Devere, R (on the application of) v Land Registry

Introduction

This judgment is concerned with two renewed applications for permission to apply for judicial review. The applications relate to separate claims which were heard together since they are closely connected and are concerned with two decisions of the Chief Registrar (“registrar”) to HM Land Registry (“the Land Registry”) to register the title of two adjacent and separate parcels of land beneath and adjacent to the Grand Union Canal (“GUC”) at Brentford in London. The relevant stretch of the canal runs into the River Thames and has the River Brent running within or close by it.

The first claim is concerned with the first decision, dated 2 July 2010, to register the title of a stretch of the canal and part of its adjacent riparian land that has the Land Registry reference AGL 166926 (“the canal land”). This land was previously unregistered and it runs from the mouth of the junction of the GUC with the River Thames to a point just East of Workhouse Dock. Its registration followed a first registration application made by the British Waterways Board (“BWB”) and a Land Registry Adjudicator’s (“the adjudicator”) award in favour of BWB. However, the registration is now standing in the name of BWB’s statutory successor, the Canal & River Trust (“CRT”), to whom BWB’s assets and registered titles have been transferred.

The second claim is concerned with the second decision, dated 6 December 2010 to register the title of an “E” shaped stretch of the old channel of the River Brent (“the old river land”). This land is adjacent to part of the canal land and it followed a first registration application made by the Port of London Authority (“PLA”). It has the Land Registry reference AGL 202024.

Each application formed part of an extensive and still on-going exercise by BWB and now CRT to register its surviving unregistered interests in a lengthy stretch of the GUC and by the PLA to register its surviving unregistered interests in the old bed of the River Brent and a stretch of the northern bank of the River Thames at and adjacent to Brentford Ait which runs from the mouth of the GUC towards, alongside and away from Brentford Ait. These registration exercises have given rise to considerable controversy that have particularly involved the claimant in both judicial review claims, Mr David DeVere as well as the interested party in the first claim, Mr Nigel Moore, who participated in the renewed applications hearing and a second interested party in that claim who did not participate in them, Mr James Mason.

Mr DeVere seeks permission to apply to set aside both decisions of the registrar. The defendant in both claims is, therefore, the Land Registry which has lodged an acknowledgement of service and summary grounds of defence in both claims but has taken no further part in these judicial reviews.

Mr DeVere, Mr Moore and Mr Mason’s concerns about CRT’s registration as owner of the canal land interest arise from their claimed entitlement to moor their respective craft at separate moorings on the canal, and hence within the canal land, at Point Wharf in the case of Mr DeVere, Workhouse Dock in the case of Mr Moore and Guy’s Wharf in the case of Mr Mason. Mr DeVere also has concerns about PLA’s attempt to register title to the old river land because, he asserts, the basis of his objection to that registration application are the same as, or similar to, his objections to the canal application. He also has concerns about PLA’s apparently unrelated attempt to register ownership of the bank and adjacent land at Brentford Ait because he moved his houseboat from Point Wharf to a mooring point at Waterman’s Park located within the area of land that PLA has applied to register ownership of. He has challenged PLA’s application to register title and that challenge has been the subject of a referral to and a decision of the adjudicator. Mr DeVere seeks to rely on his grounds of challenge in that adjudication since he contends that, if he is successful, he can and should be entitled to prevent BWB and PLA’s canal and old river registrations on those grounds. In short, Mr DeVere is challenging all three applications because, he contends, his grounds of objection to all three applications are inter-related and have essential common features.

It follows that, although the two judicial review claims give rise to limited issues, they cannot be readily resolved without a detailed consideration of Mr DeVere’s many cases against the BWB and the PLA involving the mooring of his houseboat at Point Wharf and its subsequent mooring at Waterman’s Park, Mr Moore’s and his company’s several cases against BWB involving, in the main, his moored houseboat and other moored craft at Workhouse Dock, Mr Mason’s use of moorings at Guy’s Wharf and the mooring claims of a number of individuals including Mr DeVere along the northern bank of the River Thames at Brentford Ait that form part of various objections to PLA’s River Thames application.

The GUC was originally constructed as the Grand Junction Canal pursuant to the Grand Junction Canal Act 1793 ("the 1793 Act"). The preamble to the 1793 Act is as follows:

The Act established the Company of Proprietors of the Grand Junction Canal which was empowered to purchase land and construct the canal which was to "unite with the River Thames at the place where the eastern branch of the River Brent is received by the Thames". This is a reference to the fact that, at that time, the River Brent flowed around and to the south of Brentford in an ox-bow shape, and then divided into two branches at the point where it met the north-western tip of the then town meadow. One such branch flowed into the Thames to the east and the other to the south-east. The original proposal was that the canal should utilise part of the south-eastern branch, but by the time of the passing of the 1793 Act, it had been agreed by all concerned that the relevant part of the canal would be constructed by means of a series of cuts to straighten up the eastern branch.

The two major local landowners whose lands would be affected by the construction of the relevant part of the canal were James Clitherow and Dr Robert Johnson. Section V of the 1793 Act recites that:

On 1 January 1929, the undertaking, property and powers of the Company of Proprietors of the Grand Junction Canal were vested in the Regent’s Canal and Dock Company by statute (Footnote: ²). The Transport Act 1947 vested the undertaking and property of the Regent’s Canal and Dock Company in the British Transport Commission and they were, in turn, vested in the BWB by the Transport Act 1962 and, in turn, they were vested in the CRT (Footnote: ³) on 2 July 2012.

The GUC is largely constructed so that the River Brent was incorporated within the canal over much of its length from its junction with the River Thames to below Osterley Lock. Neighbouring land was acquired by agreement or by use of the promoting Act’s compulsory purchase powers and in some stretches the River Brent was canalised. In one stretch, which is within the first of the registered parcels with which I am concerned, the River Brent was, in effect, by-passed due to its severe bends. That and similar stretches remained in the ownership of the successive companies in whom the canal was vested but, by an agreement reached between the BWB and the PLA on 24 February 2010, that part of the bed of the old River Brent that fell within the first registered parcel – which was accordingly part of the bed of the GUC, was transferred to, and registered as part of, that first parcel whose first registration was applied for by BWB.

It is of considerable significance that it wascommon ground that the area just to the east of the Gauging Lock, known as Bax's Mill, which is beyond the parcel of the canal land that is downstream of it and therefore closer to the GUC's junction with the River Thames, was all to be treated as being tidal. It was also common ground, in the case of tidal parts of the GUC, being a navigable river (and as Mr Moore put it in Moore v BWB, citing ancient texts, "an arm of the sea"), that there is a "public right of navigation" in those canalised and tidal waters (Footnote: ⁴) .

Prior to the mid-19^th Century, the Crown held, or certainly considered that it held, ownership of the tidal stretch of the River Thames and the tidal part of its tributaries other than those parts that it had ceded ownership of. A dispute developed between it and the City of London on this issue leading to proceedings in Chancery in 1844:

“… for the purpose of establishing the Title of Her Majesty in right of Her Crown to the bed and shores of the River Thames within the flux and reflux of the tides and to certain encroachments upon such shores … .”

These proceedings were finally settled in 1856 and the compromise was enshrined first in Articles of Agreement in December 1856 (from which the above-defined purpose of the dispute is taken) in which the bed of the River Thames as above-defined was to be conveyed to the City of London. This essential term of the compromise was given effect to in a Conveyance in February 1857 and confirmed in the Thames Conservatory Act 1857. The bed of the River Thames was passed to the PLA by the Port of London Act 1908 where it remains (Footnote: ⁵). The compromise, conveyance and Private Act did not extend to the canalised sections of the Grand Junction Canal since it appears to have been generally assumed by all parties that they had been acquired by the Proprietors of the Grand Junction Canal Company by virtue of the 1793 Act.

The Four Sets of Disputes

The primary concern of all the objectors that I have referred to is to be able to, or to be able to continue to, moor at mooring points against the bank of the River Thames or of the GUC or the River Brent where it is canalised at points that are located in tidal waters. This wish involves a consideration of the ownership of the river or canal bed and of the riparian bank. It may also involve a consideration of the rights to control the canal, the rights of navigation along those stretches of river or canal and of their control by the navigation authority and of the rights to moor temporarily or permanently in the River or canal. These mooring rights involve the permission or acquiescence or non-objection of the owner or other person entitled to control the relevant craft or occupant of the relevant craft at each of four locations. These are the bed, the foreshore, the bank and the riparian land at the edge of the river or canal. If that control is attempted by someone who cannot show that he, she or it has the relevant proprietorial right or right of control, the occupant of the relevant craft cannot be prevented by that person from navigating or mooring. The river and canal beds, foreshore, bank and riparian land or canal wharfs have, until recent times, remained unregistered and historically mooring has not been controlled in many tidal locations even where such mooring has been unlawful or unauthorised.

BWB and its successor CRT in the GUC and PLA along the River Thames and in the old uncanalised tidal stretches of the River Brent have been attempting to regularise this mooring by using their respective powers of licensing and controlling navigation, registration of title of the waterway beds, foreshores, river and canal sides and riparian banks and resolving disputes as to title and mooring rights allegedly acquired by adverse possession. The two judicial review claims arise out of this process of regularisation as it affects three particular individuals at four separate locations, three in the tidal stretch of the GUC and one in an adjacent location in the River Thames.

BWB and PLA’s title to the canal bed, tidal foreshore and bank of the River Thames and GUC and BWB’s powers to regulate mooring in the GUC in relation to these three individuals have to date been addressed in four different sets of sets of proceedings involving navigation, mooring and proprietorial claims in four separate locations:

A fourth individual, Mr Graham, moored his houseboat for many years adjacent to the mooring occupied by Mr DeVere at Point Wharf and he was a party to the sets of proceedings that Mr DeVere was a party to prior to 2004. He moved his mooring from Point Wharf in April 2004 when required to do so by order of the Brentford County Court (Footnote: ⁶). Save for unsuccessfully applying to register a title by adverse possession at Waterman’s Park at the same time as Mr DeVere sought to register his similar claim in 2008, Mr Graham has not been involved in any of the on-going disputes as to registration, navigation licences or mooring (Footnote: ⁷).

Introduction. Mr DeVere had moored his houseboat since about 1995 at Point Wharf which is located on the north bank of the canal just before it joins the River Thames. Mr Graham had similarly moored his houseboat there since a date prior to 2000. Following a series of court orders, both of them moved their craft away from Point Wharf and the GUC in April 2004 and they have never returned to Point Wharf. Neither of them have ever had any registered interest in the riparian land adjacent to Point Wharf, to Point Wharf itself or to the side of Point Wharf facing and forming the side of the adjacent canal or in the adjacent canal bed or foreshore. Although Mr DeVere has repeatedly asserted that he is the freehold owner of the wharf and its canal-face, an assertion which he appears to make based on his claim that he and his craft were lawfully in possession of its Point Wharf mooring until April 2004, he has never sought to prove the factual or legal basis of that misconceived claim. Instead, throughout the 2000s, he has unsuccessfully attempted to uphold his claimed right to moor his craft permanently against Point Wharf in successive actions brought by him against the BWB or against him by the BWB.

Mr DeVere’s arguments in support of his claim have varied but have been and remain essentially these:

Mr DeVere’s attempts to regularise and re-establish what he perceives to be his mooring rights at Point Wharf have developed into an obsessive campaign and have continued after he was compelled to move his craft away from Point Wharf in April 2004. He immediately relocated it at a mooring at Waterman’s Park on the River Thames and he has unsuccessfully tried to register title to that mooring which he considers to be threatened by PLA’s application to register title to the river bank at Brentford Ait. In summary, Mr DeVere has sought to uphold his perceived mooring claim by a series of what have been judged to be hopeless and misconceived legal arguments in several of the judgments and determinations in these cases and adjudicator’s decisions. These arguments have been tenaciously developed at enormous length with a wealth of historical authority but all of them have been shown to have been totally without merit.

I will only refer to those proceedings which have established his lack of entitlement to moor his craft or which have upheld the right of the BWB to prevent him from mooring against Point Wharf and at Waterman’s Park and to require him to remove his craft from his Point Wharf mooring in the GUC.

Registered title of the adjoining land. Although Mr DeVere has no registered or provable title to any part of Point Wharf, he purported to place his interest in Point Wharf and his residential barge in a trust for his two children as beneficiaries in a declaration of trust dated 31 October 1997 soon after he first moored his houseboat there in about 1995. This trust can only relate to Mr DeVere’s barge since he never has had any proprietorial interest in Point Wharf. He has never registered any interest or produced any documents of title and his claim for adverse possession of Point Wharf was dismissed by an adjudicator (Footnote: ⁸).

Riparian land adjacent to Point Wharf. The freehold title to the land adjacent to Mr DeVere’s mooring point at Point Wharf is registered in the name of Hither Green Developments Ltd (“HGDL”) who acquired it from Hounslow Borough Council in 2000. The registered title expressly excludes the canal wall at Point Wharf.

Mr DeVere’s unlicensed and unauthorised mooring at Point Wharf. Mr DeVere and Mr Graham brought an action in Brentford County Court in 2000 against BWB in relation to its alleged trespass to each of their craft and to a narrow strip of land at the edge of the Wharf wall abutting the canal. BWB counterclaimed for a declaration that it held the title to the canal, the canal bed and the canal wall.

The trial took place on 30 and 31 October 2002. Mr DeVere and Mr Graham abandoned their claims at the outset of the trial. BWB sought and obtained an injunction on its counterclaim requiring Mr DeVere and Mr Graham to remove their respective craft from their moorings at Point Wharf. BWB had claimed and obtained this injunction on the basis that BWB, as the relevant licensing authority, had not granted either of these owners a licence to navigate on the GUC or to moor against Point Wharf. BWB had also sought the removal on the basis that it was the owner of the river bed and that Mr DeVere and Mr Graham were trespassers. Judge Oppenheimer decided that BWB had statutory authority to control both navigation and mooring and granted a removal injunction on that basis. In the light of that decision, he also decided that it was not necessary to hear or decide the claim in trespass and he stayed it indefinitely.

The injunction that was granted by Judge Oppenheimer was set out in an order dated 30 December 2002. It restrained Mr DeVere from mooring or securing his craft on or to any part of the canal, canal bed, canal wall, canal walls abutting the canal and land at Point Wharf and it also required him to remove his houseboat from the same locations within 28 days of the order. Mr DeVere sought from and was refused permission by the Court of Appeal on three separate occasions to appeal this order and also sought from and was refused by Judge Oppenheimer an application for a stay of the order. A further injunction to similar effect was granted by Judge Oppenheimer dated 8 April 2004.

Mr DeVere applied to BWB for a navigational permit on 28 January 2003 which BWB refused and applied for the second time for a permit on 7 December 2003. Before this second application had been decided, Mr DeVere and Mr Graham applied for permission to bring a judicial review claim against BWB to quash its original refusal and to order that a licence should be granted. They were refused permission to bring that claim by the Administrative Court on 23 January 2004 and again on 7 April 2004 following their renewed application to the Administrative Court for permission. The judge refusing the renewed application stated that he agreed with the judge refusing the initial application who had stated that there was no basis for judicial review and that the claim and application were clearly intended to frustrate BWB’s legitimate enforcement of orders of the court.

Following the second refusal of permission by the Administrative Court, Mr DeVere and Mr Graham finally removed their respective craft from their moorings at Point Wharf. They moved their craft onto the River Thames and moored them in an area known as Waterman’s Park which is a few hundred metres away from Point Wharf.

Mr DeVere’s lack of title to the canal bed or Wharf wall. Soon after Mr DeVere and Mr Graham moved their craft to Waterman’s Park, they issued a claim in the Brentford County Court against BWB dated 19 April 2004. Mr DeVere’s claim was based on his alleged title to his mooring place at Point Wharf and on his being in possession of that part of the canal bed and wall at that location. It was also based on his being a trustee of a trust of his interest in Point Wharf that he had set up on 31 October 1997. The claim alleged that BWB was a trespasser by mooring its craft at Point Wharf. It sought an order that BWB should remove the barges it had moored at Point Wharf in the locations where Mr DeVere’s and Mr Graham’s craft had previously been moored. BWB’s moorings had been put in place by BWB so as to block the possibility of Mr DeVere and Mr Graham unlawfully returning their craft to their previous mooring points at Point Wharf.

Following an application by BWB, the district judge struck the claim out in a detailed reserved judgment (Footnote: ⁹) and in an order dated 23 August 2004. Mr DeVere sought, and was refused, permission to appeal the district judge’s order by Judge Oppenheimer on 3 December 2004. District Judge Allen’s detailed judgment that was approved by Judge Oppenheimer found against Mr DeVere on the three-fold basis that:

Following Mr DeVere’s first bankruptcy (Footnote: ¹⁰), he made a second application to Henriques J in the High Court for permission to appeal District Judge Allen’s order but, because of his bankruptcy, Henriques J did not hear the application in June 2005 because his action had been stayed by his bankruptcy. Henriques J was recorded as stating that, had he heard the application, he would have dismissed it because the appeal would have been doomed to fail.

Mr DeVere’s lack of title or possession of Point Wharf or the canal wall. In 2005, Mr DeVere threatened to remove railings placed by BWB on the canal wall at Point Wharf to protect the public from falling into the GUC and to regulate the safe authorised mooring of craft there. He also daubed paint on the canal wall and then claimed that he had possession of the wall by virtue of the paint that he had daubed on it. BWB obtained an interim injunction from Judge Oppenheimer on 15 April 2005 in the Brentford County Court prohibiting Mr DeVere from carrying out his threatened damage to the railings and from any further defacing or painting on the face of the canal wall pending its claim for a permanent injunction in those terms. It also claimed declarations that it had title to the canal bed and canal wall and that Mr DeVere had no title to the canal, canal wall and canal bed. Mr DeVere served a counterclaim against BWB claiming possession of the entirety of the canal bed, canal wall and foreshore land at Point Wharf previously in his possession.

Mr DeVere was then charged with a number of counts of criminal damage to the canal wall caused by his having daubed it with paint. On 26 October 2005, the judge adjourned the hearing of BWB’s claims for a permanent injunction and for declarations as to its title to the canal wall and canal bed and its application to strike out the salient parts of Mr DeVere’s defence and the entirety of his counterclaim as being an abuse of process. This adjournment was granted on Mr DeVere’s application which was based on his submission that the hearing of the civil proceedings would jeopardise his defence to the crown court charges relating to the criminal damage to the canal wall. However, on 28 September 2006, Judge Carew sitting at Isleworth Crown Court adjourned the criminal proceedings sine die on Mr DeVere’s application so as to allow the issues raised by Mr DeVere as to whether or not BWB had title to the canal wall to be resolved in the county court. In February 2007, the adjournment of the criminal proceedings was lifted by a Crown Court judge and the criminal trial was fixed for 25 June 2007.

BWB then applied successfully to the county court to lift the stay and for summary judgment and for striking out orders. A hearing date for the trial of all remaining matters was set for 5 June 2007. Mr DeVere applied on paper for an adjournment of the trial on the grounds that he was on holiday. This application was refused by Judge Oppenheimer and the hearing took place as ordered. Mr DeVere was neither present nor represented at that hearing. BWB decided not to proceed to prove title and withdrew that part of its claims. It proved its entitlement to the other declarations it was seeking and succeeded in its application to strike out Mr DeVere’s counterclaim and the material parts of his defence as being an abuse of process. The basis of Mr DeVere’s defence and counterclaim was that he had possession or title to Point Wharf so that BWB’s actions in causing his and his houseboat’s removal amounted to trespass.

Judge Oppenheimer made a detailed order dated 11 June 2007 whose material provisions were as follows:

“3.

It is declared that [Mr DeVere] is not in possession of the canal, canal wall or canal bed or any part thereof at Point Wharf.

4.

It is declared that [Mr DeVere] has no title to the canal, canal wall or canal bed or any part thereof at Point Wharf.

5.

[Mr DeVere] be forbidden, whether by himself or by instructing or encouraging any other person from painting or interfering with or damaging in any way the canal wall at Point Wharf, Brentford and, in particular, from painting or interfering with or damaging in any way the railings on the canal wall forming a barrier between the pathway on Point Wharf and the channel of the Grand Union Canal.

6.

[BWB’s] claim for a declaration as to its title and for damages be and are hereby stayed.”

Mr DeVere sought permission to appeal that order. Flaux J sitting in the High Court refused his application and stated:

“… the matter was properly and regularly dealt with by HHJ Oppenheimer QC on 5 June 2007 and all grounds of appeal are hopeless.

It is to be noted that the proposed appeal does not seek to attack the substance of HHJ Oppenheimer QC’s decision. This is scarcely surprising since the issues sought to be raised by the defendant in his defence and counterclaim had already been litigated by him and determined against him by a judgment of Allen DJ in the Brentford County Court dated 23 April 2004.

… The subsequent acquittal of [Mr DeVere] on 2 July 2007 in circumstances where the prosecution decided that it was not in the public interest to continue the criminal proceedings and offered no evidence is of no relevance whatsoever to the present application for permission to appeal. The acquittal cannot and does not impugn the validity of the order made by HHJ Oppenheimer QC dated 11 June 2007. Equally the assertion that the order of HHJ Oppenheimer QC and the acquittal in the criminal proceedings are inconsistent with one another is misconceived.”

Mr DeVere asserted at the hearing of the renewed applications for permission that he had not attended the hearing before Judge Oppenheimer because he was prevented from participating in the hearing by the terms of his bail pending his criminal trial and by the general law which prevented him from discussing the subject-matter of that criminal trial whilst it was still pending. However, no such terms of bail had been imposed on Mr DeVere and there is no principle of law which would have forbidden him to participate fully in the hearing before Judge Oppenheimer. His stated reason for non-attendance, recorded by Judge Oppenheimer, was his reported absence on holiday in Australia but that reason was held insufficient for the hearing to be adjourned. Had there been any unfairness or any impediment to his attending the hearing and had the hearing proceeded notwithstanding those difficulties, Mr DeVere could and should have included that as a ground of appeal in his application to Flaux J for permission to appeal Judge Oppenheimer’s order. No such ground was identified and the first time that Mr DeVere suggested that Judge Oppenheimer’s order had been made unfairly because of his inability to attend the hearing due to the forthcoming criminal trial was in his oral submissions at the Administrative Court reconsideration hearing in December 2011.

Flaux J’s refusal decision referred to Mr DeVere’s acquittal on 2 July 2007 in his trial for criminal damage that, as already stated, had previously been fixed for hearing (Footnote: ¹¹). This was a technical acquittal since the prosecution offered no evidence because it was not in the public interest to proceed with the long-delayed trial for criminal damage in circumstances in which the matter had been sufficiently dealt with in the county court and where the costs of proving BWB’s title far outweighed the public benefit of a trial on indictment.

Mr DeVere’s unlicensed and unauthorised mooring and lack of title at Point Wharf. On 2 March 2005, Mr DeVere, despite being an undischarged bankrupt and without the permission of his trustee in bankruptcy, issued a claim in the High Court against BWB that sought:

On 25 June 2008, Mr Jarvis QC sitting as a deputy judge of the High Court ordered that the claim should be struck out on the three-fold basis that:

On 26 June 2008, Mr Jarvis QC, again sitting as a deputy high court judge, imposed an extended civil restraint order on Mr DeVere for a period of two years prohibiting him from issuing claims or applications in the High Court or any county court concerning BWB’s statutory control of the GUC or any matter relating to Point Wharf without first obtaining the consent for such proceedings from a nominated judge of the High Court. In giving judgment explaining why the extended civil restraint order was being imposed, the judge stated:

“In my judgment, this sad saga reveals quite clearly a man who will not take no for an answer. I believe Mr DeVere has an idée fixe that he has a title in some way to the riverbed and the land adjoining it, and whenever a court tells him he is wrong, he will go on and on, as this saga illustrates.

I have also recorded how in order to support his idée fixe, he finds it necessary to make statements to the court which are not true. This then causes time to be wasted by the BWB in refuting these statements and court time has been unnecessarily wasted.

On any basis, I consider Mr DeVere to be a vexatious litigant who has habitually made applications which have no prospect of success. They can be described as doomed to failure, misconceived or hopeless. In short, they should never have been brought. Mr DeVere should have taken no for an answer when he was first told by His Honour Judge Oppenheimer (Footnote: ¹²) and certainly when he was told by Allen DJ (Footnote: ¹³) what the true position was.”

Mr DeVere’s lack of title or possession of Point Wharf or the canal wall. Following his acquittal in July 2007, Mr DeVere returned to Point Wharf and again damaged part of the Wharf by defacing it with paint. He was reported to the police who arrested him and he was charged. He was granted bail and his trial was listed for 9 September 2008. At that trial, the prosecution offered no evidence because it was not in the public interest to proceed and Mr DeVere was acquitted. This decision was no doubt influenced by the fact that the offences with which Mr DeVere was charged were, if proved, a contempt of court and a breach of the order imposed by Judge Oppenheimer in the order dated 11 June 2007.

The breach of the order (Footnote: ¹⁴) resulted in committal proceedings being instituted by BWB which were heard by Judge Oppenheimer in October 2009. The following extract from the adjudicator’s decision dated 29 March 2010 (Footnote: ¹⁵) explains what occurred:

“8.

… [On 3^rd November 2009] Mr DeVere had by that stage been arrested and committed to prison for contempt of court. This followed his breach of a court order made by His Honour Judge Oppenheimer sitting at Brentford County Court on 11^th June 2007. That order related to other proceedings at Brentford County Court the substance of which I do not need to refer to in any detail other than to say that part of that order included declarations that Mr DeVere was not in possession of the Canal wall or the Canal bank or any part thereof at Point Wharf, Brentford and that he had no title to the same. It was further ordered that he be forbidden … from painting or interfering with or damaging in any way the railings on the Canal wall … . Mr DeVere was committed for contempt of that order in that he, and/or persons on his behalf, had been committing the very acts that he had been ordered not to do. The result of his incarceration meant that the hearing [of BWB’s application to register title of the canal land which Mr DeVere was objecting to] had to be adjourned until Mr DeVere was released from prison having purged his contempt before His Honour Judge Oppenheimer.”

The contempt was proved and Mr DeVere spent nearly four weeks in prison for this contempt, before he purged it in November 2009.

Mr DeVere’s lack of adverse possession at Point Wharf. In about 2008, Mr DeVere applied for registration of the land and canal bed and wall over, on and beside which he had moored his houseboat at Point Wharf. He based his application on adverse possession. This application was cancelled as being groundless by the registrar since the acts of possession relied on were clearly insufficient to constitute adverse possession. Mr DeVere filed a judicial review claim seeking to set aside the registrar’s decision that his application was groundless. Permission to apply for judicial review was initially refused by Owen J on 27 July 2010. In doing so, the judge stated in his refusal decision that the registrar’s reasons for refusing to accept the application, namely that the evidence adduced by Mr DeVere to establish his alleged lawful right to possession was patently deficient, were manifestly sound. Moreover, the judge held that the registrar had accurately identified the evidence and the correct legal principles and had reasonably concluded that the claim had not been established. On 11 February 2011, Supperstone J dismissed Mr DeVere’s renewed application for permission for the same reasons as Owen J.

Conclusion – Mr DeVere’s litigation. At the time that Mr DeVere filed the first of these judicial review claims on 1 October 2010, he had already been found to have no registered title or entitlement to register title to the canal side or to any part of Point Wharf. Further, he had been found to have no unregistered interest in the canal side or Point Wharf. He was required by law to obtain a navigation licence and houseboat certificate to moor in the GUC from BWB in order to moor at Point Wharf or to navigate in the GUC and he had applied for and had been lawfully refused both permissions by BWB. Further, he had never been lawfully in possession of a mooring at Point Wharf and had never acquired adverse possession rights there. Moreover, he had not acquired possession by daubing parts of Point Wharf with paint in 2004 or 2007. BWB was entitled to, and did, obtain mandatory orders from the court requiring both him and his craft to vacate Point Wharf and there has never been a finding that BWB has ever trespassed or acted unlawfully in relation to Mr DeVere or his craft.

These various findings have been conclusively determined by the findings made in adverse litigation involving him and the BWB in a combination of findings by the county court, the Queen’s Bench and Chancery divisions of the High Court, the Administrative Court and the adjudicator. The High Court has concluded on several occasions that Mr DeVere’s contentions to the contrary are hopeless and without merit and, following the first of the relevant findings in 2002, were pursued in defiance of conclusive findings against him by a court of competent jurisdiction. The High Court imposed an extended civil restraint order for the maximum period of 2 years in 2008 preventing him from initiating litigation in the High Court or the County Court relating to Mr DeVere’s title or entitlement to moor at any part of Point Wharf.

Mr Mason’s evidence adduced in support of his acknowledgment of service and summary grounds as an interested party in the first claim states that he is a marine engineer who had rented a boatyard at Guy’s Wharf adjacent to Point Wharf and had used the land and moorings at Guy’s Wharf from BWB since at least 1977. His evidence asserts that he executed a new lease with BWB in October 1997 which included agreed highlighted amendments to the plan identifying the parcel of land being leased which were subsequently removed from the copy of the lease held by BWB. He also asserts that BWB has targeted his wharf for a number of years in order to assist the developer of a luxury development adjacent to Guy’s wharf. This targeting, he asserted, appeared to include the encouragement of that developer to instruct builders to trespass onto his wharf and damage or destroy his property. He also alleges that BWB adduced forged evidence and a false statement in support of its original application to register as a first registration the canal land so as to show that part of the proposed site to be registered was owned by BWB when it was not and to show that there were no outstanding disputes as to title to any part of the proposed registration despite there being such disputes. None of these allegations is supported by any evidence, detail or documentation and they are all irrelevant to the first decision and the actual registration of the canal land. This is because BWB has removed from its original application the parcels of land which Mr Mason and Mr DeVere now allege are not owned by BWB and which they allege to have been erroneously evidenced as being in its ownership and the canal land actually registered similarly does not include any of this disputed land.

Mr Mason did not object to BWB’s application to register and did not apply to the adjudicator to become a party to the hearing of the objections to that registration. Moreover, his grounds of defence filed in response to his being joined as an interested party and his two witness statements and skeleton argument served in support of his support of Mr DeVere’s judicial review claim relating to the first decision appear to have been drafted by Mr DeVere. It follows that Mr Mason has not sought to object to BWB’s application to register the canal land with any vigour or enthusiasm.

On this basis, the Court of Appeal determined that BWB did not have the statutory power to serve removal notices requiring the removal by Mr Moore of his vessels that were permanently moored on the bridge land that the Geronimo decision had not dealt with. In consequence, BWB did not seek to rely on its ownership of that land in this case but asserted an entitlement to require the vessels’ removal on the basis of its statutory powers even though, for the purposes of the case, it was accepted that Mr Moore’s vessels "were all within a public navigable river, moored to private riparian property."

Since it lacked the statutory power to serve removal notices, BWB’s removal notices were invalid. The Court of Appeal made it clear that it was not deciding any issue concerning BWB’s title to the canal bed or bank. The decision was a one-off decision that had been shaped by the unusual facts and assumptions on which the finding was based. However, Lewison LJ offered this obiter dictum in his judgment:

“Ownership of the bed depends on what kind of waterway is in question. In tidal waters there is a presumption that the bed is owned by the Crown. Ownership of the bed may of course be transferred; and, in the case of the River Thames, the river bed is now vested in the Port of London Authority. In non-tidal rivers and streams there is a presumption that each riparian owner owns half the bed up to the mid-point between the banks (ad medium filum). It is, in my judgment, important to recognise that in some cases dealing with the rights of riparian owners the owner in question owned not merely the bank but also part of the bed. Plainly a riparian owner who also owns part of the bed is entitled to place structures on the bed or to moor indefinitely a vessel above his part of the bed without committing a trespass. Whether by so doing he creates a nuisance or interferes with public rights of navigation is a wholly separate question.”

There have been two recent developments that Mr Moore contends affect that part of the canal land adjacent to his company’s moorings and leased land and therefore affect the first application and registration that these judicial review claims are concerned with. The first is the granting of an established use certificate in favour of Mr Moore’s company following an appeal held by an Inspector appointed by the Secretary of State. The Inspector’s decision is not being appealed by BWB. That certificate is said by Mr Moore to have relevance to his company’s rights to moor vessels but there has been no argument or evidence in this application and BWB has not had any opportunity to consider this suggestion or present submissions about it.

The second recent development arises out of an application to register title on land which had been included in the original canal land application to register but was subsequently removed from that application and which is currently unregistered. The land is claimed by Mr Moore’s company. This application was apparently referred to an adjudicator who has stayed the proceedings because there is an action proceeding to a hearing in the Chancery Division of the High Court relating to this plot of land. This matter has not been the subject of argument or evidence in this application and BWB has not had any opportunity to consider the suggestion that these developments, which appear to be irrelevant to the present judicial review claim, should affect or be taken into account in this claim.

Conclusion – Mr Moore’s litigation. The High Court has established that BWB owns part of the canal bank falling within the canal land in issue in the first decision. Ownership of the canal bed was not in issue and was not decided but one of the Lord Justices in Moore (No 2) (Footnote: ²⁰) expressed in general terms a persuasive obiter dictum as to ownership of river and canal beds. Mr Moore succeeded in the appeal in Moore (No 2) because no unlawful mooring was relied on by BWB, it wrongly asserted that it could require the removal of any moored craft in this tidal stretch of the canal using its statutory powers whereas it could only use such powers if it proved that the mooring was otherwise unlawful.

The only possible relevance of PLA’s application to first register title to a stretch of the bed and foreshore on the Brentford side of the River Thames is that the plot to be registered includes Mr DeVere’s current mooring at Waterman’s Park and because, so he alleges, his objection to that application, if successful, would provide him with good grounds for showing that BWB’s registration of title to the tidal stretch of the canal bed and canal wall at Point Wharf was in error and unlawful since BWB did not have title to register the plot over and at which he had previously moored his houseboat.

The PLA applied on 1 July 2009 to register a plot described as “part of the bed and foreshore of the River Thames adjoining The Hollows, Brentford between Kew Bridge and Brentford Ait.” On 16 November 2009, PLA applied to register a second plot described as “Foreshore and bed of the River Thames at Waterman’s Park, Brentford: Brentford Ait to the River Brent.” These applications were referred to the adjudicator who decided to hear the dispute raised by 17 objectors including Mr DeVere and Mr Mason in two stages, firstly whether PLA had established documentary title to the land forming the two applications and secondly, if it is held that it can establish such title, whether any of the objectors’ claims defeat that title by adverse possession and/or have any interest in the property.

The first hearing took place between 23 and 25 October 2012 and a decision was promulgated on 27 February 2013. This hearing was contested by Mr DeVere and Mr Mason and a group of three further objectors. Mr DeVere put forward 6 contentions on his and Mr Mason’s behalf. The second group put forward a more limited single contention that was based on the construction of the documents going to the root of title to the effect that the land in issue was not included in the grant to the PLA’s predecessors evidenced by those documents. All contentions of all five objectors were rejected by the adjudicator.

Mr DeVere’s contentions were clearly and helpfully summarised by the adjudicator whose reasoning is a model of both learning and clarity. He found as follows:

Mr DeVere has applied for permission to appeal this decision and his application awaits a decision from a judge of the Chancery Division of the High Court. That application has not yet been determined but it is clear from Mr DeVere’s notice of appeal which he provided to me that the basis of his challenge to the adjudicator’s decision is to the effect that his decision was erroneous on all counts. I am satisfied that this application for permission has so little prospect of success that I can and should hand down this judgment without waiting for its outcome.

The second stage of the adjudicator’s hearing, at which Mr DeVere will be claiming title by adverse possession to his mooring at Waterman’s Park, has yet to take place and no date has yet been set for it. This hearing and the adjudicator’s determination cannot have any relevance to these two judicial reviews.

Conclusion – PLA title to the Thames River bed and foreshore. The adjudicator’s reasoned decision shows that the arguments and contentions as to PLA’s lack of title were put forward by Mr DeVere and dismissed by the adjudicator. He contends that these arguments and contentions apply with equal force to show both PLA and BWB’s lack of title to the tidal parts of the GUC and River Brent. For the same reasons as the adjudicator provided in his determination, they have no validity and are untenable in relation to the application lands that I am concerned with.

The most helpful way of understanding the nature and extent of Mr DeVere and Mr Mason’s objections to the first application and the way that they were dealt with by the registrar and by the adjudicator to whom the dispute was referred is by considering some of the opening paragraphs of the adjudicator’s decision. These read as follows:

“The Application

1.

By an application made in Form FR1 dated 28^th March 2007 (“The Application”) the BWB applied to HM Land Registry to register land and waterway forming part of the Grand Union Canal, Brentford (“the Canal”) identified on the plans attached to the Application as shown edged red. In fact there are fourteen plans attached to the Application. For the purposes of this Application and my Decision I will refer specifically to plans 1, 2 and 3 copies of which are exhibited to the Statutory Declaration of Stuart Christopher Mills made on 30^th March 2007 in support of the Application. …

2.

By letter dated 4^th July 2007 the First Respondent, Mr James Mason, objected to the application on the grounds that the ownership of the BWB did not extend to the full width of the Canal as claimed. By a letter dated 24^th July 2007 the Second Respondent, Mr David DeVere, also objected to the Application and referred to the objection lodged by Mr Mason for the same reasons.

3.

Thereafter, both Mr Mason and Mr DeVere also applied for first registration of parts of the land within the Application made by the BWB such application being based on adverse possession. These applications were, however, cancelled by HM Land Registry on the basis that they were groundless as the acts of user relied upon were not considered sufficient to constitute adverse possession. I should also state that although the objections and the grounds in support made by Mr Mason and Mr DeVere related to the full length of the Canal comprised in the Application, the Registrar completed the registration of other tracts of land which were not in the vicinity of the land claimed by Mr Mason and Mr DeVere. In such circumstances the objections the subject matter of this Decision are confined to the land shown on Plans 1 and 2 and part of the land shown on Plan 3. That part of Plan 3 which has already been registered in favour of the BWB under title number AGL 166963 (Footnote: ²¹) is shown edged and coloured red on Plan 4 which is also included in Annex 1. On Plan 1, I have marked in red hatching the approximate positions of the former moorings where boats owned by Mr Mason and Mr DeVere were originally moored.

4.

On 10^th July 2009 at a case management conference the following directions were inter alia made:-

(10)

That the sole issue the Adjudicator will determine at the final hearing of this reference is that of whether the BWB owns the full width of the Canal as claimed in its Application, or whether it can only own (by reason of the provisions of the Grand Junction Canal Act (“the 1793 Act”) by action of law or by documentary evidence of title) that part of the Canal up to a width of 20 yards as claimed by Mr Mason and Mr DeVere in their objections;

(11)

That in so far as the statements of case, disclosure and witness statements submitted on behalf of Mr Mason and Mr DeVere refer to matters other than the issue identified in sub-paragraph (1) above, the same shall be disregarded by the Adjudicator.

Accordingly at the hearing the BWB contended that the objection of Mr Mason and Mr DeVere to the application in so far as it relates to the issue of principle as to whether the BWB can own that part of the Canal more than 20 yards in width, should be dismissed.

5.

Finally, I should mention that the Application has also been the subject of an objection by the PLA which additionally made its own cross-application for registration. Following negotiations between the parties that objection and cross-application made by the PLA has now been the subject of an agreement made between the Applicant and the PLA, …

9.

In the current proceedings the objections made by Mr Mason and Mr DeVere were initially rejected as groundless by HM Land Registry. These objections, however, were reconsidered by a Land Registrar from another office (the Telford Office) following a complaint made by Mr Mason and Mr DeVere. The reference then made to this jurisdiction was specifically limited to the contention that ownership of the Canal bed, whether by statutory vesting or by conveyance, does not and/or cannot extend beyond a width of more than 20yards. It is for that reason that paragraphs (1) and (2) of the Directions made at the Case Management Conference were made which I must emphasise were made with the consent of both Mr Mason and Mr DeVere. …

The dispute between the BWB and the PLA

35.

In paragraph 5 above I referred to the fact that the Application has also been the subject of an objection by the PLA which additionally made its own cross-application for registration. I stated that following negotiations between the parties that objection and cross-application made by the PLA has now been the subject of an agreement made between the BWB and the PLA. … The correspondence indicates that the two bodies have reached terms as to their respective applications to register parts of the land at Brentford Dock. In particular, the PLA consents to registration of the “transfer land” together with the land the subject matter of this Application (i.e. AGL 166926). Such land forms the remains of the old River Brent lying to the east of the old Thames Lock and the mouth of the River Thames as shown coloured blue on the plan annexed to the TR1.

36.

Mr DeVere has taken issue with this agreement and in effect challenges its efficacy. I consider, however, that this objection has no basis not least because I am not seised of this original dispute – it never having been referred to this jurisdiction. Any objection that Mr DeVere or Mr Mason may have must in my judgment simply fall by the wayside in any event as the sole issue for me to determine is whether the BLB owns the full width of the Canal or is subject to a width limitation of 20 yards.”

The adjudicator, in a fully reasoned decision, decided:

Pursuant to that direction, which is enforceable as if it was an order of the Court, the Land Registry registered BWB’s title as applied for in its amended application pursuant to a decision to register dated 2 July 2010.

Mr DeVere served an application for permission to appeal the adjudicator’s decision. At an oral hearing of that application, Briggs J dismissed the application on 3 April 2012.

The second application by PLA was made in October 2009 and related to an “E-shaped portion of land which formed part of the original bed and foreshore of the River Brent”. Mr DeVere objected and detailed correspondence took place between him and the Land Registry and PLA and the Land Registry about this objection. The objection was rejected by the registrar in a letter dated 6 December 2010. The salient passages of that decision are as follows:

“The PLA has provided a detailed response to your objection. I enclose a copy of the PLA’s letter of 15 July 2010 and copies of the documents enclosed with it.

… The Land Registry is satisfied that the objection is groundless. … This is for the following reasons:

1.

The canalised stretch of the River Brent immediately before it joins the River Thames is no longer the subject of the PLA’s application. I note that the PLA and the BWB have reached agreement as to the ownership of parts of the old River Brent and that the revised application reflects the agreement between them. I also note that in proceedings before the Adjudicator to HM Land Registry earlier this year, you took issue with this agreement and in effect challenged its efficacy. However, the Adjudicator considered that your objection had no basis.

2.

As the PLA rightly point out in their letter of 15 July 2010, title to the bed and foreshore and its tidal tributaries derives from the conveyance dated 24 February 1857 made between (1) Her Majesty Queen Victoria (2) The Honourable Charles Alexander Gore and (3) The Corporation of London. I have carefully considered the evidence that the PLA have supplied (including a transcript copy of the conveyance) and I have no reason to doubt that the conveyance includes what the PLA refer to as the backwater the subject of this application.

3.

The PLA set out in their letter of 15 July 2010 the statutory vesting of the land owned by the Corporation of London following the 1857 conveyance. [The decision then refers to section 50 of the Thames Conservancy Act 1857, section 58 of the Thames Conservancy Act 1894, section 7(1) of the Port of London Act 1908, section 7 of the Port of London (Consolidation) Act 1920 and section 212 and schedule 11 paragraph (e) of the Port of London Act 1968 and continues] By virtue (of these statutory provisions) the land originally conveyed to the Corporation of London 1857 continues to be vested in the PLA. I accept the PLA’s point that neither of these provisions depends for its meaning on any reference to the Thames or the Port of London elsewhere in the Acts in which they appear.

4.

In essence, I accept the argument presented by the PLA and I reject your argument which, in my opinion, has no basis.”

The registrar, in furtherance of this decision, registered the title applied for by PLA.

First judicial review. Mr DeVere’s first judicial review, which seeks to set aside the first decision to register the canal land, relies on the following grounds:

Mr Mason, who was joined as an interested party by Mr DeVere, submitted grounds supporting the judicial review application with the following additional grounds:

Mr Moore, who was also joined as an interested party, supported the claim on the same grounds as those put forward by Mr DeVere.

Second judicial review. Mr DeVere’s second judicial review, which seeks to set aside the second decision to register the old river land, relies on the following grounds:

Summary grounds of defence to both claims. The summary grounds of defence served on behalf of the Land Registry, BWB and PLA essentially assert the correctness of the registrar in registering the second decision and of the inevitable and irresistible duty placed on the registrar to register the first application following the decision and order of the adjudicator.

Further submissions and possible grounds. Further suggested grounds of claim, submissions and evidence were put forward informally in a plethora of post-hearing submissions by Mr DeVere and Mr Moore and these were answered by BWB and PLA. Mr DeVere and Mr Moore’s additional submissions elaborated on their respective grounds documents and sought to add further grounds without any application being made to amend their original grounds documents. I will address all their submissions below.

BWB’s original registration application covered a lengthy stretch of the GUC that started at its junction with the River Thames and went up stream for a considerable distance culminating at the entrance to Osterley Lock. The Land Registry decided to register the application land that was not subject to any objections and to refer the stretch of land covered by Mr DeVere, Mr Mason and Mr Moore’s objections to the adjudicator. Mr Moore did not participate in the ensuing adjudication. At the same time as BWB’s registration application was proceeding, PLA had submitted its application to the old river land and to the Brentford Ait and adjacent river bank land and Mr DeVere had submitted objections which were also referred to the adjudicator. Some of Mr DeVere’s objections to both PLA applications overlapped with each other and with his objections to BWB’s application.

During the hearing of the renewed applications for permission, it became clear that Mr DeVere and Mr Moore were contending that their respective grounds were the same or similar to some of their grounds that they were putting forward, in Mr Moore’s case in the as yet undecided second appeal in the High Court proceedings (Footnote: ²²) and in Mr DeVere’s case in the as yet undecided Brentford Ait adjudication.

I took a case management decision that I would await the relevant decisions of the Court of Appeal and the adjudicator before deciding these applications. I had taken account of the contentions of Mr Stoner QC, acting for both BWB and PLA, that neither of these decisions had any relevance or bearing on the judicial reviews but I considered that it was in conformity with the overriding objective to minimise the use of court resources and the potential costs of litigation if I was able to take account of these two relevant decisions.

The Brentford Ait adjudication was split into two discrete parts (Footnote: ²³) and the only relevant or potentially relevant part was the first part. I have now received copies of the judgment of the Court of Appeal (Footnote: ²⁴), the decision of the adjudicator (Footnote: ²⁵) and of Mr DeVere’s notice of appeal from the adjudicator’s decision (Footnote: ²⁶). I have decided, on receipt of that notice of appeal and on being informed by Mr DeVere that no decision as to his application for permission to appeal had been received some months after the adjudicator’s decision had been promulgated, that I should not await for any further developments and should decide the applications by taking into account, if relevant, the judgments in the Court of Appeal in Moore (No 2) and the decision of the adjudicator in the Brentford Ait adjudication.

The subject-matter of the two judicial reviews is the process of registering title. This process was introduced in the 19^th Century because of the difficulties involved in establishing title to land and the delay and expense involved in establishing title. Registration of title was devised as a system to overcome those problems which provided that the sole evidence of ownership of property would be the entry made on a register. This process has, since 2003, been governed by the Land Registration Act 2002 (“LRA”) and the Land Registration Rules 2003 (“LRR”). The aim of this legislation is that registration of title to land is and will remain conclusive evidence of title.

The land registration scheme provides for first registration of title. This is achieved by an application to the registrar and, in the event of a dispute as to the entitlement to register title, a reference of that dispute to the adjudicator from whose decision there may be an appeal on questions of law to the Chancery Division of the High Court but only with permission which is only granted if the proposed appeal is arguable with reasonable prospects of success. The adjudicator is independent of the Land Registry and is an independent judicial tribunal whose function is to determine disputes as to rights relating to title to land arising between an applicant seeking to register such a right and an objector to that application. The adjudicator’s decisions are binding on the parties and the registrar and are enforceable as a court order (Footnote: ²⁷).

It follows that the registrar, when dealing with a first registration application of the kind that these judicial reviews are concerned with, must decide whether an application complies with the relevant rules which include the provision of all deeds and documents in the possession of the applicant. Whilst registration is still pending, anyone may lodge an objection to that registration whether or not he has an interest of some kind in the estate to which the pending application relates (Footnote: ²⁸). The objection must set out the grounds on which the objection relates and, save where the registrar considers that the objection is groundless, which is “a very low threshold” (Footnote: ²⁹), registration may not take place until the objection has been disposed of. Unless the applicant and the objector can dispose of the objection by agreement, the matter must be referred by the registrar to the adjudicator (Footnote: ³⁰). Unless the adjudicator directs that the matter is to be decided by a court, the adjudicator must decide the matter in dispute adopting the procedure provided for in the applicable LRRs and APPRs and the resulting decision and order must then be served on the parties and the Land Registry. The order may require the registrar to give effect to the original application as if the original objection had not been made and, if that direction is given, the requirement is enforceable as an order of the court (Footnote: ³¹).

An application for first registration must be made in the prescribed form FR1 accompanied by the deeds and documents relating to the applicant’s title in the possession or under the control of the applicant including all necessary copies and abstracts (Footnote: ³²). These documents are to include the root deed and documents of title subsequent to it and all other documents relating to the title. The application must include an assurance that the documents listed on form DL accompanying the application are all those that are within the applicant’s custody or control. The assurance and a list of documents accompanying the application are set out and listed in an accompanying statutory declaration.

The registrar, on receipt of an application for first registration, must consider whether the title deduced to the estate the subject of the application is such that a willing buyer could properly be advised by a competent professional adviser to accept. In applying this statutory test, the registrar may disregard the fact that a person’s title appears to be open to objection if he is of the opinion that the defect will not cause the holding under the title to be disturbed (Footnote: ³³).

Where an application is still pending, an objection may be made by anyone having cause, however that person came to know of the application. The right to make an objection is not unfettered. In order to prevent abuses of the right to object to an application, a person must not exercise that right without reasonable cause, a duty that is owed to any person who suffers damage in consequence of its breach (Footnote: ³⁴). This requirement applies at all stages of the making, consideration and determination of an objection. Moreover, following a referral of an objection to the adjudicator, the adjudicator has the power to prevent hopeless, frivolous, vexatious or abusive applications (Footnote: ³⁵).

On receipt of an objection, the registrar must first consider whether to accept it. If, on this initial consideration of that objection, the registrar considers it to be groundless, which is “a very low threshold”, the registrar should determine the application as if the objection had not been made (Footnote: ³⁶). There is no right of appeal from that decision and the only remedy of an aggrieved objector is by way of judicial review. All other objections must first be notified to the applicant and the application will not be determined unless and until the objection has been withdrawn, settled by agreement between the applicant and the objector or determined by the adjudicator. Initially the parties will be given the opportunity to resolve the objection by agreement, usually with the assistance of the registrar. If, however, agreement is not possible, the “matter” must be referred to the adjudicator for determination (Footnote: ³⁷). Before making the reference, the registrar will prepare a case summary which will be sent to the adjudicator whose purpose is to give the adjudicator brief details of the case being referred and to enable him to determine whether he will hear the case himself or direct one of the parties to start court proceedings (Footnote: ³⁸).

Following the reference, the applicant, in this case the objectors to BWB’s first registration application, must serve on the adjudicator and each of the other parties his statement of case and copies of any documents in his possession which are central to his case and the respondent, in this case BWB, must serve on the adjudicator and all other parties, its own statement of case and copies of any documents in his possession which are central to his case. The adjudicator may then give directions, if necessary after a case management conference or pre-hearing review, to enable the parties to prepare for a hearing to assist the adjudicator to conduct the proceedings or determine any question in the proceedings with or without a hearing (Footnote: ³⁹). The adjudicator will then conduct the hearing and promulgate his determination and order.

The adjudicator may direct that any person should cease to be a party to the proceedings if it appears to him that it is not desirable for that person to remain a party (Footnote: ⁴⁰). In deciding whether to take this step, the adjudicator must apply the overriding objective and the power may be used to prevent the unnecessary incurring of expense in dealing with hopeless objections, to prevent abuse of process or to bring to an end objections which are being pursued for an ulterior purpose and which have no public benefit (Footnote: ⁴¹). Furthermore, he may summarily dispose of the proceedings or any particular issue in the proceedings on an application by a party or of its own motion if the adjudicator considers that the applicant or respondent has no real prospect of succeeding on the proceedings or on the issue and there is no other compelling reason why the proceedings or issue should not be disposed of summarily (Footnote: ⁴²).

An objector will ordinarily be abusing the Land Registry adjudication process if the objection is based on the same ground or raises the same issue as has already been determined between those parties in previous litigation or if the objection amounts to an attempt to re-litigate before an adjudicator matters previously decided by a Land Registry adjudicator or other judicial proceedings. As the assistant adjudicator put it in Cato v Murphy (Footnote: ⁴³):

“… I conclude that the applicant may not pursue her claim to a determined boundary since that would amount to an abuse of process. I accept, of course, that the applicant has the right to make an application to the Land Registry for a determined boundary under section 60 of the Land Registration Act 2002. However, I do not accept that she has a right to pursue that application, once the respondent has objected to it on the justified basis that it is an attempt to re-litigate an issue which cannot be re-litigated.”

(4)

Permissible grounds for judicial review

In relation to a first registration decision by the registrar that the application should be registered or that an objection is groundless, there are only three situations where it is possible to seek to challenge such a decision.

The first is where the registrar decides that an objection to an application to register is groundless and therefore should not be referred to an adjudicator. In this situation, there is no appeal from the decision that the objection is groundless so that, on ordinary judicial review principles, a disgruntled objector may apply to set aside the decision not to refer the objection to an adjudicator. The available grounds of challenge are that the registrar’s decision is unlawful, perverse or so unreasonable that no registrar could have reasonably reached the same decision.

The second is where a decision to register has been taken which was perverse or clearly unlawful and where there had been no possibility of a reference to an adjudicator and there is now no jurisdiction to apply to amend or rectify the register. This situation is one that in practice it is hard to see arising at all. It could only arise if an application had not been objected to and the registration could be seen to have been unlawful or otherwise perverse and the party now complaining of the registration was directly affected by it and had been unaware of the original application, could not be faulted for not being aware of it and objecting before the application was registered and was unable on jurisdictional grounds, to apply to the Land Registry or the court for an order amending or rectifying the registration.

The third is where a registration following an adjudicator’s decision containing a direction to register was nonetheless unlawful. This ground could only arise in very limited circumstances. There is no direct authority in relation to this ground since the present adjudicator process involving the referral of disputes to an independent tribunal is a creature of the LRA and has only been in operation since 2003.

However, there is a direct analogy with the statutory procedure available to enforce the award of an arbitrator which may be enforced by registering it as an order of the court and then enforcing that order as an order of the court (Footnote: ⁴⁴). In such a case, the court can only intervene to prevent or set aside the registration of the award and its subsequent enforcement as an order of the court in an extreme case where the determination or direction of the arbitrator was legally invalid or there was otherwise some real ground for doubting the lawfulness or validity of that direction.

One of the rare possible situations where registration might be refused or set aside is a situation involving a breach of the Human Rights Act where, for example, a person’s right to respect for his private or family life would be unlawfully interfered with by the decision to register in a way that deprived the individual of his home on land or on a houseboat. It is only in very rare circumstances that an article 8 claim of this kind will succeed.

Any application for judicial review in any of these rare situations would have to be made by someone who had standing to bring a judicial review claim who had filed the claim within the very limited timeframe provided for by CPR 54 and the claim was brought on one of the limited grounds and limited remedies available to a court when dealing with an application for judicial review.

It can be seen therefore that the scope for a court to intervene to prevent or set aside a first registration by way of judicial review or one that has been directed by an adjudicator is extremely limited.

Mr DeVere’s bankruptcy. Mr DeVere was made bankrupt on 10 November 2004 and has informed the court that he was automatically discharged from this bankruptcy one year later (Footnote: ⁴⁵). On 19 November 2007, he was made subject to an Individual Voluntary Arrangement (“IVA”). On 8 September 2010, he was made bankrupt on his own petition for a second time and has informed the court that he was automatically discharged one year later.

It clear, therefore, that he was subject to a bankruptcy order when he filed each of these two judicial review claims on 1 October 2010 and 2 March 2011. The effect of a bankruptcy order is to vest, by way of a statutory assignment, the entire property of a bankrupt in the hands of his trustee in bankruptcy. Such property includes any claim or proceedings, including judicial review claims, outstanding county court claims, High Court proceedings of any kind, objections to registration and Land Registry adjudicator references, if the subject-matter of the claim, objection or reference is land in which the bankrupt has an interest or is claiming an interest and which has monetary value.

Any outstanding county court or High Court litigation at the time of any of his bankruptcy orders involving land he had an interest or a claimed interest in would have been assigned to his trustee of that bankruptcy. Once assigned, the claim, reference or litigation remained with the trustee even after his discharge since it was and remained property of a bankrupt so as to remain with the trustee after discharge.

This procedure of automatic assignment would not have applied to any property that formed part of a trust which Mr DeVere was administering as a trustee or any claim in which he had no financial interest and was only pursuing in the public interest..

Thus, neither claim was assigned to his trustee in bankruptcy since each was started after he had been made bankrupt. Mr DeVere informed the court that he had obtained his trustee’s consent in writing to start each claim in his own name before he filed the claim with the court. There is no other evidence of such consent having been given or as to whether any consent that was given was given following a full disclosure of the facts giving rise to his decision to start that claim. I will, however, treat each claim as having been started with the consent of Mr DeVere’s trustee and as therefore being regular despite his having been an undischarged bankrupt when it was started. He was and remains liable for all the costs of both claims since the debt created by each of the costs orders will only have crystallised after his current bankruptcy order was discharged and it therefore falls outside the bankruptcy regime he was subject to.

Historically, the bed and river banks of the tidal parts of the River Thames and the tidal parts of any tributary flowing into the River Thames were owned by the Crown. As it was put in the statutory declaration lodged with PLA’s registration application in the second application leading to the second judicial review:

“The River Brent was a tidal tributary to the River Thames so the freehold title to its bed and foreshore, so far as it was affected by the flow and reflow of the waters of the River Thames, belonged to the Crown.”

The GUC was constructed along the route of the River Brent with certain stretches by-passed or straightened. The construction was made possible by the Grand Junction Canal Act 1793 which authorised the construction of the canal, then called the Grand Junction Canal, linking the River Thames with the Oxford Canal. This Act authorised the use of the river but did not provide expressly for the compulsory acquisition of the riverbed from the Crown. It did authorise the compulsory acquisition of additional land needed to straighten and canalise the mouth of the River Brent and this land and additional land acquired by agreement was conveyed to the Canal Company. However, the Act of 1793, in the language it used and the powers it provided to the proprietors of the Canal Company, had the effect of passing, and has always been taken to have passed, ownership of the canal bed to the proprietors of the Grand Junction Canal and this ownership has devolved by statutory succession directly to BWB (Footnote: ⁴⁶).

In 1857, following a dispute as to title to the tidal stretches of the River Thames and its tidal tributaries between the Crown and the Conservators of the River Thames which was settled by agreement which was followed by a conveyance and which was confirmed by the Thames Conservatory Act 1857, title to these tidal river and canal bed tidal stretches were declared to be held by, were conveyed to and were by statute confirmed to be held by and granted to the Conservators of the River Thames. By statutory succession, the tidal stretches of the River Thames and the old River Brent insofar as it was not incorporated into the GUC but remained as tidal backwaters, were devolved directly to the PLA (Footnote: ⁴⁷).

BWB, in its statutory declaration and supporting documentation for the GUC bed application and the PLA in its statutory declarations and supporting documentation for the old River Brent and River Thames bed and bank applications rely for their respective roots of title on the Acts of 1793 and 1857 and on the respective statutory successions since they are unable to produce a conveyance (other than the conveyance by way of indenture of the River Thames and its non-canalised tributaries). These roots of title and supporting documents were relied on by BWB and PLA in support of the two applications that have led to these two judicial reviews and to the applications to register title in the River Thames applications. They have been accepted by the adjudicator in both the canal and River Thames adjudications and by the registrar in the old river application as establishing title in relation to each of the relevant applications subject only to questions of adverse possession in the River Thames application.

Thus, the starting point for a consideration of both of Mr DeVere’s applications for permission and of Mr Moore’s support of the canal application and his contingent application to replace Mr DeVere as claimant in that judicial review is that:

The only basis for the first judicial review is that the registrar, in giving effect to the decision of the adjudicator, was acting unlawfully or in relation to an invalid direction of the adjudicator. If that registration was not unlawful nor made pursuant to a void or unenforceable direction of the adjudicator, it cannot be attacked in judicial review proceedings because the registration has been directed by an adjudicator in a direction which has to be treated as if it was a judgment of the court, the adjudicator was acting as an independent tribunal with jurisdiction to determine conclusively whether the BWB had title to the canal bed and the registrar had no discretion to go behind the adjudicator’s decision or direction. The only remedy, if the adjudicator’s decision was based on legal error, would have been for Mr DeVere to appeal it to the High Court but the High Court has held that permission to appeal is refused because the proposed appeal has no prospect of success. None of the other grounds of objection put forward in this judicial review have any legal merit and, moreover, they do not amount to a challenge to the jurisdiction or validity of the adjudicator’s decision.

The challenge to the registration decision is made on various grounds that have been set out above. None of them have any validity or provide any basis for an order setting aside the registration. In summary:

It follows that permission will be refused for Mr DeVere to bring the first judicial review on the grounds that it is an abuse of process and has no prospects of success.

Mr Moore’s application to be joined as a claimant is refused since the claim, although not abusive if brought by him, has no prospects of success.

Mr DeVere’s second judicial review is also an abuse of process for the same reasons as his first application. Moreover, it has no prospects of success. His objection to PLA’s application to register its title was groundless for the same reasons as set out for refusing permission for his first application.

Both of Mr DeVere’s applications were both an abuse of process and totally without merit. Mr Moore’s support of Mr DeVere’s first application was without legal basis but is not totally without merit.

I will consider whether to impose a general civil restraint order on Mr DeVere at the handing down hearing.