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Tidal waters

Foreshore

Prescriptive right

Lynn Shellfish Ltd v Loose
[2016] UKSC 14

Summary

The Supreme Court ruled on the extent of an exclusive prescriptive right to take cockles and mussels from a stretch of the foreshore.

Facts

The proprietor of land adjoining the foreshore (the Estate) granted a lease of the exclusive right to fish from part of a fishery to a tenant (T). A number of individuals and companies (A), fished for cockles in locations claimed to be within the area of the fishery vested in the Estate. This area of land (the Area) was part of the foreshore. Some of A’s fishing activities took place at or near certain former sandbanks that used to be close to, but detached from, the foreshore. These sandbanks had from time to time become joined to the foreshore as channels had become silted up, and, as and when this happened, the Estate effectively extended the collecting of shellfish to that former sandbank. A appealed against a decision of the Court of Appeal that they had unlawfully interfered with the private fishery let to T.

Issues

(1) The location of the seaward boundary of the area subject to the fishery;
(2) Whether the fishery extended to the previously unattached sandbanks.

Decision

The Supreme Court partly allowed the appeal.

(1) On the determination of the seaward boundary: the Supreme Court held that it was clear that the seaward boundary must be a low water mark. This fluctuated with the passage of time as the low water mark moved. The Estate had exercised a prescriptive exclusive right to take shellfish from the foreshore for a substantial period where the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out. Therefore, it was inevitable in terms of practical reality, that the putative right would have been exercised over an area which was defined, or limited, by a shifting low tide mark.

The most satisfactory low water mark to select was the lowest astronomical tide. That conclusion appeared to produce the least arbitrary result. Although it was not an application of the unum quid rule (which is, broadly, that evidence of acts of ownership and enjoyment in any part of land would be applicable to the whole), it involved an approach roughly akin to it and thus not inconsistent with the rule. Selecting the most extreme low water mark meant that all parts of the foreshore which were at any time uncovered by the sea were included in the area. Any other selection involved some of those parts being excluded from the area.

(2) The Court held that the evidence did not establish that the Estate's prescriptive right extended to the sandbanks which were not previously joined to the foreshore, as and when they became so attached. The sandbanks were not added to the area as a result of the doctrine of accretion. Accretion relied on the gradual and imperceptible change in a boundary. Since there was a specific moment in time when the whole of a sandbank became attached to the foreshore, the addition of a sandbank was not gradual or imperceptible.


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