UK: Don't Be Shellfish When It Comes To The Sandbanks!

Last Updated: 15 August 2016
Article by Rebecca Noble

Most Read Contributor in UK, October 2017

Some local fishermen in Norfolk have been partially successful in a recent case in the Supreme Court, the judgment providing them with the right to fish 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 prescription by long user.


This case concerned the area of a private fishery, in Norfolk, which was owned by the estate of Mr Le Strange Meakin and which had been leased to John Loose ("the Fishery") since 1970. In a previous case (Loose v Castleton) in 1978, the estate had established that it had a private fishery by way of prescription of long user (meaning it had exclusive control over the area for a sufficient period of time).

Lynn Shellfish Ltd ("the Fishermen") owned a number of vessels which, back in 2007, fished in and around the estate's private fishery and the Fishery issued proceedings claiming that they were trespassing into the area of the private fishery. The channels between the sandbanks had silted up (so that they were joined to the foreshore at low tide) and the Fishery argued that this meant that the sandbanks were now part of the private fishery (either because once attached, they would be treated as added to the area and covered under the prescriptive right or by way of the doctrine of accretion). The Fishermen disputed that the private fishery extended to this area and argued that the Fishery had to establish that its right extended to the sandbanks before they joined to the foreshore. (The parties also disputed what tidal measure should be used to determine the boundary, although this is not considered to a great extent in this article).

The Judge at first instance and the Court of Appeal applied Loose v Castleton and held that the sandbanks now constituted part of the private fishery (on the basis that it was likely that the notional grantor would have intended that the fishery should expand with the expanding foreshore or by way of accretion). The Fishermen appealed to the Supreme Court, and were supported by the Crown Estate, which intervened, and argued that the extent of the area must be determined by the historical user and that accretion could not apply as the change to the sandbanks was not gradual and imperceptible.


The Supreme Court unanimously held that the appropriate tidal measurement was the local astronomical tide (and so dismissed the Fishermen's appeal in this regard) and that the estate's right to fish did not extend to the sandbanks (and allowed the Fishermen's appeal in this regard).

The Court confirmed that the proper basis on which to establish the extent of a prescriptive right was by an assessment of the actual use (which was determined by evidence); a person had to show that he had used the area for the requisite period to the exclusion of others. The Court had been provided with a lack of evidence showing that the private fishery had fished in the area and had excluded the public from doing so once the sandbanks had become attached.

The Court also considered that the attachment of the sandbanks would happen at one single moment; prescriptive rights could not therefore apply. Further, in respect of the arguments of the doctrine of accretion, the Court found that accretion could not assist the Fishery as the joining up of the sandbanks occurred at a single moment and not over a gradual process.

The Court invited the parties to come to an agreement over the exact boundary of the area over which the estate should enjoy its right, failing which, the Court suggested sending the proceedings back to the Chancery Division for determination in this regard.


This case has resulted in a rare outcome; a win for both sides, as the public has retained its right to fish on the sandbanks and the Fishery has obtained the greatest boundary that it sought.

The case will provide some guidance to owners of land which adjoins parcels of water and which will over time naturally change and alter. The case also confirms the position in respect of obtaining a right by way of prescription by long user.

Don't Be Shellfish When It Comes To The Sandbanks!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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