Waterman's Park article in RBOA 'Soundings' magazine

Post date: Nov 29, 2016 12:24:39 PM

Waterman’s Park, Brentford

by David DeVere

Some members will be aware of a long-running dispute between the local authority and the boaters at Waterman’s Park, Brentford. Further to legal research carried out by residents, it is very clear that the Port of London Authority cannot own any part of the bed of the Thames, because the Crown was absolutely prohibited from disposing of its land on the bed of the river since 1702 and consequently since 1856/57 the Port of London and its predecessors has only obtained navigational control of the river. David reports as follows:

Apparently I am the only one who has done his research with the ownership issue in dispute back to the Reign of Henry II. That research runs to investigations in the National Archives and the Metropolitan Archives at Farringdon. The archives are stuffed with family tree researchers looking through old deeds and topping up their pensions with research income. One man was examining council drainage officers work books (most odd).

To summarise:

The Crown after the Napoleonic Wars sought to put its administration on a sound footing by tidying up Royal Offices granted over the years.

Lord Liverpool was apparently entitled to income from cargo going through the Pool of London and many of the Crown Offices were hereditary, passed down in families as a nice little earner. Britain was to be put on a national diet to remove the administrative flab.

The City of London had been charging wharf owners for the construction of frontages and levying wharfinger fees as well as renting out mooring points in the stream (much 111cc landing slots at Heathrow). In 1843 the Crown took the City to court and stated that the City had never had ownership of the bed of the Thames and therefore could not charge for constructing works over that bed below High Tide. The Crown stated that the City were merely the navigational authority and had to see to the obstructions in the Thames, with no power to acquire or own the bed through long control. The City naturally stated that because it had long controlled the Thames it had acquired ownership of the bed.

The Information stated,

‘That by the Royal prerogative, the ground and soil of the coasts and shores of the sea around this kingdom, and the ground and soil of every port, haven, and arm of the sea, creek, pool, and navigable river thereof, into which the sea ebbs and flows, and also the shore lying between high-water mark and low-watermark, at ordinary titles, belong to Her Majesty; and Her Majesty has a right of empire or government over the navigable rivers of this kingdom.... and

that the duty of the mayor, bailiff or conservator is, to see to the navigation of the river Thames, and to prevent the erection of obstructions and nuisances in the river, and also to regulate the fishing thereof. And that the mayor did not, in virtue of such office, take, or acquire any estate or interest, in the ground and soil of the bed or shores between high and low water mark,

but that the Corporation have of late claimed, and now claim to be entitled, not only to exercise, by the mayor or his sufficient deputies, the office of bailiff or conservator of the river Thames, but have also claimed, and now claim to be seized of, or otherwise well entitled to, the freehold of the ground, bed, or soil of the river, and of the shores thereof between high and low water mark, within the same limits, in which the mayor exercises the office of bailiff or conservator, and have assumed to exercise.. such acts of ownership over the soil, as are beyond the power and authority of the bailiff and conservator,.., and such as imply that the mayor, commonalty, and citizens are, or claim to be seized of the freehold of the ground and soil of the river between high and low water marks, and they have lately taken upon themselves to make grants to parties possessed of wharfs or lands on the banks of the river, or to such other persons as they think fit, giving them license to embank the strand and soil of the river, arid build thereon, between high and low water mark...

So there it is.

This argument is now used by the PLA some 150 years later. After much negotiation the City and the Crown settled the dispute. After 1856/57 the newly formed body of The Conservators of the River Thames would control the construction and activity on the Thames, take any income from that control and apply it by way of a special Fund for the improvement of the navigation. The Fund was to be kept separate to prevent the City of London from taking the money for its own uses.

One third of the river income from building permits was to be paid over to the Crown. But what the Crown did not do was pass ownership of the Crown’s bed to the Conservators or any of their successors.

It must not be forgotten that much of the Thames bed between High and Low Water had been granted to manorial owners on the banks (for example to the Bishop of London) as the river side land was really no use without ownership of the foreshore lands. The several lords of the manors used the frontages for their own wharves in the days when the roads were impassable and cargo was mainly sent up and down the rivers of the kingdom.

But I digress.

The Thames Conservancy Act could never pass away Crown land to the newly formed Conservators of the River Thames, as the Crown was prohibited by the Crown Lands Act 1702 from disposing of its lands, either by deed or by statute. Parliament put a stop to Queen Anne and her predecessors ‘Selling Off England By The Pound’ (Genesis). The same 1702 Act is in force today and prevents the modern Crown Estate from disposing of Crown assets, save on a lease that will return the land to the Crown after 125 years at most.

Recently the Land at Kensington Palace Gardens Act required the suspension of the 1702 Act in express words to permit the sale of land previously owned by Edward IV near Kensington Gardens to a hotel chain. The legislation further required the Secretary of State to sign off on the sale. The sale of Crown land requires a special act of parliament to be effective and that legislation must specifically suspend or prevent the effect of the 1702 legislative prohibition against disposal.

So neither the Conservators nor their successors, the PLA have ever (by long control or otherwise) obtained freehold or lesser ownership of any part of the bed of the River Thames.

Soundings September/October 2016

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