The recent case of Lynn Shellfish Ltd and others v. Loose and others [2016] UKSC has seen the Supreme Court take a practical approach to the law of prescription. Those involved in the development of facilities for renewable energy may already be familiar with the need to work around other manorial rights, such as mineral rights and rights to shoot game. It is not difficult to imagine a scenario in which facilities for the generation of tidal power, or even wind turbines, could similarly impinge upon foreshore fishing rights.

In this case the Supreme Court ruled that the extent of an exclusive prescriptive right to take cockles and mussels from the sandy foreshore of the Wash (in Norfolk) depends, not on some fictitious presumed historical grant of that right, but on its actual use by the party entitled to it. Such rights can exist over areas of variable extent, provided that it is possible to ascertain the extent of the area at any given point. On the other hand, the court also decided that the right did not extend to sandbanks that had become attached to the foreshore when the channels between them and the foreshore silted up. The court’s reasoning was that the sandbanks had become attached at a specific moment in time, rather than gradually, and prior to the attachment they had been subject to public fishing rights.

The Lord of the Manor and Mr Loose

One of the co-respondents to the appeal was Michael LeStrange Meakin, Lord of the Manors of Snettisham and Heacham. He is the proprietor of an ancient and exclusive right to collect cockles and mussels from a section of the foreshore of the Wash adjoining his land to the east, otherwise known as a ‘profit a prendre’ (or just a ‘profit’). The Lord of the Manors had, in turn, granted this right to another co-respondent, Mr Loose, who was holding over following an initial 3-year lease of the right, granted in 1970 and never subsequently terminated. The existence of the right was not in dispute, nor for that matter was Mr Loose’s claim to exercise the right exclusively under the terms of the lease. It was the extent of the area covered by the right that led to the litigation, which eventually made its way to the Supreme Court.

The dispute arose because Lynn Shellfish Ltd, who is an operator of a commercial fishing businesses in the Wash, had been using modern, boat-based suction dredging techniques to fish for the cockles and mussels in areas that Mr Loose claimed were covered by his exclusive right to pick the cockles and mussels on foot. They were doing this because inshore waters such as the Wash are subject to public fishing rights, and the best cockle and mussel fishing grounds were in areas that were only uncovered by the sea at low tide, making it possible to fish the areas by boat for long periods each day.

The questions before the court were how far the low tide mark should extend for the purposes of determining the area covered by Mr Loose’s right to fish on foot, and whether certain sandbanks that had become attached to the foreshore by the action of the tides – silting up the channels in between – formed part of the area covered by Mr Loose’s right.

...since time immemorial

Prescriptive rights are those which a party acquires, not by formal written grant, but by means of carrying out a particular activity on somebody else’s land as if it had the right to do so. Centuries of case law and some questionable legislation have produced various legal principles for the justification of these rights, prompting the Supreme Court to remark that:

“The law in that connection is a mixture of inconsistent and archaic legal fictions, practical if sometimes haphazard judge-made rules and (in the case of easements and some profits but not profits in gross) well-meaning but ineptly drafted statutory provisions”.

The right to collect cockles and mussels on foot was, in this case, said to be based on ‘common law prescription’, which meant that because the right had been exercised further back than anyone could remember, it raised a presumption that it had been so exercised since before legal memory began (with the accession of Richard I, in 1189), otherwise known as ‘since time immemorial’.

The variable area

The Supreme Court clarified that a common law prescriptive right such as this is based, not on some imagined long-lost document, but on a history of actual use ‘as of right’, so as to demonstrate to the owner of the land on which the right is being exercised that the right is being asserted against him. In this case the owner of the land (as with all foreshore) was the Crown, and the person presumed to have been picking up cockles and mussels along the foreshore as of right since time immemorial was the Lord of the Manors (or, presumably, his serfs or vassals, there not being many recorded instances in history of cockle-picking gentry). Having thereby acquired the right, he was able to demise it to Mr Loose under a lease. The court saw no reason why the right could not apply to an area of variable extent, provided that it was possible to determine that extent from time to time. Express rights can be granted on those terms, and the same should apply to prescriptive rights.

The fundamental point, though, was that the extent of the right was determined by its use. This led the Supreme Court to reject Lynn Shellfish’s reasoning that the extent should be confined by reference to a fixed low tide mark, based on average low tides, and rule that the appropriate boundary should fluctuate over time, according to the location of the lowest astronomical tide mark. Even though the lowest astronomical tide was only reached, on average, every 18.6 years, the court considered that this was the only way to give proper effect to the right as it would have been exercised in reality, namely by taking cockles from everywhere that it was possible to reach on foot when the tide was out. It was relevant that the modern boat-based dredging techniques had only become available in recent years, meaning that historically it would have been impossible to gather the cockles and mussels from some of the choicest areas, only exposed at the lowest of tides, unless the right extended to include those areas.

The sand bars

Mr Loose and his co-respondents did not win an unqualified victory. The Court decided that the sandbanks were not covered by the right to take cockles and mussels. Part of the basis for this involved a somewhat counter-intuitive finding of fact, namely that the sandbanks had not become attached to the land gradually, but became so attached at a particular moment in time. Though the channels between the sandbanks and the foreshore had become silted up gradually over a period of time, and the gap between them thereby closed, there had nevertheless been a defined point in time at which the gap actually closed.

This fact was important, because it served to undermine both bases of Mr Loose’s argument. First, the common law prescriptive right that had been acquired in respect of the foreshore could not extend to the sandbanks, because up until the defined moment in time when the sandbanks became attached, the public fishing rights over the Wash as an inshore waterway had applied to them, meaning that no exclusive prescriptive rights could have existed in favour of the Lord of the Manors. Secondly, the sandbanks could not have become attached to the area covered by those rights by means of the doctrine of accretion, as a gradual and imperceptible attachment of the sandbanks to the foreshore area would have been required for accretion to apply, and the court decided the attachment happened suddenly, albeit as a result of a gradual process.

Wider significance

The case is obviously of considerable significance to those who may become concerned with the extent of manorial fishing rights over the foreshore. In some areas in the UK the extent of foreshore uncovered at low tide is very large, and it is now clear that prescriptive fishing rights over the foreshore can extend as far out as the tide will recede.

More generally, the Supreme Court has provided some helpful clarification in that common law prescriptive rights can be variable, provided that the extent of the area covered by the rights is capable of being ascertained from time to time, and are in any event dependent on actual use, not some fiction of an ancient, presumed grant.