A Right Royal River? The Crown Estate and the River Thames A historyPART ONE - BACKGROUND 1. In 1961 the Crown Estate Act repealed and consolidated all previous existing Crown lands legislation and forms the definitive legislation that governs the activities of The Crown Estate today. During the passage of the 1961 Bill through Parliament, Lord Lucan was quoted as saying, There is a curious old-world flavour about some of the Bill. It traces the Crown Estate back to the Domesday Book, the Schedule to the Bill repeals part of a Statute of Charles II, and the part about the Crown ownership of the foreshore and the seabed up to the three-mile territorial limit has an old-world ring about it. The Crown Estate today is a modern, forward-looking commercial property company but it is also steeped in nearly 1,000 years of English history, which is one of the reasons it is often considered to be unique. The relationship that The Crown Estate has had with the River Thames in some ways mirrors the long history and evolution of The Crown Estate from the medieval period right through to today and beyond. In this talk I will trace briefly the history of how the Crown came to be regarded as the owner of foreshore, its ownership and management of the River Thames in particular and then tell a few stories about The Crown Estate and the River Thames, which, I hope will illustrate the rather colourful and unusual dealings we have been involved in over the years.
The Crown Estate ownership of foreshore 5. In 1569, at the age of 23, Thomas Digges, astronomer, mathematician, parliamentarian and engineer in charge of Dover docks, first put forward the theory that foreshore remained with the Crown unless it could be shown that following the Norman Conquest there had been an express grant of foreshore by the Sovereign. Thus came about the theory of foreshore ownership by The Crown, and in Digges time the Crown of Elizabeth I. Digges was very much a man of his time and in many ways was not unconventional in his thinking. For example, he had also served in the Netherlands as a muster-master and his remedy for young English social delinquents was to pack them off to fight for Queen and Country in foreign wars. Digges theory concerning ownership of the foreshore was supported in the seventeenth century by the great jurist Sir Matthew Hale and Robert Callis. It was Callis, incidentally, who had also advocated that "Flotsan, Jetsan and Lagan were goods on or in the Sea, which belonged to the King.
Page 1 of 13
Digges theory was resurrected in the nineteenth century, when the land and properties of the Sovereign were transferred to the management of the Commissioners of Woods, Forests and Land Revenues by the Crown Lands Acts 1810 and 1829. His theory was given the highest judicial seal of approval in the case of A-G v Emerson in 1891 when the House of Lords confirmed that the Crown is prima facie the owner of the foreshore. Lord Herschell stated that: "It is beyond dispute that the Crown is prima facie entitled to every part of the foreshore between high and low-water mark, and that a subject can only establish a title to any part of that foreshore, either by proving an express grant thereof from the Crown, or by giving evidence from which such a grant, though not capable of being produced, will be presumed." In other words, its the Crowns unless you can prove otherwise. And just to put this beyond any further doubt, since the Land Registration Act of 2002, The Crown Estate has, for the first time, been able to register its ownership of foreshore at the Land Registry and now has registered title to virtually all its foreshore in England and Wales. What is rather interesting about this is that the land held by the Crown is technically demesne land. In simple terms since the Norman Conquest all the land of England (i.e. the demesne) has been held by the Crown, out of which freeholds have been granted. Demesne land cannot be registered at the Land Registry, so the Queen has first to grant herself a freehold, known as an estate in fee simple, before the land can be registered. So when registering Crown Estate foreshore, each application is accompanied by a certificate noting that the Queen has granted to herself the freehold of the foreshore!
The Crown's right to the territorial sea bed is also beyond dispute and although it has not been judicially decided, Lord Dunpark stated in the case of Crown Estate Commissioners v Fairlie Yacht Slip Ltd in 1977: "the seabed within the territorial limit and the foreshore are ... the property of the Crown
The Crown Estate ownership of The River Thames 9. Until 1197, the Crown would have held all the rights to the River Thames. However, at that time King Richard I was desperate to raise funds for his war against King Phillip of France, having already bled the country dry through taxes to support his crusades and collection of the 150,000 marks ransom required for his release from captivity by the Holy Roman Emperor Henry VI. It is popularly held that as a consequence Richard sold by Royal Charter his rights in the River for 1,500 marks to the Corporation of the City of London to raise funds. It is far from clear, however, that this so called Thames Charter actually sold anything at all. Rather it seems that it was a proclamation at large against weirs in the Thames. Nevertheless, as a result, the Corporation assumed the role of conservators of the river from as far east as Yantlet Creek and as far west as Staines. Today, the London Stones mark the present
Page 2 of 13
limits of jurisdiction of the Corporations modern day successors, the Port of London Authority. 10. Unencumbered navigation of the river remained a matter of Royal concern, however, for in 1350 Edward III passed an Act of Parliament prohibiting the obstruction of the River, a fact that had previously been enshrined in Magna Carta in 1215 and which had echoes of the 1197 Proclamation. Paragraph 33 of the famous Great Charter had stated, All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast. In the ensuing years, a number of Commissions were appointed with conservancy functions to manage various parts of the river but ownership of the river itself remained a moot point. However, the simmering uncertainty engendered by Richards original Charter / Proclamation, finally boiled over nearly 650 years later. In 1844, the Attorney General filed an information in Chancery against the Corporation of London, charging that the Crown was seised of the foreshore and bed of the Thames and that the Corporation, while acknowledged as being conservators, had no estate or interest in the ground and soil of the River. The claim arose following the Corporations proposals to embank the river between London and Vauxhall bridges and specifically the grant of licences by the Corporation to William Cubbitt to embank the river opposite to the Isle of Dogs. Essentially, the Crown advanced the argument that as the Thames was a navigable river it was an arm of the sea and consequently there was a prima facia case that the bed and soil, as far as it ebbed and flowed, belonged to the Crown by virtue of the Royal Prerogative. Mr Serjeant Mereweather on behalf of the Corporation contended that the prima facie claim of the Crown did not exist. He challenged the Attorney General to quote a single case in support of the doctrine, submitting that there was no ground in law for the prerogative right and that it couldnt be maintained. Suffice to say that the Court was not impressed with the Corporations defence and allowed the Crown to press its claim. However, that was by no means the end of the dispute and with neither party being able or willing to lightly toss aside 650 years of history, the case dragged on for a further 13 years. Finally, in 1856, the parties came by a compromise to end the litigation and on 1st March 1857 the Crown sold to the Corporation for 5,000 all its estate and interest in the Thames except in front of, or adjacent to, any Crown property. At the same time the Thames Conservancy Act was passed that created a new body, the Thames Conservators, which took on the relevant rights and powers of the Corporation of London. In addition to the 5,000 consideration, the Crown reserved a one third share of proceeds of any sales or grants of the river that might be made by the Conservators in future years. This overage provision was later bought out by the Conservators successors in title, the Port of London Authority, on 1st January 1913 for 235,000. Apart from the subsequent Embankment works and a few small sales of land, for example at Thurrock, Plumstead and Thamesmead, the Crowns reserved ownership essentially remains to this day as per the 1857 grant.
Page 3 of 13
That said, the precise boundaries of the Crowns ownership have been called into question in recent years. In 1975, the PLA and The Crown Estate concluded a boundary agreement in relation to two tributaries of the Thames, the Channelsea and Roding and in 2009, The Crown Estate received a further payment of 500,000 from the PLA by way of a deed of compromise that resolved for all time the precise extent of the Crown reserves along the river. It had become apparent that the original 1857 definition was unclear as to whether the Crowns land extended only to the mid-point or right across to the other side of the river and the deed confirmed that the mid-point was the agreed line. The total area of the River Thames as measured from the estuary mouth (a straight line across the water from Crow Stone to London Stone) up river to the non-tidal section at Sunbury Well is around 1,080 hectares. The area of Crown Estate owned foreshore a