Loose v Lynn Shellfish Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Clarke,Lord Hodge,Lord Sumption,Lord Carnwath |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] UKSC 14 |
| Date | 13 April 2016 |
| Court | Supreme Court |
[2016] UKSC 14
Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Hodge
Appellant
Guy Fetherstonhaugh QC
Charles Harpum
Philip Sissons
(Instructed by Andrew Jackson)
Respondent ( John Henry Loose)
Michael Davey QC
(Instructed by Parkinson Wright LLP)
Respondent ( Michael George le Strange Meakin)
Zia Bhaloo QC
Tim Calland
(Instructed by Charles Russell Speechlys)
Intervener ( Crown Estate Commissioners)
Thomas Braithwaite
Zahler Bryan
(Instructed by Bond Dickinson LLP (Southampton))
Lord Neuberger and (with whom Lord Clarke, Lord Sumption and Lord Hodge agree)
The issue raised by this appeal is the extent of an exclusive prescriptive right (ie an exclusive right obtained through a long period of use) to take cockles and mussels from a stretch of the foreshore on the east side of the Wash, on the west coast of Norfolk.
The proprietor of the exclusive right in question is the second respondent, Mr Michael Le Strange Meakin, who is Lord of the Manors of Snettisham and Heacham ("the Manors") and the owner of a substantial amount of land adjoining the east side of the foreshore. The land, the right to fish and the Lordships have been in the ownership of the Le Strange family for many generations, and we shall refer to Mr Le Strange Meakin and his predecessors as "the Estate". In 1970, the Estate granted a lease of the exclusive right to the second respondent, Mr John Loose, who is still holding over under that lease.
The appellants are individuals and companies who operate fishing boats out of King's Lynn in Norfolk. During the summer of 2007, 13 of the appellants' boats fished for cockles in locations claimed by the respondents to be within the area of the exclusive fishery vested in the Estate. Some of the appellants' fishing activities took place at or near an area known as Stubborn Sand, and some at or near an area known as Ferrier Sand. Both Stubborn Sand and Ferrier Sand are now attached to the foreshore, but they had not been so attached in the past.
Although we were provided with a large number of detailed plans, the following summary of the position on the ground should suffice for present purposes.
The stretch of foreshore between Wolferton Creek to the south and Thornham Creek to the north ("the Foreshore") is irregular in shape, but it can be treated as going from north to south, with the Wash to the west, and land (owned by the Estate) to the east. There are a number of sandbanks which are separated from the Foreshore at low tide. The evidence establishes that some sandbanks which are currently attached to the Foreshore at any rate at low tide had previously been separated from it.
The shifting nature of sandbanks is a feature of the shore on the eastern side of the Wash, and, at least in that part of the Wash with which this appeal is concerned, the trend over the past 400 years or more appears to have been for previously separated sandbanks to become joined to the Foreshore with the passage of time. Examples include Stubborn Sand, which is now attached to the Foreshore but which was separated from it until sometime in the 18th century; Ferrier Sand, which only became attached to the Foreshore around 50 years ago; and Blackguard Sand, which only became attached within the past 20 years or so. The attachment to the Foreshore of previously separated sandbanks appears to have occurred as a result of the gradual silting up of channels which had separated the sandbanks from the Foreshore.
It is also clear that the low water marks (ie the lines showing the edge of the sea at low water) of the Foreshore have moved significantly with the passage of time. At least in recent periods the low water marks have, in very general terms, moved further west — ie seaward, further away from the shore. We refer to low watermarks in the plural because, of course, the extent of low water varies from time to time. For present purposes, four different types of low water measurement should be mentioned, (i) Mean low tide, the average of neap and spring low waters, (ii) mean spring low tide, the average of spring low waters, (iii) mean neap low tide, the average of neap low waters, and (iv) the lowest astronomical tide, the most extreme neap low water, which occurs every 18.6 years. (Extreme low water was also referred to in oral argument, when it was said to be the same as lowest astronomical tide, but that was corrected subsequent to the hearing. However, it did not feature in argument as a separate relevant measurement, save by way of explanation of a line on a chart). There are, unsurprisingly, high water equivalents of these four low water measurements.
The breeding and other habits of cockles and mussels differ to some extent, but it is common ground that there is no need for present purposes to make any distinction between the two types of shellfish (and any reference to "shellfish" hereafter is to cockles and mussels). Shellfish are to be found on the foreshore, but they are also to be found in the shallow seas. At least in the past, shellfish were taken entirely from the foreshore at low tide by individuals coming by foot from the shore and gathering them by hand. In recent times, however, with the development of more sophisticated and aggressive fishing techniques, in particular suction dredging, shellfish are increasingly gathered from vessels at a time when the foreshore is not exposed by the tide — as was done recently by the appellants as referred to in para 3 above.
As mentioned above, it is accepted that the Estate is the owner by prescription of the exclusive right to take shellfish over part of the Foreshore ("the Right"), but what divides the parties is the extent of the area over which it can claim the Right ("the Area").
The southern and northern boundaries of the Area are not in dispute: they are Wolferton Creek and Thornham Creek respectively. The disputes involve (i) the location of the western, seaward, boundary and (ii) issues relating to former sandbanks near the eastern, landward, boundary.
The dispute over the western, seaward, boundary is whether the Estate's Right extends to mean low tide, mean low water spring tide, lowest astronomical tide, or some other mark. At first instance, Sir William Blackburne held that it was the mean spring low water, whereas the Court of Appeal concluded that it was the lowest astronomical tide mark. The appellants primarily contend that the western boundary should be that shown in the Lynn Deeps Fishery Order 1872 ("the 1872 Order"), or alternatively mean low water, whereas the respondents support the conclusion reached by the Court of Appeal.
As to the issue relating to sandbanks, the appellants contend that, unless the respondents can establish that the Estate's prescriptive Right extended to a sandbank before it became attached to the Foreshore, the Right cannot extend to such a sandbank simply because it becomes attached to the Foreshore. The respondents contend that the Right can and does so extend, and in that connection they rely on two arguments. The first is that the Right is a prescriptive right which applies to the Foreshore as it is constituted from time to time. The second argument is that, if this first argument is wrong, the respondents are entitled to invoke the doctrine of accretion, so that a sandbank becomes, as it were, added to the Area the subject of the Right by operation of law, when it becomes attached to the Foreshore. Sir William Blackburne and the Court of Appeal accepted both the respondents' arguments.
The evidence included a number of charts and maps going back to 1588, which, as mentioned, clearly establish that (i) the location of the low and high water marks moved significantly over time, and (ii) various sandbanks, which were initially separated therefrom, became attached to the Foreshore as channels became silted up. The evidence also included a number of witness statements, which concentrated on both relatively recent events and analyses of the effect of earlier proceedings or deductions made from historic documents, some private and some public.
The private documents include a number of leases of exclusive fishing rights granted by the Estate between 1857 and 1970. These leases describe the extent of the exclusive fishery in different terms. For instance, the 1857 lease referred to "the extreme low water mark of the sea", and the 1970 lease described the boundary as "so far as may be worked without boats … at extreme low water". A 1903 lease identified the seaward boundary as the ordinary low water mark. Other leases were less precise as to the boundary, some simply referring to "the foreshore" and another to "the foreshore and so much of the seabed that belongs to [the lessor]".
The 1857 lease was for a term of ten years, and, during its currency, a successful action for trespass at the Norfolk Summer Assize was brought, for some reason in the name of the Estate rather than the lessee, against a Mr Rowe who had taken mussels from the Foreshore between high and low water — Le Strange v Rowe (1866) 4 F & F 1048. In his direction to the jury in that case, Erie CJ said at p 1056 that "there is evidence of what to my mind was a very strong act of ownership in respect to the taking of mussels".
The 1872 Order was the first of a number of orders regulating fishing in the eastern side of the Wash. It applied for 60 years. The boundary of the exclusive fishery in the 1872 Order was described as "the line of ordinary low water mark, by the western side of the Stubborn Sand". The chart attached to...
To continue reading
Request your trial
-
The King (on the application of Wildfish Conservation) v Secretary of State for Environment, Food and Rural Affairs
...fish in tidal waters ( Attorney General of British Columbia v Attorney General of Canada [1914] AC 153; Loose v Lynn Shellfish Limited [2017] AC 599). In addition, the public right of navigation and fishing carries with it ancillary rights ( R (Newhaven Port and Properties Limited) v East S......
-
South Tees Development Corporation v PD Teesport Ltd
...[6] and [55], R (on the application of Lewis) v Redcar & Cleveland BC (No.2) [2010] UKSC 11 at [20] and [87], Lynn Shellfish Ltd v Loose [2016] UKSC 14, at [37]. Use which satisfies the tripartite test establishes a prescriptive right. There is no further criterion to be satisfied; London ......
-
The Square Management Ltd v Dunnes Stores Dublin Company
...526, Walsh v. Sligo County Council [2013] IESC 48, two recent decisions of the English Superior Courts in Lynn Shellfish Limited v. Loose [2016] UKSC 14 and Winterburn v. Bennett [2016] EWCA 482, and the long-ago decision of the House of Lords in Gardner v. Hodgson's Kingstown Brewery [1903......
-
Robert Gormandy v Trinidad and Tobago Housing Development Corporation
...have adopted a formula to work out in detail the smaller area. This case is distinguishable from Lynn Shellfish Ltd. v Loose & Anor [2016] UKSC 14. The case of Lynn dealt with a prescriptive right to take shellfish from a stretch of foreshore of the Wash. The second respondent was the owne......
-
Don't Be Shellfish When It Comes To The Sandbanks!
...in areas which it was alleged that they were not entitled to fish in. This recent case (Lynn Shellfish Ltd and others v Loose and another [2016] UKSC 14) has also provided some helpful guidance to owners of land which borders water, as well as confirming the general principles of prescripti......
-
Table of Cases
...Environment and Westminster City Council (1984) 49 P & CR 186, [1985] 84 LGR 33, (1984) 272 EG 175, CA 391 Lynn Shellfish Ltd v Loose [2016] UKSC 14, [2016] 2 WLR 1126 24 Lyus v Prowsa Developments Ltd [1982] 1 WLR 1044, [1982] 2 All ER 953, (1982) 44 P & CR 213 245 Mackenzie v Abbo......
-
Table of Cases
...Civ 430, [2006] 2 EGLR 29, [2007] L & TR 6, [2006] 25 EG 210 207 xviii Positive Covenants and Freehold Land Lynn Shellfish Ltd v Loose [2016] UKSC 14, [2017] AC 599, [2016] 2 WLR 1126, [2017] 1 All ER 677 135 Macleay, Re (1875) LR 20 Eq 186, 44 LJ Ch 441, 23 WR 718, ChD 26 Marlton v Turner ......
-
Tenure and Customary Rights
...2014–15 , 13 January 2015. 23 See also Law Commission, Updating the Land Registration Act 2002 (Law Com 380) (2018) at para 13.264. 24 [2016] UKSC 14, [2017] AC 599. 136 Positive Covenants and Freehold Land freehold tenure (unless the view of those who adopt the LPA 1925, s 153 is correct) ......
-
Profits à Prendre
...ss 16–17. 13 See the analysis of the main types of profits à prendre in Megarry & Wade at 30-024–30-034. 14 Lynn Shellfish Ltd v Loose [2016] UKSC 14. This case concerned the geographic extent of a prescriptive right to take cockles and mussels from a stretch of the foreshore on the eastern......