Fishing rights – Marina – Several fishery – Appellant owners of fishery wanting to build marina on foreshore and seabed – Respondent fishery operators opposing proposed development – Whether order granting fishing rights made ultra vires Sea Fisheries Act 1868 – Whether proposed development unlawful – Appeal dismissed
The appellants were the legal owners of the foreshore and seabed included in an oyster and mussel fishery that extended over 761ha. A several fishery had been created for a 60-year term by the Menai Strait Oyster and Mussel Fishery Order 1962, made under the Sea Fisheries Act 1868 by the first respondent’s predecessor, it granted fishery rights to the second respondent. The second respondent divided the fishery into separate areas and granted licences on a commercial basis. The 1868 Act was replaced by the Sea Fisheries (Shellfish) Act 1967. Section 7(4) of that Act prohibited activities that interfered with the several fishery by any person other than the grantees, their agents or employees.
The appellants wanted to build a marina on 10ha of their land, part of which would come within the fishery. The third and fourth respondents, who had licences to operate the fisheries objected, to the development on the ground that substantial parts of the fisheries would be destroyed. The appellants brought proceedings to establish the legality of the proposed development. They sought declarations that: (i) the 1962 Order was ultra vires the 1868 Act; (ii) the rights enjoyed under the order by the second, third and fourth respondents were subject to the appellants’ right to construct a marina; and (iii) section 7(4) of the 1967 Act did not render unlawful the building of a marina over part of the fisheries. The court refused to make the declarations and the appellants appealed.
The appellants contended, inter alia, that since section 40 of the 1868 Act had conferred rights of fishery on the “grantees”, which term was defined as “the persons obtaining the order”, it was a personal right and there was no provision for that right to be exercised by any other party. The respondents relied upon the fact that a “several fishery” had been recognised as a form of incorporeal property, rather than a personal right, since before Magna Carta, and, as such, was capable of being assigned or leased.
Held: The appeal was dismissed.
In order to determine the effect of the 1868 Act, common sense and the principle of legal certainty indicated that the court was entitled to take account of the subsequent history of the legislation. Accordingly on the true construction of the 1868 Act, the 1962 Order was not ultra vires.
Where there was an apparent conflict between the strict literal reading of the Act and the respondents’ position, the court could not ignore more than 100 years’ experience of its operation, with the direct involvement of parliament. It appeared to have been assumed from the beginning that the rights granted by an order under the 1868 Act were not purely personal but could extend to the grantees’ heirs and assignees. Where an Act had been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That was applicable particularly in a relatively esoteric area of the law such as the present, in respect of which cases might rarely come before the courts, and established practice was the only guide available for operators and their advisers.
As to a several right of fishery, the 1967 Act had set the framework for future orders by defining “grantees” as “the persons for the time being entitled to that right”. That approach was consistent with the interpretation adopted in practice and with the earlier law.
Furthermore, the proposed marina would be unlawful on the proper construction of section 7(4) of the 1967 Act. Even if the second respondents, the Crown Estate Commissioners, were not bound by the section by virtue of Crown immunity, that would not assist the first respondents, which owned most of the land upon which the marina was to be constructed.
John Howell QC and Emma Dixon (instructed by Alan Carr, of Hatherop) appeared for the appellants; Clive Lewis QC (instructed by the Treasury Solicitor) appeared for the first respondents; Guy Fetherstonhaugh QC and James Segan (instructed by Andrew M Jackson, of Kingston-upon-Hull) appeared for the second, third and fourth defendants.
Eileen O’Grady, barrister
