Mills v Arun District Council

The statutory right given to herring fishermen by the White Herring Fisheries Act 1771 does not authorise occupation of developed, enclosed wharf land merely because it lies within a harbour or below the highest high-water mark.

The expression “waste or uncultivated land” refers to unproductive, undeveloped land in its natural state. It does not include concrete hardstanding forming part of a privately owned commercial wharf. An appellate court should also guard against allowing a party to advance at appeal a point and evidence which could readily have been deployed at trial.

Arun District Council obtained possession of Norfolk Wharf, Littlehampton, from Clive Mills in the Chichester County Court. Mills, a herring fisherman, contended that his occupation was authorised by section 11 of the White Herring Fisheries Act 1771.

The county court held that the wharf was not “waste or uncultivated land”. Popplewell J dismissed Mills’s appeal. Before the Court of Appeal, Mills sought permission to appeal and permission to adduce further evidence. He argued that section 11 also gave fishermen a right to use land forming part of a harbour, irrespective of its developed character. The central issues were the construction of section 11 and whether the new point and evidence could properly be raised at this stage.

1. Applications dismissed. The application for permission to appeal, with the appeal to follow, and the ancillary application to adduce further evidence were dismissed with costs, summarily assessed at £7,000.
2. The county court proceedings had focused on the second limb of section 11, namely the reference to “waste or uncultivated land”. The proposed first-limb argument concerning “ports, harbours, shores, and forelands” had effectively been abandoned below. The absence of relevant findings of fact and the need for evidence which could have been adduced at trial provided an additional reason not to entertain it at this stage.
3. The essential idea conveyed by “waste or uncultivated land” was unproductive, undeveloped land in its natural state. Enclosed concrete hardstanding, supported by steel piling and forming developed wharves in a town, could not satisfy that description. The reasoning in Campbeltown Shipbuilding Co v Robertson was entitled to respect and supported that conclusion.
4. The word “harbours” in section 11 could not be construed, in the statutory context, as giving herring fishermen a right to occupy privately owned wharves forming part of the built environment of an artificial harbour. Section 12 contemplated payment of harbour dues for vessels using artificial harbours, but section 11 was not intended to confer unrestricted use of commercial shore infrastructure. The consequences of Mills’s construction were unacceptable, as illustrated by Iveagh v Martin.
5. Lord Justice Keene additionally emphasised finality in litigation. The Civil Procedure Rules did not entitle a litigant to a second opportunity merely because the case had not been properly presented at trial. The principle in Ladd v Marshall remained relevant.

• Chichester County Court: His Honour Judge Barratt ordered Mills to give possession of the wharves to Arun District Council and granted injunctive relief.
• Administrative Court: Popplewell J dismissed Mills’s appeal from the county court order.
• Court of Appeal (Civil Division): The court dismissed the applications for permission to appeal and to adduce further evidence, with costs.