REF/2011/0751

 

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

LAND REGISTRATION DIVISION

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

 

PORT OF LONDON AUTHORITY

 

APPLICANT

 

and

 

PAUL MENDOZA

 

RESPONDENT

 

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

Title No: AGL208200

 

Before: Judge Mark

Sitting at: Alfred Place

On: 12 and 19 November 2015

 

 

 

Applicant Representation: Christopher Stonor QC

Respondent Representation: In person

___________________________________________________________________________­

 

 

1. For the reasons set out below, I shall direct the Chief Land Registrar, in giving effect to the application of the Port of London Authority (PLA), to exclude from its title an area of land the general boundaries of which are described in paragraph 67 below.

 

2. The PLA established its paper title to the bed of the River Thames following an earlier hearing in other cases referred by the Land Registry before the Adjudicator to the Land Registry. Mr. Mendoza did not dispute that the PLA had the paper title it claimed but contended that he had acquired a title by adverse possession to part of the river bed which had extinguished the PLA's title to that part. The present hearing was held to determine whether he had acquired such a possessory title in the circumstances which I set out below. Mr. Mendoza appeared in person and, with some pro bono assistance, presented his case with considerable skill. The PLA was represented by Mr. Christopher Stonor QC. I am grateful to both for their careful and full submissions.

 

The evidence and facts

3. The boat, the Wight Queen, is 22 metres long and has been moored on the north bank of the River Thames opposite what is now Waterman's Park, Brentford, since at least 1996. The boat was one of a number of vessels moored during this period along the same river bank very close to each other. Some other vessels have also been there for the entire time, while others have changed over the years. Many, including the Wight Queen, are moored without any licence from the PLA, which has title to the river bed subject to the claims of the Respondent and others to have acquired possessory titles to part, and without any permission from the owner of the embankment, which has been assumed in this reference to be the London Borough of Hounslow.

 

4. The river is tidal at this point and at low tide the Wight Queen, like those around it, lies on the bed of the river supported by its moorings. While there are public rights of navigation over the whole river, there is no suggestion that anybody has ever in the past 20 years sought to exercise such rights over the part of the river where the Wight Queen and other vessels are moored. Indeed there is evidence that although the PLA has the statutory power to remove wrecks which are a hazard to navigation, it has never felt able to remove a sunken wreck close to the Wight Queen because it did not present any threat to navigation.

 

5. The Wight Queen was bought by Mr. Peter McCrudden from its previous owner early in 1997. In the late summer of 1997, the Respondent, Mr. Mendoza moved into the boat with Mr. McCrudden and he then bought the boat in January 1998, although Mr McCrudden and his young son remained living on the boat with Mr. Mendoza until about 2003, when they moved to a council flat. Mr. Mendoza has lived on the boat ever since, apart from a period of a few months in 2007-2008 when he went travelling, leaving a tenant on the boat.

 

6. According to the evidence of Mr. McCrudden, when he bought the boat "the sale included the mooring to the extent of her ropes, again the area indicated on the signed map which is attached to this statement and marked PM2". While I have no difficulty accepting that the sale included such mooring rights as the previous owner may have had, I shall return to the area indicated on Mr. McCrudden's map (the claimed area) later in this decision. Mr. McCrudden also states that soon after he bought the boat, he approached the boat owners either side of his and formalised an agreement, which appears to have been oral only, that they could not use the claimed area without his consent. Again, I shall return to this in due course.

 

7. Mr. McCrudden is an experienced boatbuilder and he provided a useful description of what was needed to care for and moor a boat like the Wight Queen on this stretch of tidal river. I accept his evidence in this respect. When he bought the boat the bottom of the hull was pretty bad and needed attention. In addition, the boat needed to be repositioned from time to time to get the berth clear of bits of metal and other debris deposited by the tides. To repair the boat you needed to move the boat onto a hard piece of land away from the thick mud on which it normally sat at low tide. Mr McCrudden did repair it, but would always move it back afterwards. It was quite a treacherous piece of river and when moored it needed pretty much constant adjustment to the mooring lines to keep it in a good position. Tyres may also be needed against the bank. You had to have ropes on either side and springlines from the front of the vessel to the mooring on the back and from the back to the mooring on the front. He would recommend at least 8 ropes. There were concrete mooring posts in the river. These had been there long before his time and had been for big ships unloading coal for a power station that once had been there.

 

8. In relation to his discussions with the adjoining boat owners, he stated that they did what every group of boats did. There had to be a spirit of expectations mooring on the river with the tide as it was. Also it was important to see that nobody else would pull in and interfere with the moorings. Without mutual co-operation you could go away for a week and find somebody else there when you got back. Mr. Standring, whose boats were immediately downstream of the Wight Queen, had been there before him, but not with a boat big enough to sleep on. I note that there are photographs of the Wight Queen at trial bundle 1, pp.A203 and A204 in trial bundle 1. These were taken by the PLA or Hounslow in 1999 in connection with possession proceedings brought at that time to which I shall revert. The evidence at p.174 of bundle 1 indicates that they were taken on Thursday 3 June 1999, and I accept that date as when these photographs were taken. Mr. McCrudden identified A203 as showing the Wight Queen slightly away from the river bank, pointing upstream. That identification is not in dispute. It is there described as "large white and black converted lighter/houseboat" and in an index at p.A185 its ownership is described as unknown. There is also in the foreground of that photograph just upstream from the Wight Queen, a much smaller vessel described as "very dilapidated brown cruiser known as "the submarine". There appears to be a mooring rope going from the Wight Queen to a mooring post just upstream of the submarine. The submarine and that mooring post are outside the area claimed by Mr. Mendoza.

 

9. At A204, apparently taken on the same visit, the stern of the Wight Queen can be seen in the background of the photograph with the port side apparently resting against a large mooring post and a rope going to another post, referred to at the hearing as a dolphin further out in the river. There appear to be other ropes although it is not clear what they are attached to. There are two small named cruiser convertibles in the foreground of this picture, apparently in the area claimed in another reference by Mr. Standring. The ownership of these and the "submarine" are also stated to be unknown.

 

10. In re-examination Mr McCrudden confirmed that the Wight Queen had a keel and if not leaning against anything it could fall over and do a lot of damage, so they always had it leaning against the river works. Nobody tried to moor in his spots without express permission. It would be chaos if people moored too close to each other so that ropes got caught on each other, especially when there was a strong tide.

 

11. There is an earlier photograph of the Wight Queen (bundle 1, p.247) which Mr. Philip Simons, in a witness statement provided to Mr. Mendoza for this hearing, states was taken by him on 27 July 1997. This shows it moored with the prow again pointing upstream, and leaning against or close to what appears to be the same mooring post. The position of the mooring post in relation to the boat appears similar in both this photograph and the 1999 photograph at p.A204 He gave 10 dates when he had seen the Wight Queen, the earlier being in November 1996, and that he had noted many improvements over the years to the boat. He states that he was unable to attend the hearing because of ill health. Although no medical evidence has been produced in this respect, I see no reason not to accept his evidence which does not appear to be challenged by the PLA. I note, although nothing turns on it, that he states that the Wight Queen was built in 1908 for the Gosport to Portsmouth ferry service.

 

12. I also note that an aerial photograph dated 12 June 2001 shows the Wight Queen turned around and on the outside of what appears to be the same mooring post but with other vessels between the mooring post and the bank which Mr. Mendoza said were his vessels. The prow of the Wight Queen is downstream of the mooring post by what would appear to be about 3 metres although such distances are very hard to judge from such photographs. A further aerial photograph from July 2003 shows the Wight Queen back in roughly its original position but still pointing downstream rather than upstream as in the 1997 and 1999 photographs. There is a further photograph of the Wight Queen, which had by this time been painted blue, yellow and white taken on behalf of the PLA at some point after 2005 (when it seems to have been repainted) and which again appears to show it in a very similar position in relation to the mooring post in the river (seen at the extreme right of the photograph) but with other vessels between it and the river bank.

 

13. Mr. Mendoza's third witness was Mr. Des Webb, who remembered Mr. Mendoza moving into the Wight Queen soon after splitting up with a girlfriend in 1997. He helped him move in his possessions. Soon afterwards, Mr. Mendoza told him that he had now bought the boat which came with a free mooring, and that there was room for additional boats which he intended buying and selling. Mr. Webb, in his witness statement, describes himself as visiting on many occasions and the boat was always in the same position. He understood him to have control over the area between the posts, although he did not define which posts he was referring to and told Mr. Mendoza that if he had any trouble, to call him and he would be straight over to help. In cross-examination, Mr Webb stated that when he referred to a free mooring he meant that it came free of charge, and that he was referring to three posts, one either side and one marking the other side. Having held a site view, I am satisfied that the posts referred to are those still visible close to the Wight Queen.

 

14. Mr. Webb stated that he helped to refurbish the Wight Queen. He could not remember if he saw other boats there except for what he described as a couple of little ones and a speedboat. It is unclear what little boats he was referring to, but he identified the speedboat as an orange one still owned by Mr Mendoza. He could not remember if it was there in 1997. He would recognise where the boat was by its position in relation to buildings opposite. Mr. Mendoza spent a lot of time trying to keep the area clean and tidy and he would help him. They spent a lot of time refurbishing the boat and cleaning it out and would try to get as much junk as possible out of the river when the tide was out, which they would then take to a tip in Richmond. He only helped tidy up the boat area. In re-examination he confirmed that he had experienced boats coming and going but with no degree of specificity.

 

15. In his witness statement, Mr. Mendoza states that as soon as he bought "the land" he went out of his way to show the boundaries of his property. He dropped an anchor and threw out additional ropes to further define his boundaries. He would always clear out serious rubbish from soon after buying the boat, and cleared out more minor rubbish such as tin cans from about 2004/5. He also piled up rocks at the edges of his land, again marking the extent of his property. In cross-examination he stated that the anchor and rocks were put down before 2005, but he could not remember when. He discussed boundaries with the adjoining boat owners from the start of his ownership and agreed with them to keep to their own areas and make sure nobody else tried to moor on any of them. Between 1998 and 2004 he bought and sold a number of boats.

 

16. In cross-examination, Mr. Mendoza said the Wight Queen by itself, when he bought it, was not worth more than £500-£1000 and the payment of £2000 was also for the mooring. He bought about 5-10 boats a year which were also moored within the area claimed by him and that there was a boat moored there most of the time. He also stated that from the beginning he was aware of squatters' rights, having had friends who had squatted in different parts of London. He described himself as being in control of his land and stated that he made this clear orally to everyone who asked including people from a local estate and dog walkers. That stretch of the river was quite a small community. He was very vigilant and worked from home. He needed to be vigilant because lads from the estate would buy boats and try to moor them. He and Mr. Standring and the owner of the boat immediately upstream, whom he referred to as Roger, made sure that there respective areas were kept clear of other people's vessels.

 

17. In about 1999 the Wight Queen was turned around, but continued to occupy roughly the same footprint. It has also, at least once, in 2001, moved from its berth to permit another vessel of Mr.Mendoza's, a lighter, to unload a cargo, but moved back again afterwards.

 

18. In July 2004 Mr. Mendoza met Helena Kanoute and they became partners until 2010. They have since remained friends and Mrs Kanoute gave evidence on his behalf. She is a graphic designer and much more of a home maker than Mr. Mendoza. She encouraged him to renovate and redecorate the Wight Queen which was repainted and the deck was turned into a garden area. From then on he would buy better class boats and let them or let the additional space to that occupied by the Wight Queen to other vessels. Mr. Mendoza had from this time plainly taken over a great deal more of the river than was apparent in 1997, but for the reasons which I give below, this cannot assist him on this application by the PLA to register its title, and it is unnecessary for me to make any detailed findings except to say that I accept his evidence and that of Mrs Kanoute as to what he did, and to note that he continued to use as his own the area originally occupied by the Wight Queen in 1997. I also note in particular his evidence that his access to the area depended on his climbing over a fence to get to his gangplank. I also note and accept that while the gangplank was down the vessel could not move very much or the plank would fall into the river, and also that he would let areas occupied by him to other boats for a rent.

 

19. Mr. Mendoza claims to have acquired a possessory title to an area of river around his boat. He relies so far as necessary on the previous occupation of Mr. McCrudden in addition to his own occupation and has included in his claim an area surrounding where the boat was moored. Mr. Mendoza has never disputed that at least by the time of the PLA's application to register its paper title to the stretch of the river around Waterman's Park, including that part occupied by Mr. Mendoza, the Applicant had a good paper title subject to his and other claims, including one by Mr. Standring, to possessory titles of the areas around where they had been moored for so many years.

 

Previous legal proceedings

20. In June 1999, when proceedings were brought jointly by the PLA and the London Borough of Hounslow against various identified boat owners and also persons unknown who were the owners of the various boats at Watermans Park who had not been identified. There is no evidence as to what steps had been taken to try to identify them. Mr. Mendoza was one of those who had not been identified. Although the PLA were joint claimants in these proceedings together with the London Borough of Hounslow, the PLA appears to have taken a back seat in the proceedings which were largely progressed, insofar as they were progressed at all, by Hounslow. It appears to have been a second set of proceedings brought by Hounslow, the first, brought in March 1996 against only some of the Defendants having been discontinued by Hounslow for reasons which are not spelled out at around the time that the 1999 proceedings were commenced (see p.A170). While most of the 1999 Particulars of Claim raised issues of trespass by the Defendants against Hounslow's land, including the both the river bank and the river works, which were said to be licensed to Hounslow by the PLA, paragraphs 8 and 9 included claims by the PLA in respect of trespass to the river bed and foreshore arising from unauthorised occupation of its land. A claim was made in the prayer for relief that the PLA recover possession of its land.

 

21. It is apparent from paragraph 12 of an affidavit of James Buchan, made on behalf of Hounslow, that Hounslow was well aware that "Many of the boat owners and occupiers persistently refuse to move and remain in the area without permission from the Council or the Port of London Authority." It would appear, although I have only draft documents in the trial bundle, that notice of the claim was served on most of the owners by leaving a copy on the decks of their boats. I note that Mr. Mendoza denies receiving any such notice, although, as he pointed out, this could be because the method of service left it very possible for the notices to fall off the decks before being seen. There is then said to have been an order dated 5 November 1999, again only to be found in draft at p.A273 until trial or further order, inter alia, from remaining on any part of the PLA's land and granting Hounslow and the PLA possession of the whole of the river and river bank in the area including the land on which the Wight Queen stands. The order also added Mr. McCrudden as a Defendant without re-service. I have seen no copy of any sealed order in those terms and no evidence of service of it on the various boat owners other than a letter dated 30 November 1999 to a legal adviser at the PLA confirming that the defendants were served with it on 19 November. I was told by Mr. Stonor, although there was no actual evidence to that effect, that it was decided that if the various occupants were forced to leave they would simply be replaced by new boats and owners and it was therefore decided to leave them there. Quite why Hounslow and the PLA were so ineffective at protecting their property is not explained. Nor is there any explanation as to how it came about that Mr McCrudden was to be added as a named Defendant rather than Mr. Mendoza, or why, when Mr. Mendoza was living on the Wight Queen, which was described as a houseboat in the caption to one of the photographs in the Particular of Claim, he could not be contacted and served properly.

 

22. Instead of enforcing the order and proceeding to trial, the 1999 proceedings were simply left to die. Mr. John Ball, who gave evidence for the PLA, states in his witness statement at paragraph 13 that this was because it was realised that, without immediate plans to replace the boats and wrecks with something more acceptable, they would simply return to the area at the first opportunity or be replaced by more of the same sort of thing. Mr. Ball was not speaking at first hand and he only joined the PLA in 2004. However, his account has not been challenged. It is presumably based on what he was told by those with first hand knowledge, or taken from contemporary documents and I accept it.

 

23. There appear to have been further proceedings taken in 2006 in the Brentford County Court against various boat owners, apparently not including Mr.Mendoza, which were again discontinued, this time because of problems with the PLA's title which were subsequently resolved by two deeds in January 2009 and January 2010 by which a potentially competing claim to the paper title by the Crown was disposed of. There is no suggestion that any such claim by the Crown affected the relevant period of limitation in the present case. The PLA's application to be registered with title to the disputed land was made on 26 November 2009.

 

24. The only witness evidence from the PLA was from Mr. John Ball, who had only joined the PLA in August 2004 and had become Head of Property there in September 2005. Most of his evidence relates to the history of the area, to the powers of the PLA and to the previous litigation to which I have referred, and he has also exhibited a number of photographs showing the PLA and Hounslow keeping photographic records of the numerous boats present at Waterman's Park between 2005 and 2009. Finally, he has exhibited photographs taken by himself in October 2015.

 

The law

 

Adverse possession of unregistered land

20. In relation to unregistered land, adverse possession is governed by the provisions of ss.15 and 17 of the Limitation Act 1980 (the 1980 Act). Section 15(1) provides that "No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person." Section 15(6) provides that "Part I of Schedule I to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned. The effect of paragraphs 1 and 8 of Schedule I is that the right of action only accrues once there is somebody in possession in whose favour the period of limitation can run (i.e. somebody who is in adverse possession). Section 17 provides that, with certain exceptions which are not material in this case, at the expiration of the period for a person to bring an action to recover land the title of that person to the land is extinguished. Under section 38(1) of the 1980 Act, "action" includes any proceedings in a court of law. In the present case, there is no dispute that proceedings before the Adjudicator to the Land Registry, as these proceedings originally were before the functions of the Adjudicator were transferred in 2013 to the First-tier Tribunal Property Chamber, were proceedings in a court of law and that proposition appears to me clearly to follow from the decision of the Court of Appeal in Hillingdon LBC v ARC Ltd [1999] Ch 139.

 

Were the proceedings before the Adjudicator brought by the PLA to recover possession of the disputed land?

21. It is, however, disputed that the proceedings, whether before the Adjudicator or this tribunal, have been brought by the PLA to recover land. This dispute divides into two parts: (1) are the proceedings brought by the PLA, and (2) are they to recover land? In the Hillingdon case, the question was whether a reference by a claimant to the Lands Tribunal for the purpose of resolving a question of disputed compensation was an action to recover that compensation within section 9(1) of the 1980 Act. The Court of Appeal held that it was, with Potter LJ, with whom the other members of the court agreed, observing at paragraph 42 of his judgment that "The alternative is to regard it as no more than a procedural step required in order to quantify the sum to be recovered by an action before an "ordinary" court of law. That seems to me both cumbersome and unnecessary". I note that this was in the context of statutory provisions entitling a person whose land was compulsorily purchased to compensation the amount of which had to be determined by the Lands Tribunal if not agreed. I further note that although there may have been little incentive for a local authority to refer the question of the amount of compensation to the Lands Tribunal, it would appear to have been open to it to do so rather than waiting for the claimant to make the reference.

 

22. In the present case, as Mr. Mendoza has pointed out, neither he nor the PLA brought any action before the Adjudicator. The PLA had applied to register its paper title. That application was resisted by a number of objectors, some on the basis that the PLA did not have a paper title, some on that basis and also on the basis that they had acquired adverse possession to different small parts of the property within any paper title that may be established and some, including Mr. Mendoza, solely on the basis that they had a possessory title or some other rights over their bit of the river. The various disputes came before the Adjudicator because the Chief Land Registrar performed his statutory duty under section 73(8) of the 2002 Act of referring them to the Adjudicator. It was then for the Adjudicator to decide, under rule 5(b)(iv) of the Adjudicator to Her Majesty's Land Registry (Practice and Procedure) Rules 2003, who the Applicant should be in the proceedings before him, and who the Respondent should be. Because the various objections were considered together, and the obvious preliminary issue was as to whether the PLA had established its paper title, it was made the Applicant and the various objectors were made Respondents. Had the only issue been whether Mr. Mendoza had acquired a possessory title, then the standard practice of the Adjudicator would have been to make him the Applicant as the onus would have been on him to prove his title. This was reflected at the hearing before me, when by agreement, the PLA's title having already been established, and never having been challenged by him, it was Mr. Mendoza who opened and put his case for a possessory title.

 

23. Mr. Mendoza himself had even sought to make his own application for a possessory title to the part claimed by him, but because the PLA had made its application earlier, the Land Registry decided to defer considering, or possibly refused to accept, Mr. Mendoza's application pending resolution of the PLA's application and instead told Mr. Mendoza that he needed to object to the PLA's application instead, which he did. Subject to one possible issue, I am not persuaded that this was the appropriate course for the Land Registry to take. I can see no reason at present why different and conflicting applications should not in general be accepted by the Land Registry and, assuming that neither side's objection to the other is groundless, the Land Registry can then refer both to what is now the tribunal, enabling the tribunal the better to deal with all the issues between the parties at the same time.

 

24. If the PLA had been registered as paper title owners, only to be met with an application by Mr. Mendoza under Schedule 6, questions under the 1980 Act would not arise at all, although Mr. Mendoza may have found it impossible to rely on any of the grounds in paragraph 5 of that Schedule if called on to do so. Equally, if there had been no paper title issue raised by other objectors, and the only issue had been the entitlement of Mr. Mendoza to a possessory title, who was then made the Applicant, it is very difficult to see how the proceedings before the Adjudicator could be regarded as an action by the PLA to recover any land, any more than if, with regard to unregistered land, Mr. Mendoza had brought court proceedings to establish a possessory title. The position in this respect is very different from that in the Hillingdon case, where the action taken by the claimant was for the purpose of determining the amount of compensation it was entitled to and it was thus a necessary step by way of action to recover that compensation.

 

25. I would therefore be disposed to hold that the proceedings before the Adjudicator and before this tribunal are not an action by the PLA to recover any land. I have, however, come to the conclusion that the point is academic if, as I consider to be the case for the reasons given below, the PLA is entitled to have registered such title as it had at the date of its application regardless of whether that title has since been extinguished.

 

 

What is the effect of the application to register title to the disputed land on the running of time under the Limitation Act 1980?

26. Section 96(1) of the Land Registration Act 2002 (the 2002 Act), however, provides that "No period of limitation under section 15 of the Limitation Act 1980 ... shall run against any other person, other than a chargee, in relation to an estate in land or rentcharge the title to which is registered." Section 96(3) then provides that "Accordingly, section 17 of that Act ... does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him." Instead, schedule 6 to the 2002 Act permits a person, subject to certain exceptions, to apply to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of 10 years ending on the date of the application or in certain other circumstances there set out. The right to be registered is not an absolute one, but is subject to significant exceptions if a person given notice of the application requires it to be dealt with under paragraph 5 of Schedule 6.

 

27. If the paper title, once established, is to be treated as registered from the date of the application, section 96 of the 2002 Act will have stopped any period of limitation from running under the 1980 Act from that date. Either Mr. Mendoza will have caused the PLA's title to have been extinguished by virtue of sections 15 and 17 of the 1980 Act before the date of the application, or the PLA will be entitled to be registered as at that date. This will not stop Mr. Mendoza's period of adverse possession from continuing to run, but he will no longer be able to rely on the 1980 Act if he could not do so at the date of the application. Instead, he will need to make an application in form ADV1, the appropriate form under Schedule 6 and the relevant provisions of the Land Registration Rules 2003. This could assist him to the extent that he need only show 10 years of adverse possession from that date, but will work to his disadvantage if the PLA requires the matter to be dealt with under paragraph 5 of Schedule 6 to the 2002 Act, as Mr. Mendoza would not seem to have any prospect of showing that any condition in that paragraph is met. There is no possible equity by estoppel to which he might be entitled, there is no other reason why he should be registered as the proprietor of the estate and he does not own any adjacent land which may bring the third condition into play.

 

28. The next question for consideration, therefore, is as to the effect of the PLA's application for registration. If there had been no objection to the application, the PLA would have been registered as proprietor of the land and that registration would have effect from the time of the making of the application (see s.74 of the 2002 Act). It would then be plain that any application by Mr. Mendoza for a possessory title, if the period of adverse possession ended after the date of the application for registration by the PLA, would have to be in form ADV1 and, to succeed if the application was to be dealt with under paragraph 5 of Schedule 6, he would have to show that the PLA's title to the land claimed by him had been extinguished before the date of the PLA's application. No other date would be relevant and indeed it is unlikely that there would even be any evidence as to when (in the absence of any reference) the registration was actually effected. Certainly there would be nothing on the register to assist with any such enquiry.

 

29. Insofar as Mr. Mendoza were to succeed in establishing a possessory title to any part of the river claimed by him before the date of the PLA"s application, the application must fail as regards that part of the river. Insofar as he could not establish the necessary 12 years of adverse possession by that date, however, at the date of the application the PLA had title to the disputed land, and it is difficult to see any logical reason why it should not be registered with that title just because it then took time, in this case over 15 months, for the matter to be referred to the Adjudicator, and over 6 years for the various issues raised to be determined.

 

30. There is therefore a question, for the purposes of s.96 of the 2002 Act, whether the title to the disputed land is registered from the date of the application to register even before the dispute relating to it has been determined and registration is completed, taking effect retrospectively. "Registered" is defined in section 132 of the 2002 Act as meaning "entered in the register". "Register" is defined in the same section as "the register of title, except in the context of cautions against first registration". For present purposes, therefore, the question is whether the title to the disputed land has been entered in the register of title.

 

31. When an application is made, it is entered in the Land Registry's day list, which is kept under rule 12 of the Land Registration Rules 2003. Rule 12(1) refers to the application as a pending application. On an application for first registration, the land is also allocated a reference number, in this case AGL203923. That is, however, only an application number. There is no register of title at that stage. This is also made clear by section 74 of the 2002 Act, which provides for an entry made in the register in pursuance of an application for registration of an unregistered legal estate to have effect from the time of making the application. It contemplates the entry being made at a later date but, once made, it is to have effect from the time of making the application.

 

32. As, pending giving effect to the application by making the entry in the register, the title is not registered, time continues to run for the purposes of the 1980 Act. This can lead to a title which has not been extinguished at the time of making the application becoming extinguished before a decision is made on the application. If, however, effect were then to be given to the application and the title entered in the register, that entry is effective from the time of making the application, and the title is retrospectively revived (rather as a dissolved company, which has been struck off the register of companies and so ceased to exist, is deemed never to have been struck off that register once an order has been made restoring it to the register).

 

33. There is therefore a question whether an order should be made to give effect to the application if, before a decision has been made but after the date of the application, the applicant has ceased to have title to the land in question. I am satisfied that, in general, such an order should be made. If the applicant had a registrable title which it was entitled to register, or some other right which it was entitled to protect by notice or restriction, when the application was made, it should not be adversely affected by delay in dealing with the application - a delay in this case of over 6 years. I see no problem with this in terms of the issues referred to the Adjudicator under section 73(7) of the 2002 Act. The matter referred to the Adjudicator, and since 2013 to the tribunal, under that section includes the question whether at the date of the application the applicant was entitled to what was being sought by the application. It would be wholly wrong if that entitlement could be lost by delays on the part of the Land Registry in dealing with the application or by the time it took to deal with objections, legitimate or otherwise, both by the Land Registry and by the Adjudicator/tribunal.

 

34. Normally, therefore, if an applicant was entitled to what is sought by an application to the Land Registry at the time it was made, effect should be given to it, even if matters have changed since that time. There will be some exceptions, mainly, if not exclusively, where a compromise of a dispute has been reached between the parties or where subsequent events have made it pointless to give effect to the application. An obvious example of the latter is where an application is made to protect an interim charging order by notice on the register but following the application either the charging order is not made final or the underlying debt is discharged. In those circumstances it would be pointless to give effect to the application at a time when the registrar would then immediately have to bring the register up to date by cancelling it.

 

35. So too, in some cases, the effect of first registration may be that at that date, or at some later date before the date of the decision on it, because there has already been between 10 and 12 years of adverse possession, the squatter would be entitled to make a successful application under Schedule 6 to the 2002 Act because he or she would be entitled to rely on one of the conditions in paragraph 5 of that Schedule if required to do so. In such a case, if sufficiently pleaded and proved, I see no reason why the tribunal should not determine to cancel the application, rather than give effect to it and require a fresh and successful application by the squatter under Schedule 6.

 

36. There may also be other cases where it is appropriate to direct the Chief Land Registrar to cancel an application although the paper title owner's paper title had not been extinguished at the date of the application. Although it does not arise in this case, there may be a question how such an approach affects the requirement in the third condition in paragraph 5 of Schedule 6 that "for at least ten years of the period of adverse possession ending on the date of the application [ that is the application under Schedule 6], the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him". That provision appeared in the Land Registration Bill presented to Parliament in the report of the Law Commission and Land Registry "Land Registration for the Twenty-First Century A Conveyancing Revolution. At paragraph 14.44 of the report it is clearly stated that to fall within the exception the squatter would have to prove that "(1) there has been a period of adverse possession of at leat 10 years by the applicant or his or her predecessor in title ending on the date of the application; (2) for at least 10 years of the period, the applicant or his or her predecessor in title reasonably believed that the land to which the application relates belonged to him or her; and (3) the estate to which the land relates was registered more than one year prior to the date of the application."

 

37. The report goes on to point out that "at some point prior to making the application to be registered, the squatter will have become aware that he or she is not in fact the owner of the land in issue. It is likely to be this realisation that prompts the application. It follows that the period of adverse possession that will be needed will, in practice, be more (even if only marginally) than 10 years." It is apparent therefore that the Law Commission, the Land Registry and Parliament intended that the 10 years of reasonable belief could be at any time during the period of adverse possession, and this is further borne out by paragraphs 14.50 to 14.52. It is also apparent that they read paragraph 5 of Schedule 6 as meaning what they expressly intended it to mean.

 

38. Unfortunately, without any argument on the point, without being referred to that report and without it being necessary for its decision, in Zarb v Parry [2011] EWCA Civ 1306, the Court of Appeal concluded that the wording of that part of paragraph 5 was such that "the necessary effect ... is to make the unreasonable belief of the adverse possessor in the last ten years of his possession prior to the application for registration a potentially disqualifying factor even though his belief started out as reasonable but became unreasonable as a result of circumstances after the completion by him and/or his predecessor in title of a ten year period of possession" (per Arden LJ at para.17).

 

39. The result of that construction is, as the Court of Appeal appears to have realised, absurd. Even in the ordinary case, entitlement could depend on the quality of the arguments addressed by the paper title owner or his solicitors to the person in possession, and, where the land is already registered, the person in possession could lose a statutory right to be registered (described by the report at paragraph 14.64 as necessarily a proprietary right) on what would appear to be a totally irrational basis, and thus very possibly a contravention of Article 1 of Protocol 1 of the Human Rights Convention. It also overlooks that "10 years of the period of adverse possession ending on the date of the application", badly drafted as it is, could be read literally not only as having the meaning put on it by the Court of Appeal, but also as having the meaning of 10 years of the period of adverse possession ignoring any period after the date of the application, the meaning which it had been held to have in earlier cases before the Adjudicator (see for example Davies v John D Wood [2010] EWLandRA 2008_0528) . Had the Court of Appeal been aware of the clear understanding of the Law Commission, the Land Registry and Parliament as demonstrated by the report and the wording of the bill as included in that report, I very much doubt that it would have been so dogmatic as to the only meaning that the provision could have, a meaning that would necessarily produce irrational and unfair results.

 

40. While it may be that the decision on this unargued aspect of the case in Zarb v Parry might be characterised as per incuriam, if it is authority, then the ramifications in cases such as the present are significant. An application under Schedule 6 cannot be made until the paper title has been registered, by which time the paper title owner's title will have been established and, as here, some considerable time may have passed before determination of the application to register, during which time, no speedy application to register, such as was contemplated by Arden LJ would be possible both because the title was not registered and because no application relying on this ground could be made until a year after the estate was registered. I note that in the present case it has still not been registered long after the paper title question was determined as a preliminary issue.

 

41. It appears to me to be arguable that in at least some circumstances it may be just to cancel the application, leaving the paper title owner to re-apply. Whether, and if so when, that can be done is not something I need to address further. Quite how the prevention of the application being made until a year after the paper title estate is registered can be reconciled with the supposed requirement that the 10 years reasonable belief had to continue up to the date of the application for a Schedule 6 title is also unclear, and it is also unclear how the provision that the reasonable belief could be that of the predecessor in title can be reconciled with the requirement that the belief had to continue to the date of the application.

 

42. In the present case, if Mr.Mendoza has not acquired a possessory title before the date of the application and has now to make a fresh application under Schedule 6, that application would be hopeless if the PLA required it to be dealt with under paragraph 5 of that Schedule. None of he conditions in that paragraph could possibly apply. Mr.Mendoza has no conceivable equity by estoppel, there is no other reason for him to be entitled to be registered and he does not own any adjacent land. The rejection of any application by him would be inevitable, although he may still have the opportunity to make a further application two years later under paragraph 6 of Schedule 6 if the PLA were to be as lax in enforcing its rights in the future as it has been in the past.

 

43. I therefore conclude that except to the extent that Mr. Mendoza can establish a possessory title which extinguished that of the PLA before the date of its application, 16 November 2009, I should direct the Chief Land Registrar to give effect to the application for first registration as if Mr. Mendoza's objection had not been made.

 

Possession

44. The question what acts constitute a sufficient degree of exclusive physical control to amount to exclusive possession must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. For a person to be in exclusive possession of land (including land under water) what must be shown is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expecting to deal with it and that nobody else has done so (see Powell v McFarlane (1977) 38 P & CR 452, at 470-1). Insofar as Mr. Mendoza and before him Mr. McCrudden was using the same area as the location of their home and doing so in a way that other boats could not access the area, they were using it as an occupying owner might have used it and were preventing anybody else from doing so. That did not change because from time to time the Wight Queen was moved out from that position temporarily for repairs, or to be turned around, or to enable debris to be removed from the river bed, or to permit another of Mr. Mendoza's boats to occupy that same space for a time. In the context of part of a river, the absence of fencing off from the rest of the river is irrelevant. Fencing would not normally be used by an occupying owner of such a part of a river.

 

45. Mr. Stonor has drawn my attention to the observations of Mann J in Port of London Authority v Tower Bridge Yacht & Boat Company Ltd at paragraph 283, where he said

 

"In any given case ... deciding which concept applies is a judgment which looks at all the facts and assesses the quality of the acts and the quality of the intention in the relation to the activities. Doing that in this case I find that those acts were more in the nature of user (or mere occupation, though I prefer user) and not the taking of possession necessary to constitute adverse possession. Indeed, I think that the moorer (who did not know that perceptions of his title depended on this sort of discussion) would be unlikely to think of himself as possessing any land down there at all; contrast the more familiar squatter who would have no difficulty in immediately grasping and accepting the concept in relation to what he was occupying."

 

46. Mann J's observations were based on the evidence in his case. Perception of a person's title depending on distinctions between occupation or user and possession may well not have been at the forefront of Mr. McCrudden's mind when he acquired and used the space he took over. Nor did he concern himself with any distinction between the river in the area occupied by himself and the river bed beneath it. But the evidence I have heard leads me to the clear conclusion that he did not simply occupy that area, he was taking it over to use as a berth for his home on a tidal river. For reasons of security and safety he wished to ensure that he was agreed with his neighbours as to his boundaries and that nobody else should have access to his area without his permission. He did not simply occupy the area, but he occupied it with the intention of excluding everybody else from it so far as he was able and he used it as an occupying owner might have used it. That is possession as explained in Powell and endorsed by the House of Lords in Pye v Graham [2003] 1 AC 419. This was also the position of Mr. Mendoza when he took over. Mr McCrudden may not have been thinking in terms of possessory title, but his expressed, and fully understandable intentions were only consistent with his having taken exclusive possession of that part of the river.

 

Definition of the area claimed by way of adverse possession

47. The need for the area claimed to be defined has been considered in a number of cases. In Thomas W Ward Ltd v Alexander Bruce (Grays) Ltd [1959] 2 Lloyds Rep 472, CA, it is stated at the foot of the second column at p.478:

 

1. "In order to acquire a title by adverse possession under the Limitation Act, 1939, it seems to us to at least necessary that the claimants should be able to define the area adversely possessed by them. In the present case, the area has extended and may, by the action of the tide, or indeed of the appellants', be curtailed, and it seems to us that there is no room here for this claim. It is to be observed that it never occurred to the appellants at the outset to make such a claim. They relied solely upon the acquisition of an easement, and it was not until after considering for some time the respondents' contention, that the claim preferred could not be supported as an easement at all, that the alternative claim was added as an afterthought."

 

48. That was a case where the claimants had the right to use the disputed land under a deed of 1899 and the Court of Appeal had held that it was a matter of great exertion, in the absence of evidence of how the property was being used in 1899, to determine the extent of the easement granted by that deed. It concluded, at p.477, 2 ^nd column, that the claimants had not discharged the burden of showing that the user was not precario, that is by permission, but was a deliberate invasion of the respondents' property. It then rejected the claim to an easement on the basis that the acts in question involved the taking over of the disputed dock and the almost complete exclusion of the alleged servient owner (the respondents and their predecessors) with the right differing from day to day. The alternative, and late, claim to a possessory title was then rejected on the basis that there was no intention on the part of the claimants to exclude the respondents, as the evidence did not establish that when the area, which was tidal, was covered with water, there was any exclusive user by the claimants., but rather that the respondents' vessels would navigate the area claimed. As a final point the Court of Appeal went on to find that the area allegedly occupied was not sufficiently defined. It was not co-terminous with the area mentioned in the 1899 deed and the evidence showed that the area had increased over the years and may by the action of the tide be curtailed.

 

49. In Prudential Assurance co Ltd v Waterloo Real Estate Inc, [1999] 2 EGLR 85, the claim was for adverse possession of the southern half of a party wall. Park J had concluded that the claimant had shown title to that area of the wall. In rejecting an appeal based upon the contention that there was no defined boundary on the land, the court found that there was a sufficient boundary while at the same time observing that it was important "that there should be a clear and defined physical division between that part of the wall possession of which the claimant claims and that part of the wall possession of which it does not claim."

 

50. Finally, I was referred by Mr Stonor to Port of London Authority v Tower Bridge Yacht and Boat Company Ltd [2013] EWHC 3084 (Ch), where Mann J was dealing with a claim for adverse possession of mooring roots on the river bed where, in the course of a 9 days hearing, a person claiming adverse possession of the mooring roots, and represented by solicitors and leading counsel, was unable to prove where those mooring roots were or what they were. He described this as a procedural problem in relation to a claim for a declaration that a person was entitled to land by way of adverse possession, although if the problem of identification was to be fixed then it would go away. He set out his findings in this respect at paragraphs 273-274 of his decision as follows:

 

"273. The first is a general reason which is more procedural than substantive. The defendant claims a limitation title to very small defined areas. Yet it has not proved where those areas are, with sufficient clarity for these purposes. Someone claiming a possessory title (as I shall call it, for the sake of convenience) should be able to point to the physical extent of the land to which possession is claimed. The defendant cannot do that. All it can do is to point to approximate positions in which a root can be found (save for 2 roots where the position is apparent). The position is approximate because it is not possible (or, if possible, it has not been done) to define precisely where the roots are. Mr Honey could not do it, and (as I have observed before in this judgment) all the previous charts and plans probably do no more than show where chains go into the mud (or water), not where the roots are. Furthermore, even if the position could be shown, the physical extent of the space cannot be identified. The root may be stones of various shapes; or a concrete block; or an engine block; or an oddly shaped piece of wood; or something which has decayed over time so that it now has a different shape. In the case of the new roots it is the shape of an anchor, but that shape has not been specified. While resolving some of these uncertainties might just about make it appropriate to make a finding (or register a title) in terms which achieve sufficient clarity and certainty (as to which I make no determination), cumulatively they present a picture in which the position and extent of the land claimed has not been proved sufficiently.




274. This is not the same point as that taken by Mr Harpum and referred to above, namely that Mr Lacey cannot intend to possess something he does not know the position of. The point in the case relied on ( Thomas Ward  v  Bruce) is a different one. It appears in that case that the area of land to which title was claimed varied according to the state of the business (shipbreaking) and the nature and scope of the work being done from time to time. At page 478 Harman LJ said:

 

"In order to acquire a title by adverse possession and any Limitation Act, 1939, it seems to us at least necessary that the claimants should be able to define the area adversely possessed by them. In the present case, the area has extended and may, by the action of the tide, or, indeed, of the appellants', be curtailed, and it seems to us that there is no room here for this claim."

 

That is an observation about the inability to define the scope of the land affected by the claim because it varied from time to time. That is not the point in the present case. In theory, and with enough effort, the position occupied by each block and anchor could be ascertained. The fact that Mr Lacey may not know at the moment precisely where each one is, and the physical shape of it, is not a substantive part of the claim. The position and shape are what they are, and do not fluctuate as apparently the area involved in Thomas Ward  v  Bruce. The point that I make is a more procedural one. As a matter of procedure and description, if you cannot point out what land you are claiming adverse possession of, you cannot get a declaration that you are entitled to anything in particular. If the problem of the identification of the space occupied by each mooning feature were fixed, then this problem would go away."

 

51. Mann J continued in his judgment by acknowledging that, following the decision in Port of London Authority v Ashmore [2009] EWHC 954 (Ch) and the observations of Lewison LJ in Moore v BWB [2013] EWCA Civ 73, at paragraph 57, it seemed that possession could be taken of the river bed by activities amounting to mooring and that title by adverse possession could be achieved in this way. He held, however, that the activities relied on by the Defendant in his case did not amount to the taking of possession of any part of the river bed in that the placing of the mooring roots, whatever they were, was not an act of possession, but was done to facilitate the activity of mooring. The acts involved did not involve taking adverse possession of any part of the river bed (see paragraphs 280-284 of his judgment). Before me Mr. Stonor was content to proceed on the basis that this was correct, while reserving his position should the matter go further.

 

52. Adverse possession claims, like most transfers of paper titles, are rarely concerned with defining boundaries with the degree of precision involved in a determined boundary application made to the Land Registry under section 60 of the 2002 Act. A claim in respect of a field which has a hedge or row of trees and undergrowth as a boundary can succeed even though it is not clear where the precise boundary comes. This was the case, for example in Bawtree v Levett-Scrivener REF/2005/1730, [2006] EWLandRA 2005_1730, where land had been absorbed into the Applicant's garden. The paper title in the land was held by the Respondent, as was title to the adjoining almost impenetrable barrier of trees and shrubs and the land beyond. It was not suggested, and in my judgment could not successfully have been asserted, that a possessory title could never be achieved because there was uncertainty as to the precise line at which adverse possession ceased. If necessary, as with other boundary disputes, a court may have to determine the question. Where adverse possession is concerned, after taking into account all the facts, this may need to be determined by reference to the line beyond which it would not have been apparent to an owner inspecting his property that adverse possession had been taken.

 

53. It is frequently the case that adverse possession claims are made to an area of land on which a property has been erected by the adverse possessor. The fact that the evidence does not show the claimant to have been in adverse possession of the whole of the land does not prevent a finding that he or she has adversely possessed the land on which the building has been erected and sometimes a small area around. If a person is clearly and openly in adverse possession of an area of land an incorrect claim to a greater area does not prevent an application from being successful in respect of the more limited area, provided that that area can be defined with reasonable precision (see for example Frankland v Smith [2015] UKFTT 0048 (PC)).

 

54. It is also clear that the question whether acts of possession of part of a property can be treated as acts in relation to the whole, or some greater part of the whole, is a matter of degree, where generalisation is not possible ( Powell v McFarlane (1977) 38 P & CR 452, at p.471). The question, as posed by Lindsay J in Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch) at paragraph 63 is

 

1. "that there is "such a common quality of locality as would raise a reasonable inference" that, if a person were possessed of one part of it as owner then he would so possess the whole of it. Plainly, the principle has been applied to rivers and there is nothing about an area being frequently entirely covered by water and not having visibly marked-out boundaries where it adjoins other waters that denies its application."

 

Intention to possess

55. The position is conveniently summarised by the Court of Appeal in Prudential Assurance Co. Ltd v Waterloo Real Estate Inc, at p.87, where it is stated

 

1. "For a claimant to establish the necessary intention by his conduct, that conduct must be unequivocal in the sense that his intention to possess has been made plain to the world. If his conduct is equivocal and that intention has not been made plain, his claim will fail. That, as it seems to us, is the clear sense of the passage from the judgment of Slade J in [ Powell v McFarlane (1977) 38 P & CR 452] at p.472, which we have cited. It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the world, including the paper owner, if present at the land, for the requisite period that he was intending to posess the land. The claimant must of course be shown to have the subjective intention to possess the land but he must also show by his outward conduct that that was his intention."

 

56. It is though, as pointed out by Lindsay J in Roberts v Swangrove Estates Ltd, [2007] EWHC 513 (Ch), at paragraph 49, not a necessary and invariable part of the intention to possess that it should include an intention to dispossess anybody.

 

Acquiescence

57. In his skeleton argument, Mr Stonor contended that a squatter could not establish possession unless and until he had effective control of the land. He appears to have relied on a passage in Jourdan and Radley-Gardner on Adverse Possession (2011 ed) at paragraphs 7-25 to 7-26 to the effect that there must first be conduct amounting to acquiescence on the part of the true owner. This is a somewhat remarkable passage when the true owner often cannot be found and the point has been abandoned by Mr Stonor in his closing submissions. Mr Stonor has rightly drawn attention to the passage at paragraph 15-21 of the same work where it is pointed out that the mere fact of a judgment being entered does not stop time running, so that if the squatter remains in possession time continues to run in his favour. He has also drawn attention to paragraph 35-007 of the 8 ^th edition of The Law of Real Property by Megarry & Wade, in which the last sentence reads "The commencement of possession proceedings, in which, for whatever reason, no final judgment is given, has no effect on the running of time for the purposes of limitation". In this case, there was never a final judgment in favour of the PLA but only an interlocutory one over final judgment in the 1999 proceedings. Given the abandonment of the 1999 proceedings, due to the decision not to prosecute them, Mr. Stonor rightly conceded in oral argument that he would not be able to obtain permission to enforce that interlocutory order. Nevertheless he has reserved the right to argue this acquiescence point should there be an appeal.

 

Conclusion

58. Mr. McCrudden was in adverse possession of an area of river in November 1997 much smaller than that now claimed by Mr. Mendoza by virtue of the presence for over a year of the Wight Queen in the same position, allowing for minor movement due to tides and currents, and its then moorings. Mr. McCrudden had the intention to keep possession of that area so far as he was able, and that intention was evident to the PLA from, at the latest, some earlier date in 1997 by reason of the continuing presence of the Wight Queen. I consider the boundaries of that area below, but I do not consider that any intention was evident at that time to the PLA that Mr. McCrudden was intending to possess or was in possession of any area outside that area. Mr. Mendoza took over Mr. McCrudden's squatter's rights such as they were at the beginning of 1998 and is entitled to include them in his claim. Insofar as the area claimed by Mr. Mendoza was first taken into possession by him after he bought the Wight Queen, whether by reference to additional mooring ropes or anchors or by the introduction from time to time of further boats, they cannot alter the fact that at the date of the PLA's application to be registered the PLA had still a paper title to that area and was entitled to have that title registered.

 

59. With regard to Mr. Mendoza's intentions when he bought the Wight Queen, and indeed those of Mr. McCrudden when he bought it previously, I consider it apparent that neither would have bought it without also acquiring, as they plainly did, such rights as their respective predecessors had to be there. I note the comments of Slade J in Powell v Macfarlane as to the self serving declarations that can easily be made in this context, which of course goes to the weight to be attributed to such statements rather than their admissibility. There is nothing in the evidence here, however, to suggest any reason why either of them should have bought the Wight Queen without the benefit such as it was of the mooring and I accept the evidence of both that they intended to stay there as long as they could.

 

60. Once the PLA's application is given effect to, the registration of title will be retrospective to the date of the application, even though in the meantime the paper title may have been extinguished on the expiration of 12 years from the date when possession of any particular part of the area was taken by Mr. Mendoza. In any event, I do not consider that the occasional presence of boats and of the Wight Queen in the other parts of the area claimed by Mr. Mendoza meant that he could be seen to be in adverse possession of those parts at least prior to about 2005 when he was joined by Mrs Kahoute and he began to use the wider area claimed by him with greater regularity. It is unnecessary for me to decide whether the greater use in that period left him in possession of that wider area as it cannot affect the entitlement of the PLA to have its paper title registered in respect of it.

 

61. I do not consider that the turning of the Wight Queen when repairs were effected or its removal temporarily from its usual berth meant that possession of that area was given up, or would even have appeared to the careful paper title owner to have been given up, by Mr. Mendoza. He remained in possession of that area and used it throughout.

 

62. It was, or should have been, apparent to the PLA from, at the latest, early 1997 onwards that the Wight Queen was being used as a houseboat and that it was there to stay - I note that the schedule used in the 1999 proceedings describes the Wight Queen as a converted lighter/houseboat, indicating that it was probably known then to be somebody's home, and I see no reason why a careful owner checking its property could not have discovered this early in 1997. I note the absence of any disclosure by the PLA, or evidence from it, of communications between it and Hounslow prior to 1999 about the boats along the river at Brentford. It is apparent from the 1999 proceedings that it was recognised that, at least in respect of parts of the river, the defendants were in possession and an order for possession was sought and apparently obtained, on an interim basis, but not then enforced. I also note that as long ago as 1995, Hounslow had been issuing notices to owners of boats moored there that their occupation and use of, presumably, the bank of the river must cease (bundle 1, pp.A216, A246). Hounslow was clearly on notice by then, and it appears to me that the PLA must also have been on notice in general terms that some boats had been moored on a permanent basis and that this was without the permission of Hounslow insofar as Hounslow may have been able to license mooring. Hounslow and the PLA were clearly communicating with each other about unauthorised moorings in this period, and the PLA was well able to find out, if it did not know (as to which there was no evidence) whether the Wight Queen was moored with the permission of Hounslow. The Wight Queen had been at its mooring since 1996 and by early 1997 it should have been apparent to the PLA that the person living on it had taken possession of that part of the river. It is true that it did not have its name displayed but it was readily recognisable by a careful owner with the information available to the PLA keeping a sensible check on what was happening on its land.

 

63. The PLA has also sought to rely on licences dating from 1978 with Hounslow by which Hounslow was given permission to maintain certain existing works in the river on terms as to their removal in certain circumstances. The works in question, which include the erection of the various posts and other mooring points used by Mr.Mendoza, all predate the first licence agreement with Hounslow and Hounslow's ownership of the river bank. They appear to have been erected by a Gas Board many years earlier under some now lost arrangements. Whether they became part of the river bed or remained chattels must to some extent depend on the terms of those arrangements. If they became part of the river bed, and so part of the land owned by the PLA, I can see nothing in the agreements with Hounslow which could have transferred them to Hounslow as chattels. In any event, even if they became Hounslow's chattels, they are on the PLA's land. If possession is taken of them to the exclusion of both Hounslow and the PLA, then by taking exclusive possession of them the possessors are also taking possession of the river bed on which they stand. That is so whether they were in the exclusive possession of Mr. Mendoza or the joint possession of Mr. Mendoza and Mr. Standring or Mr. Mendoza and the boat owner upstream of him. If they were not only using them for mooring purposes but also excluding everybody else from them without their permission, then they would appear to have been in adverse possession of them and if they were in adverse possession for long enough then the PLA's title will have been extinguished.

 

64. Both the PLA and Hounslow have been on notice of the occupation of the different boats from time to time. They were very visible and an owner on the scene must have realised that it had lost possession of at least part of the river, and needed to do something about this. The PLA's own Particulars of Claim in the 1999 action pleads notices put up by Hounslow in 1996 immediately before the trespass to the PLA's property is pleaded. It is also plain that Hounslow and the PLA were working together at least by 1998 to issue joint proceedings (see bundle 1, p.A164) and if the PLA wished to contend that it was not on sufficient notice it needed to plead that case and give evidence and provide relevant disclosure in respect of it.

 

65. I am satisfied that Mr. McCrudden took adverse possession of that part of the river on which the Wight Queen was moored when he bought the Wight Queen early in 1997 and that first he and then Mr. Mendoza kept possession of it after that date, regardless of whether the Wight Queen had moved slightly or, to allow some other vessel into that space, had moved significantly. The space in question appears to me to be approximately a rectangle between the river bank and the post against which the Wight Queen can be seen leaning in the 1999 photos. I consider that it extended the length of the Wight Queen (22 metres) plus a small additional area occupied at either end by the Wight Queen when it moved with the tide at that mooring. I am satisfied that that additional area was clearly within the possession of Mr.McCrudden and Mr. Mendoza at all relevant times. I consider that that area is sufficiently definable and recognisable to be the subject of adverse possession, but did not seek evidence from Mr. Mendoza at the hearing as to that precise position, or as to the extent of any movement with the tide.

 

66. While the precise degree of movement may be relevant for the purpose of fixing a determined boundary, it is sufficient for present purposes to direct the Chief Land Registrar to draw the general boundary of the registered title so as to exclude an area sufficient to include the length of the Wight Queen and approximately 2 metres at either end of it, a total of 26 metres. The 2 metres at either end represents an allowance for movement of the boat with the tides and winds.

 

67. It also appears to me that Mr. Mendoza had adverse possession of the post against which the Wight Queen appears to be leaning in the early photographs of it. Anybody seeking to use that post could only do so with his permission as his evidence makes clear. The southern boundary of the land which he has adverse possessed goes parallel to the river bank along the outside of that post as seen from the river bank. The eastern and western boundaries are capable of determination as described by me. For the purposes of the general boundary in giving effect to the PLA's application, the land to be excluded should be shown as about 26 metres in length along the river bank starting from about 7 metres to the east of the post to which I have referred. The distance of 7 metres from the post represents my best effort on the evidence, including in particular the photographic evidence, of the maximum distance the Wight Queen will have projected to the east of that post in the relevant period when moored there. The precise area will have to be the subject of a further reference on a determined boundary application if it cannot be agreed.

 

68. Whatever agreement Mr. McCrudden and Mr. Mendoza may have reached with adjoining boat owners as to the areas occupied by each of them, I am not satisfied that it would have been apparent to the PLA at any time in 1997 that adverse possession had been taken of any greater area than that indicated. It had no reason to know of the private arrangements between the various boat owners and no reason to suppose that the moorings were such as to indicate that Mr. McCrudden or Mr. Mendoza was doing anything more than using that area to enable him to secure his boat.

 

69. The limited area in respect of which I find Mr. Mendoza is entitled to succeed does in my judgment have a common character of locality such as is referred to in Roberts v Swangrove Estates.

 

70. I note that even this limited victory may not benefit Mr. Mendoza as he would wish. His only rights in respect of the river bank, which appears to belong to Hounslow, would appear to be claimed easements to moor or of support, and he is also dependent on access to the boat by climbing over railings and crossing a gang plank from the tow path to the boat. To acquire such rights by prescription takes 20 years of user by acquiescence by Hounslow, the servient owner. Hounslow plainly did not acquiesce when it brought the 1999 proceedings. There may be an argument that it has since acquiesced from the time it decided not to continue that litigation, but that is at best a period of 16 years. In addition, user for prescriptive easement purposes must be without force and it must be at least doubtful whether access by climbing the fence can be described as being without force. If Hounslow were to cease to acquiesce in this user and bring appropriate proceedings against Mr.Mendoza, he may well find himself in a position where he cannot access the Wight Queen except by exercising public navigation rights along the river, and cannot use the bank of the river to moor the vessel.

 

 

Costs

71. My present inclination is to make no order as to costs. Both parties have succeeded in part, Mr. Mendoza in relation to the smaller area but the most important area so far as he is concerned. Further, the PLA has succeeded in relation to the rest on a point which was only taken by me at the hearing, and it signally failed to distinguish itself in the way in which it was late with witness statements, disclosure and the preparation of hearing bundles. If, however, either party does wish to make an application for an order for costs, such application must be filed with the Tribunal and served on the other party by 15 January, and any response by the other party must be filed and served by 22 January.

 

Applications for permission to appeal

72. Any application by either party for permission to appeal must be made and responded to in the same way and by the same dates as in paragraph 71.

 

 

By Order of the tribunal

 

dated the 7th day of january 2016