Supreme Court decision in Lynn Shellfish Ltd v Loose [2015] UKSC 72
Supreme Court decision in Lynn Shellfish Ltd v Loose [2015] UKSC 72
The Appellants own and operate fishing boats from King’s Lynn in Norfolk, exercising their right as members of the public to fish in tidal waters. In the summer of 2007, a number of those boats fished for cockles in an area of the Wash, which was claimed as part of a private fishery owned by the second Respondent, and leased to the first Respondent.
The existence of the private fishery had been established in previous litigation on the basis of prescription. In Loose v Castleton, in a decision approved by the Court of Appeal in 1978, it was established that there had been exclusive control of shell-fishing over an area of the foreshore for a sufficient period of time to raise a presumption that there had been a grant of a private fishery before legal memory.
In this case, the Appellants challenged the seaward extent of that fishery. The Respondents argued that sandbanks which had previously been fished by the public within living memory had now become part of the private fishery, thereby excluding the public right. As the channels between the sandbanks had become silted up so that they became joined to the foreshore at low tide, it was argued that they became added to the fishery, thereby considerably expanding the size of the fishery.
Both Sir William Blackburne, at first instance, and the Court of Appeal had applied the earlier decision of the Court of Appeal in Loose v Castleton (1978) 41 P&CR 19 and held that the previously detached sandbanks had become part of the private fishery. Where a notional grant had been established by prescriptive user, the court should then consider what the terms of that notional grant must have been. On that basis it was likely that the grantor would have intended that the private fishery should expand with the expanding foreshore. Alternatively, the sandbanks had become added to the fishery by accretion.
The Appellants (supported on this point by the Crown Estate which intervened in the appeal to the Supreme Court) argued that the geographical extent of any right established by prescription must be established by the historic user, not by attempting to construe a fictional grant. Furthermore, the addition of the sandbanks was not gradual and imperceptible because there was a moment in time at which the process of siltation was completed and the sandbanks were joined to the foreshore. Accordingly, the doctrine of accretion did not apply.
The Supreme Court allowed the appeal on this point. Whilst one would expect the grant of a fishery over the foreshore to have a movable boundary which follows the sea as it advances or retreats (and furthermore the boundary would follow Lowest Astronomical Tide as the tidal measure that most accurately reflected that expectation), it did not follow that the offshore sandbanks had become part of the fishery.
Disapproving Loose v Castleton, Lords Neuberger and Carnwath (with whom Lords Clarke, Sumption and Hodge agreed) explained that the proper basis for establishing the nature and extent of a prescriptive right is not by assessing the likely terms of a fictional notional grant, but rather by assessing the extent of the actual use of the putative right established by evidence. As to accretion, their Lordships accepted the Appellants’ contention that there was a difference between the gradual extension of one recognised part of the foreshore and the joining up of a formerly distinct sandbank. Accretion could not operate to alter parties’ rights over the sandbank in the latter case.
Guy Fetherstonhaugh Q.C., Charles Harpum and Philip Sissons represented the Appellants, and were instructed by Andrew Oliver and Paul Newbon of Andrew Jackson Solicitors.
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