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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> British Waterways Board v (1) James Mason (2) David DeVere (Rivers, Waterways and Foreshore : Construction of relevant legislation) [2010] EWLandRA 2008_1004 (29 March 2010)
URL: http://www.bailii.org/ew/cases/EWLandRA/2010/2008_1004.html
Cite as: [2010] EWLandRA 2008_1004
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The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN
APPLICANT
and
(1) James Mason (2) David DeVere
RESPONDENTS
Property Address: Dock Road, Brentford
Before: Mr Edward Cousins sitting as the Adjudicator to HM Land Registry
Applicant Representation: Mr Christopher Stonor QC instructed by Messrs Shoosmiths, Solicitors
Respondents Representation: Both in person
DECISION
KEYWORDS: Application for first registration of land and waterway at Brentford Dock – claim by Respondents that ownership of canal by Applicant did not extend to its full width - true construction of relevant legislation - Grand Junction Canal Act 1793, ss. 1, 4, 9, 10, 11, 15, 16, 18, 25, 27, 28 - Transport Act 1962, ss. 1 and 31 - Regent’s Canal and Dock Company (Grand Junction Canal Purchase) Act 1928, ss. 4 and 34, and sch. 1 - Section 12(1), Transport Act 1947, sch, 3, pt. II; SI 1962 No 2634;
Cases referred to: Swanhill Developments Limited v British Waterways Board [1998] JPL153ff; Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B. & Ad. 792; Geronimo Limited (1) British Waterways Board (2) v Brentford Yacht & Boat Company Limited [2008] EWHC 3140 (Ch)
THE APPLICATION
1. By an application made in Form FR1 dated 28th March 2007 (“the Application”) the British Waterways Board (“the Applicant”) applied to HM Land Registry to register land and waterway forming part of the Grand Union Canal, Brentford, (“the Canal”) identified on the plans attached to the Application as shown edged red. In fact there are fourteen plans attached to the Application. For the purposes of this Application and my Decision I will refer specifically to plans 1, 2 and 3 copies of which are exhibited to the Statutory Declaration of Stuart Christopher Mills made on 30th March 2007 in support of the Application. This Statutory Declaration appears in bundle A (“Bundle A”) of the bundle of documentation (“the Bundle”) prepared for the hearing. Plans 1, 2 and 3 appear at pages 38, 39 and 220 of that Bundle (“Plan 1”, “Plan 2”, and “Plan 3”) and can be found in Annex 1 to this Decision.
2. By letter dated 4th July 2007 the First Respondent, Mr James Mason (“Mr Mason”) objected to the Application on the grounds that the ownership by the Applicant did not extend to the full width of the Canal as claimed. By letter dated 24th July 2007 the Second Respondent, Mr David DeVere (“Mr DeVere”) also objected to the Application and referred to the objection lodged by Mr Mason for the same reasons.
3. Thereafter, both Mr Mason and Mr DeVere also applied for first registration of parts of the land within the Application made by the Applicant such application being based on adverse possession. These applications were, however, cancelled by HM Land Registry on the basis that they were groundless as the acts of user relied upon were not considered sufficient to constitute adverse possession. I should also state that although the objections and the grounds in support made by Mr Mason and Mr DeVere related to the full length of the Canal comprised in the Application, the Registrar completed the registration of other tracts of the land which were not in the vicinity of the land claimed by Mr Mason and Mr DeVere. In such circumstances the objections the subject matter of this Decision are confined to the land shown on Plans 1 and 2 and part of the land shown on Plan 3. That part of the land shown on Plan 3 which has already been registered in favour of the Applicants under title number AGL166963 is shown edged and coloured red on Plan 4 which is also included in Annex 1. On Plan 1 I have marked in red hatching the approximate positions of the former moorings where boats owned by Mr Mason and Mr DeVere were originally moored.
4. On 10th July 2009 at a case management conference the following directions were, inter alia, made:-
(1) That the sole issue the Adjudicator will determine at the final hearing of this reference is that of whether the Applicant owns the full width of the Canal as claimed in its Application, or whether it can only own (by reason of the provisions of the Grand Junction Canal Act 1793 (“the 1793 Act”) by action of law or by documentary evidence of title) that part of the Canal up to a width of 20 yards as claimed by Mr Mason and Mr DeVere in their objections;
(2) That in so far as the statements of case, disclosure and witness statements submitted on behalf of Mr Mason and Mr DeVere refer to matters other than the issue identified in sub-paragraph (1) above, the same shall be disregarded by the Adjudicator.
Accordingly at the hearing the Applicant contended that the objection of Mr Mason and Mr DeVere to the Application in so far as it relates to the issue of principle as to whether the Applicant can own that part of the Canal more than 20 yards in width, should be dismissed.
5. Finally, I should mention that the Application has also been the subject of an objection by the Port of London Authority (“the PLA”) which additionally made its own cross-application for registration. Following negotiations between the parties that objection and cross-application made by the PLA has now been the subject of an agreement made between the Applicant and the PLA, to which I shall refer again below.
THE BACKGROUND
6. The Applicant is the navigational authority for the majority of inland waterways in Great Britain. The Applicant was established by Section 1 of the Transport Act 1962 and assumed responsibility for the inland waterway operations of the former British Transport Commission which itself had assumed responsibility of the inland waterways upon the nationalisation of the main British transport infrastructure in 1947/1948. The Applicant now manages the navigation in relation to approximately 3,135 km (1948 miles) of inland waterways of which about one third are navigable rivers and the remainder are canals. One canal within the jurisdiction of the Applicant is the Canal in question. The purpose of the Application is to register land vested in the Applicant for the better management of the waterways and to better perform its statutory duties and obligations.
7. Mr DeVere has litigated on a number of occasions with the Applicant in respect of his claim to possession to the wall and bed of the Canal at Point Wharf, which forms part of the land shown on Plan 1. The approximate position of his claimed rights are marked at point X on the Plan. In one set of proceedings in the High Court he was eventually the subject of an Extended Civil Restraint Order made on 26th June 2008 by Mr John Jarvis QC sitting as a Deputy Judge of the Chancery Division. Mr Mason’s claim relates to the area known as “Guy’s Wharf” where he formerly moored some 12 boats the approximate position being marked at point Y on Plan 1.
8. In so far as the present Application is concerned, I should state that following the Case Management Conference, to which I have made reference above, the hearing of the Application was listed for the 3rd November 2009 following a site view of 2nd November 2009. Although the site view went ahead the hearing itself set for the following day had to be adjourned as Mr DeVere had by that stage been arrested and committed to prison for contempt of court. This followed his breach of a court order made by His Honour Judge Oppenheimer sitting at Brentford County Court on 11th June 2007. That order related to other proceedings in Brentford County Court the substance of which I do not need to refer to in any detail other than to say that part of that order included declarations that Mr DeVere was not in possession of the Canal wall, or the Canal bed, or any part thereof at Point Wharf, Brentford, and that he had no title to the same. It was further ordered that he be forbidden, whether by himself or by instructing or encouraging any other person, from painting or interfering with or damaging in any way the Canal wall at Point Wharf, and in particular from painting or interfering with or damaging in any way the railings on the Canal wall forming a barrier between the pathway on Point Wharf and the channel of the Canal. Mr DeVere was committed for contempt of that order in that he, and/or persons on his behalf, had been committing the very acts that he had been ordered not to do. The result of his incarceration meant that the hearing listed for the 3rd November 2009 had to be adjourned until Mr DeVere was released from prison having purged his contempt before his Honour Judge Oppenheimer.
9. In the current proceedings the objections made by Mr Mason and Mr DeVere were initially rejected as groundless by HM Land Registry. These objections, however, were reconsidered by a Land Registrar from another office (the Telford Office) following a complaint made by Mr Mason and Mr DeVere. The reference then made to this jurisdiction was specifically limited to the contention that the ownership of the Canal bed, whether by statutory vesting or by conveyance, does not and/or cannot extend beyond a width of more than 20 yards. It is for that reason that paragraphs (1) and (2) of the Directions made at the Case Management Conference were made which I must emphasise were made with the consent of both Mr Mason and Mr DeVere.
THE LEGISLATION
10. Permission was granted by the enactment of the 1793 Act to construct the Grand Junction Canal (as the relevant stretch of Canal was originally known) to the Company of Proprietors of the Grand Junction Canal. Commissioners were appointed under the statute to settle any disputes arising. A typed copy of the 1793 Act appears in Bundle A, Annex 8.
11. On 1st January 1929 the undertaking, property and powers of the Company of Proprietors of the Grand Junction Canal was vested in the Regent’s Canal and Dock Company pursuant to the provisions of the Regent’s Canal and Dock Company (Grand Junction Canal Purchase) Act 1928, in particular by section 4 and the first schedule thereto. By section 34 of the Act the name of the Regent’s Canal and Dock Company was also changed to the Grand Union Canal Company.
12. By operation of the Transport Act 1947, in particular by section 12(1) and part II of the 3rd schedule thereto, the undertaking and property of the Grand Union Company and the powers of the Commissioners were vested in the British Transport Commission.
13. The Applicant itself was created by section 1 of the Transport Act 1962. Section 31 of that Act transferred the property rights and liabilities comprised in that part of the British Transport Commission’s undertaking constituting the inland waterways (other that the Lower Ouse Improvement). These were vested in the Applicant pursuant to a statutory instrument (SI 1962 No 2634). Copies of these statutory provisions are also included in annex 8.
THE JURISDICTION OF THE ADJUDICATOR
14. As a preliminary point Mr DeVere, on behalf of himself and Mr Mason, submitted that I had no jurisdiction to construe the legislation governing the case. As he puts it in paragraph 18 of his comprehensive skeleton argument, and accompanying notes, he relies upon a judgment on 25th February 1997 of the then Master of the Rolls (Lord Woolf) in the case of Swanhill Developments Limited v British Waterways Board (reported at [1998] JPL153ff). Based upon the authority of this case Mr DeVere asserts that it is exclusively the High Court which is capable of construing the provisions of the 1793 Act.
15. The Swanhill case was concerned with the interpretation of section 79 of the 1793 Act, the issues being as to whether the claimant there was entitled to exercise rights conferred on owners and occupiers of land abutting the Canal in Northampton by virtue of that section. The main aspect of the judgment was directed to questions of construction and ambiguity. The Court of Appeal was therefore concerned with the question of construction and found that Swanhill Developments were entitled to the benefit of the section. That finding was based upon the proposition that where the provisions of a private Act of Parliament are ambiguous the general rule of construction is to construe the relevant Act so as to resolve ambiguities in such a way which is against the interests of the promoters and in favour of the private individuals who might be affected.
16. Several points were taken during the course of argument in the present case directed to this question of construction. The last point taken related to the fact that the Commissioners were no longer in existence. The undertaking and property of the Grand Union Canal Company had been vested in the British Transport Commission in 1947, but thereafter on the creation of the Applicant in 1962 (see paragraphs 11 and 12 above) the Commissioners were abolished. Mr DeVere refers to the following parts of the judgment of Lord Woolf (at page 161) in support of his assertion that the powers of the Commissioners are now exercised by the High Court who have inherited the Commissioners’ jurisdiction –
“…it was acknowledged that the Commissioners referred to in the Act are no longer in existence. That being so, it is accepted that the appropriate body to exercise what would otherwise be the powers of the Commissioners in these circumstances is the High Court. The High Court can, by granting declarations, make any appropriate decision which is needed in the absence of the Commissioners. That seems to me to be a happy resolution of what could otherwise be a purely technical problem.”
17. From those words Mr DeVere contends that the High Court as successors to the Commissioners, in effect, has exclusive jurisdiction to interpret the provisions of 1793 Act. As a consequence, therefore, this jurisdiction has no ability, and indeed, is prevented from construing the legislation in question.
18. I regret to say that I simply do not understand this submission. This jurisdiction is an original jurisdiction which is capable of interpreting and construing any relevant legislation in cases before it. I appreciate that this jurisdiction does not actually have the power granted under the Land Registration 2002 to make declarations, as such, but it is capable of making binding findings of fact and determinations on the questions of law and construction. Further, I should make the point that the dispute with which I am currently seised is not a dispute which could only be resolved by the Commissioners or its predecessors under the 1793 Act, or their successors in title. In my judgment the 1793 Act contains no such restriction or limitation. In such circumstances during the hearing of this case I made an oral ruling in terms of the above rejecting the submissions of Mr DeVere on this point.
THE 1793 ACT
General background
19. The 1793 Act is a private enabling Act of Parliament. In common with other such statutes it defines its purpose in section 1 (“the Preamble”) which is similar to a company’s memorandum and articles of association. In his judgment in the Swanhill case Lord Woolf at page 154 cites part of the judgment of Robert Walker J at first instance where the purpose of the 1793 Act is defined:-
“Its most important provisions were as follows:
(a) It incorporated the proprietors (who are named in the Act, starting with the Duke of Bridgewater) as a corporation named the Company of the Proprietors of the Grand Junction Canal (‘the company’) with a common seal and a licence in mortmain.
(b) It conferred on the company power to construct the canal, and for that purpose to obtain water from a defined area bordering the canal, and to carry out accommodation works and other operations specified in the Act.
(c) It provided for the compulsory acquisition of the land by the company for the purposes of the Act, upon the company paying compensation (termed ‘satisfaction’ in the Act) for land acquired and damage sustained.
(d) It provided for the regulation of the finances and internal affairs of the company.
(e) It provided for the payment of charges (termed ‘rates’) by users of the canal, subject to certain exemptions.
(f) It provided for the rights, powers and obligations of the company and the owners of land adjacent to the canal both during and after its construction.”
20. The general approach to the construction of the 1793 Act is summarised in a passage in the judgment of Lord Tenterden L.C.J. in the case of Proprietors of the Stourbridge Canal v. Wheeley (1831) 2 B. & Ad. 792, at page 793 where he said:
“The canal having been made under the provisions of an Act of Parliament, the rights of the plaintiffs are derived entirely from that Act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases is now fully established to be this – that ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing which is not clearly given to them by the Act.”
21. Thus in short the 1793 Act was intended to confer extraordinary powers on the promoters. The purpose was to enable the promoters to construct the Canal as a commercial venture from which the promoters would anticipate considerable returns as well as being in the economic interests of the public in general. To this end if private property rights were to be infringed then appropriate compensation would be paid.
22. Finally, it was noted by Lord Woolf in the Swanhill Case that the 1793 Act was drafted long before the Office of Parliamentary Counsel was established in 1869. It is therefore drafted in a different style from that which would be adopted by Parliamentary Counsel for drafting public Acts after the Office was established. There are many examples to be found in the Act of different language being used for the same purpose. There is a lack of consistency in the use of language, which means that the normal approach to construction has to be adopted with caution because it can lead to wrong inferences being drawn as to what is intended.
23. It is now necessary to turn to the specific provisions contained in the statute and I have highlighted the points which I consider to be of particular importance.
The provisions of the 1793 Act
24. For ease of reference the Preamble/Section1 and Sections 4, 9, 10, 11, 15, 16, 18 and 25 of the 1793 Act are set out in Annex 2 to this Decision.
The 20 yard width issue – an analysis of the provisions
25. The fundamental feature of the case for Mr Mason and Mr DeVere is their contention that nothing more than a 20 yard strip of the Canal lay or could lie within the ownership of the Applicant. The plans produced by Mr DeVere in support of their case mark out this physical limitation. The basis of this submission is derived from his interpretation of part of the wording of section 4 of the 1793 Act which provides “…that the lands or grounds to be taken or used….shall not exceed twenty yards in breadth…” (see Annex 2, paragraph 3).
26. In my judgment for the reasons set out below in order to establish the true meaning of section 4 the terms of the section have to be considered in their entirety, and also in the context of the policy and terms of the 1793 Act as a whole.
27. Mr Stonor QC submitted, and I agree with these submissions, that a distinction should be made on the one hand between the provisions of section 4, and its supporting sections, which demonstrate that the Company of Proprietors of the Grand Junction Canal (“the Company of Proprietors”) had wide powers in the nature of expropriation and compulsory purchase to take or use land or grounds for the purposes of the construction of the Canal and its ancillary parts, and on the other hand further sections of the statute which provide for a consensual bargain to be made between the landowners and the Company of Proprietors.
Expropriation
28. As to terms of the section 4, it is to be noted from the wording that the section is divided into three parts. The first part specifies that the canal and its ancillary parts shall not be wider than 20 yards. This limitation, however, is then subject to two sets of express exceptions set out in the section which in effect provide for Canal to be wider than 20 yards in certain specified circumstances. These exceptions are then themselves subject to an express further restriction to the effect that the maximum width the Company of Proprietors was entitled to take or to use was, in effect, a maximum width of 45 yards. This is provided by the words of limitation in the last few words of the section – “…nor in any place more than forty-five yards in breadth…”
29. In my judgment the first exception is mandatory in that where docks, basons (basins), etc shall be made the width of the Canal could not be more than 45 yards in breadth. As to the second exception, as Mr Stonor QC submitted, this is of considerable importance in that this provision permitted land to be taken up to 45 yards in width not when a wharf or warehouse or turning place, and other features were to be built, but where they may be built. As he put it, irrespective of what parts of the infrastructure shall have been built at the same time as the construction of the Canal, the final few hundred yards of the Canal before it enters the River Thames was overwhelmingly a place where it might be inferred that wharfs and other works of infrastructure may be constructed in the future. This would have been an exercise of the judgment of the Company of Proprietors. In such circumstances the statute again provides a maximum limitation on the width of the Canal of 45 yards. In this context I should state that Mr Mason and Mr DeVere accept that the actual width of the canal at is widest point as shown on Plan 1 is 40 yards (see paragraph 21, page 47 of Bundle A).
30. Secondly, as I have said, the true meaning of section 4 has to be seen in the context of the provisions of the 1793 Act as a whole. The following observations are to be made:-
(1) It is apparent from the terms of the Preamble/section 1 that the purpose of the 1793 Act was to facilitate the construction and subsequent maintenance of a navigable canal to be called the Grand Junction Canal from and out of the Oxford Canal in the Parish of Braunston to unite with the River Thames at Brentford;
(2) The Preamble authorised the Company of Proprietors as follows – they “shall and may have the power and authority to purchase lands to them and their successors and assign for the use of the same navigation without incurring any of the penalties or forfeitures of the states of mortmain”. There was no limitation or qualification placed on this general power to purchase land;
(3) The Preamble also authorised and empowered the Company of Proprietors to enter into and upon the land of any person to survey the land and to set out and ascertain such part “as they shall think necessary and proper for making the said intended canal and collateral cuts…” It thereafter provides the straightforward power for the works of construction and ancillary works for the intended Canal;
(4) In the context of the background of these powers it is then necessary to construe the “lands or grounds to be taken or used” contained in section 4. In essence this is the land or grounds which the Company of Proprietors are authorised by the statute to acquire irrespective of the wishes of the owner. As Mr Stonor QC put it – this provides for the de facto compulsory purchase of such lands or grounds.
(5) If the landowner disagreed with the judgment of the Company of Proprietors with regard to the second exception (“where it shall be judged necessary for boats and other vessels to turn…”) then this undoubtedly would have been a matter which could have been referred to the Commissioners pursuant to section 11;
(6) To that end section 25 provides for the payment of sums approved by the Commissioners by way of compensation for the purchase of any such lands. If the person so entitled or interested cannot be found or refuse to receive the sums awarded, then there is provision for the deposit of such sums for the benefit of such persons. Section 16 is the substantive provision providing the basis for awarding such sums. Section 18 is also relevant as this provides for the mechanics of obtaining land compulsorily in circumstances which include a landowner who is unwilling to enter into a treaty or contract with the Company of Proprietors.
31. Having regard to the provisions set out above, in my judgment the correct interpretation of section 4, either having regard to its express terms on a self standing basis, or in the context of the statute as a whole, is that the Applicant was entitled to take and use lands or grounds for the purpose of the Canal and ancillary features to a maximum of 20 yards in width. In the circumstances, however, where either of the two exceptions applied the maximum width to be taken or used by the Company of Proprietors was 45 yards. Further I find that Brentford Dock is eminently a place where either of the two exceptions would have applied – more likely to have been the second exception judging by the infrastructure necessary to be erected at the point where the Canal met the River Thames. I therefore find that the Applicant, as successor in title, is the owner of the land and premises to a width of 45 yards as marked on Plan 1 and is entitled to be registered as such with title absolute at HM Land Registry. Accordingly I reject the submissions made by Mr Mason and Mr DeVere in this regard.
Consensuality
32. Further, or alternatively, I find that there is nothing in section 4, or indeed the 1793 Act as a whole, which prevented the Company of Proprietors from reaching an agreement with a neighbouring landowner for a consensual sale and purchase of land of any size as distinct from its entitlement to acquire a 20 yard strip through which to construct the canal. I appreciate from the words of Lord Tenterden in the Proprietors of the Stourbridge Canal Case (see paragraph 20, above) that the rights of the Applicant are derived entirely from that Act, but in my judgment the 1793 Act does so provide for consensual bargains to be made as an alternative to expropriation. In short there is no restriction and nothing to prevent the Company of Proprietors from freely entering into contracts with adjoining landowners to facilitate the purposes of the construction of the Canal and its ancillary features and they were not restricted to only owning a strip of land of 20 yards in width.
33. This is demonstrated by the following provisions in the 1793 Act:
(1) Section 1 - empowers the Company of Proprietors to acquire land “for the use of the …navigation”. This provision is without limitation as to its extent and enables the Company to purchase land for the use of the navigation.
(2) Section 27 – facilitates the provision of warehousing and other buildings for the depositing and keeping of goods, which once the width of the canal itself is taken into account must necessarily involve an area of land in excess of 20 yards. Further the section expressly refers to such facilities being “at any distance from the said canal which [the Company] shall judge necessary or convenient”. This therefore contemplates the Company of Proprietors owning more than 45 yards.
(3) Section 28 – obliges the Company of Proprietors to acquire land in excess of that necessary for the purposes of the construction of the canal. The section provides: “…that where the company of proprietors shall cut through any land or ground for the purposes of the said Canal, they shall be obliged to purchase not only such part of the same lands and grounds as shall be actually taken or used, but also at the option of the owner or owners of such land or grounds, the remainder thereof, so as not to exceed two acres in quantity…”. This provision arises where the land of the vendor is rendered less desirable and, in effect, obliges the Company of Proprietors to buy such additional land.
(4) The provisions for the payment of compensation set out above provide the mechanism for the appropriate consideration to be paid in the event of disagreement as to the price.
Paper Title
34. The Applicant also relies upon its paper title in support of its case as to the factual issue of width, in particular in relation to the extension of the southern boundary of the canal which comprised a former railway yard. The following deeds and documents are relied upon and were referred to during the tour of such documents contained in Bundles A and C:-
(1) The indentures dated 27th November 1899 and 14th December 1915 in Bundle A at pages 204 – 209, and pages 209 - 214, the latter with annexed plans. The plan at page 212 bears the words “agreed boundary 27.11.99” along the boundary with the railway lands. This provided a width extension to the south of 7 feet as marked on that plan. Reliance is also placed upon the agreement dated 18th August 1965, with annexed plan, at pages 215 - 219.
(2) The Conveyances exhibited to the witness statement of Nigel Johnson, namely those in Bundle C at pages 602 - 603; 603A; 605 and 607. Mr Stonor QC referred to the plan at Bundle C page 601 taken from the book of reference as being a “key document” being a tracing from earlier plans of the land purchased in 1796 marked thereon coloured red and green, and land subsequently sold as land coloured green. It was submitted that in terms of Plan 1 and the eastern end of Plan 2 in Annex 1 the underlying conveyances illustrated on the plan at Bundle C page 601 provide complete paper title for the canal save for:
(a) The land which is the subject of the PLA’s objection, namely the bed of the old course of the River Brent (see Bundle C at page 590). I shall refer to this objection, again below; and
(b) Two small parcels to the south of the old river course, to which separate reference is made below.
(2) As to the southern boundary along the length of Plan 1 the demarcation agreement between the Company of Proprietors of the Grand Junction Canal and The Great Western Railway Company to which I have already made reference in sub-paragraph 1, above.
(3) As to the two parcels on the plan in Bundle C at page 601 to the south of the old course of the river, the Applicant relies upon the following:
(a) The demarcation agreement to which I have made reference, above;
(b) Inference of acquisition from the following facts:
(i) The plan of the intended route of the Canal referred to in section 5 of the 1793 Act (that section has not been reproduced in Appendix 2). A copy of the plan itself appears in Bundle C at page 638 sections of which have been enlarged on the following page;
(ii) The list of persons from whom land was acquired which appears in Bundle C at page 640 and is an extract from the Book of Reference (page 57) held by the Applicant. This includes the purchase of 3 roods and 8 perches (or 3 rods and 8 poles) from a Dr John Johnson who owned meadow land to the south of the Canal.
(c) Reliance is also placed by the Applicant on part of the judgment of Mr Nicholas Dowling Q.C. sitting as a Deputy Judge of the Chancery Division in the case of Geronimo Limited (1) and British Waterways Board (2) v Brentford Yacht & Boat Company Limited [2008] EWHC 3140 (Ch). At paragraph 8 the Learned Judge, having identified the facts stated in the foregoing sub-paragraph, commented:
“…it is fair inference that the land acquired from Dr Johnson must have included those parts of the meadow land which were needed for the canal or towpath.”
(d) By inference in circumstances where the remaining land has clearly been acquired pursuant to the operation of sections 18 and 25 of the 1793 Act (at paragraphs 9 and 10 of Appendix 2).
The dispute between the Applicant and the PLA
35. In paragraph 5, above, I referred to the fact that the Application has also been the subject of an objection by the PLA which additionally made its own cross-application for registration. I stated that following negotiations between the parties that objection and cross-application made by the PLA has now been the subject of an agreement made between the Applicant and the PLA. Contained in Annex 3 to this decision are the following documents – (1) a Form TR1 dated 24th February 2010 with plan attached, (2) an exchange of correspondence between the PLA and the Applicant together with a further plan. The correspondence indicates that the two bodies have reached terms as to their respective applications to register parts of the land at Brentford Dock. In particular the PLA consents to the registration of the “transfer land” together with the land the subject matter of this Application (i.e. AGL 166926). Such land forms the remains of the old River Brent lying to the east of the old Thames Lock and the mouth of the River Thames as shown coloured blue on the plan annexed to the TR1.
36. Mr DeVere has taken issue with this agreement and in effect challenges its efficacy. I consider, however, that this objection has no basis not least because I am not seised of this original dispute – it never having been referred to this jurisdiction. Any objection that Mr DeVere or Mr Mason may have had must in my judgment simply falls by the wayside in any event as the sole issue for me to determine is whether the Applicant owns the full width of the Canal or is subject to a width limitation of 20 yards (see paragraph 4, above).
37. Thus, the Applicant contends that it can demonstrate its ownership by way of paper title to all the land shown edged red on Plans 1, 2, and the remaining part of the land shown on Plan 3, in Appendix 1.
38. For their part Mr Mason and Mr DeVere challenge the paper title claimed by the Applicant to the land marked on these Plans
Submissions made by Mr Mason and Mr DeVere on the paper title
39. As I have stated above, Mr DeVere, and to a lesser extent, Mr Mason have produced comprehensive skeleton arguments in support of their cases. For his part Mr DeVere referred me to various parts of his skeleton argument and accompanying notes and also to a number of the deeds and documents contained within the Bundle of documentation in support of his contention that the Applicant is restricted in its paper title of the Canal to the width of 20 yards. Mr DeVere referred to a detailed plan on scale 1:500 which he had had prepared for the hearing. His submissions were based upon the memo dat principle in that the Applicant, in effect, could not have registered that which it did not own. He referred to a number of the early conveyances and contended that the Applicant has provided no evidence that it owns anything more than the 20 yard strip, and that various parts of the adjoining parcels of land have been sold off by the Applicant’s predecessors in title.
40. In this regard he made specific reference to one document which he submitted demonstrated that land forming part of the Canal had been sold by the Applicant’s predecessors in title. The document in question is the extract from the Book of Reference at page 57 which appears in Bundle C at page 640 (see paragraph 34(3)(b)(ii), above). The point made by Mr DeVere insofar as this extract is concerned is that this indicated sales of properties rather than purchases. In particular he sought to argue on behalf of himself and Mr Mason that the entry which refers to Dr John Johnson was in fact a sale rather than a purchase. In that regard, and having looked at the page in question, it is clear, in my judgment, that insofar as this page is concerned the various references, such as the reference to Dr John Johnson, was a reference to land which was being purchased by the Company of Proprietors, rather than land being sold.
41. In support of this specific contention and more generally as to the true construction of the various deeds and documents, he sought to rely upon the evidence of Mr Nigel Peter Moore contained in his witness statement dated 12th February 2009. Mr Moore owns and lives on a narrow boat moored on the River Brent known as “Platypus” at Ridgeways Wharf, Brent Way. In his witness statement Mr Moore makes a number of assertions with regard to the documentary title which, in effect, provides evidence of an opinion or expert nature. Mr DeVere sought to rely on such evidence on the basis that Mr Moore was indeed a person who had expert knowledge upon whom the court could rely.
42. Mr Stonor QC took strong objection to the admission of such evidence on the basis that Mr Moore had no expert qualifications and his opinions were of no assistance to the court. I heard submissions from both Mr DeVere and Mr Mason as to whether such evidence should be admitted, or indeed whether any further oral evidence in examination in chief should be given by Mr Moore in support of their cases. I was informed by Mr DeVere that he wished to tender Mr Moore to provide specific opinion evidence particularly with regard to the extract from the Book of Reference at page 640 of the Bundle which, in any event, did not appear to have been included in Mr Moore’s witness statement.
43. I gave an oral ruling during the course of the hearing that I would not admit Mr Moore’s evidence, or indeed allow him to be tendered as a witness, as I considered that such evidence was opinion evidence which Mr Moore had no expertise in providing and it would be of no assistance to me. In such circumstances I rejected the application made by Mr DeVere that Mr Moore’s evidence should be admitted as, in effect, I considered that it was irrelevant to the issues at hand.
44. I accept the submissions made by Mr Stonor QC that the various deeds and documents relied upon by him in support of the Applicant’s case clearly demonstrate that insofar as the paper title is concerned the Applicant is not restricted to the width of 20 yards as contended for by Mr Mason and Mr DeVere. In short, in my judgment there is nothing in support of the Respondents’ case that the Applicant’s paper title is so restricted.
THE DECISION
45. Thus, I have come to the conclusion that both as to the statutory interpretation of the 1793 Act, and also as to the interpretation of the paper title, the Applicant is not restricted to the ownership of a 20 yard width of the Canal as is contended for by Mr Mason and Mr DeVere. In such circumstances I shall direct the Chief Land Registrar to give effect to the original application and that the land and waterway as shown edged red on Plan 1, Plan 2 and partially on Plan 3 be registered in favour of the Applicant. Further, as to the question of costs, as costs in this jurisdiction normally follow the event I shall order that Mr Mason and Mr DeVere do pay the costs of and occasioned by the Applicant. To this end the Applicant should serve a schedule of their costs incurred since the reference within 28 days of this Decision.
Dated this 29th day of March 2010
By Order of The Adjudicator to HM Land Registry
ANNEX 1
Plans 1, 2, 3 and 4
ANNEX 2
Grand Junction Canal Act 1793
Extracts
Preamble/Section 1
1. This provides, so far as relevant, as follows:
“WHEREAS it is practicable to make and maintain a Canal for Navigation of Boats, Barges and other Vessels, from the present Oxford Canal, in the Parish of Braunston, in the County of Northampton, through, by, or near the Towns of Daventry, Newport, Leighton Buzzard, Rickmansworth, and Uxbridge in the several Counties of Northampton, Buckingham, Bedford, Hertford, and Middlesex, to unite with the River Thames at or near Brentford, in the County of Middlesex, and also certain Collateral Cuts hereinafter described, to communicate with the said intended Canal, which said Canal and Collateral Cuts will open a certain Communication for the cheap and easy Conveyance of Goods, Wares, Provisions, and Merchandise, and all heavy Commodities, between the Irish and British Channels, and the Ports of Hull and London, and several intermediate, populous, manufacturing Towns and places through, and by means of, several Canals already made in this Kingdom, whereby the Intercourse of Trade and Commerce between the several places aforesaid will be greatly promoted and facilitated, Manufactures encouraged and increased, and the Agriculture of the Country, throughout the Line and Neighbourhood of the said Canal and Collateral Cuts, materially assisted, by being supplied with Lime and other Manure at a moderate Expense, and will tend very much to reduce the Price of Coals throughout the whole Line and Neighbourhood of the said Canal and Cuts, and will be in other respects of great pubic Utility; but the same cannot be effected without the Authority of Parliament.”
2. The Preamble then names a number of promoters, and continues as follows:
“… together with such person or persons, bodies politic, corporate and collegiate, as they, or the major part of them, present at the first General Assembly to be holden for the purposes of this Act, shall nominate and appoint under their hand, and the several and respective successors, executors, administrators, and assigns of the said persons hereinbefore named, and of the person or persons, bodies politic, corporate and collegiate, so to be nominated and appointed, being proprietors of any share or shares in the Navigation hereby authorised to be made, are and shall be, and they are hereby united into a company for the carrying on, making, completing, and maintaining the said intended navigable canal and collateral cuts passable for boats, barges, and other vessels, according to the rules, orders, and directions hereinafter expressed; and shall for that purpose be one body politic and corporate, by the name and style of the company of proprietors of the Grand Junction Canal, and by that name shall have perpetual succession, and shall have a common seal, and by that name shall and may sue and be sued; and that the said company of proprietors shall and may have power and authority to purchase lands to them and their successors and assigns, for the use of the same navigation, without incurring any of the penalties or forfeitures of the statutes of mortmain; and the said company of proprietors shall be and are hereby authorised and empowered, by themselves, their deputies, agents, officers, workmen, and servants, to make and complete a canal, to be called The Grand Junction Canal……to unite with the River Thames at the place where the eastern branch of the River Brent is received by the River Thames…and for the purposes aforesaid, the said company of proprietors, their deputies, servants, agents, and workmen, are hereby authorised and empowered to enter into and upon the lands and grounds of any person or persons, bodies politic, corporate or collegiate, whatsoever, and to survey and take levels of the same, or any part thereof, and to set out and ascertain such parts thereof as they shall think necessary and proper for making the said intended canal and collateral cuts, and any such reservoir or reservoirs, feeders, and aqueducts, and all such other works, matters, and conveniences, as they shall think proper and necessary for making, effecting, preserving, improving, completing, maintaining, and easy using the said intended canal and collateral cuts, and other works; and also to bore, dig, cut, trench, sough, get, remove, take, carry away, and lay earth, clay, stone, soil, rubbish, trees, roots of trees, beds of gravel or sand, or any other matters or things which may be dug or got, in making the said intended canal and collateral cuts, or other works, or in making any reservoir or reservoirs, feeders or aqueducts, or out of the lands and grounds of any person or persons adjoining, or lying convenient thereto, and which may be proper, requisite, or necessary for making, carrying on, continuing, maintaining, or repairing the said intended canal, collateral cuts, or other works, or which may hinder, prevent, or obstruct the making, using, or completing, extending, and maintaining, the same respectively, or in making, using, completing, extending, and maintaining of such reservoirs as aforesaid, or of any such feeders, trenches, passages, aqueducts, and watercourses as aforesaid, as shall be necessary and proper to convey water to or from the said intended canal and collateral cuts, or any of them, according to the intent and purpose of this Act; and to make, build, erect, and set up, in or upon the said intended canal of collateral cuts, or any of them, or upon the lands adjoining or near the same respectively, such and so many bridges, piers, arches, tunnels, aqueducts, sluices, flood-gates, weirs, pens for water, water stanks, reservoirs, dams, wharfs, quays, houses, warehouses, toll-houses, watch-houses, landing places, weighing beams, cranes, fire engines, or other machines, dry docks, and other works, ways, roads, and conveniences, as and where the said company of proprietors shall think necessary and convenient, for the purposes of the said navigation; and also from time to time to alter, repair, and amend, or discontinue the same, and to divert, alter, widen, enlarge, and extend any bridges, ways, roads, passages, or conveniences, as well for the carrying and conveying of coals, stones, and other minerals, goods, wares, merchandises, and other articles, to and from the said intended canal and collateral cuts, or any of them, as for the carrying and conveying of all manner of materials necessary for the making, erecting, finishing, altering, repairing, maintaining, amending, widening, or enlarging the said intended canal, collateral cuts, and the works of or belonging to the said navigation, or useful for any purpose therein; and also to place, lay, work, or manufacture the said materials on the grounds near to the place or places where the said works, or any of them, shall be, or are intended to be made, erected, repaired, or done; and also to make, maintain, repair, and alter any fences or passages over, under, or through the said intended canal and collateral cuts, or any of them, or the reservoirs, tunnels, aqueducts, soughs, trenches, passages, feeders, watercourses, and sluices respectively, which shall communicate therewith; and also to make, set out, and appoint such towing paths, banks, roads, and ways convenient for towing, haling, or drawing of boats, barges, and other vessels, passing upon the said intended canal, cuts and trenches, with men, horses or otherwise, and proper places for boats, barges, and other vessels, navigated upon the said intended canal, cuts or trenches, to turn, lie, or pass each other as they the said company of proprietors shall think convenient, and to construct, erect, and keep in repair, any piers, arches, aqueducts, and other works, in, upon, and across any rivers or brooks, for the making, using, maintaining, and repairing of the said intended canal, cuts, and trenches, and towing paths on the sides thereof, and to construct, erect, make and do all other matters and things, which they shall think convenient and necessary for the making, effecting, extending, preserving, improving, and completing, and easy using of the said intended canal, collateral cuts, and other works, in pursuance of, and according to the true intent and meaning of this Act, they the said company of proprietors, their deputies, agents, servants, and workmen, doing as little damage as may be in the execution of federal powers to them hereby granted, and making satisfaction in manner hereinafter mentioned, to the owners or proprietors of, and all persons interested in the lands, tenements, or hereditaments, waters, watercourses, brooks, or rivers respectively, which shall be taken, used, removed, diverted, or prejudiced, for all damages to be by them sustained in or by the execution of all or any of the powers of this Act; and this Act shall be sufficient to indemnify the said company of proprietors and their deputies, servants, agents, and workmen, and all other persons whomsoever, for what they or any of them shall do by virtue of the powers herein granted, subject nevertheless to such provisos and restrictions as are hereinafter mentioned.”
3. Section 4
“And be it further enacted, that the lands or grounds to be taken or used for such canal and collateral cuts respectively, and for the towing paths thereto, and the ditches, drains and fences to separate such towing paths from the adjoining lands, shall not exceed twenty yards in breath, except in such places where any docks, basons, reservoirs, or pens of water, shall be made, or where the said canal and collateral cuts, or any of them, or any part thereof, shall be raised higher or cut above five feet deeper than the present surface of the land, and except in such places where it shall be judged necessary for boats and other vessels to turn, lie, or pass each other, or where any warehouses, cranes, or weigh beams, may be erected, or where any wharfs or other places may be set out or appropriated for the reception of any coals, lime, lime stone, or other minerals, timber, or other goods, wares, and merchandises, which shall be conveyed on the said navigation, nor in any place more than forty-five yards in breadth.”
4. Section 9
“And be it further enacted, that after any such part or parts of the said lands or grounds shall be so set out and ascertained as aforesaid for making the said canal and collateral cuts, or any part or parts thereof, and for providing and constructing the wharfs, and other works and conveniences hereinbefore mentioned, or any of them, it shall be lawful for all bodies politic, corporate or collegiate, corporations aggregate or sole, tenants for life or in tail, husbands, guardians, trustees, and feoffes in trust, committees, executors, and administrators, and all other trustees or persons whomsoever, not only for and on behalf of themselves, their heirs and successors, but also for and on behalf of their cestuique trusts, whether infants, issue unborn, lunatics, idiots, femes covert, or other person or person, and to and for all femes covert who are or shall be seized, possessed, or interested in their own right, and for every other person or persons whomsoever, who is, are, or shall be seized, possessed of, or interested in any lands, grounds, and hereditaments which shall be so set out and ascertained for the purposes aforesaid, to contract for, sell, or convey the same, and every part thereof, unto the said company of proprietors; and if it shall happen that by making the said canal, or collateral cuts, or any of them, or the conveyance of water thereto, the property of any land owner or land owners shall be separated into small parcels, so as to render the occupation thereof inconvenient, it shall be lawful for such bodies politic, corporate and collegiate, and all such other person and persons as aforesaid, by and with the consent of the Commissioners hereby appointed, or any five or more of them, to be testified in writing, under their hand and seals, to contract for, sell, and dispose of, or to convey in exchange for other lands, all or any part of such small parcels of land to any person or persons whomsoever, for such price or prices in money or other equivalent, as to such land owner or owners shall seem reasonable; and all such contracts, agreements, sales, conveyances, and assurances, shall be valid and effectual in law, to all intents and purposes whatsoever, any law, statute, wage, or custom, to the contrary thereof in any wise notwithstanding: And all bodies politic, corporate or collegiate and all persons whomsoever, so conveying or exchanging as aforesaid, are hereby indemnified for or in respect of any such sale or exchange which he, she, or they, or any of them, shall respectively make by virtue or in pursuance of this Act; and all such contracts, agreements, sales, conveyances, and assurances, shall be made at the expense of the said company of proprietors; and such of them as shall be made of any lands or other hereditaments to the said company of proprietors shall be made according to the form following, videlicet: …”
5. Section 10
“Provided always, and be it further enacted, that all and every body of bodies politic, corporate or collegiate, trustees, or other persons hereinbefore capacitated to sell or convey lands and other hereditaments, or any other owner or owners, and the occupier or occupiers of any lands or other hereditaments through, in, or upon which the said canal and collateral cuts, towing paths, quays, or other works hereby authorised are intended to be made, or any of them, or of any mills, forges, or other works, from which any water to supply the said canal and collateral cuts, or any of them, may or shall be diverted, may accept and receive satisfaction for the value of such lands and grounds, mills, forges, or other works and hereditaments, and for the damages to be sustained by making and completing the said works hereinbefore directed, either in gross sums, or by annual rents, as shall be agreed upon by and between the said owners and occupiers respectively, or any of the, and the said company of proprietors; and from and immediately after the time of making and executing such sale and conveyance, or any contract or contracts for the same, the said company of proprietors may and shall be at liberty to enter upon, and from thenceforth for ever to have, take and enjoy the said lands, grounds, and other hereditaments, for the uses and maintenance of the said canal and cuts respectively, and for the supplying the same with water, without any interruption or eviction whatsoever; and in case the said company of proprietors, and the said parties interested in such lands and grounds, or other hereditaments, cannot agree as to the amount or value of such satisfaction, the same shall be ascertained and settled by the Commissioners hereinafter appointed, in such manner, and subject to such verdict of a jury, if required, as is hereinafter directed.”
6. Section 11
“And, for settling all differences which may arise between the said company of proprietors and the several owners of or persons interested in any lands, grounds, tenements, mills, mines, waters, and other hereditaments which shall or may be taken, used, affected or prejudiced by reason of the execution of any of the powers hereby granted; be it further enacted, that every person seized, or intitled in his own right, or in the right of his wife, of or in a freehold or copyhold estate, situate within the Counties of Northampton, Buckingham, Bedford, Hertford, and Middlesex, or any of them, of the clear yearly value of One hundred pounds, and also the eldest son of heir apparent of every person having such estate as aforesaid, within the said Counties, or any of them, of the clear yearly value of Five hundred pounds, and also every person residing within the said Counties, or any of them, and having a personal estate, or real and personal estate together, of the value of Three hundred pounds, shall be, and are hereby appointed commissioners for settling, determining, and adjusting, all matters, questions, and differences which shall or may arise between the said company of proprietors and the several proprietors of and persons interested in any lands, grounds, tenements, mills, mines, waters, hereditaments or premises, which shall or may be taken, used, affected, or prejudiced by the execution of any of the powers hereby granted.”
7. Section 15
“And be it further enacted, that, upon any refusal of an owner or owners, occupier or occupiers of, or any person or persons interested in any lands, grounds, tenements, hereditaments, or other premises which shall be marked or set out, taken, obstructed, damaged, or in anywise affected by the said canal, collateral cuts or works, or any of them, to accept the money of the compensation which shall be offered for or in respect of the same by the said company of proprietors, or their general or any other committee, or by any of their agents on their behalf, it shall be lawful for the said company or such committee, or for such owner or occupier, or other person or persons so interested as aforesaid, to make application in writing, to any five or more of the said commissioners…”
8. Section 16
“And be it further enacted, that the said commissioners shall be, and they are hereby authorised and required to examine Witnesses on Oath to be administered by them, touching the matters mentioned in the said written application to be in dispute, and they are hereby empowered and enabled, by writing under their hands and seals, to determine and adjust, from time to time, on any such request and application as aforesaid, what sum or sums of money shall be paid by the said company of proprietors (either in gross or by an annual rent or payment) for the absolute purchase of, or as a recompence for the use of the lands, grounds, or hereditaments, which shall be set out and ascertained as aforesaid, for making the said canal and collateral cuts, or any part thereof, and for other the purposes herein mentioned…”
9. Section 18
“And whereas it may happen, that, by reason of absence in foreign countries, or other impediment or disability, not before provided for by this Act, there may not in certain cases be found any person or persons, who may be legally capacitated to treat and contract with the said company of proprietors for the speedy and absolute sale and conveyance to them of the lands and grounds, or other hereditaments and premises, which may be necessary and requisite for the purposes of the said navigation, and other works and conveniences, or concerning a proper compensation for the damages which may be done thereby to such lands or other premises as aforesaid; and it may also happen that the said bodies politic, corporate, or collegiate, or other person or persons, who is or are, under the provisions in this Act contained, or otherwise, legally capacitated to treat and contract with the said company of proprietors for such speedy and absolute sale and conveyance, or for such compensation as aforesaid, or of the interest which he, she, or they may hold therein, may nevertheless refuse to enter into any such treaty or contract; be it therefore further enacted, that in either of these cases, whomsoever the same shall happen, it shall be lawful for the said company of proprietors, (after notice in writing given to the principal or other known officer or officers of such body politic, corporate, or collegiate, or to the tenant or tenants, occupier or occupiers, or other persons interested in the use, produce, or profit of such lands, grounds, hereditaments, and premises respectively, or left at the place or places of his, her, or their usual abode, for the space of seven days), to make application to the said commissioners, who shall, and they are hereby empowered and required forthwith to summon and return a jury in manner hereinbefore directed…”
10. Section 25
“And be it further enacted, that upon payment of legal tender of such sum or sums of money, or giving such security as the said commissioners shall approve, for payment of such annual rent as shall have been contracted or agreed for between the parties, or determined and adjusted by the said commissioners, or assessed by such juries in manner respectively as aforesaid, for the purchase of any such lands, waters, mills, or other hereditaments, or as a recompence for the yearly produce of profits thereof, or as a compensation for damages, as hereinbefore mentioned, to the proprietor or proprietors of such lands and premises, or to such other person or persons as shall be interested therein, or entitled to receive such money, rent or compensation respectively, at any time after the same shall have been so agreed for, determined, or assessed, or if the person or persons so entitled or interested, or any of them, cannot be found, or shall refuse to receive the same, then upon the investiture thereof in such public funds of government securities bearing an annual interest, as the said commissioners shall, by writing under their hands, appoint, in case the same shall exceed the sum of Twenty pounds, and if the same shall not exceed the said sum, then on leaving or depositing the money in the hands of the Treasurer to the said company of proprietors, for the use of such proprietor, or other person or persons so interested or intitled as aforesaid respectively…”
11. Section 27
And be it further enacted, that it shall be lawful for the said company of proprietors to erect, or otherwise provide, any warehouses or other buildings for the depositing or keeping any goods, merchandise, or other things, carried or conveyed, or intended to be carried or conveyed upon the said intended canal, at any distance from the said canal which they shall judge necessary or convenient; and for that purpose the said company of proprietors may and are hereby authorised and empowered to purchase, lease or hire any ground or buildings where they shall think proper, provided the owners and proprietors of, and other persons interested in, such ground or buildings, and the guardians, committees, or trustees, of such of them as shall be under any disability, or incapacity of acting for themselves, shall be consenting to sell or let the same (and which consent they are hereby respectively authorised and empowered to give), but not otherwise.
12. Section 28
And be it further enacted, that where the said company of proprietors shall cut through any land or ground for the purposes of the said Canal, they shall be obliged to purchase, not only such part of the same lands and grounds as shall be actually taken or used, but also at the option of the owner or owners of such land or grounds, the remainder thereof, so as the same do not exceed two acres in quantity, over and above the land or ground which shall be actually taken or used for the purposes of the said intended Canal; the value thereof to be ascertained in the same manner as by this Act is directed concerning the land or ground to be cut, taken, or used, for the purposes of the said intended Canal.
ANNEX 3
Land at Brentford Dock
Resolution of the disputes between the PLA and the Applicants