Sale of land – Conversion – Chattels – Claimant owning land from which it operated commercial fishery – Defendant purchasing land from claimant – Claimant bringing claim in conversion in respect of stock of fish held in pools and lakes on land and solar panels attached to land – Whether title to fish passing to defendant with sale of land or remaining vested in claimant – Whether solar panels being fixtures passing to purchaser on sale of land – Claim allowed in part
The claimant was the former owner of a commercial fishery developed on freehold land on the west side of Kellet Lane, Borwick, Lancashire. The land was close to junction 35 of the M6 motorway. In 2016, the defendant company purchased the land from the claimant, acting by Law of Property Act receivers appointed by the legal chargee of the land.
A claim arose in relation to two discrete classes of property which were present on the land at the time it was acquired by the defendant and which the claimant asserted belonged to it. The first was coarse fish in nine man-made lakes and pools formed as a result of the extraction of gravel from the site in connection with the construction of the M6 motorway. The second was solar panels, associated controls and a feed-in tariff meter which were attached to the property.
The claimant brought a claim in conversion on the grounds that it was the owner of the fish and the solar panels. The court was asked to decide: (i) whether title to the fish passed to the defendant with the sale of the land or whether it remained vested in the claimant (which required the court to determine the legal nature of property in stocks of fish contained in a commercial fishery); and (ii) whether or not solar panels attached to the land were to be treated by law as fixtures which passed to the purchaser on a sale of the land.
Held: The claim was allowed in part.
(1) It was open to the claimant to contend that it retained title to the fish because they had been contained in a self-contained water body and remained in the ownership of, and belonging to, the claimant when the property was transferred to the defendant. If by some means any fish were to escape from the self-contained water body within the commercial fishery and were to achieve their freedom, they would clearly revert to the status of wild animals and the former owner of the fish would cease to have any property in them. But it was open to the claimant to contend that whilst within the confines of the commercial fishery, it had a qualified property in the fish.
It was open to the court to adapt the law on qualified property to the relatively recent concept of a commercial fishery. The appropriate test was that of separation and control. Fish reared and/or introduced into a closed commercial fishery were wild animals in which a qualified property existed through industry, diligence and the hard work of the owner or operator of that fishery. The claimant had a qualified property in the fish which were unable to pass through the meshes separating the various lakes or ponds. However, the claimant would not have title to the small fish or fry that could pass through that mesh. But there was a qualified property in those fish which were introduced into, and were confined within, the nine lakes or pools, and which could not pass out of that closed system. There was a qualified property in those fish and that property did not pass when the land was conveyed to the defendant. Therefore, the claimant could maintain an action in conversion in relation to those fish.
On the issue of liability, it would not be appropriate for the court to say, in relation to the fish stocks introduced into the commercial fishery by the defendant, that those fish stocks did not belong to the defendant. Equally, the previously existing fish stocks, which were unable to pass through the meshes, were the property of the claimant. If the claimant enjoyed a qualified property in the fish up to the time of the conveyance, it retained that property thereafter since the conveyance did not specifically address, or purport to transfer, title to the fish. Accordingly, the claim in conversion in respect of the fish succeeded.
(2) The solar panels were a fixture on the property and passed automatically with the sale of the land to the defendant. As a result, the claimant had no title to maintain a claim in conversion in relation to the panels. Looking at the degree of annexation, one could not safely divorce the panels themselves from the wooden structure, concreted into the ground, to which they were attached. One had to have regard to the structure as a composite whole. The claimant chose to affix the solar panels to the land through the medium of the supporting wooden frame, concreted into the land. As a result, the degree of attachment to the land was such that the panels formed fixtures and became part of the realty. Even if that were not the case, the real purpose of fixing the solar panels to the land was not for the enjoyment of the solar panels as such, independently of the land, but for the benefit of the land itself. The solar panels were there to receive sunlight falling on the land and to convert it into electricity. Part of that electricity was to be used, when the sunlight was sufficiently strong and capable of generating sufficient electricity, to power the electrical equipment within the restaurant. Any surplus electricity was to be sold to the grid, to the benefit of the generator’s nominee.
Having regard both to the method and degree of annexation, and to the object and purposes of the annexation, the solar panels became fixtures and ceased to be chattels. As such, they passed with the land to the defendant and the claimant ceased to be able to assert any title thereto.
Guy Vickers (instructed by Napthens of Preston) appeared for the claimant; Nathan Wells (instructed by Brown Turner Ross of Southport) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd
