Supreme Court

Loose v Lynn Shell Fish Ltd and others (Le Strange Meakin, Part 20 defendant) (Crown Estate Comrs intervening)

[2016] UKSC 14

[2016] WLR (D) 181

2016 Feb 9 10; April 13

Lord Neuberger of Abbotsbury PSC, Lord Clarke of Stone-cum-Ebony, Lord Sumption, Lord Carnwath, Lord Hodge JJSC

Fishery — Several fishery — Foreshore — Presumed grant from Crown of private right to take shellfish from foreshore — Dispute between lessee of private fishery and members of the public as to seaward extent of private fishery — Extent of foreshore changing over time as result of shifting sands — Whether doctrine of accretion relevant — Whether private fishery extending to foreshore as it existed — Whether extending to all parts of seabed from time to time exposed at low water — Whether seaward boundary lowest astronomical tide

Facts

An estate adjoining the foreshore on the east side of the Wash owned a private fishery with an exclusive right to take shellfish over part of the foreshore. In 1970 the estate granted a lease of that exclusive right to the claimant. The claimant brought proceedings against the defendants alleging that they had been fishing for cockles in areas of foreshore which were part of the private fishery of which he was the lessee. The defendants accepted that a private fishery had been established by prescription but disputed its extent. In particular, they contended that it did not extend to large sandbanks which had been detached from the foreshore until the channels separating them had silted up; that such sandbanks were not subject to the doctrine of accretion, properly understood; and that, even if they were, it would not follow that the fishery rights had increased commensurately since that would have required a Crown grant and the power of the Crown to make such a grant had been removed by Magna Carta. The judge, however, held that the terms of the grant presumed as a result of the past prescriptive activities was a grant before 1189 of a fishery extending over the whole of the foreshore as it varied from time to time, and accordingly included the sandbanks; that on that basis, the defendants were liable in damages; and that the most practical of the various alternative lines put forward as the defined seaward boundary of the fishery was the mean low water mark of spring tides, rather than extreme low water as contended for by the claimant. The defendants appealed and the claimant cross-appealed. The Court of Appeal dismissed the defendants’ appeal and held that as conditions changed and more or less of the seabed was exposed at low water, the area of the private fishery would expand or shrink, and held, allowing the claimant’s cross-appeal in part, that the fishery extended in law as far as lowest astronomical tide, which was the lowest point to which the tide fell as a result of normal astronomical forces.

On appeal by the defendants—

Held

Held, appeal allowed in part. Since Magna Carta the Crown, as prima facie owner of the seabed and the foreshore, had not been able to grant private rights of fishery which excluded the rights of the public to fish and gather shellfish. A prescriptive right was based on long use, and the quality of the use required in order to establish a prescriptive right was embodied in the expressions “as of right” and nec vi, nec clam, nec precario (ie not secretly, not by force and not with permission). Persons claiming to have acquired a right by prescription had by their conduct to make the landowner aware that a right was being asserted against him and landowner had to choose between warning them off or eventually finding that they had established a right against him. The seaward boundary of the area which was the subject of the estate’s exclusive prescriptive right to take shellfish fluctuated with the passage of time as the low water mark moved. The estate had exercised the right to take shellfish from the foreshore for a substantial period during which the low water mark had fluctuated to a significant extent over time, in circumstances where the evidence clearly established that the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out. In those circumstances it was inevitable in terms of practical reality that the putative right would have been exercised over an area which was defined, or limited, by a shifting low tide mark. Therefore the boundary of the area would have been low water as it was from time to time. The existence of such a fluctuating right would not detrimentally affect any other interests and in particular any public interests. The most satisfactory low water mark to select as the appropriate boundary of the area which was the subject of the right, and the one which produced the least arbitrary result, was the lowest astronomical tide. Accordingly the appeal in respect of the seaward boundary was dismissed. Unlike the seaward boundary which fluctuated gradually, the attachment to the foreshore of previously detached sandbanks would happen at one specific moment. The public would have had the right to take fish and shellfish from such a sandbank at least until the moment when it had become attached to the foreshore. In the absence of specific evidence it could not be assumed that the estate had in fact taken shellfish and excluded the public from doing so, as of right, from sandbanks as they became attached to the foreshore. Up to that moment the public had had a right, which had been exercised for at least the past 150 years, to take shellfish from that sandbank. It was unlikely that local fishermen would have accepted the estate maintaining its exclusive right to fish over former sandbanks which had been subject to a public right to fish when those sandbanks had become attached to the foreshore. The doctrine of accretion applied to a gradual and imperceptible process whereby the boundary of land changed, and therefore it did not apply to a sandbank where it was clear that there was a specific moment in time when it had become attached to the foreshore. Accordingly the estate’s right to fish did not extend to the sandbanks as and when they became attached to the foreshore, and the appeal in respect of the sandbanks was allowed (paras 32, 33, 36, 37, 45 –47, 57, 58, 60, 64, 69–75, 78. 80).

Appellate History

Decision of the Court of Appeal [2014] EWCA Civ 846; [2015] Ch 547; [2015] 2 WLR 643 reversed in part.

Appearances

Guy Fetherstonhaugh QC, Charles Harpum and Philip Sissons (instructed by Andrew Jackson Solicitors, Kingston upon Hull) for the defendants.

Zia Bhaloo QC and Tim Calland (instructed by Charles Russell LLP) for the Part 20 defendant.

Michael Davey QC (instructed by Parkinson Wright LLP, Worcester) for the claimant.

Thomas Braithwaite and Zahler Bryan (instructed by Bond Dickinson) for the Crown Estate Commissioners intervening.

Reported by: Shirani Herbert, Barrister