IN THE COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Ref: A2 / 2008 / 1234

[2008] EWHC 921 (QB)

BETWEEN:

THE ISLE OF ANGLESEY COUNTY COUNCIL (1)

THE CROWN ESTATE COMMISSIONERS (2)

and

Claimants/Appellants

THE WELSH MINISTERS (1)

NORTH WESTERN AND NORTH WALES SEA FISHERIES COMMITTEE (2)

ANDREW WILSON (3)

EXTRAMUSSEL LIMITED (4)

Defendants/ Respondents

References in this skeleton to [*/*] are to [tab/page] in the Appeal Bundle

SKELETON ARGUMENT FOR THE APPELLANTS

INTRODUCTION

1. This is an appeal from a decision of Davis J refusing to grant the Appellants three

declarations. It is brought with his permission.

2. The Appellants’ claim was made in connection with a project to construct a marina

at Gallows Point in Anglesey on land vested in the Appellants. The construction of the

marina would affect a mussel fishery that purportedly operates under the Menai Strait

Oyster and Mussel Fishery Order 1962 (“the 1962 Order”). The object of the Appellants’

claim was to establish whether the 1962 Order inhibits the exercise of the landowners’

rights to develop the marina subject to obtaining any necessary statutory consents and

authorisations.

3. The appeal raises three issues:

(1) whether the 1962 Order was ultra vires? The Act under which the Order was

purported to have been made provided that only the Grantees should

have the exclusive statutory right and powers conferred by that Act and

any Order. The 1962 Order provided, however, that the Grantees should

not exercise in substance the exclusive right the Act required that they

should have and it purported to allow the Grantees to vest their exclusive

statutory right in others and to allow others to exercise the statutory

powers vested in them. Davis J held that the exclusive statutory right

granted and its associated statutory powers were not personal to the

Grantees and that they could be transferred to, and exercised by, others.

The Appellants contend that this conclusion is inconsistent with the

relevant statutory scheme and that the 1962 Order was accordingly ultra

vires;

(2) whether the 1962 Order (if intra vires) adversely affects the landowner’s rights

to develop their land subject to obtaining any necessary statutory consents and

authorisations? The 1962 Order contained provisions that “nothing in this

Order shall affect prejudicially any” right of the Crown or any of the

rights the County Council’s predecessor in title with regard to the parts

of the sea bed and foreshore respectively vested in them. Davis J held in

effect, however, that any right which the Crown and the County Council

may otherwise have, subject to obtaining any necessary statutory consents

and authorisations, enabling the marina to be developed could not be

exercised given the 1962 Order. The Appellants contend that this is

inconsistent with these provisions in the Order: the provisions preserved

such rights from being prejudicially affected by the 1962 Order; and

(3) whether section 7(4) of the Sea Fisheries (Shellfish) Act 1967 precludes the

exercise of such rights if they have not been adversely affected by the 1962 Order?

Davis J held that this subsection had that effect. The Appellants submit

that it does not have that effect.

4. This case is the first in which the relevant legislation, and in which a standard

protective clause inserted in orders made under it in favour of the Crown, has come

before the courts for consideration since the relevant legislation was first enacted in the

1860s. Its has significant implications for the future making of such orders.

2

BACKGROUND

(a) the legislative background

5. The 1962 Order was made under Part III of the Sea Fisheries Act 1868 (“the 1868

Act”). That Part of the Act provided for the creation of a right of several oyster and

mussel fishery by order; for the creation of a right to regulate an oyster and mussel

fishery by order but without creating a right of several oyster and mussel fishery; and

for the protection of such fisheries as well as private oyster beds owned independently

of the 1868 Act.

6. The power to make orders creating a right of several oyster and mussel fishery and

of regulating an oyster and mussel fishery under the 1868 Act was initially vested in the

Board of Trade. By 1962 this power had been transferred to the Minister of Agriculture

1Fisheries and Food . This case is concerned with the exercise of the power to create a

several oyster and mussel fishery.

7. Section 29 of 1868 Act provided that:

“29. An Order for the Establishment or Improvement, and for the Maintenance and

Regulation, of an Oyster and Mussel Fishery on the Shore and Bed of the Sea, or of an Estuary

or tidal River, above or below, or partly above and partly below, Low-water Mark (which

Shore and Bed are in this Part of this Act referred to as the Sea Shore), and including, if

desirable, Provisions for the Constitution of a Board or Body Corporate for the Purpose of

such Order, may be made under this Part of this Act, on an Application by a Memorial in that

Behalf presented to the Board of Trade by any Persons desirous of obtaining such an Order

(which Persons are in this Part of this Act referred to as the Promoters).”

Such a memorial having been presented, the Board of Trade had to consider whether

they thought fit to proceed in the case. If they did, the 1868 Act provided for

advertisement of a draft order and for notice of it to be given to relevant owners and

See section 1 of, and the Schedule to, the Board of Agriculture and Fisheries Act 1903 and section

1(1) of the Ministry of Agriculture and Fisheries Act 1919.

3

1

occupiers. Where any portion of the seashore proposed to be comprised in an order

belonged to Her Majesty in right of the Crown, no order could be made without the

2consent of what are now the Crown Estate Commissioners . If objections were received

within a month, an inquiry had to be held by an Inspector respecting the proposed

order . 3

8. Section 34 of the 1868 Act then provided that:

“As soon as conveniently may be after the Expiration of the said Month, or after the Receipt

by the Board of Trade of the Report of the Inspector, they shall proceed to consider the

Objections or Representations that have been made respecting the proposed Order and also

the Report of the Inspector, and thereupon they shall either refuse the Application or settle

and make an Order in such Form and containing such Provisions as they think expedient.”

9. Notice of the Order had to be given to those interested, including the owners of the

4portion of the seashore to which the order related . Such a person could then present

a memorial to the Minister within a specified period praying that the order should not

become law without confirmation by Parliament. If such a memorial was not presented

in that period, the order would come into operation but, if a memorial was presented,

the order had no effect until confirmed by Parliament . 5

10. No order creating a right of several oyster and mussel fishery could be made for a

period longer at once than 60 years .6

11. As will be explained in detail below, the right of several fishery which could be

conferred by an order under the 1868 Act was one defined by the statute itself: it was

2 See section 46 of the 1868 Act.

3 See sections 30 to 33 of the 1868 Act and section 58(1) of the Sea Fish Industry Act 1938.

4 See section 35 of 1868 Act.

5 See section 37 of the 1868 Act as substituted by section 58(3) of the Sea Fish Industry Act 1938.

6 See section 44 of the 1868 Act.

4

an exclusive right of fishery within the limits of the fishery which was personal to those

who obtained the order (referred to as “the Grantees”) in whom that right was vested.

12. The 1868 Act was repealed and replaced by the 1967 Act. The power to make orders

under the 1967 Act is now vested in the Welsh Ministers.

(b) the 1962 Order

13. The Minister purported to make the 1962 Order on February 16th 1962 to come into

operation on April 2nd 1962. Article 19 provided that, subject to section 45 of the 1868

Act, the Order was to continue for 60 years from that date and no longer.

14. Article 2 of the 1962 Order provided that:

“The Local Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries

District (in this Order called “the Grantees”) shall be the grantees of this Order and shall for

the purposes thereof be a body corporate.”

15. Articles 5 to 8 of the 1962 Order provided that:

“5. This Order confers on the Grantees a right of several oyster and mussel fishery within the

limits hereinbefore mentioned Provided that subject to the provisions of this Order the right

of fishing for or taking oysters and mussels (other than for purposes connected with the

stocking of layings or cultivation) shall not be exercised by the Grantees themselves.

6. The Grantees may grant permits or licences to fish for oysters and mussels or either of them

within the whole or any specified part or parts of the fishery to any persons or associations

of persons applying for the same upon such terms for such periods and subject to such

conditions as may be determined by the Grantees Provided that no such permit or licence

shall be granted for any period terminating after the date on which this Order ceases to

operate as provided in Article 19 hereof.

7. The Grantees may from time to time and as occasion may require:

(a) with the consent in writing of the Minister designate as reserves such

portions of the area within the limits of this Order as they may think

necessary for experimental or scientific purposes or for the purpose of the

collection of spat, that is to say, the young of oysters or mussels in connection

with the propagation cultivation breeding fattening or gathering of oysters

or mussels and may use or authorise the use of such reserves for the purposes

5

aforesaid;

(b) with the like consent designate such portions (in this Order referred to as

“layings”) of the area within the limits defined in this Order as they may

think fit so that the same may be leased as lays or layings or breeding or

fattening grounds for the cultivation of oysters or mussels.

8. (1) The Grantees may with the consent in writing of the Minister lease reserves or layings

or offer leases or reserves or layings to or enter into Tenancy Agreements relating to the

reserves or layings with any person or association of persons upon such terms and for such

periods and subject to such conditions as may be determined by the Grantees provided that

no such lease shall be granted for any period terminating after the date on which this Order

ceases to operate as provided in Article 19 hereof.

(2) Upon the execution of a lease or agreement for a lease of a reserve or laying the person to

whom such a lease is granted or with whom such agreement is made (hereinafter called “the

Tenant”) shall have as respects the reserve or laying the right of several fishery therein as if

he were the grantee of an Order under the Sea Fisheries Act, 1868, or any statutory re­

enactment modification or amendment thereof conferring on him a right of several oyster or

mussel fishery within the reserve or laying and as if any regulations restrictions terms and

conditions comprised in the lease or agreement were restrictions and exceptions contained in

that Order.”

(c) the current position

16. The 1962 Order purported to grant to the Local Sea Fisheries Joint Committee for

Lancashire and the Western Sea Fisheries District (to whom it appears that the Second

7Defendants are the statutory successors ) a right of several oyster and mussel fishery in

8the Menai Strait within the limits described in that Order . That area extends to some

761 hectares.

17. The land upon which the marina is proposed to be constructed at Gallows Point

(“the Marina Land”) is shown outlined by a broken orange line on Plan A attached to

the Particulars of Claim [2/11]. Seven hectares of the Marina land (which extends in all

to 10 hectares) are within the limits of the fishery, although not all of that area is actually

7 See article 2(4) of the North Western and North Wales Sea Fisheries District Order 1986 SI 1986 oN 1201.

8 The area was reduced slightly by an amendment order in 1964.

6

9used for mussel cultivation . The County Council is the freehold owner of the area of

land hatched brown on that plan, ownership which it has as the statutory successor to

the former corporation of Beaumaris. The land hatched green on that plan forms part

of the Crown Estate which the Crown Estate Commissioners have leased to the County

Council by a lease dated March 22nd 1993.

18. The area within the limits described in the Order has been treated by the Second

Defendants as divided into six distinct areas, covering some 502 hectares, the

boundaries of some of which are shown by broken black lines on Plan A. The Marina

land includes part of Area 4. By an agreement dated April 2nd 2002, the Second

Defendant purported to grant to the Third Defendant the right to work and maintain

area 4 as “lays or layings or breeding or fattening grounds for the cultivation of oysters

and mussels” until March 31 st 2009 subject inter alia to termination on 28 days notice if

any portion of that land was required by either or both of the Appellants for any works

or for commercial purposes. A similar agreement was also made by the Second

Respondent with the Fourth Respondent with respect to Area 3 on that Plan which may

also potentially be affected by the Marina.

19.The Marina proposed seeks to meet the need for year round safe moorings in the

eastern Menai Straits and it is regarded by the local authority, the Isle of Anglesey

10County Council, as a key element in the revitalisation of the island’s economy . It has

been estimated conservatively that the development would generate in excess of £9m

per annum of direct spending into the local economy and that it would lead to the

creation of some 143 jobs locally11. The Marina itself will occupy only a relatively small

area of the fishery and the County Council considers that there is no good reason why

a marina and a mussel fishery in the Menai Straits cannot both operate successfully. The

9 See Jones 1 at [4]-[5] [19/232].

10 See Barton 1 at [14] and [17]-[19] [22/270; 273-274].

11 Those would be associated with the marina itself, the related marine development proposed and

elsewhere in the local economy.

7

Appellants would accept the making of a further appropriate Order enabling that to

occur.

WHETHER THE 1962 ORDER WAS ULTRA VIRES

20. It is the Appellants’ case that the 1962 Order is inconsistent with the provisions of

the primary legislation under which it was purportedly made. It is thus ultra vires as,

absent an explicit power to modify the Act under which the enabling power is

conferred, there is no power to make subordinate legislation inconsistent with the

substantive provisions of the Act conferring the enabling power 12.

21. The 1868 Act itself vests an exclusive statutory right of depositing, propagating,

dredging, and fishing for, and taking Oysters and Mussels within the limits of the

fishery in the persons obtaining the order, who are referred to as “the Grantees”, and

it vests in the Grantees certain powers enabling effect to be given to their exclusive

statutory right.

22. The 1962 Order, however, seeks to vest that exclusive right in others, to authorise

the Grantees to allow others to exercise the statutory right and powers which are

exclusive to the Grantees and to prohibit the Grantees from themselves exercising the

right of fishing for or taking oysters and mussels (other than for purposes connected

with the stocking of layings or cultivation). It thus effectively negates the exclusive right

and associated powers within the limits of the fishery which Parliament provided that

the Act and any Order should confer personally upon those who obtained the order and

it provides instead for others to enjoy them.

12 thSee eg Halsbury’s Laws of England Vol 44(1) Statutes 4 ed reissue at [1521]; ex p Davis (1872) LR

7 Ch App 526 at p529; McKiernon v the Secretary of State for Social Security (1989) 2 Admin LR

133 CA per Russell LJ at p138a-b and per Sir John Donaldson MR at p140c-d.

8

(a) the statutory scheme

23. The legal effect of an order conferring a right of several oyster and mussel fishery,

and the powers of a person having that right, are defined in section 40 of the 1868 Act.

The rights of the Grantees are further defined in, and protected by, sections 51 to 53 of

the 1868 Act. These sections show that the right of several oyster and mussel fishery is

an exclusive right which was to be personal to the Grantees as were the statutory

powers conferred by section 40 to enable effect to be given to that right. That it was only

the Grantees who were authorised to exercise the exclusive sttutory right, and the

statutory powers conferred to enable effect to be given to it, is also demonstrated by the

terms of section 45 of the 1868 Act.

i. the persons who are to have the exclusive statutory right, and the powers, conferred by section

40 of the 1868 Act

24. There are two types of rights of fishing: a several fishery and a common of fishery.

A several right of fishing is an exclusive right that is not held in common with anyone

else (not merely the public, as Davis J stated at [62]): it is a right to do something that

is exclusive of all others doing that thing in a particular place: see Holford v Bailey

(1850) 13 QB 426, per Parke B at p4455-6, Malcomson v O’Dea (1863) X HLC 592 at

p618-9, 623. In that sense an exclusive right of fishing is personal to the right holder. If

it is inalienable, no one else has the right to do such things. The issue is whether

Parliament intended that anyone other than the Grantees should have the exclusive

statutory right of fishing conferred by, and the power to do the things listed in, section

40. Was it a right with associated powers which the Grantees could grant to others or

allow others to use?

25. Section 40 of the 1868 Act defined what the right of several fishery conferred by an

Order under that Act involved. It provided that:

“Where an Order of the Board of Trade under this Part of this Act confers a Right of Several

9

Oyster and Mussel Fishery, the Persons obtaining the Order, in this Act referred to as the

Grantees, shall, by virtue of the Order and of this Part of this Act, but subject to any

Restrictions and Exceptions contained in the Order, have, within the Limits of the Fishery, the

exclusive Right of depositing, propagating, dredging, and fishing for, and taking Oysters and

Mussels, and in the Exercise of that Right may, within the Limits of the Fishery, proceed as

follows, namely, make and maintain Oyster and Mussel Beds or either of them, and at any

Season collect Oysters and Mussels, and remove the same from Place to Place, and deposit the

same as and where they think fit, and do all other Things which they think proper for

obtaining, storing, and disposing of the Produce of their Fishery.”

26. Section 40 thus provided that “the Grantees shall, by virtue of the Order and of this

Part of this Act...have...the exclusive right of depositing, propagating, dredging, and

fishing for, and taking Oysters and Mussels” and then specified what, in the exercise of

that right, “the Grantees...may” do. Section 40 defined who the Grantees of the Order

were to be, namely the persons obtaining the Order. It did not include in that term

anyone deriving title from or under the Grantees or their assignees or licensees.

27. The plain effect of section 40 was that only the Grantees were to have the exclusive

statutory right created by an order conferring a right of several oyster and mussel

fishery and only the Grantees were to have power to do those things which section 40

authorised the Grantees to do. As section 40 provided, it was to be “their Fishery”. It

was to be no-one else’s.

28. No power was given to the Board of Trade in the 1868 Act (a) to provide that a

person other than the Grantees might have the statutory right of several fishery or that

a person other than the Grantees might have, or might exercise, any of the powers

which the persons having that right may exercise within the limits of the fishery or any

part of it; (b) to delegate to the Grantees any power to vest that statutory right, or to

vest the powers which may be exercised by a person having that right, in the whole or

any part of the fishery in any other person; or (c) to authorise the Grantees to allow

others to exercise the right vested in them by virtue of section 40 or to allow others to

do what section 40 authorises them to do in the exercise of their exclusive statutory right

in the whole or any part of their fishery.

10

29. This result is unsurprising. The right of several fishery is one which gives the

persons obtaining it a right that enables them alone to do various things and to stop

others doing them. No doubt it may be in the public interest to give some persons such

rights. But it does not follow that it is in the public interest to make such rights freely

transferable to, or exercisable by, others without any control whatsoever on the persons

who may do the things which a right of several fishery permits to be done. There is a

clear public interest in identifying who may have the right to do the things listed in

section 40 of the 1868 Act to the exclusion of others. The identity of that person may

affect the likely benefits, economic social and environmental, of such an order and thus

whether its making is justified in the public interest. The statutory scheme enables

control to be retained in the public interest over who has the statutory exclusive right

to be retained in the public interest. Under the 1868 Act it was the promoters, the

Grantees, who were to have the statutory exclusive right; under the 1967 Act it is now

the persons specified in the Order. That control would be lost if the Grantees (or now

the persons specified in the Order) could themselves assign their rights and powers to

others, or allow others, to do what the Act authorises only the Grantees to do (to the

exclusion of others). The fact that an order may be made for up to 60 years and that the

Grantees may not necessarily be a natural person does not diminish the force of this

public interest. It may simply mean that other provisions may need to be included in

the Order if the benefits anticipated from the original grant, and the manner in which

advantage was anticipated to be taken of it, are to be secured.

30. Davis J nonetheless found that section 40 of the 1868 Act could validly permit an

order allowing the Grantees to alienate the exclusive right conferred. He stated at [64]

that “the reference in the section to ‘subject to any restrictions and exceptions contained

in the Order’ is perfectly consistent with an order validly permitting alienation.” It is

submitted that this conclusion is unsustainable. The exclusive right conferred on the

Grantees may be made subject to any restrictions or exceptions contained in the Order.

Such restrictions or exceptions may abridge or limit the exclusive statutory right

11

otherwise vested in the Grantees. But a restriction on, or an exception to, the exclusive

statutory right vested in the Grantees cannot add to the rights and powers of the

Grantees enabling them to transfer or assign them, in whole or part, to others. Nor can

a restriction on, or exception to, the exclusive statutory right vested by statute in the

Grantees operate to vest (or allow others to vest) that exclusive statutory right in

anyone other than the Grantees, contrary to the explicit terms of section 40. Thus, if it

had to be determined who had the exclusive statutory right after any purported transfer

of it in whole or in part to others, the only answer that can be given consistently with

section 40 is that the Grantees have it, as section 40 provides that they (and no one else)

shall have it. It is “their Fishery”, as section 40 states. Nor can a restriction on, or

exception to, the exclusive statutory right vested by statute in the Grantees operate to

vest (or to allow others to exercise) the powers which only the Grantees may exercise

under section 40 within the limits of the fishery in the exercise of the exclusive statutory

right vested in them or allow the Grantees to authorise others to enjoy their exclusive

right or the powers they have to give effect to it.

31. It is further submitted that the other sections of the Act, which further define and

protect the rights of the Grantees, also demonstrate that Davis J’s approach is

unsustainable.

iii. the persons who own and possess mussels in, and taken from, the fishery: sections 51 and 52

of the 1868 Act

32. As noted above section 40 of the 1868 Act empowered the Grantees, in the exercise

of their exclusive right, to:

“make and maintain Oyster and Mussel Beds or either of them, and at any Season collect

Oysters and Mussels, and remove the same from Place to Place, and deposit the same as and

where they think fit, and do all other Things which they think proper for obtaining, storing,

and disposing of the Produce of their Fishery.”

33. In order to give effect to the statutory intention that it is the Grantees’ Fishery and

12

their’s alone, sections 51 and 52 of the Act deem the ownership and possession of

oysters and mussels in it, and taken from it (until they are disposed of by the Grantees

or under their authority), to be vested in the Grantees. These sections provide so far as

relevant that:

“51. All Oysters and Mussels being in or on an Oyster or Mussel Bed within the Limits of a

Several Oyster and Mussel Fishery granted by an Order under this Part of this Act... shall be

the absolute Property of the Grantees....and in all Courts of Law and Equity and elsewhere,

and for all Purposes, civil, criminal, or other, shall be deemed to be in the actual Possession

of the Grantees.....

52. All Oysters and Mussels removed by any Person from an Oyster or Mussel Bed within the

Limits of any such Several Fishery....and not either sold in Market overt or disposed of by or

under the Authority of the Grantees...., shall be the absolute Property of the Grantees..., and

in all Courts of Law and Equity and elsewhere, and for all Purposes, civil, criminal, or other,

the absolute Right to the Possession thereof shall be deemed to be in the Grantees....

34. These sections are inconsistent with any intention by Parliament that the Grantees

should be able to transfer or assign the exclusive statutory right in the whole or any part

of their fishery or to allow others to exercise or enjoy the right and powers which they

have as Grantees.

(1) In the case of section 51, for example, if the Grantees purported to transfer

their exclusive statutory right to others, or purported to allow others to

do what they are empowered to do under section 40, their assignees or

licensees themselves could obtain no protection if any third party

threatened or tried to remove any oysters or mussels from any oyster or

mussel bed within the fishery. Whatever the purported rights that such

assignees or licensees might claim in respect of such oysters and mussels

and regardless of any expense to which they may have been put in respect

of them, the statute provides that they are the absolute property of the

Grantees and are to be deemed to be in their possession.

(2) In the case of section 52, any oysters or mussels removed from an oyster

or mussel bed within the limits of the fishery are deemed to remain the

absolute property of the Grantees, and it provided that the Grantees shall

13

be deemed to have the absolute right to their possession until they are

sold in market overt or disposed of by or under the authority of the

Grantees. Thus, for example, if any mussels were removed by a purported

assignee or licensee of the Grantees and were being processed or stored,

they would remain the property of the Grantees and the Grantees would

have the right to their possession, something realistically incompatible

with any such assignment or licence if it was to be effective. Indeed the

oysters and mussels remain in the ownership of the Grantees and the

Grantees have the right to their possession unless and until they are sold

in market overt or disposed of by the Grantees or under their authority.

35. These provisions are inconsistent with a statutory scheme enabling others to exercise

either the exclusive statutory right vested in the Grantees or the powers that the

Grantees have under section 40. They are based on the premise that only the Grantees

have the relevant right and powers. Hence the oysters and mussels in any oyster and

mussel bed within the Grantees’ fishery are deemed to be the Grantees’, and the

Grantees have a right to their possession, unless and until they are disposed of by the

Grantees themselves or under their authority.

36. Davis J stated at [65] that “these sections cannot bear that weight: indeed the fact that

section 52 (which extends to ‘any person’) contemplates that mussels may be disposed

of under the authority of the grantees is at least consistent with others having the right,

under the authority of the grantees to remove mussels from the bed.” It is submitted

that this conclusion is again unsustainable. These sections are dealing with the rights to

ownership and possession of oysters and mussels in, or taken from, an oyster or mussel

bed in the Grantees’ fishery. Section 52 is not concerned with the question of who may

lawfully remove them (a matter dealt with in section 53 referred to below): it is designed

to deal with the rights to ownership and possession of such oysters and mussels

whoever has removed them. Indeed it is likely to be of particular use when they are

unlawfully removed. But the significance of these sections is that they are incompatible

14

with any purported assignee or licensee of the Grantees having any right to ownership

or possession of the oysters or mussels in, or taken from, an oyster or mussel bed in the

Grantee’s fishery, something that shows that Parliament did not contemplate any such

assignments or licences. It shows that Parliament thought that the exclusive statutory

right and the powers conferred on the Grantees under section 40 were conferred only

on, and were to be exercised only by, as that section says, the Grantees and no one else.

It may be noted that Davis J failed to deal with the examples given in paragraph [33]

above.

iv. protecting the Grantees’ rights from the actions of others and who may lawfully remove

oysters and mussels within the Grantees’ fishery: section 53 of the 1868 Act

37. As noted above section 40 of the 1868 Act empowered the Grantees, in the exercise

of their exclusive right, to:

“make and maintain Oyster and Mussel Beds or either of them, and at any Season collect

Oysters and Mussels, and remove the same from Place to Place, and deposit the same as and

where they think fit, and do all other Things which they think proper for obtaining, storing,

and disposing of the Produce of their Fishery.”

Section 53 of the 1868 Act precluded others from doing such things and protects the

Grantees’ property in the oysters and mussels in any such oyster and mussel bed. It

provided so far as relevant that:

“It shall not be lawful for any Person other than the Grantees, their Agents, Servants, and

Workmen, within the Limits of any such Several Fishery, or in any Part of the Space within

the same described in this Behalf in the Order,....knowingly to do any of the following Things:

To use any Implement of Fishing, except a Line and Hook or a Net adapted solely for

catching floating Fish, and so used as not to disturb or injure in any Manner any

Oyster or Mussel Bed, or Oysters or Mussels, or the Oyster or Mussel Fishery:

To dredge for any Ballast or other Substance except under a lawful Authority for

improving the Navigation:

To deposit any Ballast, Rubbish, or other Substance:

To place any Implement, Apparatus, or Thing prejudicial or likely to be prejudicial

to any Oyster or Mussel Bed, or Oysters or Mussels, or to the Oyster or Mussel

Fishery, except for a lawful Purpose of Navigation or Anchorage:

15

To disturb or injure in any Manner, except as last aforesaid, any Oyster or Mussel

Bed, or Oysters or Mussels, or the Oyster or Mussel Fishery:

And if any Person does any Act in contravention of this Section he shall be liable to the

following Penalty, namely, to a Penalty not exceeding Two Pounds for the First Offence, and

not exceeding Five Pounds for the Second Offence, and not exceeding Ten Pounds for the

Third and every subsequent Offence; and every such Person shall also be liable to make full

Compensation to the Grantees...for all Damage sustained by them... by reason of his unlawful

Act, and in default of Payment the same may be recovered from him by the Grantees....by

Proceedings in any Court of competent Jurisdiction (but not in a summary Manner), whether

he has been prosecuted for or convicted of an Offence against this Section or not.”

38. Thus:

(1) the only persons who might lawfully use any implement of fishing to

remove, or might otherwise disturb, oysters or mussels within the limits

of the Grantees’ fishery (or a part described in any Order for the purpose

of this section) were “the Grantees, their Agents, Servants or Workmen”:

only they could lawfully remove oysters and mussels; and

(2) if any other person did so, he was liable under this section to pay

compensation to “the Grantees..for all damage sustained by them....by

reason of his unlawful act”.

39. Both of these aspects of section 53 are again inconsistent with the Grantees being

able to assign their exclusive statutory right and the powers which section 40 conferred

on them or to allow others to enjoy or exercise them.

(1) If that had been the intention, there was no reason why the compensation

payable and recoverable should be limited to that to compensate the

Grantees for the damage which they have sustained. No one else can sue

in respect of such damage as section 51 of the 1868 Act cited above deems

the oysters and mussels in any bed in the Grantees’ fishery to be owned

by, and in the possession of, the Grantees. This provision is incompatible

with others enjoying any rights to fish in the fishery.

(2) Similarly, if the intention had been that others could be allowed to fish, or

could acquire the right to fish, for oysters or mussels in a fishery in

16

respect of which the Grantees were to have the exclusive right to do so,

the prohibition under section 53 would not have been extended to

everyone other than “the Grantees, their Agents, Servants, and

Workmen”. This group does not include those to whom the Grantees may

have purported to transfer their right or whom they have purported to

allow to exercise their powers (otherwise than on the Grantees’ behalf as

one of their agents, servants or workmen).

40. Davis J did not deal with the first of these two points in his judgment (which also

undermines his approach to the construction of section 52 of the 1868 Act).

41. In relation to the second, on the assumption that Part III contemplated “that persons

can be authorised...by the grantees to exercise the fishery right”, Davis J stated (at [69])

that

“The phrase ‘agents, servants and workmen’ in my view, therefore, is to be read purposively and

broadly and not so as to take away the right of granting leases or licences in respect of the several

fishery. In my view that phrase - in particular the words ‘agents’ - in context extends to any

person authorised by the grantees to fish for mussels or oysters.”

This construction is based on the premise that the Grantees had a power under Part III

of the 1868 Act to grant leases or licences. There is nothing in that Act which so provides

and nothing in the Act which contemplates any such thing. As explained above the

provisions of Part III as to the effect of an order creating a right of several fishery and

as to the rights and powers which the Grantees (and only the Grantees) are to have are

inconsistent with it. This section is itself in respect of the compensation provisions

inconsistent with the premise from which Davis J proceeds. His construction is also

inconsistent with the language of the section. No doubt all agents are authorised to act

in a particular way. But not every person who may be authorised to act in a particular

way by another is that other person’s agent. For example a licensee of premises may be

authorised to use them by their owner but that does not make the licensee the owner’s

17

agent. That is because he is not doing something on behalf of the owner13. The position

is a fortiori in the case of a person to whom a right is transferred: he is exercising the

right on his account, not on behalf of the assignor 14.

42. The natural construction of this provision is one inconsistent with Davis J’s approach

but consistent with the Appellants’ construction of the statutory scheme overall. Davis

J also thought that the natural construction of the language would have “very odd”

consequences. (i) He thought (for example) that it would not “fit very well” with the fact

that boards and corporate bodies must necessarily act through their servants or agents.

But that is permitted by the natural construction of section 53. (ii) He also thought it

would be odd if a person authorised by the Grantees to take mussels on his own

account could be prosecuted. Whether or not any such person would in fact be

prosecuted is another question. But the fact that Parliament did not exempt such a

person from the prohibition in section 53 merely illustrates that it did not contemplate

anyone other than the Grantees exercising the exclusive statutory right which is vested

only in the Grantees, or exercising the statutory powers in the exercise of that right

which only the Grantees may exercise, under section 40 of the 1868 Act.

v. cultivating the oyster and mussel ground in the fishery

43. That the rights and powers conferred on the Grantees of a right of several fishery by

the 1868 Act and any order made under it were to be exercised by the Grantees alone

is further demonstrated by section 45 of the Act. This provided so far as relevant that:

“A Right of Several Oyster or Mussel Fishery conferred by an Order of the Board of Trade

under this Part of this Act.... shall, notwithstanding anything in the Order or in the said Act,

13 See Halsbury’s Laws of England Vol 2(1) Agency at [1]-[2]; Morgans v Launchbury [1973] AC 127

at p135e, 139e-f, 140c-d, 140g, 141a, 144e-f and 149b.

14 Nor if the exclusive statutory right can be transferred or assigned does Davis J’s construction

make any sense. If it can be assigned, it can be transferred or assigned by the transferee or

assignee more than once. It is an abuse of language to say that the Grantees have authorised the

doing of anything by any such subsequent transferee or assignee.

18

be determinable by a Certificate of the Board of Trade (which Certificate they are hereby

empowered to make) certifying to the Effect that the Board of Trade are not satisfied that the

Grantees under the Order....are properly cultivating the Oyster or Mussel Ground within the

Limits of such Fishery...; and on any such Certificate being made, the Right of Several Fishery

or Right of regulating the Fishery (as the Case may be) by such Order or the said Act conferred

shall, by virtue of this Part of this Act and of the Certificate, be absolutely determined, and

all Provisions of this Part of this Act or of the said Act shall cease to operate in relation to such

Fishery as a Several Oyster and Mussel Fishery....

For the Purposes of this Provision the Board of Trade may from Time to Time, with respect

to any such Fishery, make such Inquiries and Examination by an Inspector or otherwise, and

require from the Grantees...such Information, as the Board of Trade think necessary or proper,

and the Grantees....shall afford all Facilities for such Inquiries and Examination, and give such

Information, accordingly.”

44. The right may thus be lost if the Board of Trade are not satisfied that the Grantees are

properly cultivating the oyster and mussel ground within the limits of the fishery. In

order to enable the Board of Trade to consider that matter the Board of Trade is entitled

to require from the Grantees such information as it thinks necessary or proper and the

Grantees are required to afford all facilities required for any inquiries and examination

as the Board of Trade thinks necessary or proper and to provide that information. Those

obligations are imposed by statute on the Grantees, the persons obtaining the order (and

no one else), precisely because Parliament contemplated that only the persons obtaining

the order would have the right of several fishery it conferred and thus the obligation

properly to cultivate the oyster and mussel grounds within the limits of the fishery if

that right was not to be liable to be forfeit.

45. Davis J stated (at [64]) that “it is true that [section 45] refers to certification where the

Board of Trade are not satisfied that ‘the grantees under the order’ are not properly

cultivating the oyster or mussel ground. But in my view that can be read as extending

to the grantees causing the ground to be cultivated properly: it is of itself no real

indication of the fishery right being solely personal.” It is submitted that this approach

is again unsustainable:

(1) Had Parliament intended that the Grantees could transfer or allow others

to exercise the rights and powers vested in them alone, it would not have

19

provided that the right of several fishery could be forfeited if the Grantees

were not properly cultivating the oyster and mussel ground. It would

have provided that the right could be forfeited if the oyster and mussel

ground were not being properly cultivated. It did not do so.

(2) The section as enacted allows the right to be forfeit, even if the oyster and

mussel ground is being properly cultivated, if it is being cultivated by

persons other than the Grantees. That itself shows that the right of several

fishery conferred was intended to be personal.

(3) Davis J did not refer to, or deal with, the fact that under this section it is

the Grantees only who are required to assist the Board of Trade in its

Inquiries. Had Parliament intended that the Grantees could transfer or

allow others to exercise the rights and powers vested in them alone, it

would have provided that anyone in whom such rights may be vested or

who is exercising them or who may be cultivating the oyster and mussel

ground should assist the Board of Trade in its Inquiries as well as the

Grantees.

vi. conclusion on the statutory scheme

46. The provisions of Part III of the 1868 Act show that the right of several oyster and

mussel fishery conferred by an order was to be an exclusive statutory right which was

to be personal to the Grantees: only the Grantees were authorised to exercise that right

and the statutory powers associated with it. The fishery was to be theirs and no-one

else’s.

(b) the invalidity of the 1962 Order

47. The 1962 Order was based (as Davis J correctly found at [73]) on the assumption that

the Grantees would not themselves exercise the exclusive statutory right granted and

that that was “an essential underpinning element of the entire order”. This is reflected

20

in the memorial on the basis of which the Order was granted15 and the proviso to article

5 of the 1962 Order itself, which stated that, subject to the provisions of the Order, the

right of fishing for or taking oysters and mussels (other than for purposes connected

with the stocking of layings or cultivation) should not be exercised by the Grantees

themselves.

48. But the 1962 Order went further in purporting to authorise the Grantees to permit

others to fish for oysters or mussels within the whole or any part of the fishery under

article 6, thus purporting to authorise the Grantees to allow others to exercise the

statutory power to do so granted exclusively to them by section 40 of the 1868 Act. The

1962 Order further purported to authorise the Grantees to “lease” “layings” and

“reserves” under article 8 in respect of which the “tenant” was to have upon the

execution of the “lease” (or agreement for “lease”) “the right of several fishery therein

as if he were the grantee of an Order under the Sea Fisheries Act 1868...conferring on

him a right of several oyster or mussel fishery within the reserve or laying”.

49. The 1868 Act was explicit, however, about who was to have that exclusive statutory

right and the powers that might be used in its exercise. As explained above, no power

was given to the Board of Trade (a) to provide that a person other than the person who

obtained the grant should have the statutory right of several fishery within the limits

of the fishery or any part of it; (b) to delegate to the person who obtained the right of

several fishery within the limits of the fishery a power to vest that statutory right in the

whole or any part of the fishery in any other person; (c) to provide that someone who

was not the person who obtained the order should be deemed to be someone who had

obtained it; or (d) to provide that anyone other than the Grantees might exercise (or be

authorised to exercise) or enjoy the right or powers which under section 40 of the 1868

Act the Grantees alone were authorised to enjoy and use in the exercise of their

exclusive statutory right.

See [24/290 et seq].

21

15

50. The 1962 Order was accordingly ultra vires 16.

51. It may be noted that something similar to that which the 1962 Order sought to

achieve may be produced by an order conferring a right of regulating an oyster and

mussel fishery under section 3 of the 1967 Act. Such an order may impose a restriction

prohibiting all persons from, dredging, fishing for or taking, within the limits of the

fishery or of that part of the fishery within which the right is exercisable, shellfish of the

description to which the order applies except under the authority of a licence issued in

that behalf by the Grantees 17.

THE RIGHTS RESERVED TO THE APPELLANTS BY THE 1962 ORDER (IF INTRA

VIRES)

52. If (contrary to the Appellants' primary case) the 1962 Order was intra vires, it is

submitted that any rights enjoyed by the Second to Fourth Respondents under that

Order are subject to the rights of the Appellants to build (or to permit building) upon

land owned by them (subject to obtaining any necessary statutory consents or

authorisations).

(a) introduction

53. As noted above, the effect of an order granting any exclusive right of several fishery

was (by virtue of section 40 of the 1868 Act) "subject to any restrictions and exceptions

contained in the order". Articles 16 and 18 of the 1962 Order provided that:

"16. Nothing in this Order contained shall affect prejudicially any estate right power privilege

or exemption of the Crown and in particular nothing herein contained authorises the Grantees

to take use or in any manner interfere with any portion of the shore or bed of the sea or of any

river channel creek bay or estuary or any land hereditaments subjects or rights of whatsoever

16 A further ground upon which the 1962 Order is ultra vires is dealt with below in relation to the

second main issue.

17 See section 3 and 4(2) of the 1967 Act.

22

description belonging to Her Majesty in right of the Crown and under the management of the

Crown Estate Commissioners without the consent in writing of the Crown Estate

Commissioners on behalf of Her Majesty first had and obtained for that purpose.

18. Nothing in this Order contained shall affect prejudicially any rights powers and

authorities of the Corporations of Bangor and Beaumaris with regard to the parts of the

foreshore owned by the said Corporations within the limits defined by this Order."

The County Council is the successor in title to the Beaumaris Corporation with respect

to the land at Gallows Point.

54. The 1962 Order also contains a provision, article 17, which contains inter alia the

identical protection for the Penrhyn Estate that article 18 gave the two corporations.

This was offered to preserve the Estate’s rights to develop Port Penrhyn 18.

(b) submissions

55. Any right of several fishery created by the 1962 Order is subject to the restrictions

or exceptions created by articles 16 and 18 of that Order. The object of both provisions

was to protect the rights of the Crown Estate and the relevant local authority as

landowners from being prejudicially affected by that Order. The rights thus protected

included the rights that any landowner has to develop (or to allow others) to develop

his own land (provided always that any planning permission and or any other authority

required for the particular development is obtained).

56. In approaching the construction of the 1962 Order, it must be construed strictly

against the promoters who obtained it 19. As Sir George Mellish LJ stated in Clowes v

Staffordshire Potteries Waterworks Co (1872) LR 8 Ch App 125 at p139, “if a public

company or any individuals obtain an Act of Parliament which they say enables them

to take away the common law rights of any person they are bound to show that it does

18 See [11/171-172].

19 Scales v Pickering (1828) 4 Bing 448 per Best CJ at p452, per Parke J at p453.

23

it with sufficient clearness.” As Lord Fitzgerald put it in Countess of Rothes and

another v the Kirkcaldy and Dysart Waterworks Commissioners (1882) 7 App Cas 694

at p710,

“If the language of that section is not clear, then the rule of interpretation "contra proferentem"

seems to me to be specially applicable. The language of the section must be taken as that of the

promoters of the Act. They ask the legislature to grant them large powers and privileges, and

they propose to give in return to the individuals who may be affected certain rights and

protection.....We are bound to put a construction on the section as favourable to the pursuer as

the words of the section will fairly and reasonably bear; for the words are not hers but the

promoters'.”

57. Moreover an enactment should not be held to take away private rights of property

without compensation unless the intention to do so is stated in express terms or appears

by irresistible inference from the terms of the enactment read as a whole: per Lord Reid

Westminster Bank v Beverley BC [1971] AC 508 at p529. Such an intention cannot be

inferred when the enactment in question specifically provides that it shall not

prejudicially affect any rights that persons have in respect of the land they own.

58. There is no reason to assume that articles 16 and 18 would necessarily nullify in

practice any right of several fishery for oysters and mussels within the limits mentioned

in the Order. The area subject to that Order extends to about 781 hectares (1,930 acres) 20.

Even if some buildings or structures were to be erected on some of the land owned by

the Crown Estate Commissioners or the relevant local authority, it would not

necessarily follow that no oyster and mussel fishery could exist within the limits

mentioned in the Order. Accordingly the plain reading of articles 16 and 18 of the 1962

Order does not necessarily deprive that Order of any effect.

59. Moreover there is no reason why the Crown Estate Commissioners or the relevant

local authorities would have agreed, or not objected to, an Order which sterilised any

development potential which their land might have for a period of 60 years for no

See the recital to the amending order.

24

20

consideration and without compensation.

(1) That would have been inconsistent with the statutory duties of the

Commissioners who are “charged on behalf of the Crown with the

function of managing and turning to account land and other property,

rights and interests” vested in them and with their general duty, “while

maintaining the Crown Estate as an estate in land (with such proportion

of cash or investments as seems to them to be required for the discharge

of their functions), to maintain and enhance its value and the return

21obtained from it” . (Indeed the uncertainty created by the Second to

Fourth Respondents’ contentions in this case about the construction of

this standard provision have led to delays in making new orders and if

22upheld may result in orders being opposed . For that reason its

construction is a matter of wider general public interest.)

(2) Such sterilisation of any prospect of any development for no

consideration or compensation would also have been inconsistent with

the “fiduciary” duty that the local authorities owe to use the resources

which taxpayers have put at their disposal to their best advantage23: it

would be one thing to allow their land to be used for the purpose of a

fishery while not otherwise required for another purpose in the public

interest; it would have been another to put it wholly out of the power of

the local authorities concerned to develop their own land if that proved

to be desirable in the public interest for a period of 60 years without any

consideration or compensation 24.

60. Davis J decided, however, that Articles 16 and 18 were not to be given their plain

21 see sections 1(1) and (3) of, as well as sections 4 and 5 of, the Crown Estate Act 1961; Jacobson 1

at [4], [6]-[11], [18], [22] [21/248-256].

22 See Jacobson 1 at [11]-[14] and [18]-[22] [21/252-256].

23 Cf Bromley LBC v GLC [1983] 1 AC 768 per Lord Diplock at 829.

24 See Barton 1 at [5]-[6] [22/267-268].

25

meaning for two basic reasons: (i) he accepted (in paragraphs [90]-[99]) an unpleaded

argument advanced for the first time at the hearing of the claim by the Second to Fourth

Respondents that these articles “cannot be taken to sanction any action which

substantially interferes with the fishery created by the 1962 Order” and (ii) he

considered (in paragraphs [100] to [103]) that no right could be reserved to do anything

that section 53 of the 1868 Act would make unlawful. What rights Davis J thought the

Appellants have as landowners which are not prejudicially affected by the 1962 Order

on his approach he failed to explain: he merely stated opaquely (in paragraph [104]) that

“articles such as articles 16 and 18 would still have utility for the landowners in many

contexts.”

nd thi. The 2 to 4 Respondents’ argument which Davis J accepted that articles 16 and 18 do not

sanction any action substantially interfering with the fishery created by the 1962 Order

61. The argument that Davis J in effect accepted was summarised by him (in paragraphs

[90] and [91]) as follows:

“Mr Fetherstonhaugh was clearly right when he submitted that each Article operates to preserve

existing rights – not to create any new right in favour of the [Appellants]....Put shortly, his point

was that an owner of (intertidal) foreshore or of the seabed has no entitlement to exercise his

right of ownership so as substantially to interfere either with public rights of navigation or with

public rights of fishery; that as at 1962 there was a public fishery in the Menai Strait; and that

accordingly Articles 16 and 18, which only preserve existing rights and do not purport to create

new rights, cannot be taken to sanction any action which substantially interferes with the fishery

created by the 1962 Order.”

62. In accepting this argument, Davis J erred fundamentally in three respects: (i) even

if a landowner has no right to interfere with public rights of navigation or public rights

of fishery, it does not follow that articles 16 and 18 cannot sanction any action which

substantially interferes with the fishery created by the 1962 Order; (ii) a landowner has

a right to develop his own land, subject to obtaining any necessary statutory consents

or authorisations, even if it is subject (when covered by water) to public rights of

navigation or public rights of fishery: the existence of such public rights merely means

26

that any inhibition they may impose may have to be removed before the owner may

exercise his rights; and (iii) there was no basis upon which Davis J could properly have

found that the development of the marina would unlawfully infringe any public rights

of navigation or public rights of fishing.

63. The argument that Davis J accepted is premised on the assertion that a landowner

has no right to interfere with public rights of navigation or public rights of fishery. But,

even if that is so, it does not follow that articles 16 and 18 cannot sanction any action

which substantially interferes with the fishery created by the 1962 Order. The exclusive

statutory right of fishery created by 1962 Order is not a public right of fishery by

definition. It is a right created by virtue of the 1962 Order. The 1962 Order could have

provided that it should not prejudicially affect any rights that the Appellants have in

respect of the land they own except insofar as may be necessary for the purpose of the

exercise by the Grantees of the right of several fishery it conferred. But it did not do so.

On the contrary articles 16 and 18 provided that nothing in the Order should

prejudicially affect the Appellants’ rights. The argument advanced by the 2nd to 4th

Respondents which Davis J accepted is thus fundamentally flawed: its conclusion does

not follow from the argument’s premise and its conclusion is contradicted by the terms

of the 1962 Order itself.

64. The argument is further fundamentally flawed by a misconception about a

landowner’s rights. A landowner has a right to develop his own land. In practice the

exercise of that right may be subject to legal constraints that may have to be removed

before that right can be exercised lawfully. These constraints may be created by the

landowner or his predecessor in title (for example by granting a restrictive covenant

over the land) or by law (for example by any requirement to obtain planning permission

or some other statutory consent which may be required for the development to be

carried out lawfully). But removing any inhibitions on the exercise of a landowner’s

right to develop his own land does not create that right: it simply removes the inhibition

on its exercise. Thus, a landowner has a right to develop his own land, subject to

27

obtaining any necessary statutory consents or authorisations, even if it is subject when

covered by water to public rights of navigation or public rights of fishery: the existence

of such public rights merely means that any inhibition they may impose may have to

removed before the owner may exercise his rights lawfully. Statutory authorisation, if

required, may be obtained (for example) under the Coast Protection Act 1949, the

Harbours Act 1964 or the Transport and Works Act 1962 or, if necessary, the public

rights may be extinguished by Act of Parliament.

65. Davis J rejected this argument when considering an analogy put to him about rights

of way. Land may be subject to a right of way which may be either private or public.

Before a landowner may exercise his right to develop his own land he may have to

obtain an agreement to extinguish the private right of way or an order stopping up the

public right of way. But neither creates the landowner’s right to develop his own land:

they each remove an inhibition on its exercise. Davis J stated, however, (in paragraph

[98]) that this analysis was

“very artificial. In such circumstances [the landowner] surely has a qualified right - that is, the

right to build only where the exercise of that right does not substantially interfere with the

easement granted.”

With respect, this analysis is not artificial. It is correct. It is illustrated by the position

when the inhibition is removed.

nd th66. The only manner in which the 2 to 4 Respondents’ argument and Davis J’s

conclusion on this point can be saved is by treating articles 16 and 18 as providing that

“nothing in this Order contained shall affect prejudicially any rights which on the making

of this Order could be exercised free of any legal inhibition”. But not only do Articles 16 and

18 not contain any such qualification, there is also no basis for reading such a

qualification into these provisions. Not only would such an approach be inconsistent

with the manner in which protective provisions are to be construed in favour of the

persons they seek to protect and against those who obtained the Order, it would also

28

produce a result that cannot have been intended (and as a matter of fact plainly was not

intended in the case of the Penrhyn Estate). It would mean, for example, that nothing

which required planning permission could be done in the exercise of the rights

protected by articles 16 and 18 if planning permission had not already been obtained by

the date of the making of the Order.

67. Thus Davis J should have concluded that a landowner has a right to develop his own

land, subject to obtaining any necessary statutory consents or authorisations, even if it

is subject when covered by water to public rights of navigation or public rights of

fishery. The existence of such public rights merely means that any inhibition they may

impose may have to removed before the owner may exercise his rights: it does not mean

that he does not have that right.

68. Thirdly there was no basis upon which Davis J could properly have found that the

development of the marina would unlawfully infringe any public rights of navigation

or public rights of fishing.

69. Davis J held (erroneously) that the development of a marina would be unlawful if

it substantially injured any public right of navigation or public right of fishery. There

was no pleaded case and indeed no evidence that the development of the marina would

substantially injure or interfere with any public rights of navigation. Nor did Davis J

suggest that there was any such evidence. There was equally no pleaded case and

indeed no evidence that the development of the marina would substantially injure or

interfere with public rights of fishing which extend in this area inter alia throughout the

whole of the Menai Straits. Nor did Davis J suggest that there was. Accordingly there

was no basis, even on his own legal test, for Davis J to conclude that the development

of the marina would unlawfully interfere with any public rights of navigation or with

any public rights of fishing in the Menai Straits.

70. Davis J only considered (in paragraph [99]) whether the development of the marina

29

would be a substantial interference with the fishery created by the 1962 Order. But this

was legally irrelevant (as has been explained above) as it is not a public right of fishery

and nothing in the 1962 Order by virtue of which it was created is prejudicially to affect

the Appellants’ rights.

71. Davis J rightly did not suggest that the development of the marina would be a

substantial interference with any public right of mussel fishery. (i) If there had been any

such public right being exercised in this area before the 1962 Order was made, it was

extinguished by that Order. (ii) There was in fact no evidence of the exercise of any such

public right of fishing in the area where the marina will be developed before the 1962

Order was made. In paragraph [92] Davis J found that a use was made of “this area of

the Menai Strait” for mussel fishing prior to the 1962 Order. If “this area” refers to the

area the subject of the 1962 Order he is correct. But he is not correct if “this area” refers

to the area at Gallows Point where the marina is to be developed. There were two pieces

of evidence as to the location of a mussel fishery in the Menai Straits to which Davis J

referred.

(1) The best evidence was that contained in the memorial, on the basis of

which the 1962 Order was made, which stated at §3 that (as at 27 January

1960) there was a 'small mussel fishery in the vicinity of the River

Ogwen'25. The River Ogwen is on the opposite side of the Menai Straits

from the site of the proposed marina at Gallows Point 26.

(2) Dr Atkins' witness statement of 31 January 2008 did indeed set out figures

showing gathering of shellfish prior to 1962 - but those figures related to

Bangor (on the opposite side of the Straits), not to Beaumaris 27.

72. The test which Davis J set himself was in any event misconceived. It is not necessary

to show that certain works do not substantially interfere with public rights of navigation

25

26

27

[24/290]

see map at [18/230].

[23/282-283].

30

or fishing for those works to be lawful. Those rights do not preclude a landowner

reclaiming land from the sea or constructing works such as wharfs, quays and piers (as

both Bailey J and Abbott CJ recognised in Blundell v Caterall (1821) 106 ER 1190). Thus,

in proving acts of ownership as against the Crown, it is necessary to rely on acts which

a lawful owner might do: these include inclosing and embanking against the sea and the

erection of wharves, piers, groynes and other works: see Halsbury’s Laws of England

Vol 12 (1) reissue Crown Property at [257]. Although such activities necessarily interfere

with those rights, it is not necessary to show in any individual case that they do not

substantially injure public rights of fishing and navigation. As Fletcher Moulton LJ

explained in Foster v Warblington UDC [1906] 1 KB 648 at p683-4, they are taken to be

lawful generally as they conduce to the good of the community and do not substantially

injure such rights (which extend over all tidal waters and the seabed).

73. Davis J also relied (at paragraph [94]) on an obiter dictum by Wills J in Corporation

of Truro v Rowe [1901] 2 KB 870 at p878 as a “convenient encapsulation...of the broad

legal position”, notwithstanding that judgment was reversed on appeal. But in the event

Wills J did not state that acts by a landowner, such as inclosing and embanking against

the sea and the erection of wharves, piers, groynes and other works, were only lawful

if in a particular case they do not substantially injure the public’s rights of navigation

or fishing where they occur. On the contrary what he said was that “the owner cannot

build on [the foreshore] because the public have rights of passage over it everywhere

per mare et per terram.” But that assertion is itself inconsistent with the decision in

Blundell v Caterall: the public have no such rights.

74. Thus Davis J erred fundamentally in three respects. First, even if a landowner has

no right to interfere with public rights of navigation or public rights of fishery, it does

not follow that articles 16 and 18 cannot sanction any action which substantially

interferes with the fishery created by the 1962 Order. But, secondly, a landowner has a

right to develop his own land, subject to obtaining any necessary statutory consents or

authorisations, even if it is subject when covered by water to public rights of navigation

31

or public rights of fishery. The existence of such public rights merely means that any

inhibition they may impose may have to removed before the owner may exercise his

rights. There are statutory powers that can be obtained for that purpose if necessary.

Thirdly there was no basis in any event upon which Davis J could properly have found

that the development of the marina would unlawfully infringe any public rights of

navigation or public rights of fishing.

ii. compatibility with section 53 of the 1868 Act

75. Davis J considered (in paragraphs [100] to [103]) that no right could be reserved in

an order made under the 1868 Act to do anything that section 53 of the 1868 Act would

make unlawful. The logic of this is that no exception or restriction could have been

imposed on a right of several fishery that might have preserved any right which a

landowner may have whose exercise would have conflicted with the prohibition

28imposed by section 53 . In other words, the nature of the exceptions and restrictions

that an order could lawfully have contained under section 40 was limited by what

section 53 prohibited.

76. There are two reasons why this argument is flawed.

(1) The nature of the exceptions and restrictions that an order could lawfully

contain under section 40 was not limited by what section 53 prohibited.

Allowing some owners, if they choose to do so, to exercise their right to

develop their own land may restrict the area from which it may prove

possible to take oysters and mussels and it may in practice result in an

area in which that right may not be able to be exercised. But that is what

the statute permits (and what the 1962 Order unambiguously does). The

It may be noted that Davis J considered (in paragraph 85) that an order could not reserve to a

landowner the right to grant licences to fish for oysters and mussels. That is so, but not for the

reason there given, namely inconsistency with the grant of a right of several fishery (although

it would be). Such a right could not be reserved to a landowner as a landowner does not have any

such right to reserve in an area in which there is a public right of fishing immediately before the

order is made.

32

28

land affected by any exception or reservation could have been excepted

from the operation of section 53 (as section 53 itself made plain).

Accordingly, even if reading section 40 as subject to section 53 was the

correct approach, it would reveal nothing about, and impose no limitation

on, the nature of the exceptions and restrictions that could have been

imposed on the exercise of the right of several fishery under section 40.

(2) The approach adopted by Davis J involves an attempt to read section 40

as being subject to section 53. This is in fact the wrong approach: section

53 only seeks to protect the right which section 40 confers; it does not seek

to enlarge it. If anything, section 53 ought to be read in order to be

consistent with section 40, and not as negating any exception or restriction

imposed under that section, as explained below.

77. The purpose of section 53 is indicated by its marginal note29: “prohibition of acts

injurious to several fisheries or private oyster beds”. As the marginal note to the

provision which replaced it, section 7 of the 1967 Act, puts it more pithily, its object is

“protection of fisheries”. Its object is to protect the rights which the grantees of a right

of several fishery and the owner of a private oyster bed have. The object is not to

enlarge them.

78. When originally enacted, there was no problem with respect to the right of several

fishery. The legislative background to Part III of the 1868 Act is provided by the Oyster

and Mussel Fisheries Act 1866. That Act provided for the Board of Trade to confer by

order a right of several oyster and mussel fishery. The nature of that right was defined

in section 15 of that Act in the terms of section 40 of the 1868 Act, with one significant

difference. Section 18 of the 1866 Act imposed a prohibition similar to that in section 53

of the 1868 Act. The significant difference was that the 1866 Act did not provide for the

Such notes are admissible contextual guidance to the proper interpretation of the provision to

which they relate: see per Lord Hope R v Montila [2004] UKHL 50, [2004] 1 WLR 3141, at [31]­

[36].

33

29

exclusive statutory right to be made subject to any exceptions or restrictions. That was

introduced by the 1868 Act. Parliament cannot have intended that its re-enactment of

section 18 in section 53 of the 1868 Act should negate any exceptions and restrictions on

the grant of a right of several fishery which it decided to authorise in the 1868 Act.

79. That Parliament could never have intended section 53 to enlarge the rights it seeks

to protect can also be illustrated by reference to a private oyster bed to which it likewise

applies. A landowner could convey a private oyster bed to another reserving for himself

the right to construct certain work if he so wished or doing something else ostensibly

prohibited by section 53. Parliament cannot (and should not be taken to) have intended

to make the exercise of the right so reserved a criminal offence and to require the person

exercising it to pay the new owner of the private oyster bed compensation for doing so.

Such a result would involve not merely the compulsory expropriation of that person’s

right to do such things as had been agreed and subject to which the private oyster bed

was acquired without compensation but it would also impose an obligation to pay

compensation to the owner of the private oyster bed for doing what they had agreed

that person could do and having regard to which the purchase price may have been

fixed.

80. Section 53 of the 1868 Act (and section 7(4) of the 1967 Act) should thus be read as

applying to the doing of those listed “things which are not things to which the rights of the

Grantees and the owner of the private oyster bed are subject”. So read, section 53 and section

7 will protect the rights and the fisheries they have; not ones they do not have.

81. Davis J stated (in paragraph [101]) that he had no “difficulty..with section 53 being

read with section 40". But he felt unable to construe section 53 consistently with section

40 as submitted above as he considered (in paragraph [103]) that section 53 envisaged

the prohibition of the doing of things (such as dredging for or extracting sand or gravel)

that an owner may do. But that begs the question: if there is no exception or restriction

on the right of several fishery granted which permits such extraction, then section 53

34

will no doubt prohibit it in order to protect the right of several fishery granted. But the

question is whether it does so when there is an exception or restriction on the right of

several fishery granted which permits it to be done.

82. Davis J made two other point in that paragraph.

(1) The first was that “the Grantees, their agents, workmen and servants”

could not embrace the Appellants. Although this is not the Appellants’

preferred construction, it is nonetheless one consistent with Davis J’s. He

held that anyone authorised by the Grantees, such as the Third and

Fourth Respondents who do not act on behalf of the Grantees and on any

natural use of the word ‘agent’ would not be regarded as the Grantees’

agents, were to be regarded as such. Here the exercise of the Appellants’

rights is authorised by the Order which the Grantees obtained, and only

obtained, on the basis that those rights would not be prejudicially affected

by it. Their exercise is no less authorised than the exercise of the rights the

Grantees have purported to give to the third and fourth Respondents.

(2) The second point that Davis J made was that section 53 contains savings

for public rights of navigation and anchorage. But that does not mean

Parliament intended to negate private rights that were expressly

preserved by an order creating a right of several fishery.

83. For the reasons given above, therefore, section 53 of the 1868 Act did not preclude

the imposition of an exception or restriction on the right of several fishery granted by

the 1962 Order that protected the rights which any landowner has to develop (or to

allow others) to develop his own land (provided always that any planning permission

and or any other authority required for the particular development is obtained).

84. If it is held that those rights cannot be exercised in an area to which section 53 may

apply for the time being (contrary to the submissions above), all that means is that an

amendment to the Order will need to be obtained under the 1967 Act to exclude the

35

marina land from the application of section 7(4) of the 1967 Act.

85. If on the other hand it is held that no exception or restriction could be imposed in an

order that enabled anyone to do anything restricted by section 53 in an area in which

applied initially, then the 1962 Order is itself ultra vires. Articles 16 and 18 could not

lawfully have been imposed and they cannot lawfully be severed from the 1962 Order.

Their severance would involve a change in the substantial purpose and effect of the

1962 Order. That Order would not have been enacted absent the protective provisions

of articles 16 to 18 30.

(c) conclusion

86. Davis J failed to provide any example of any right of the landowners the exercise of

which was preserved and not prejudicially affected on his preferred construction of

articles 16 and 18.

87. It is submitted that any rights enjoyed by the Second to Fourth Respondents under

the 1962 Order are subject to the rights of the Appellants to build (or to permit building)

upon land owned by them (subject to obtaining any necessary statutory consents or

authorisations).

88. If they are not (on the ground that such a result was inconsistent with section 53 of

the 1868 Act), then the 1962 Order is ultra vires on this ground even if not ultra vires on

the grounds mentioned in relation to the first issue above.

WHETHER SECTION 7(4) OF THE SEA FISHERIES (SHELLFISH) ACT 1967

PRECLUDES THE EXERCISE OF THE APPELLANTS’ RIGHTS IF THEY HAVE

NOT BEEN ADVERSELY AFFECTED BY THE 1962 ORDER?

89. Section 7(4) of the 1967 Act is similar to section 53 of the 1868 Act. Section 7 provides

See R v IRC ex p Woolwich BS [1990] 1 WLR 1400 at p1413d-h.

36

30

inter alia that

“(1) The provisions of this section shall have effect where—

(a) an order under section 1 of this Act grants a right of several fishery...

... .....

(4) Subject to subsection (5) of this section, if within the limits of the area of the fishery with

respect to which the right of several fishery is conferred or in any part of that area described

for the purposes of this subsection in the order,... any person other than the grantees or an

agent or employee of theirs...knowingly does any of the following things, namely—

(a) uses any implement of fishing except—

(i) a line and hook; or

(ii) a net adapted solely for catching floating fish and so used as not to

disturb or injure in any manner shellfish of the description in

question or any bed therefor or the fishery therefor; or

(iii) ...an implement of a type specified in the order and so used as not to

disturb or injure in any manner shellfish of the description in

question;

(b) dredges for any ballast or other substance except under a lawful authority for

improving the navigation;

(c) deposits any ballast, rubbish or other substance;

(d) places any implement, apparatus or thing prejudicial or likely to be

prejudicial to any such shellfish, bed or fishery except for a lawful purpose

of navigation or anchorage;

(e) disturbs or injures in any manner, except for a lawful purpose of navigation

or anchorage, any such shellfish, bed or fishery;

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level

5 on the standard scale, and shall also be liable to make full compensation to the grantees

...for all damage sustained by them or him by reason of the unlawful act; and such

compensation in default of payment may be recovered from him by the grantees ....by

proceedings in any court of competent jurisdiction whether he has been prosecuted for or

convicted of the offence in question or not.

(5) Nothing in subsection (4) of this section shall make it unlawful for any person to do any

of the things therein mentioned—

(a) in the case of a right of several fishery granted by an order under section 1 of

this Act, if at the time of his doing that thing the limits of the area of the

fishery within which that right is exercisable or of the part of that area

described for the purposes of the said subsection (4) in the order are not

sufficiently marked out in manner prescribed by or under the order or if

notice of those limits has not been given to that person in manner so

prescribed;

... ....

(6)In this section “the grantees” means the persons for the time being entitled to the right of

several fishery conferred by the order under section 1 of this Act.”

37

90. For the reasons given above, section 7(4) does not preclude, or does not necessarily

preclude, the exercise by the Appellants of their rights as landowners to develop their

own land, subject to obtaining any necessary statutory consents and authorisations (as

Davis J should have found).

John Howell QC Emma Dixon

Blackstone Chambers

38

Ref: A2/2008/1234

IN THE COURT OF APPEAL

ON APPEAL FROM

THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

BETWEEN:

THE ISLE OF ANGLESEY

COUNTY COUNCIL (1)

THE CROWN ESTATE

COMMISSIONERS (2)

Claimants/Appellants

and

THE WELSH MINISTERS (1)

NORTH WESTERN AND NORTH WALES

SEA FISHERIES COMMITTEE (2)

ANDREW WILSON (3)

EXTRAMUSSEL LIMITED (4)

Defendants/ Respondents

SKELETON ARGUMENT

FOR

THE APPELLANTS

Alan Carr,

Old Bank Chambers,

18 Castle Street,

Cirencester,

Gloucestershire GL7 1QH.

The Crown Estate,

Marine Estates Department,

16 New Burlington Place,

London W1S 2HX