Lynn Shellfish Ltd and others v Loose and another

The nature and extent of a prescriptive right are determined by the actual use as of right proved over the requisite period, viewed in its practical setting. They are not determined by reconstructing the probable terms or intentions of a fictional grant.

An exclusive prescriptive fishery may have a boundary which moves with the low-water mark. However, it does not automatically extend over a formerly separate sandbank when that bank joins the foreshore, particularly where the public previously enjoyed a right to fish there. Accretion applies only where the boundary itself changes gradually and imperceptibly. It does not transfer an entire bank at the identifiable moment when two formerly distinct areas become joined.

The Estate held an exclusive prescriptive right to take cockles and mussels from part of the foreshore on the eastern side of the Wash. Fishing operators disputed the right's seaward boundary and whether it included sandbanks which had formerly been detached from the foreshore.

The High Court held that the seaward boundary was mean spring low water and that formerly detached sandbanks became subject to the right, either through the nature of the prescriptive right or through accretion: [2013] EWHC 901 (Ch). The Court of Appeal substituted the lowest astronomical tide as the boundary but upheld the decision concerning the sandbanks: [2014] EWCA Civ 846; [2015] Ch 547.

The issues before the Supreme Court were which low-water mark defined the fishery and whether formerly detached sandbanks became part of it upon joining the foreshore.

1. The appeal was allowed in part. The Court unanimously upheld the lowest astronomical tide mark, moving as that mark changes over time, as the seaward boundary. It reversed the decisions below concerning formerly detached sandbanks.

2. Lord Neuberger and Lord Carnwath, with whom Lord Clarke, Lord Sumption and Lord Hodge agreed, held that the extent of a prescriptive right depends on the actual use as of right established by the evidence. A court must not determine its extent by speculating about the probable terms or intentions of a fictional grant. The right must be measured by the proved enjoyment, subject to practical reality and the unum quid principle, under which possession or use of part may support an inference concerning a naturally coherent whole.

3. The fishery's seaward boundary fluctuated with the low-water mark. The historic method of gathering shellfish by walking from the land made a moving boundary practically inevitable. Treating the exposed foreshore as a natural unit also supported that conclusion. The lowest astronomical tide was the least arbitrary boundary because it included every part of the foreshore exposed at any tide. The court rejected the appellants' proposed fixed boundary derived from the Lynn Deeps Fishery Order 1872.

4. The fishery did not automatically extend to a formerly separate sandbank when it became attached to the foreshore. Until attachment, the public possessed a right to fish on the bank. Without evidence that the Estate historically took shellfish from such newly attached banks and excluded the public, that public right prevented an inference that the prescriptive fishery expanded upon attachment. Stubborn Sand was distinguishable because it had been attached since before living memory and could independently have become subject to prescription.

5. The doctrine of accretion also did not incorporate the former sandbanks. Accretion requires the actual change in the land-water boundary to be gradual and imperceptible. Although the silting of an intervening channel may be gradual, an entire bank joins the foreshore at an identifiable moment. That is a sudden and substantial addition, not gradual accretion.

6. If the parties could not agree the fishery's precise extent, the proceedings were to be remitted to the Chancery Division for that issue to be determined.

1. United Kingdom Supreme Court: The appeal was dismissed concerning the seaward boundary but allowed concerning formerly detached sandbanks: [2016] UKSC 14.
2. Court of Appeal: The respondents' cross-appeal was allowed and the seaward boundary fixed at the lowest astronomical tide mark. The appeal concerning former sandbanks was dismissed: [2014] EWCA Civ 846; [2015] Ch 547.
3. High Court, Chancery Division: Sir William Blackburne held that the boundary was mean spring low water and that formerly detached sandbanks became part of the fishery through prescription or accretion: [2013] EWHC 901 (Ch).