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On appeal from: [2014] EWCA Civ 846

The Supreme Court unanimously dismissed the appeal regarding the seaward boundary, finding that the boundary is determined by the lowest astronomical tide. However it allowed the appeal in relation to the second issue, holding that the Estate’s right to fish did not extend to the sandbanks which attach to the Foreshore as and when they become so attached.

The respondents are the freehold and leasehold owners of the foreshore of the Eastern Wash, including a several fishery under a deemed grant from the Crown. The appellants’ operate fishing boats and have fished on the various sandbanks on the Eastern Wash which were not subject to the several fishery. Over time, the natural processes of the siltation of a channel, combined with the shifting of the sandbanks, had shifted the average low-water mark which formed the boundary of the respondents’ rights. The parties accepted that the Estate is the owner by prescription of the Right, but were in dispute as to two issues relating to the extent of the Area.

Delivering the joint leading judgment, Lord Neuberger and Lord Carnwath concluded that the seaward boundary is a fluctuating boundary. The evidence clearly established that during the substantial period during which the prescriptive Right to take shellfish from the Foreshore was exercised, the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out. In those circumstances, it was very likely that the putative Right would have been exercised over an area which was defined or limited by a shifting low tide mark. It ruled that the most satisfactory low water mark is the lowest astronomical tide, as this means that all parts of the Foreshore which are at any time uncovered by the sea are included in the Area.

In relation to the second issue, Lord Neuberger and Lord Carnwath established that the evidence does not establish that the Estate’s prescriptive Right extends to sandbanks which were not previously joined to the Foreshore as and when they become so attached. The justices reasoned that the actual attachment of sandbanks to the Foreshore itself will happen at one moment, unlike the shifting of the low tide mark will normally be gradual. It clarified that there is a difference in kind between the gradual extension of one recognised bank and the joining up of two formerly distinct banks. There is therefore no room for the doctrine of accretion in relation to the sandbanks which became connected to the foreshore in the present case.

The finally concluded that In the absence of agreement between the parties to allow the court to define the precise extent of the Area, the best course of action would be to remit the proceedings to the Chancery Division to enable the precise extent of the Area to be identified.

 

For judgment, please download: [2016] UKSC 14
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website