Land in UK Law

The evidence before me was to the effect that the mussel growing process broadly involves a three year cycle. Seed mussels are collected from various areas such as Morecambe Bay and sites in South Wales. The seed mussels so collected are then relaid on intertidal ground – that is, the part of the littoral lying between high and low tide – with a view to hardening up the external shells so as to allow the mussels to develop resistance to predation.

As explained in a witness statement of Mr James Wilson dated 7 July 2006 the intertidal part of Area 4 is where the seed mussels are laid to harden off; it is, as he puts it, “vital to us”. In his witness statement dated 7 July 2006 Dr Stephen Atkins (Chief Executive of the second defendant) says “The intertidal area is vital … This allows a high degree of mussels to be farmed in the area.

I can see no reason why such a right should not have existed with regard to these tidal waters immediately before the 1962 Order was made: indeed, as I see it, it was just because it did that the 1962 Order, creating a several fishery, was in fact made. That seems to me to be the legal position and that corresponds with what, on the evidence, was the factual position.

That is (quite apart from the potential possibly wider impact in pollution etc. terms on the remaining part of the fishery) in my view, a substantial interference.

Ownership of the bed depends on what kind of waterway is in question. In tidal waters there is a presumption that the bed is owned by the Crown. Ownership of the bed may of course be transferred; and, in the case of the River Thames, the river bed is now vested in the Port of London Authority. In non-tidal rivers and streams there is a presumption that each riparian owner owns half the bed up to the mid-point between the banks (ad medium filum).

Where an Act has 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 applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.

The parties also confirmed that it is no longer in issue in these proceedings whether (i) the Claimant occupies in his own right or as licensee and/or (ii) is entitled to exercise the riparian rights of a riparian owner. It is accepted that the relevant issue to be decided in this context is whether a riparian owner of the land in question would have a right to moor.