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Cite as: [2008] EWHC 921 (QB), [2008] NPC 56

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Neutral Citation Number: [2008] EWHC 921 (QB)
Claim No: HQ07X01101

(Sitting in Caernarfon County Court)

Claim No: HQ07X01101
Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :



- and




Mr John Howell QC and Miss Emma Dixon (instructed by Alan Carr) for the Claimants
Mr Clive Lewis QC (instructed by Treasury Solicitors) for the First Defendants
Mr Guy Fetherstonhaugh QC and Mr James Segan (instructed by Andrew M Jackson) for the Second, Third and Fourth Defendants
Hearing dates: 3 7 March 2008



Crown Copyright ©

    Mr Justice Davis:


  1. This case relates to an oyster and mussel fishery in the eastern Menai Strait. The fishery extends over some 1928 acres (761 hectares). The claimants between them are the legal owners of the foreshore and seabed which is included in the fishery. The claimants subject to obtaining the necessary planning and other statutory consents wish to see constructed a marina on their land. The proposed marina site would extend to some 10 hectares: of which some 7 hectares would be within the fishery.
  2. The fishery in question was created (or purportedly created) for a 60 year term by the Menai Strait Oyster and Mussel Fishery Order 1962 ("the 1962 Order"). The 1962 Order was made (or purportedly made) under the powers conferred by the Sea Fisheries Act 1868 ("the 1868 Act") by the Minister of Agriculture, Fisheries and Food, whose successors for these purposes are the Welsh Ministers, the first defendants in these proceedings. The grantees under the 1962 Order were the Local Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries District, whose successors are the North Western and North Wales Sea Fisheries Committee, the second defendants in these proceedings. As contemplated by the 1962 Order itself, the Committee did not itself exercise the fishery rights. Instead it permitted others to do so, on a commercial basis, dividing the fishery up into 6 areas for that purpose. Two of such areas are currently leased by the third and fourth defendants, Andrew Wilson and Extra Mussel Limited.
  3. The second, third and fourth defendants strongly oppose the proposed marina development. They consider that it will gravely prejudice the viability of the mussel fishery (oysters, in practice, being of no significance). Many of the disputes raised have been, and perhaps will continue to be, the subject of debate and decision elsewhere: in the context of planning and other statutory consents needed. But the present proceedings raise even more fundamental issues. The claimants say that, subject to obtaining all the necessary statutory consents, they have the legal right to construct such marina and the defendants have no legal basis for disputing that. The second, third and fourth defendants, on the other hand, say that the claimants, and irrespective of whether or not they can obtain planning and other statutory consents, have no legal right to construct such marina so as to interfere with the fishery.
  4. The actual issues argued before me were, in summary, these:-
  5. 1. Whether the 1962 Order was invalid and ultra vires (that is to say, not lawfully sanctioned by the 1868 Act). The claimants say that it was. All the defendants say that it was not.
  6. 2. If the 1962 Order was not ultra vires, whether the conferred fishery right was made effectually subject to the claimants' asserted rights as landowners to build the marina by reason of Articles 16 and 18 of the 1962 Order. The claimants say that it was. The second, third and fourth defendants say that it was not.
  7. 3. Whether the construction of such marina would be illegal and contrary to section 7 of the Sea Fisheries (Shell Fish) Act 1967. The claimants say that it would not be. The second, third and fourth defendants say that it would be.
  8. The points raised are both interesting and important: important certainly to the parties but, as appeared from the arguments before me, potentially having wider implications also. It has to be said that the issues raised in some respects were somewhat arcane and in all respects were complex. They involved a wide-ranging examination of the law relating to fisheries and of the statutory provisions in question. Although the lengthy written arguments initially put in by some of the parties variously condemned the opposing arguments as "unarguable", "misconceived" and so on such protestations had become increasingly muted by the third day of the very closely argued hearing before me: as also had the initial suggestions to the effect that the provisions of the 1868 Act and 1962 Order were "totally clear" in favour of any particular argument being advanced by any particular advocate at the time.
  9. The claimants were represented at the trial by Mr John Howell QC and Miss Emma Dixon. The first defendants were represented by Mr Clive Lewis QC. The second, third and fourth defendants were represented by Mr Guy Fetherstonhaugh QC and Mr James Segan. I would like to acknowledge the care and skill with which the respective cases were prepared and advanced by counsel and solicitors acting for each of the parties.
  10. These proceedings were initially issued in the High Court, Queen's Bench Division, in London on 3 April 2007. By that time, judicial review proceedings had already been instituted in the Administrative Court in London by Mr Wilson and Extramussel Limited, along with the lessees of the other areas in the fishery (Deepdock Limited, Myti Mussels Limited and Ogwen Mussel Limited) on 7 July 2006. Those proceedings sought to challenge by way of judicial review a decision communicated by letter dated 11 April 2006 from the Welsh Minister for the Environment, Planning and Countryside granting a licence to the Anglesey Boat Company Limited, the prospective developer of the marina, to deposit material in the sea pursuant to section 5 of the Food and Environment Protection Act 1985. The two sets of proceedings were due to be heard together. In the event those judicial review proceedings have subsequently, and by consent, been withdrawn on the footing that the matter had become academic as the licence was due shortly to expire and that the Minister had indicated that a fresh application for a licence would be needed. In the meantime, of course, necessarily no development works in connection with the marina have yet started.
  11. Notwithstanding that both sets of proceedings were issued in London, the trial took place in Caernarfon. This was in consequence of an order made by HHJ Hickinbottom (then Designated Civil Judge for Wales in Cardiff and sitting as a Judge of the High Court) on 3 October 2007. That decision was a salutary one: the reasoned judgment dated 30 October 2007 in my view deserves notice. Quite apart from the fact that this case, which is replete with local issues, has generated a significant amount of interest to people in Anglesey and North West Wales, a hearing in North West Wales has achieved a practical reality of access to local justice. I might also add that a consequence of the hearing taking place in Caernarfon was that I was invited by the parties to view the area in question (on a modern mussel dredger): a view which I found both interesting and helpful.
  12. Factual Background

  13. The issues raised before me were almost entirely legal. No oral evidence was adduced before me, there was no cross examination and I was not asked to resolve any factual disputes where evidence conflicted. Moreover, the extensive witness statements put in before me were to a significant extent directed at the issues arising in the (now withdrawn) judicial review proceedings.
  14. Further, an amount of such evidence understandably relates to what may be called the wider issues arising for the purposes of the statutory consents which would be a precondition for the proposed development whether under the planning legislation, under the Food and Environment Protection Act 1985 or under the Coast Protection Act 1949. It is easy to envisage that there will be people, over and above the mussel fishermen, who will be opposed to the prospective marina development on environmental, aesthetic or other grounds. Likewise, there will be those, over and above the land owners and developers, who will support the prospective marina development on economic and other grounds. It is no function of this judgment to enter that debate, let alone to reach conclusions on it.
  15. Nevertheless, in order to give context to the 1962 Order and the issues in this litigation it is necessary to set out some of the background.
  16. The proposal to construct the marina in question was first made by Anglesey Boat Company Limited early in 1998. That company operates a boatyard at Gallows Point, near the attractive town of Beaumaris on Anglesey. The marina was proposed to be constructed over an area of some 10 hectares, mostly to the west of Gallows Point. The coastline there is for the most part quite well wooded to close up to the shore-line fronting the Menai Strait: albeit with some development (including the boatyard) on the point itself. A road runs quite close to the shore line. Viewed from the strait it is an attractive area, although by no means wild or secluded. The view back to the south from the strait towards Snowdonia can be considered amongst the finest in the British Isles.
  17. The Isle of Anglesey County Council (successor to the Beaumaris Corporation, among others) is the freehold owner of part of the foreshore at this point. The seabed forms part of the Crown Estate, but it has previously leased parts of the land relevant to the marina development to the Council. (Parts of the proposed marina, I should add, also involve another estate or estates but that is not immediately relevant for present purposes.) The position is clearly marked on the plan annexed to the Particulars of Claim and other enlarged plans produced at the trial.
  18. A planning application was submitted to the Council in March 1999. Detailed environmental information was provided. The proposed 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. The construction would involve not only a considerable amount of reclamation and dredging along the shore and sea bed but also deposits of debris into the sea and on the sea bed, as well as the affixation of pontoons to the sea bed. (A quite separate application was in addition put in for redevelopment of Gallows Point to create around 4000 square metres of marine industrial units.)
  19. On 1 December 1999 the Council resolved to grant consent. However, the application was then called in by the National Assembly for Wales. An extensive public enquiry was held in July 2000. Evidence was given by, amongst many others, representatives of the mussel fishery operators. The Inspector recommended that the planning application be refused, saying among other things that the environmental impact (including the impact on the mussel fishery) would be one of considerable harm. On 28 July 2002, however, the Assembly rejected the recommendations of the Inspector; and indicated that it had resolved to issue planning consent, subject to completion of the necessary section 106 Agreement from the relevant landowners (which included the Crown Estate and the Council). Planning consent, subject to conditions, was then issued on 9 January 2003. Thereafter consents under the Coast Protection Act 1949 and Food and Environment Protection Act 1985 were sought and obtained; the latter being granted on 11 April 2006 and which, as I have said, is shortly to expire. I was told that the consent obtained under the Coast Protection Act 1949 has now also expired and a fresh licence under that Act will now be needed.
  20. It is said that the proposed marina and associated development will cost nearly 17 million. Quite a significant part of the cost, however, is proposed to be grant funded.
  21. It is not disputed that part of the proposed Beaumaris Marina falls within the several fishery, which is the subject of the grant contained in the 1962 Order. That part, as I have said, is some 7 hectares out of the total 10 hectares (approximately) of the marina development. The fishery, the subject of the grant contained in the 1962 Order, is some 761 hectares: of which 502 hectares is leased, by way of "lays" for the cultivation of mussels, in 6 areas. Areas 1 and 2 are leased to Myti Mussels Limited; Area 3 to Extramussel Limited; Area 4 to Andrew Wilson; Area 5 to Ogwen Mussel Limited (a joint venture between Deepdock Limited and Myti Mussel Limited); and Area 6 to Deepdock Limited. So far as Area 4 is concerned, the evidence suggests that in practice Mr Wilson informally may hold the lease for the benefit of Deepdock Limited. In so far as the marina falls within the fishery area, that in fact would be within Area 4 (leased to Mr Wilson) which Area comprises some 26 hectares. Thus of the total fishery area the proposed marina would occupy just under 1%; and it would occupy around 1.5% of the total area actually currently leased for mussel cultivation and fishing.
  22. Each of Areas 3 and 4 is leased by the second defendant Committee to Extramussel Limited (the fourth defendant) and to Mr Wilson (the third defendant) respectively by leases dated 2 April 2002. The term in each case is 7 years. Reference is expressly made in the leases to the 1962 Order. The initial rent was 1,500 per annum, subject to agreed adjustment after the first year. The Committee, as landlord, amongst other things, by Clause 11.2 reserved "all estate rights powers privileges authorities or exemptions reserved by the Order to the Crown" as well as all rights of navigation, anchoring and mooring. Various obligations were imposed on the tenant by Clause 12. By Clause 14 (headed "General Provisions"), it was provided by Clause 14.1 as follows:-
  23. " 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 "

    Provisos were included to the effect that rent would be reduced as appropriate in such eventuality with, in addition, an option to the tenant to determine the lease if the rights were rendered no longer economically viable.

  24. I was not shown the leases in respect of the other Areas, but I gathered that they are in the like terms. It was common ground before me that there is no statutory right of renewal of such leases on their expiry, although doubtless it is hoped that they will be renewed.
  25. I will come on to the terms of the 1962 Order in due course. But it is on its face self-evident that it was never intended under the Order that the Committee as grantee would itself operate the fishery. The Committee (like its predecessor) is in fact a non profit-making corporate body, created under statute. It was always contemplated that the fishery, or parts of it, would be leased or licensed by the Committee to commercial operators: with the Committee there, as landlord, to ensure good and environmentally sound fishery practice.
  26. 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.
  27. 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.
  28. The evidence before me of the use to which the 1962 Order was initially put in the early years after it was made was rather limited. However, the evidence does show considerable and increasing activity, and investment, from the 1980s. It was common ground before me that all the mussel operators have conducted their operations in an exemplary way. They have all invested very considerable sums: for instance Deepdock Limited, with which Mr Andrew Wilson is closely connected, acquired a new mussel dredger in 2003 for 2.3 million (albeit some of it grant funded). Significant other sums, on dock renovation and so on, have also been expended. Deepdock Limited itself sells between 1,500 to 2,300 tonnes of mussels each year, most being exported, with further growth to 3,000 tonnes anticipated as Ogwen Mussel Limited is developed. The company employs 7 full-time staff and 5 seasonal staff. It has also provided active assistance to scientific research projects relating to mussels. Comparable observations can be made with regard to the other Area lessees. It is said in one witness statement that by 2005/6 the fishery established under the 1962 Order was the most productive of all such orders in the UK, yielding an output valued at over 5.7 million. It is said in another statement that in 2006 the mussel farms in the Menai Strait produced 13,120 tonnes of mussels with a value of 6,630,000.
  29. The concern of all the mussel operators and not least of Mr Andrew Wilson and Deepdock Limited in respect of Area 4 and Extramussel Limited in respect of Area 3 - is that the proposed Beaumaris Marina will have a gravely prejudicial effect on the profitability, indeed viability, of their mussel operations. Mr James Wilson, in common with Mr Andrew Wilson, states that some 40% of the annual production of Deepdock Limited will be destroyed directly by the construction of the marina, with the intertidal hardening area within Area 4 entirely, and the subtidal area very considerably, being destroyed by the new marina and channel being created. In addition concerns are raised by Dr Atkins and others about the effects of hydrodynamic and microbiological change and of water quality pollution which, it is said, could have an impact far beyond the actual site of the marina, extending to 1000 metres or more from the foreshore and so potentially affecting all Areas.
  30. Dr Atkins thus expresses concerns that the other Areas and the condition of the water will be affected both by the construction process and by the number of vessels thereafter using the marina. In a witness statement dated 5 December 2007, Mr Peter Hunt, Director of the Shellfish Association of the Fishmongers' Company, expresses concerns that the development would "threaten the future of the single most important shellfish cultivation area in the UK"; and would, if permitted, have implications for other mussel fisheries as well. He considers the dispute to have "national" significance (meaning by that, I think, England as well as Wales) a view shared by Dr Douglas McLeod, Chairman of the Association of Scottish Shellfish Growers, in respect of Scotland, as set out in a witness statement dated 6 December 2007.
  31. Grave concerns as to the impact on the Menai Strait fishery are also expressed in a witness statement of Mr Kim Mould, a director of Myti Mussels Limited, in respect of Areas 1 and 2; and Mr Trevor Jones, a director of Extramussel Limited, in respect of Area 3.
  32. The position of the claimants is very different. They stress, in evidence put in on their behalf, the projected economic benefits which, they say, could flow from the marina: quite apart from the immediate employment benefit of the construction of the marina. They say that it could in the long term create over 140 jobs in an area desperately needing to boost employment. They say that, while some detriment to a part of the fishery in Area 4 can be anticipated, the defendants have severely overstated the overall detriment: and they challenge what they say are inaccuracies in the defendants' representations as to environmental, hydrodynamic, water quality and other such aspects: see the undated witness statement of Mr Dafydd Gruffudd Jones. In the course of a detailed witness statement dated 11 January 2008 Mr Michael Barton, Head of Property Services at Anglesey County Council, states that the Council "sees the proposed construction of a marina at Beaumaris as a key element in the revitalisation of the island's economy"; and that while it is acknowledged that the mussel farming industry is also an important part of the island's economy the Council "believes that there is no reason why the marina and mussel fishery cannot exist side-by-side, as indeed they do in other areas such as Conwy Harbour ". He stresses that it would not be in the interests of the Council or community to put the mussel fishery in jeopardy, nor does it seek to do so.
  33. One particular point made by both claimants is this. The Crown Estate Commissioners and the Beaumaris Corporation, the predecessor in title to the Isle of Anglesey County Council, consented to the making of the 1962 Order on the terms contained in it. They sought, and received, no payment at the time and get no direct benefit from the commercial mussel fishery carried out on or over their land. In a witness statement dated 11 January 2008, Mr Neil Jacobson, Head of Coastal Operations of the Marine Estates Department of the Crown Estate, points out that the Crown owns most of the seabed (up to the territorial limits) and much of the foreshore in the United Kingdom. His department includes in its portfolio of interests (it being under a broad statutory obligation to maintain and extend the value and return of the Crown Estate, subject to considerations of good estate management, under the Crown Estate Act 1961) activities including aggregates, pipelines, moorings and marinas. He counters the suggestion made on behalf of the defendants - that to permit the proposed marina in this case would have significant adverse implications for other mussel fisheries in the United Kingdom by saying that not to permit it, as a matter of law, would also have profound implications; for the Crown Estate Commissioners would henceforth be disinclined to consent to orders comparable to the 1962 Order; and if that happened the promotion and preservation of shellfish fisheries in the United Kingdom would for the future be likely to be impeded, not enhanced.
  34. As I have indicated, it is not for me in these proceedings to form a judgment on the merits (environmental, planning, economic or otherwise) of the competing positions. My task necessarily has to be much narrower. But the evidence does flag up two competing and contrasting positions which are relevant, although not in themselves decisive, on the issues of interpretation I have to decide. They are these:
  35. 29.1 First the question has to be asked whether Parliament by the 1962 Order (if it was otherwise valid) would have intended that the landowners should retain their rights as landowners such that they could be exercised to the potential detriment of the mussel fishery, especially when the users could be contemplated as likely to spend very considerable sums in the meantime to develop the fishery.
    29.2 Second the question has to be asked whether Parliament by the 1962 Order (if it was otherwise valid) would have intended that the landowners whose consent to the 1962 Order was needed and to whom no payment was to be made should be deprived for the 60 year term of the Order of their erstwhile rights as landowners to develop and exploit their land.
  36. The first point possibly does not seem to have quite as much weight (although it does on any view have weight) as at first sight may appear: in that as at 1962 consents under the planning legislation and the Coast Protection Act 1949 would still have been needed for any such development: that could be seen to provide at least some measure of protection (and notice) to the mussel fishermen.
  37. In particular, however, Mr Howell was most certainly entitled to comment that in the present case the mussel operators have spent these large sums knowing that they operated under seven year leases, for which there was no guarantee of renewal and no security of tenure; leases, moreover, which by their very terms put the lessees on notice that some of the area of the lays may be required for redevelopment. The leases were granted expressly on that basis: see clauses 11.2 and 14.1.
  38. The second point does, at first sight, have considerable weight: it seems a strong thing indeed to take away the usual incidents of land ownership without clear and explicit language to that effect. I will, however, have to come on to the argument of Mr Fetherstonhaugh to the effect that, even immediately prior to the 1962 Order, the Crown Estate and the Beaumaris Corporation had no unfettered right to develop the land in this particular way.
  39. Ultimately, however, all depends on the language of the 1868 Act and the 1962 Order and the proper meaning to be given to them. So I turn to those next.
  40. The 1868 Act and 1962 Order

  41. The 1868 Act came into force on 1 February 1869. The relevant sections for present purposes are contained in Part III of the 1868 Act. The 1868 Act has since been replaced by the Sea Fisheries (Shellfish) Act 1967 ("the 1967 Act"): but that latter Act, of course, post-dates the 1962 Order.
  42. Section 29 of the 1868 Act, under the heading "Order for Fishery", is the section which confers the power (on, then, the Board of Trade) to make an order for the establishment or improvement of an oyster and mussel fishery. It is in these terms:-
  43. "29. Power to Board of Trade to make order for establishment, etc. of oyster and mussel fishery. 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)."
  44. There then follow sections requiring the promoters to publicise the proposed draft order, and permitting receipt of objections and allowing for an inquiry. Section 34 (as amended) is then in these terms:-
  45. "34. Refusal of application, or settlement and making of order. 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 [after considering the objections or representations, if any, that have been made with respect to the proposed order, and also the report of the person by whom any inquiry with respect thereto has been held] either refuse the application or settle and make an order in such form and containing such provisions as they think expedient."
  46. It may be noted that section 34, as is section 29, is drafted in wide terms, and sanctions an order containing such provisions as are thought expedient.
  47. Section 40 sets out the effect of an order granting a right of several fishery as follows:-
  48. "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."
  49. Section 41 contains provisions for regulating fisheries. Section 44 prescribes that an order conferring a right of several oyster and mussel fishery may not be for a longer period at any one time than 60 years. Section 45 then provides as follows:-
  50. "45. A right of several oyster or mussel fishery conferred by an order of the Board of Trade under this part of this Act and a right of regulating an oyster and mussel fishery shall, notwithstanding anything in the order or in the said Act, 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, or the company under the said Act (as the case may be), are properly cultivating the oyster or mussel ground within the limits of such fishery, or are properly carrying into effect and enforcing the restrictions and regulations, and levying the tolls or royalties; 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 or as a regulated fishery.
    For the purpose 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 or company such information, as the Board of Trade think necessary or proper, and the grantees or company shall afford all facilities for such inquiries and examination, and given such information, accordingly."
  51. Section 46 stipulates for consent from (among others) the Crown in specified circumstances in respect of any part of the seashore proposed to be comprised in an Order which belongs to the Crown. Section 48 is in these terms:-
  52. "48. Saving for rights of several fishery, etc. No order made by the Board of Trade under this part of this Act shall take away or abridge any right of several fishery, or any right on, to, or over any portion of the sea shore, which right is enjoyed by any person under any local or special Act of Parliament, or any royal charter, letters patents, prescription, or immemorial usage, without the consent of such person."
  53. Then, under the heading "Protection of Oyster Beds", is a series of sections. For present purposes, the relevant ones are sections 51, 52 and 53:-
  54. "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.
    53. Prohibition of acts injurious to several fisheries or private oyster beds. 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, or other than the owner of any such private oyster bed, his agents, servants and workmen, within the limits of such bed, knowingly to do any of the following things:
    And if any person does any act in contravention of this section, he shall be liable to the following penalty, and every such person shall also be liable to make full compensation to the grantees and owner respectively for all damage sustained by them or him by reason of his unlawful act, and in default of payment the same may be recovered from him by the grantees and owner respectively by proceedings in any court competent jurisdiction (but not in a summary manner), whether he has been prosecuted for or convicted of any offence against this section or not."
  55. Thus the 1868 Act laid down that grants of several fisheries (that is to say, exclusive fisheries) in respect of oysters and mussels could (only) be achieved by statutory order. Further, publication of such order was needed, and consents required from the Crown and shore owners.
  56. Thereafter various orders were made under the 1868 Act. I was referred, by way of example, to the Boston Fishery Order 1902 (confirmed by the Oyster and Mussel Fisheries Orders Confirmation Act 1902) and the Kings Lynn Fishery Order 1906 (confirmed by the Oyster and Mussels Fisheries Orders Confirmation Act 1906). A number of several, or hybrid, fishery orders made under the 1868 Act, or its successor legislation, are identified in the witness statement of Mr Jacobson dated 11 January 2008.
  57. The Menai Strait has long been identified as potentially an excellent location for mussel cultivation: but, as explained in the witness statements of Mr Andrew Wilson and Mr Mould, the area produced very few mussels, primarily because proper and orderly cultivation practices were not in place. Extensive research was carried out by scientists at the Ministry of Agriculture, Fisheries and Food in the 1950s; and by around 1960 a company called Severnside Foods (based in Bangor and for whom Mr Andrew Wilson then worked) set up a mussel farming operation in the Menai Strait. But without the grant of a several fishery order that is to say, an order conferring the exclusive right to fish for mussels in the relevant area there could be no security in respect of the mussel stocks sought to be cultivated. Anyone could collect them. Indeed, it was essentially for just this kind of reason that the provisions of the 1868 Act and its predecessors, empowering the creation of several fisheries in England and Wales, had been enacted.
  58. In such circumstances what was to become the 1962 Order was mooted. Local owners were consulted including (as was requisite under the 1868 Act) owners of the relevant parts of the foreshore and sea bed. These included the Crown Estate Commissioners, the Penrhyn Estate and the Beaumaris Corporation. Some of the contemporaneous correspondence still survives. Thus the Penrhyn Estate, by letter dated 30 November 1960, stated: "Before proceeding with this matter it is considered very important to ensure that any order which may be made shall be such that it cannot prejudice the commercial and industrial development of Port Penrhyn in due course nor in any way interfere with any previous rights". The response, dated 13 December 1960, was to accept that. Likewise, an internal memorandum of the Crown Estate Commissioners made at the time showed that they were anxious that a clause be included in the Order to protect all the Crown Estate's rights. As explained by Mr Jacobson in his witness statement, while the Crown was not obliged to consent it has been the practice of the Crown for many years, both before and after the 1967 Act, to grant consent for no consideration provided that the Crown's rights were protected through what was called a "Crown saving provision"; and that has been done in numerous instances in orders made under the legislation, including the present case.
  59. In the result, the 1962 Order eventuated, being made on 16 February 1962 and coming into operation on 2 April 1962. It was expressly made pursuant to (among others) the powers conferred by sections 29 and 34 of the 1868 Act.
  60. The grantees under the Order were the local Sea Fisheries Joint Committee for the Lancashire and Western Sea Fisheries Districts, a body corporate whose successor is the second defendant. The Sea Fisheries Regulation Act 1888 had empowered the Board of Trade to create sea fisheries districts and committees to manage them: and that Committee was one such. Powers of management, and powers to make bye-laws, were conferred on such committees. (That Act was replaced eventually by the Sea Fisheries Regulation Act 1966, under which the second defendant is constituted.) Such committees did not, and do not, themselves operate as commercial, profit-making bodies rather, their essential role is to ensure and enforce good management and practice as well as carrying out other functions, including research and environmental functions. As pointed out in the evidence, a number of Fishery Orders under the 1868 Act (or its successor) have been made in favour of such a committee as grantee; some are set out in the exhibit to Mr Jacobson's witness statement. It is also pointed out in the evidence that such orders routinely expressly provided that such committees will not personally exercise the fishery rights but will grant leases or licenses in respect of them: indeed the Boston Fishery Order 1902 and Kings Lynn Fishery Order 1906 are examples. In fact the memorandum circulated prior to the 1962 Order expressly so contemplated.
  61. Article 2 of the 1962 Order identifies the then Committee as "the grantees of this Order". Among the Articles then contained in the 1962 Order Articles 5, 6, 7 and 8 are in the following terms:-
  62. "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 of 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 of gathering of oysters or mussels and may use or authorise the use of such reserves for the purposes aforesaid;
    (b) with 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 of reserves or layings to or enter into Tenancy Agreements relating to the reserves or layings with any person or associations 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 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.
    (3) The execution of any lease or agreement shall, except as may otherwise be provided thereby, be taken as a consent on behalf of the Tenant to all byelaws under the Sea Fisheries Regulation Acts 1888 or 1930 and the Sea Fish Industry Act 1938."
  63. Article 13 is in these terms:-
  64. "13. The powers of the Grantees and their tenants to carry out works as provided in Articles 9, 10 and 12 hereof shall be exercisable subject to the provisions of Article 16 of this Order and in particular and without prejudice to that general limitation any consent to the exercise of such powers given by the Crown Estate Commissioners on behalf of Her Majesty may be given subject to such restrictions and conditions as the Crown Estate Commissioners may think proper including the payment by the Grantees and their tenants to the Crown Estate Commissioners of an annual rent or sum of money in respect of such works."

    And Articles 16 and 18 are in these terms:-

    "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"

    (Article 17 contained a saving provision with regard to aspects of the Penrhyn Estate.) Article 19 provides that the term of the 1962 Order is 60 years and no longer: thus it must expire by 2022.

  65. An amendment to the 1962 Order was effected on 17 April 1964 by the Menai Strait Oyster and Mussel Fishery (Amendment) Order 1964. This was principally designed to exclude a certain part of the foreshore belonging to the Baron Hill Estate mistakenly included in the 1962 Order but also was designed to correct certain other measurements.
  66. The mussel fishery thereafter was operated as a several fishery on the basis summarised above.
  67. The legal issues raised in the proceedings

  68. The first point raised by the claimants in these proceedings, a point described as their "primary case", is that the 1962 Order is ultra vires. The essential argument is that, on a proper interpretation of the 1868 Act, the several fishery right permitted to be granted by order made under the Act may only be granted to and exercised by the grantees personally. Accordingly, so it is said, the 1962 Order is invalid, in that under its provision the committee as grantee was by Article 5 not permitted to exercise the fishery right itself but instead was purportedly empowered (and as it did) to grant leases, as well as licences for the exercise of fishery rights. In consequence, it is said, no several fishery has been validly created or granted under the 1962 Order.
  69. The response of all the defendants to that argument is, in summary, as follows. First, it is said that the claimants' argument involves a misreading and misunderstanding of the 1868 Act, which does permit the grant of leases and licences by the grantees under an order made under the 1868 Act. Second, and in the alternative, they say that if that is wrong then the 1962 Order is capable of being severed so as to remove the invalid portions. Third, and in any event, it is said, that the claimants are precluded by delay or on grounds of abuse of process from obtaining relief under this head: and at all events the court should in its discretion decline to make the declaration sought.
  70. The second point raised by the claimants is that, even if the 1962 Order is valid, then in any case the claimants' rights which would include, they say, their rights as land owners to develop the land which they own, subject to obtaining the necessary statutory consents is preserved by Article 16 (in the case of the Crown Estate Commissioners) and by Article 18 (in the case of the Council). They say that those Articles in effect mean what they say and there is no legal basis for departing from the natural meaning of the words used.
  71. The response of the second, third and fourth defendants (the first defendant is not affected by, and made no submissions on, this point) is that such an interpretation is wrong and would be a negation of the several fishery and of the rights granted to them; and would in its consequence constitute an unlawful derogation from the grant made by the 1962 Order. They further and in any event say that Articles 16 and 18 of the 1962 Order can, on their wording, confer no greater rights on the Crown Estate Commissioners or Council than they already had: and even prior to 1962 the claimants had no right to develop that part of the foreshore and seabed so as substantially to interfere with the fishery then in place. They say that, if the claimants are to proceed with the marina development, then they must procure, if they can, an amendment to the 1962 Order itself.
  72. The third issue which has links with the second issue arises under section 7(4) of the 1967 Act, which is closely modelled on section 53 of the 1868 Act which it replaces. By virtue of the provisions of section 24, the 1967 Act applies to Orders made under the predecessor legislation. Section 7 provides, in the relevant respects, as follows:-
  73. "7. Protection of fisheries
    (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, or

    (b) a private oyster bed is owned by any person independently of this Act and is sufficiently marked out or sufficiently known as such.

    (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.

    (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."

  74. The claimants say that, as owners of the foreshore and seabed which forms part of the fishery and having the rights reserved under Articles 16 and 18 of the 1962 Order, they would not be acting unlawfully and contrary to section 7(4) in authorising the marina development. The second, third and fourth defendants say that they would be, on the wording of section 7(4).
  75. I will deal with these issues in turn.
  76. The Ultra Vires Issue

  77. Before turning to the intricacies of the arguments raised here, I think it worth alluding at the outset to some of the implications of the claimants' argument on this issue, if correct.
  78. 1 First, it would mean that the fishery defendants are not simply prospectively deprived of the 7 hectares falling within Area 4 which is the subject of the marina development (quite apart from any further consequential adverse impact on other Areas): they, and the other companies, would be deprived of the entirety of the several fishery. Putting it another way, the position would be restored to what it was before 1962: which would mean, in the absence of the security of an exclusive fishery, that there would be no realistically commercially viable mussel fishery in this part of the Menai Strait at all.
  79. 2 Second, it means that Parliament and all the parties participating in the making of the 1962 Order including the Crown Estate Commissioners themselves and also the Council's predecessors had utterly misunderstood the extent of the powers conferred by the 1868 Act.
  80. 3 Third, it would have corresponding potential implications for the various other orders made under the 1868 Act, in favour of committees and others, conferring power on the grantees to grant leases and licences.
  81. 4 Fourth, it would mean that Parliament itself had also acted on a wrong assumption as to the effect of the 1868 Act in statutorily confirming, for example, the Boston Fishery Order 1902 and the Kings Lynn Fishery Order 1906, both of which orders in terms contemplated the grantee committees leasing out the fishery in question.
  82. Given all these points, and particularly the first, I was rather surprised at the apparent enthusiasm with which the claimants' arguments on this issue were advanced: the more so when Mr Barton in his witness statement on behalf of the Council dated 11 January 2008 had in terms said that "it would not be in the interests of the Council or community it serves to put the mussel fishery in jeopardy and that it is certainly not the Council's intention, either in supporting the marina development or in bringing these proceedings." That can certainly be said where (on the Council's assessment of the position) the marina development covering some 7 hectares can co-exist happily enough with the several fishery covering several hundred hectares. It cannot so readily be said where the argument is that the defendants have no exclusive mussel fishery at all over any of these several hundred hectares. In fairness to the claimants, however, it may be that they consider themselves obliged to advance such arguments, given the perceived implications for them (both in this and in other cases) if the defendants are right and if the defendants can prevent the construction of the marina.
  83. At all events, I think I am at least entitled to an initial degree of wariness as to whether the claimants' arguments on this issue really can be right. But Mr Howell is, ultimately, entitled to say that all depends on the interpretation of the 1868 Act.
  84. A several fishery is distinct from a common of fishery in that it confers the exclusive right of fishing: that is, the right to fish to the exclusion of the public. Since such right can exist independently of the ownership of land it can be classed as an incorporeal hereditament. In the ordinary way, incorporeal hereditaments are capable of being alienated: indeed, Mr Fetherstonhaugh cited Robert Walker LJ in Bettison v Langton [1999] 2 All ER 367 at p.381 as endorsing a general presumption in relation to property rights favouring alienability over inalienability. Mr Fetherstonhaugh thus submitted that the statute should be read in the light of such presumption. But I am not so sure about the force of that. The powers to confer a several fishery under the 1868 Act are the product of statute: it is within the four corners of the statute, therefore, that the nature and extent of the fishery rights are primarily to be found.
  85. That said, I can find nothing in the opening sections of Part III of the 1868 Act to lend any real support to Mr Howell's argument. It is true that the 1868 Act nowhere in terms refers to those deriving title under the grantees (contrast, for example, section 2(2) and section 7(6) of the 1967 Act). But section 29 is widely worded. So is section 34. Section 34 in particular contains no limit on the form or provisions of the order that the Board of Trade may think expedient: thus far, then, a provision restricting the grantees from exercising the fishery rights themselves and entitling them to grant leases or licences in respect of the fishery right would be permissible. Indeed, one might positively anticipate that, in the context of a statute which contemplates orders which may last up to 60 years. Further, as Mr Lewis and Mr Fetherstonhaugh pointed out, an exclusive right of fishery is not of itself to be equated with a solely personal right of fishery.
  86. Likewise, as I read it, section 40 lends no real support to Mr Howell's argument. He submitted that by this section the grant under an order has to be in favour of "the persons obtaining the order", who have the exclusive right of fishery: no one else, as he submitted. But as I see it, the reference in that section to "subject to any restrictions and exceptions contained in the order" is perfectly consistent with an order validly permitting alienation. As to section 45 it is true that 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.
  87. Mr Howell placed reliance on section 51. He says that the provision that mussels are to be the absolute property of "the grantees (or owner of a private bed)" is consistent with the right being a personal right. He said the same of section 52. But in my view those 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 authority of the grantees, to remove mussels from the bed.
  88. Mr Howell's particular emphasis, however, was on section 53. He submits that strongly supports the view that the 1868 Act only intended to sanction orders conferring a personal right of fishery on the grantees. He said, rightly, that the 1868 Act must be read as a whole: and therefore sections such as sections 34 and 40 must be read in the light of section 53. By the same token, however, Mr Lewis and Mr Fetherstonhaugh were entitled to say, and did say, that section 53 itself is to be read in the light of the preceding sections.
  89. Mr Howell's argument here was forcefully made. This section renders unlawful the acts there specified done by "any person" other than "the grantees, their agents or servants or workmen". Not only is there no mention of lessees or licensees: there is express mention of, for example, servants and workmen. That lends force to the point that the "grantees", as referred to in Part III, connotes a person having a personal, and not alienable, right.
  90. But that literal approach seems to me to give rise to very odd consequences. It would mean, for example, that an individual expressly permitted, as licensee, by the grantee to take mussels on a particular occasion could - since he is, on the claimants' argument, neither "grantee, agent, servant or workman" be liable to conviction under section 53. That seems an improbable intention of Parliament: nor would such a conclusion fit well with section 52. Nor would it fit very well with the fact that boards and bodies corporate necessarily must act through persons authorised or licensed by them to do so.
  91. In my view, read as a whole, Part III does contemplate that persons can be authorised whether by lease or licence or otherwise does not seem to me to matter much (and as Mr Fetherstonhaugh pointed out, in the context of an incorporeal hereditament such as this the label "lease " adds little of substance to the label "licence") by the grantees to exercise the fishery right. That that may be sanctioned by an order made under section 29 is in my view in accordance with section 34 and section 40. 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 word "agents" in context extends to any person authorised by the grantees to fish for mussels or oysters.
  92. It is also difficult to see a convincing rationale for Part III of the 1868 Act creating a right which is personal only to the named grantees under an order: especially where section 29 in terms contemplated that a board, or body corporate, may be a grantee and especially where section 40 itself contemplates that the persons obtaining the order shall "subject to any restrictions and exceptions contained" in the order, have the exclusive fishery right. I see no reason to delimit the width of the words "restrictions and exceptions" contained in section 40 in the way Mr Howell suggested or to think that a provision such as Article 5 of the 1962 Order, and consequential provisions, are not sanctioned by such section. Mr Howell further suggested that the continuing identity throughout of one grantee exercising the fishery right could be seen as important especially where proper cultivation as shown by section 45 was an object of the 1868 Act. But the term of an order can be for as long as 60 years. Further the identity of boards and bodies corporate can in reality, if not strict legality, change on death or change of members or directors. Thus it seems to me that the interpretation advanced by Mr Lewis and Mr Fetherstonhaugh yields the more natural, and more practical, result.
  93. I conclude that the evident understanding of the parties at the time of the 1962 Order as indeed the understanding of those involved at the time of other orders, such as the Boston and Kings Lynn Orders was correct. On the proper interpretation of the 1868 Act, the 1962 Order was made intra vires and was valid.
  94. Having so concluded, I deal for completeness only with the alternative arguments put forward by the defendants. I will do so relatively shortly.
  95. I would have rejected the alternative argument of Mr Lewis (adopted by Mr Fetherstonhaugh) as to severance. Not only would, at the least, Articles 5 and 8(2) of the 1962 Order have to go; but so also would Articles 6, 7(b) and 8(1) have to go. Further, and more fundamentally, it must be of real doubt whether the 1962 Order would have been made at all given that the whole prior understanding (and, indeed, status of the committee ) was such that the committee would not itself exercise the fishery right. If that assumption is removed, an essential underpinning element of the entire order is removed. Thus severance of the kind contemplated would not be permissible: cf. R (ex parte Woolwich Equitable Buildings Society) v Inland Revenue Commissioners [1990] 1 WLR 1400 at p. 1413 F-H (per Lord Oliver); DPP v Hutchinson [1990] 2 AC 783 at p.804 (per Lord Bridge).
  96. Mr Lewis also invited me, irrespective of the views I may have as to whether or not the 1962 Order was ultra vires, either to decline in limine to entertain the claimants' application for a declaration that the 1962 Order was ultra vires; or alternatively, even if I concluded that the 1962 Order was ultra vires, to decline in my discretion to grant a declaration in favour of the claimants. Mr Fetherstonhaugh adopted that submission: in fact he went so far as to submit that it would be "nothing short of grotesque" for the claimants to obtain now a declaration that the several fishery might never lawfully have existed under the 1962 Order.
  97. Mr Lewis and Mr Fetherstonhaugh variously relied on grounds of abuse of process, delay and prejudice to good administration. But in my view, on examination, the position is nothing like as clear cut as they would have it.
  98. As is (rightly) accepted, these proceedings were perfectly properly issued by way of ordinary claim form in the Queen's Bench Division. The proceedings involve the assertion of private law rights; a claim for declaratory relief by reference to the interpretation of statutory provisions; and no claim for a quashing order. Thus while it may be that such proceedings could also have been commenced in the Administrative Court, it cannot fairly be said that these proceedings were issued in the wrong forum so as to circumvent the time limits ordinarily applicable to judicial review claims. Nor is there any breach of any limitation period involved.
  99. To the extent that public law issues are raised in private law proceedings and in this case it can be said there are public law issues - it may be that the Court can, where appropriate, take into account, in deciding whether there has been an abuse of process or whether to withhold a discretionary remedy, whether there has been unjustified delay in commencing the proceedings: cf Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at paras 3536 per Lord Woolf).
  100. I would not, however, have refused to grant declaratory relief had I thought the claimants' ultra vires point was otherwise sound.
  101. It is true that the 1962 Order was made some 45 years ago. It is true that the claimants or their predecessors participated (if I may use that word) in the making of the 1962 Order. It is true that in that time the claimants have not sought to challenge the fishery company defendants exercising the fishery rights in pursuance of that 1962 Order, expending large sums by way of investment in so doing. But the reality is that up until the late 1990s the claimants had no reason to consider the validity of the 1962 Order. Further the reality is that the fishery operators have been prepared to carry on their activities, and engage in extensive investment, even after they knew of the marina proposal which they say will be so damaging to them, and when they also knew that their 7 year leases contained provisions on their face anticipating an entitlement of the claimants to develop. It is difficult, in such circumstances, to think they would not likewise have done so even had the ultra vires point been raised earlier. Further, from 1998 until 2003, the whole focus of the emphasis was (understandably) at that time on the planning and environmental aspects of the marina development. There was then the dispute about the FEPA licence. The ultra vires claim eventually was raised (in 2006) in response to the second, third and fourth defendant's suggestion that Articles 16 and 18 of the 1962 Order did not avail the claimants. Thus this claim was put forward, if I may put it this way, as much by way of a shield as a sword. In all the circumstances, there was, in my view, no abuse of process involved here; nor would I, in my discretion, have refused on the ground of delay or otherwise to grant declaratory relief had the claim otherwise been well founded on this point. I might also add that it would hardly have been helpful for me, having heard full argument as to whether or not the 1962 Order was lawful and given that this point was not going to go away for the future in this case and - it may be in other cases, to decline to grant a declaratory remedy to give effect to my view of the legal position.
  102. In the event, however, given that my view of the legal position on this point is adverse to the claimants, that does not arise. The defendants have not themselves by way of counterclaim formally sought a declaration that the 1962 Order was intra vires and valid: although I might be receptive to an application in that regard, if made.
  103. The effect of Articles 16 and 18 of the 1962 Order

  104. I turn to the second issue.
  105. Mr Fetherstonhaugh submitted that the wording of Article 16 of the 1962 Order is imprecise. In my view, the wording is better described as wide. At all events I think that, on the natural and ordinary reading of the words used, three points made by Mr Fetherstonhaugh in support of his argument that Articles 16 and 18 do not permit the construction of a marina such as is presently proposed can be quickly rejected.
  106. 1 First he submitted that Article 16 only is there to qualify Article 13. But that is inconsistent with the language of Article 16.
  107. 2 Second, he submitted that the rights etc. reserved (that is, not to be "affected prejudicially") under Article 16 are limited only to the solum vested in the Crown. But again there is no reason to read Article 16 so narrowly.
  108. 3 Third, he pointed out rightly that Article 18 is worded rather less extensively than Article 16. But I do not attach any real significance to that, nor is there any obvious reason to do so the wording of Article 18 (which relates to the Council) seems to me wide enough to cover rights ordinarily incident to ownership of the foreshore.
  109. Given the ostensible width of Articles 16 and 18 my initial view, on a first reading of the papers, was that, on the basis that land ownership rights ordinarily would extend to the right to exploit the land by development or otherwise (subject of course to any necessary planning or other statutory consents), Articles 16 and 18 by way of restriction or exception sanctioned by section 40 of the 1868 Act - operate to protect such rights, notwithstanding the grant of the several fishery. In effect, therefore, the fishery right was, as it were, defeasible. Such a conclusion would also make a degree of sense: in that it would protect the Crown Estate Commissioners' and Council's rights as landowners in circumstances where they were giving consent, for no payment, to the fishery over a 60 year period and where objectively speaking and, indeed, subjectively speaking, as the contemporaneous documents show they could be expected to wish to safeguard their position. Such an interpretation would also have the, to me reassuring, consequence (albeit I appreciate one strictly irrelevant on an issue of construction) that it would coincide with a position thereafter anticipated by the second, third and fourth defendants: as shown by the terms of the leases they subsequently entered into.
  110. Unfortunately, on reflection and having regard to the arguments presented to me I do not think I can adopt quite so simple an approach.
  111. In argument, Mr Howell accepted that in the absence of Article 16 and Article 18 the Crown Estate Commissioners and Council could not in law justify the marina development. He also, in argument, accepted that Article 16 (as also Article 18) itself must have some limits, notwithstanding its prima facie very wide wording. Thus, for example, he accepted that the Crown could not have reserved to itself, as owners of the solum, the right to grant licences to anyone to fish: that would have been wholly inconsistent with, and repugnant to, the very grant of the several fishery. That concession, rightly made in my view, at least operates to confirm that the rights reserved to the Crown Estate Commissioners (or Council under Article 18) cannot properly be regarded as totally open ended. I am not sure, however, that Mr Howell was minded to accept, when the point was put to him in argument, that Article 16 also could not preserve to the Crown, as owner of the solum, the right periodically to (for example) dredge the entire area of foreshore and seabed within the fishery which was in its ownership. In fact, in his written argument Mr Howell asserted that Articles 16 and 18 were to be read as enabling the claimants to act in any manner (my emphasis) which is inconsistent with a grant of a several fishery. Indeed, that is reflected by the declaratory relief sought by paragraph 17(b) of the Particulars of Claim. That claims a declaration that the rights of the various defendants to the proceedings under the 1962 Order were subject to the rights of the claimants to build not only on the marina land but also "upon any other area of land falling within Area 3 and/or Area 4". The further implication, moreover, is that like rights would be claimed with regard to the entire seabed in Areas 1, 2, 5 and 6 in the Crown's ownership had those lessees been parties to the action.
  112. That is a disconcerting outcome if that interpretation be right. It would mean that the claimants could lawfully (subject to statutory consents) periodically dredge the entire seabed within their ownership, or extract sand and aggregates, notwithstanding that the inevitable consequence would be the complete destruction of the entire mussel fishery. I doubt if it is a sufficient answer on a point of legal interpretation to say that in practice these claimants would not do that. At all events, this at least raises the question whether Articles 16 and 18, and indeed the 1868 Act itself by reference to which the 1962 Order was made, were really designed or intended to permit such an outcome: an outcome which would be wholly inconsistent with and repugnant to the meaningful grant of a several mussel fishery and with and to the objectives of the 1868 Act.
  113. In his pleaded case and written argument, Mr Fetherstonhaugh's principal line of attack had been to suggest that the proposed marina would be an unlawful derogation from grant. He cited a number of authorities in that regard including, amongst others, Petra Investments Limited v Jeffrey Rogers Ltd [2000] 3 ELGR 1920 and Platt v London Underground Ltd [2002] 2 EGLR 121. But in my view that particular approach will not do. The Crown Estate Commissioners and the Council (by its predecessor) gave their consent to the making of the 1962 Order: but that does not make them grantors. If anyone was a grantor and I am not sure if anyone is properly so described for the purposes of making an order under the 1868 Act then it was the Minister of Agriculture, Fisheries and Food. For that reason alone, I do not think the doctrine of derogation from grant can be applied against these claimants: cf. Sovmots Investments Limited v Secretary of State for the Environment [1979] AC 144, especially at p.168-169. (For similar reasons, I might add, in case it be of relevance, I reject Mr Fetherstonhaugh's submission that Articles 16 and 18 should be construed against the claimants under the contra proferentem approach. In my view neither the Crown Estate Commissioners nor the Council are to be considered as a "proferens".)
  114. In any case, even if the derogation from grant doctrine did directly apply as such here, it is debateable that it would here as a matter of actuality be breached. The marina would undoubtedly have a very major adverse impact on Area 4, and also to some extent on other Areas, given the importance for the fishery of the foreshore as a hardening ground, quite apart from other asserted detrimental consequences on water purity, etc. But it remains the case that what is to be taken for development is some 7 hectares out of a fishery totalling some 761 hectares under the Order. That fishery could still continue, even if much less profitably; and as I see it it can be said that there would be preserved any "irreducible minimum" that it was intended that the grantees should effectively have.
  115. In my view, the real issue here comes back to being one of interpretation of the 1962 Order: an assessment of just what was intended to be excepted and reserved to the claimants under Articles 16 and 18 of the 1962 Order. In any case, if the concept of derogation is appropriate, then as pointed out by Neuberger J in Platt at page 122 "Express terms will obviously play a part, possibly a decisive part, in determining whether a particular act or omission constitutes a derogation." That is so here, in my view, if this be a case of derogation at all.
  116. Reverting, then, to Article 16 (and Article 18 can be no different) it seems to me that 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 claimants.
  117. An initial view might be that "rights", as used in Articles 16 and 18, if not also the word "estate", carried with it the ordinary general right (subject to any statutory consents) of a landowner to build or undertake work on his land. This was not a point obviously and directly challenged in the pleaded defence of the second, third and fourth defendants. But it was a point of challenge raised and developed in argument by Mr Fetherstonhaugh. 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. That was the gist of the argument. Mr Howell, although initially complaining this point was not pleaded and paragraph 16(i)(b) of the Defence, referred to by Mr Fetherstonhaugh, hardly seems to raise the point directly even if it does indirectly ultimately did not take a pleading point, he appreciating, I think, that the point raised was in essentials one of law; and the issue was fully argued before me.
  118. There was evidence before me on what fishery use was being made of this area of the Menai Strait prior to 1962, albeit somewhat limited evidence which was, moreover, confined to mussel fishing. In his witness statement of 3 December 2007 Mr Andrew Wilson said shortly: "at that time [1960] the Menai Strait was a public fishery with no protection the problem was, however, that there was no security in respect of mussel stocks and the mussels which were laid would be able to be gathered by other people". In the memorandum prepared on 27 January 1960 (with a view to an order being made) it was said: "At the present time there is a small mussel fishery in the vicinity of the River Ogwen which has been worked by local fishermen of Bangor for many years ". Mr Mould in his statement referred to the mussel fishery in the area being limited at the time. In his witness statement of 31 January 2008 Dr Atkins, however, provides figures showing quite extensive mussel gathering by fishermen based in Bangor.
  119. The general position in law seems to be that "all citizens of the Crown are entitled as a matter of public right to fish in tidal waters including the high seas, estuaries and tidal watercourses as well as from the foreshore": Halsbury's Laws of England (2007 Reissue) Vol.1(2) at para. 800; Malcomson v O'Dea (1863) 10 HL Cas. 593. Such a right is, by its nature, incorporeal (that is to say, not dependent on ownership of the subjacent land) and is, by its nature, a right of common (that is to say, a non-exclusive right). 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.
  120. 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): see, for example, 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. In Corporation of Truro v Rowe [1901] 2 KB 870 at p.878 Wills J put the position this way:-
  121. "It is quite true that the oyster-laying may interfere with the uninterrupted user of the foreshore by the owner; but a like interference with territorial rights takes place in many instances which present no legal difficulty. The rights of inhabitants to recreate themselves on a village green have been repeatedly established by evidence and upheld by the Courts, and yet they may absolutely destroy all chance of the owner making any, or any but the slightest, beneficial use of land which is undoubtedly his. The custom here alleged is not open to the objection that it is in substance a claim to a profit prendre, nor in my judgment to any other legal objection to its validity. Apart from custom, the owner of the foreshore owns and enjoys the foreshore subject to the common rights of all members of the public, which are such as to reduce the value of the foreshore in nine cases out of ten to something of very small pecuniary value. The owner cannot build on it, because the public have rights of passage over it everywhere per mare et per terram. In all but some exceptional cases he cannot graze it, because no herbage will grow upon it. Where herbage will grow upon it, as in the fens, I do not think oysters will be found to be composite factors. At all events, the enjoyment of the foreshore is subject to the common rights of fishing, and if oysters constitute a part of the fish to be taken, the right of fishing must include the necessary and practical incidentals, and if they involve the consequences that in some places the owner cannot dig ballast or sand for sale, as he can generally, he suffers no inconvenience or loss which is not common to him and the owner for example, - of the village green, who cannot dig pits or do other acts of ownership which would interfere with the rights of recreation of the inhabitants."

    That decision was subsequently reversed on different grounds, and these comments were in any event dicta. But they seem to me a convenient encapsulation - in forthright language - of the broad legal position.

  122. That the Crown's beneficial ownership of foreshore or seabed is subject to the public's right to fish is also stated by, for example, Parker J in Fitzhardinge v Purcell (1908) 2 Ch 139 at p.166. The same approach was more recently adopted by the Divisional Court in Anderson v Alnwick District Council [1993] 1 WLR 1156 at pp.1166-1168 (per Evans LJ).
  123. Mr Howell, however, cited to me certain dicta of Fletcher Moulton LJ in Foster v Warblington Urban District Council [1906] 1 KB 648 at p.683-4 where this was said:-
  124. " Now the question is, how it could exist apart from a several fishery? It appears to me that it could exist as a reasonable exercise of his ownership of the soil by an individual in whom the soil of the foreshore was vested. It must not be forgotten that, where the foreshore has been granted to an individual, it is his property just as much as the land in terra firma. 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. There are references in the case of Blundell v Catterall to it, and to the large extent to which such reclamations have been carried on in the past, and will probably be carried on in the future. In the case of Lord Advocate v Young Lord Watson uses the fact of reclamation of foreshore as an act of ownership demonstrating the title of the person doing it to the foreshore. 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 same principle would apply to the formation of 'oyster layings'. "

    But in my view these observations do not assist Mr Howell as much as he would have it. One can indeed envisage, given the usual extensive nature and area of a public common of fishery in coastal waters, that it would take an act of real significance to give rise to an interference sufficiently substantial to warrant the grant of an injunction (in a way not necessarily co-extensive with interference with a several fishery limited to a defined area). Nevertheless, 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.

  125. I think, therefore, that Articles 16 and 18, which on their wording do not confer any greater rights on the Crown Estate Commissioners or Council than they already had, are to be taken as reflecting the position, so far as tidal foreshore and seabed are concerned, which then existed. Accordingly at the time of the 1962 Order no entitlement substantially to interfere with the then public fishery existed: and no such entitlement with regard to the new several fishery was created by the 1962 Order.
  126. Mr Howell sought to argue that even if the claimants' rights were, prior to the 1962 Order, subject to the public fishery still they retained under Articles 16 and 18 the right to exploit and develop their land as owners. He drew an analogy with rights of way. A may grant B a right of way over his field, but A still, he said, retained (subject to planning consent) the right to build over the field, albeit he may first need to extinguish the grant before exercising the right. With respect, I regard that as very artificial. In such circumstances A 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.
  127. Would the proposed marina development be a substantial interference with the fishery? In my judgment, on the evidence it would be. This is not the same question as that to be asked in the context of, for example, the question of derogation from grant. "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.
  128. Moreover, that approach to Articles 16 and 18 is, I think, consistent with and confirmed by the 1868 Act itself. There are indications in the 1868 Act that it had not been contemplated or intended that the owners of the relevant foreshore or seabed could interfere with the several fishery which might be the subject of an Order. Section 48, for example, in terms contemplates that the rights of an owner, where consent is required, may with regard to the seashore be "taken away" or "abridged". It is also necessary again to revert in particular to section 53 of the 1868 Act. At this stage of the argument, Mr Howell (who had adopted a narrow approach to the interpretation of this section on his ultra vires argument) now adopted a broad approach.
  129. I do not have any difficulty in principle with adopting a broad, purposive approach provided the words used will bear it. Nor do I have difficulty with section 53 being read with section 40. Indeed, those are approaches I take with regard to section 53, as will be gathered from what I have said earlier in this judgment. But Mr Howell's approach here was, in effect, premised on the argument that the 1868 Act must have intended to permit to be preserved, where sanctioned by restriction or exception in an order, all the rights as landowners (including the asserted right to interfere with the fishery by development or exploitation of the foreshore or seabed) of those landowners consenting to an order. Thus he says that what is otherwise rendered unlawful by section 53 must be taken to be subject to restrictions or exceptions contained in an order as sanctioned by section 40. Mr Howell, however, rightly accepted that the 1962 Order could not itself guide the interpretation of the 1868 Act.
  130. So in essence Mr Howell was submitting that section 53 should not be construed so as to limit the ambit of section 40 and of restrictions or exceptions sanctioned by section 40; whereas the counter-argument was that section 40, and restrictions and exceptions sanctioned by section 40, should not be construed so as to limit the ambit of the prohibitions contained in section 53.
  131. The question thus has to be asked whether section 53 contemplated that an order, by way of an included restriction or exception, could permit persons to build on or over the fishery or act in a way otherwise prohibited by the section. Section 53 (which in general terms prohibits acts injurious to several fisheries) does not, however, as I read it, connote that owners of foreshore or seabed or others can be permitted to retain or exercise such rights as asserted. For example, the owner of the solum ordinarily might be expected to have the right to dredge for or extract sand, gravels or other aggregates: yet those are prohibited acts. There is indeed in section 53 a prohibition in wide terms on disturbing or injuring "in any manner" any mussel bed or mussel fishery. These prohibitions are specifically directed at "any person other than the grantees, their agents, servants and workmen". "Any person" is explicitly wide language. As to the expressly excepted persons, the Crown Estate Commissioners and Council, as land owners, are not "the grantees". Nor, on any view, can they be styled the grantees' "agents, servants or workmen". As I have already held, that phrase can appropriately be broadly construed. But there are limits the words simply cannot, as I see it, extend to the owners of the foreshore or seabed. I can see no other room in the language used in this section to carve out or create a further exception, by reference to section 40 and to a restriction or an exception contained in an order, so as to permit interference with the several fishery granted. Indeed, as Mr Fetherstonhaugh pointed out, section 53 creates an express exception (by reference to navigation and anchorage) and section 54 another exception. A further implied exception thus is not readily to be assumed: and, as I have said, the wording of the section in any case does not seem to permit it. I have felt able to give a wide interpretation of the word "agents" for the purposes of the ultra vires argument. But here Mr Howell in effect asks me not to give a particular broad meaning to words used in the section but notionally to insert and add a fresh category of exception to those already included in the section to rebut or modify what the section otherwise states. I do not think I can properly do that. Indeed I would be doing that to give effect to what is asserted to have been Parliament's intention: but what Parliament's intention is is to be found in the words of the statute, read as a whole.
  132. Moreover, as I have previously indicated, such a conclusion does not lack purpose or sense. Articles such as Articles 16 and 18 would still have utility for the landowners in many contexts. One can, however, see a very real purpose in the owners of the foreshore and seabed (along with others) not being permitted, by way of restriction or exception, to interfere with the several mussel fishery created by an order viz. in terms of protecting and enhancing such fisheries (one of the key statutory objectives). I might add, incidentally that Parliament could not then have contemplated that at least some other degree of protection vis--vis owners of foreshore and seabed might collaterally be available, by reference to a need for planning consent, to grantees of a fishery under an order: for general planning legislation did not exist in 1868, being only introduced in the 20th century. Nor are the landowners without remedy. First, they can refuse consent altogether. Second, they can participate, as interested parties, in the drafting of the order and can make representations as to the period of the Order or otherwise. Third, they can, on a change of circumstance or otherwise, seek in any particular case an amending order. It is a point of comment that this is precisely what happened in 1964 with regard to the 1962 Order when it was appreciated, amongst other things, that part of the Baron Hill Estate should have been excluded. In the present case, Mr Fetherstonhaugh accepts that it is open to the claimants to seek a further amending order.
  133. Accordingly, my conclusion on the second issue is in favour of the second, third and fourth defendants.
  134. Infringement of Section 7(4) of the 1967 Act

  135. I turn then to the third issue.
  136. The 1967 Act was a consolidating and amending Act. For present purposes it has a close equivalence to the 1868 Act. Thus section 1 confers the right to make orders for shellfish fisheries: and section 2 (in common with section 40 of the 1868 Act) expressly alludes to "any restrictions or exceptions contained in the Order".
  137. Section 7 (in common with section 53 of the 1868 Act) is, as its title suggests, concerned with "Protection of Fisheries". The prohibited acts are, in essentials, identical to those set out in section 53. The relevant prohibited persons under the 1967 Act are "any person other than the grantees or an agent or employee of theirs". The claimants are not grantees as defined in the 1967 Act or their agents or employees; and, for reasons corresponding to those given above, I find it impossible to extend the words of the subsection, by reference to Articles 16 and 18 of the 1962 Order, so as to except the owners of the foreshore and seabed from its reach.
  138. Accordingly since, as I find, it is clear that the proposed marina would "disturb or injure in any manner" the mussel fishery constituted under the 1962 Order, the proposed marina development would be unlawful as being contrary to section 7(4) of the 1967 Act.
  139. Conclusion

  140. In summary, my conclusion is as follows:-
  141. 1 The 1962 Order was not ultra vires; it was and is a lawful and valid order.
  142. 2 On the proper interpretation of the 1962 Order, the right to construct a marina as currently proposed was not reserved to the claimants.
  143. 3 Construction of the proposed marina would be unlawful and in breach of section 7 of the 1967 Act.
  144. For the avoidance of doubt, I repeat that in these proceedings and in this judgment I have not been required to decide, nor do I decide, whether or not the proposed marina on balance would or would not be desirable on planning, environmental, economic or other grounds. My decision is only on the legal issues raised before me.
  145. There will be judgment for the defendants accordingly. I will hear further argument on the form of Order to be made (unless, as I would hope, that can be agreed); and on any consequential applications. I will also hear argument on the question of costs.

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