Couper & Ors v Albion Properties Ltd & Ors

Permanent mooring of vessels and pontoons may constitute private nuisance by interfering with a riparian owner’s right of access, and public nuisance where it materially obstructs navigation. A statutory authority’s works-licensing regime is effective unless a statutory exception is established.

Ancient mooring protection under section 63(1) of the Port of London Act 1968 concerns the particular physical mooring chain placed before 29 September 1857. It does not extend to replacement chains. The person relying on the exception bears the civil burden of proving it.

Adverse possession requires factual possession, an intention to possess, and possession without consent. Use referable to an easement, licence or tacit consent does not satisfy those requirements.

The claimants owned and operated a collection of boats, barges and pontoons moored on the River Thames beside Albion Wharf. They claimed ancient mooring rights, title to parts of the river wall and riverbed by adverse possession, prescriptive easements, and damages for conspiracy, slander of title, misfeasance in public office and harassment.

Albion Properties Ltd counterclaimed for a declaration that it owned the Couper Collection Quay and for nuisance. The Port of London Authority counterclaimed for declarations that it owned the relevant riverbed and could remove the claimants’ works under the Port of London Act 1968.

The principal issues were ownership, adverse possession, the existence and scope of ancient mooring rights, the application of the statutory licensing regime, and whether the defendants’ conduct was tortious.

1. Disposition. All the claimants’ claims were dismissed. Albion Properties was entitled to a declaration that it owned the Couper Collection Quay and to relief for nuisance. The Port of London Authority was entitled to declarations that it owned the relevant riverbed and could remove the claimants’ works.
2. Title to the Couper Collection Quay. The apparent exclusion of the quay from the registered title resulted from an inaccurate general boundary. The successive owners of Albion Wharf had possessed and dealt with the river wall as part of their land. That possession supplied both title and evidence of title. The Port of London Authority had also validly transferred any interest it possessed to Albion Properties. In any event, the claimants were estopped from denying the licensors’ title by the 1992 and 1997 licences.
3. Adverse possession. The claimants did not establish the necessary factual possession or intention to possess the quay before the relevant limitation date. Their pre-2002 use was principally mooring, and their documents showed that they recognised the landowners’ title. Their riverbed claim also failed because possession was insufficient and was exercised with the Port Authority’s tacit consent. The court further considered that the Authority’s statutory ownership and public functions were analogous to those of a highway authority, against which adverse possession could not be acquired.
4. Ancient mooring rights. A permanent private right to moor independently of riparian land would have to be a Crown franchise, not an easement. The evidence showed, at most, mooring associated with riparian wharves. It did not establish a franchise, a pre-1857 mooring chain, or continuity of the particular moorings. The 1993 deed from Mr Boyd added nothing: it contained no reliable root of title and described the moorings as Victorian.
5. Statutory licensing. The claimants’ installation constituted works within section 2(1) of the Port of London Act 1968. Section 63(1) protected the particular physical mooring chain placed before 29 September 1857, not replacement chains. The claimants had not proved that exception. Their works therefore required a licence under section 66 and, absent a licence, could be removed under section 70(3).
6. Nuisance. Permanent occupation of the river wall interfered with Albion Properties’ private riparian right of access and constituted private nuisance. The substantial installation of boats and pontoons materially obstructed navigation and constituted public nuisance. A works licence could answer the public nuisance claim, but not the private riparian claim, and no licence had been granted.
7. Other torts. The claims for conspiracy, slander of title, misfeasance in public office and harassment failed for want of unlawful conduct, malice, intention, causation, damage or sufficiently oppressive conduct.