London Borough of Hounslow v Devere & Ors

Works annexed to the riverbed under a statutory licence are ordinarily fixtures. The general law distinguishing fixtures from chattels applies, and the licence does not create a special rule preserving chattel status. A licensee may nevertheless have possession of, or enforceable rights concerning, licensed works. The scope of those rights depends on the licence and the factual degree of control exercised. A court may protect a licensee’s rights, but the remedy must not exceed the rights granted. Mooring to structures which the licensee merely has a right to retain does not establish interference unless it violates the enjoyment of a specific licensed right. Public access to a park may include using it as a route to adjoining land, even where the user’s purpose is access rather than recreation.

The claimant appealed from an order of His Honour Judge Wulwik in the County Court at Central London dated 17 November 2017. The order required the appellants to remove vessels and associated cables, pipes and access structures from the claimant’s land and licensed river works, restrained further interference, and awarded damages or mesne profits.

The appeal concerned the claimant’s possession and rights under a works licence granted under the Port of London Act 1968, the legal character of structures in the riverbed, the extent of trespass and interference with licensed rights, damages, access through Watermans Park, and the form of the injunctions.

1. Permission and reopening. Permission was granted for a sixth ground of appeal. The refusal of permission to challenge ownership of the river wall was not reopened. The stringent requirements under CPR 52.30 were not satisfied: the integrity of the earlier decision had not been critically undermined and there was no powerful probability that the decision would have been different.
2. Fixtures and chattels. The River Works were fixtures, not chattels. The ordinary test, based on the nature and purpose of annexation, applied to works constructed under a Port of London statutory licence. The observations in Tate & Lyle v GLC [1983] 2 AC 509 could no longer be treated as establishing a special principle for such licensed works. Title to the fixtures vested in the Port of London Authority as owner of the riverbed. Hounslow nevertheless had an equitable right under the licence to sever the works in appropriate circumstances, after which the severed items would become chattels owned by Hounslow.
3. Possession and licensed rights. Possession required factual custody or control and an intention to possess. Hounslow possessed the walkway forming part of the River Works and the posts supporting it, because it laid out, controlled and maintained the park and was responsible for those structures. It did not possess the other posts, piles and dolphins sunk into the riverbed. The licence gave Hounslow rights to retain and maintain those items and to remove them, but not a present right to use them.
4. Interference and damages. The court adopted the principles identified in Vehicle Control Services Ltd v Revenue and Customs Commissioners [2013] RTR 24: the remedy must protect, but not exceed, the rights granted by the licence, and the question is whether the defendant’s acts violated their enjoyment. Mooring to the walkway and its supporting posts, and running cables and pipes over Hounslow’s land, constituted trespass. Mooring to the other riverbed structures had not interfered with Hounslow’s rights and attracted no damages.
5. Access and injunctions. Members of the public could use Watermans Park as a route to adjoining land. The appellants’ passage through the park to their vessels was therefore not a separate trespass. Stepping over the railings, without putting a foot on them, was not climbing the railings for the purposes of Byelaw 6. The injunctions had to restrain the proven trespasses and interference, rather than require removal of the vessels generally. The appeal was upheld in part and the orders were to be reviewed and re-expressed.

• High Court (Chancery Division): Appeal from the County Court at Central London order of 17 November 2017. The High Court upheld the decision in several respects, reversed findings concerning certain riverbed structures and access through the park, granted permission on an additional ground, and directed that the consequential orders be reconsidered.