Michael Davey (instructed by Parkinson Wright LLP ) for the claimant.
Guy Fetherstonhaugh QC and Philip Sissons (instructed by Andrew Jackson Solicitors ) for the defendants/Part 20 claimants.
Jennifer Meech( instructed by Charles Russell LLP ) for the Part 20 defendant.
The claimant brought a claim to determine whether the defendants had infringed the claimant’s fishery rights. The issues for consideration were outlined by the judge at paras 10 to 11 of the judgment. In determining the physical extent of the private fishery, the sub-issue arose as to how what had been described as the doctrine of accretion applied where, as was claimed to have happened in the present case, the foreshore over which the fishery lay had increased in extent by the process of siltation where the siltation had had the effect of joining sandbanks to the foreshore when exposed at low tide.
The claim succeeded. The judge found that the defendants were fishing in the area of the estate fishery on the occasions that the claimant alleged. The judge went on to determine the quantities of cockles the defendants landed as a result of such fishing and the value of to be attributed to the cockles landed. At para 42, the judge stated that he saw no reason in principle for limiting the doctrine of accretion’s application to some types of alteration in the boundary between land and sea and not to others. Aside from the practical difficulties of distinguishing between one type of alteration and another it did not matter that, provided the process of change had been gradual and imperceptible (in the sense that it occurred only slowly and change was not noticeable from one day to the next), the change might result in some natural feature, whether it was a sandbank or a reef, becoming a part of the accreted land. At paras 42 and 51, the judge said that the doctrine of accretion did not exclude from its operation a sandbank which was once always surrounded by the sea, even at the lowest of low tides, and which, by the slow process of siltation of the adjacent channels, had become accessible from the shoreline at low tide.