Loose v Lynn Shellfish Ltd & Ors

A private fishery established by long enjoyment and presumed lost grant is governed by the scope of the notional grant, not simply by evidence of past user. Where the presumed grant is of the foreshore as it exists from time to time, the fishery may move as tidal conditions change. The doctrine of accretion is not needed to explain or enlarge that incorporeal right. The seaward boundary depends on construction of the grant. A grant to take shellfish from the seabed exposed at low water was best treated as extending to Lowest Astronomical Tide. Mean low-water mark of spring tides was too artificial, while Extreme Low Water would include seabed exposed only in exceptional conditions. The earlier authority established only that the fishery extended at least to mean low-water mark of spring tides and did not settle the further boundary.

The appeals arose from a dispute about the extent of a private shellfish fishery in the Wash. The fishermen appealed the decision of Sir William Blackburne in the Chancery Division, reported at [2013] EWHC 901 (Ch), that the fishery extended over areas which had become accessible on foot after channels silted up and that its seaward boundary was mean low-water mark of spring tides.

Mr Loose appealed the boundary ruling, seeking a boundary at Extreme Low Water or, alternatively, Lowest Astronomical Tide. The fishermen contended that any enlargement depended on accretion and that the fishery was confined by actual historic user. The central questions were the scope of the presumed grant, the relevance of accretion, and the proper seaward boundary.

The court unanimously dismissed the fishermen’s appeal and allowed Mr Loose’s appeal to the extent indicated. The seaward boundary of the fishery was Lowest Astronomical Tide.

1. Scope of the grant. The estate’s private fishery was established through long enjoyment and the presumption of a lawful grant before legal memory. Following the principle in Malcolmson v O’Dea and the reasoning in Loose v Castleton, the scope of the presumed grant was not determined solely by evidence of actual user. The grant was properly treated as extending over the foreshore as it existed from time to time.
2. Effect of user and accretion. Where rights were asserted over a single unbroken entity, it was unnecessary to prove active assertion over every part of it, as illustrated by Neill v Duke of Devonshire. The doctrine of accretion regulated boundaries between adjacent titles and was not necessary to explain the movable extent of an incorporeal several fishery. The fishery could expand or contract as the area of seabed exposed at low water changed. The court’s alternative discussion accepted that gradual silting could affect land boundaries and that existing rights could extend over added land, but that did not determine the present fishery’s scope.
3. Seaward boundary. Loose v Castleton had established only that the fishery extended at least to mean low-water mark of spring tides. Practical convenience could not determine the boundary. The more probable construction was that the grant extended to seabed exposed from time to time at low water. Mean low-water mark of spring tides was an artificial average, whereas Extreme Low Water would include areas exposed only by exceptional forces. Lowest Astronomical Tide was the appropriate modern description.

• Court of Appeal (Civil Division)—In [2014] EWCA Civ 846, the fishermen’s appeal was dismissed and Mr Loose’s appeal was allowed so that the seaward boundary was fixed at Lowest Astronomical Tide.
• High Court of Justice, Chancery Division—Sir William Blackburne’s decision, reported at [2013] EWHC 901 (Ch), held that the fishery covered the relevant foreshore and that its boundary was mean low-water mark of spring tides.