DRPS Property Ltd v Residential Marine Ltd & Anor [2025] UKFTT 1092 (PC)

[2025] UKFTT 01092 (PC)Case No REF/2024/0163(consolidated with REF/2024/0164)PROPERTY CHAMBER, LAND REGISTRATIONFIRST-TIER TRIBUNALLAND Registration act 2002IN the matter of a reference from hm land registryKey words: ALTERATION – title plan – mapping error – rectification – extent of referred matter
Between
DRPS PROPERTY LtdAPPLICANTRESIDENTIAL MARINE LtdRESPONDENTSAQUARIUS (MEDWAY) LtdRESPONDENTSProperty Addresses: Land Lying to the South West of Vicarage Lane, Hoo & part of the bed of the River Medway, West Hoo Creek, RochesterTitle Numbers: K566427 & TT110881Sitting at: CVP hearingOn: 22 nd, 23 rd, 24 th, and 25 th April, and 6 th and 19 th May 2025 (site inspection 17 th April 2025)Applicant’s Representation: Neil Mendoza (counsel, instructed by Thackray Williams)Respondents’ Representation: Christopher Jacobs (counsel, instructed by Colman Coyle)DECISIONCases referred to:Lord Waterpark v Fennell (1859) 7 HL Cas 650; (1859) 11 ER 259Wallington v Townsend[1939] Ch 588Essex CC v Essex Incorporated Congregational Church Union[1963] AC 808Neilson v Poole (1969) 20 P&CR 909Hamble PC v Haggard[1992] 1 WLR 122Druce v Druce[2003] EWCA Civ 535; [2004] 1 P&CR 26Strachey v Ramage[2008] EWCA Civ 384; [2008] 2 P&CR 8Jayasinghe v Liyanage[2010] EWHC 265 (Ch); [2010] 1 WLR 2106Silkstone v Tatnall[2011] EWCA Civ 801; [2012] 1 WLR 400Stapleford Frog Island (Rainham) Ltd v Port of London Authority[2016] UKFTT 633 (PC)Inhenagwa v Onyeneho[2017] EWHC 1971 (Ch); [2018] 1 P&CR 10Patrick v Thornham PC[2020] UKUT 36 (LC)Yarnold & ors v Ziga & Ors REF/2017/999, 17 th June 2022; LC-2022-327, 20 th July 2022South East Water Ltd v Elster Water Metering Ltd[2025] EWCA Civ 287Suhitharan v Iwaskiewicz[2025] UKUT 144 (LC)Ebanks v Salcombe Road Ltd[2025] UKFTT 924 (PC)Date 14 th August 2025

INTRODUCTION

[1]In June 1667, a Dutch fleet sailed up the River Medway, past the site of the disputed land in this case and nearby Upnor Castle to inflict one of the worst defeats in the Royal Navy’s history. The so-called Raid on the Medway lasted no more than five days. By way of comparison, the final hearing in this case, concerning a small and undeveloped plot of land, currently used for storing shipping containers, lasted six days, in addition to a pre-trial review and a site inspection. Despite the parties’ respective intentions for future use of the land, I have little doubt that this has been a grossly disproportionate exercise.[2]It is only fair to the parties to record that the final hearing, which took place through the cloud video platform, was afflicted by numerous technical difficulties which prolonged the hearing. The parties too must take some responsibility, with frequent interruptions and objections over many minor points all leading to this hearing taking much longer than it should have done.[3]As it is, the fundamental dispute between the parties turns on a relatively simple issue, which is whether some land next to the river was present before the 1960s, such that it was capable of being conveyed to the Applicant’s predecessor-in-title in 1984, which is what the Applicant’s case boils down to, or whether it was created at some time after 1963, and could not be included in the 1984 conveyance, as the Respondents contend. I will explain more of the background in the next section of this decision, but the issue arises in this way.[4]The Applicant is the registered proprietor of the freehold interest in land lying to the south of Vicarage Lane, Hoo. Title was first registered at HM Land Registry in 1984 under title number K566427. Prior to 2009, the land within that title was shown edged red on the title plan like this.[5]Although this is from a low-quality copy, it can be seen that the southern end of the land in the title appears to go up to the water’s edge as it is shown in that plan. With effect from 10th November 2009, a new title plan was prepared based on revisions to Ordnance Survey map data. The relevant part of the plan looks like this.[6]While the shape of the land edged red looks to have remained the same, there is now land between the southern boundary and the river. This can be seen a little more clearly in a side-by-side comparison taken from a letter prepared by solicitors acting for the Applicant, although it must be remembered that these have not necessarily been reproduced at the same scale and so the areas may not be exactly equivalent.[7]The Applicant’s case is that there is a mapping error in the current title plan because the land that they own should be shown as running right up to the water’s edge, based on the 1984 conveyance that the Applicant traces its title back to. Most of that additional land is unregistered, although the very southern tip of it is registered as part of title number TT110881, which belongs to the Second Respondent. This can be seen in the extract below from a MapSearch snapshot.[8]The First Respondent does not own any of the land that is directly affected by the application to alter the Applicant’s title plan, but it does own neighbouring land and is very closely connected to the Second Respondent, sharing some of the same directors, including one who gave evidence before the Tribunal.[9]The parties referred extensively at trial to a plan showing the areas of various freehold plots, taken from HM Land Registry title plans, superimposed on an overhead photograph of the site. The parties did not agree that this necessarily showed the exact positions of all current boundaries (bearing in mind that(a) they are general boundaries, and(b) the difficulty of forcing a title plan boundary to fit real world features in a photograph), but there was general agreement that this was a good indication of the rough locations of the relevant areas of land. I was told that the plan had been prepared by the First Respondent for other proceedings but it was described by the Applicant as “particularly useful”. Part of that plan is shown below, along with the key for ease of reference. Any reader of this judgment who has printed a copy in black and white may wish to refer at this point to an electronic colour copy.[10]I was very helpfully provided with a copy printed on A3-sized paper, but the above extract should be clear enough to identify the key points. The Applicant effectively seeks to extend its purple land up to the dashed blue line representing the mean high water mark. That would take in a large chunk of the unregistered land between the purple, green and red lands, and a small section of the Second Respondent’s red land. In the rest of this judgment, I shall refer to the land that the Applicant seeks to have included within its title as part of an altered titled plan as the “Disputed Land”. I shall refer to the part of the Disputed Land that is not currently registered as the “Unregistered Land” and to the part of TT110881 that falls within the Disputed Land as the “Registered Land”.[11]At the pre-trial review, the Respondents had applied for the case in respect of the Registered Land to be dealt with as a preliminary issue.[12]I had severe reservations over whether hearing that application at the start of the trial would leave enough time to hear all the evidence and argument in the remaining time, in the event that the application was refused (and Mr Jacobs rightly accepted that consideration of the effect on the timetable had to allow for the possibility that his application might not succeed). As it turned out, the parties did not get through all of their evidence in the four days that had been initially allowed, let alone closing submissions, even without the distraction of a preliminary issue at the outset. If that application was to have been pursued, it should have been made well before the final hearing so that the Tribunal could have given directions to allow it to be considered properly.[13]Having heard all the evidence, I very much doubt that there would have been any time saved anyway by dealing with the Registered Land as a preliminary issue even if the Respondents’ application had been successful. The oral evidence frequently dealt with the whole area of the Disputed Land without much distinction being drawn between the areas of the Unregistered Land and the Registered Land.[14]As already indicated, there was a (lengthy) pre-trial review by telephone hearing. I conducted a site inspection in the presence of the parties. I am very grateful to them for showing me around the relevant land and for allowing me access to land owned by all of the parties.[15]The tribunal had been provided with a pre-trial review bundle and four different electronic bundles for the trial material, running to over 3,300 pages, Albeit with considerable duplication. and a smattering of additional documents that were sent in. Heavy reliance was placed on historic photographs of the area. The Tribunal was helpfully provided with a separate hardcopy bundle of some of the photographs. In several instances, the photographs in that form were much clearer than the associated copies in the bundles. Where I have found it useful to include parts of the photographs in this decision, I have for convenience taken them from the electronic copies in the bundles. I can confirm though for the benefit of the parties that I have been able to consider carefully the hardcopies too.[16]The hearing itself was conducted via the cloud video platform. That, as noted above, was not without its difficulties, but with the perseverance and good will of all involved (and a further two hearing days) we were able to eventually get through all the evidence and the Tribunal heard detailed and very skilled submissions from Mr Mendoza for the Applicant and Mr Jacobs for the Respondents.[17]I have had regard to the Practice Direction on reasons for decisions issued by the Senior President of Tribunals, and will attempt to deal with all the key points in this decision, but I can assure the parties that I have had all of the points raised well in mind when considering my decision.

SOME FURTHER BACKGROUND

[18]I have already referred to some of the background in the previous section, but it is necessary to say a little more at this stage.[19]While this case is primarily about what the Applicant’s predecessor-in-title bought in 1984, the background material started in the 19th Century, as the Tribunal was shown parts of the Medway Conservancy Act 1881. Amongst other things, that Act incorporated the Conservators of the River Medway (“the Conservators”). A significant feature of the 1881 Act is that, by s.75, all of the estate, right, title, and interest in the bed, soil, and shores of the River (as defined in s.4) which belonged to either the Mayor, Aldermen and Citizens of the City of Rochester, or the Crown, were to be transferred to the Conservators on or after 25th March 1882.[20]There is another piece of legislation specific to the River Medway which is also potentially significant. That is the Medway Ports Reorganisation Scheme 1968 Confirmation Order 1969 (SI 1969/1045). As the name suggest, that was an order made in 1969 confirming and giving effect to a reorganisation scheme from the previous year. The Order was made by the then Minister of Transport. Part of the effect of that scheme was to transfer land owned by the Conservators to the newly created Medway Ports Authority. So far as material, art.12 of the Order provided as follows. “the interests of the Medway Conservators in all fixed and movable property held or used by them for the purposes of or in connection with the river and the Medway approach area or otherwise (including the interests of the Medway Conservators in the parcels of land delineated and edged red on maps numbers 13 to 129 …) and all rights and liabilities enjoyed or incurred by them for any of those purposes shall be transferred to and vest in the [Medway Ports] Authority.”[21]The relevant map for this dispute is map number 42 (“Map 42”). That map covers a large area and the copies that have been provided are a little difficult to read. The relevant area of Map 42 covering the Disputed Land is reproduced below.[22]The Respondents’ case is that the area now taken up by the Disputed Land was within the land transferred to the Medway Ports Authority. It therefore could not be transferred to the Applicant’s predecessor-in-title in 1984, as the Applicant contends. I understand that there have been various other pieces of legislation dealing with the River Medway and associated ports but it was not suggested that any of those had any bearing on the matters before the Tribunal. The only other matter to note is that at some point the Medway Ports Authority was dissolved and its property transferred to a limited company, now known as Port of Sheerness Ltd. The precise details of those arrangements do not matter for this case.[23]It is perhaps worth briefly noting a licence granted by the Medway Ports Authority to The Tyler Boat Company Ltd in 1971, by which the Authority granted that company permission to carry out works to a wharf and slipway on the foreshore of the River Medway. The Respondents rely on this as demonstrating that the Authority considered itself to be the owner of the bed and foreshore of the river. On behalf of the Applicant, some reliance was placed on the plan attached to this licence. The relevant part looked like this.[24]The dashed and dotted line is marked elsewhere on the plan as “H.W.M.O.T.”, which I was told means “High Water Mark Ordinary Tides”. It can be seen that the land to the east of the existing wharf, in the area of the Disputed Land, is shown as extending significantly further out than in Map 42. That wharf was duly constructed and obviously created a change in the line of the riverbank, as can be clearly seen in the side-by-side comparison of the 1984 and 2009 title plans. The new wharf was constructed well before 1984, but seemingly not reflected in the mapping data used at that time.[25]The Applicant traces its title back to a conveyance dated 27th January 1984, made between Edward St John Brice, Andrew Brice, and Charles Wilfrid Julius Scoble-Hodgins (identified in the deed as “the Vendors” and referred to in these proceedings as the “Brice Trust”), and E W Tyler Trustees Ltd (“the Purchaser”). The land conveyed was described in cl.1 as being “ALL THAT parcel or piece of freehold land situate in the Parish of Hoo in the County of Kent forming part of Hoo Industrial Estate lying to the south east of land belonging to the Purchaser and which abuts on its southernmost part to the River Medway as the same is for the purpose of identification more particularly delineated on the plan annexed hereto and thereon edged red and hatched with red TOGETHER WITH a right of way between the low water mark and the land hereby conveyed between points A and F on the said plan as far as it is in the power or capacity of the Vendors to grant the same”. The annexed plan looked like this.[26]The Applicant’s case in these proceedings, as set out at para.4 of its Statement of Case, is that the “plans attached to the 1984 Conveyance were erroneous, being based on outdated 1967 Ordnance Survey mapping, although they did show the position of the River Medway”.[27]That conveyance contained fencing covenants, requiring the Purchaser to erect a fence between points A and B and the Vendors to erect a fence between points B and C.[28]Following that transfer, the land was registered on 7th March 1984 under title number K566427. It was transferred to John Tyler in 1990. The Applicant subsequently became the registered proprietor.[29]The next significant land transaction after the 1984 transfer was a lease dated 8th August 2000. That lease was made between John Tyler, as Landlord, and the First Respondent, as Tenant, for a term of 20 years. The premises being demised by the lease were identified in the Second Schedule as being “ALL THAT area coloured red on the plan annexed hereto situate and known as Land to the West of the Slipway Hoo Industrial Estate Vicarage Lane Hoo Kent”. The relevant part of the plan is shown below.[30]Through a combination of cl.2(9) and the Third Schedule to the lease, the permitted use was limited to “Use as a quay or such other use as the Landlord shall first approve in writing such approval not to be unreasonably withheld”.[31]In March 2020, Port of Sheerness Ltd transferred a large area of land to the Second Respondent for the sum of £720,000. The relevance to this case is that the eastern end of the transferred land included the tip of the land now claimed by the Applicant, which is the part that I have referred to as the Registered Land. This can be seen in the extract below from the transfer plan.[32]The Second Respondent’s title is registered under title number TT110881.[33]The term of the 2000 lease expired in August 2020. That appears to have led to the dispute between the parties. The present referral to this Tribunal was preceded by county court proceedings brought by the First Respondent against the Applicant and against Mrs Alexander personally. Those proceedings primarily concerned the Unregistered Land. The First Respondent sought injunctive relief requiring the Applicant and Mrs Alexander to restore a fence, a caravan, and two storage lockers to the Unregistered Land, and restraining them from entering the Unregistered Land or harassing anyone associated with or employed by the First Respondent.[34]The First Respondent, as claimant, sought interim relief in those proceedings. That application came before HHJ Parker in the county court at Canterbury in December 2022. I have been provided with an approved transcript of HHJ Parker’s judgment. The learned judge refused the application for interim injunctions. His clear and careful judgment should be read in full, but for present purposes his conclusion can be taken from [77], where he said as follows. “I may ultimately turn out to be incorrect, I am not purporting to make a final decision, but on my analysis of the documents and on the evidence currently available, it seems to me that the [First Respondent’s] claim to have a better right to that land than the [Applicant] is not at all strong. It is certainly not strong enough to make me consider that the balance of convenience suggests I should exclude the [Applicant].”[35]The Applicant applied to HM Land Registry for alteration of the title plan. Both Respondents objected and the matter was referred to this Tribunal.

JURISDICTION

[36]I raised a potential preliminary point with the parties concerning jurisdiction. When I first looked through the trial bundle, I was concerned that I could not find any objection from either Respondent that had dealt with the application insofar as it related to the Unregistered Land. The only objections that I could find related solely to the Registered Land. I asked the parties to check this, and they confirmed that the objections that had been made to HM Land Registry related to the Registered Land only.[37]This caused me a further concern, and I raised a query as to whether this Tribunal was able to deal with the Unregistered Land.[38]Both parties agreed that the Tribunal could, and should, deal with both the Registered Land and the Unregistered Land. Although it is well-established that litigants cannot confer jurisdiction by agreement, I take the view that where both very experienced and knowledgeable counsel are in agreement that there was no jurisdictional issue then it is unwise and unnecessary for the Tribunal to spend much time on the point.[39]I have to say though that I am not entirely convinced that the parties’ shared analysis of the route to jurisdiction is correct.[40]The starting point is Land Registration Act 2002, s.73: “(1) Subject to subsections (2) and (3), anyone may object to an application to the registrar. (2) In the case of an application under section 18, only the person who lodged the caution to which the application relates, or such other person as rules may provide, may object. (3) In the case of an application under section 36, only the person shown in the register as the beneficiary of the notice to which the application relates, or such other person as rules may provide, may object. (4) The right to object under this section is subject to rules. (5) Where an objection is made under this section, the registrar—(a) must give notice of the objection to the applicant, and(b) may not determine the application until the objection has been disposed of. (6) Subsection (5) does not apply if the objection is one which the registrar is satisfied is groundless. (7) If it is not possible to dispose by agreement of an objection to which subsection (5) applies, the registrar must refer the matter to the First-tier Tribunal. (8) Rules may make provision about references under subsection (7).” (a) must give notice of the objection to the applicant, and (b) may not determine the application until the objection has been disposed of.[41]The effect of s.73 is that where an objection is made which is not groundless and cannot be disposed of by agreement, the “matter” is to be referred to this Tribunal. The issue here is what is meant by the “matter”. In this Tribunal, Judge Cooke has commented that this is a “notoriously undefined concept”: Stapleford Frog Island (Rainham) Ltd v Port of London Authority [2016] UKFTT 633 (PC), at [47]. In that case, Judge Cooke considered the authorities of Essex CC v Essex Incorporated Congregational Church Union [1963] AC 808; Jayasinghe v Liyanage [2010] EWHC 265 (Ch); [2010] 1 WLR 2106; and, Silkstone v Tatnall [2011] EWCA Civ 801; [2012] 1 WLR 400.[42]Judge Cooke went on to say in Stapleford that the concept of the “matter” was “undefinable, in the sense that it would probably not be possible to devise a definition that would make sense in every case”. Judge Cooke then explained that the “matter” is not defined by HM Land Registry’s case summary or by the parties’ Statements of Case, before saying this at [50]: “A more constructive approach is to start with the reference before me and to consider what the Tribunal does have jurisdiction to decide and must decide. Unquestionably it must determine what has been referred to it, namely the application for title on the basis of adverse possession and the Respondent’s objection thereto. In doing so, the Tribunal’s jurisdiction undoubtedly ‘includes the determination of the underlying merits of the claim that have provoked the making of the application’, to quote again Rimer LJ’s words in Silkstone. Accordingly the starting point is to consider that application and objection, and then to consider what must be decided in order to decide whether the objection is valid. Equally there may be questions or issues that are ruled out by the nature of that application and objection.[43]Before me, the parties suggested that Judge Cooke’s views had changed by the time of her decision in Patrick v Thornham PC [2020] UKUT 36 (LC). Significantly, Patrick is a decision of the Upper Tribunal and so binding on this Tribunal, unlike the decision in Stapleford.[44]For my part, however, I do not detect much, if any, difference between the discussion on this point in both cases. The learned judge referred to the same authorities: Essex CC, Jayasinghe, and Silkstone. By the time of the decision in Patrick, there were some additional Upper Tribunal decisions available, which dealt with the extent of the Tribunal’s jurisdiction in determined boundary applications. The Upper Tribunal also had the benefit of Morgan J’s judgment in Inhenagwa v Onyeneho [2017] EWHC 1971 (Ch); [2018] 1 P&CR 10, which post-dated the decision in Stapleford. In Inhenagwa, Morgan J had referred to the jurisdiction of the Tribunal at [62], as follows. “The jurisdiction of the adjudicator (and now the First-tier Tribunal) is to determine the issues which go to the merits of the dispute in relation to the matter referred for determination. Prima facie, therefore, the adjudicator or the tribunal should not determine the merits of other disputes between the same parties, even disputes relating to the same registered title, if those disputes are different from the dispute in relation to the matter referred for determination. However, I would qualify that statement as follows. The adjudicator or tribunal may consider that it would be helpful to make findings on certain points where such findings would throw light on the findings which are necessary to determine the dispute in relation to the matter referred for determination.”[45]As Judge Cooke said in Thornham at [44], the Tribunal “must decide, and may only decide, the matter referred to it”.[46]But that still requires the Tribunal to identify what that “matter” is. Judge Cooke’s judgment in Thornham helpfully summarises the effect of Jayasinghe as being that the nature of the matter referred is fact-specific and that the disposal of objections is an integral part of the matter referred (see [41]).[47]The main jurisdictional point in Thornham was whether an applicant who had applied to HM Land Registry for first registration on the basis of paper title could subsequently rely on adverse possession to support their application for first registration.

Judge Cooke dealt with this issue at [54]:

“[I]t has been the practice of the FTT to permit evidence of adverse possession on a reference relating to first registration, where the paper title has been challenged. I have been referred to one decision in which that was done, and I am aware of others. But the question is whether that practice is correct, and the FTT’s own decisions are not authoritative on the point. I take the view that the practice is clearly correct. The application is for first registration. It was made on Form FR1 as is usual, and the evidence provided to the registrar was the paper title. But title to unregistered land is founded ultimately on possession and where a paper title is challenged a landowner has to resort to proof of possession. The idea that he cannot do so in this case because he did not mention adverse possession on his application form - before any challenge was raised - is implausible. What is said to the registrar in an application form does not restrict the parties’ arguments in subsequent litigation. There is no authority for the idea that it restricts the jurisdiction of the FTT. What does confine its jurisdiction is the requirement that it confine itself to the matter referred to it, namely the appellant’s claim for first registration of title to the field, in the manner described in the authorities, particularly Jayasinghe and Silkstone.”
[48]I do not think that this passage provides the answer in the current case as the present parties appeared to think that it did, because Judge Cooke was dealing there with a different situation. It seems to me that there is a possible distinction to be drawn between a case in which an applicant seeks to raise a different way of getting to the same result, (e.g. adverse possession instead of paper title to justify first registration, or possibly even the other way around: see Baggott v Wakefield REF/2024/0373, 14th August 2025, at [63]), and a case in which an objector, having objected to one part only of an application, then sought to add in an objection to a different part of that application.[49]I find some support for that possibility in the decision of Principal Judge Michell in Yarnold & ors v Ziga & Ors REF/2017/999, dated 17th June 2022. The Principal Judge was faced with a situation where the respondents sought to add additional grounds of objection to the application to register leases. He said as follows. “[6] The ‘grounds of objection’ the Respondents seek to add are not objections made to the registrar; the registrar has not had an opportunity to consider whether they are ‘groundless’; the registrar has not given notice of them to the applicants; and they do not and cannot form part of the ‘matter’ referred to the Tribunal for determination. The objections forming part of the ‘matter’ referred to the Tribunal by the registrar are set out in the Case Summaries and summarised in the order of 28th February 2022. The Tribunal cannot extend its jurisdiction by giving permission for the Respondents to raise for consideration in the proceedings grounds of objection that do not form part of the matter referred to the Tribunal by the registrar. “[7] That the Tribunal determines only the ‘matter’ referred to it, being the application and the specific objection or objections referred to it is shown by the terms of the standard order made by the Tribunal (in accordance with Rule 40(2)) where it determines a matter in favour of the person making the application and against the objector, being an order requiring the registrar to give effect to the application ‘as if the objection to that original application had not been made’. An order so phrased does not require the registrar to give effect to an application where there is an objection that has not been referred to the Tribunal.”[50]An application for permission to appeal was refused by the Upper Tribunal: LC-2022-327, dated 20th July 2022. The Deputy President said that “the only issues which the FTT has power to determine are those which have been referred to it by HM Land Registry. If the applicants want to raise additional grounds of objection to the registration of the leases they must do so first with HM Land Registry”. Although this is a decision on an application for permission to appeal and so does not create any precedent, it is nonetheless a decision of the Deputy President, and so worthy of considerable respect, and it accords with this Tribunal’s normal practice.[51]It would be odd though if the Tribunal was bound to direct the Chief Land Registrar to give effect to an application, even if the Tribunal considered that there was an insuperable obstacle to the successful application but it was not one that the objector had identified before the matter was referred to the Tribunal. It might be that the answer to this particular conundrum lies in Judge Cooke’s observation that the nature of the matter is fact-specific and that disposal of objections is an integral part of the matter referred. Here, the substance of the objection now raised in relation to the Unregistered Land is effectively the same as the objection to the application concerning the Registered Land (or, at least, part of that objection as there is an additional point concerning rectification which is raised in relation to the Registered Land but not the Unregistered Land; the point here though is that nothing new or additional is being said about the Unregistered Land).[52]As Rimer LJ said in Silkstone, a “reference … of a ‘matter’ under section 73(7) confers jurisdiction … to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application”, or to put it the way that Judge Cooke did in Stapleford, “the Tribunal is to get to the bottom of the application and objection”. This may mean that, in an appropriate case, the Tribunal can direct cancellation of an application on the basis of something that was not raised as an objection prior to referral to the Tribunal. The Tribunal would, of course, need to ensure that this is done fairly and that the applicant has the opportunity to address the point.[53]Having said that it would be unwise and unnecessary for this Tribunal to spend much time on this particular point, I fear that I may have already spent longer on this issue than is required in this case. For present purposes, it suffices to say that I am willing to accept the shared views of Mr Mendoza and Mr Jacobs that this Tribunal has jurisdiction to consider the Unregistered Land, even though I still have some doubts as to quite how that jurisdiction is established.

THE EVIDENCE

[54]The Tribunal heard evidence from several witnesses over five hearing days. In this section of the decision I shall record some general observations about each of the witnesses who attended to give evidence, and one witness who did not.[55]I discussed the Tribunal’s approach to witness evidence and fact-finding at some length in the recent decision of Ebanks v Salcombe Road Ltd [2025] UKFTT 924 (PC), at [67]-[86]. I shall adopt that same approach here. I hope that I can be forgiven for not lengthening this judgment by repeating the points I made about that approach in Ebanks, save to note what is perhaps the most important point, which is that in determining disputes of fact, the Tribunal applies the civil standard of proof, being the balance of probabilities, or whether something is more likely than not.[56]For the Applicant, the Tribunal heard from Ruth Alexander and Brian Glover. The Tribunal also had statements from John Tyler, although Mr Tyler did not attend to give evidence.[57]Ruth Alexander is a director of the Applicant company. John Tyler is her father and while he had previously dealt with operations in this area, Mrs Alexander explained that she now had day to day conduct of the Applicant’s business and affairs.[58]Although Mrs Alexander had some direct first-hand knowledge of the Disputed Land before recent times, this was very limited and her written evidence was primarily a commentary on various documents and photographs. She explained on several occasions that she was not a map or plans expert. That is understandable and the Tribunal does not expect here to be an expert in that field. In my judgment, however, this refrain was trotted out any time that there was anything difficult or contrary to her case in any of the maps and plans, no matter how obvious the point was on the face of the document and how little expertise was needed to grasp the point, so that I am driven to the conclusion that Mrs Alexander was merely seeking to hide behind her professed lack of expertise when it suited her. All in all, her evidence was not particularly useful being primarily a tendentious commentary on historic correspondence, plans and photographs.[59]Brian Glover had operated a business near to the Disputed Land, although he had since retired. His written statement was very similar to statements that Mr Tyler had given. Mr Glover was clearly surprised when shown the marked similarity between his statement and various statements made by Mr Tyler. Mr Glover remained adamant that his statement contained his words and that he had provided the outline of it in a letter some time before it was turned into a statement. He was not quite sure when this was but thought that it could have been a long time before. If that is correct, then it means that it may even have been before Mr Tyler’s first statutory declaration. I am just about persuaded by Mr Glover that the words in his statement are his own and so his letter must have come first. That has consequences for Mr Tyler’s evidence, as I will come on to.[60]Mr Tyler was not present. The Tribunal was presented with medical evidence explaining his absence. Updated evidence was provided as the hearing went on. The Respondents objected to this, but it is my view that where the Tribunal is being asked to consider the weight to be attached to an absent witness’s statement when the justification for their absence is a medical one, the Tribunal should be able to consider all relevant medical evidence and that, generally speaking, the more up-to-date that evidence is, the more useful it will be in assessing the reason for the absence.[61]Based on that medical evidence, I accept that Mr Tyler could not reasonably be expected to travel from New Zealand to the UK to give his evidence. This hearing was, however, conducted as a video hearing and New Zealand is a country that allows individuals there to voluntarily give evidence by video link in UK proceedings. I have to say that I did not find the medical evidence particularly persuasive as to why Mr Tyler would not have been able to participate via video link. I readily recognise the immediately obvious difficulty of the vast time difference between this country and New Zealand and do not suggest that Mr Tyler should be giving evidence in the middle of the night, but it does not appear that any consideration was given as to whether there was any adjustment that could have been made to facilitate Mr Tyler’s (virtual) attendance. I am nonetheless prepared to assume for present purposes that the combination of Mr Tyler’s medical conditions and his current location meant that he had a good reason for not attending to be cross-examined.[62]His evidence and his absence gave rise to another problem. As I did not hear from Mr Tyler, he could not offer any explanation for the similarity between his statements and Mr Glover’s statement. I recognise that sometimes there are only so many different ways that the same fact can be presented, but the near perfect matches in words and phrasing lead to the inevitable conclusion that one of them must have copied the other. I heard Mr Glover’s explanation which, in the absence of any other explanation, I accept. Accordingly, I am left with the conclusion that Mr Tyler’s statements have been copied from, or strongly based on, Mr Glover’s draft of his evidence. Either way, I am not satisfied that Mr Tyler’s statements represent his own evidence and I give them very little weight.[63]For the Respondents, the Tribunal heard from Andrew Brice, Gerald Jones, Denis Swann, Robert Deards, Martin Hessenthaler, Raymond Rush, and Trevor Thorne.[64]The Respondents’ main witness was Andrew Brice. Mr Brice was born in Hoo in 1938 and brought up there. His grandfather and great grandfather had both been conservators of the river. His family had owned land and ran businesses in the area and he has been closely involved with the area for most of his life, apart from between 1963 and 1974 when he was abroad. He is a former director and secretary of the First Respondent company and still carries out some consultancy work for the Respondents. He was one of the trustees of the Brice Trust and a signatory to the 1984 conveyance.[65]Mr Brice gave evidence over the course of three days in the hearing, starting on the afternoon of the second day, taking up all of the third day, and then continuing for around 40 minutes on the fourth day after another witness had been interposed. It seemed to me that, quite understandably, he found some of this lengthy process rather tiring, particularly during the afternoon of his full day of cross-examination (in fact, although Mr Brice was willing to continue past 4.30pm in an attempt to complete his oral evidence that day, I decided that the hearing should be adjourned for the day because it was not fair to Mr Brice to expect him to continue to give his evidence in those circumstances).[66]I must deal here with one incident that occurred during Mr Brice’s evidence. While he was being asked questions by Mr Jacobs in re-examination, Mr Mendoza objected that the line of questioning showed that there had been communication between the witness and someone else during the course of his evidence. When I made enquiries of Mr Brice, he said that he had not spoken to anyone about his evidence, and had not spoken to Mr Swann at all in that time. I entirely accept his evidence on this point, not least because the line of questioning in re-examination did not yield anything useful, which is a very strong indicator that it was not based on any discussion that Mr Brice had had with anyone else. I understand why in the circumstances Mr Mendoza raised the point as he did, but having heard the evidence it is my judgment that there is no basis for complaint on this ground.[67]It is only right to acknowledge that Mr Brice is not an entirely disinterested witness. He continues to do occasional consultancy work for the Respondents, considered Mr Swann as a friend, and may have wanted to justify his role in earlier dealings related to the Disputed Land. It must also be said that at times Mr Brice’s oral evidence became a little confused and unclear, and he accepted that his recollection of dates may not have been entirely accurate. In my judgment, that is because he was being asked to deal with matters that had happened many years ago (in some instances over 60 years later) and, as I already indicated, clearly found the process somewhat draining. I am quite satisfied that he was an honest witness, doing his best to assist the Tribunal. I still need to consider his evidence quite carefully though, as the passage of time and the circumstances in which his evidence was given both inevitably cast some doubt on the accuracy of all details, but not on Mr Brice’s honesty or integrity.[68]Gerald Jones’s evidence was that he had been engaged by the First Respondent in around 1999 as a contractor to break out some of the dumped concrete.[69]Mr Jones’s oral evidence was interposed during Mr Brice’s prolonged stint in the virtual witness box. Mr Jones was surprisingly confrontational when giving his evidence. I acknowledge that giving evidence can be a stressful ordeal and that people can react to that in different ways, but Mr Jones’s forceful and argumentative approach was surprising and not justified by Mr Mendoza’s cross-examination. I noted that when asked to repeat part of an answer to one question, Mr Jones used that as an opportunity to change his evidence, realising that what he had said the first time did not assist the Respondents’ case. Mr Jones was clearly somewhat confused by the different locations that were referred to and could not give evidence in any particular detail about some aspects of the work that he had undertaken. This was not surprising as the job had been carried out over 25 years ago and he estimated that it had taken under a week and so would not have been particularly memorable.[70]Mr Swann was a most charismatic and entertaining witness. It was readily apparent that he was an expert in nearly anything to do with living and working on and close to the water. In another case he might make for a most persuasive expert witness. As it was, I considered that in this case his evidence on matters of fact was quite unreliable because he had a remarkably cavalier and careless attitude to the accuracy of his witness evidence.[71]By way of example, in his witness statement in these proceedings, Mr Swann referred to an application that had been made for adverse possession of the Unregistered Land and explained that it had been withdrawn because he discovered that the Unregistered Land belonged to the Port Authority and “it would have been easier to simply buy the area from the Port Authority” (see para.18). His position in that statement was also that the First Respondent had been using the Unregistered Land since 2001 (see paras 30 and 31). He confirmed in his oral evidence that they had used that land for 20 years and that the long-term plan was to buy the Unregistered Land.[72]He was asked about a witness statement that he had given in the county court proceedings, dated 5th May 2021. At para.8 of that statement he said that he had been using the land (meaning what I have called the Unregistered Land) for a period of 8½ years and that he intended to stay in possession of it for another 3½ years before applying for possessory title. Those statements are wholly inconsistent with his evidence to the Tribunal. Mr Swann sought to explain this by saying that some things had been taken out of context and that he had not read every single word of that statement. He was most reluctant to accept that his previous evidence had been wrong, even though that was obvious in the light of his current evidence.[73]Mr Swann did not accept that he had not read that statement properly before signing it, insisting that he had read it but that he did not register the point. I cannot accept that evidence. Both these points were so important and, on his current case, so far removed from what he meant to say, that it is simply not plausible that he would not have registered them had he read the statement properly. The innocent answer is that they did not register with him precisely because he did not read the statement properly. The more suspicious answer might be that Mr Swann is prepared to say whatever he thinks best supports his case at any particular time, irrespective of its connection to the truth. I have reflected on this carefully and I think it more likely that the correct explanation is the innocent, but careless, one.[74]I was also directed by Mr Jacobs to an ST1 statement that Mr Swann had given in relation to an application for adverse possession. That included the entirely incorrect statement that the land leased in 2000 now formed part of title K768355, now owned by the First Respondent. I do not think that there was any intent to deliberately mislead but this again demonstrates that Mr Swann simply does not concern himself with ensuring that his statements are accurate.[75]Mr Swann also had a habit of insisting that words meant only what he intended them to mean, even when that was not their normal meaning. A case in point was his unnecessary digression into arguing that the 2000 lease granted the whole road to the tenant, because the plan had not been drawn accurately. When it was pointed out to him that even if that was correct (leaving to one side that on any proper construction of the lease it was plainly not correct) then this could only mean that the demise included some of the road not the whole road, Mr Swann pivoted to arguing that he had only meant that the whole of the width of a section of the road had been included, which was not what he had previously said. This suggests a lack of care with detail and accuracy when it suits Mr Swann and a willingness to seek to exploit any ambiguity in wording, including his own words, when it appears to be to his benefit.[76]For those reasons, I consider that I need to exercise a significant degree of caution with Mr Swann’s evidence.[77]Robert Deards lives nearby and has been engaged in business in the general area for over 50 years. He repairs and maintains sailing barges and has spent many years sailing along this part of the river. Although he agreed that he knew both Mr Swann and Mr Brice, I detected no reason to think that this had affected the truthfulness or accuracy of his evidence. I consider Mr Deards to have been seeking to assist the Tribunal by giving honest evidence.[78]During the course of the hearing, the Respondents sought permission to rely on an extremely late statement from Martin Hessenthaler. Mr Hessenthaler had been a director of Nash, Plant and Vessel, a company that had previously been granted a tenancy by the Applicant. Mrs Alexander had been criticised by the Respondents during cross-examination for not having sought a statement from Mr Hessenthaler. Her explanation was that she thought, wrongly as it turned out, that Mr Hessenthaler had died. Happily for him, she was mistaken about that, but there was no suggestion that it was anything other than an innocent mistake.[79]I must say that I had extreme doubts about admitting this evidence that had been obtained at an extremely late stage. The Respondents had had ample opportunity to seek to obtain evidence from him. I was told that Mr Swann had done so quite some time ago, but that it had since transpired that Mr Hessenthaler had been abroad. I remain concerned that the Respondents had still not done enough to show that they had made sufficient efforts at the appropriate time to justify this extraordinarily late application which had the inevitable consequence of derailing the (already overrunning) trial timetable.[80]On behalf of the Applicants, Mr Mendoza took a very pragmatic approach and did not object to Mr Hessenthaler’s evidence being allowed in, so long as he could recall Mrs Alexander to deal with part of Mr Hessenthaler’s statement, which could be read as making a very serious allegation against her by implication. Once Mr Hessenthaler’s evidence had been heard, it was apparent that there was no need to recall Mrs Alexander, as Mr Hessenthaler’s account in his witness statement had been mistaken. Mr Hessenthaler had criticised a plan attached to a lease in the trial bundle, which he said had not been coloured in accurately and was not “genuine”. He started to backtrack from that line during cross-examination, saying that he firmly believed that some of the land coloured on that particular plan was not part of the land demised to his company, but accepted that he could be mistaken.[81]His evidence though was clear that the company’s copy of the lease had been destroyed some years ago and that he believed that it would not have included the same colouring. Having carefully set the trap, Mr Mendoza then took Mr Hessenthaler to the company’s copy of the lease in the bundle, which had somehow survived, and showed that it included the same colouring, so that not only had the allegation that the other plan’s colouring not been genuine been completely wrong, but it showed that Mr Hessenthaler’s recollection was fundamentally mistaken. He accepted at another point that he may be mistaken and that there were details that he could not remember. In my judgment, Mr Hessenthaler’s recollection was so unreliable that the Tribunal could not safely attach any weight to his evidence. The whole exercise in introducing his statement was an unnecessary diversion caused by the Respondents.[82]Raymond Rush has lived in the area for over 80 years and used to be the commodore of a local sailing club. There was some difficulty during Mr Rush’s evidence as he struggled to hear Mr Mendoza at times. There were some questions that I repeated for him, because it seemed that the audio from my computer was being received rather more clearly (or possibly it was just louder). Although this was not ideal, it meant that Mr Mendoza was able to put all his questions to Mr Rush and the Tribunal was able to take note of Mr Rush’s evidence in response. Mr Rush struck me as an entirely honest witness doing his best to assist the Tribunal.[83]The final witness was Trevor Thorne. Mr Thorne’s father had been a yard manager at the concrete factory. When he was a teenager, Mr Thorne used to visit his father at work. He was another witness who was plainly honest and seeking to assist the Tribunal.[84]Having given those broad overviews, I shall return to material parts of the witness evidence in the next section of this decision.

DISCUSSION & ANALYSIS

[85]Although the parties had prepared a list of 19 issues for determination, their evidence and submissions did not deal with matters in that way. Instead, the focus was on the key issue of whether this land existed prior to 1968. There was a secondary issue concerning the power of rectification if the Tribunal determined that the land had in fact existed and been transferred to the Applicant.[86]It is helpful at this stage to identify some things that are not in issue in this case, so that they can be cleared out of the way. First, the Applicant does not rely on the principles of accretion and diluvian. Its case is that this land has been in existence for over 50 years. Secondly, and connected to that point, the Applicant’s claim that it had title to the Disputed Land is based on the argument that it did not form part of the land that was transferred to the Medway Ports Authority in 1969, but was in the ownership of the Brice Trust. It was not suggested by the Applicant in these proceedings that the Brice Trust had power to transfer any area that fell within the land that had been transferred to the Medway Ports Authority in 1969. This point is worth noting because it appears that the Applicant did submit in the court proceedings that the Brice Trust could have transferred rights over squatted land (see [50]-[52] of HHJ Parker’s judgment), but did not pursue that argument before me.[87]As the Respondents pointed out, this was the Applicant’s application based on an alleged mapping error and so they bore the burden of proof. In other words they had to prove that the Disputed Land had existed by 1968 at the latest, being the date of the transfer scheme. While that is correct as a matter of principle, it does not seem to me that this would ordinarily be a particularly heavy burden. In the normal course of events if land is present now, one would expect it to have also been present yesterday, and the day before that, and the day before that, and so on. Clearly though there are limits as to how far back it is possible to go and simply point to the present-day position as evidence of the historic position.[88]That is because land can, of course, change. That is particularly so in the case of rivers, which is why the law has developed the principles of accretion and diluvian, even if those are not actively in play in this case.[89]In my view, the answer in the current case lies not in the burden of proof, but in the evidence adduced by the Respondents in an effort to positively prove that there has been a change. For reasons that I will seek to explain, I consider that the Respondents are correct and that the Disputed Land only arose from 1963 onwards as a result of, possibly unlawful, tipping out activities at the concrete factory. I am greatly supported in this conclusion by the evidence of Mr Deards, Mr Rush, and Mr Thorne. Their evidence was broadly consistent and explains how the Disputed Land came into existence.[90]The parties put a great deal of effort into, on the Applicant’s side, showing that the Disputed Land has remained a constant feature for some considerable time, and on the Respondents’ side, seeking to show a time when it did not exist and then how it evolved.[91]I have already referred to the potential for riverside land to change, through accretion and diluvian. But more even than that, land by a river changes over the course of a day when it is affected by tides (and those changes can be bigger or smaller across different seasons). So, a side-by-side comparison of two different photographs (for instance) can give the wrong impression unless the inherently changing nature of the landscape is factored in. In this case, the difficulty is heightened by intensive man-made changes over time. As Mr Rush said in his evidence, “many changes have taken place along the riverside from mobile home parks to marinas together with business parks”. There was also evidence of infilling of various areas of the river, having the effect of changing the shape of the river bank. All of these factors combine to complicate the task of tracing the history of the Disputed Land.[92]There are two other points that can conveniently be dealt with at this stage.[93]First, the Applicant placed some reliance on HHJ Parker’s decision. I have read the learned judge’s judgment carefully. That decision was one reached without hearing any evidence and without making any factual findings or determinations. As the judge himself said, he was not “purporting to make a final decision”. The issue before the learned judge was also not the same as the issues before the Tribunal, because he was concerned with whether the First Respondent could show better title to the Unregistered Land than the Applicant, whereas this Tribunal is not concerned with any claim to the Unregistered Land by anyone other than the Applicant, and is also concerned with the Registered Land. Therefore, despite reading the learned judge’s decision with great interest, I consider that this Tribunal has to reach its own decision on the matters in issue.[94]Secondly, there was some suggestion from the Respondents that the words “wharf” and “quay” were used interchangeably, which was said to be relevant when considering plans and conveyancing documents using either of those two words. I do not think that this suggestion was correct or really assisted in the interpretation and understanding of those other documents. In Mr Brice’s oral evidence he accepted that there was a difference between the two, even if he thought that difference only emerged when being pedantic. I note that the 1881 Act defined the word “wharf” as including “any bank, wall or building adjoining the River” (with some exceptions), which was a rather different definition than that adopted by the Respondents. Of course, the definition in the 1881 Act was only for the purposes of that Act, but this rather demonstrates that there are other potential meanings.[95]The Applicant’s case rests primarily on the 1984 conveyance and so I shall now turn to that.[96]The Applicant submitted, with some justification, that the description of the land in the 1984 conveyance (“abuts on its southernmost part to the River Medway”) and the absence of any north-south measurement limiting the land transferred both point to an intention to transfer land running right up to the river.[97]The Applicant also relied on the right of way as supporting this argument too. This was a point that seems to have impressed HHJ Parker, but I respectfully do not think that this provides as much assistance to the Applicant, because the grant of a right of way was recognised by the contracting parties as potentially being limited by the Vendors’ powers to grant such a right and there does not seem to be any reason in principle why this might not refer to a right over any other land in between the conveyed land and the low water mark.[98]There was, however, further support for the Applicant’s position in the form of the fencing covenants. On the Respondents’ construction of the conveyance, the Purchaser was responsible for constructing a fence that was to finish at an unidentified spot, leaving a gap between the end of the fence and the water’s edge. Whilst that is not a completely improbable situation, I agree with Mr Mendoza’s submission that it is a little odd, and the more inherently plausible interpretation is that point A, which was to mark one end of the fence, was meant to be where the river met the land.[99]The Respondent placed some reliance on the definition of “River” in the 1881 Act. I did not find this particularly helpful. First, the 1881 Act was not expressed to be any sort of general interpretative Act. Defined phrases are for the purpose of the Act. Secondly, the conveyance does not appear to seek to incorporate defined phrases from anywhere else. Thirdly, and perhaps most importantly, the definition in s.4 of the 1881 Act establishes the defined phrase “the River” as being “part of the River Medway … all which part of the said River and arms, creeks, streams and indraughts constitute the limits and bounds of the said City of Rochester by water, and are in this Act referred to as and included in the expression ‘the River’”. That merely raises the question as to what constitutes the River Medway, which is used as the basis of the definition of “the River”.[100]The Respondent also relied on evidence given by Mr Brice. He had been one of the signatories to the 1984 conveyance on behalf of the Brice Trust. He gave written and oral evidence about what was meant in that conveyance by the phrase “abuts on its southernmost part to the River Medway”.[101]I did not find that evidence of any assistance. It is well-established that evidence of a party’s subjective understanding is usually inadmissible. A helpful recent statement of this principle can be found in Coulson LJ’s judgment in South East Water Ltd v Elster Water Metering Ltd [2025] EWCA Civ 287, at [28]:
“There have been a number of appeals recently where the lower courts appear to have adopted a generous view of what evidence may be admissible as to the parties’ state of knowledge, …. In my view, the judge in the present case was right to say that evidence of subjective understanding or belief as to what the contract meant is wholly inadmissible and should never have been part of SEW’s witness statements.”
[102]I recognise that evidence is admissible where it is required in order to identify the subject matter of the contract, such as identifying the land that is transferred by a conveyance: see Sir K Lewison, The Interpretation of Contracts, 8th ed., paras 11.06 to 11.13. That does not, however, extend as far as Mr Brice’s evidence:
“The evidence which is admissible is limited to objective evidence of physical features and so on. Direct evidence of subjective intention to convey is not admissible for this purpose.”
The Interpretation of Contracts, para.11.13.[103]This is well-illustrated by the two cases cited on this point in The Interpretation of Contracts. In Lord Waterpark v Fennell (1859) 7 HL Cas 650; (1859) 11 ER 259, it was said that “You cannot indeed show that the words were intended to include a particular piece of land”. Millett J described the judicial process in Hamble PC v Haggard [1992] 1 WLR 122, as follows. “I have to put myself into the shoes of the notional judge visiting the site in 1984 with the conveyance in one hand and gazing about him in order to try to identify on the ground those features which would enable him to ascertain the extent of the churchyard and the whereabouts of the retained land lying between the churchyard and the green strip.”[104]That is what I need to do in this case, coincidentally also going back to 1984, albeit not looking for the extent of a churchyard but of the piece of land “lying to the south east of land belonging to the Purchaser and which abuts on its southernmost part to the River Medway”.[105]There is a further issue with the conveyance, in that it describes the transferred land as being “for the purpose of identification more particularly delineated on the plan”. This is problematic, because where a plan is “for the purpose of identification only” then the verbal description will prevail but where land is “more particularly delineated” on a plan, then that plan will normally prevail over the verbal description: see, e.g., Strachey v Ramage [2008] EWCA Civ 384; [2008] 2 P&CR 8; and, Wallington v Townsend [1939] Ch 588. With a considerable degree of understatement, Megarry J described the use of the two phrases together as “unfortunate” in Neilson v Poole (1969) 20 P&CR 909. In Druce v Druce [2003] EWCA Civ 535; [2004] 1 P&CR 26, Arden LJ said that if both phrases were used it was likely that the verbal description would prevail, but it was a question of interpretation of the particular conveyance. In that case, some significance was attached to the use of the word “only” in “for the purpose of identification only” and it is noticeable that the formulation used in the 1984 conveyance does not include “only”.[106]In my judgment, it does not matter much in this case whether one gives primacy to the verbal description or the plan, or even looks at both together. Putting myself in the shoes of the notional 1984 judge and looking around the area, bearing in mind that all are agreed that the Disputed Land was in existence by that time, I consider that the Applicant’s interpretation of the conveyance is the more plausible one. The most natural reading of the verbal description includes the Disputed Land. Likewise, the plan is most readily understood if the transferred land includes the Disputed Land. It is correct that in that situation it has not been drawn accurately, but it is hand-drawn and a little rough in places. It is noticeable that some dimensions are marked on the plan, but not the measurements of the distance down to the southern boundary. No distance would be needed if the boundary was to include all the land, but a distance would normally be expected if there was to be some land excluded. Similarly, one would expect to see that excluded land shown on the plan. In this regard, without it being binding on this Tribunal, I nonetheless agree entirely with HHJ Parker’s observation that if the relevant land was to run to the shoreline, the parties would not necessarily be concerned to have a plan that showed that curving shoreline with complete accuracy. The learned judge made this point in the context of the plan attached to the 2000 lease, but it also applies to the 1984 conveyance.[107]I therefore reject the Respondents’ argument that the 1984 conveyance was not capable as a matter of construction of including the Disputed Land. I now turn to their more substantial argument, which is that it was not capable of including that land because the Brice Trust did not own it and so could not convey it.[108]This argument rests on the contention that the Disputed Land did not exist before around 1963 and was created after that by the dumping of concrete waste into the river. The Respondents’ point is a relatively simple one. If the area of the Disputed Land was within the river prior to 1969, it was part of the land transferred to the Medway Ports Authority by the 1968 scheme and 1969 Order (which later became land owned by Port of Sheerness Ltd) and the Brice Trust could not have transferred it in 1984.[109]The Respondent also relied on the 1881 Act’s definition of “the River” in relation to the 1968 scheme and the 1969 Order. That is plainly right, so far as it goes, because art.3(1) of the Order defines “river” by reference to s.4 of the 1881 Act. This still, however, runs into the problem that the definition of “River” in that Act requires one to know what is meant by “River Medway”.[110]That takes up back to the alleged concrete dumping. Having read and heard the evidence of Mr Rush, Mr Thorne, and Mr Deards, I am quite satisfied and find as a fact that excess concrete would be washed out of lorries at the concrete factory and tipped into the river. All three were wholly credible witnesses and had no reason to make up evidence. They gave a broadly consistent account. Any such slight differences as there may have been are quite understandable given the significant time that has elapsed since then and helps to show that their evidence has not been co-ordinated.[111]On the available evidence, I am satisfied that the washing out of excess concrete had started by the mid-1960s at the latest. That is because Mr Thorne’s evidence was that he was around the yard where his father worked from the age of 12, which would be 1966. This fits with the evidence of Mr Brice that the concrete plant was established shortly before he left the country in 1963. I am also satisfied that this dumping continued into the 1970s, because that is the period that Mr Deards referred to in his written evidence and Mr Rush referred to in his oral evidence.[112]That does not necessarily mean that this was how the Disputed Land was created. That would require the washed-out concrete to settle on the riverbed rather than, e.g., being washed out to sea or further down the river. In order to assess the possibility that the Disputed Land was made in this way, it is helpful to look at the maps and photographs that are available. I have already raised a note of caution about photographs. It is also necessary to be careful with plans and maps, because their accuracy and effectiveness in identifying the lay of the land at any given time depends on the quality of survey data that was used, the scale that the map was drawn to, and any number of choices made in the process of producing the map in an attempt to create a clear and usable map.[113]The earliest relevant evidence that I was shown was an aerial photograph from 1960. It has been taken from Google Earth and so some current locations and roads have been superimposed, but the contents of the original photograph are reasonably clear.[114]Reminding myself again of all the difficulties in interpreting these sorts of photographs, I consider that this shows a shoreline that is relatively close to the shapes shown in the original title plan for the Applicant’s property.[115]The next photograph is from 1964 and taken from a very different angle, from further along the river looking back towards the relevant area. A red arrow has been added to indicate the Respondents’ wharf, with a pink arrow point to what Mr Brice suggested was a small amount of concrete that had started to develop.[116]The difference in the viewing angle and the quality of this image make it very difficult to draw any conclusions as to any changes between 1960 and 1964, although it is possible that there is more land visible in the later picture. In my judgment, the more important point is that this picture does not show a river bank or shoreline that matches the extent of the Disputed Land now claimed by the Applicant.[117]The next record in time seems to be Map 42. The relevant part of that has already been reproduced above. While recognising that this has been drawn to a scale that does not show a great deal of detail, it is nonetheless clear that it does not show the protrusion of the Disputed Land. It might be open to some doubt as to whether this was an entirely accurate representation as at the date of the scheme or even the confirmation Order the following year, but it was not suggested that the map was significantly out of date.[118]Indeed, that ties in with a problem with part of the Applicant’s complaint. As I recorded at para.26, above, the Applicant contends that there was an error in its 1984 title plan, because that plan was based on “outdated 1967 Ordnance Survey mapping”. What the Applicant conspicuously did not plead, and does not have the evidence to prove in these proceedings, is that the Ordnance Survey mapping was wrong at the time that it was prepared in 1967. Therein lies a significant problem for the Applicant. If that mapping was correct originally then the Disputed Land did not exist at that time as land above the surface of the river.[119]Moving on, the next piece of evidence chronologically speaking is the plan attached to the 1971 licence granted by the Medway Ports Authority. The plan is said to be based on Ordnance Survey mapping data, with hand-drawn additions. The dotted line identifying the mean high water mark extends much further out than the edge of the land as marked on Map 42, or even as would appear to be shown in the 1960 and 1964 photographs. As Mr Jacobs pointed out, there was no evidence to suggest that this plan had been prepared by the Authority and it is probably a reasonable reading of recital (3) to infer that the plan had in fact been prepared by The Tyler Boat Company Ltd as part of its application for a licence. The Authority had, nonetheless, been content to include the plan in the licence agreement and even had it signed. In my judgment, this plan is consistent with the mean high water mark having been pushed towards the south and south east by the land expanding. When considered alongside the earlier photographs and Map 42, it is therefore consistent with and supports the Respondents’ case. It also ties in with the evidence of concrete tipping that the Tribunal heard.[120]The Tribunal was also referred to some photographs from around 1974. It is not necessary to reproduce all of these, but an extract from one of them should suffice.[121]Two points can be made about this photograph. First, there is plainly a far greater area of land to the east of the Respondents’ wharf. It can be seen that this now extends to roughly the level of that wharf, almost creating a continuous line running along the edge of that wharf and over to the new wharf that has been constructed and is shown on the right hand side of the photograph above. Based on the evidence that the Tribunal heard, I am satisfied and find as a fact that this expansion of the land into the river has been caused by concrete being tipped into the water. Secondly, the Tribunal was shown an enlargement of part of this picture and the Respondents suggested that it showed a concrete mixer actively tipping out concrete. I do not accept that, which is no more than speculation based on a still image. I am nonetheless satisfied that tipping out did occur, even if the photographer has not caught the precise moment that it happened.[122]In my judgment, that all supports the evidence of Mr Rush that concrete accumulated in the area of the Disputed Land. It also supports the similar evidence of Mr Thorne. As I understood the written evidence of Mr Deards, he saw concrete being tipped into the river, but did not say anything about it having created a mound of land. In his oral evidence though, he said that there was concrete in the area and I consider that his evidence is also therefore consistent with the evidence of Mr Rush and Mr Thorne and the conclusions that I have drawn above.[123]I have reached these conclusions without relying too heavily on the evidence of Mr Brice, because he could be said to be a not entirely disinterested witness and, by his own account, was out of the country between 1963 and 1974 when the Disputed Land is said by the Respondents to have been created. While he gave evidence of what he found when he returned, the Tribunal would need to be careful with that evidence as there had been other changes to the shoreline in that long period of time. As it is, however, I am satisfied that the other available evidence all corroborates Mr Brice’s evidence and I therefore accept his evidence too.[124]That is not quite the end of the story though, because the Applicant asserts that any dumped concrete was cleared before 1984, probably when the tenancy of the concrete factory site came to an end through a deed of surrender, dated 27th September 1983. There was little written evidence about what clearing was done at that point, but the terms of reinstatement were set out in the deed and included “All concrete to be removed to ground level with the exception of the hopper ramp” and “Broken concrete can be tipped over sea wall as directed by Mr A. Brice in liaison with Mr P.K. Wilson”. As the person identified in one of those terms, Mr Brice was asked about this in cross-examination. Quite understandably, he was rather vague on some of the details of what happened. What he was clear about and remained unshaken on was his evidence that the departing tenant did not clear up concrete that was tipped into the water.[125]On the balance of probabilities, I accept Mr Brice’s evidence on this point. The overhead photograph below, from November 1985, plainly shows a very different riverbank profile to the pictures and plans from the 1960s.[126]That supports Mr Brice’s evidence, which was also consistent with evidence given to the Tribunal that on later occasions Mr Swann arranged to have some of the concrete dug out. The Tribunal heard evidence from Mr Jones who was responsible for carrying out some of that work and was provided with photographs showing work in progress. Although the tone in which Mr Jones gave his evidence was rather surprising and his willingness to change his evidence means that the Tribunal should be cautious before accepting his evidence, I am satisfied from the photographic evidence and the evidence given by the Respondents’ witnesses as a whole that there was digging out of concrete commissioned by Mr Swann.[127]In closing submissions, Mr Mendoza protested that there was very little difference between photographs taken before and after the alleged digging out. The left-hand picture below is from 1999, before the digging out is said to have taken place, while the right-hand picture is from 2007 and so after concrete is claimed to have been dug out.[128]Considerable care needs to be taken with a side-by-side comparison of these photographs. It is not possible to say that they have been reproduced at the same scale, although the extracts above are close. While both look to be at low water, they may not represent exactly the same point in the low and high water cycle. Subject to all the appropriate caveats, I agree with Mr Mendoza that they do not show much difference, but to my eye there is some difference to support the Respondents’ contention of some digging out having taken place. Interestingly, both look to have a smaller landmass in between the two wharfs than the 1985 photograph reproduced above, suggesting that perhaps some other factor has contributed to a reduction in that landmass.[129]Either way, I am quite satisfied that what is left does not match what was there in 1960 and 1964. That is because there was encroachment into the river as a result of concrete being dumped into the water.[130]Although the Applicant’s primary position was that if any concrete had been dumped, it was cleared away well before 1984, the Applicant’s skeleton argument also addressed the possibility that the Tribunal might find that some dumped concrete had remained. “18. Plainly there are factual issues that need to be resolved, but it is to be noted that with the assertion by the Respondents that concrete was dumped from 1963 through to 1974, any such dumped concrete would not have reached the size that they now assert was there in 1984 as of July 1969 (when the 1969 Order came into effect). If concrete was dumped, we do not know how much had been dumped by 1969 and/or how much more was dumped in the following 5 years. “19. Accordingly, if concrete was dumped into the river, all that one can say is that the extent of the land transferred by the 1969 Order is unclear. Where the mean high-water mark of the River Medway was at that point in time is both unknown and undiscoverable. Map 42 …, relied upon by the Respondents, is of no assistance in ascertaining precise boundaries as of July 1969 – on the Respondents’ own case the mass of the dumped concrete changed and the high-water mark of the River Medway may well have moved after July 1969. “20. Further, after July 1969 and even if more concrete had been dumped, the actual boundary would not have moved – the boundary would simply have been located somewhere underneath the dumped concrete and covered up by it.”[131]The difficulty with those submissions is that, once it is accepted (as the Applicant has accepted) that accretion is not relevant, dumping of concrete between 1964 and 1969 did nothing to change the extent of the interests owned by the Conservators in the land shown on Map 42 (and other maps). The surface of some of that land may have become concrete where it was previously water, but it was still land owned by the Conservators, not by whomever owned the adjacent shore that dumping was taking place from, and so was transferred by the effect of the 1969 Order.[132]Having made those findings, I do not think that it is either necessary or helpful to lengthen this decision by dealing in any great detail with the various pieces of post-1984 correspondence that I was referred to. Most of this seemed to me to be equivocal and capable of being read in a way that might support multiple interpretations.[133]I also do not think that the considerable debate about the meaning and effect of the August 2000 lease has any great bearing on the outcome of this case, taking my findings of fact above into account. The plan attached to that lease does not appear to include the Disputed Land, although the plan is roughly drawn. The Applicant’s point is that it should be understood as having included the Disputed land, because the permitted use was as a quay, which would only have been possible if the demised premises included the Disputed Land.[134]The Respondents’ counter-argument to that was that the Disputed Land was never capable of being used as a quay, arguing that this word was synonymous with “wharf”. I have already said that I am unable to accept on the evidence before me that “quay” and “wharf” are necessarily synonymous, although I can accept that some people may use the words interchangeably. One slightly intriguing possibility if those words were used interchangeably is that they could have the meaning given to “wharf” by the 1881 Act, in which case the demised premises would have satisfied that definition irrespective of whether it included the Disputed Land.[135]Even leaving that possibility to one side, I did not derive much assistance from the evidence or argument on this point. There was considerable discussion about the respective intentions of the parties to the 2000 lease, but I rather doubt that any of the evidence of that was admissible for reasons given earlier in relation to the 1984 conveyance. A lot of effort was put into showing that the Disputed Land was or was not used as a quay, which merely serves to raise the further question as to what was meant by using land as a quay.[136]Mr Mendoza submitted quite rightly that the 2000 lease was a document that the Respondents claimed did not mean what it said. There is considerable force in that point. The lease is, however, not very well drafted to cover the demised premises, whether or not they included the Disputed Land. For instance, and purely by way of example, cl.2(14), refers to the “outer wall or roofs” of the demised premises, which is clearly nonsensical. I therefore consider that the Respondents are correct that this was very much a template, “off the shelf”, document which had not been properly tailored to the specific circumstances, and it does not assist this Tribunal in resolving the status of the Disputed Land.[137]In my judgment, the Disputed Land was created as a result of dumping concrete on land that belonged to the Conservators prior to 1969, and was then transferred to the Medway Ports Authority. Accordingly, the Brice Trust did not own the freehold interest in that land and could not transfer such interest in 1984.[138]I can now turn to consider the effect of Land Registration Act 2002, Sch.4, on the Registered Land. Based on my findings of fact, this is purely hypothetical, but I can make some observations on the point here having heard the evidence and arguments.[139]It is plain that this is an application for rectification within the meaning of Sch.4: see para.1 of Sch.4. Paragraph 5(a) confers a power on the registrar to alter the register for the purpose of correcting a mistake. Where the alteration amounts to rectification (as defined by para.1), the power to alter is constrained by para.6. Sub-paragraph (2) of para.6 is particularly relevant here. “(2) No alteration affecting the title of the proprietor of a registered estate in land may be made under paragraph 5 without the proprietor’s consent in relation to land in his possession unless—(a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or(b) it would for any other reason be unjust for the alteration not to be made.” (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made.”[140]There was, quite rightly, no suggestion that this case came within (a), and so the Applicant’s case amounted to an argument under (b) that it would “for any other reason be unjust for the alteration not to be made”.[141]Having heard the evidence, I can consider this argument against the broad sweep of the whole evidence, something that would not have been possible had this been addressed as a preliminary issue. With the benefit of that oversight of the evidence, I am quite satisfied that the Applicant has not shown that it would be unjust not to make the alteration sought. The high point of the Applicant’s case is that it should have been registered as proprietor but there was a mistake. In my view, that is not enough to engage the “some other reason” limb. In nearly every case, an applicant for alteration would be able to say the same thing and it is plain that Parliament required there to be something more.[142]There was also a potential further complication. I pointed out to the parties during the final day of the hearing that the Upper Tribunal had very recently issued a decision on rectification of a mistake. In Suhitharan v Iwaskiewicz [2025] UKUT 144 (LC), the Upper Tribunal had emphasised the importance of identifying precisely what the mistake is, recognising that sometimes there may be two (or even more) mistakes. I think that would be likely to be significant here, as the omission of the Registered Land from the Applicant’s title and its inclusion within the Second Respondent’s title are arguably not “two sides of the same coin” (see [29] of Suhitharan). The Upper Tribunal’s decision was only published three days before the final day of this hearing and the parties were understandably not in a position to argue the point fully and so I shall merely say that, had the Applicant been right about the history of the Disputed Land, this may still have caused them problems so far as the Registered Land is concerned. Particularly as the Applicant’s case in its skeleton argument was that it was “unclear how and why it came to be registered as part of Title No.TT110881”. I think that it is likely than in light ofSuhitharan, rather more than this might be required to establish a mistake. As the parties’ written arguments were prepared without the benefit of the Upper Tribunal’s decision, I would have been inclined to allow the parties an opportunity to make further representations on this point had it been material, but for the reasons already given it is not necessary to reach any definitive conclusion.

CONCLUSION

[143]For the reasons given above, the Chief Land Registrar will be directed to cancel the Applicant’s application.[144]The Respondents have been successful in these proceedings. My preliminary view is that they should be entitled to their costs. The order that accompanies this decision will allow the parties to make written submissions on that provisional view and the question of liability for costs generally. The Tribunal will deal first with the principle of costs and then, if any costs order is made, give directions for the assessment of costs.[145]In closing, I wish to express my gratitude to the parties’ respective solicitors for their preparation of the trial materials and to both counsel for the great assistance that they were able to provide to the Tribunal. Dated this 10th September 2025