Land – Registration – Adverse possession – Appellant appealing against decision of First-tier Tribunal directing first registration of respondent as proprietor of land by adverse possession – Whether application land within area demised in lease surrendered to appellant – Appeal dismissed
An issue arose concerning the ownership of a small triangular sliver of land (the application land) adjacent to Frog Island, Rainham, Essex. Frog Island used to be a peninsula. It was a tongue of land in the angle between the River Thames and Rainham Creek where the Ingrebourne River flowed into the Thames. In about 1980, the Ingrebourne River was dammed at its junction with the River Thames as part of the works ancillary to the installation of the Thames Flood Barrier. Part of the river bed was filled in and a road built across it. The purpose of the infill was to reinforce the dam and to keep the water of the Ingrebourne River away from the dam so as to prevent a build-up of stagnant water.
At that time Frog Island was owned by P which ran a timber and wharfing business from Frog Island and an adjoining wharf. The closure of the creek provided P and the appellant authority with an opportunity to build a causeway over the creek so as to gain vehicular access from Frog Island to the A13 road. It also provided an opportunity to reclaim the land between Frog Island and the dam to provide a storage facility. Between 1986 and 1988, P laid down substantial further quantities of infill on the bed of Rainham Creek and constructed the causeway. The construction was governed by an agreement for a lease and the use of the road and occupation of the storage area by an infill lease, both dated 23 June 1988. Accordingly, after that date, P owned the whole of Frog Island and was the tenant under the infill lease.
In 1988, the appellant granted P a lease of the infill and the causeway. Frog Island comprised two separate adjoining titles (Frog 1 and Frog 2). In 1989, P sold Frog Island and assigned the infill lease to a company which sold Frog 2 to the respondent’s holding company in 1998 and sold Frog 1 to the respondent in 2001. The infill lease was surrendered to the appellant in 2007. The application land comprised part of the infill. An issue arose whether the application land was included as part of that demise.
In May 2014, the respondent applied to HM Land Registry for first registration as proprietor of the application land claiming adverse possession from 1998 by itself and its predecessor in title. The appellant objected to the application which was referred to the First-tier Tribunal (FTT) under section 73(7) of the Land Registration Act 2002. The FTT decided that the lease plan was ambiguous but held that the land demised by the infill lease did not include any part of the application land. Therefore, she directed the Chief Land Registrar to give effect to the respondent’s application. The judge granted the appellant permission to appeal limited to the construction of the infill lease. The order was stayed pending the outcome of the appeal.
Held: The appeal was dismissed.
(1) It was well established that in construing a conveyance, the court had to look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what had been therein been expressed as the intention of the parties. The effect of the conveyance was not determined by evidence of what the parties to it believed it meant, but what, against the relevant objective factual background, they would reasonably have understood it to mean. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when that was being done were permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They included knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach took the court outside the terms of the conveyance, it was part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicted the clear terms of a conveyance was consistent with that approach: Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 applied. Ali v Lane [2007] 1 EGLR 71 considered.
(2) In the present case, the judge’s conclusion that the land demised by the infill lease extended to the foot of the embankment to the north of the causeway and therefore had not included any part of the application land was supported by a number of factors. The definition of the accessway in the infill lease referred to the roadway as constructed at the north-western edge of the premises. Although the causeway as built was not in the position shown in the infill lease plan, the definition of accessway provided that the position of the accessway was shown “for the purpose of identification”. The definition of premises (which incorporated the plan) referred to the land “which has been filled in and reclaimed from the Creek bed …in accordance with [the agreement for lease]”. It was plain from the plan attached to the agreement for lease that the expert evidence at the hearing before the FTT, and its finding that the approved plan did not provide for any infill to the north of the causeway. Consequently, any infill to the north had not been in accordance with the approved plans. There was no agreement in writing evidencing any variation to the approved plan. Furthermore, in agreement with the FTT, there was no point in leasing to P the river bed extending north of the embankment to an arbitrary line and no point in leasing the south-western end of the Ingrebourne River.
Christopher Stone QC (instructed by the Port of London Authority) appealed for the appellant; Duncan Kynoch (instructed by Sanders Solicitors, of Romford) for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Port of London Authority v Stapleford Frog Island (Rainham) Ltd
