Borwick Development Solutions Ltd v Clear Water Fisheries Ltd

Live fish in a closed commercial fishery remain wild animals, but qualified property may arise through the owner’s industry, diligence and hard work where the fish are separated and controlled within the fishery. That qualified property does not pass automatically with a conveyance of the land unless the transfer addresses the fish. The relevant inquiry is whether the fish are confined within the closed system, including any mesh or other separation preventing their escape. Solar panels are fixtures where, viewed as a composite structure, their method and degree of annexation and their objective purpose show that they form an integral part of the land. The purpose of annexation is more important than the degree of annexation.

The claimant formerly operated a commercial fishery on land later acquired by the defendant from Law of Property Act receivers. The claim alleged conversion of two classes of property present on the land at completion: fish stocked and husbanded in nine man-made lakes and pools, and solar panels, associated equipment and a feed-in tariff meter.

The central issues were whether the claimant retained a proprietary interest in the fish despite the sale of the land, and whether the solar panels were chattels or fixtures passing with the freehold. The trial concerned liability only.

1. The claim in conversion succeeded in relation to the fish and failed in relation to the solar panels and associated equipment.

2. Conversion required the claimant to establish actual possession or an immediate right to possession and a proprietary interest existing when the alleged conversion occurred.

3. Fish are wild animals and cannot ordinarily be the subject of absolute ownership while alive. However, the court could adapt the law of qualified property per industriam to a modern commercial fishery. The appropriate test was separation and control, rather than the defendant’s proposed requirement of close or immediate physical control. Fish introduced into, reared within, and confined by a closed commercial fishery could therefore be subject to qualified property arising from the operator’s industry, diligence and hard work.

4. The claimant had qualified property in fish unable to pass through the separating meshes. It did not have title to fry or small fish capable of passing through them. The qualified property in the confined fish did not pass with the land because the conveyance did not expressly address or purport to transfer title to the fish. The claimant could therefore sue in conversion.

5. Whether an item is a fixture depends on the method and degree of annexation and the object and purpose of annexation. The purpose is assessed objectively and concerns the purpose served by the item, not the subjective intention of the person who attached it. The solar panels had to be considered together with their supporting structure. Their substantial attachment and their purpose of supplying electricity to the premises and forming an integral part of the land made them fixtures. Title passed automatically to the defendant on the sale.

First-instance trial on liability only. No appellate history is stated in the judgment.