Supreme Court reaffirms that prescriptive rights must be based on actual use
On 13 April 2016 the Supreme Court allowed an appeal in the case of Lynn Shellfish Ltd v Loose  UKSC 14.
Owners and operators of fishing boats, who had been exercising their rights as members of the public to fish in tidal waters, brought the appeal. They had fished for cockles in an area claimed as part of a private fishery.
In Loose v Castleton (1978) 41 P&CR 19 it was established that there had been exclusive control of shell-fishing over an area (the foreshore) for a sufficient period of time to raise a presumption that there had been a grant of a private fishery.
The appellants challenged the extent of the fishery. Its owner and tenant argued that sandbanks, which had previously been fished by the public, had now become part of the fishery excluding the public. Channels between the sandbanks had filled with silt, which joined them to the foreshore at low tide. The respondents argued that the grantor of their prescriptive right intended that the fishery should extend with the expanding foreshore or alternatively that the sandbanks had become added to by the gradual and imperceptible addition of land known as accretion.
The Court of Appeal had held that the sandbanks had become part of the fishery but Supreme Court allowed the appeal, saying that whilst one would expect the grant of a fishery over the foreshore to have a movable boundary following the sea as it advances or retreats it did not follow that the sandbanks had become part of it.
The Supreme Court said that the proper basis for establishing the nature and extent of a prescriptive right is not by assessing the likely terms of a fictional notional grant. One must assess the extent of the actual use of the right established by evidence.
As to accretion, the court said there was a difference between the gradual extension of a recognised part of the foreshore and joining up of a formerly distinct sandbank. In the latter case the doctrine could not operate to alter parties’ rights.
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