Introduction
There are moorings, some private, many leased or rented in our tidal and non-tidal waterways. Used by some for pleasure, others for work and a few for house-boats. However, they and foreshore below or around have become more precious to us all. In recent years although not exclusively this has been particularly true of the East of the Country and below contains a short summary of the most recent cases up to the Port of London Authority v. Mendoza [2017].
Use of Words
There is in this area of law a number of words frequently used often in different ways. The following are just a few:
| Word | Explanation
|
| Abandonment and Abandoned | This is where a vessel (see below) which through accident or cause has sunk or become fast |
| Accretion | Coming from the Latin “accrescere” means to grow or to increase. In some areas this occurs when a river bed moves its position or the sea returns back the land see Lynn Shellfish Limited v. Loose [1916] |
| Boat | Most of us know what a boat is but in legal terms there is on occasions quite a difference between a boat and a vessel (see below) |
| Byelaws | Many of our harbours, ports and waterways are creatures of statute. Under which they are entitled to make byelaws a breach of which is usually dealt with through prosecution in the Magistrates Court rather than our Civil Courts. Many moorings will be subject to some form of byelaw control |
| Foreshore | This can be coastal, tidal or inland. It is the land which can be seen when the tide goes out or with internal waters depending upon water level |
| Harbour | Most of us know what a harbour is. Some are little more than defended beaches. Others big commercial structures. There are two slightly different definitions although statute. Under Section 313 of the MSA 1995 it includes “estuaries, navigable rivers, piers, jetties and other works in, or at which ships can obtain shelter, or ship and unship goods or passengers”. Under Section 57 (1) Harbours Act 1974 it is expressed as “any harbour whether natural or artificial and any port, haven, estuary, tidal or other river or inland waterway navigated by sea-going ships and includes a dock, wharf …” |
| Limitation Periods | There is a time in law and under the Limitation Act 1963 if there is a dispute a claim has to be made within the limitation period. For the purposes of most land this is 12 years but against The Crown it extends to 60 years |
| Possessory Title Claims | Also known as adverse possession because there are no Title Deeds to confirm occupation. It is gained by squatting for a period of time. To succeed there are some careful cases which need to be considered and these are correctly set out in the Land Registry’s own Guidance Practice Guide 5 and its application of the cases of Powell v. McFarlane (1977) 38 P & C R 452 and The House of Lords in J A Pyle (Oxford) Limited v. Graham [2002] UKHL 30 to which there should be added the case of Buckinghamshire County Council v. Moran [1990] CH 623. The making of a claim for possessory title (typically the foreshore) depends upon whether a claim can be justified based on possession before the 13 October 2003 (when the Land Registry Act 2002 came in) or if not for the period required by then under the Land Registration Act 2002. Claims for foreshore and particularly the most recent cases have stood or failed on this point |
| Rights of Navigation | There is a right to pass and repass which includes a limited right to moor “temporarily” is the Latin used for the word wait for wind or tide or to load or to unload, to load and unload requires the permission of the owner of the bank or foreshore. With many waterways the control is governed by statute and through Byelaws |
| Riparian Owners | There are in truth many who have a right of access to the watercourse, to moor boats, the bank and to place structures on the bank and sea bed of the watercourse provided he owns the riparian right and that use does not contravene the right of navigation |
| Ship | Under Section 313 (1) of the MCA 1995 the definition of Ship includes every description of vessel used in navigation |
| The Crown | Since 1066 (a bit later for Wales and Scotland) all land is technically owned by The Crown. This becomes increasingly important when we deal with moorings because so many are on our tidal waters or on our foreshore, most of which is owned or controlled by The Crown. This can be through The Crown Office itself or in England through the two Duchys of Lancashire and Cornwall. Their relevance now is often that the foreshore is owned by The Crown or owned and then leased out to the Harbour Authority which then organises use and control in its patch. Where there is a claim for possessory title of that land The Crown itself has a privileged limitation period under the Limitation Act (see below) |
| Tidal Waters | Simply waters up to the point where the tide fails to reach and so this includes estuaries and rivers subject to the common law right of navigation and the right of The Crown |
Most harbour authorities now whatever the old cases apply the current use of the word boat or vessel, particularly in Byelaws, “every description of vessel however navigated propelled or moored and includes any ship, lighter, keel barge, boat, raft, pontoon, hovercraft, hydrofoil, vessel and any craft of any kind and any sea plane on the surface of the water”.
Foreshore
For centuries people have tied their boats or vessels along tidal estuaries where when the tide has gone down they have been able to repair and fix them. Some ship repairers still use the foreshore to repair and store vessels but some wish to use the foreshore to place their house-boats. Any such rights are subject to rights of navigation and increasingly to control navigation through the Port Authority or Harbour Authority. As the land becomes more precious and expensive some use often ignored by The Crown is now subject to Crown control and a charge but there was never or rarely attempt in the past to make a charge, with certain moorings not transferrable.
It has been mostly on the use of land or water for house-boats that many of the cases have led to Court decisions.
The Recent Cases
Platt v. Crouch [2004] 1 P & CR 242. Platt purchased a hotel along the riverbed which had with it a small island in the middle of the river. It had been used by the owners of the hotel and their guests as part of the hotel business for both fishing and mooring boats. The issue was whether he had a right to do this and convert it into an easement under Section 62 of The Law of Property Act 1925 and whether these rights were capable of being an easement. It was held that they were. The rights had been enjoyed for some time by the hotel for the benefit of the business and its guests. The rights were continuous and apparent for the purpose of Section 62. As such they could be recognised as an easement even though they adversely affected the servient land.
Port of London Authority v. Ashmore 2009 EWHC 954 and 2009 AER 74. This case in the Chancery Division in London decided that it was possible for the owner of a moored vessel (in this case since 1983) a sailing barge called “Atrato” by Battersea Bridge in a tidal area of the Thames. The Port of London Authority wished to register the land under the river at which point Mr. Ashmore made his claim for possessory title. It was determined that although an area of tidal water adverse possession could be obtained of the sea or riverbed or the foreshore of the footprint of the vessel where (i) the title to the sea or riverbed had not been registered and (ii) the vessel rested on the mud or the foreshore at low tide.
Port of London Authority v. Tower Bridge Yacht and Boat Company 2013 EWHC 3084 (CH). In a case decided in the summer of 2013. The decision of Justice Mann involved a claim by the Port of London Authority against Tower Bridge Yacht and Boat Company as to their use and right to use a number of moorings close to Tower Bridge where from the evidence given there had been moorings at least from 1857 and possibly before that. The Defendant had no licence for the moorings from the Authority but the Claimant claimed they did not need one. The decision is long and clearly went through a good deal of history relevant to that particular site. The burden of proof to establish whether the mooring chains were in place in 1857 was assessed as being the Claimants. The Judge found that the PLA failed to establish the moorings claimed by the Defendant were not present by 1857, save for three in dispute and as such was not entitled to insist on the Defendant requiring a licence for them. There were certain moorings which the Judge felt were subject to the need for a licence and the Defendant failed in the claim that it had a franchise in respect of its moorings. In making his decision the Judge was aware of a case being decided almost at the same time by Arnold J. in Couper Limited & Others v. Albion Property Limited.
Moore v. British Waterway Board 2013 EWCA Civ 73. In a tidal part of The Grand Union Canal Mr. Moore moored his vessels which were occupied as homes. Although the BWB controlled the Canal it did not own the bed of the Canal but served a Statutory Notice on Mr. Moore for the removal of the vessels on the basis they were not moored with lawful authority. Ultimately BWB lost the case because the Notice was deemed under the Regulations to be invalid but before then the Court had determined that in general a riparian owner owning the canal bank was not entitled against the true owner of the riverbed to place his vessels for an indefinite time over the riverbed if he did not own it.
Couper (1) v. Albion Property & (2) Port of London Authority 2013 EWHC 293. The Claimant, Couper, owned a large number of boats moored on The Thames by Battersea Bridge but the riverbed was believed to be owned by The Port of London and alongside riparian land owned by Albion. The Claimants sought adverse possession to the riparian land with benefit also of a franchise to moor the boats on it lodging a franchise of mooring rights since before 1857. That part of The Thames was owned by The Crown. Although it is always, of course, in an area of control by the Port of London. Adverse possession claimed was in issue. Arnold DJ had a great deal of evidence over a period of weeks but felt that the Claimants were unable to establish adverse possession of the riverbed because it was vested in The Port of London Authority for the purpose of regulating public rights of navigation. R (Smith) v. Land Registry 2010 EWCA was applied.
Port of London Authority v. Medoza 2007 UK UT 146. This was a case dealt with by the Upper Tribunal (Tax and Chancery) where it was heard in The Royal Courts. The Port (P) had sought to register part of the foreshore of The Thames by Kew Bridge. House-boat owners, including Mr. Mendoza, objected. He had a house-boat on part of the river though it rested on the foreshore at low tide. In January 2016 it was found by Judge Mark that he thought he had acquired a squatters title and from that the Claimant appealed. This very case took us to the Powell v. McFarlane case and the question of adverse possession together with the case above of Port of London v. Ashmore and Moore v. British Waterway Board together with Fowler v. Gatford [1968] 2QB 618 (possession of a tidal creek by the laying of permanent moorings. The Judge, Elizabeth Cooke, granted the Appeal deciding that PLA was entitled to its registration. Although a house-boat owner was entitled to seek possessory title, on the facts Mr. Medoza had not succeeded in the evidence and proof required. There was no authority to the effect that the simple mooring of a boat on a tidal river without more was sufficient for adverse possession. The mooring of the boat was ambiguous. Perhaps if Mr. Medoza had written notice saying something like Private Land and mooring or some tying by the riverbed to support the boat when moored might have helped.
Can we Help You?
Although the above cases were mostly around London the fact is that we still have many more moorings and boats along our foreshore within the West Country but it seems relatively clear that to prove entitlement not contained in a deed does require the same proof of intention and use as is required for a possessory title of dry land and that is not easy.
If we can help you further please contact us at Hassall Law, Suite 1 Duke Street Chambers, Bridge Street, Kingsbridge, Devon, TQ7 1HX.
Tel: 01548 854878
Email: [email protected]