ON APPEAL FROM NEWPORT (IOW) COUNTY COURT
His Honour Graham Jones
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LADY JUSTICE ARDEN
LORD JUSTICE PATTEN
| MR CHRISTOPHER MEW
MS JANET JUST
|- and -
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Thomas Jefferies (instructed by Daltons) for the Respondent
Hearing date : 4th July 2011
Crown Copyright ©
Lord Justice Patten :
"subject to the rights, duties, contracts, liabilities and obligations affecting the same (including all rights of access to landing-places, piers, quays and jetties existing immediately before the day of transfer": see s.11(2).
" (1) The Company may provide, place, lay down, maintain, use and have moorings, buoys, marinas and like apparatus and conveniences for vessels and houseboats on land owned or leased by the Company and on any other land with the consent in writing of the owner and lessee thereof in the harbour.
(2) The Company may demand, receive and recover in respect of any vessel using any of the moorings, buoys, marinas or like apparatus or conveniences provided by the Company under this section such reasonable charges as may be prescribed by the Company and approved by the Minister.
(3) The Company may demand, receive and recover in respect of any houseboat within the harbour such reasonable charges as the Company may from time to time determine."
"any vessel lying in the water or on the foreshore of the harbour which is used or capable of being used as a place of habitation and if so used whether such use be temporary, intermittent or permanent or as a place for accommodating or receiving persons for purposes of shelter, recreation, entertainment or refreshment or as club premises or as offices but shall not include –
(i) a vessel normally engaged in the transport of persons or goods; or
(ii) any pleasure vessel used in navigation; or
(iii) any lightship or watch barge;
"vessel" includes any vessel, ship, lighter, keel, barge, boat, raft, pontoon, hover vessel, and craft of any kind howsoever navigated, propelled or moved and except for the purpose of levying rates any seaplane on the surface of the water;"
"23. Although the evidence is limited, I consider that, on the balance of probability, the following findings of fact can safely be made
(1) Originally, the units were WW2 landing craft. Their appearance is consistent with that finding. That was what the owners told Mr Shields (albeit necessarily based on report to them). Mr Shields states that "observation would suggest that this is probably the case".
(2) The owners also reported to Mr Shields that the landing craft were constructed locally and were surplus to requirements at the end of the war. Again, this seems more likely than not. There are a number of similar units in the Harbour. The fact that they are in a harbour with direct access to the Channel makes it more likely that they were constructed there than brought there over land.
(3) Originally the units floated. It is improbable that landing craft were constructed which could not float.
(4) It is more likely than not that, originally, the units were houseboats in a true sense i.e. they provided floating residential accommodation. It is more likely than not that a converted boat capable of floating and floating on the tide in a harbour would be used as floating accommodation. Others of the units in the Harbour (of which there are a substantial number) are still used in that way.
(5) When the units were raised above high water level, none was attached to the supporting structures. "Merlin" and "Watershed" remain unattached, resting on the supporting structures by their own weight. In the case of "Emily", the extension work carried out (some five years ago according to Mr Mew) it itself physically attached to the harbour bed and in turn to the original structure. The original structure itself remains unattached to its supporting structures resting on them by its own weight.
(6) "Merlin" and "Watershed" could still be lifted off their supporting structures by crane. Such an operation could not be carried out without causing damage to the units but the sole cause of that damage would be the deterioration resulting from failure to maintain the units. In the case of "Emily", removal could not take place without damage to the additional structure and to the original unit to which the additional structure is physically and substantially attached. In the case of each unit, the mains services could be easily disconnected.
(7) It was the unqualified understanding of all three Defendants (and indeed everyone else involved) that they were acquiring their respective units by purchase on the basis that they were chattels: the Defendants did not take assignments of leases or tenancies; each apparently acquired ownership of a houseboat. It is highly likely that these transactions were part of a series of like transactions, all previous dealings having been on the same apparent basis, sale by one owner to the next.
(8) Various terms have from time to time been used by or on behalf of the Harbour Company such as "site rent", "mooring fees", "tenancy" and "licence". It is clear, however, that the Harbour Company has always considered and treated the units as owned by the occupiers and not by it. The "site rent" or "mooring fees" have been based upon "the length of the houseboat". Tristmire has not entered into any arrangement or relationship with the Defendants different from that which subsisted between the Harbour Company and the Defendants but is subject to it, whatever it was.
(9) The Defendants occupy their respective units as their sole permanent residential accommodation, paying council tax."
"the photographs show very clearly what the bungalow is, and especially what it is not. It is not like a Portakabin, or mobile home. The nature of the structure is such that it could not be taken down and re-erected elsewhere. It could only be removed by a process of demolition. This, as will appear later, is a factor of great importance in the present case. If a structure can only be enjoyed in situ, and is such that it cannot be removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it should form part of the realty at that site, and therefore cease to be a chattel."
"we are required to proceed on the basis that the bungalow is not physically attached to the land. The next consideration is whether the foundations form part of the bungalow. These are sunk into the ground and, if they were to be treated as part of the bungalow, would clearly be an element of physical connection with the ground. But it does not appear that there is any particular adaptation of the foundations to the structure above nor any adaptation of the structure to suit the foundations. The main structural elements of the bungalow simply rest on the concrete blocks. The bungalow and the foundations are severable from each other and it is not appropriate to treat the whole as a unum quid so as to conclude that the bungalow is built into the ground. It is with the wooden structure alone that the case is concerned."
"Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold (see Leigh v Taylor  AC 157, [1900–3] All ER Rep 520). These tests are less useful when one is considering the house itself. In the case of the house, the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J in Holland v Hodgson (1872) LR 7 CP 328 at 335, [1861–73] All ER Rep 237 at 242:
'Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels.'
Applying that analogy to the present case, I do not doubt that when Mr Morris's bungalow was built, and as each of the timber frame walls were placed in position, they all became part of the structure, which was itself part and parcel of the land. The object of bringing the individual bits of wood onto the site seems to be so clear that the absence of any attachment to the soil (save by gravity) becomes an irrelevance."
If one considers the object or purpose which the structure serves by being placed where it is, it was clearly placed there to enable the amenity of Holtsfield to be enjoyed through the establishment of a residence. The bungalow was built there in order that people could live in what is represented as being an idyllic rural environment. The Court of Appeal, however, had regard to the belief of Mr Morris that he owned the bungalow as evidence of his intention. But his belief cannot control the operation of the law in relation to accession and the matter of intention has to be judged objectively. Indeed, the fact that the freeholders may have believed and reminded the occupants that their rights to remain could be terminated, which was also a factor on which the Court of Appeal relied, cannot affect the operation of the law.
Accession also involves a degree of permanence, as opposed to some merely temporary provision. This is not simply a matter of counting the years for which the structure has stood where it is, but again of appraising the whole circumstances. The bungalow has been standing on its site for about half a century and has been used for many years as the residence of Mr Morris and his family. That the bungalow was constructed where it is for the purpose of a residence and that it cannot be removed and re-erected elsewhere point in my view to the conclusion that it is intended to serve a permanent purpose. If it was designed and constructed in a way that would enable it to be taken down and rebuilt elsewhere, that might well point to the possibility that it still retained its character of a chattel. That the integrity of this chalet depends upon it remaining where it is provides that element of permanence which points to its having acceded to the ground. The Court of Appeal took the view that the bungalow was no more annexed to the land and just as much a chattel as the greenhouse in Deen v Andrews  1 EGLR 262 (or, as I have already mentioned, the large shed in Webb v Frank Bevis Ltd  1 All ER 247). But there is a critical distinction between Deen v Andrews and the present case in the fact that the greenhouse was demountable while the bungalow is not. I prefer the conclusion reached by the learned assistant recorder after hearing the evidence and visiting the site to form his own impression of the situation. As he observed towards the end of his judgment, a judgment which deserves commendation for the detail and care which has gone into it:
'… it seems to me clear that at least by 1985 and probably before, it would have been clear to anybody that this was a structure which was not meant to be enjoyed as a chattel to be picked up and moved in due course but that it should be a long-term feature of the realty albeit that, because of its construction, it would plainly need more regular maintenance.'
In my view, the conclusion reached on this matter by the assistant recorder was correct."
"it is important to bear in mind that what is required is sufficient attachment to the land so that the chattel becomes part of the land itself. Here the houseboat rested periodically on the river bed below it and was secured by ropes, and perhaps to an extent the services, to other structures. It is difficult to see how attachments in this way to the pontoons, the anchor in the riverbed and the rings in the embankment wall could possibly make the houseboat part of the land. One is bound to ask 'which land'? There is in my judgment no satisfactory answer to this question. More importantly, however, all these attachments could simply be undone. The houseboat could be moved quite easily without injury to itself or the land. The agreement contemplates that it will be moved, and, in practical terms, required Mr Pope to dry dock it if he was to fulfil his obligation to paint the hull. The fact that it cannot move under its own power is not the point. Whilst the houseboat was obviously intended to be moored where it was for the term of the agreement at least, the fact that it could and would have to be moved greatly undermines the argument based on permanence.
Turning then to the object or purpose of annexure, Miss Easty strongly submits that the attachment of the houseboat was to provide a permanent home for its occupant. I do not agree. It is not necessary to annex the houseboat to the land to enable it to be used as a home. The attachments were, like the ship's anchor referred to by Blackburn J, to prevent the houseboat from being carried by the tide or the weather up or down stream and to provide the services to it.
For these reasons I conclude that the houseboat has not become part of the land. I support this conclusion on the grounds of common sense. It is common sense that a house built on land is part of the land (see Lord Lloyd of Berwick in the Elitestone case  2 All ER 513 at 518–519,  1 WLR 687 at 692). So too it is common sense that a boat on a river is not part of the land. A boat, albeit one used as a home, is not of the same genus as real property."
"33. In the present case, the materials out of which the landing craft were originally constructed were not brought to their respective present sites and assembled there. Each landing craft was originally a chattel, brought as such to its mooring in the Harbour, and it remained a chattel even after the superstructure had been added and the conversion to residential accommodation accomplished. As I have found, the probability in all the circumstances is that each became and was used as a floating houseboat. As such, in accordance with principle and indeed on the authority of Chelsea Yacht and Boat Co each remained a chattel.
34. Did the houseboats each become part and parcel of the harbour bed when they were respectively raised on to the structures on which they stand? There is no evidence when this was done or how it was achieved, although it predated the occupancy of the Defendants. How it was done, in my view, can be inferred and is material. The houseboats could not have been floated to a height above that of the highest tide. It is extremely improbable, even if practically possible, that they were taken apart and then rebuilt on the supporting structures. They can only have been jacked up from the harbour bed beneath or raised by means of a crane onto their respective supporting structures. That conclusion is consistent with the engineer's report.
35. The significance of the conclusion, in my view, is that they could be and were placed on their respective platforms, in the words of Parke B cited by Lord Clyde in Elitestone "integre, salve, et commode, without injury" to themselves. Having been placed upon the supporting structures in that way, they could just as easily have been removed in the same condition. In Lord Clyde's view, the fact that the bungalow in Elitestone was not removable in one piece nor demountable for re-erection elsewhere was "one powerful indication that it is not in the nature of a chattel" (page 696H). Equally, the fact that each houseboat could have been removed in one piece without damage or injury to itself and placed on a lorry or barge to be transported to a platform elsewhere is in my view a powerful indication that it remained in the nature of a chattel. In this respect, it seems to me not essentially different from a mobile home.
36. Even if the supporting structure or parts of them became affixed to the land, it does not follow that the houseboats themselves became so affixed. It is of course the case that a structure or object may become affixed to the land even if it is not physically affixed but simply remains in position by virtue of its own weight. But these houseboats could easily have been physically fixed to the supporting structures. There was no reason for them not to be so affixed. The fact that none of them ("Emily" apart much more recently) has ever been fixed in any way to the supporting platforms is, in my view, consistent with their being removable in one piece and is further support for the conclusion that they continued to be chattels.
39. Applying commonsense, I consider that these units were not "houses" within the normal usage of that term. They were and remained essentially boats, albeit adapted for residential use. When they came to be placed on their respective supports, they were placed as whole units, the construction of the entire structure (boat and supports) being such in each case that the boat remained removable as a unit. Hence (respectfully echoing Lord Lloyd but here to the contrary conclusion) they cannot have been intended to form part of the realty. They must have been intended to remain as chattels.
40. Lord Clyde in Elitestone did apply the test whether the purpose of annexation was for the better enjoyment of the object as a chattel or whether with a view to effecting a permanent improvement of the freehold. He said (page 698E-F):
'It is the purpose which the object is serving which has to be regarded, not the purpose of the person who put it there. The question is whether the object is designed for the use or enjoyment of the land or for the more complete or convenient use or enjoyment of the thing itself".
He concluded (page 699A) that the bungalow in question was built for the use or enjoyment of the land, "in order that people could live in what is represented as being an idyllic rural environment".
41. In the present case, in my judgment the units were raised up on their supporting structures for "the more complete or convenient use or enjoyment" of the units themselves. In no realistic sense could they be said to have been put into position for the use or enjoyment of the harbour bed. Their occupants enjoyed the amenity of the harbour when they were moored as floating houseboats. The purpose of raising them above high water level was for their more complete or convenient use or enjoyment as chattels. They no longer rose and fell with the tide. Entry of sea water or the risk of it was removed."
Lady Justice Arden :
Lord Justice Maurice Kay :