Isle of Anglesey County Council & Anor v Welsh Ministers & Ors

A statutory order granting a several fishery may validly authorise the grantees to grant leases or licences, even where the order lasts for up to 60 years. Saving provisions protecting landowners’ existing rights do not create a new right to substantially interfere with the fishery. A public right of fishery in tidal waters limits ownership of the foreshore and seabed. Construction which would substantially injure a several fishery is unlawful under the statutory protection provisions, unless the statutory wording clearly creates an exception.

The claimants owned the foreshore and seabed over which the Menai Strait Oyster and Mussel Fishery Order 1962 operated. They wished to construct a marina, part of which would occupy the fishery. The defendants included the statutory fishery committee and commercial mussel operators.

The claimants sought declarations that the 1962 Order was ultra vires, that Articles 16 and 18 preserved their right to construct the marina, and that construction would not breach section 7 of the Sea Fisheries (Shell Fish) Act 1967. The central issues were the validity and construction of the 1962 Order and whether the proposed development would unlawfully interfere with the fishery.

1. Validity of the 1962 Order. The 1868 Act was broadly framed. Sections 29 and 34 permitted an order containing provisions considered expedient, while section 40 made the right subject to restrictions and exceptions contained in the order. Read purposively, the reference in section 53 to the grantees’ agents included persons authorised by them to fish. The Act therefore permitted the grantees to authorise others by lease or licence. The 1962 Order was intra vires and valid.
2. The alternative severance argument would have required removal of several interdependent provisions, including Articles 5 and 8. The judge would have rejected severance, since the committee’s non-personal operation of the fishery was an essential underpinning of the Order.
3. Articles 16 and 18. Those provisions preserved existing rights; they did not confer new rights on the Crown Estate Commissioners or the Council. Before 1962, ownership of tidal foreshore and seabed was subject to the public right of fishery. The saving provisions therefore did not reserve a right to carry out works substantially interfering with the several fishery.
4. The proposed marina would permanently destroy more than seven hectares, including the crucial hardening area, and would substantially affect the remaining fishery. It would therefore constitute a substantial interference. The doctrine of derogation from grant did not directly apply because the claimants were not grantors, but the express terms of the Order remained central to its construction.
5. Section 7(4) of the Sea Fisheries (Shell Fish) Act 1967. The claimants were neither grantees nor their agents or employees. The statutory prohibition on disturbing or injuring the fishery could not be modified by Articles 16 and 18. Construction of the marina would consequently be unlawful.

The claimants’ claims failed. There was judgment for the defendants. The form of order and costs were reserved for further argument.