On the east side of the Wash, the Le Strange estate has an exclusive right, gained by long use, to take cockles and mussels from a stretch of foreshore. The Supreme Court held that the seaward edge of that right is the lowest astronomical tide as it stands from time to time, but that a sandbank which was once separate does not enter the right merely because it later joins the foreshore.
The right in dispute
Mr Michael Le Strange Meakin, the second respondent, is Lord of the Manors of Snettisham and Heacham. Together with his predecessors, described as the Estate, he owns land beside the foreshore on the east side of the Wash. The Estate has long claimed an exclusive right to take cockles and mussels between Wolferton Creek and Thornham Creek. In 1970 it leased that right to Mr John Loose, the first respondent, who was still holding over. It was accepted that the Estate had such a right over part of the foreshore. The argument was about its western limit, and about sandbanks that had once been separated from the foreshore by channels.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The appellants operate fishing boats from King’s Lynn. In the summer of 2007, 13 of their boats took cockles at or near Stubborn Sand and Ferrier Sand. Those banks are now attached to the foreshore, but each had previously been separate. Historically, cockles and mussels were gathered on foot at low tide. By 2007 they were also being taken from vessels, including by suction dredging, while the tide still covered the ground.
Why the right depends on use
In tidal waters the public may fish as of right, and the Crown is prima facie owner of the foreshore. An exclusive fishery, traditionally called a several fishery, is a right to keep others out, not a right to take fish which the public lacks. The Crown can no longer create such a right, but one may still be established by prescription if long use shows that it is to be treated as having been granted before the end of the reign of Henry II.
Lord Neuberger and Lord Carnwath, with the agreement of Lord Clarke, Lord Sumption and Lord Hodge, held that the extent of a prescriptive right is fixed by the use actually enjoyed as of right, not by guessing the terms of an imaginary grant. The use must be open, peaceful and without permission, so that the person affected must choose between objecting and allowing the claim to mature. If acts on part of an area support a reasonable inference that the whole natural unit was used in the same way, that unit may be included. The inference always depends on the circumstances.
The history of the boundary
Historical leases and earlier proceedings confirmed the existence of a fishery. They did not settle its precise seaward boundary.
Neither those proceedings nor fishery orders made for the Wash finally settled the two issues in this appeal. Orders such as the Lynn Deeps Fishery Order 1872 and the Wash Fishery Order 1992 were not intended to abridge or recognise private rights. Charts going back to 1588 did show that low-water marks have moved, in recent periods generally seawards, and that separated sandbanks have joined the foreshore as channels silted up. Stubborn Sand has been attached since the eighteenth century. Ferrier Sand joined around 50 years before this judgment, and Blackguard Sand within about the previous 20 years. Apart from Stubborn Sand, the Estate had not exercised an exclusive right over those banks while they were separate. They were open to the public, and members of the public had taken shellfish from at least some of them within living memory.
The fishing operators argued for a mean low-water boundary. The Crown Estate Commissioners supported their argument that attachment alone did not add a sandbank to the fishery.
A moving line at the lowest astronomical tide
The Supreme Court held that the western boundary moves with the tide. A fixed line taken from the 1872 chart would not match the way the right had been used. Over a long period, shellfish were gathered by people walking from the land when the tide was out, while the low-water mark shifted substantially. The natural area of that use was the foreshore between high and low water from time to time. Any public right further seaward would, until fishing from boats became practicable, have been of no real value, because the shellfish could not be reached on foot.
Which low-water mark to choose was more open. The landward limit of the foreshore is the mean high-water mark, but the Court recorded that there is no equivalent consensus about the seaward limit. Not without hesitation, it chose the lowest astronomical tide, the most extreme low water, which occurs every 18.6 years. That choice includes every part of the foreshore which the sea ever uncovers, and it avoids an average line which can be seen on a chart but is not itself a tide. Older references to the lowest ebb gave only indirect support.
The rarity of that tide did not make it artificial in this setting. A cockle or mussel may not live 18.6 years, but until suction dredging and similar techniques nobody could take shellfish lying just to landward of that mark except when the tide actually fell so far. The Court therefore agreed with Moore-Bick LJ’s conclusion, while rejecting reasoning based on the likely terms of a notional grant. The boundary is the lowest astronomical tide from time to time because that reflects the probable extent of the actual use.
Sandbanks which later became attached
The Estate failed to show that the same long use carried the right onto banks such as Ferrier Sand and Blackguard Sand once they joined the foreshore.
A tide mark normally shifts little by little. A channel also silts gradually, but the whole of a detached sandbank becomes joined at a particular moment. The respondents themselves treated attachment as occurring at a specific point, not as something that came and went between low and high tide. Until that moment the public could fish the bank. Without evidence that the Estate then took shellfish there and excluded the public as of right, the Court refused to assume that it had done so. There was no such evidence. Given that local fishermen had taken shellfish even from the established fishery, it was unlikely that they would have accepted an extension simply because a bank had become attached. Mr Loose had not claimed Ferrier Sand in Loose v Castleton. Later negotiations about taking cockles from Ferrier Sand were too few, too short and too unclear to show public acceptance of an exclusive right.
Stubborn Sand was different, and the appellants no longer disputed it. The Estate may have taken shellfish there before it joined the foreshore. It has in any event been attached since before living memory, so prescription could have established the right over it anyway.
Accretion did not produce a different result. The doctrine allows a boundary with water to follow gradual and imperceptible change, but not a sudden and substantial one. The slow extension of a single bank is different in kind from two separate banks joining. Here the addition of the whole sandbank would occur at one identifiable moment, so accretion did not apply. The Court accepted the corresponding consequence: if part of the original foreshore later separated and became its own sandbank, it would remain within the fishery.
Verdict: The operators lost on the tidal boundary and won on the newly attached sandbanks. Stubborn Sand was accepted as part of the fishery. The exact boundary was left for agreement or determination in the Chancery Division.
Source: Lynn Shellfish Ltd and others v Loose and another [2016] UKSC 14
