Determining the extent of an easement by prescription

Introduction

In Lynn Shellfish Ltd v Loose ([2016] UKSC 14) M had an exclusive prescriptive right to take shellfish from a stretch of foreshore on the South East coast of England. M granted a lease of this right to L.

L brought proceedings against parties he alleged were catching shellfish within the area which L claimed was subject to his lease. The dispute arose because the low water mark (marking the seaward boundary of the area subject to the prescriptive right) changed over time.

There were two aspects to the dispute:

(a) where was the line to be drawn between the area of shoreline subject to the right and the sea?

and

(b) whether sandbanks which had not been attached to the shore at the time that the right was acquired, but which later became attached to the shore, were subject to the prescriptive right?

Amongst other questions, the UK Supreme Court had to consider: (a) the general principles concerning the extent of a prescriptive right; and (b whether a prescriptive right could relate to a shifting area of land.

Lord Neuberger and Lord Carnwath jointly gave the main judgment.

Area covered by the right: depends on the actual use relied on

On the first question, the Supreme Court said:

‘in order to identify the nature and extent of the right obtained by prescription, one has to examine the actual use as of right upon which it is said to be based.’ ([45]).

 

Whether a prescriptive right can relate to a shifting area of land

The starting point is that:

‘The concept of a conveyance of, or a grant over, a shifting, or fluctuating, area of land is not offensive to any principle of property law, provided that the land in question can be ascertained at any time with reasonable precision.’ ([48])

And so such a right could be obtained by prescription ([50]).

 

Decision

(a) The area subject to the right varied with changes in the low water mark:

‘[it is] .. inherently very likely, indeed inevitable in terms of practical reality, that the putative Right would have been exercised over an area which was defined, or limited, by a shifting low tide mark.’ ([58])

(b) The prescriptive right did not affect the sandbanks which became attached to the foreshore. The evidence did not show that the actual use extended to those sandbanks. The public would previously have had the right to fish there and that right had been exercised ([73]).

Michael Lower

 

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