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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Martham Parish Council as Trustee of the Martham Boat Dyke Charity v Martham Boat Building and Development Company Limited (Adverse possession) [2013] EWLandRA 2012_0595 (10 October 2013)
URL: http://www.bailii.org/ew/cases/EWLandRA/2013/2012_0595.html
Cite as: [2013] EWLandRA 2012_595, [2013] EWLandRA 2012_0595
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PROPERTY CHAMBER
FIRST-TIER TRIBUNAL
LAND REGISTRATION DIVISION
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
LAND REGISTRATION ACT 2002
REF/2012/0595
BETWEEN
MARTHAM PARISH COUNCIL AS TRUSTEE
OF THE
MARTHAM BOAT DYKE CHARITY
APPLICANT
and
MARTHAM BOAT BUILDING AND DEVELOPMENT
COMPANY LIMITED
RESPONDENT
Property Address: Cess Staithe, Cess Road, Martham, Great Yarmouth
Title Number: NK413006
Before: Judge Hargreaves
Sitting at: Norwich Magistrates Court
On: 19 th and 20 th February 2013
Applicant Representation: Nicholas Hancox, Nicholas Hancox Solicitors
Respondent Representation: Nicholas Michael instructed by HKB Wiltshires, Great Yarmouth
DECISION
Keywords – first registration – title to a staithe in the Norfolk Broads – Charity Commission scheme – dispute about paper title – whether Respondent company in adverse possession and if so to what extent – public right to be on staithe – whether possession could be adverse – whether there was a public trust and there could be no adverse possession
Cases cited
Pye v Graham [2002] UKHL 30
Powell v McFarlane (1977) 38 P&CR 452
Alston v Bocm Pauls [2008] EWHC 3310
Roberts v Swangrove Estates [2007] EWHC 513 (Ch)
Treloar v Nute [1976] 1 WLR 1295
Wyld v Silver [1962] 3 AER 309
Neaverson v Peterborough RDC [1902] 1 Ch 557
R (Smith) v Peterborough District Land Registry [2010] EWCA Civ 200
Lynn Lewis Ltd v The Environment Agency REF/2005/1068 Deputy Adjudicator Rhys
Jourdan and Radley Gardner Adverse Possession 2 nd ed
Gadsden on Commons and Greens
Halsbury’s Laws, volume 8
1. For the following reasons I direct the Chief Land Registrar to cancel the Applicant’s application made on 26 th September 2011 in Form FR1 dated 23 rd September 2011.
2. Unless otherwise noted, all page references are to those in the trial bundle, split in two volumes. I make it clear at the outset that the area I am concerned with is the actual area represented by what was allotment 10: the plan attached to the case summary is inaccurate to the extent that it includes land to the north eastern corner to which the Applicant has no title (being part of allotment number 9: see paragraph 5 of the Applicant’s closing submissions).
3. I had the advantage of conducting a site visit on the afternoon of 18 th February 2013. Despite the fact that it was bitterly cold, the site visit was well attended by the parties and their representatives, and it was helpful in terms of understanding the nature of the area subject to the application (outlined by HMLR in the plan attached to the case summary) and its constituent parts. The disputed land is just to the south of the River Thurne which flows west to east at this point. Between the land and the River is a rond or embankment, also running west-east, except where intersected by water forming part of a quay-headed mooring dyke, a significant area in terms of the disputed land overall. Locally, the disputed land is part of an area known as Cess Staithe, the history of which is central to the question of paper title, and is disputed between the parties. Cess Staithe is one of three staithes which are connected with Martham along the River Thurne. The disputed land is reached by Cess Road, which leads out of Martham village for about a mile or so until it reaches the River. Between the village and the staithe the Respondent company has commercial premises which it uses together with the disputed land and land it owns around the disputed land. Further, Gordon Curtis, a director of the Respondent, lives in a house on Cess Road.
4. As most of the photographs prepared for the hearing were historic, further photographs were taken at the site visit which proved extremely useful; these are numbered 1-46 and contained in a separate file, and should be considered as part of the trial bundle. Photograph 14, taken from the north looking south, shows the west side of the main quay with a grassed area to the west and south. Photograph 20 also shows the quay with the grassed area around it, and photographs 21 and 22 show part of the disputed land to the east of the quay. Photograph 24 shows the other smaller quay to the north east of the disputed area. Photographs 28, 29, 30, 38 and 45 show the concrete bollards erected by the Respondent across the south of the area to the east of the quay, across the top of Cess Road as it curves to the west. Photographs 1 and 2 illustrate the large green shed erected by the Respondent on its own land, fronted by an area being re-levelled: see photographs 3-8, for example. Photographs 24-25 also show an original pumping station to the east of the disputed land, now owned by the members of the Respondent company.
5. Various individual objects which crop up frequently in the evidence should also be noted. Photographs 7 and 16 show the diesel pump, photographs 13-15 show the pump out station and photographs 17-18 show water and electrical connection points on the west side of the quay, for the use of moored boats. Photographs 19-21 indicate the works to the quay head carried out by the Respondent. The concrete slipway visible in photograph 7 is outside the dispute area.
6. Bungalows on the rond to the west of the disputed area are shown at photographs 11 and 12, those on the rond to the east at photograph 40. They appear to be accurately depicted on the plan attached to the case summary. Whilst not on the disputed land, the existence of the bungalows plays a part in the history of the area and the relevance of the staithe today.
7. The overriding impression of the disputed land today is that there is the main quay headed dyke, surrounded by a defined grassed area, which then falls away on the east to rough grass, and on the west to land in the process of being levelled and resurfaced. Part of Cess Road is to the south of it. It is hard to tell precisely where it begins and ends.
8. In terms of maps, the situation at the hearing was far from ideal. At the site visit, for example, no-one could answer the question as to where the boundaries of the disputed land actually are, with any certainty, as there are no boundary features as such, as is clear from the photographs. No professional survey of the area comprised in the Applicant’s FR1 application had been undertaken: the plan attached to the FR1 application is at p179 and is based on Mr Hancox’s personal interpretation [1] of what is left unregistered between other registered titles, namely those of the Respondent, as follows. The south and west boundaries of the disputed land abut the general boundary of NK321677 (blue land at p241, office copy entries at p537, registered in the Respondent’s name for the first time on 4 th April 2005 having acquired title by conveyance in June 1959). The east boundary abuts the general boundary of NK246696, The Old Pumphouse, owned by three members of the Curtis family, first registered on 23 rd March 2000, see p357-9. See p241 (repeated at p335) for a good colour plan of the area overall. The Respondent’s case is that the land in dispute is more or less the pink and hatched black area at p261, the main difference between that plan and the application plan being that the Respondent claims (with good reason) that the furthest north east corner of the Applicant’s claimed area (ie the small area of the quay) is outside even the Applicant’s analysis of its root of title. That was conceded by the Applicant on day two. The Applicant makes no claim to any part of the Respondent’s registered titles.
9. The immediate area as a whole has changed because in the twentieth century surrounding dykes were re-aligned. A sequence of aerial photographs is useful. Starting at p254 is a picture of the area in the 50’-60’s. It is possible to see the road to the Staithe, the rond, the main dyke, the smaller dyke, and the right hand dyke or ditch being the remaining part of the distinctive horseshoe shape of allotment no.9 and the Old Pumping Station. There are cars parked on the east side of the Staithe. The next photograph at p256 shows Cess Staithe after the main dyke or ditch has been relocated to the west, making a larger area to the west of the boat dyke. Cars are parked on the west and east side of the boat dyke. There is no visible boundary showing the actual limits of Cess Staithe. A similar picture is presented by the photograph at p262, which shows organised lines of cars parked to the west of the boat dyke.
10. To round up the picture of surrounding registered titles, the Environment Agency is registered as the proprietor of the freehold land along the north embankment under Title No NK262507: see p204-208. It is subject to a number of leasehold titles, the relevant one being NK376011. Note the entry at no. 3 of the property register entered on 24 th September 2001 that the EA “claims that the land has the benefit of a vehicular and pedestrian right of way over the land tinted yellow on the file plan”: the land tinted yellow roughly comprises the disputed land. The office copy entries for NK376011 are at p209 and show that the Respondent is registered as proprietor of a 21 year lease granted on 19 th May 2008 by the EA to the Respondent, the land being the land across the north embankment. The lease is at p214. By clause 4(l) the Respondent covenanted not to park or allow vehicles to be parked on the land coloured yellow on plan 2 in such a way as to prevent the EA from gaining access to the river bank (which the concrete bollards prevent). In clause 8.1 the parties agreed that “(in so far as [the Respondent] is legally able to do so) [the Respondent] hereby grants and confirms to the EA a right of way with or without vehicles over such part of the land coloured yellow and hatched black on Plan 2 as are not occupied by vehicles from time to time and a right of way on foot only over the land coloured yellow but not hatched in each case to and from the Premises to and from Cess Road”. [2]
11. In consequence of the various titles outlined above, the disputed land is virtually surrounded by land the title to which is registered in the name of the Respondent either as freeholder or which it occupies as tenant, or in favour of the Curtis family, who run and own the Respondent company. Commercially, the acquisition of the disputed land makes a great deal of sense to the Respondent. Similarly, the presence and activities of the Respondent makes a great deal of sense to the Applicant. However, in the context of the current dispute, what is commercially sensible is not the overriding issue. On any view the question of the historic title to the Staithe has given rise to strong feelings on both sides, as well as some detailed analyses of historic documents. Both sides made closing submissions on the grounds of public policy but it would be wholly wrong as a matter of law for me to take them into account, not least because there was no real evidence to support the relevant contentions.
12. According to the Oxford English Dictionary, a staithe [3] is a “landing stage for loading or unloading cargo boats”. They appear in Norfolk where roads meet rivers, and would be used to store goods either delivered by river, or awaiting transportation by river. Historically in Martham, Cess Staithe would be used for transporting sugar beet or reeds. In terms of modern use, Cess Staithe is used for access to and from the holiday cottages along the embankment and by the Respondent. It is also regarded as an amenity for locals who drive along Cess Road to the end, park their cars, and then walk, fish or sail – all the usual activities. In s25 Norfolk and Suffolk Broads Act 1988 staithe “means any land which is adjacent to a waterway and which the inhabitants of a locality are entitled to use as a landing place.” In this case there is a disconnect between the original and current useage.
13. The Applicant derives its title to govern the Martham Boat Dyke as custodian trustee by virtue of a number of Charity Commissioners Schemes made under powers contained in the Charities Act 1993 and the Commons Act 1899. The first scheme is dated 24 th December 1999 (p23), when Martham Boat Dyke was transferred to the Applicant and the details of the relevant scheme were set out. The scheme replaced “the former trusts of the charity which are comprised in an inclosure award dated 12 th June 1812” made in pursuance of the 1807 Inclosure Act [4]. The scheme was amended on 29 th July 2008 when staithe number 12 was directed to be administered as part of the property of the charity (p32) and amended again on 15 th November 2011 (p34) when the Commissioners added the disputed land to the 1999 scheme, describing it in the schedule to the 2011 scheme as “Land containing 2655.75 square metres or thereabouts known as staithe number 10 described in an inclosure award dated 12 June 182 made in pursuance of the Act of parliament of the year 1807, 47 Geo.II III c.39”. So this reference concerns the history of staithe no. 10. The Applicant’s case is that the Charity Commissioners were able to vest title in it, the Respondent’s case is that they were not, and that the freeholder of Cess Staithe is the Broads (2006) Internal Drainage Board. The latter appears to have shown no interest in pursuing the point, possibly because staithes cost money to run; the views of its successor, the Water Management Alliance (WMA) have now been ascertained; see below.
Chronology
The Applicant’s case on title
14. The Applicant’s case is that Cess Staithe is “public trust” land which exists for the public benefit of the inhabitants of Martham. (I will deal with the “public trust” argument later, but for reasons expanded below I reject the Applicant’s submission that the concept of a “public trust” exists as outlined by the Applicant.) It was therefore entirely appropriate for the Martham Boat Dyke Trust to seek to register title to staithe no. 10 by asking the Charity Commissioners to vest it in the Applicant, and therefore the Tribunal should direct the Chief Land Registrar to give effect to the direction of the Charity Commissioners. Little documentation exists about the third scheme, but Mr Hancox (who handled the application and occasionally veered dangerously close to giving evidence in the course of oral and written submissions), explained that he emailed extracts from the 1807 and 1812 statutes to the Charity Commissioners, who amended the scheme in 2011 to include staithe no. 10. This process did not involve notifying the Respondent which had no opportunity to challenge the application at that time. It appeared to be something of a rubber stamping exercise. The amendment to the scheme was implemented after the Applicant made its FR1 application, and it enabled the Applicant to respond to a number of requisitions it had received from HMLR on the application, which itself merely referred to title based on statute, without giving more detail.
15.Clause XXXVII of the 1807 Act (p411, or p181) gave powers to the General Commissioners for drainage to carry out such works as they thought fit to drain the land the subject of the Act. This power included the power (the separation of the clause is mine) (i) “to make a dyke or dykes through any part of the said lands and grounds, to the river adjoining thereto, to be used as a common or public boat dyke or dyke, by the owners and occupiers of estates within the said Parish of Martham for the time being, for the conveyance of corn, manure and other things, to and from the said river” (ii) “and that the said General Commissioners shall set out and allot unto the Special Commissioners hereinafter appointed the drains …. [etc] boat dyke or dykes to be made erected or purchased by them and such part of the lands and grounds to be drained … as they think proper for the maintaining or preserving of the same” (iii) “and also a piece or pieces of land adjoining to the boat dyke or dykes to be used as a public staithe or public staithes by the owners and occupiers of estates, within the said Parish of Martham for the time being, for the laying and depositing thereon of the corn, manure and other things, which shall be conveyed or shall be intended to be conveyed to or from the said river, by means of the said boat dyke or dykes.” There are two concepts: on the one hand drainage and dykes, and on the other, land adjacent to be used as public staithes. In this case the dyke has been treated as an integral part of the staithe though the staithe and the dyke were arguably regarded as two separate physical entities.
16. Clause XXXIX provided for the appointment of Special Commissioners from a select class of inhabitants for the purpose of draining the lands directed to be drained under the 1807 Act after the allotment carried out by the General Commissioners, who were named in clause I. They had no power to determine title to land: clause IX. The Respondent argues that the freehold was then vested in the Special Commissioners by virtue of clause XXXIX. The Applicant argues that the freehold remained with the General Commissioners but that either way, all roads lead to the Applicant, even if title passed to the Special Commissioners. Pausing here, as a matter of construction, I consider that clause XXXIX provides (amongst other things) that the Special Commissioners shall have the duty to carry out the drainage works directed by the General Commissioners. Clause XLVIII (p417) provides that the Special Commissioners have the power to keep the drains (etc) in repair “and the right and property to and in the same, …. And also the said piece or pieces of land to be set out and allotted by the said general commissioners to the said Special Commissioners for maintaining, repairing and preserving the same, shall be and the same is and are hereby vested in the said Special Commissioners for the time being …”. It is arguable that the provisions relate to the drainage function, and not to staithes, which do not have a drainage function.
17. With the provisions of the 1807 Act in mind, the Applicant’s next reference point is the Martham Enclosure Award 1812, the relevant extracts of which are at p184 [5]. The award has to be read with the accompanying plan, copied with varying degrees of magnification at p187-9. The plan, as Mr Hancox submits, is diagrammatic rather than accurate in the way an ordnance survey map might be, but it is almost recognisable in some respects over 200 years later. The General Commissioners “do hereby allot and set out and allot unto the Special Commissioners …. the banks drains and pieces of land next hereinafter described …”. Cess Staithe is “the piece of land marked no. 10”. It is marked as a staithe, described as containing two roods and twenty five perches, bounded by other allotments (my numbering) ie “bounded (i) by the first allotment hereinbefore made to the Special Commissioners towards the north (ii) by the last described allotment towards the north east (iii) by the fifth allotment hereinbefore made to the Special Commissioners towards the east (iv) by the private road fourteenthly described in part towards the south and (v) by land hereby allotted to John Giffard Jeffrey in part towards the south and (vi) by land allotted to John Giffard Jeffrey towards the west” [6]. The award then refers to allotments eleven and twelve, all three allotments declared to be “ set out and appointed as and for public staithes for the use and convenience of the owners and occupiers of estates within the said parish of Martham for the time being for the laying and depositing thereon of the corn manure and other thing which shall be conveyed or shall be intended to be conveyed by the said river or to and from the said river by means of the boat dyke ..” Cess Staithe was thereby allotted to the Special Commissioners for these purposes, for the inhabitants of Martham as opposed to the public in general.
18. The Applicant’s argument is simple: it is the successor to the Special Commissioners who were allotted the land subject to these public trusts (as to which, see below). Its analysis of the title stops in 1812 at this point. At that point the Applicant submits that in 1812 the Special Commissioners had two functions: (1) to run the drainage schemes (2) (separately) to hold the staithes on trust for the public benefit. The first function was subsequently transferred to other authorities, the second function never was, so that in 2012, though the drainage function had long been passed on, the title to Cess Staithe was untouched. There is no evidence that the Special Commissioners divested themselves of title to Cess Staithe. Even if they had, any problems are cured by the Charity Commission scheme. This straightforward approach contrasts with that adopted by the Respondent, and in particular, one of its witnesses, Patrick Curtis, whose witness statement contains, contrary to what a witness statement should contain, a careful explanation of the Respondent’s case on title: see paragraph 18 from p317. This was expanded in his oral evidence at some length.
19. For whatever reason, no boat dyke was in fact dug out or installed at Cess Staithe until 1844, which was agreed by both parties.
The Respondent’s case on title
20. The Respondent has an alternative approach to title. The starting point is that on the allotment of Cess Staithe to the Special Commissioners in 1812, the freehold passed to them. There was no public trust as relied upon by the Applicant; the Respondent submits that the concept as relied upon by the Applicant does not exist. Title remained with the Special Commissioners until they were abolished, whereupon title vested in their successors, the local drainage board, the WMA. Therefore the Charity Commissioners’ scheme had no effect to vest title in the Applicant. The Respondent submits that this is the effect of clauses XXXVII and XXXIX of the 1807 Act, followed by the 1812 award.
21. Further, (and alternatively to the WMA root) the Respondent relies on a 1925 abstract of title of the trustee of the will of James Guy dated 24 th November 1877 to certain rentcharges which, the Respondent argues, demonstrates that (p347) by 1877 title to Cess Staithe was no longer vested in the Special Commissioners. The (relevant) land subject to the rentcharge is described in the schedule (p349) as “ALL THAT piece or parcel of land situate lying and being in Martham …late in the occupation of William Myhill containing by measure 5a. 11p abutting upon the land belonging to the Commissioners for Drainage for the parish of Martham to the north upon land formerly of the said William Myhill described in the admission of John Giffard Jeffrey as the tenth allotment in part and a certain private road in other part towards the east upon the land of the said William Myhill towards the south and upon land late of Harber Jestingill towards the east”. I have some difficulty in accepting that I can deduce from this that William Myhill had title to Cess Staithe by 1877 and the Special Commissioners or their successors did not. The critical part of the abstract set out which describes Cess Staithe is in my judgment governed by these words: “upon land formerly of the said William Myhill described in the admission of John Giffard Jeffrey as the tenth allotment in part … ”. As a matter of construction I prefer the Applicant’s submission that the abstract was describing land possibly bounded to the east by at least part of Cess Staithe which was formerly “of” William Myhill. The Respondent submits that Cess Staithe was the land to the east, but even if that is correct, it was only “part” of the tenth allotment that appears to have been “formerly” in the occupation of William Myhill. The Respondent criticises the Applicant’s argument on construction because it rests heavily on the word “formerly”; the Respondent argues that had Cess Staithe still been in the ownership of the Special Commissioners the draftsman would have said so using the same format of words as applied to the land to the “north”. The flaw in that submission is that the draftsman is careful to describe the land to the south as “the land of William Myhill” (not “formerly” of) so I conclude that while he might have owned or occupied Cess Staithe he did so no longer, and it is not clear whether he owned or occupied it in any event. That favours the Applicant’s construction. On any basis the reliance on the 1877 abstract seems to me to throw up too many issues to make any decision on the title to Cess Staithe dependent on it, not least the lack of a plan. It does not provide evidence that William Myhill owned Cess Staithe in 1877 though it might support the analysis that he owned it before he lost title to it in 1812. The land described above (p349) is now represented by title no NK321677 (see p537), owned by the Respondent, bordering Cess Staithe on the south and west sides.
22. Even if the Applicant is wrong in its theory that Cess Staithe belonged to William Myhill before 1812 it does not follow that the Respondent is correct in its submission that he had divested the Special Commissioners of title to it by 1877. At most the submissions on this document emphasise that the reference to Cess Staithe is for the purpose of describing an area providing a boundary to the land subject to the rentcharge, not a document of title itself. It would be a far reaching conclusion to rely on something so ambiguous. That leaves the Respondent with the alternative WMA title root in the event that I reject (as I do) the submission that by 1877 title to Cess Staithe had vested in William Myhill.
23. The Respondent’s submission picks up chronologically with the Land Drainage Act 1930 (tab 39 bundle 2, p453). S1 provides that there shall be a drainage board for each drainage district, drainage districts to constitute catchment areas as constituted under the 1930 Act, and any drainage districts constituted under the Land Drainage Act 1861 [7] to be treated as constituted under the 1930 Act. East Norfolk Rivers constituted a new catchment area: see s2(1); Part 1 Schedule 1. As Mr Michael points out there was power for a new catchment board to provide a scheme for transferring property to new drainage boards: s4(1)(b)(ix). In other words, existing ownership would be transferred.
24. The Respondent relies on a series of letters/notes/minutes to demonstrate that the functions of the Special Commissioners were effectively transferred to the East Norfolk Rivers catchment board (ENRCB). That must have been via drainage boards set up under the Land Drainage Act 1861 though no research had been undertaken to demonstrate how. There is some evidence that a transfer order was to take effect from 1 st April 1934 from Martham & Repps-Cum- Bastwick Drainage Board to the ENRCB (see p506) but it is impossible to discern from the information I have whether that expressly included Cess Staithe. The question of letting plots for bungalows was in issue in 1934: see p504-5, p507 [8] but they cannot be identified save that they appear to be along the river and Cess Staithe is not directly on the river. By 1936 the state of the roads and paths by the river at Martham was giving rise to concern. Letters were forwarded by MPC to the clerk of the ENRCB (p498-502), which then owned land on the banks of the River Thurne, tenanted by occupiers of bungalows, complaining about the state of the roads including Cess Road, to no avail (p503). Again these do not assist on title to Cess Staithe, though provide fascinating reading in terms of (amongst other things) evoking an era before wellingtons were available to all and underlining local resistance to the new ENRCB scheme on the grounds that the existing drainage boards were doing very well without having to stump up the additional costs imposed upon them by the 1930 Act (p510 and p515, for example). The likely loss of rents from bungalows along the rivers was keenly felt: see the 1933 minutes at p528 and p531 for example, but there have been no bungalows on Cess Staithe itself.
25. It appears that the powers of the Thurne Drainage Commission were transferred to ENRCB in 1941: see p519. There is an interesting note about Repps Staithe at p521 which suggests that Repps Commissioners maintained it, but it does not deal directly with Cess Staithe. By November 1942 local opposition to ENRCB was overcome and the proposal for the constitution of the Repps, Martham and Thurne Internal Drainage District and for a Drainage Board therefore, was a done deal.
26. I have considered these documents carefully. Patrick Curtis said he was given a limited time to read them and take photocopies when he conducted his own research. They are copies of what he thought are the most relevant. They are incomplete and make no reference to Cess Staithe that the Respondent could draw to my attention. Patrick Curtis gave evidence that the Environment Agency gave him two hours to look at these documents and photograph what he could with a digital camera. He sent “loads more – heaps of it” to the Respondent’s solicitor which suggests that much was discarded as irrelevant if it did not end up in the trial bundle as the Respondent’s solicitor would be unlikely to miss anything useful. I quite accept that the assets of the local drainage boards were passed to the ENRCB in 1941 (if not in 1934), but that still leaves the question open about Cess Staithe which is not answered directly by these minutes. The only way that the Respondent can make good its submission is by arguing that Cess Staithe was still in the hands of local commissioners prior to 1930 and passed to ENRCB in 1941.
27. If Cess Staithe was vested in the Special Commissioners, the Respondent submits that title to it was passed to or vested in the Martham & Repps-Cum-Bastwick Drainage Board, which subsequently merged with or became part of the Repps, Martham and Thurne Drainage Board under the auspices of ENRCB in the early forties. So far as the case was put to me, this internal drainage board joined the King’s Lynn Consortium of IDB’s (set up in 1967) in 1991. In 2005 this group re-organised itself into the Broads IDB, then in 2006 into the Broads (2006) IDB. In 2007 it became part of the WMA. Quite where the legal title to Cess Staithe lies is therefore interesting, but I note that it was the Repps Martham and Thurne Drainage Board which sold The Old Pumping Station to the Curtis family in 2000, previously allotted in 1812. It is therefore with some interest that I read a statutory declaration of one Leslie Wright, relied upon by the Respondent in this context, dated 23 rd January 2000, p361. This was clearly prepared on the occasion of the sale of The Old Pumping Station and speaks for itself in terms of setting out title to that property. He says he has access to all relevant records and defines The Old Pumping Station as outlined by reference to certain boundaries. The western boundary, which abuts Cess Staithe, is not however described by reference to land held by the IDB, apart from a vague reference to the land adjoining land used by the IDB. And The Old Pumping Station would have been land used in connection with drainage.
28. In addition the Respondent produced a further statutory declaration in the name of Stuart Chapman, dated 24 th January 2000, to the same effect, p353. At paragraph 6 he states that The Old Pumping Station is part of allotment 9 as described in the 1812 award, and that title to the land was vested in the Repps Martham and Thurne IDB as successors of the Special Commissioners and subsequent drainage authorities.
29. These statements beg the question why the Respondent was unable to extract similar evidence to support its case in relation to Cess Staithe. Mr Michael told me that the successor to the IDB, in receipt of no income from Cess Staithe, was reluctant to be drawn into the proceedings. Where much work has been done by or on behalf of the Respondent, this response was disappointing and raised the question whether quite enough research had been undertaken if the Respondent is correct. It appears that it was a simple enough matter in 2000 to produce enough evidence of title to acquire an absolute title. In this case, of course, there is the additional question of the Respondent extinguishing title by adverse possession. If the Respondent is correct, then presumably it would argue that it has extinguished the title of the relevant IDB. If the allegations of adverse possession are to be properly considered, then it matters that they are considered against the correct Respondent if findings are to be made.
30. This analysis prompted me to form certain preliminary conclusions when writing this decision: (i) that the Respondent’s case on title has some substance if not least because allotment 9 was described as vested in the Repps Martham and Thurne IDB; (ii) that line of evidence and argument should be considered further; and finally, (iii) the WMA should be joined to the reference to be bound by any decision that it, as the successor to the relevant IDB, has title to Cess Staithe, because if it has, then the question whether the Respondent has acquired title by adverse possession, should be directed against the IDB not the Applicant, if I am satisfied that the Applicant’s case on paper title should be rejected. In view of the location of Cess Staithe I also decided it might be sensible to clarify what views, if any, might be held by the Environment Agency.
31. Relevant directions were given on 1 st and 13 th May 2013 [9] in relation to joining additional parties and canvassing their views, for the reasons given in those directions. The WMA indicated (17 th June) that it did not wish to be joined as a party to the proceedings, but did wish to make submissions on the parties’ respective claims to the title to the disputed land, and would be content to be bound by any decision of the Tribunal. There was no response at the time from the Environment Agency. It was anticipated in July that a further hearing would be held to consider the submissions of the WMA. Prior to pursuing that route I directed WMA to file and serve a statement of the facts and matters on which it would rely at any hearing, by 4 th September. The same direction applied to the Environment Agency. The position of the WMA on behalf of itself and the Broads (2006) Internal Drainage Board as successor to the Repps Martham and Thurne IDB came as a slight surprise to me in view of the Respondent’s firm submissions ie “[the IDB] has not been able to find any evidence to support a claim of ownership of the land, however the Board does wish to formally record its prescriptive rights of access to over/under the said land, which have been acquired over a period in excess of 20 years accessing the Board’s pumping station and watercourse. The Broads (2006) IDB wishes therefore that its prescriptive rights of access be formally registered against any title to ensure its continued operations of the pumping station and watercourse.” [10] The Environment Agency wrote to the Tribunal on 9 th September to confirm that its interest is “to retain its uninterrupted access along Cess Road.” As the question of third party rights has not been a matter directly before me, and is not raised in the reference, it would be wrong for me to deal with these claims in any detail, save where they impact on the case itself (eg the extent to which third party use impacts on the Respondent’s exclusive use claim for the purpose of its adverse possession claim).
32. The Respondent has not commented on the position of the WMA, though both parties were provided with a copy of its final comments. The Applicant’s position is that this supports its case, “because the land belongs to the Applicant and because it has been a public staithe since 1812.” The failure of the WMA to provide support for the Respondent’s case on title is significant. The exercise referred to above was justified because of the difficulty I faced in reaching a decision which, at least in part so far as the Respondent was concerned, relied on the position and legal title of a third party which in my judgment was in a position to clarify its position but which, on further inquiry, does not support the Respondent’s case. I should add that the WMA was supplied with the basic documents in the case supporting the Respondent’s analysis and was therefore in a position to adopt a more robust view one way or the other had it been able to do so, particularly given the period of several months which it had at its disposal. In the circumstances the WMA position has to be given serious weight in reaching this decision: it would be wrong, in the absence of cogent evidence, to accept the Respondent’s analysis when its main beneficiary (the WMA) has no evidence to support it, and it conflicts with the Applicant’s analysis on documentary title which I prefer.
33. The Respondent’s submission that because the Repps Martham and Thurne drainage Board transferred title to allotment 9 to the Curtis family (now NK246696), it must also have title to Cess Staithe, is wholly undermined by the WMA position. As the Applicant acknowledges, various Acts of Parliament including the Land Drainage Acts 1861 and 1930 have created statutory bodies which have acquired functions, including land ownership, such as Drainage Boards and Catchment Boards. But, contrary to the position in relation to allotment 9, the Respondent could not produce evidence that any of these bodies had acquired title to Cess Staithe. As the Applicant submits, that may well be because a staithe has no drainage function. But specific statutory provisions in the 1930 Act suggest that there would have been evidence relating to Cess Staithe in a Scheme under s4. The lack of documentary evidence in relation to Cess Staithe is highlighted by the contrast with allotment 9, and title no NK262507, the rond to the north of Cess Staithe, of which the Environment Agency is the registered proprietor. In the end I am compelled to conclude that the Respondent’s alternative case that title to Cess Staithe, however attractively put together, has to fail because there is no evidence to support it and it does not follow automatically as a matter of construction of the statutes on which the Respondent relies [11].
34. In rejecting the Respondent’s alternative case on title, I should refer to the evidence in particular of Patrick Curtis who expanded the Respondent’s case on title in his oral evidence. He is not a lawyer but has spent many hours researching the history of Cess Staithe and is passionate about what he has to say, though much of it (eg on the interpretation of the minutes he produced) verged on the subjective. He is familiar with the modern day equivalent sites, subject to the fact that the boundaries of certain allotments are now arguably harder to discern because drainage dykes have been infilled and recut, not least in relation to Cess Staithe itself as will be seen. Putting aside his incomprehension at the Applicant’s “public trust” theory on the basis that the Special Commissioners were awarded the tenth allotment outright, he had much to say about the Applicant’s claim that Cess Staithe was a public landing place in 1812, pointing out that according to the 1844 tithe map, it was landlocked. Indeed, that much is clear from the award map: see eg the enlargement at p189 which shows that Cess Staithe has no access across the rond (allotted to the Special Commissioners but now vested in the Environment Agency) to the river. Whether this was the basis of an argument that Cess Staithe could not therefore have been transferred to the Special Commissioners “set out and appointed as and for public staithes” I am not sure, but since this theory was not expressly adopted by Mr Michael as part of his written submissions, I prefer not to reach a conclusion on it, particularly since it is clear to me that Mr Michael’s argument is actually based on the fact that Cess Staithe was allotted to the Special Commissioners in 1812, and his client’s stated position is that if it has title, it takes subject to the public rights set out in 1807 and 1812 anyway.
The Charities Act/public trust submissions
35.Notwithstanding the Respondent’s failure to make good its case on paper title, I still have to consider the basis on which the Applicant has made its application for first registration of Cess Staithe. Mr Hancox puts his case as follows, relying on what he describes as two successive statutory processes. His first point is that the 1812 Award created “a statutory public trust” ie the Special Commissioners held Cess Staithe on a public trust, the terms of which are set out in paragraph 16 above. The Charity Commission used its powers in s16(1)(c) Charities Act 1993 [12] to vest Cess Staithe in the ownership of the Applicant. This removed title from the Special Commissioners and vested it in the Applicant. Alternatively Mr Hancox submits that even if the Special Commissioners had long lost title to Cess Staithe, the Charity Commission was entitled to vest title to the land in the Applicant under the relevant scheme, pursuant to the same statutory provisions. Mr Michael for the Respondents attacks both of those submissions, with some justification, even if he has lost the argument so far as it relies on his analysis that the Special Commissioners had no title to Cess Staithe by 1877 and even if his underlying point that Cess Staithe was never intended to be used for any charitable purpose might be irrelevant.
36. Taking the concept of the “statutory public trust” first, I agree with Mr Michael [13] that no such concept applies in this particular case. Mr Hancox relies on no authority to demonstrate his submission and I remain uncertain about what precisely he meant beyond giving the words of the statute their normal meaning. I agree with Mr Michael that under the terms of the 1812 Award title to Cess Staithe was given/allotted to the Special Commissioners “as and for public staithes for the use and convenience of the owners and occupiers of estates within the parish of Martham [etc] ..” It was an outright transfer of title though the use was prescribed by statute. It gave local inhabitants certain customary rights but they were not on the face of it beneficiaries, and the Special Commissioners were not appointed as trustees.
37.I also reject Mr Hancox’s second submission which amounted to arguing that s16 operates by way of statutory magic and cannot be questioned by HMLR or the Adjudicator (as was) or the Tribunal as it is now, even if the Special Commissioners’ title to Cess Staithe was long gone. S16 provides as follows:-
“(1)Subject to the provisions of this Act, the Commissioners may by order exercise the same jurisdiction and powers as are exercisable by the High Court in charity proceedings for the following purposes –
(a) ….
(b) ….
(c) vesting or transferring property
(3) The Commissioners shall not have jurisdiction under this section to try or determine the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity, or to try or determine any question as to the existence or extent of any charge or trust”.
Whilst the Commissioners lack the power to determine a dispute between rival contenders, that is clearly the statutory function of the Adjudicator/the Tribunal in the case of a reference under s73(7) LRA 2002. If for example the Respondent had made good its argument that title to Cess Staithe was vested in the WMA, then the Applicant’s FR1 application would have to be cancelled because the Commission would have had no title to vest the land in the Applicant. Alternatively, even if the registration had been carried out, there would arguably have been a mistake which would be subject to an AP1 application to alter the register. However, I do not need to reach a conclusion on this point to decide the reference.
37. In my judgment the right analysis to the s16 vesting order is as follows. The starting point is that Cess Staithe was allotted to the Special Commissioners in 1812. There is no evidence that title was ever transferred to or vested in any other body, private or statutory. From 24 th December 1999 the Charity Commissioners directed that the scheme set out in the trial bundle at p23 should apply to the Martham Boat Dyke charity. That direction was made – on the face of the document - pursuant to the Charities Act 1993 and the Commons Act 1899. Clause 2 of the scheme says it “replaces the former trusts of the charity which are comprised in an inclosure award dated 12 th June 1812 made in pursuance of the [1807 Act].” It is clear from that part of the Scheme headed “Charity property” (p28 and p35) that Cess Staithe is to be administered as part of the property of Martham Boat Dyke Trust. What neither representative specifically considered was the reference to the 1899 Act, s18 of which provides as follows:-
“Any provisions with respect to allotments for recreation grounds, field gardens, or other public or parochial purposes contained in any Act relating to inclosure or in any award or order made in pursuance thereof, and any provisions with respect to the management of any such allotments contained in any such Act, order, or award, may, on the application of any district or parish council interested in any such allotment, be dealt with by a scheme of the Charity Commissioners in the exercise of their ordinary jurisdiction, as if those provisions had been established by the founder in the case of a charity having a founder”
This provides the relevant background: a district or parish council interested in public or parochial purposes contained in any Inclosure Act or order made in pursuance, could apply to the Charity Commissioners to provide a scheme of management as if the provisions in the award had been established by the founder in the case of a charity having a founder: Gadsden on Commons and Greens, 13-07. This explains the right of the Applicant to call for the vesting of Cess Staithe as land allotted under the 1807 Act without resorting to the public trust argument which I have rejected as not only misconceived, but unnecessary in the light of s18. It means that Mr Michael’s submission that the Charities Commission was unable to pass any title to Cess Staithe as it was never intended to be used for any charitable purposes is misconceived. See also Halsbury’s Laws, vol 8 5 th ed para 193. It is also unnecessary for me to consider whether Mr Hancox’s submissions in reply to Mr Michael’s submissions about the lack of charitable purpose in relation to Cess Staithe are correct (see paragraph 28 of his closing submissions).
38. It follows that the s16 scheme of December 2011 would, subject to the adverse possession argument of the Respondent, justify an order directing the Chief Land Registrar to give effect to the FR1 application.
Adverse possession: Respondent’s case on the facts: Physical possession
39. It is common ground that much of Cess Staithe land looks as it does today because of the actions of the Respondent. However many of those activities have been carried out in conjunction with the Respondent’s activities on adjacent land which it owns or occupies, and it is necessary to take care when considering Cess Staithe itself. The starting point is the Respondent’s statement of case, paragraphs 5-22, p229-232. In that pleading, Cess Staithe is referred to as “the Pink land” coloured as such on the plan at p241 (though the pink colouring includes part of allotment 9). The facts on which the Respondent relies are also contained in the statements of Gordon Curtis (born 1927) at p265 and 337, Ian Curtis his son (born 1963) at p287, and Patrick Curtis (also the son of Gordon, born 1961) at p311. During the hearing the Respondent discovered, on a further hunt for documents, a statutory declaration which Gordon Curtis swore on 22 nd March 1990 to the effect that the Respondent had “occupied the land coloured yellow on the attached plan as part of its premises without interference from any person and without payment to any person for the use of it.” Rather oddly, given the evidence presented by the Respondent in court, the yellow land appears to be limited to that area to the east of the boat dyke but that might be a colouring issue given the gist of the declaration as a whole.
40. It is also necessary to bear in mind that the Environment Agency as registered proprietor of the freehold NK262507 (p204) claims, as protected by a notice entered on the register on 24 th September 2001 (it was common ground that this entry is required to be varied under the terms of the 2004 lease but to no great effect), that its land has the benefit of a vehicular and pedestrian right of way over the land tinted yellow on the title plan, roughly Cess Staithe. This title is subject to a number of leases listed in the schedule, no. 27 being a lease dated 19 th May 2008 for a term of 21 years from 11 th March 2004 registered under NK376011 (p209) made between the Environment Agency and the Respondent as lessee of a number of properties and land on the south side of the River Thurne. The lease is at p215: see paragraph 10 above as to relevant terms. Plan 2 attached to the lease is at p225 and the only part of Cess Staithe not hatched black is the part immediately around the dyke. That (probably) reflects the difficulty of exercising any vehicular access over that part, self evident when you look at the photographs taken on the site visit numbered 17, 18, 19, 20, 45, possibly due to the existence of wooden sleepers forming a low level boundary round the grassy area round the actual dyke area, though Patrick Curtis said they were only installed in 2007/8. These provisions give some support to the Respondent’s position that it has had possession and control of the disputed land for a considerable period, and what is more, was regarded by The Environment Agency as such.
41. It is common ground when considering the question of adverse possession that the Applicant has taken no steps itself (in living memory anyway) to control or participate in activities on Cess Staithe until comparatively recently when certain steps taken by the Respondent in 2009 to prevent parking on the eastern part of the Staithe became a source of objection by the community, to which I refer below. On the contrary, for example, it was an enthusiastic supporter of an application made by the Respondent in the early 90’s to create a new, larger “lagoon” to replace the existing moorings, as its letter of 20 th September 1992 to the Broads Authority (p380) reveals, with the added incentive that if permission was granted for the scheme “the Parish Council would endeavour to improve the area around the Public Staithe”. (There was no evidence as to what this meant, and Mr Hancox did not submit that this was evidence that the Applicant was then in charge of maintaining the area.) It appears from this letter that the site of the new lagoon was not the Staithe itself, the new site being described in the letter as “at present marsh and pond”. Gordon Curtis was himself on the parish council in the 70’s to late 80’s. There is no evidence of physical control by any other body though both the Environment Agency and the WMA are anxious to maintain rights of way over the site.
42. If I strip away the historic context of Cess Staithe as allotment number 10, and consider the factual elements of the Respondent’s claim (including the above), the chronological sequence of events is as follows.
43. The Respondent company, or predecessors of the current directors and Curtis family had been boat builders in the area for many years, with substantial premises between the Staithe and the village down Cess Road. After the Second World War the decision was made to start hiring boats for holiday use, as the idea of holidays/leisure began to take root more widely. The boat dyke was unuseable except for the part closest to the river, not part of the Staithe. In 1955 the Respondent cleared out the dyke, quay headed both sides of the basin, mowed the grass on either side of it and planted flowerbeds. That is the type of activity which an owner of Cess Staithe would normally undertake. It was an obvious and visible activity which a “reasonably vigilant” [14] owner could have observed. In June 1959 the Respondent acquired the marshy land to the south and west of the Staithe, ie the land registered under title no NK329677 in 2005. The photographs at p248-251 show the Respondent as a visible presence running the hire business and employing a number of men in the 50’s, though the diesel pump in the pictures is not on the disputed land, neither is the slipway controlled by the Respondent.
44. At p254 is an aerial photograph taken probably some time in the late 50’s to the mid 60’s. It is comparatively easy to note the location of the dykes, as well as the boat dyke, and the outline of the original allotment numbers 9 and 10, as well as the buildings on the embankment. Some time after the Respondent acquired the land to the south and west of the Staithe, the Norfolk and Suffolk Rivers Board changed the alignment of the dykes, using soil from the Respondent’s land to fill the old dyke and increase the height of the embankment. Gordon Curtis says this was done with the Respondent’s agreement (and its infill), and the result is shown in the 60’s aerial photograph at p256. The works removed all trace of the original western boundary of Cess Staithe (pushed further to the west) and presented the Respondent with a greater area to the west of the boat dyke on which to expand their activities, which they then did. The photograph at p256 shows random parking on the east of the dyke, with more organised parking on the west. It also shows that the land on the west side has been made up and levelled which the Respondent says it carried out at its expense on both its own land and Cess Staithe in the early 60’s, no doubt after the dykes were re-aligned. None of this is disputed, and again I would observe that this is the type of activity that an owner of the Staithe would undertake. The area to the west of the dyke was raised again in 2008, and the quay re-headed at the same time. Patrick Curtis said this was necessary otherwise the land would be a quagmire; it made the land useable for “everybody” he said, though the prime beneficiary would be the Respondent.
45. The area to the east of the boat dyke was built up and resurfaced with hardcore in 1997 by the Respondent. Levelling of land can be sufficient to justify a finding of adverse possession; see for example Treloar v Nute.
46. In addition the Respondent relied on its maintenance works to and over Cess Road from the early 60’s to (most recently) 2011. As factors go, this is of some overall relevance in terms of demonstrating the Respondent’s economic interest in the site; even though only part of the Staithe consists of the road it provides access to the new shed built in about 2006/7, the embankment, the parking etc. Although this work was definitely in the interest of the Respondent because of its premises at the Valley Works site a mile away at the bottom of Cess Road, and the need to transport boats to and from the dyke, it demonstrates an overall programme of maintenance towards the site in general, including Cess Staithe, for the purposes of the Respondent and its business. No-one else was prepared to carry out this work, which the Respondent says recently cost £14,000 (a figure which was not supported by any documentary evidence, but which was not seriously challenged). The making up and maintenance of that part of the road which falls within Cess Staithe is in my judgment an activity on which the Respondent can rely.
47. As for installations on Cess Staithe, a sewer pump was installed on the disputed land in the 60’s and a septic tank in 2004 (see eg photographs 9,13,15). With connections, these are substantial and obvious pieces of equipment, even if partly underground. A petrol tank was installed in 1983, concreted into a hole below the surface of the Staithe, and a petrol pump installed. In the 1970s electricity points for boats were installed along one side of the dyke and these were replaced in 2010. See photograph 18. They are on the west side of the dyke, but not the east side (photograph 21). All mooring posts were installed by the Respondent. The pump appearing in the photographs eg at 7 and 9 is not on the disputed land. According to Patrick Curtis’s evidence, the majority use of the electricity, petrol and sewage installations is related to the Respondent’s own boat hire business rather than casual use by other sailors, as is use of the moorings in the dyke. The new large green shed is not on the Staithe (photographs 1,2 etc) but it is possible that the concrete apron in front of it is – there was some uncertainty, as I said, about precise boundaries. It was clear at the site visit that the surface of the Staithe, made up or otherwise, was due to the Respondent’s activities, and they were being conducted with no distinction based on ownership of the respective areas.
48. The Applicant’s position that the installations are either de minimis or used for temporary purposes (provision of fuel, electricity, removal of sewage from boats) or underground so cannot amount to acts which support adverse possession underestimates the reality of the overall situation. For example these services are offered to passing boats, moored boats, and boats owned and hired by the Respondent in the course of its business. Compare, for example, the grant of dredging licences and the acts of dredging considered by Lindsay J in Roberts v Swangrove as supporting a claim of adverse possession over parts of the Severn estuary. The authorities are clear: it is a question of fact and degree which depends on the land in question. To characterise the activities as temporary in this sense overlooks their permanence in that the installations have been on the land for many years, and used throughout by the Respondent, as part of a collective presence and activity on the Staithe.
49. Control of car parking is also relied upon by the Respondent, though the evidence was confusing. Gordon Curtis maintained that the Respondent charged for car parking on both sides of the dyke from the 1980’s in his oral evidence though written evidence at p268 and p314 is drafted to suggest that they took money for parking from the 60’s. In closing Mr Michael submitted that parking controls existed from the 1970’s. The EAPS parking signs visible in photographs 1,3,4 were introduced later in 2012. On the day of the site visit there was no suggestion that anyone was actively engaged in taking money, maybe unsurprisingly, given that the majority present was either engaged on the site visit or the Respondent’s business. There is of course nothing to stop the Respondent charging for parking on its own land but the evidence suggests that the Respondent’s parking scheme operated on the west side (at the very least) without due regard for boundaries. The evidence of those who signed pro forma questionnaires for the Applicant suggests that the locals did not on the whole pay to park in the early years, but that if they parked on the west side of the dyke and were asked or required to pay, they did. The trouble with the pro forma questionnaires (p36-170) is that the outline of Cess Staithe at the top is not particularly helpful in terms of the changing topography, nor were any of the witnesses called. Nor do many of the questionnaires identify where exactly the paid for parking took place or the unpaid parking took place. For example, the evidence at p101 was flatly contradicted by Gordon Curtis in oral evidence and it is impossible to conclude who is telling the truth or not in the questionnaires, or what weight to give the contents apart from ascribing a general impression. Further, the user reported varies: compare p75 for example, with p100-101 and p113, p58-9, p88.
50. As to parking, I find that a general picture emerges on the following lines, assuming that the oral evidence of the Respondents is correct and a pay scheme operated from the 1980’s at the latest, with boat hirers paying to park and leave their cars when they hired boats for any period, probably before the 80’s. It is more likely than not that the pay scheme operated on the west side of the dyke, and that was part of the problem, leading up to the installation of wooden sleepers, replaced with the concrete bollards installed by the Respondent in 2009, clearly visible in photographs 29, 38. These prevented any vehicular access to the east side of the dyke. The bollards were, according to Patrick Curtis’ oral evidence, installed because the Respondent (he in particular) was fed up with maintaining the area for what seemed the benefit of various property owners who let holiday cottages along the embankment (some in competition with the Respondent’s own holiday lets) and ran businesses without injecting any money into the maintenance of the area. He had a row with one owner who refused to make a contribution after he was asked to do so. But the fact is that it was the Respondent asserting control over maintenance of the access road and the Staithe, not the Applicant. If bungalow owners and occupiers had to pay to park by being excluded from the east side of the dyke, the money could be used to maintain the road, said Patrick Curtis. In part this could be taken as an admission that those parking on the east side of the dyke, did not really fall under the Respondent’s control until after the bollards were installed and then had nowhere else to park apart from the roadway. If they had done, there was no need to install the bollards or to try to seek a financial contribution from the property owners. As an indication of control this device was extremely effective, though it raises questions as to the extent of the Respondent’s activities on this part of the disputed land prior to 2009 apart from levelling off the land and maintaining the surface, in addition to using it for access to the east side of the boat dyke, and general maintenance. I do reject the Applicant’s contention that parking only took place on the Respondent’s own land: the 60’s aerial photograph apart from the witness evidence which I accept, dispels that. It also ignores the fact that after the re-alignment of the dykes in the early 60’s there was no practical boundary between the Staithe and the Respondent’s own land to the west of the dyke in any event. On balance I conclude that the fact that there might have been no regulated parking on the east side of the dyke is not fatal to the Respondent’s claim as a whole given its conduct over the Staithe overall. For the avoidance of doubt, should parking control be essential to the Respondent’s claim for adverse possession, even if it started at the very end of the 80’s, time would have expired by 2002 at the latest.
51. The historic centre of the Respondent’s activities was predominantly on the west side of the boat dyke, but from the mid 60’s at the latest it clearly encompassed that part of Cess Staithe to the west of the dyke, the dyke itself, and at least part of the land to the east of the dyke which was maintained as integral to the dyke. As trade has diminished the centre of activity has shifted from the large wooden bungalow style building on the embankment seen in the early aerial photographs (shop, café and offices, now demolished), to the new green shed, but at all times since the mid-50’s there is no evidence to contradict the Respondent’s basic case that it has been concerned throughout the year with some form of obvious continuous activity over the whole of the Staithe even though it must be reduced in the winter months. None of the activities have been challenged by the Applicant until the last few years, and the witnesses called on behalf of the Applicant (Kevin Jordan and Robert Huxtable [15]) did not seek to suggest that the Applicant had been involved in any of the acts relied upon by the Respondent, though Mr Huxtable said it had been asked to contribute to the road costs by the Respondent, and had refused.
52. The activities described above would be enough on the standard application of the Pye v Graham test to demonstrate that the Respondent has met the requirements of the physical possession test. If you asked a bystander from the mid 60’s: who or what is in possession of Cess Staithe? the answer would be by reference to the Respondent, the obvious and visible presence. It might not have been throughout the most cultivated or glamorous spot on the Broads, but the aerial photographs and facts point to constant activity, in much the same way as was considered in Pye v Graham and Alston v BOCM, for example. There was nothing temporary (not to be confused with seasonal variations) about the Respondent’s activities; the dyke in the middle of the Staithe has been for many years at the centre of its activities. Photograph no. 45 for example shows the number of the Respondents’ boats present on a February day in 2013, there being no cross examination to suggest that the Respondent had faked a scenario for the purposes of the site visit. I have to consider the totality of the evidence and that demonstrates that the Respondent company treated the Staithe as an integral part of its activities since the mid-60’s at the latest. Any other third party activities were transient in nature, such as access for walking, parking, fishing, launching kayaks or other boats from the slipway, and parking or access to holiday cottages on the embankment. There is not one recorded incident on the evidence before me that anyone ever interrupted the Respondent’s commercial activities. I accept that other boats used the moorings, but not to the extent occupied by the Respondent’s. I have already rejected the Applicant’s submission that the Respondent’s activities were transitory: that conclusion would require me to ignore the extent of the activities carried out, visible to anyone visiting the Staithe.
53. It was common ground that the relevant approach with regard to the requirements of factual possession, is to be found in the words of Slade J (as he then was) in Powell v McFarlane at 470-71 in a passage expressly approved by the House of Lords in J A Pye (Oxford) Ltd v Graham: “Factual possession signifies an appropriate degree of physical control. It must be single and exclusive possession, though there can be a single possession exercised by or on behalf of several person jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of that land at the same time. The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed…Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.” In my judgment the Respondent’s activities meet this test . The factual analysis in this case is similar to that undertaken by Deputy Adjudicator Owen Rhys (as he was then) in Lynn Lewis Ltd v The Environment Agency, see in particular paragraphs 56-57.
Intention
54. I would also conclude that the Respondent has demonstrated a sufficient intention to possess by reason of the same facts. In the Alston case HHJ Williams QC considered the activities of the claimant farmer in the context of an intention to possess for the purposes of adverse possession when there was some evidence of third party use. In paragraph 89 she held: “ As laid down in Pye the only intention necessary is to “intend to stay for as long as he can, for his own benefit” in distinction to a person who intends merely to use the land temporarily, or to do so on behalf of, or for the benefit of, the paper owner. He need not have an intention to own the land and can have the necessary intention despite knowing, or believing that another person does own the land. The intention is normally to be inferred from his actions (see Powell at pp 476-7 and Pye at para. 60) and if he uses the land in the way in which an occupying owner would do, that is enough ( Pye at paras 70-71 and 75-6)”. I should clarify that the fact that the Respondent has submitted that the paper title holder is the WMA does not weaken its case on intention, given the fact that it is the intention to possess which counts, as opposed to an intention to own [16]. The 1990 statutory declaration supports the Respondent’s case on intention.
The Applicant’s response on adverse possession
55. The Applicant does not really seek to challenge the factual basis of the Respondent’s claim on possession and intention to possess as described in the written and oral evidence; it challenges the effect and interpretation of the evidence. It asserts that whatever the facts, there can be no possession adverse to the Applicant in this case at all. To deal with that assertion requires me to assume that the paper title holder was the Applicant at all material times, which is arguably not the case, though both parties made their submissions on this basis. On the facts, the Applicant’s case is that public use was not hindered until 2009 when the Respondent installed the bollards on the eastern side of the dyke but the Applicant had no entitlement to be registered as proprietor until 2011. s15 Limitation Act 1980 provides that the basic limitation period is “twelve years from the date on which the right of action accrued” to the person with the right to take action. The Applicant did not submit that time could only run from 2009 or November 2011. It is questionable whether the Applicant had any right of action before November 2011 but title was vested in someone or something prior to that. There is not a trace of the Special Commissioners after 1812 on the presentation of the case before me. If the right of action was vested in the Applicant before 2011 then the 12 years period has expired. If it was vested in any other body apart from the Crown, the limitation period has also expired. If it was vested in the Crown, then by the provisions of s15, Schedule 1 Part 2 of the 1980 Act, the 30 year limitation period would also have expired. On the facts as I have found them I consider that time would run from the mid 60’s at the latest, shortly after the re-alignment of the dykes, so that by 1980 title would be extinguished pursuant to s17 Limitation Act 1980. (I have considered all the facts relied on until the hearing because they contribute to the overall pattern of possession and control exercised by the Respondent, and to demonstrate that even if time did not begin to run in the mid 60’s, on any view time must have expired by 2011, see eg paragraph 177 in Roberts v Swangrove).
56. The starting point of the Applicant’s submissions is that Cess Staithe is a public landing place because that is what the Inclosure Act and 1812 award provided for. The Respondent therefore had the right as a local inhabitant (or the equivalent) to use the Staithe along with everyone else, so its activities could not amount to adverse possession. The Respondent, correctly, accepts that such customary rights as were granted by the 1807 Act and the 1812 award, would continue to bind the Respondent. The Applicant submits that Wyld v Silver is authority for the proposition that such rights enure for the benefit of the inhabitants of the locality until the Act might be repealed by parliament and that no such repeal has taken place, but this does not take matters further since the Respondent recognises this and until the bollards were erected in 2009 on the eastern side of the boat dyke, there is no evidence that the inhabitants’ rights were interrupted in any actionable way. There was no evidence before me dealing with what steps if any the Applicant (or the inhabitants) had taken in respect of this interruption, which even on the Respondent’s own evidence, is possibly wrongful insofar as it prevents unhindered access by the inhabitants of Martham to the Staithe. But Wyld v Silver does not in my judgment deal with the core argument about adverse possession: it was concerned with the exercise of customary rights and their exercise, which the Respondent accepts. The Court of Appeal recognised the rights of the public of the locality to use (and enforce by injunction) certain land for the purpose of a fair or wake even though the last occasion of recorded use had been about 160 years before the hearing, despite the fact that the defendant owner had planning permission to build five bungalows on the site, (a right which Russell LJ’s judgment at p274 showed the court to be at considerable pains to facilitate, subject to him allowing the land to be used once a year for the fair). What the decision emphasises is that title and exercise of customary rights are not necessarily mutually exclusive.
57. In the Lynn Lewis decision the Deputy Adjudicator considered a similar submission ie that the alleged possession by the company claiming adverse possession was attributable not to possession as such “but to the operation of a ferry on a landing place over which there is a public right of way” (see para 58). He considered what other uses the claimant company was exercising over the disputed land and concluded that they extended beyond the operation of a ferry. In this case the use relied upon by the Respondent also extends beyond the limited customary rights granted by the Act and the Award. Further, he considered the words of Slade J in Powell v McFarlane discussing the need for the squatter to exclude the whole world “so far as is reasonably practicable and so far as the processes of the law will allow” and held that “Where the public has free access to land, it will of course make it more difficult for the squatter to establish a sufficient degree of possession”, before concluding that “there is no general rule that title to land subject to public rights of way can never be acquired by limitation” (as indeed was the case in Pye v Graham). In this case the public did not have free access to the land so far as there was a parking scheme on the west side of the dyke and management of the areas in and around the dyke as part of the Respondent’s business, but there is of course a distinction in this case between public rights and the customary rights granted to the inhabitants of Martham which, on the face of it, are limited.
58. The Applicant submits, further, that the Respondent is in the same position as a person seeking adverse possession of a public highway, which is not possible: R ex parte Smith v Land Registry (Peterborough Office). But as Elias LJ observed at paragraph 44, agreeing with Mummery LJ, the critical feature in that case is s263 Highways Act 1980, which vested title in the highways authority in the case of a highway maintainable at public expense. Were it not for that, adverse possession would be possible notwithstanding the fact that the land is a public highway (citing Pye v Graham). There is no equivalent statutory vesting of title in the Applicant in this case: in my judgment the impact of s18 Charities Act is not to be equated with s263 (see paragraph 37 above). The effect of Inclosure Acts and awards was considered in Wyld v Silver and nothing in that decision suggested that the usual means of devolution of title did not apply to the defendant.
59. Similarly, the Applicant submitted that the Respondent cannot override the will of parliament as set out in the Inclosure Act and the Award, by acquiring title, citing Neaverson v Peterborough RDC. But Neaverson is not a case about title. It is authority for the proposition that those with customary rights cannot, depending on the construction of the relevant statute and award, amend or waive them if they would consequently breach the relevant statute. This authority in my judgment limits the rights of the inhabitants under the 1812 Act. It does not render impossible or unlawful the acquisition of title by the Respondent by adverse possession subject to the statutory rights. Where it suited the Applicant, it tended to overlook that arguably the inhabitants of Martham are acting outside the customary rights granted by the Act and the Award insofar as (for example) they might contend that they are entitled to free car parking anywhere on the Staithe.
60. More relevant perhaps is the Applicant’s submission that the Respondent used the Staithe in common with the local inhabitants and therefore its possession could not be exclusive; the Applicant further submits that its activities were not adverse to the interests of the paper title owner. In that category the Applicant includes the clearing and quay-heading of the boat dyke, the raising and levelling of the land on either side of the dyke, the flowerbeds (and mowing presumably), and maintenance of such part of the roadway that is situated on the Staithe: the Applicant argues that as all these works were wholly consistent with better use of the Staithe and the exercise of customary rights by inhabitants it had no reason to challenge them. They were the sort of activities that would be encouraged by the title owner. At first glance this appears to be an attractive submission, but the facts set out above do not support it. There is no evidence that the Respondent’s activities were licensed or encouraged by the Applicant or anyone else. The Respondent, apart from seeking planning permission for the new lagoon and the shed, had no contact with the Applicant on the evidence before me. It just got on with doing what it wanted to further its commercial interests while recognising that it was doing so over the Staithe. As the Respondent submits, the Applicant’s argument on “adverse” is stretching the meaning of “adverse” into something which it is not. As the Respondent points out, this was dealt with by Lord Browne-Wilkinson in Pye v Graham: “.. much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question simply is whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”
61. By way of emphasis, so far as the Applicant sought to suggest that there was, on account of the statutory rights, some implied consent which would defeat adverse possession, paragraph 8(4) Schedule 1 Limitation Act 1980 provides as follows: “For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land. This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.” Even assuming that the Applicant has been a responsible paper title holder for many years (which of course it has not), there is no factual basis for concluding that there has been any implied permission such as would defeat an adverse possession claim. The implied permission would cover the activities authorised by the Inclosure Act and Award, but arguably nothing beyond that, and the Respondent’s activities extend beyond those authorised by the Award.
62. As to that, the Applicant submits that (and it must be an alternative submission because it is otherwise inconsistent with the licence argument) if there was no implied licence then the Respondent’s activities, so far as they extended beyond what was authorised by the Act and the Award, were illegal, and cannot be relied upon in support of an adverse possession claim. The submission was not developed by reference to any authority and is disputed by the Respondent which relies on the fact that the Respondent’s user was in excess of the statutory right (as pleaded by the Applicant). In a discussion in Adverse Possession at 7-130-140 [17] on the question whether illegal activities could be relied upon in support of an adverse possession claim (having considered the Smith case in detail) the authors conclude as follows at 7-140: “There is a general principle that a person should not be granted a remedy where he has to rely directly on unlawful conduct to succeed. However, the law of adverse possession is concerned with rendering lawful conduct which initially constitutes the tort of trespass. Given that, it is not obvious that the principle should apply to prevent the passage of time from barring a claim to possession by the owner of land simply because the squatter’s conduct is contrary to a statutory prohibition as well as constituting a trespass ……. Where the prohibition is enacted to protect public rights, and the acquisition of title by adverse possession will have no effect on those rights, it may be that the prohibition should not prevent the squatter’s claim from succeeding.”
63. The application of this approach makes sense in this case. Neither side cited any statutory prohibition or authority which suggests that the activities of the Respondent extending beyond the limited customary rights outlined in the Act and the Award are actually illegal. Therefore not only is there no prohibitory provision on which the Applicant’s submission can bite, but I conclude that the activities of the Respondent have had no effect on the customary rights.
Conclusion
64. The Applicant has demonstrated that its case on documentary title (subject to adverse possession) is in my judgment correct. However, despite the arguments relied upon by the Applicant in relation to adverse possession, the Respondent prevails in that respect. It follows that the paper title to Cess Staithe has been long extinguished, well before September or November 2011, and therefore the Charity Commission scheme of November 2011 was ineffective to vest title in the Applicant. In the circumstances, the FR1 application must be cancelled.
65. As to costs, I consider the appropriate course is to invite the Respondent to file and serve submissions, together with a schedule of costs incurred from the date of the reference (31 st May 2012) no later than 4pm 25 th October, with the Applicant filing and serving its response 7 days after receipt. I will deal with the question of costs after that, unless the parties can agree terms.
BY ORDER OF THE TRIBUNAL
DATED THE 10 TH OCTOBER 2013
[1] He is a solicitor, not a surveyor and his methods were somewhat rudimentary, but presumably enough for HMLR to produce the plan attached to the case summary
[2] In clause 8.2 the parties agreed to vary entry no. 3 in the register of NK262507 to update it but have not yet done so.
[3] From Old Norse for “landing stage”
[4] Full title: An Act for Inclosing and Draining certain Lands in the Parish of Martham in the County of Norfolk, the entirety of the Act at tab 37, p398
[5] I had the opportunity of looking at the original in court
[6] I have inserted the numerals
[7] Part II of the 1861 Act introduces elective drainage districts, with drainage boards. The Act contains detailed provision for constituting drainage boards, with extensive powers: s66, including the power to hold land as a body corporate. See tab 38 bundle 2.
[8] A Mr Francis was clearly expanding his empire
[9] Closing submissions in writing were not submitted until April, due to the availability of the Respondent’s counsel, hence the apparent time table slippage.
[10] Email to Tribunal 4 th September 2013
[11] In the circumstances there is no good reason to join The Environment Agency or the WMA.
[12] Now s69(1)(c) Charities Act 2011
[13] His submissions are expanded in his further closing submissions dated 28 th April 2013
[14] Roberts v Swangrove Estates, para 174 for example
[15] Statements at p171 and 175
[16] See also the approach of Lindsay J in Roberts v Swangrove at para 185 which I adopt as appropriate to this case
[17] Not cited by either party. Jourdan refers to the Lynn Lewis case as support for his approach in the footnote to para 7-136.