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Supreme CourtOn 9 February 2016 the Supreme Court heard the appeal of Lynn Shellfish Ltd & Ors v Loose & Anor. It concerned the doctrine of accretion in a dispute over whether the private fishing rights of the respondent estate owners had been extended by the siltation of a channel and the shifting of the sandbanks which has presented a new low-water mark.

Background

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 respondents therefore now claim that, by continuing to take shellfish from these sandbanks that have become connected to the privately owned foreshore, the appellants have trespassed on their land and are liable to pay the estate for the value of those cockles they have removed. The appellants denied that the area they had been working had formed part of the private fishery.

High Court decision

The respondents brought their claim against the fishermen to the High Court, arguing that they had infringed their fishery rights. The court held that where a boundary of land bounded by tidal waters was liable to change as a result of natural forces, the doctrine of accretion operated to adjust the legal boundary of land affected, but only when the process was gradual and imperceptible. It clarified that the doctrine did not exclude a sandbank which was once always surrounded by sea but has now become accessible from the shoreline at low tide as a result of the slow process of siltation of the adjacent channels. It ruled that the fishery extended to the land, including the sandbanks, which had now become accessible by foot at low water on the estate’s coast line. It further stated that it was not open to the appellants to reopen the decision of Loose v Castleton (1981) 41 P&CR 19 which was concerned with the same fishery and decided that the seaward limit of the fishery was as far as it could be worked without boats from the shore at extreme low water.

Court of Appeal decision

The fishermen challenged that decision in the Court of Appeal. They submitted that any enlargement of the area of the private fishery since the date of the grant could have occurred only as a result of the doctrine of accretion, but that doctrine did not apply to the discrete areas of land such as sandbanks which became accessible from the shore as a result of silting up of channels. They also alternatively argued that if the doctrine did apply it had not carried with it an extension of the estate’s rights over the enlarged area. The court stated the probability was that the grant awarded to the respondents for ownership of the land would have extended to such part of the seabed as might from time to time be exposed at low water. Lord Justice Moore-Brick stated he found it unlikely that the grant would not have intended to extend to the low water mark on those occasions where the water falls below the mean law-water mark. Essentially, the court took the practical view that any grant of law would be based on common sense and therefore the private fishery would naturally expand or shrink as conditions changed and more or less of the sea bed was exposed at low water.

Appeal to the Supreme Court

The appellant fishermen were granted leave to appeal to the Supreme Court. On the 9-10 February 2016 the case was heard by a panel of five – Lord Neuberger, Lord Clarke, Lord Sumption, Lord Carnwath and Lord Hodge.

They are due to deliver the final judgment on whether the appellants are entitled to fish on the certain sandbanks of the Eastern Wash on 13 April 2016.