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  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
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.
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