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

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.

Facts

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.

Decision

The Supreme Court unanimously held that the...