Isle of Anglesey County Council & Anor v The Welsh Ministries & Ors

A statutory right of several oyster and mussel fishery under the Sea Fisheries Act 1868 was an exclusive proprietary right capable of assignment or lease. Long-standing practice, parliamentary confirmation of orders and subsequent legislation may resolve ambiguity in an old statute, particularly where legal certainty supports the established construction.

Exceptions in a fishery order preserving landowners’ existing rights do not displace the separate criminal protection of the fishery. Section 7(4) of the Sea Fisheries (Shellfish) Act 1967 protects the public as well as the private interest in statutory fisheries. Development involving prohibited interference therefore requires alteration of the fishery’s statutory boundaries or other effective legislative authority.

The County Council and the Crown Estate Commissioners sought declarations enabling construction of a marina on foreshore within a commercially cultivated mussel fishery. The fishery was established by the Menai Strait Oyster and Mussel Fishery Order 1962 under the Sea Fisheries Act 1868. Its fishing areas were leased by the statutory fisheries committee to commercial operators.

Davis J, in the Queen’s Bench Division, rejected the claim in [2008] EWHC 921 (QB). The claimants appealed on three issues: whether the 1962 Order was ultra vires; whether articles 16 and 18 preserved a right to build the marina notwithstanding the fishery rights; and whether section 7(4) of the Sea Fisheries (Shellfish) Act 1967 made the proposed works unlawful.

1. Appeal dismissed. Carnwath LJ gave the leading judgment. Lawrence Collins LJ and Pill LJ agreed.

2. The 1962 Order was valid. A right of several fishery was a familiar form of incorporeal property, ordinarily capable of assignment or lease. Although the wording of section 40 of the Sea Fisheries Act 1868 created ambiguity by referring to the persons obtaining the order as the grantees, it did not confine the right to those persons personally. The long duration permitted for a grant also made a purely personal construction improbable.

3. The later history provided unusually strong assistance in resolving that ambiguity. Parliament had confirmed orders which expressly extended fishery rights to heirs, assigns or lessees. That construction had then governed the industry without dissent for many years. In an esoteric field where decided cases are rare, legal certainty strongly favoured allowing those concerned to continue arranging their affairs according to the established interpretation. The revised definition of grantees in the Sea Fisheries (Shellfish) Act 1967 was consistent with that conclusion.

4. Articles 16 and 18 of the 1962 Order operated as exceptions to the statutory grant. They preserved pre-existing rights of the Crown and the Council but did not enlarge those rights. The fishery rights granted by the Order therefore did not themselves detract from any independently existing right to build the marina. Any public fishing rights had to be assessed as they existed, or would have existed, apart from the private fishery created by the Order. The evidence did not establish that position adequately. In any event, a declaration leaving unresolved the necessary statutory authorisations would have been inappropriate.

5. Section 7(4) of the 1967 Act was determinative. Its criminal prohibition protected established shellfish fisheries in the public as well as the private interest. It served a different purpose from the provisions defining the grantees’ proprietary rights. The saving clauses stated only that nothing in the Order should prejudice the landowners’ rights; they could not exclude criminal sanctions imposed by the Act itself. The marina works would therefore remain unlawful unless an amending order removed the development area from the fishery or other effective legislative authority displaced the prohibition.

• Court of Appeal (Civil Division): The appeal was dismissed by [2009] EWCA Civ 94. The court upheld the validity of the 1962 Order and held that section 7(4) of the Sea Fisheries (Shellfish) Act 1967 was not displaced by its saving clauses.
• High Court, Queen’s Bench Division: Davis J rejected the claim for declarations in [2008] EWHC 921 (QB).