Ref. Loose v Lynn Shellfish Limited [2014] EWCA Civ 846

Loose, Shellfish Ltd and others argued a case in the High Court in 2013 where accretion (layers upon layers of gradual accumulation of matter) in the Wash estuary had extended the foreshore, connecting it to a sandbank. Did the ownership and fishing rights, which extended to the low water line, then extend over the new sandbank? And also, what was considered the low water line?

The Local Landowner, and operator of a fishery, claimed that the siltation of a channel and the process of accretion, combined with the shifting sandbanks, meant that the fishery rights of the estate applied to the accreted land. Essentially, these natural processes had shifted the average low-water mark, which forms the boundary of these rights – this had been established by prescription by the Le Strange family, who has been taking shellfish from the shore since 1761.

Sir William Blackburne, presiding over the initial case of 2012, found that the private rights of the Estate did extend to the new low-water mark. Consequently, this means that the fishermen who had been removing cockles from the area were liable to pay the estate for the value of those cockles.

Appealing against this judgement, the fishermen argued that the private fishery does not extend to some of the areas which are now exposed, and therefore are accessible from the foreshore at low tide. They have not become part of it simply as a result of the silting up of the channels which in the past separated them from the foreshore. Moreover, they say that the estate has never sought to exercise rights over those areas and cannot therefore have acquired prescriptive rights in respect of them.

The Court of Appeal has therefore been obliged to reconsider the question of the extent of the private fishing rights over the newly created land. Lord Justice Moore-Bick identified that, at root, the question came down to the extent of the presumed ‘lost modern grant’ from which stemmed the rights of the Estate owner.

He stated:

“If one accepts that the grant related to a fluctuating area of the seabed, the question is how that area must be taken to have been described. The probability, in my view, is that the grant would have extended to such part of the seabed as might from time to time be exposed at low water.

“MLWS (mean low-water mark of spring tides) is an artificial concept, representing an average of a range of low water levels. At regular intervals the water will inevitably fall below that level and it seems to me unlikely that the grant was not intended to extend to the low water mark on those occasions, wherever that might be. In modern terms that level is best identified by LAT (lowest astronomical tide). I am unable to accept that the boundary extends seaward as far as ELW (extreme low water), because I find it difficult to accept that the crown can be taken to have intended to grant exclusive rights over an area of the seabed which would be exposed only under an extreme combination of unusual circumstances.

“In my view, the better view is that as a matter of law the fishery extends as far as LAT.”

Essentially then, the Court took the practical view that any grant of land (however hypothetical) would be based on common sense. The private cockle pickers would naturally have extended their fishing to any areas which were exposed by the sea and it is likely that this would therefore form the subject of the grant.

The implications are that there is the potential for an estate to acquire yet more land as a river or estuary silts up and extend their private fishing rights at the expense of the public. When considering the wider consequences of this notion, the Judge remarked “so be it”.

This decision, therefore, could open the way for private landowners elsewhere in the UK with land abutting water, allowing them to make significant gains in land at the expense of the public.

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LCB / SJ                                                                                                                      07.10.14