular by Mr DeVere, the effect of the Crown Estates Act 1702, and in particular the provisions contained in section 5, is such as to render null and void the February 1857 Conveyance on the grounds the Monarch was not entitled to convey any of her land freehold. The Applicant contends that this issue ignores the role of the Commissioner for Her Majesty’s Woods, Forest and Land Revenues.

(4)                Whether, as contended, section 50 of the 1857 Act did not vest title in the Thames Conservators because the provision fails for “impossibility of any legislative effect”. This submission is apparently made on the basis that section 50 of the 1857 Act could not operate because title had passed to the Mayor, Commonalty and Citizens of the City of London by the February 1857 Conveyance. It is submitted by the Applicant that this point appears to overlook the totality of words used in section 50 of the 1857 Act.

 

35.               Two subsidiary issues have also been identified by the Applicant based upon the Respondents’ contentions, namely:

(1)                The extent to which extrinsic evidence is admissible in construing the terms of the February 1857 Conveyance as referred to in paragraph 16, above; and

(2)                What effect the January 2009 Deed of Compromise (as amended) [33] made between the Queen (1) The Crown Estate Commissioners (2) and the Applicant (3) may have, and whether it is a valid boundary agreement.

 

APPLICATION TO AMEND THE APPLICANT’S STATEMENT OF CASE

36.               On 27 ^th January 2012, the Applicant made an application to the Adjudicator to make a minor amendment to its Statement of Case, the nature of the amendments being to include reference to further documents. [34] The documents are said to be relevant because, as identified in paragraph 36 of the Applicant’s Statement of Case [35] where it relies upon extrinsic evidence to identify the extent of the land granted and conveyed to its predecessors.

 

37.               Under cover of a letter dated 13 ^th February 2012 from the Adjudicator’s office those Respondents objecting to the Preliminary Issue were informed that the Adjudicator proposed to give permission for the amendment. It was specified that any objection had to be given in writing with reasons by 20 ^th February 2012. The Adjudicator also directed that those Respondents who indicated that they desired to contest the ‘documentary title’ issue should have permission to amend their Statements of Case, if they wished to do so by 5pm on 19 March 2012.

 

38.               It is the Applicant’s case that the permission given to amend the Respondent’s Statements of Case was plainly limited to amendments which were consequential upon the PLA’s amendments. However, a complication apparently arose in that a further Order was made by the Adjudicator dated 27 ^th March 2012. This granted the Applicant permission to amend its Statement of Case and the Respondents permission to amend their Statements of Case “in response”. The Order also required the Applicant to pay the costs of the amendments.

 

39.               In a letter dated 11 ^th April 2012 the Applicant made an application to the Adjudicator’s office seeking an Order pursuant to Rule 54 of the 2003 Rules setting aside the Order dated 27 ^th March 2012. This was made on the basis (so it was submitted) that this Order was plainly made in error and in ignorance of the earlier Order. The application also sought relief on the basis the amendments made by the Respondents were, it was submitted, not in response to the Applicant’s amendments. It is contended that he prime purpose of the amendments was to include a large number of additional documents. [36] It was said that the vast majority of these documents relate to the negotiations underlying the December 1856 Agreement. Also a new argument was raised namely that the Applicant does not have a title capable of registration because, if contrary to their other arguments, the Respondents sought to assert that if the Applicant establishes a title, the best title it had was a “determinable fee”.

 

40.               The Applicant’s application dated 11 ^th April 2012 identified 7 separate consequences. [37]

 

41.               Accordingly, the Applicant submitted that pursuant to its application, a number of documents should be excluded from consideration during the course of the hearing. [38]

 

42.               After hearing submissions made by Mr Stoner QC and various Respondents, and/or their representatives, [39] on the admissibility or otherwise of these various documents relied upon by the Respondents, and that the points raised in the additional bundle were entirely new, and were not consequential upon the Applicant’s proposed amendments to its Statement of Case, and also were not referable to the Preliminary Issue, I came to the conclusion that I would not make any ruling on the Applicant’s application at that stage, and that I would proceed to hear the Preliminary Issue. I stated that I was prepared to hear Mr DeVere on his submissions on what he defined as a “determinable usufruct” or “determinable fee”. [40] However, in so far as Mr DeVere was proposing to rely upon transcripts of various documents which pre-dated the December 1856 Agreement these were, in my judgment, clearly inadmissible if reliance was to be made upon such documents as part of prior negotiations, and I accepted Mr Stoner QC submissions on this point. It would be a question for the Preliminary Issue as to what reliance, if any, there was going to be made upon such documents during the course of argument. [41] Mr DeVere sought to argue that he was entitled to rely upon pre-contract documentation in order to seek to establish the subjective intent on the part of the parties prior to the conclusion of the December 1856 Articles of Agreement and the subsequent February 1857 Conveyance which led to the enactment of the 1857 Act. I rejected that approach based upon the judgment in the Chartbrook Limited v Persimmon Homes Limited. [42]

 

“The rule excludes evidence of what was said or done during the course of negotiating the agreement for the purpose of drawing inferences about what the contract meant. It does not exclude the use of such evidence for other purposes: for example, to establish that a fact which may be relevant as background was known to the parties, or to support a claim for rectification or estoppel. These are not exceptions to the rule. They operate outside it.”

 

THE APPLICANT’S PAPER TITLE

43.               The Applicant submits that the transmission of its paper title is to be found in the following documentation:

(1)                The December 1856 Articles of Agreement whereby the Monarch assigned to the Honourable Charles Alexander Gore, the Commissioner of Her Majesty’s Woods, Forests and Land Revenues, the management and direction of the Woods, Forests and Land Revenues of the Crown in England. As noted above, a copy of the Articles is found in the recital to the 1857 Act. [43] My attention is particularly drawn to the Second and Third Articles. [44]

(2)                The February 1857 Conveyance gave effect to the assignment contained in the December 1856 Articles of Agreement. [45]

(3)                The 1857 Act. [46] My attention was particularly drawn to the terms of sections 50 and 51 of the Act. [47] Mr DeVere relies upon the exception provision in section 51 relating to Crown land. Also section 113 is of importance (power to sell unwanted land), [48] and section 135 [49] which provides that all acquired and property was vested in the Conservators.

(4)                The 1894 Act, Part III. This repealed the 1857 Act, but by sections 58 and 59 [50] the title and exceptions in sections 50 and 51 of the 1857 Act were expressly preserved. It is to be noted that Mr DeVere emphasises the words “in trust for” contained in section 59, but seems he seems to ignore the grant of legal title.

(5)                The 1908 Act which created the Applicant. Section 7 transferred to the Applicant:

“…all rights, powers and duties of the Conservators of the River Thames…[and]…all property and liabilities of the Conservators, held acquired or incurred in respect of the Thames below the landward limit of the Port of London.” [51]

(6)                The 1920 Act repealed the 1908 Act. However, section 7 provided for continued vesting in the Applicant of :

“all estate right title and interest of the Port Authority in and to all real and personal property which were immediately before the passing of this Act vested in the Port Authority”

as if the 1920 Act had not been enacted. [52]

(7)                The 1968 Act which remains the extant Port of London statute. It repealed the 1920 Act, but notwithstanding that repeal the property vested in the Applicant remained vested in the Applicant by virtue of section 212 and Schedule 11 of the 1968 Act. [53]

(8)                In essence there was a statutory vesting of the title to the bed, soil, and shore in the Thames Conservators, and now is vested in the Applicant by a statutory transfer.

 

The extent of property vested in the Applicant

44.               On the second day of the hearing Mr DeVere took me through his six Outline Submissions and evidence in support, the summary of which is reproduced in Annex 3. I do not propose to set out in detail the various submissions made by Mr DeVere save to say that I shall draw upon such submissions and documents upon which he relies during the course of this Decision.

 

45.               A crucial point taken by the Respondents, and in particular by Mr DeVere, is that the terms of the exception, contained in the December 1856 Articles of Agreement, the February 1857 Conveyance and the 1857 Act prevents the Red Land falling within the land transferred, as the Red Land lies opposite what was, at the time of the Articles of Agreement and the 1857 Conveyance, the Crown Manor of Richmond. It is necessary to have detailed regard to the terms of the exception.

 

The terms of the exception [54]

46.               The relevant words of the exception are “…in front of or immediately adjacent to…” .

 

47.               No plans were annexed to the December 1856 Articles of Agreement, the February 1857 Conveyance, or the 1857 Act, to assist in determining the extent of the land transferred.

 

48.               However, despite the presence of land on the opposite (southern) bank of the River Thames which was in the possession or ownership of the Crown Manor of Richmond, it is the Applicant’s case that the exception has no application to the Red Land.

 

49.               The Applicant relies upon two strands of argument in support of this contention, namely:

(1)                The true construction of the exception as contained in the December 1856 Articles of Agreement, the February 1857 Conveyance, and section 51 of the 1857 Act (together with subsequent legislation); and

(2)                By reference to extrinsic evidence which is admissible to determine the extent of the land conveyed.

 

The true construction of the deeds and documents

The case for the Applicant

“In front of or immediately adjacent to”

50.               The Applicant relies upon the points made in paragraph 35 of its Statement of Case. [55]

 

51.               The Applicant further submits that as a general observation it is incorrect for the Respondents to state, (as it appears that they do) that the 1857 Act was a private Act of Parliament which must be construed against the promoter. The Applicant submits that:

(1)                It is not accepted the Act is a Private Act of Parliament;

(2)                Even if this is interpretation is incorrect, a Private Act only falls to be construed against the promoter in the event of ambiguity in the Act. It is not to be used as the correct means of construction of the Act. The Applicant relies upon the case of the Proprietors of the Stourbridge Canal v Wheeley. [56]

 

52.               The Applicant contends that before considering the actual words of the document in question, an important feature is to consider the contextual framework in which the parties at the time would have concluded the exception, namely:

(1) In the case of a non-tidal river there was and is a presumption of ownership by the riparian owner to the centre line of the river, namely the “ ad medium filum” rule. Reference is made to Wisdom’s Law of Watercourses. [57]

(2) In the case of a tidal river the bed and shore of the river was within the ownership of the Crown, unless subject to a grant. [58]

 

53.               In such circumstances it is submitted that if “in front of” were to mean the entire width of the River Thames, this would have been contrary to all understanding at the time as to what was included within riparian ownership. The Applicant relies upon statements in Wisdom where it is said that the presumption even applies to Acts of Parliament. [59]

 

54.               The difficulty, as recognised by Mr Stoner QC, is that the phrase “in front of or immediately adjacent to” contains what appears to be a disjunction. However, he urges that when seen in the contextual framework the phrase should be read conjunctively i.e. as if the “or” is an “and”. It is submitted that in this context this is the only reasonable explanation, and that the words “immediately adjacent to” mean “to the side of”, and refer to areas which are “cut back” i.e. to the side of an inlet.

55.               Furthermore, if there was a grant from the Crown, if ownership of a river accompanied that grant, this would usually be to the centre of the channel of the river. The example provided by the Applicant relates to manorial rights. It is the Applicant’s position that there is a distinction between tidal rivers where the grant of a manor would not ordinarily include the foreshore, and non-tidal rivers where the usual a d medium filum rule would apply. [60]

56.               The Applicant therefore submits that once the contextual framework is considered the words “in front of or immediately adjacent to” are simply inconsistent with the reservation extending across the entire width of the River Thames to the opposite bank. If it had been the intention of the parties to except from the conveyance the entire width of the River Thames in any such location it would have been incumbent on the draftsman to have expressly identified such a state of affairs. There should have been clear words used to give effect to this.

 

57.               The Applicant contends that there is some recognition for the fact the land conveyed was only to medium filum in the December 1856 Articles of Agreement and the February 1857 Conveyance. The latter corrects errors in the narrative of the former. When reference is made to the February 1857 Conveyance provision is made as follows:

 

“….And the said Mayor and Commonalty and Citizens did thereby covenant and agree with the Queen’s Most Excellent Majesty Her Heirs and Successors in manner thereinafter mentioned that is to say …” [61]

 

and

 

“Eighthly … and also that on the expiration of any Grant or Licence of any of the same premises which might be adjacent or opposite to any of the lands buildings or hereditaments mentioned in the second Article meaning thereby the third Article the same should for ever cease and determine and should not be renewed ”

 

If the Crown had retained title across the entire width of the River Thames there would have been no requirement for the City of London to be covenanting how, in certain respects, it would be dealing with land “adjacent or opposite” the land mentioned in the third Article of the December 1856 Articles of Agreement.

 

The case for the Respondents

“in front of or immediately adjacent to”

58.               As mentioned above, it is submitted by Mr DeVere, the London River Company Limited and Mr Mason that the words in “in front of” in section 51 of the 1857 Act include, as a starting point, the foreshore/river bed. Thus, for example, Mr DeVere states at paragraph 144 of his Statement of Case: [62]

“Section 51 does not simply apply to land above the High Water Mark. That is to say, the land that is excepted from vesting in the Conservators in 1857 can be land ‘in front of’ any river bed land that was itself in the ownership of the Crown.”

 

59.               In his Outline Submissions, and in particular the fifth Submission Mr DeVere develops this theme, and in his oral submissions Mr DeVere contended that “in front of” means “right across” the River Thames and this is the natural meaning of the phrase. He stated that this in principle meant the “whole of the river” or the “entirety of the land”. He also stated that the parish boundary followed the boundaries of the Manor of Ealing and the Royal Manor of Richmond. Mr Stafford Michael and Mr Jarman also gave support for this interpretation.

 

The Applicant’s response

“In front of or immediately adjacent to”

60.               For its part the Applicant submits that the Respondents’ contention in this regard is incorrect. This is illustrated by the fact that the term is used in the December 1856 Articles of Agreement and the February 1857 Conveyance against the background where the Crown at that historical point in time owned the entirety of the River Thames foreshore and bed. The logical conclusion of the Respondents’ argument is that the exception, including that in section 51, would then operate to exclude the entirety of the River Thames. The Applicant submits that this cannot be correct. It is further submitted that it cannot be a correct interpretation of the December 1856 Articles of Agreement, the February 1857 Conveyance, or section 51 of the 1857 Act that in the context of the transfer of the bed and shore of the River Thames (originally from the Crown), the starting point for exceptions is an area of land which is already assumed to be excepted.

 

61.               Furthermore, as a point of pure construction in the language of the exception, the Applicant asserts that there is a clear division between “landward” property and the river. This can be seen in the relevant part of section 51 which provides as follows:

“Provided always, that the portion of the bed or soil or shores of the River Thames, or any encroachment, embankment or inclosure therefrom or thereupon in front of or immediately adjacent to any lands buildings or hereditaments …”

 

It is contended that there is a clear and deliberate division between what might be called those elements covered with water from time to time on the one hand, and the landward elements of the property, on the other.

 

62.               Given the juxtaposition of these two elements and the words “in front of or immediately adjacent to” it is said that it is quite plain that the area of the water covered land which is to be excepted from the transfer is that which is identified by reference to the landward property in terms of being “in front of or adjacent to” such property.

 

63.               In any event it is contended by the Applicant that the Respondents argument simply assumes that the relevant elements of the river bed and foreshore are within the Crown Manor of Richmond. However, when dealing with the Respondents’ assertions relating to the Manor of Ealing, [63] it is submitted that there was no presumption in 1856 or 1857 that foreshore was included within the grant of a manor and there is no evidence the relevant foreshore was in fact part of the Crown Manor of Richmond.

 

64.               Indeed, it is submitted that to the contrary, the only evidence is probably the plans produced by the Crown in 1862 and thereafter which clearly demonstrate that the consequence of the exception was that the Crown retained the river bed and shore only to the middle of the channel, not that this was the position prior to the exception being applied.

 

65.               The Applicant submits that, in any event, the case presented by the Respondents on manorial rights is predicated on the basis that the grant of manorial rights included the grant of the bed of the River Thames, but only to the centre of the channel.

 

 

 

Extrinsic evidence

The case for the Applicant

66.               In so far as the admissibility of extrinsic evidence is concerned, the Applicant relies upon a passage in Megarry & Wade: The Law of Real Property: [64]

 

“A common defect of conveyances is that boundaries are inadequately defined. In that case extrinsic evidence is admissible to establish the true intent of the parties, which may be clear from other documents, such as auction particulars. That extrinsic evidence may include the subsequent conduct of the parties to the conveyance…”

 

67.               As noted by the Applicant the proposition that subsequent conduct may be admissible as part of ‘extrinsic evidence’ has been considered in a number of authorities, noted in Megarry, the most recent of which is Piper v Wakeford. [65]

68.               The Applicant relies on the following matters as extrinsic evidence in support of its contention that the land conveyed, and the proper interpretation of the December 1856 Articles of Agreement, the February 1857 Conveyance and the 1857 Act, is such that the exception (when it applies) only extends to the middle of the River Thames:

(1)                The fact that the Crown drew contemporary plans showing the extent of the land it had retained. A number of comments are made by the Applicant, as follows:

(a)                 It appears that the first plans were drawn as early as in 1862. No copies of these plans can now apparently be found.

(b)                It equally appears that in 1887 or 1888 there was a large scale reproduction of these plans. Again no copies of these plans can now be found.

(c)                 A copy of the draft plan dated 18 ^th July 1910. [66] In the top left hand of the page there appear the words “River Thames. Crown Reserves”. This was to accompany a letter dated 13 ^th August 1910 from the Office of Woods to the Office of Works. It related to an agreement between the Crown and the Applicant relating to the payments to be made by the latter to the former pursuant to the terms of the Thames Conservancy Acts. The land tinted red lies marked as lying to the south of the mid-line point of the River Thames, and the line is drawn to the north of the two Aits.

(2)                Although, copies of the earlier plans cannot be found, the Applicants rely upon various comments appearing in a report dated 11 ^th April 1917 [67] which link the 1910 plans to the 1862 plans.

(3)                The plans were also referred to in the instructions lain before Counsel, namely Mr E.P. Wolstenholme and Mr J Eldon Banks, by the Thames Conservators in relation to questions that had arisen between the Conservators and the Crown. [68]

 

“With that letter were forwarded to the Conservators plans, showing not only the crown property in charge of the Office of Woods, but also that in charge of other departments of the Government.” [69]

 

(4)                In addition to the plans the Applicant submits that there are other matters of relevance contained in the Instructions and Opinion. One of the matters to which the Instructions referred was the following:-

“… what is included under the expression “any portion of the bed, or soil, or shores of the River Thames, or any encroachment, embankment or enclosure in front of, or immediately adjacent to any lands, buildings, or hereditaments whereof or whereto Her Majesty or any person or body in trust for her, was or were on the 18 ^th December 1856 entitled in possession, reversion or remainder or which on the said 18 ^th December 1856 was the property of any department of Her Majesty’s government, or in the possession of any such department, or any officers of the same?” [70]

 

Counsel’s answer to this question was:

 

“These words must be read in their widest sense, except that the claim of the Crown cannot be extended beyond the centre of the River in cases where it does not own both shores.”

Further, Counsel was asked to advise:

 

“Whether the Conservators have any, and what, ownership in any, and what, part of the bed and soil of the Thames; having regard particularly to the division into the Upper Navigation and the Lower Navigation and to the reference in the words of section 50 of the principal Act to the flux and reflux of the tides.” [71]

 

The answer was in the following terms: [72]

 

“…Between Teddington and Yantlet the Conservators are absolute owners of all those portions of the bed and soil of the River which passed to them under the Act of 1857, that is to say, the whole of the bed and soil of the River, except such portions of it as were, on December 18 ^th 1856, owned by persons other than Her Majesty, by prescription or by or under grants from the Crown, and except such portions as were ad medium filum in front of or immediately adjacent to property which the Queen or any person or body in trust for her was, on December 18 ^th 1856, entitled in possession, reversion or remainder or which on such day was or were the property of any department of the Government or any officer of the same.”

 

(5)                The Applicant further submits that it is abundantly clear having regard to the protracted correspondence which led to the Applicant in effect “buying out” the Crown’s entitlement to one third of the annual revenues from the Thames, that both the Crown and the Applicant proceeded and negotiated on the basis that the extent of the land excepted as transferred to and vested in the Thames Conservators was to the middle of the river only i.e. where the river was “in front of or immediately adjacent to” relevant property. This in the context of the events of 1856 and 1857. I was taken to relevant extracts of this correspondence and other documents during the course of Counsel’s submissions. [73]

 

(6)                Furthermore, it is submitted that evidently the price paid by the Applicant, namely the sum of £235,000 (a not inconsiderable sum in 1912) was calculated by reference to the plans referred to above, namely on the basis that where there was relevant land “in front of or immediately adjacent to” the River Thames, the excepted land was taken to the middle of the river, not the whole way across to the other side. [74]

 

(7)                The January 2009 Deed of Compromise. [75] In the recitals to this deed the Crown and the Applicant set out the history of their dealings and stated that their understanding, and that of the Applicant’s predecessors (the Conservators), had always been that where the Crown was the riparian owner its ownership was limited to the middle of the river, indeed as set out in the plans referred to above. [76] In clause 12 of this deed there is reference to plans dating from 1910 having been found, which appear to have been copied from plans prepared in 1887 or 1888. These are annexed to this deed, and plan 1 is of importance as it shows an area tinted yellow which is said to indicate the foreshore in the possession of the Crown manor of Richmond. [77] Mr Stafford Michael asserted that it was completely unsafe to rely upon these plans.

 

69.               In summary, it is submitted by the Applicant that the documentation and the plans, to which reference has been made, are clear and consistent in their expressions as to the fact that the exception (where it applies) only extends to the middle of the River Thames and accords with the ad medium filum presumption.

 

The case for the Respondents

70.               By reference to case law, [78] a number of points were made by Mr DeVere and Mr Stafford-Michael and Mr Jarman on the admissibility or otherwise of the extrinsic evidence relied upon by the Applicant. In the Skeleton Argument produced by Mr Stafford-Michael and Mr Jarman on the second day of the hearing a number of points were made as to the admissibility of the extrinsic evidence relied upon by the Applicant. It is contended that in applying “… the literal and purposive constructions…” there is very little room to argue that the meaning of the 1857 Act is ambiguous. Further, although it is acknowledged that extrinsic evidence is admissible as a matter of principle, it is subject to the other rules of evidence. In this regard it is asserted that the plans produced by the Applicant are copies of copies and are indicative only. Further, it is contended that the opinion of Mr Wolstenholme and Mr Eldon Bankes is a self serving document and it is wholly unsafe and unfair to rely upon it. It is also contended that no evidence has been called by the Applicant as to the adequacy of the extent of any search made by the Applicant to recover all relevant documents. In short, I am enjoined to find that the evidence produced by the Applicant is hearsay and should be given no weight by the Tribunal when it was not accompanied by the grounds for belief or the source of information provided.

 

71.               In response Mr Stoner QC submitted that his primary case was that the Applicant can establish paper title to the Red Land on a true construction of the deeds and documents, to which I have referred above. However, if there is ambiguity then extrinsic evidence can be relied upon in support of the primary case. His position was that it was entirely legitimate to have regard to the various documents set out in paragraph 68, above as an aid to the true construction of the transmission of the Applicant’s paper title taking into consideration the background and the context, but not the pre-contractual negotiations.

 

Boundary Agreement

72.               In conclusion, the Applicant submits that if having considered the proper interpretation of the December 1856 Articles of Agreement, the February 1857 Conveyance and the terms of the 1857 Act, there remains doubt as to the extent of the land transferred, in so far as the only other possible paper title owner of the Red Land is the Crown, then it is the Applicant’s case that the January 2009 Deed of Compromise is a valid and binding boundary agreement, [79] as between the Crown and the Applicant.

 

73.               In this regard, reference is made to paragraph 4 of the Deed [80] which provides that:

 

“The Crown consents to any application by the Applicant to the Land Registry to register the title to the Bed other than the Crown Land or the Special Land”.

 

The Red Land not being “Crown Land” or “Special Land” as defined, the Crown has thereby expressly consented to the registration of the Red Land, having agreed that the boundary of the land transferred in 1857 (as relevant) was the middle of the channel between the Brentford Aits and the northern bank of the River Thames.

 

74.               In so far as the Deed of Compromise is a boundary agreement, it is valid and binding as between the Applicant and the Crown, even if in fact it involved any form of transfer of land. [81]

 

75.               In so far as the Respondents contend that the January 2009 Deed of Compromise somehow produced a variation of the 1857 Act, [82] the Applicant relies upon the words of Megarry J in the case of Neilson v Poole, [83] as follows:-

 

“…I may add that there was a further contention in relation to the boundary agreement by the defendant; and this, too, I reject. This contention was that once the boundary agreement was made, it superseded the conveyance in so far as the conveyance defined the boundary. Yet what the agreement did was merely to establish on the ground, by agreement, what it was that the conveyance showed. A boundary agreement that merely demarcates is, I think, an agreement that is ancillary to the conveyance; it does not supersede it.”

 

76.               My attention was also drawn to an apparent discrepancy in the plan attached to the January 2009 Deed of Compromise [1/148] in that the colouring on this plan was different and more extensive to that on the plan produced from the National Archives at [1/266]. I am satisfied that there is nothing of any significance arises from this when seen in the context of this Deed, and the January 2009 Deed of Variation, and the letter dated 13 ^th August 1910 at [1/261-262]. The land coloured red on the plan at [1/266] is shown as coterminous with Kew Gardens and identifies the lands then under the control of the Board of Works.

 

RESPONDENTS’ FURTHER SUBMISSIONS

77.               It is also necessary to deal with the various arguments raised in the Respondents’ Statements of Case and during the course of oral submissions at the hearing (in so far as they have not already been referred to). The principal further contentions raised by the Respondents are:

(1)                In 1856 and 1857 the Red Land formed part of the Manor of Ealing and, as such, was land which was excluded from the transfer effected by the December 1856 Articles of Agreement, the February 1857 Conveyance and the 1857 Act. [84] The point is also taken by those Respondents formerly represented by Mr Morton (now Mr Stafford-Michael and Mr Jarman), namely Morlandia Limited and Susan Penhaligon [85] and Mr Crabtree. [86]

(2)                The effect of section 5 of the Crown Lands Act 1702 is such so as to render the December 1856 Articles of Agreement, the February 1857 Conveyance (and consequently) the 1857 Act null and void, because the Monarch could not transfer freehold title to her land. Section 5 of the Crown Lands Act 1702 has been appended to the Statements of Case of Morlandia Limited, Susan Penhaligon and John Crabtree, but no point is taken in their substantive Statements of Case. [87]

(3)                The asserted impossibility of legislative effect of section 50 of the 1857 Act. [88]

 

Manorial Land

78.               An essential plank of the Respondents, and in particular that of Mr DeVere, is that the Red Land was (and remains) part of the Manor of Ealing and cannot have been transferred by the Crown in 1857, and it was excluded from the original conveyance. This is based on a three-stage process, namely:

(1)                A citation from the 4 ^th Edition of ‘The Commentaries of the Laws of England’ from 1876 to the effect that parish boundaries equate to manorial boundaries; [89] and

(2)                Reference to Ordnance Survey maps from 1867 to 1915 which, it is said, indicate the parish boundaries. [90]

(3)                As stated above, since the hearing additional documentation has been produced by Mr DeVere. In particular he relies upon the construction of the new Kew Bridge under an Act of Parliament enacted in 1782, and copyhold deeds of 17 ^th November 1784 and 17 ^th June 1865. He submits that the latter indicate that between 1784 and 1865 the foreshore of the River Thames was copyhold land forming part of the waste belonging to the Manor of Ealing.

 

79.               Mr DeVere has referred me to various documents and his written submissions on these points. I have also been referred to a copy of the copyhold deed which he sent under cover of a letter dated 18 ^th December 2012. I should state that in its letter dated 13th November 2012 the Applicant expressed concern as to the reliance on what appears to be new evidence as to the ownership of the foreshore after the closure of submissions, and in particular upon the reliance upon the documentation as set out in paragraph 70(3) above. However, Mr Stoner QC was reasonably relaxed as to Mr DeVere’s further submissions as to the “determinable fee” argument raised in his letter dated 3 ^rd November 2012 to which was prepared to make submissions in response.

 

80.               Having regard to the representations made by both sides from in my judgment Mr DeVere is not entitled to rely upon the documentation set out in paragraph 78(3), above. I consider that this is an attempt by him to introduce new evidence since the conclusion of the case on 25 ^th October 2012 none of which was available at the hearing. In any event I consider that this documentation is not relevant to my decision on the Preliminary Issue. Accordingly I shall make no further reference to this documentation or Mr DeVere’s submissions on the point and I shall therefore concentrate on the two points raised paragraph 78(1), and (2).

 

81.               It is not accepted by the Applicant that the plans show that which the Respondents contend. For example the 1867 plan [91] shows a line along the centre of the relevant channel which is expressly stated to be the “Centre of old channel”, not the parish boundary. Furthermore, the line does not appear to equate to a parish boundary as it does not divert to the river bank at any stage.

 

82.               The Applicant makes a number of submissions in response to the points made by Mr DeVere, as follows:

(1)                At the time of the relevant events in this matter, namely 1856 and 1857, there is clear authority that the bed and shore of a navigable river did not, in the absence of specific evidence, form part of the adjoining parish but was in fact extra-parochial. [92]

(2)               Thus, at the relevant time, for the purposes of this case, in the absence of evidence the presumption is that tidal waters were not part of the parish. This position was only altered in 1868 and subsequent to the events in this case. [93]

(3)               There is simply no evidence that has been adduced by the Respondents to establish that the parish, in the present instance, ran to the centre of the relevant channel. The presumptions must accordingly apply i.e. the bed and shore of the River Thames was not part of the parish.

(4)               This submission must also be considered from the perspective of manorial rights. Whilst foreshore may be included within a manor, ultimately, it is a question of the true construction of the grant. [94] The grant, being a grant from the Crown, will be construed in favour of the Crown. [95]

 

83.               In the present instance, there is no evidence of any grant to construe. Instead the Respondents appear to rely upon the fact the ‘Manor of Ealing’ is a ‘reputed manor’. It is submitted that virtually all manors are now reputed manors. [96]

 

84.               However even if evidence establishes that the Manor of Ealing existed, the fact that a manor existed plainly does not equate to establishing the boundaries of that manor, including, most particularly whether the Manor of Ealing included part of the foreshore of the River Thames. There being no presumption, as a matter of law, that the foreshore was included within the grant of a manor.

 

85.               Reference is made, on behalf of the Respondents, to an entry in title NGL163915. [97] The second entry on the property register says:

 

“Parts of the land in this title were formerly copyhold of the Manor of Ealing.”

 

However, it is submitted that the plan to title NGL163915 [98] merely seems to confirm the Applicant’s case, as the boundary runs along the edge of the foreshore and does not include any part of it.

 

86.               Thus it is the Applicant’s case that the Respondents have simply not produced any evidence to show that the River Thames itself (to the middle of the channel) was part of the manor, or indeed was reputed to be part of the manor. [99]

 

Crown Lands Act 1702

87. It is submitted by the Applicant that some of the Respondents (Mr DeVere, the London River Company Limited and Mr Mason) also make the submission that the December 1856 Articles of Agreement, the February 1857 Conveyance, and the provisions of section 50 of the 1857 Act are “utterly void and of no effect”. By necessary implication they have raised a fundamental point which simply did not seemed to have occurred to anyone in the historical context from the Crown, the City of London, the legislature, or indeed the Court of Chancery. The argument is based on the provisions of section 5 of the Crown Lands Act 1702 to which Mr Stoner QC made detailed reference in his submissions. The purpose of the section was to prevent the Monarch personally from selling off land as such sales were having the effect of reducing the necessary revenues to support Parliament. My attention was drawn to the details contained in the current Crown Estate website.

 

88.               My attention was drawn to the fact that the December 1856 Articles of Agreement and the February 1857 Conveyance were made not simply between the Queen and the City of London, but also the Commissioner of Her Majesty’s Woods Forest and Land Revenues. This is illustrated by reference to the terms of the February 1857 Conveyance [100], where the operative part of the conveyance commences: [101]

 

“NOW THIS INDENTURE WITNESSETH that in pursuance of the said Agreement and in order to give effect to the same and in exercise and execution of the powers and authorities therein referred to and of the other powers and authorities enabling him in this behalf the said Charles Alexander Gore as such Commissioner as aforesaid DOTH by these presents GRANT and CONVEY unto the Mayor Commonalty and Citizens of the City of London …”

 

89.               Further, the recitals to the December 1857 Articles of Agreement had provided as follows: [102]

 

“…And whereas the said Mayor and Commonalty and Citizens and the said Charles Alexander Gore, with the consent of Her Majesty, signified by a Memorandum in writing under the Royal Sign Manual, and with the further consent of the commissioners of Her Majesty’s Treasury, signified by a warrant under the hands of two of them such commissioners, dated the first day of September 1856 and with the approval of Her Majesty’s Attorney General testified by his Signature at the Foot of the Warrant, have, in pursuance of the Powers of an Act of Parliament passed in the session of Parliament held in the 16 ^th and 17 ^th years of the Reign of Her present Majesty, Cap 56, agreed that such arrangement shall be entered into in regard to the Premises as herein-after mentioned …” (My underlining).

90.               It is submitted by the Applicant that the reference to the Act passed in the 16 ^th and 17 ^th years of the Reign of Her present Majesty, Cap 56 is a reference to the Crown Lands Act 1853. In section 5 of that Act power was given to the Commissioners of Her Majesty’s Woods, Forests and Land Revenues to:

 

“make such arrangements as may be from time to time considered expedient for the adjustment or settlement of any doubtful or disputed rights or claims of the Crown or in or to any Real or Personal property or any Forestal right, the management or control whereof would, if such rights or claims were established in favour of the Crown, be vested in or devolve upon the Commissioners …”

 

91.               The management of Crown Land had been vested in the Commissioners of His Majesty’s Woods, Forests and Land Revenues by section 8 of the Crown Lands Act 1829. The Act gave the Commissioners considerable powers, including, purely by way of example, the power to sell in section 34.

 

92.               Thus it is the Applicant’s case that, in the present instance, the December 1856 Articles of Agreement and the February 1857 Conveyance were not made by Queen Victoria, as Monarch, but instead (in the sense of agreeing to and transferring land) were made by Charles Alexander Gore, one of the Commissioners for Her Majesty’s Woods, Forests and Land Revenues.

 

93.               Accordingly, it is submitted that the suggestion that the root of title for the Port of London (and indeed the first step in the statutory succession of title) is “utterly void and of no effect” is in fact simply misconceived.

 

Impossibility of legislative effect

94.               It is apparently asserted by Mr DeVere, the London River Company Limited and Mr Mason, that in addition to the point based on section 5 of the Crown Lands Act 1702, section 50 of the 1857 Act had no effect by reason of “impossibility”, namely that the Crown was unable to vest the River Thames in the Thames Conservators pursuant to s.50 because it had previously, on 24 ^th February 1857, pursuant to the conveyance, transferred its interest to the City of London.

 

95.               It is submitted by the Applicant that the point is easily met, by reference to the entirety of section 50 of the Thames Conservancy Act 1857. [103]

 

96.               The relevant parts of the section provide as follows:

“All the estate, right, title and interest of the Mayor and Commonalty and Citizens of the City of London in the bed and soil and shores of the River Thames, from Staines in the county of Middlesex to Yantlett in the county of Kent, and all the estate right title and interest to which her Majesty was, on the twenty-third day of February One thousand eight hundred and fifty seven, entitled in right of her Crown … shall from and after the commencement of this Act be, and the same are hereby vested in the Conservators…”

 

97.               It is said that the draftsman has reflected that the relevant land has been conveyed to the City of London by referring in its commencement to the estate, right, title etc of the Mayor and Commonalty and as a means of identifying the relevant land (and in the context of the extensive recitals), then refers to the land which was (on the day before the conveyance of 24 ^th February 1857) vested in the Crown.

 

98.               Accordingly, it is submitted that when properly read section 50 actually vested the property held by the Mayor, Commonalty and Citizens of the City of London in the Conservators.

 

“Determinable usufruct” or “determinable fee”

99. A further essential part of Mr DeVere’s case is based upon submissions relating to what he defined as a “determinable usufruct” or “determinable fee”. He sets this out in his Case Summary, and also in his Outline Submissions where references are made to this point in his First, Second and Third Outline Submissions. Mr DeVere asserts that the December 1856 Articles of Agreement, the February 1957 Conveyance, and the 1857 Act were effective to pass the usufruct of the River Thames to the Conservators. That usufruct is properly an incorporeal hereditament. The Crown by gift passed an estate “carved out of the Crown seisen” of the River Thames to the Conservators and is a determinable estate. Essentially it is argued that the interest in the Red Land was limited in time and reverted to the Crown as an incorporeal hereditament where the interest still remains. It is therefore not vested in the Applicant as successor in title to the Conservators. The Red Land is therefore not a legal estate capable of registration under the 2002 Act. I must state that I struggled with the submissions made by Mr DeVere in this regard.

 

100. Mr Stoner QC in reply referred me to paragraph 3-054 of Megarry and Wade [104] and also the case of Blanchfield v Att Gen of Trinidad and Tobago [105] where it was held that land compulsorily acquired by the Crown to be used as a US naval base did not revert to the original landowners when the lease of the naval base was surrendered. In this case it was stated that

“…land conveyed for a particular purpose does not automatically revert to the grantor when the land ceases to be used for the purpose for which it was conveyed. Even though land be conveyed for a particular purpose, in the absence of express provision to the contrary it is taken to be conveyed in fee simple absolute and not for a determinable fee.”

 

101. Thus, it is the Applicant’s contention that that must be an end to the matter, and there is no merit in the argument raised by Mr DeVere. In short, there has been a statutory vesting of the Red Land in the Applicant as statutory successors to the Thames Conservancy. That body on 1 ^st April 1974 was subsumed into the Thames Water Authority and now forms part of the Environment Agency. In other words, Thames Conservancy was never dissolved as a statutory body, its management functions passing to the National Rivers Authority on privatisation of the Thames Water Authority, and then to the Environment Agency.

 

THE DECISION

102.             In my judgment the various points taken by the Respondents on the Preliminary Issue, as analysed above, must fail. I therefore find in favour of the Applicant.

 

103.             My reasons are as follows:-

Vesting of paper title

(1)           The primary point in this case relates to the true construction of the various deeds and documents to which I have made reference in paragraph 43, above, and in particular whether the Applicant can establish paper title to the Red Land. In this regard I find that the Applicant is the true successor in title to the Red Land and that the transmission of that interest is documented by the various transactions which have taken place since the original December 1856 Articles of Agreement entered into between the City of London and the Crown, the terms of which were then incorporated into the February 1857 Conveyance. The 1857 Act was subsequently enacted, and by section 50 of that Act the property which had been vested in the City of London by the 1857 Conveyance was statutorily vested in the conservators.

(2)           Thus, I find that on a true construction of the various deeds and documents set out in paragraph 43, above, that the vesting of the Applicant’s title as freehold owner of the Red Land is traced through from the December 1856 Articles of Agreement, February 1857 Conveyance, the 1857 Act and the subsequent Acts to the 1908 Act.

 

The extent of the property vested - “in front of or immediately adjacent to”

(3)           As to the issue on the extent of the property vested in the Applicant, following the terms of the December 1856 Articles of Agreement, the February 1857 Conveyance excepted from its terms

 

“the shores or bed of the [River Thames] or any encroachments, embankments or inclosures thereupon although from in front of or immediately adjacent to any lands, buildings or hereditaments whereof or whereto Her Majesty or any person or persons in trust for her, is or now are seised or entitled in possession, reversion or remainder…”

 

(4) Section 51 of the 1857 Act cited the same exception as had been included in the December 1856 Articles of Agreement and the February 1857 Conveyance.

(5) I find that on a true construction of the words “in front of or immediately adjacent to” should be given their ordinary meaning and that the words “in front of” mean the area of river adjacent to the relevant land as (the Applicant puts it) “sufficient to maintain the privacy of that land and/or to prevent the use of the river adjacent to that land other than for public rights, most notably the public right of navigation”. [106]

(6)                Thus, these words, in my judgment, are inconsistent with the reservation extending across the entire width of the River Thames to the opposite bank, as is contended for by the Respondents, and in particular Mr DeVere. In short, I find that the words “in front of” are intended to mean that part of the River Thames in front of the relevant land to the middle (i.e. the medium filum) of the river.

(7)                I also find that the Brentford Aits fall within the ownership of the Crown consistent with the medium filum rule and the southern half of the River Thames and the southern half of the northern channel between the Brentford Aits and the northern bank of the River Thames were excepted from the December 1856 Articles of Agreement, the February 1857 Conveyance and the 1857 Act and remain vested in the Crown. This means that by virtue of the exception provision the land retained by the Crown, when combined with the land retained by the Crown by virtue of its interest in what is now Kew Gardens, results in the whole of the southern channel to the south of the Brentford Aits being Crown land. However, that part of the channel lying to the north of the Brentford Aits comprising the northern section of that channel is Red Land within the ownership of the Applicant.

(8)                In such circumstances I therefore find against the Respondents insofar as the true meaning of the words “in front of or immediately adjacent to”. Indeed, I must state that I find the submission made by the Respondents somewhat absurd in that the interpretation of this wording means that the Crown ownership extends across the entire width of the River Thames to the northern bank. Thus, I specifically reject the interpretation placed upon these words by Mr DeVere who has stated that “in front of” means “right across” the River Thames, or the “whole of the river”., or the “entirety of the land”.

 

104.             As to the subsidiary issues raised by the Respondents I find as follows:-

(1)                I reject the submission that the Red Land at the time of the December 1856 Articles of Agreement and the February 1857 was in fact part of the Manor of Ealing such that it formed part of the lands which were excepted from the same. I adopt Mr Stoner QC’s reasoning as set out in paragraphs 78 to 81, above.

(2)                I also reject the submission that the effect of the Crown Estates Act 1702 is such as to render null and void the February 1857 Conveyance on the grounds that the Monarch was not entitled to convey any of her land freehold. I agree with the Applicant that this interpretation ignores the role of the Commissioner for Her Majesty’s Woods, Forests and Land Revenues, and again I adopt Mr Stoner QC’s reasoning set out in paragraphs 87 to 92, above.

(3)                I also reject the submission made by the Respondents that, as contended, section 50 of the 1857 Act did not vest title in the Thames Conservators on the basis that the provision fails for “impossibility of any legislative effect”. Again, I agree with the Applicant that this submission overlooks the totality of words used in section 50 of the 1857 Act. Again I adopt set out in paragraphs 94 to 97, above

 

105.             As to the two further subsidiary issues identified by the Applicant based upon the Respondents’ contentions, namely

(1)                 The extent to which extrinsic evidence is admissible in construing the terms of the February 1857 Conveyance; and

(2)                 The effect the January 2009 Deed of Compromise (as amended) may have, and whether it is a valid boundary agreement,

 

I find the following:-

Extrinsic evidence

106. Insofar as it is necessary having regard to my primary findings, I find that the various matters referred to in paragraph 68, above, can be relied upon by the Applicant as extrinsic evidence in support of its contention that the land conveyed, and the proper interpretation of the December 1856 Articles of Agreement, the February 1857 Conveyance, and the 1857 Act, is such that the exception only extends to the middle of the River Thames. Such subsequent conduct as demonstrated can be admissible as part of the extrinsic evidence, and I so find.

 

 

Boundary Agreement

107. Again, having regard to my primary findings, I do not consider it necessary to make any further findings in this regard. However, insofar as there could be a remaining doubt as to the extent of the land transferred as there is only one other paper title owner of the Red Land, namely the Crown, then I find that the January 2009 Deed of Compromise is a valid and binding boundary agreement as submitted by the Applicant in its submissions (see paragraphs 52 to 55, above).

 

 

Dated this 27 ^th day of February 2013

 

 

 

By Order of The Adjudicator to HM Land Registry

 

 

ANNEX 1

 

Group 1 References

 

Case Number: REF/2011/0735/0737/0738/0739/0742/0751

 

Title Number: AGL208200

 

Property: Bed and foreshore of the River Thames at Watermans Park, Brentford: Brentford Ait to the River Brent

 

Applicant: Port of London Authority

 

Respondent	Case Reference Number
Colin Vincent	REF/2011/0735
Steven Alexander Javor	REF/2011/0737
Robert Razz	REF/2011/0738
Jove Larenty	REF/2011/0739
Andrew Alan Standring	REF/2011/0742
Paul Mendoza	REF/2011/0751

 

 

Group 2 References

 

Case Number: REF/2011/0740/0741/0745/0747/0752

 

Title Number: AGL203923

 

Property: Part of the bed and foreshore of the River Thames adjoining the Hollows, Brentford

 

Applicant: Port of London Authority

 

Respondent	Case Reference Number
James Wilson Muggoch	REF/2011/0740
Valerie Austin	REF/2011/0741
Nina Geitz	REF/2011/0745
Rick Carmichael	REF/2011/0747
James Pool	REF/2011/0752

ANNEX 2

 

THE ISSUE OF REPESENTATION

 

Group 1 References (title number AGL208200)

Group 2 References (title number AGL203923)

1.                   David DeVere represented himself, and also stated at the commencement of the hearing that he was representing the London River Company Limited, and Mr James Edward Mason. However, at the site view which preceded the hearing on 23 October 2012 a Mr Reg Morton attended as a solicitor apparently acting for Mr John James Crabtree, Morlandia Limited, and Ms Susan Penhaligon. However, at the commencement of the hearing two Counsel appeared, namely Mr Simon Stafford-Michael and Mr Sam Jarman, apparently instructed at very short notice by Mr Morton to represent those three Respondents. Indeed, Mr Stafford-Michael not only made representations on behalf of these three Respondents but also on the second day of the hearing produced a skeleton argument drafted on behalf of himself and Mr Jarman. Some concern was expressed both by myself and Mr Stoner QC as to the exact status of Mr Stafford-Michael, Mr Jarman and Mr Morton as it was unclear whether Mr Morton was indeed instructing the two barristers, or whether they were acting under some form of direct access. No notice of change had been filed with the Office of the Adjudicator, and I stated that it was important to try and discover the exact status of these three gentlemen as it could have some considerable bearing on any later costs order.

 

2.                   In a letter dated 14 ^th November 2012 written to Mr Stafford-Michael I sought to be apprised of the exact circumstances (i.e. whether both barristers were instructed on direct access or were instructed by a firm of solicitors). In a letter dated 28 ^th November 2012 from Mr Jarman the response was received that Mr Stafford-Michael could not respond owing to inclement weather and lack of an internet connection, but it was stated by Mr Jarman, on his behalf, that he had very recently left the Bar and was therefore no longer in practice as a barrister. It was also stated in this letter that they originally understood to have been instructed by Mr Morton who had been acting for Mr Crabtree, Morlandia Limited and Ms Penhaligon. However, they discovered that Mr Morton was retired and therefore no longer held a practising certificate, and they took the view that he could no longer instruct them. It was therefore apparently agreed at a later stage during the hearing that another solicitor (a Mr Robert Hardy McBride of ) would instruct them. Apparently this gentleman had attended the site view on 23 ^rd October 2012. Mr Jarman then states in his letter that that gentleman withdrew and therefore at the hearing itself Mr Stafford-Michael and Mr Jarman considered that it would be wrong for them to withdraw from the case at that advanced stage, and that the interests of the clients and of justice would be better served by continuing to act. It is then stated that as they had both undertaken the direct access course and that Mr Jarman had been regularly acting on a DPA basis since 2005, and they were in fact acting on that basis for no fee during the hearing.

 

3.                   Mr Stoner QC was copied in to my letter dated 14 ^th November 2012 and on 29 ^th November 2012 he made his own response with regard to representation. Two points were made in this letter. First, Mr Stafford-Michael was still listed on the website as a member of Lombard Chambers, and on the Bar Standards Board website as a self-employed member of the Bar of England and Wales authorised to practice from those Chambers. The second point made is that the Bar Standards Board’s register identifies that Mr Stafford-Michael is not registered to undertake public access work. Mr Stoner also makes the point that it was not clear to the Applicant whether their clients during the course of the hearing were in fact Mr Crabtree, Morlandia Limited and Ms Penhaligon or Mr Morton, and if the former what Mr Morton’s actual role was during the course of the hearing.

 

4.                   In his response sent by email dated 1 ^st December 2012, Mr Stafford-Michael stated that he left the Bar subsequent to the hearing in this case, and that he had directed his clerks to inform the Bar Council, but apparently it appears that they omitted to do so. He said that that day he contacted his clerks to ensure that the Records were brought up to date. Mr Stafford-Michael also accepted that he was not authorised to undertake DPA as although he had completed the DPA course he had not registered his intention to accept such instructions. However, Mr Jarman was and is fully qualified to undertake such work and has been so registered for some time. Mr Stafford-Michael then states that in the circumstances of being informed that Mr McBride had withdrawn, he thereafter spoke directly with the director of Morlandia Limited, and Ms Penhaligon, and communicated through Mr Morton with Mr Crabtree and obtained their consent to continue. In the circumstances he felt obliged to waive his agreed fees. He stated that at no stage was he instructed by Mr Morton to appear before the Adjudicator on the basis that he did not at the time possess the relevant practising certificate, having by then retired from practice.

ANNEX 3

 

Mr DeVere’s Six Outline Submissions

1.                   If it is assumed that the land is not comprised in the bounds of the Manor of Ealing (which is denied), then the Applicant has never had an estate in the Land either before or after the Law of Property Act 1925 (“1925 Act”).

 

2.                   If it is assumed that the Land is not comprised in the bounds of the Manor of Ealing (which is denied) and it is assumed that the Applicant has an estate in the Land (which is denied) then that estate in the Land is not capable of registration not being a legal estate within the 1925 Act. That estate in the Land is a determinable estate with its reversion vested in the Crown. That vested Crown reversion prevents the 1925 Act enlarging that determinable estate to an absolute estate.

 

3.                   If it is assumed that the Land is not within the Manor of Ealing (which is denied) and it is assumed that the Applicant has an interest in the Land (which is denied), then that interest in the Land, although sufficient and necessary for the Applicant to exercise its navigational and management functions, is not capable of registration not being a legal interest. That interest in the Land is a determinable interest having its reversion vested in the Crown. That vested Crown reversion prevents the determinable interest from enlarging to a legal interest by the 1925 Act.

 

4.                   The Land is waste to the Manor of Ealing and was excepted from vesting in the Applicant by the 1857 Act. That waste is bounded by the parish boundary. That parish boundary follows the common manorial boundary between the Crown manor of Richmond and the ecclesiastical Manor of Ealing. That boundary follows the centre line of the old course of the River Thames. The manorial and parish boundary does not follow the mid line of the modern River Thames and does not pass under Kew Bridge at the mid point of that bridge. No part of the Land (save the reversion) was vested in the Crown before the 1857 Act.

 

5.                   The January 2009 Deed of Compromise and the January 2010 Deed of Variation are not evidence that the Applicant has any estate or interest capable of registration in any part of the Land.

6.                   The Applicant has no right to possession of any part of the Land not having any right to the rents and profits from the Land. All the rent, profits and income from the River were kept apart from the Applicant’s property in a Fund. The exercise of the Applicant’s statutory powers over the Land is not evidence of possession of an estate or interest in the Land.

ANNEX 4

 

Applicant’s Skeleton Argument - paragraph 34

1.                   Paragraph 34 of the Applicant’s Skeleton Argument by reference to the application dated 11 ^th April 2012 identifies 7 separate consequences, including:

(1)           An Order reflecting the fact the amendments served were not consequential upon the PLA’s amendments;

(2)           An Order refusing the amendments to the Statements of Case of Mr Devere, the London River Company Limited and Mr Mason in so far as the amendments seek to include the 418 pages of documents listed as documents M19 and M20. It is the Applicant’s case that such documents, being evidence of the negotiations underlying what became the agreement of 1856, are inadmissible as a matter of law on well-established legal ground;

(3)           An Order refusing the amendments to the Statements of Case in so far as they seek to introduce an argument as to a “determinable fee” no further particulars having been provide;

(4)           An Order refusing the amendments to the Statements of Case of Morlandia Limited, Susan Penhaligon and James Crabtree on the basis they do not relate to the preliminary issue; and

(5)           Various Orders as to costs.

 

The Order dated 28 ^th May 2012

2.                   By an Order of the Adjudicator dated 28 ^th May 2012:

(1)                Time was extended for the Respondents to make “consequential amendments” to their Statements of Case so as “to permit the amendments now already made insofar as they are consequential upon the Applicant’s amendments to its Statement of Case”;

(2)                The relevance of the documents (being documents M19 and M20) was adjourned to the hearing;

(3)                It was determined that the documents from the national archives (being documents M19 and M20) need not be included in the trial bundle, save for any typed transcripts (of what were manuscript documents) provided by any of the Respondents; and

(4)                The costs applications were reserved to be determined at the conclusion of the present hearing.

The Applicant’s Skeleton Argument – paragraph 37

3.                   It was the Applicant’s case as set out in paragraph 37 of its Skeleton Argument that that pursuant to its application, the following documents should be excluded from consideration during the course of the hearing:

 

(1)                All the documents in Tab 39 in Bundle 3. [107] These are the transcripts of the documents included within M19 and M20, which transcripts were required by the order dated 28 ^th May 2012 as referred to above;

(2)                The “Altered Statement of Case Insertions” for Mr Devere [108]; The London River Company Limited [109]; and Mr Mason [110];

(3)                The amended Statement of Case for Morlandia Limited and Susan Penhaligon [111] (the original Statement of Case being in the previous tab in the trial bundles) and the accompanying documents [112]; and

(4)                The amended Statement of Case for John James Crabtree [113] (the original Statement of Case being in the previous tab in the trial bundles) and the accompanying documents [114].

 

 

ANNEX 5

 

The Applicant’s Statement of Case – paragraph 35

As a matter of pure construction (considered in the context of the primary purpose of the conveyance being a transfer of title away from the Crown):

 

1.                   The words used, in particular the words “in front of or immediately adjacent to” are inconsistent with the reservation extending across the entire width of the River Thames to the opposite bank;

 

2.                   The words “in front of”, given the ordinary meaning of the word “front”, in the context of the conveyance mean an area of river adjacent to the relevant land sufficient to maintain the privacy of that land and/or to prevent the use of the river adjacent to that land other than for public rights, most notably the public right of navigation;

 

3.                   The reference in the recitals within the 1857 conveyance to the eighth article of the articles of agreement dated 18 ^th December 1856 and the reference therein to the third article is only consistent with the Crown’s retained ownership not encompassing the entire width of the River Thames, as if it were otherwise the relevant words contained in the eighth article would be superfluous;

 

4.                   The relevant knowledge of both parties to the conveyance (relevant to its construction in providing the appropriate context) would include the fact that the presumption of ownership of land adjoining a river being to the centre of that river, the medium filum, did not apply to tidal rivers, but that such non-application of the presumption was simply consistent with the fact of the entirety of the bed and shore of a tidal river being within the ownership of the Crown unless the same had been granted and/or conveyed by the Crown or rights had been acquired by prescription;

 

5.                   Furthermore, the parties to the conveyance would have known that in circumstances in which there was a grant from the Crown, being the primary circumstance in which the Crown did not own the bed and foreshore of a tidal river, as a matter of law the grant was to the medium filum of the relevant tidal river, not across the entirety of the watercourse;

6.                   Yet further, the parties to the conveyance would have known that in addition to manors in the event of there being county or parish boundaries in a tidal river, there was a presumption the same was in the middle of the river, namely the medium filum;

 

7.                   In such circumstances it is averred that the words “in front of” as used in the 1857 Conveyance were intended to and simply mean that part of the river in front of the relevant land to the middle (the medium filum) of the river.

 

ANNEX 6

THE REPORT DATED 11 ^TH APRIL 1917

 

“The agreement [115] however expressly excluded from the proposed grant and conveyance the shores or bed of the River in front or immediately adjacent to any lands, buildings or hereditaments whereof of whereto Her Majesty or any person or persons in trust for Her were then seised or entitled in possession, reversion or remainder or which were then the property of any Department of Her Majesty’s Government or in the possession of any such Department of the Government or of any Officer of the same. (These shores or bed are hereinafter referred to as “Reserved Foreshores”)”. [116]

 

………..

 

“It is obvious that the necessity would immediately arise of defining with some degree of precision the limits and boundaries of the Reserved Foreshores and this formed the subject of correspondence with the Office of Woods in 1859, the result being that on the 30 ^th April 1862 plans were sent by the Commissioner of Woods to the Secretary of the Thames Conservancy showing the limits of the various Reserved Foreshores.” [117]

 

………

 

“In 1888 a large scale reproduction of the plans of 1862 was sent to the Thames Conservancy by the Commissioners and in order to avoid litigation an agreement was come to between the Commissioners of Woods and the Conservators.” [118]

 

……….

 

“The plans were of considerable importance seeing that: -

 

In 1862 they indicated the respective limits of the Conservators fee simple and of the Reserved Foreshores.

 

In 1889 they determined questions of revenue and payment as between the Office of Woods and the Conservators.

 

In 1912 the same plans were the basis of the arrangement negotiated between the Office of Woods with the sanction of the Treasury and the Port of London Authority, under which the Commissioner of Woods sold, and the Authority purchased, for the sum of £235,000 the one-third share of the revenues arising from that bed and soil which had been vested in the Corporation and the Conservators (the Authority’s predecessors in title) by the Agreement of 1856 and the Act of 1857.” [119]

 

………..

 

“The only data upon which such distinction could be founded were the plans seeing that it was only by reference to the limits of shewn [on the plans] of the Reserved Forshore that the inclusion in or exclusion from the Account of each and every Revenue producing work in the River could be accurately determined.” [120]

 

…………

 

“It will be apparent therefore that the plans, in shewing the boundaries of the Reserved Foreshores, also shew the boundaries of the Authority’s fee simple rights in the bed, soil and shores of the River and that any alteration in those boundaries would re-open not only the terms of the grant and conveyance of 1856 but also the purchase price of the subsequent sale and purchase of the Crown Rights in 1912 as set out in the Port of London Act of that year.” [121]