THE PORT OF LONDON AUTHORITY V ASHMORE (THE "ATRATO")

[2010] EWCA Civ 30, Court of Appeal (Civil Division), the Right Honourable Lord Justice Longmore, the Right Honourable Lord Justice Richards and the Right Honourable Sir John Chadwick, 4 February 2010

Property - Right to riverbed and foreshore - Adverse possession - Vessel moored in tidal river for many years - Vessel took the ground at low tide - Whether owner had acquired title by adverse possession - Appeal - Procedure

The respondent ("A") was the owner of a sailing barge Atrato, a vessel which for the past 25 years had been moored at Albion Wharf, Battersea. The river was tidal at that point and the vessel took the ground at low water. The appellant Port of London Authority had sought to register its title to the bed and foreshore of the river in the area. A objected to PLA's application for first registration, claiming to have acquired title by adverse possession to the part of the bed and foreshore of the river on which the vessel rested at low water. PLA commenced proceedings in July 2008 seeking relief including: (1) a declaration that A had no estate, right or title to moor or otherwise affix Atrato or any other vessel at or off Albion Riverside; (2) possession of that part of the riverbed or foreshore of the River Thames, the space above the riverbed or foreshore through which water flows and the air column above that occupied by Atrato; (3) an order requiring A to remove Atrato from its moorings within 28 days; and (4) an injunction to restrain A from trespassing upon PLA's land by mooring or otherwise affixing Atrato without PLA's licence. The parties agreed to try as a preliminary point of law the issue "whether it is possible to acquire land by adverse possession of the foreshore and/or the sea or river bed by reason of mooring". The judge at first instance ([2009] EWHC 954 (Ch)) found that A had established a sufficient degree of possession of the relevant part of the bed of the River Thames to claim title to it. A had also had sufficient intention to possess. The judge specified that his response was conditioned on the fact that the river was tidal and the vessel took the ground at low tide. The declaration of the judge also contained the following, more generally phrased paragraph: "1. It is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to the river bed or the foreshore for the footprint of that vessel where: (a) the title to the river bed or the foreshore has not been registered; and (b) the vessel rests on the bed or the foreshore at low tide". The declaration potentially had a wider significance than the facts of the case and the PLA therefore appealed. It only sought to have the declaration of the judge at first instance set aside, and replaced by the following declarations: "(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings; or (2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year; and (3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land".