Lynn Shellfish Ltd & Ors v Loose & Anor [2016] UKSC 14

The Supreme Court considered the extent of a prescriptive exclusive right to take cockles and mussels on the Wash foreshore. It held the seaward boundary fluctuates with the lowest astronomical tide, but previously separated sandbanks do not automatically become part of the fishery upon attachment.

Facts

The second respondent, Mr Michael Le Strange Meakin, is Lord of the Manors of Snettisham and Heacham and owns substantial land adjoining the east side of the foreshore on the Wash, Norfolk. The Estate has long claimed an exclusive prescriptive right (a several fishery) to take cockles and mussels over a stretch of foreshore between Wolferton Creek and Thornham Creek. In 1970, the Estate leased that right to the first respondent, Mr John Loose, who continues to hold over.

In 2007, 13 boats operated by the appellants fished for cockles using suction dredging in areas claimed by the respondents to fall within the exclusive fishery, in particular at or near Stubborn Sand and Ferrier Sand. The shifting nature of sandbanks along this part of the Wash means that previously separated sandbanks have, over centuries, become attached to the foreshore through the silting up of intervening channels (Stubborn Sand in the 18th century, Ferrier Sand approximately 50 years ago, Blackguard Sand within about 20 years). Low water marks have also shifted seaward over time.

The Estate’s exclusive right had been recognised in earlier proceedings, in particular Loose v Castleton (1978) 41 P & CR 19, where Judge Moylan and the Court of Appeal accepted that the seaward boundary lay ‘at least’ as far out as mean spring low water.

Issues

The Estate’s ownership of an exclusive prescriptive right (Right) over part of the Foreshore was not in dispute. Two issues were before the Court:

(1) The seaward (western) boundary

Whether the boundary was fixed (e.g. as shown on the 1872 Order chart) or fluctuated with the tide, and which low water mark applied: mean low tide, mean spring low tide, or the lowest astronomical tide.

(2) Previously separated sandbanks

Whether sandbanks formerly detached from the Foreshore (e.g. Ferrier Sand, Blackguard Sand) became subject to the Right when they later became attached, either (a) as a matter of prescription, or (b) by the doctrine of accretion.

Arguments

The appellants contended that the seaward boundary was the line shown in the 1872 Order chart, or alternatively mean low water, and that formerly separated sandbanks (except Stubborn Sand, which they accepted) did not fall within the Area unless the Estate could show exclusive use prior to attachment.

The respondents contended that the seaward boundary was the lowest astronomical tide (as the Court of Appeal had held), and that previously separated sandbanks became part of the Area either because the prescriptive Right attached to the Foreshore as constituted from time to time, or by operation of the doctrine of accretion.

The Crown Estate Commissioners intervened in support of the appellants on the sandbank issue.

Judgment

Nature of prescriptive rights

Lord Neuberger and Lord Carnwath (with whom Lord Clarke, Lord Sumption and Lord Hodge agreed) emphasised that a prescriptive right is based on actual use ‘as of right’, not on a notional grant. The correct inquiry is the extent of user as of right, not the likely terms of a fictional grant. They cited Bovill CJ in Williams v James and Lord Walker in R (Lewis) v Redcar and Cleveland BC (No 2). They also recognised the unum quid principle from Lord Advocate v Lord Blantyre and Neill v Duke of Devonshire.

The Court held that, in cases of prescriptive rights asserted against the Crown, the principle underlying the rule that Crown grants are construed strictly against the grantee may be invoked to prevent the Court from too readily concluding that the Crown has been deprived of property held for the public good.

The seaward boundary

The Court held that the seaward boundary fluctuates over time as the low water mark moves. Because shellfish could historically only be gathered on foot from the shore at low tide, the Right must have been exercised over an area defined by the shifting low tide mark. A fixed boundary based on the 1872 Order chart was rejected, particularly given that the underlying legislation expressly did not affect private fisheries.

Selecting the appropriate low water mark, the Court (with some hesitation) held that the lowest astronomical tide was the correct boundary. This produced the least arbitrary result and was consistent with the unum quid principle: it ensures that all parts of the Foreshore uncovered by the sea at any time form part of the Area. Unlike mean low water marks, the lowest astronomical tide is an actual (if rare) tide. The fact that it occurs only every 18.6 years did not undermine its suitability, since shellfish just shoreward of that mark could only historically be gathered on those rare occasions. The Court agreed with the Court of Appeal’s conclusion, but not with Moore-Bick LJ’s reasoning, which had wrongly proceeded by reference to a notional grant.

Previously separated sandbanks: prescription

The Court rejected the respondents’ argument that the Right automatically extended to sandbanks as they became attached to the Foreshore. Unlike the gradual movement of the low water mark, the attachment of a sandbank occurs at a specific moment. Crucially, until attachment, the public had the right (and in some cases had exercised that right) to take shellfish from these sandbanks. In the absence of evidence that the Estate had actually exercised exclusive rights over them as they attached, it could not be assumed that they had done so. The position of Stubborn Sand was different because it had been attached since before living memory, so the Estate had in any event acquired prescriptive rights over it.

Previously separated sandbanks: accretion

The Court also rejected reliance on the doctrine of accretion as described by Lord Wilberforce in Southern Centre of Theosophy Inc v State of South Australia. The doctrine requires the change in boundary itself to be ‘gradual and imperceptible’. While the silting up of channels is gradual, the attachment of a sandbank as a whole happens at a specific moment, which is a sudden and considerable change excluded from the doctrine. The Court relied on Griffith CJ’s reasoning in Williams v Booth (1910) 10 CLR 341, distinguishing between gradual extension of a single bank and the joining up of two formerly distinct banks. The same approach applies to rights over land as to ownership of land.

Outcome

The appeal was dismissed as to the seaward boundary (which is the lowest astronomical tide from time to time) but allowed as regards previously detached sandbanks (which do not automatically fall within the Area on attachment). The matter may be remitted to the Chancery Division if the parties cannot agree the precise extent of the Area.

Implications

The decision clarifies several important principles regarding prescriptive rights over the foreshore:

First, the extent of a prescriptive right is determined by reference to actual use as of right, not by reference to the imagined terms of a notional grant. This corrects the approach taken in Loose v Castleton by Bridge LJ, which had focused on the supposed intention behind a hypothetical Crown grant.

Second, prescriptive rights over land with a naturally fluctuating boundary (such as the foreshore) may themselves have a fluctuating extent, provided the boundary can be ascertained with reasonable precision. The lowest astronomical tide is endorsed as a workable seaward boundary in this context.

Third, the doctrine of accretion does not extend to the sudden joining of previously separate landmasses. The ‘gradual and imperceptible’ requirement focuses on the change in the boundary itself, not on the underlying processes that bring about the change.

Fourth, where a public right (such as the public right to fish in tidal waters preserved by Magna Carta) is in play, the Court will be cautious before concluding that a private prescriptive right has extended at the expense of the public. The principle underlying strict construction of Crown grants may, by analogy, be deployed in cases of doubt.

The decision is significant for owners and lessees of several fisheries, for the Crown Estate, and for commercial fishermen operating in tidal waters. It establishes the limits of prescriptive private rights against the historic public right to fish, while recognising the practical need for fluctuating boundaries where the physical environment is itself changing.

Verdict: The appeal was dismissed in part and allowed in part. The seaward (western) boundary of the Area subject to the Estate’s exclusive prescriptive right to take cockles and mussels is the lowest astronomical tide mark from time to time. However, previously separated sandbanks (other than Stubborn Sand, which was conceded) do not become part of the Area upon attachment to the Foreshore, whether by prescription or by the doctrine of accretion. The matter may be remitted to the Chancery Division for determination of the precise extent of the Area if the parties cannot agree.

Source: Lynn Shellfish Ltd & Ors v Loose & Anor [2016] UKSC 14