Isle of Anglesey County Council & Anor v The Welsh Ministries & Ors

The claimants, whom I shall call respectively the Commissioners and the County Council, seek declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing.

Mussel fishing has become an important commercial activity in the eastern Menai Strait. The present fishery extends to some 1928 acres. The legal underpinning is found in the Menai Strait Oyster and Mussel Fishery Order 1962 ("the 1962 Order"), made under the Sea Fisheries Act 1868. That Act has been replaced by the Sea Fisheries (Shellfish) Act 1967 (“the 1967 Act”). The order granted fishery rights to the local Sea Fisheries Joint Committee, now the North Western and North Wales Sea Fisheries Committee (“the Committee”). The Committee does not itself exercise the fishery rights. Instead it has divided the fishery into 6 areas, for the purpose of granting “leases” on a commercial basis.

The declarations claimed are, first, that the 1962 Order was ultra vires and void ab initio; alternatively, that any rights enjoyed by the fishery interests under the Order are subject to the rights of the claimants to build on the Marina Land, and further that section 7(4) of the 1967 Act does not render it unlawful for it to do so.

Three main issues accordingly arise:-

The judgment contains a vivid picture of the geographical surroundings, which I need not repeat. The County Council is the freehold owner of part of the foreshore at this point. The seabed forms part of the Crown Estate, but the parts of the land required for the marina development have been leased to the Council.

The fishery extends to some 761 hectares, of which 502 hectares is “leased” in 6 areas. Area 3 is held by Extramussel Limited, and Area 4 by Andrew Wilson, both of them defendants to this action. The part of the proposed marina which would fall within the fishery protected by the 1962 Order extends to some 7 hectares out of the total 10 hectares of the marina development. The marina would directly affect only Area 4, which itself comprises some 26 hectares.

The proposal to construct the marina was first made by Anglesey Boat Company Limited early in 1998. The marina would consist of two rock and rubble breakwaters placed in the sea bed to the south-west of Gallows Point, enclosing a yacht basin containing around 400 pontoon berths, with further land to the north and east to be used for boat storage and parking. Construction would involve reclamation and dredging along the shore and sea bed, deposits of debris into the sea and on the sea bed, and fixing of pontoons to the sea bed.

A planning application was submitted in March 1999, and on 1 December 1999 the Council resolved to grant consent. The application was called in by the National Assembly for Wales, which after a public inquiry, and contrary to the Inspector’s recommendation, resolved to grant planning consent. Planning consent, subject to conditions, was then issued on 9 January 2003. Thereafter consents under the Coast Protection Act 1949 and the Food and Environment Protection Act 1985 were sought and obtained. All those consents have since expired, and would have to be renewed to enable the development to proceed. The need to comply with such planning and other statutory regimes would not be affected by the declarations sought in the present proceedings.

The judge recorded the conflicting evidence as to the likely impact of the development on mussel farming. Although it is unnecessary to resolve the factual disputes, this evidence sets the scene for the legal issues. I refer in particular to the emphasis placed by the fishery interests on the importance of the intertidal areas of Area 4 to the fishery as a whole:

“21.

The evidence before me was to the effect that the mussel growing process broadly involves a three year cycle. Seed mussels are collected from various areas such as Morecambe Bay and sites in South Wales. The seed mussels so collected are then relaid on intertidal ground – that is, the part of the littoral lying between high and low tide – with a view to hardening up the external shells so as to allow the mussels to develop resistance to predation. If they are not so laid, and instead are laid directly in sub-tidal waters, the seed mussels would be subject immediately to extensive predation. In the second year of the cycle the mussels are moved to the intertidal/subtidal boundary; and in the third year the mussels are moved and laid in the subtidal area for growing on. They are then harvested for eventual sale to the market.

22.

As explained in a witness statement of Mr James Wilson dated 7 July 2006 the intertidal part of Area 4 is where the seed mussels are laid to harden off; it is, as he puts it, "vital to us". In his witness statement dated 7 July 2006 Dr Stephen Atkins (Chief Executive of the second defendant) says "The intertidal area is vital … This allows a high degree of mussels to be farmed in the area. Whilst Area 5 also has an intertidal area, destruction of Area 4 will reduce the mussel stock by an estimated 40%". In a witness statement of Mr Andrew Wilson dated 3 December 2007 it is said that the ground is normally in continual use as a hardening off area, with up to three batches of mussels being hardened each year. Thus this part of the foreshore is of great importance, in a way much exceeding its actual size, not only to Area 4 but also to the whole fishery.”

Thus, although the proposed marina would occupy only around 1.5% of the area currently leased for mussel cultivation and fishing, it would, at least on the evidence of the fishing interests, have a disproportionate effect on the productivity of the whole.

Part III of the 1868 Act provided the legislative basis of the 1962 Order, but as already noted it has since been replaced by the 1967 Act. That was a consolidating Act with Law Commission recommended amendments. The 1868 Act was repealed, but orders made or other things done under that Act were treated as having continuing effect as though made under the corresponding provision of the 1967 Act (s 24(3)). It is common ground that the validity of the order should be judged, at least initially, by reference to the 1868 Act. However, as I shall discuss later in this judgment, the terms in which earlier orders were preserved by the 1967 Act are in my view also of some significance.

Section 29 of the 1868 Act conferred power, originally on the Board of Trade, to make an order for the establishment or improvement of an oyster and mussel fishery, on an application by “any persons desirous of obtaining such an order”, referred to as “the promoters”. Such “persons” could be bodies corporate (s 5).

The following sections provided for the publication of draft orders, for the consideration of objections, and for inquiries. By section 34, following the consideration of objections and the report of the inquiry, the Board of Trade could either refuse the proposal, or -

“… make an order in such form and containing such provisions as they think expedient.”

By section 37 the order was required to be confirmed by Act of Parliament. This originally applied in all cases, but in 1938 a substituted section 37 limited the requirement for a confirming Act to cases in which it was specifically called for by a person affected by the order (Sea Fish Industry Act 1938 s 58(3)). Section 39 enabled the Board to make amending orders from time to time, subject to the same procedures.

Section 40 stated the effect of such an order:

“40.

Effect of grant of right of several fishery, etc.

Where an order of the Board of Trade under this part of this Act confers a right of several 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.” (emphasis added)

Section 44 provided that the grant of a several fishery right could not exceed 60 years.

The emphasised words highlight three points of significance to the arguments in the case, to which I shall return:

Section 45 provided that the fishery right might be terminated by a certificate of the Board of Trade, certifying that they were not satisfied that “the grantees under the order” were “properly cultivating the oyster or mussel ground within the limits of such fishery…” For the purpose of this power, the Board had power to make such inquiries and “require from the grantees” necessary information.

By section 46 the consent of the Crown was required for the making of an order in respect of any part of the seashore belonging to the Crown, and not under the management of the Board of Trade. Section 48 contained a saving for the rights under any existing several fishery.

The next group of sections was headed “Protection of Oyster Beds”. Sections 51 and 52 were concerned with the ownership of the fish:-

“51.

Property in oysters, etc., within several fisheries or private oyster beds.

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, and all oysters being in or on any private oyster bed which is owned by any person independently of this Act, and is sufficiently marked out or sufficiently known as such, shall be the absolute property of the grantees or of such owner, as the case may be, 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 and such owner respectively.

52.

Property in oysters, etc. removed from several fisheries or private oyster beds.

All oysters and mussels removed by any person from an oyster or mussel bed within the limits of any such several fishery, and all oysters removed by any person from any such private oyster bed, and not either sold in market overt or disposed of by or under the authority of the grantees or owners (as the case may be), shall be the absolute property of the grantees and owner respectively, 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 and owner respectively.”

Section 53 created a criminal offence of carrying out various acts injurious to several fisheries or private oyster beds. Since it has since been replicated in section 7 of the 1967 Act, which is the subject of the third issue, I shall not set it out in detail in this context, save to note that there was an exemption for “the grantees, their agents, servants, and workmen…”

It is to be noted that in this group of sections the protection was given not only to fisheries granted under the 1868 Act, but also to other “private oyster beds”, that is beds owned independently of the Act, and sufficiently identified as such.

We have an example of some early orders under the 1868 Act, confirmed by an Act of 1872. The Greshernish Fishery Order was one such order, under which the grant was to one John Robertson “and his heirs and assigns”. An 1871 Order, amending the Swansea Fishery Order appears to be the first in which there is a reference to the fishing rights being exercised by “licensees”.

The next relevant legislation was the Sea Fisheries Regulation Act 1888, which empowered the Board of Trade to create sea fisheries districts, and committees to manage them. Powers of management and powers to make bye-laws were conferred on such committees. As the judge explained, their essential role was not to conduct commercial fishing activities themselves but “to ensure and enforce good management and practice as well as carrying out other functions, including research and environmental functions” (para 47).

Following the establishment of Committees under the 1888 Act a practice seems to have developed of making a Fishery Order under the 1868 Act in favour of such a committee as “grantee”, enabling it then to grant leases or licenses to commercial fishery concerns. The earliest example in the papers before us was the Boston Fishery Order 1902 (“the Boston Order”), which was confirmed by the Oyster and Mussel Fisheries Orders Confirmation Act, 1902. The “Grantees” were the Eastern Sea Fisheries Committee. The Order conferred on “the Grantees” a right of several oyster and mussel fishery within the defined area, but provided that the right was not to be exercised by the Grantees themselves. Instead, they were empowered to apportion areas (referred to as “layings”) to be “leased as lays or layings or breeding or fattening grounds”; and to lease them by auction or private treaty for such period and on such terms as might be agreed (arts 5-6). Following the execution of an agreement in respect of such a lease, it was provided that -

“… there shall by virtue of the agreement be transferred to and vested in him as respects the laying the right of several fishery as if he were the grantee of an Order (under the Sea Fisheries Acts)…” (art 6(2))

We were referred to examples of other similar orders made over the ensuing 30 years.

Moving forward to the 1962 Order, it was made on 16 February 1962, specifically pursuant to powers conferred by sections 29 and 34 of the 1868 Act. The Order was to have effect for 60 years (art 19). By article 2, the “grantees” were defined as the Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries Districts. The format was similar to that of the 1902 Boston Order. Article 5 conferred on “the Grantees” a right of several oyster and mussel fishery within the defined limits, but provided that the right of fishing, other than for purposes connected with the stocking or cultivation, “shall not be exercised by the Grantees themselves”. Article 6 enables the grantees to grant permits or licences to fish for oysters or mussels to on terms and for periods determined by them. Article 7 enabled them, with the consent of the Minister, to designate reserves for experimental or scientific purposes, or for the collection of “spat” (that is, the young of oysters or mussels), or to designate “layings” to be leased as breeding or fattening grounds.

Article 8 provided for the granting of leases, and (following the formula of the 1902 Boston Order) provided that the lessees would have rights of several fishery “as if” they were grantees under the 1868 Act:

“8.

…

(2)

Upon the execution of a lease or agreement for a lease of a reserve or laying the person to whom such 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….”(emphasis added)

Articles 16 and 18 (which are relevant to the second issue in this appeal) contained savings in favour of the Commissioners and the Council’s predecessors:-

"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 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".

I have already noted that the relevant parts of the 1868 Act were repealed and replaced by the Sea Fisheries (Shellfish) Act 1967. Section 1 contains the power to make “orders for fisheries for shellfish” (replacing 1868 Act s 29), and specifically provided that the order may confer a right of several fishery “on such persons as may be specified in the order” (s 1(3)). Section 2 states the effect of the order as conferring on the “grantees” the “exclusive right” to the things necessary to create and maintain the fishery, and dispose of the produce. The definition of the “grantees” has been changed from “the persons obtaining the order” (in the 1968 Act) to “the persons for the time-being entitled to the right of several fishery” conferred by the order (s 2(1).

Section 7, headed “Protection of fisheries” reproduces the effect of sections 51-53 of the 1868 Act. As in the case of those sections it applies not only to areas covered by orders under the Act, but also to private oyster beds owned independently of the Act. Subsection (4) (which is the subject of the third issue before us) replaces section 53 of the 1868 Act:-

“(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, or within the limits of any such private oyster bed, any person other than the grantees or an agent or employee of theirs or, as the case may be, the owner or an agent or employee of his 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;

(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 or, as the case may be, owner 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 or owner as the case may be by proceedings in any court of competent jurisdiction whether he has been prosecuted for or convicted of the offence in question or not.”

Leases have been granted under the 1962 Order since the outset, and renewed on a regular basis. It is sufficient for present purposes to refer to the current leases of Areas 3 and 4. Both were dated 2 April 2002, for terms of 7 years, and refer to the 1962 Order. The initial rent was £1,500 per annum, subject to agreed adjustment after the first year. Clause 11.2 specifically reserved –

“…all estate rights powers privileges authorities or exemptions reserved by the Order to the Crown”

Clause 14 (headed "General Provisions") provided:-

“14.1

If any portion of the land the Layings are situated on shall be required by the owners of the land for any works or for commercial purposes the Landlord shall be at liberty to give 28 (twenty-eight) days notice in writing to the Tenant expiring at any time that such portion is so required and on the expiration of the such notice the Landlord shall be at liberty to re-enter and take immediate possession of the portion of the Layings so required and the term as regards the said portion shall absolutely cease and determine and this Lease shall continue in full force and effect as if such portion had not been included in the Layings …”

In such a case the rent would be reduced as appropriate, and there was an option for the tenant to determine the lease if the rights were rendered no longer economically viable. There is no statutory right of renewal of such leases on their expiry.

It is surprising and disturbing to find an ultra vires argument being advanced by these particular claimants more than 40 years after the order was made, particularly as it would have the effect of undermining the legal basis of the whole fishery, not simply of that part affected by the marina proposal. The 1962 Order was made with the consent of the Commissioners, and the participation of the predecessors of the County Council. As has been seen, it contained provisions to safeguard both their interests. There is no suggestion of a point being taken at the time, by them or any one else, that there was any legal defect in the form of the order. Instead, the Crown and successive councils have acquiesced in the development of the fishery, through the investment and efforts of the lessees, and under the protection of the Order, into one of the most successful in the United Kingdom.

In these circumstances, the judge was invited to refuse any relief under this head of claim, simply as a matter of discretion. However, the judge declined to take this route, for reasons explained at paragraph 79 of the judgment. There is no challenge to his exercise of discretion. Accordingly, we must deal with this ground of appeal, however unattractive, on its legal merits. However, I would not wish to be taken as necessarily endorsing the judge’s conclusion on the exercise of discretion, without having heard further argument.

The respective arguments on the ultra vires issue can be shortly stated. For the claimants, Mr Howell relies on the wording of the Act. The 1868 Act provided for a fishery right to be conferred on the “grantees” who were defined as “the persons obtaining the order”. There was no provision for it to be exercised by anyone else. It was therefore to be taken as a personal right. This interpretation is reinforced by the later provisions, under which it is the grantees alone who are subject to the enforcement powers of the Board of Trade, whose ownership of and right to sell the mussels are confirmed by sections 51-2, and who (with their servants and agents) are given exemption from the criminal offence created by section 53.

Against this, the respondents rely on the ordinary incidents of a “several fishery” as a form of incorporeal property (rather than a purely personal right), well-known to the law since before Magna Carta, and as such capable of being assigned or leased (see Halsbury’s Laws Vol 1(2) (2007) Agriculture and Fisheries paras 808-11). In using the same term, the legislature is unlikely to have intended to create something fundamentally different. Further, it cannot have been expected that a right granted for up to 60 years would be exercised throughout by the same person.

They seek to overcome the linguistic problem in different ways. Mr Lewis, for the Welsh Ministers, relies on the power of the Board (under section 34) to include “such provisions as they think expedient”, which words, he suggests, are apt to cover the leasing machinery included in this order. Mr Fetherstonhaugh, for the Committee and the lessees, accepts that the fishery right remains vested in the Committee, but argues that the lessees who farm the fishery can fairly be regarded as their “agents”, or as acting under their authority, for the purposes of the following provisions, “because they do so with its permission, under its control, and in significant part on its behalf”.

Neither of the latter arguments seems convincing. Section 34, as I read it, is directed to incidental provisions. If the essential nature of the right conferred by section 29 is a personal right, section 34 would not in my view enable the Board to convert it into a different kind of right. Nor is it realistic in my view to regard the lessees as no more than agents for the Committee. The commercial reality is that they are managing and exploiting the fishery on their own account. The order is in terms designed to enable them to do this, by treating them as in effect grantees of the rights.

One is therefore left with an apparent conflict between, on the one hand, the strict literal reading of 1868 Act in the light of the definition of “grantees” as the persons who obtained the order; and, on the other the expectation derived from the ordinary incidents of a “several fishery”, as understood in the common law, and the improbability of Parliament creating a purely personal right intended to last for 60 years.

If we had been seeking to interpret the 1868 Act in the early years shortly after its enactment, the resolution of this conflict might have presented difficulties. However, that is not the position. We are not required to ignore more than a hundred years experience of its operation, with the direct involvement of Parliament. As has been seen, it seems to have been assumed from the start that the rights granted by an order under the Act were not purely personal, but could extend to “the heirs and assigns” of the original grantee. The next question was whether the rights could be granted to a body which was not itself intending to fish, but would grant leases to enable others to do so. This issue was raised directly by the Boston Order in 1902. Parliament’s confirmation of that order can be taken in my view as providing a clear affirmative answer to the question. As far as we are aware, that interpretation has neither been questioned, nor caused any problems in practice, until the present proceedings.

There was some discussion before us as to the circumstances in which it is permissible to have regard to such subsequent history as an aid to interpretation. From the cases cited to us, and my own limited researches of the textbooks, there appears to be no consistent or settled view on this question. For example, Halsbury’s Laws Vol 44(1) Statutes, in a section headed “Post-enacting history” (paras 1427-30) cites numerous examples in the cases of references to subsequent history, grouped under various headings, including “Use of delegated legislation made under Act”, and “Later use of contemporaneous exposition”.

One case cited under the latter heading is Clyde Navigation Trustees v Laird (1883) 8 App Cas 658, in which Lord Blackburn (p 670) thought long usage (in that case a quarter of a century) of levying tolls on a certain basis under a 1858 statute raised “a strong prima facie ground” that there was a legal basis for the practice. By contrast, Lord Watson (p 673) thought the usage of no value in relation to a recent statute, but he acknowledged that;

“When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions through a long course of years, by the unanimous consent of all parties interested, as evidencing what must have been the intention of the legislature at that remote period.”

In Governors of Campbell College v Commissioner of Valuation [1964] 2 All ER 705, Lord Upjohn preferred the view that the principle of contemporaneous exposition was confined to “ambiguous language used in very old statutes”. Halsbury’s Laws (op cit para 1429) comments that the reason for this restrictive view is “by no means obvious”, and argues that the “doctrine should be applied to Acts whenever passed”.

We were referred to recent statements in the House of Lords in R(Jackson) v Attorney-General [2006] 1 AC 262 (“the Hunting Case”), concerning the relevance of the practice relating to the use of the 1949 amendments to the Parliament Act 1911 as amended in 1949. Lord Nicholls (para 68-9) acknowledged that the enactment of legislation on the basis of a particular interpretation of earlier legislation does not preclude the court from ruling that the interpretation was mistaken (citing Lord Reid in West Midland Baptist Trust v Birmingham Corp [1970] AC 874, 898). But he considered that in the instant case the involvement of the legislature went “much deeper”; he regarded the “general understanding” reflected in the conduct of legislative business over half a century as a “strong pointer”. Lord Carswell (para 171) noted that the extent to which use may be made of subsequent events as an aid to interpretation was not clear-cut, but considered that –

“… at its lowest one may obtain reinforcement of one’s construction of legislation from the fact that the same interpretation has been adopted over a considerable period.”

It is unnecessary in my view to attempt a general reconciliation of these various conflicting strands of authority or to explore the full breadth of the principle which they illustrate. My own respectful view is that Lord Blackburn’s more liberal view is supported by considerations of common sense and the principle of legal certainty. Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without risk of it being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.

The present statutory context provides an unusually strong, and in my view fully sufficient, basis for having regard to the later history. The Act itself contained a procedure for enabling any principled objections to the form of an order to be settled by Parliament itself. In that respect, to borrow Lord Nicholls’ phrase in the Hunting Case, the involvement of the legislature has gone “much deeper” than in most of the cases in the books. In my view that history points a clear way to the resolution of the ambiguity in the 1868 statute, in so far as that is left in doubt by the context and purpose of the statute itself.

For good measure, more recent Parliamentary endorsement of the view that the rights should not be purely personal is to be found in the 1967 Act. As has been seen the revised definition of the “grantees” specifically acknowledges that the rights may be exercised by someone other than the original grantees. The significance of this has been the subject of further submissions since the hearing in the light of the Law Commission report on the consolidation, which I shall now consider.

As indicated by its long title, the 1967 Act was not a pure consolidation of earlier statutes, but included “amendments to give effect to recommendations of the Law Commission and the Scottish Law Commission”. This formula needs a little explanation in the context of the rules governing consolidation statutes (see Halsbury’s Laws Vol 44(1) Statutes para 1225; Erskine May Parliamentary Practice 23^rd Ed p 842-4).

Before 1965, the Consolidation of Enactments (Procedure) Act 1949 had provided the standard procedure for consolidations, making use of a special shortened Parliamentary procedure, under which the bill is considered by a special Joint Committee, whose recommendations cannot be changed by either House. Changes to the substance of the legislation were limited to “corrections and minor amendments” as defined by the Act. The establishment in that year of the Law Commission for England and Wales (and its counterpart in Scotland) opened a new chapter, in which the Commissions took primary responsibility for preparing consolidation bills, making use of Parliamentary Counsel seconded for that purpose.

The 1967 Sea Fisheries (Shellfish) Bill was one of the first consolidation bills prepared under the new procedure. It was presented with a report by the Commissions (Cmnd 3267), in which its scope and purpose were described. In the introduction to the report it was explained that in order to produce “a satisfactory consolidation” it had been thought necessary to recommend a number of amendments, to be discussed in detail in the report. The recommended amendments did “not amount to changes substantially greater than could be authorised under the [1949 Act]”, and had attracted no objections from the relevant Ministries and fisheries interests. However, there were doubts in some cases as to whether they fell within the amendments permitted by the 1949 Act. It had been decided therefore not to rely on that procedure, and to accept that it would be open to both Houses to consider and modify or reject the proposed amendments.

The Bill was introduced to the House of Lords (Hansard HL 5^th June 1967 vol 283 col 177-184), the Lord Chancellor (Lord Gardiner) moved that it should be referred to the Joint Consolidation Committee. He described the history of consolidation bills, before and since the 1949 Act, and the “semantic discussions” which arose from time to time as whether proposed changes went beyond “corrections and minor amendments” as there defined. The procedure he proposed was described as an “experiment”, justified by “the good sense of the Law Commission”, the experience of the Joint Committee, and the fact that (by contrast with the 1949 Act) it would still be open to either House to disagree with the Joint Committee’s recommendations.

Subsequent practice of the Consolidation Committee has confirmed and developed this approach. The Committee has indicated the appropriate scope for Law Commission amendments. Amendments should be “necessary to produce a satisfactory consolidation, and should be for one or more of the following purposes:

“… to tidy up errors of the past, to remove ambiguities, and generally to introduce common sense on points where the form of drafting in the past appeared to lead to a result which departed from common sense; though not to introduce any substantial change in the law or one that might be controversial…” (Erskine May op cit p 844),”

In the present context, the most significant change in the 1967 Act was the change to the definition of “the grantees”, so as to cover in respect of a right of several fishery “the persons for the time being entitled to that right”. This was explained in the Commissions’ report:

“Section 40 of the Act of 1868 lists the rights which are exercisable by the persons entitled to the benefit of an order conferring a right of several fishery. These persons are described in the section as “the persons obtaining the order, in this Act referred to as the grantees”. The description might suggest that they must be the same persons as those who applied for the order; but section 29 of the Act expressly enables the order to provide for the constitution of a body corporate and therefore for the exercise of the rights by a person legally different from those applying for the order. (See the concluding words of clause 1(1) of the Bill.) Moreover, the right conferred by such an order is a right to property and therefore capable of being disposed of; and the assignment or lease of a right of several fishery is a recognised practice.

We recommend that the provision now in section 40 should be expressed in a way which recognises that the persons entitled to exercise a right of several fishery need not be the same as those who obtained the order. Effect is given to this recommendation in clauses 2(2), 5(8) and 7(6) of the Bill.”

This approach is consistent with the interpretation which has been adopted in practice. The Commissions recognised the possible ambiguity in the 1868 Act, and gave a clear indication as to how it should be resolved. They found support, as I have done, in the ordinary incidents of a “several fishery”, and also in the specific provision in section 29 for the establishment of a “body corporate”. By approving the bill in the form recommended by them, Parliament can be taken, at least for the future, as implicitly endorsing the reasoning of the report.

Mr Howell argues that this is irrelevant to the issue in this case, which concerns an order made under the law as it was before the consolidation. While a Law Commission report may be relied on as an aid to construction of a statute based on it, it cannot be so used in relation to an Act passed almost a century before. Furthermore, the Commission’s view as to the interpretation of the previous law is not authoritative:

“a mistaken view of the existing law adopted by the Commission is just that: it does not alter the law or establish what it is”.

While this may be correct as far as it goes, it is only part of the story. The 1967 Act looked both forward and backward. It set the framework for future orders, and also (by section 24(3)) brought within the same framework existing orders made under the previous legislation. This may be said to beg the question whether the previous orders were themselves validly made under that previous legislation. Further it has not been submitted in terms that the 1967 Act is to be taken as retrospectively validating the 1962 Order. On the other hand, Parliament should be taken to have been aware of the previous practice, and of the need to remove any doubt for the future, and it might be argued that section 24(3) should be interpreted in that light. The purpose of consolidation is to clarify the law for the future, not to perpetuate historical ambiguities and anomalies (cf Farrell v Alexander [1977] AC 59, 72-3). However, the full implications of such a line of argument have not been explored in detail before us. It is enough to note that the approach now adopted by Parliament in the 1967 Act is consistent with the view I had already formed of the previous law without consideration of the Law Commission’s report.

Against this background, and for the reasons I have explained, I have no doubt that we should uphold the validity of the 1962 Order, and reject this ground of appeal.

On the second issue the claimants argued that articles 16 and 18 contained “restrictions and exceptions” as allowed by section 40, and had the effect that the rights enjoyed by the fishery interests were subject to their prior rights, including the right to build the marina, subject to obtaining any consents or authorisations required by the general law. The claimants further argued that by implication the prohibitions and criminal sanctions in section 53 must be taken to be subject to the same restrictions and exceptions as under section 40. The latter argument is more directly relevant to section 7(4) of the 1967 Act, and it will be convenient to consider it in that context under the third issue.

So far as concerns the rights granted by section 40, the 2^nd to 4^th defendants’ case shifted during the course of the proceedings below. Initially the principal argument was that proposed marina would be an unlawful derogation from grant. The judge rejected that argument, both because the claimants were not “grantors” under the order, and because, viewed in the context of the fishery as a whole, the extent of the interference was not sufficient to bring the doctrine in to play (judgment paras 87-8).

In oral argument, Mr Fetherstonhaugh developed an alternative argument, which the judge summarised as follows (para 91):

“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.”

Although the point was not pleaded as such, it seems to have been accepted on the basis that it “was in essentials one of law”, and no formal objection was taken by Mr Howell. It was in broad terms accepted by the judge, and has formed the main basis of the 2^nd to 4^th defendants’ arguments under this head in the appeal. I will seek to summarise his reasoning.

The judge accepted that there was some, albeit limited, evidence of mussel fishing in this area before 1962. He considered this in the context of the public’s common law right to fish in tidal waters, which may extend to shellfish such as mussels (see the useful discussion of the authorities in Adair v National Trust [1998] NI 33, per Girvan J). He commented:

“I can see no reason why such a right should not have existed with regard to these tidal waters immediately before the 1962 Order was made: indeed, as I see it, it was just because it did that the 1962 Order, creating a several fishery, was in fact made. That seems to me to be the legal position and that corresponds with what, on the evidence, was the factual position.” (para 93)

He considered in some detail the authorities relating to the public right, including AG for British Columbia v AG for Canada [1914] AC 153 at pp.168-171; Blundell v Catterall (1821) 106 ER 1190; [1814-23] All ER Rep at p.46; Corporation of Truro v Rowe [1901] 2 KB 870, 878 Wills J; and Anderson v Alnwick District Council [1993] 1 WLR 1156, 1166-1168. He concluded:

“The authorities cited to me in argument in my view establish the proposition that where a public fishery in tidal waters exists no person – including the Crown – has the right to exclude the public or substantially to interfere with fishery (safeguarding navigation being one exception)…” (para 94)

Mr Howell had relied on a passage in the judgment of Fletcher Moulton LJ in Foster v Warblington Urban District Council [1906] 1 KB 648, 683-4, which emphasised the extent of the rights retained by the owner of the foreshore:

"… His rights over it are indeed subject to the rights of navigation of all the King's subjects, and subject also to their rights of fishing, but that does not prevent his having great powers of modifying that foreshore for his own purposes. For example, he can build walls and quays, and he can do that which is quite the strongest assertion of absolute ownership, namely, he can reclaim, and thus entirely exclude the public from it. Of this there can be no doubt….

Yet when regarded from an abstract point of view all such acts must more or less modify and affect the rights of navigation and fishing as they previously existed, but, as they did not substantially injure such rights and were of a character to conduce to the good of the community, they were looked on with favour and held to be legal…”

The judge did not see this as inconsistent with the proposition as stated by him. He commented:

“Fletcher Moulton LJ was careful to say that the foreshore owner's rights were ‘subject also to the [the public's] rights of fishing’. Fletcher Moulton LJ also approved acts modifying the rights of fishing ‘as they did not substantially injure such rights’ - the implication being to the contrary if they did substantially injure those rights.” (para 96)

In conclusion, he asked himself whether the proposed marina development would be a substantial interference with the fishery, and concluded that it would be:

“‘Substantial’ in my view in this context connotes an interference of sufficient significance to be actionable and to justify a claim for an injunction. In the present case we are not talking simply of a pier or pontoon or moorings or some temporary operation. The marina here would be of far greater significance – it would directly and permanently impact over 7 hectares of the fishery, including the crucial hardening area, and would destroy that part altogether as capable of being fished or used for fishing as well as impacting, by loss of the hardening area, on the remainder of the fishery. That is (quite apart from the potential possibly wider impact in pollution etc. terms on the remaining part of the fishery) in my view, a substantial interference.” (para 99)

It followed in his view the claimants had no common law right to construct a marina as proposed; and accordingly Articles 16 and 18, which operated to preserve rights but not to enlarge them, were of no assistance.

Mr Howell submits that the judge’s reasoning based on the effect of public fishing rights displays a fundamental misconception about the nature of an owner’s right to develop his land. That right exists even though it is subject to legal constraints, such as the requirement to obtain planning permission or other statutory consents. The grant of such consents does not create the right to develop, but simply removes inhibitions on its exercise. Public rights of navigation or fishery affecting the land are no more than forms of inhibition which may need to be removed before the right to develop may be lawfully exercised. The rights may be overridden by statutory authorisation under, for example, the Harbours Act 1964 or the Transport and Works Act 1962, or if necessary by Act of Parliament. He is seeking no more than a declaration of his clients’ right to develop free of the rights conferred by the 1962 Order, without prejudice to the need to obtain such other authorisations.

In retrospect it is perhaps unfortunate that this argument was allowed to develop as a variant of the case under articles 16 and 18, rather than a separate point, and without proper pleadings. As a result there seems to have been some lack of clarity as to the nature of the respective arguments on either side, and as to their practical consequences.

The effect of articles 16 and 18 in the present context in my view is reasonably clear. They operate as “exceptions” to the grant under section 40, with the result that the rights granted by the Order are not to prejudice any pre-existing rights of the Crown or the Council. This position is reflected in the leases, which expressly reserve the right of termination if the land is required by the owners for works or commercial purposes. To that extent it is clear that the rights granted under the Order do not in themselves detract from any right the claimants would otherwise have had to build the proposed marina.

This of course begs the question what rights they would have had apart from the Order. That to my mind involves a question of mixed fact and law. I have no difficulty in accepting that as a matter of law, even apart from the 1962 Order, the claimants could not carry out works which “substantially interfered” with public’s fishery rights. However, there seems to be little guidance in the cases as to how that principle is to be applied in practice in the context of “fixed” fish such as mussels. Nor is it clear what positive case the 2^nd to 4^th defendants were seeking to make as to the extent of the actual enjoyment of such public rights at any relevant time, or as to the nature of the interference.

The judge seems to have assumed (see his para 99, quoted above) that the extent of the interference was to be judged by reference to the mussel fishery as it existed at the date of the interference. However, the present mussel fishery is the direct consequence of the private rights granted by the Order. If the purpose of the clauses was to protect the claimants against the impact of the Order, the extent of any interference with public fishery rights can only be judged by reference to the public’s enjoyment of such rights as it was, or possibly as it would have been, apart from the Order. As to that, the evidence seems to have been wholly inadequate to draw any conclusion. The judge referred to the limited evidence of mussel fishing in this area in 1962, but there appears to have been no firm evidence as to how far it would have been affected by a marina development of the kind now proposed.

On the other side, Mr Howell is no doubt right to submit, at least in theory, that, even if it were found that the marina would substantially interfere with such public rights, it could be validated by or under an appropriate statutory enactment. However, that leaves open the nature of the statutory authorisations required, or the likelihood of obtaining them. For example, the Transport and Works Act 1992 enables works to be authorised which interfere with navigation (s 3(1)(b)), but says nothing about interference with fishing rights. On the other hand, the powers under the Harbours Act 1964 section 16 appear to be in more general terms. Of course a private Act of Parliament, if obtainable, would solve any such problems. However, to describe owners who have yet to identify the statutory authorisations which they require, let alone obtain them, as having the “right to develop” seems to be a play on words. It tells one nothing about their ability in practice to do so. I doubt the appropriateness of granting a declaration whose effect is to leave such crucial questions entirely unresolved.

Had it been necessary to resolve this issue, I would have inclined to the view that the 2^nd to 4^th respondents had failed to show any sufficient public enjoyment of fishery rights in the areas affected by the marina for interference with such rights to be an impediment to the proposed development. However, the issue is not in the end determinative. Of much more importance is the criminal prohibition under section 53, reproduced in section 7(4) of the 1967 Act, to which I now turn.

On a literal reading section 7(4) would make it unlawful for the claimants to carry out the works necessary for the marina. Even assuming that the Crown Estate is not bound by the section (under the ordinary principle of Crown immunity: see Halsbury’s Laws Vol 44(1) Statutes para 1321)), this would not help the Council, on whose land most of the marina is to be built. Mr Howell’s answer is that, having allowed for exceptions in section 40, Parliament cannot have intended them to be nullified by the operation of section 53. That section, and its successor, must therefore be read as implicitly subject to the same exceptions as section 40. Thus they should be read as applying to the doing of the things listed, other than “things to which the rights of the Grantees and the owner of the private oyster bed are subject”.

The judge rejected this argument and so do I. Section 40 and section 53 served different purposes. The former was directed simply to the rights to be conferred on the grantees. It is in that context that the Act permitted “restrictions and exceptions” to be defined in the Order. Section 53 was in broader terms, providing protection, supported by criminal sanctions, for defined mussel fisheries, whether established under the Act or independently of it. The imposition of criminal sanctions is an indication of the public interest in the protection of established mussel fisheries, quite apart from the protection of private rights. That distinction is reproduced in the 1967 Act. Had the legislature wished, it could easily have made section 53 subject to a similar qualification to that contained in section 40. Furthermore, that construction is reinforced by the terms of the saving clauses in the Order. They provided that “nothing in the Order” was to prejudice the claimants’ rights. Those words are not apt in my view to exclude the operation of section 53 (assuming that were otherwise possible). The criminal sanctions imposed by that section are not provisions “in the Order”, and are therefore not excluded by the wording of the saving clause.

It is true that this reading of the section may limit the practical value of the exceptions provided for under section 40, but it does not produce absurdity. It simply means that, to override the effect of the section as respects the area of the proposed development, an amending Order will be required to exclude it from the scope of the fishery. Mr Howell has not referred us to any other principle of interpretation which would permit us to rewrite the section in the way he proposes.

On those short grounds, I would therefore reject this ground of appeal.

In conclusion, albeit for reasons which differ in some respects from those of the judge, I would dismiss this appeal.

I agree.

I also agree. The legislation must be construed in the context of the mischief intended to be remedied and the practical considerations which arose. The 1868 Act followed the report of Commissioners appointed to enquire into the Sea Fisheries of the United Kingdom (1866). The report acknowledged, at paragraph 6, that: “Fishermen cannot be expected to dredge the public grounds without immediate returns, unless the exclusive benefit derived there from be secured to them; we might as well expect one of the public to spend money in cultivating a public common, the benefit of which would be shared by all and not confined to himself, as that one or more fishermen should dredge a public ground without immediate return.” The Commissioners went on to state:

“It is obvious, therefore, that if it be desirable to encourage the formation of oyster beds, either for fattening or breeding, some further powers must be given.”

The reason for that approach emerges from the nature of the mussel growing process described by Davis J at paragraph 21 of his judgment, repeated by Carnwath LJ at paragraph 9. Where the fishery is for what have been described as “fixed fish”, considerations arise additional to those in a fishery involving swimming fish. It is now common ground that the building of the proposed Marina in the present case would have a substantial adverse effect upon the operation of the fishery, which is the most productive in the UK. The basis for that finding is described by the judge at his paragraph 99.

Section 40 of the 1868 Act made it possible to confer by order “a right of several oyster and mussel fishery”. A several fishery is “an exclusive right to fish in a given place, either with or without the property in the soil.” (Malcolmson v O’Dea [1863] 10HL Cas 593 at 619). As stated by Carnwath LJ, at paragraph 35, a several fishery is a form of incorporeal property capable of being assigned or leased. That is conceded to be the position at common law. Parliament was providing statutory protection for a recognised common law right. Since a grant by an order made under the 1868 Act was contemplated to be for a long period, it is unlikely that Parliament intended the rights conferred by the grant to be personal, that is confined to a single person or entity, as distinct from being exclusive.

In submitting that it was so confined, Mr Howell QC, on behalf of the appellants, relied on the words in section 40 of the 1868 Act which provide that it is the “persons obtaining the order” who are in the Act “referred to as the grantees”. He also relied on the provisions of sections 51 and 52 which protected the ownership of the grantees in the produce of the fishery and on section 53 which created a criminal sanction for acts injurious to several fisheries. That applied to: “any person other than the grantees, their agents, servants, and workmen”. The expression “agents, servants, and workmen” is not apt, Mr Howell submitted, to cover lessees, licensees or assignees.

That was certainly not the construction put on section 40 in the many orders made under the 1868 Act. They have not treated the rights created by the Act as personal to the grantees. As early as 1872 the Greshernish Oyster and Mussel Fishery Order 1872 was approved by Parliament (as was required until the 1868 Act was amended by the Sea Fish Industry Act 1938) in the Oyster and Mussel Fisheries Orders Confirmation Act 1872. It identified parts of the foreshore and bed of Lock Greshernish on the Isle of Skye. Paragraph 3 of the Order provided:

“This Order confers on the said John Robertson, and his heirs and assignees, a right of several oyster and mussel fishery within the limits above mentioned.” (My emphasis)

That approach accords with what one would expect in context, a right which was exclusive but not personal. The 1872 Order was to continue in operation “for 60 years from its confirmation by Act of Parliament, and no longer”. Other such Orders were made and approved by Parliament under the 1868 Act.

Carnwath LJ has described the subsequent legislative events. I agree with him that, when construing section 40, the present statutory context provides an unusually strong basis for having regard to the later history. The legislature has subsequently been involved both in approving orders under the 1868 Act, as its section 38 originally required, and in passing the 1967 Act with knowledge of the many extant orders under the earlier statute, including the 1962 Order at issue in this case. I agree with Carnwath LJ’s analysis of the Law Commission report and its effects.

Section 40 made possible an order conferring a right of several oyster and mussel fishing and I am prepared to construe the expression “the persons obtaining the order, in this Act referred to as the grantees”, as including persons to whom relevant rights have been conferred by those obtaining the Order. Sections 51, 52 and 53 are intended to confirm and protect exclusivity. They do not, in my view, throw light on the category of persons who may enjoy those rights. Sections 51 and 52 are concerned to regulate the position between the grantee and the outside world. In section 53, the words “agents, servants and workmen” are required to cover those acting under the authority of the person enjoying the right, and are necessary whether the term grantee is broadly or narrowly construed. The construction I favour does not release the Fisheries Committee, the second defendants, from their statutory responsibilities in relation to the proper management of the fishery.

As to the issue on articles 16 and 18 of the 1962 Order, I agree with the conclusion of Carnwath LJ. Mr Howell stressed that all he seeks is a declaration that the effect of articles 16 and 18 is to uphold such rights as existed in the claimants immediately before the 1962 Order was made. The implications of such finding can be worked out, he submitted, in applications for authorisation under other legislation. There is no need to explore in these proceedings what rights others may have.

I agree it is unfortunate that the main argument now advanced by the 2^nd to 4^th respondents arose somewhat obliquely at the hearing before the judge. It appears to me, however, that, albeit on limited information, the judge found that a public right of fishing for mussels existed in the relevant area in 1962 when the order was made. The judge set out the evidence at paragraph 92 and made findings at paragraphs 93 and 97. I am reluctant on this appeal to reverse the judge’s finding. Whether or not that is the case, I agree with Carnwath LJ’s reasoning, at paragraph 70, about the inappropriateness of granting a declaration.

I also agree with Carnwath LJ that the presence of section 7(4) in the 1967 Act (and section 53 in the 1868 Act) is determinative of this issue. Both sections provided for a criminal sanction upon any person, doing specified acts by way of interference with the several fishery, other than “the grantees, their agents, servants and workmen” (section 53) and “the grantees or an agent or employee of theirs” (section 7(4)). Section 7(6) provides that in the 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” thus confirming, with respect to such orders, the broader approach I have favoured as to the extent of the exemptions present under section 53 of the 1868 Act.

The criminal sanction in section 7(4) recognises the public, as well as the private, interest in the protection of several fisheries operated pursuant to statute. The sanction is of general application and is not, in my view, nullified in the claimants’ favour by provisions such as those contained in articles 16 and 18 of the 1962 Order. I agree with the reasoning of Carnwath LJ at paragraphs 73 and 74.

The appeal must be dismissed.