Where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Consequently, Lynn Shellfish Ltd v Loose [2016] UKSC 14 raised questions about property rights over changing areas of land, the law of prescription and the doctrine of accretion.
The case concerned a private fishery on the west coast of Norfolk. The estate owner and his predecessors in title had prescribed for the exclusive right to take cockles and mussels from the fishery over a period dating back to time immemorial. The estate owner claimed that local fishermen had been fishing within the boundaries of his fishery. The fishermen complained that the estate owner was trying to extend his private fishery into the public fishery. Who was right?
It was clear that the low water line had moved significantly further west, away from the shore, with the passage of time. Had the western boundary of the fishery moved as well? And, if so, which of four low water measurements defined the boundary? There was also a dispute about the eastern boundary. Did it include sandbanks, which were initially separated from the foreshore, but became attached to it when the channels that separated them silted up?
Surprising as it may seem, the concept of a shifting freehold – that is to say, a fluctuating, area of land – is not offensive to any principle of property law, provided that the land in question can be ascertained at any time with reasonable precision. The Supreme Court cited Coke on Littleton in support and also Scratton v Brown (1825) 4 B&C 485 as authority for the proposition that, when it comes to construing a conveyance of, or a deed of grant over, the foreshore, it is a matter of interpretation whether what is conveyed or granted relates to the foreshore at the time of the document, or as it exists from time to time.
If rights over land, the identity of which shifts, can be the subject of an express grant, the court could see no reason why the same principle should not apply to prescriptive rights as well – and it agreed that the western boundary fluctuated with the relevant low water mark. This reflected the reality that the estate owner had almost certainly been collecting shellfish from the entirety of the area left uncovered by the sea. Furthermore, the boundary was to be determined by reference to the lowest astronomical tide, even though this occurs only once every 18.6 years – a tidy solution, encompassing all parts of the foreshore from time to time uncovered by the sea.
However, the Supreme Court decided that the eastern boundary of the estate’s fishery did not include the sandbanks that had become attached to the foreshore. Although the channel had silted up gradually, the sandbanks had become attached to the foreshore at an instant in time and the public had had the right to take shellfish from them until then. This thinking also meant that the doctrine of accretion did not apply. Accretion is concerned with gradual and imperceptible changes in a boundary – and the attachment of the sandbanks to the foreshore had triggered a substantial and recognisable change in the eastern boundary, which did not operate to confer title by accretion.
Allyson Colby is a property law consultant
