Fisheries – Prescriptive rights – Extent – Private fishery established by prescription – Fishery conferring exclusive right to take shellfish from foreshore – Respondents alleging that appellants interfering with that right by fishing for cockles in area of private fishery – Extent of prescriptive fishery – Determination of seaward boundary – Whether including formerly separate sandbanks which attached to foreshore following silting up of separating channels – Appeal allowed in part
Since 1761, the lords of the manors of Heacham and Snettisham (the estate) had claimed the right to take shellfish from the foreshore adjacent to those manors on the east coast of the Wash on the west coast of Norfolk. The first respondent was the current lord of those manors. Through the exercise of such a right, the lords of the manors had acquired a private fishery by prescription, which they leased to the second respondent from 1970 onwards. Although cockles had once been gathered entirely by hand at low tide, since the latter part of the 20th century it had been they had also been gathered at times when the foreshore was covered by water, operating from boats using mechanical means known as suction dredging.
The second respondent brought proceedings against the appellants, who were the owners of local fishing vessels, contending that they had unlawfully interfered with his rights by fishing for cockles between July and September 2007 and claiming damages reflecting the value of the cockles that had been taken. The appellants argued that the area in which they had been working did not form part of the private fishery.
Allowing the claim at first instance, the judge found held the private fishery extended as far seawards as the mean low-water mark of spring tides (MLWS) and that the appellants had been fishing within that area: see [2013] EWHC 901 (Ch); [2013] PLSCS 114.
Both parties were dissatisfied with the judge’s decision. On appeal, the appellants contended that the fishery did not extend to former sandbanks, including Ferrier Sand, that had become accessible at low tide only as a result of the silting up of the channels that had formerly separated them from the foreshore, since the estate had never sought to exercise rights over those areas and so could not have acquired prescriptive rights over them
The Court of Appeal dismissed the appeal but allowed the respondent’s cross-appeal concerning the extent of the private fishery. It found that the seaward boundary of the fishery was defined not by MLWS but by the level of lowest astronomical tide (LAT), which was the lowest point to which the tide fell as a result of normal astronomical forces and occurred only once every 18.6 years: see [2014] EWCA Civ 846; [2014] PLSCS 184.
The appellant appealed. It contended that the seaward boundary of the fishery should be that shown in the Lynn Deeps Fishery Order 1872, which was the first of a number of orders regulating fishing in the eastern side of the Wash and which indicated that that the seaward extent of the private fishery was at least as far seaward as MSLW and that it included Stubborn Sand, which by then had become joined to the foreshore, but not Ferrier Sand. Alternatively, it argued that the boundary should be MSLW as found by the Court of Appeal, but excluding the sandbanks.
Held: The appeal was allowed in part.
(1) Although the Crown was prima facie the owner of the seabed and of the foreshore so far as the tide flowed and reflowed, the public had an established right to gather fish and shellfish in those areas, having done so by right since time immemorial time. Since the time of the Magna Carta, it had not been possible for the Crown to grant the right of fishery to individuals so as to exclude the public from exercising that right. However, an exclusive right of fishery could still be acquired by long use through prescription so as to confer on the holder the right to exclude anyone else from fishing over the relevant area. Such a right was based on long use as of right, such that the extent of the right depended on the nature and extent of the long-established use. While a prescriptive right could be said to involve a notional grant, that was a fiction and the nature and extent of the right had to be determined, not by reference to the intention of a notional grantor, but by examining the actual use as of right. Further, the extent of the right obtained by prescription had to be established bearing in mind practical reality. Under the unum quid rule, where there was a single natural “unit” of property, evidence of acts of ownership and enjoyment over a part might, in an appropriate case, demonstrate ownership of the whole: Neill v Duke of Devonshire (1882) 8 App Cas 135 applied.
(2) It was possible for the property over which a prescriptive right was established to change over time. The concept of a conveyance of, or a grant of a right over, a shifting or fluctuating area of land was not offensive to any principle of property law, provided that the land in question could be ascertained at any time with reasonable precision: Baxendale v Instow Parish Council [1982] Ch 14 applied. The same applied to a right acquired by prescription.
(3) It was well established that grants by the Crown, unlike other instruments, were not construed against the grantor. While that rule did not apply in the instant case, where the right was acquired not by a document but by long use, the basic principle underlying it was still relevant, namely that a court should not be too easily persuaded that the Crown had been deprived of a property or a right, given that the property or right was held for the public good. Accordingly, in cases where it would otherwise be unclear whether a prescriptive right obtained against the Crown extended to certain property or certain rights, the principle might be invoked to justify the conclusion that it did not so extend. The principle would not assist in the majority of cases of prescription and was likely to come into play only where the extent of the grant was really unclear. However, it was arguable that it should be given particular weight in relation to a prescriptive fishery, given the importance attached to the public right to fish as long ago as 1215.
(4) The evidence established that the respondents’ fishery had a fluctuating, rather than fixed, boundary defined by reference to low water as it was from time to time. During the substantial period when the prescriptive right to take shellfish from the foreshore had been exercised, the shellfish had only been gathered by individuals walking from the land when the tide was out. In those circumstances, the putative right would have been exercised over an area which was defined by a shifting low tide mark. The seaward boundary of the fishery therefore fluctuated with the passage of time as the low water mark moved. While that conclusion was not an application of the unum quid rule, it involved a similar approach; the natural unit of property, for the purposes of the exercise of the fishery right, was the stretch of foreshore between high water and low water, and, as the land comprised within that unit moved with the shifting tides, one would expect the exercise of the putative right to move correspondingly. The existence of such a fluctuating right would not have detrimentally affected any other interests, and in particular any public interests, of any significant value, since, until recently, nobody would have been able to take the cockles and mussels which were just on the shore of lowest astronomical tide, except once every 18.6 years.
(5) The seaward boundary of the fishery was best defined by reference to LAT, as the Court of Appeal had correctly concluded. Selecting the most extreme low water mark meant that all parts of the foreshore that were at any time uncovered by the sea were included in the area of the fishery. The choice of any other measurement would be artificial and would involve some parts being excluded from the area. Consistently with the unum quid principle, it should be assumed, in the absence of good reason to the contrary, that the right was being exercised in respect of the whole of the foreshore as it was from time to time uncovered by the sea.
(6) The position with regard to the sandbanks was different from that in respect of the fluctuating foreshore. First, while the silting up of channels would happen gradually, the actual attachment of sandbanks to the foreshore would happen in one moment, whereas the shifting of the low tide mark would normally be gradual. Second, the public would have had the right to take fish, including shellfish, from such a sandbank, at least until the moment when it became attached to the foreshore. In those circumstances, and in the absence of any specific evidence that the estate had in fact taken shellfish from sandbanks as they became attached, and excluded the public from doing so, as of right, it would not be right to assume that they had in fact behaved in that way. Unlike the position in relation to the fluctuating low tide mark, it was not plain or obvious that, once a sandbank became attached to the foreshore, the estate would have exercised an exclusive right to take shellfish from that former sandbank. It was unlikely that local fishermen would have been prepared to accept the extension of the estate’s right over sandbanks which had previously been subject of a public right to fish, simply because they had become attached to the foreshore. It was irrelevant in that respect that the appellants accepted that one sandbank, Stubborn Sand, was included in the fishery, since that sandbank had been joined to the foreshore since before living memory and the estate would have acquired the right to take shellfish from it by prescription.
(7) The sandbanks had not been incorporated within the area of the fishery by any process of accretion. The doctrine of accretion applied where boundaries of land over which rights were exercised changed gradually and imperceptibly over time: Southern Centre of Theosophy Inc v State of South Australia [1982] AC 706 applied. While the silting up of the channels separating the sandbanks from the foreshore had happened gradually, there was a specific moment when the whole of the sandbank had become attached to the foreshore. There is a difference in kind between the gradual extension of one recognised bank and the joining up of two formerly distinct banks. Accordingly, the sandbanks were not included in the area of the respondents’ fishery.
Guy Featherstonhaugh QC, Charles Harpum and Philip Sissons (instructed by Andrew Jackson Solicitors, of Hull) appeared for the appellants; Michael Davey QC (instructed by Parkinson Wright LLP, of Worcester) appeared for the first respondent; Zia Baloo QC and Tim Calland (instructed by Charles Russell Speechlys) appeared for the second respondent; Thomas Braithwaite and Zahler Bryan (instructed by Bond Dickinson LLP) appeared for the Crown Estate Commissioners, as interveners.
Sally Dobson, barrister
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