Legal considerations

Definition of the shore and intertidal area covered by byelaws

Ownership of the foreshore

Common law rights over the foreshore

Customary rights and tolerances

Definition of the shore and intertidal area covered by byelaws

Attorney-General v. Chambers (1854) 4 De Gex MEG 206) proposed the seashore as "that portion only of land adjacent to the sea which is alternatively covered and left dry by the ordinary flux and reflux of the tides". In England and Wales, this has, until recently, been understood as including the area delimited by the mean high water mark and mean low water mark (unless extended by historic charter or local legislation); in other words the average high and low points of the ‘ordinary’ tides that occur between the extremes of spring and neap tides. However, recent case law has used a more meaningful definition of the ‘ordinary’ rise and fall of tides at any given part of the tidal cycle.

Tides are caused mainly by the gravitational attraction between the earth and the moon. Because the timing of tidal rise and fall follows the timing of a lunar day (24.8 hours), the period between high and low water is slightly over 12 hours, and the tidal cycle takes place a little later each day. Spring tides occur when the sun, moon and earth are all in conjunction, resulting in a stronger gravitational force acting on the sea. This produces tides that rise very high and fall very low on the shore, particularly during the spring and autumn equinoxes when the sun is closest to the equator - but such tidal movements are still ‘ordinary’ - they occur in a predictable fashion each year. Neap tides occur a week after springs, when the gravitational force is less, and the difference in height between the high water mark and the low water mark is much smaller than during springs. Spring tides and neap tides therefore both occur twice every lunar month, and the largest springs and smallest neap tides always occur at the same time of day and night every two weeks.

The upper limit of the foreshore is clearly defined in Halsbury’s Laws (4th edition) Vol. 8, paragraph 1418, which describes the foreshore as "land between high and low water mark, the right being limited landwards to the medium line of the high tide between spring and neap tides". This landward limit to the shore (also referred to as the foreshore or seashore) is commonly referred to as the Mean High Water Mark.

In the Court of Appeal judgement over Anderson v. Alnwick District Council (CO/1705/91), the Judges accepted the common law rule that the definition of the High Water Mark as the upper limit of the shore should remain, ‘for practical reasons’, at the line of ‘medium tides’.

The lower limit of the shore is not as clear in legal terms, and has been applied in a different way in Scotland than in England and Wales. In Scotland, the lower limit of the foreshore, its ownership, and the extent of planning legislation over the shore, has usually been defined as the mean low water mark of Spring Tides. It is therefore only during periods of extreme low water spring tides, or low water combined with unusual meteorological conditions (high barometric pressure and offshore winds), that areas will be uncovered by the sea that are not legally part of the foreshore. In England and Wales, however, the seaward extent of jurisdiction of local planning law on the foreshore has until recently been defined as the low water mark of ordinary tides (or Mean Low Water Mark), where ordinary tides are those that occur between springs and neaps. This means that, during the low water of spring tides, areas of shore will regularly be exposed that are not legally defined as ‘foreshore’.

This definition has caused difficulty with regard to the enforcement of byelaws controlling activities on the lowest levels of the foreshore. It is virtually impossible to define the low water mark of ‘ordinary’ tides on the shore during periods of low water spring tides, when the sea has receded further than this invisible line. However, recent case law seems to have clarified the situation.

Briefly, baitdiggers had claimed in Anderson v. Alnwick District Council (CO/1705/91) that a local authority byelaw prohibiting baitdigging in part of Boulmer Haven only extended to the Mean Low Water Mark. Digging on the shore exposed during low water spring tides could therefore be undertaken without infringing the byelaw. This case went to appeal, and resulted in a judgement by the Court of Appeal (1992 - 1 WLR 1156) that the local authority byelaws extend to the fluctuating low water line as it is at any time, not just at mean low water. The judgement stated: "...the text of the byelaw is correctly interpreted as meaning the area of the seashore from time to time, and the low water line means the seawards boundary of that area, in other words, the low water mark from time to time."

In summary, following the judgement given in recent case law (Anderson v. Alnwick District Council), planning legislation and other byelaw making powers applying over the foreshore now cover the entire intertidal area which is exposed from time to time by the sea. It is likely that the same position may be argued to exist in Scotland and Northern Ireland, although additional case law may be required to clarify this – the judgement in Adair v. the National Trust over bait collection in Strangford Lough, Northern Ireland, did not discuss this point.

Ownership of the foreshore

Under Roman law, the shore of the sea, as far as the waves go at their furthest point, is considered as belonging to all men. However, today, most of the foreshore in the UK (including at least 50% of the Scottish foreshore) is owned by the Crown, and managed by the Crown Estate Commissioners. Some areas of foreshore are owned by local planning authorities, harbour authorities, private estates or landowners. Their claim of ownership may extend to the seabed (below the low water mark), particularly within sea inlets, but this subtidal extension of private ownership is often disputed by the Crown Estate Commissioners. The ownership of some areas of foreshore (at least in Scotland) is currently in dispute.

The ‘natural products’ found on the seashore belong to the owner of the shore, but not ‘seafish’. In addition, some landowners have ancient proprietary rights over ‘seafish’ associated with their ownership of coastal land, for example over adjacent shellfisheries. Their fishing rights may not be removed by byelaw without the consent of the interested parties (Huggett 1995b).

Of course, landowners may permit a person to take intertidal ‘products’ or issue licences for them to do so, if they are not already permitted to take these products as part of a public right. The circumstances under which landowners may take these actions are outlined in more detail below.

Regardless of the details of private, local authority or Crown Estate ownership of the foreshore, members of the public are also entitled to exercise certain rights over this area. These rights may be separated into the following main categories: common law rights, customary rights (including profits prendre), and tolerances. The latter two only apply in those cases where common law rights do not exist. Regulating the exercise of such public activities is often extremely difficult to address, because it is difficult to identify those members of the public exercising the same, or to control fully those activities carried out under common law right without the introduction of new primary legislation.

Common law rights over the foreshore

The Judgement of Girvan J in Adair v. The National Trust (1997) points out that: "The common law ... has not always developed on the basis of logic and the common law, in particular in the context of determining the rights of the public on the foreshore, has developed piecemeal and not as a reasoned whole." The following relevant Case Law is quoted:

Brinkman v. Matley [1904] 2 Ch 313 at 315, Buckley J: "By the common law all the King’s subjects have in general a right of passage over the sea with vessels for the purposes of navigation and have prima facie a common of fishery there and they have the same rights over the foreshore at the times when the foreshore is covered with water."

Attorney General for British Columbia v. Attorney General for Canada [1914] AC 153, Viscount Haldane LC: "...the subjects of the Crown are entitled as of right not only to navigate but to fish in the high seas and tidal waters alike. The legal character of this right is not easy to define. It is probably a right enjoyed so far as the high seas are concerned by common practice from time immemorial, and was probably in very early times extended by the subject without challenge to the foreshore and tidal waters which were continuous with the sea, if, indeed, it did not first take rise in them. The right into which this practice is crystallised resembles in some respects the right to navigate the seas or the right to use a navigable river as a highway, and its origin is not more obscure than these rights of navigation. Finding its subjects exercising this right immemorial antiquity the Crown as parens patriae no doubt regarded itself bound to protect the subject in exercising it, and the origin and extent of that right as legally cognizable are probably attributable to that protection, a protection which gradually came to be recognised as establishing a legal right enforceable in the Courts."

Buckley J’s judgement in Brinkman v. Matley [1904] 2 Ch 313 at 315 states "When the sea recedes and the foreshore becomes dry there is not, as I understand the law, any general common law right in the public to pass over the foreshore. There are certain limited rights". For example, the Courts have held that there is no right to cross the foreshore to exercise their right to swim or bathe in the sea (Blundell v. Catterall (1821) 5 B&Ald 268, and Brinkman v. Matley [1904] 2 Ch 313), or to hold meetings or deliver sermons (Llandudno Urban District Council v. Woods [1899] 2 Ch 705) or to place chairs on it (Ramsgate Corporation v. Debling (1906) 70 JP 318) or to go there to gather seaweed, even though there is a public right to take seaweed floating in the sea (Hove v. Stowell (1833) Al & Nap 348 (IR)). The above activities are considered to be tolerances in the UK (see below - although some of these activities are recognised as a right in certain of the United States).

At common law, there is undoubtedly a public right to take fish from the tidal waters around the Kingdom. This common law right extends from the outer limits of territorial waters of the sea to all inlets and the tidal reaches of all rivers and estuaries, Adair v. National Trust (1997 judgement of Girvan J) reviews the complicated nature of the limited public rights over the foreshore (referred to in Brinkman v. Matley, see above), and how the public right to fish in tidal waters is usually extended to include the collection of fish including shellfish on the exposed foreshore when the tide is out. Girvan quotes the following sources:

Hall’s "Essay on the Rights of the Crown and the Privileges of the Subject in the Seashores of the Realm" (2nd Edition, 1875) states: "As the public right of fishery cannot be enjoyed without making use of the seashore for egress and regress or for other essential conveniences which the fishery requires in order to be carried on with effect, the use of the seashore, for all purposes essential to the enjoyment of the right of fishery necessarily accompanies such right. ... The catching of shellfish on the seashore ... would seem to constitute an integral part of the public right ... The fishery for lobster, crab, prawns, shrimps, oysters and various other shellfish ... is carried out in every fishing village on the coast and is one very useful and valuable branch of the fishing trade. The catch of these fish is, therefore, part of the public (right)."

Bagott v. Orr 2 B&D 472 states: "Prima facie every subject has a right to take fish found upon the seashore between high and low water mark but such a general right may be abridged by the existence of an exclusive right to some individual. Quaere: if there is a prima facie right in the subject to take fish shells found on the seashore between high and low water mark." As pointed out by Evans LJ when giving judgement over Anderson v. Alnwick DC [1993] 3 All ER 613 at 621, it is not clear whether the ruling was made in order to allow the claim in respect of shellfish to proceed, rather than a final ruling that it was correct in law. However, in Donnelly v. Vroom [1908] NSR at 327 the Nova Scotian Court of Appeal considered that Bagott v. Orr was "a clear recognition of the common law right ... to take and carry away shellfish upon and from the land ... between the high and low water mark."

Legal advice to the former Nature Conservancy Council (quoted in Fowler 1992, from correspondence in NCC files) had counselled that "it is well established in law that the public right to fish (in the sea) does not include any right of interference with the soil (the land under the sea)". Had this advice been upheld, it would have meant that there is no such ancillary right to dig bait (at least in England and Wales) and that baitdigging was a 'tolerance'. However, the Judges in Anderson v. Alnwick DC agreed that this public right to gather bait is a right ancillary to the public right to fish. They stated: "The public right to take fish from the sea and tidal waters was jealously guarded from Magna Carta onwards. To restrict the use of worms as bait, which themselves were only to be found in the sand of the foreshore and therefore beneath the surface of the water when the foreshore was covered by the tide, would itself have been a restriction on the right. We hold therefore that a public right to take worms from the foreshore is recognised by the common law and may be properly be described as ancillary to the public right to fish. ... But it does not follow that the right is unrestricted or that it may be exercised by any member of the public at any time or place ... This means that in our judgement, that the taking of worms must be directly related to an actual or intended exercise of the public right to fish. Taking for commercial purposes such as sale clearly is not justified in this way."

With regard to the collection of shellfish from the foreshore, in Adair v. The National Trust (1997) Girvan concluded that there is a common law right vested in members of the public to take shellfish from the shore, and that this is an incident of the public right to fish. (It is well established that fishery legislation may not discriminate between individuals who fish - whether commercial fishermen or recreational fishermen, their rights are identical in law.) Girvan’s conclusion was partly based on the consideration that the common law right to collect shellfish from tidal waters permitted the removal of shellfish during periods of high water from areas that would become foreshore later in the tidal cycle, and that it was not logical to exclude collection from the same areas when the tide went out.

In summary, recent case law confirms that there is an ancillary right to take bait from the foreshore, whether by hand collection from rocky shores or the surface of sediment shores, or by digging in sediment shores. This right must exist in order to exercise the common right to fish. However this ancillary right is restricted to the collection of bait for the actual or intended collector’s own use when fishing, and does not permit commercial baitdigging for resale. The common right to fish also includes the removal of shellfish from the shore, whether for personal consumption or commercial sale, unless this is i) an ancient proprietary right of the landowner, ii) abridged by several or regulating order, or iii) regulated by other byelaw. There are a number of byelaws that may be used to regulate the collection of bait or of ‘seafish’, but with the exception of several or regulating orders, none of these may be implemented in a discriminatory manner - they must apply equally to all individuals. This makes restricting the numbers of individuals engaged in any fishery or collection activity extremely difficult, if not impossible.

Customary rights and tolerances

In the context of this review, this section really only applies to commercial bait digging. The 'natural products' found on the seashore belong to the owner of the shore. The only right which may exist to take these products from someone else's land (other than under a common law right), is a 'profit prendre'. This right is generally attached to the holding of land (usually close to the commons where the right is practised, in this case, the shore) and is passed to each successive owner of the land. All commons are profits prendre, but the latter may also exist in gross; not attached to ownership of land, but as a grant or prescription entitling the possessor (an individual and his heirs in perpetuity) to some use of the land. In neither case can profits prendre be part of a public right of fishing. There are only a very few known examples where commercial bait diggers or other collectors of intertidal species carry out their activity in relation to a land holding or through inheritance.

Individuals may hold private rights to take intertidal species from a specific area of the shore. The only examples of common land units on the shore that were identified by Fowler (1992) were on the North Norfolk coast, from Holme to Burnham Overy, which include intertidal areas. Rights holders (there may be up to 150 of them) reportedly have exclusive rights to baitdigging (including commercial baitdigging) within these land units. Such private rights may arise as above by grant from a landowner or by local custom, following long use of the area. Customary rights, however, are scarce and difficult to prove in law.

Courts may accept evidence of a sufficiently long period of use 'as of right' (i.e. openly, but not by force or permission) as being equivalent to there having been a 'lost modern grant' for an individual to take bait from an area. The period of time required for such a right to have been established may be decades to hundreds of years. Such claims may be difficult to prove even for a defined group of the local inhabitants of an area. Under the Prescriptions Act (1832), which does not apply to profits prendre in gross, it is necessary to show that the activity has taken place "as of right" for 30 years. If the activity has been exercised for 60 years it shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by consent or agreement in writing.

Goodman v. Saltash Corporation (1882) App Cas Vol. 7, p. 633 deals with customary rights, in this case the profits prendre through a grant assigned to a group of individuals in the area. This case law was one of the arguments used in Adair v. The National Trust to put forward the plaintiff’s claim to a customary right to take shellfish and to dig bait commercially from the shores of Strangford Lough. He argued that he had been doing so for years, and his father and grandfather before him. It was also asserted that a significant number of other persons connected with the fishing industry did so likewise. Opposing the claim, it was argued that such an unrestricted right would interfere substantially with the landowners’ proprietary interests. It was also pointed out that the claim to a customary right was unsustainable because it was uncertain who could exercise this right, and there could be no such customary right to what was really an asserted profit prendre.

Girvan’s judgement in Adair v. The National Trust states: "A custom is a particular rule which has existed either actually or presumably from time immemorial and has obtained the force of law in a particular locality although contrary to or not consistent with the general law of the realm (see Lockwood v. Wood (1844) 6 QB 50 at 64 per Tindal CJ). A custom is in the nature of a local common law within the particular locality." "To be valid a custom must have four essentials.

"1. It must have been in existence from legal time immemorial [fixed at 1189];

"2. It must be reasonable;

"3. It must be certain in respect of its nature and in respect of the locality; and

"4. It must have continued without interruption."

Girvan points out that "It has been held that an alleged custom is unreasonable on the grounds that it would destroy the subject matter of the right and for this reason a 'profit prendre' cannot ordinarily be acquired by custom (see Tilbury v. Silva [1889] 45 Ch Div 98 at 107, Lord Fitzhardinge v. Purcell [1908] 2 Ch 139, and Payne v. Ecclesiastical Commissioners (1913) 30 TLR 167)."

Girvan’s judgement ruled that shellfish collection was a common right not a customary right (see above). He failed the claim that commercial baitdigging ("the claim to be entitled to take lugworms from the foreshore without limitation and for general commercial purposes") in the Lough was a customary right of the ‘fishing community of County Down’. This group of people was vague and uncertain, and the evidence of "a widespread enjoyment of an alleged right to take lugworms for general commercial purposes from the Lough" did not satisfy the Court.

Tolerances are activities that are widely undertaken without any public right. As already noted, crossing the foreshore to swim in the sea, using it to hold meetings, collect seaweed, or even sitting on the sand for recreational purposes, are all tolerances, and could be prohibited by a private landowner - although bait digging could not. Similarly, commercial bait digging is widely tolerated around the coast, where it does not cause any problem or conflict with other users (or perhaps simply cannot be identified as such).

References