The attractions of riverside locations should not blind developers to the risk of third party rights. Paul Tonkin explains.
For obvious reasons, developers (particularly residential developers) are attracted to riverside sites. Riverside apartments remain ever popular and the views continue to command substantial premiums. However, whilst the attractions are obvious, developers should bear in mind the special status of riparian land and the often increased risk of third parties scuppering their development plans.
Ownership of the river bed
The presumption of ad medium filum applies to most riverside land. This means that, where there is no evidence of third party ownership, the respective owners of the land abutting the river bank on either side will be presumed to own the river bed up to the halfway point, together with the airspace above it. This can be particularly useful where, as is often the case, title to the riverbed is unregistered. A developer can rely upon the presumption to register title to the river (up to the half-way point) in its own name. This could be important where, for example, it wishes to incorporate the river into its development – for example, by constructing marinas, moorings or even just balconies directly overhanging the river.
Importantly, however, the presumption does not apply to tidal rivers, including large parts of the River Thames. In most cases, it is presumed that ownership is vested in The Crown. In the case of major waterways, statute often intervenes and ownership of the river is vested in a designated regulatory authority. For example, ownership of the Thames is vested in the Port of London Authority. Where any development involves land adjoining a tidal river, the statutory river authority will invariably have to be consulted and licence may be required, for example, to overhang the river.
Third party rights
Tidal rivers are subject to a public right of navigation, meaning that there is a general right for the public to navigate vessels along the river. It is generally accepted that there is no such right in the case of a non-tidal river, where any right to navigate and/or moor up will require the permission of the owner of the riverbed. Where mooring or access to the riverbank is sought, the permission of the bank owner (if different) will also be needed. Nonetheless, it is all too common for developers to discover that the river and the riverbank are being used by third parties, often without any written entitlement to do so. These could range from local people using the river for fishing or recreational purposes, to pleasure boats or even the permanent homes of barge owners moored along the river. Any third party use of the river has the potential to interfere with the developer’s plans, particularly where the third party claims a legal right to continue with their use notwithstanding the developer’s objections. The status of any third party use, therefore, needs to be investigated fully.
Third parties may claim to have acquired easements over the river, such as a right to moor or a right of access, by way of long user (also referred to as prescription). As a general rule, they will need to establish a period of at least 20 years’ use of the river “as of right” (that is, without the owner’s permission). However, an easement can only be created for the benefit of land (the so-called “dominant tenement”) and, therefore, to successfully argue for an easement, the third party will need to identify some land in their ownership which they say benefits from the rights claimed over the river. Where the riverside is owned by the developer, it may be difficult for third parties to satisfy this requirement (in which case they may try to bring an adverse possession claim in parallel – see below).
Town and village greens
Alternatively, it might be claimed that the river and its bank are vulnerable to being registered as a town and village green under the Commons Act 2006. To establish this, it would need to be shown that the river has been enjoyed “as of right” for the purposes of lawful sports and pastimes for at least 20 years by a significant number of the inhabitants of the locality. There is no need to identify any dominant tenement. The requirement for use by a significant number of local people and the limitation to use for sports and pastimes means that uses such as the mooring of private barges for residential use would be unlikely to form the sound basis for a claim. Where it is apparent that the river is being used for community enjoyment without permission then early advice should be taken on what can be done to protect it from potential town and village green registration.
Profit a prendre
A right to extract something from the river (for example, fish) can arise legally as a profit à prendre. Again, these rights can be acquired by long use for at least 20 years and, unlike an easement, they can exist on their own without having to benefit any dominant land. Where it appears that the river is being used for fishing or some other form of extraction then the basis and history of this use should be carefully considered to establish whether there is a risk of rights being claimed.
In addition to claiming rights to use the river, the developer should also be aware of third parties claiming ownership of the riverbank and/or the riverbed. This risk is perhaps most likely to arise where third parties have vessels such as barges moored permanently along the river. The question then arises as to whether the presence of those vessels over a long period without objection can be relied upon to assert ownership by adverse possession.
These issues have been considered by the courts in the recent cases of Port of London Authority v Ashmore  EWCA Civ 30 and Couper and others v Albion Properties Limited and others  EWHC 2993 (Ch). Those cases both concerned claims of adverse possession by barge owners moored on the River Thames in Chelsea. In the Ashmore case, the court considered that it was possible, at least in principle, for a barge floating on the river at high tide and resting on the riverbed at low tide to establish a claim for adverse possession of the riverbed. The Court did not however decide whether a claim had been established on the particular facts of the case.
The Couper case concerned claims of adverse possession of both the riverbed, owned by the Port of London Authority, and the river wall, owned by a developer. In the case of the riverbed, the court held that where there is a public right of navigation over a river, as is the case with the Thames, the river should be regarded as analogous to the public highway. In R (on the application of Smith) v Land Registry (Peterborough Office) & another  EWCA Civ 200 the Court of Appeal had decided that it was not possible to claim adverse possession of the highway. The Court in Couper applied this decision and held that it is not possible to acquire title by adverse possession to any part of the bed of a navigable river. In relation to the river wall, the court found that merely mooring against the wall was not sufficient to found a claim for adverse possession, on the basis that this could be explained by something short of possession, such as an easement right to moor. Whilst the claimants claimed to have used the wall for other purposes, such as storage, those claims were rejected and the claim for adverse possession failed.
The decision in Couper gives some comfort to developers looking to defeat claims of adverse possession over riparian land. However, it is important to bear in mind that the bar on claiming adverse possession will not apply where the river is non-tidal (and, therefore, not subject to a public right of navigation). In those cases the vessel owner’s case will need to be examined on its individual facts.
In conclusion, the existence of unexpected third party rights can potentially scupper any riverside development. The risks can be particularly acute where third parties have a long history of use of the river which has not been adequately regulated. Enquiries should be made at an early stage to ascertain the extent and legal basis of any third party use. Developers should be aware of the possibility that rights may be in the process of being acquired by long user; it may still be possible to prevent them being acquired by bringing the use to an end or ensuring that it is carried out with permission. If in doubt, take early advice.
An earlier version of this article was published in Estates Gazette on 21 March 2015