Port of London Authority v Ashmore

Whether mooring a vessel gives rise to adverse possession of a tidal river bed or foreshore is fact-sensitive. The court should determine the actual facts and apply established adverse-possession principles, rather than prescribe an arbitrary rule of thumb based on whether the vessel would float off at a specified tide.

A preliminary-issue declaration must reflect the scope of the decision and its factual foundation. Where the assumed facts are neither definitive nor exhaustive, the court may set aside an overbroad declaration without deciding the merits, leaving the issue for trial.

The Port of London Authority claimed title to the bed and foreshore of the tidal River Thames adjacent to Albion Riverside and sought relief concerning the mooring of Mr Ashmore’s sailing barge, Atrato. The parties agreed a preliminary issue concerning whether long-term mooring could result in title by adverse possession.

The High Court, on assumed facts, answered the issue affirmatively and concluded that Mr Ashmore had acquired title to the relevant part of the river bed: [2009] EWHC 954 (Ch). The Authority appealed. The central issues were whether the declaration accurately reflected the decision made and whether the Court of Appeal should prescribe a flotation-based test or determine the matter by applying established principles to the facts at trial.

1. Disposition. The appeal succeeded to the limited extent that paragraph 1 of the order dated 8 May 2009 was set aside. Paragraphs 2 and 3 remained undisturbed. The Court made no order as to the costs of the appeal.
2. The Authority’s proposed tests, based on whether the vessel would float off at mean high water or at average depth, were arbitrary alternatives. The agreed facts did not establish the vessel’s draft, the relevant tidal levels, the nature of the river bed, or the extent of movement within the alleged footprint. The Court declined to prescribe a rule of thumb and held that the actual facts should be determined and the established principles of adverse possession applied.
3. Those principles require factual possession and an intention to possess. Their application is fact-sensitive and must take account of the nature of the land and the manner in which land of that nature is ordinarily used, as reflected in J A Pye (Oxford) Ltd and another v Graham and another [2003] UKHL 30 and Powell v McFarlane and another (1977) 38 P&CR 452.
4. The declaration was too broad. It extended beyond the judge’s stated decision concerning a vessel moored adjacent to the bank and was not confined expressly to the assumed facts. Those facts were not pleaded and were neither definitive nor exhaustive. It would serve no useful purpose to decide whether the High Court was correct on that basis. The Court therefore set aside the declaration without expressing a view on whether Mr Ashmore had acquired title, which remained to be tried on the established facts.

• Court of Appeal (Civil Division): On 4 February 2010, set aside paragraph 1 of the High Court order, left paragraphs 2 and 3 undisturbed, expressed no view on the merits, and made no order as to costs.
• High Court of Justice, Chancery Division: On 8 May 2009, after trial of a preliminary issue, declared that mooring a vessel on a tidal river could in principle result in title by adverse possession and found on the assumed facts that Mr Ashmore had acquired title to the relevant river bed: [2009] EWHC 954 (Ch).