Land in UK Law

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).

It is perfectly true that a riparian owner is entitled to the natural flow of the watercourse passing by his property; and that he is also entitled to access to and egress from his riparian property, even if he does not own any part of the soil. This is clearly established by the decisions of the House of Lords both in Lyon v Fishmongers' Co (1876) 1 App Cas 662 and in Tate & Lyle Industries Ltd v Greater London Council.

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.

“Substantial” in my view in this context connotes an interference of sufficient significance to be actionable and to justify a claim for an injunction. In the present case we are not talking simply of a pier or pontoon or moorings or some temporary operation.

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.