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Foreshore and Magna Carta


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#1 Guest_sslatter_*

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Posted 14 January 2003 - 11:21 PM

Hi all...

Saw an interesting thing the other day. I was walking along a part of my local estuary, and came upon a bloke fishing. I stopped and chatted to him-he was fishing lug/rag cocktail for flounders at low tide. As we were talking, two security guards appeared and told the bloke that he had to pack up and leave, because we were on private land, and fishing was not allowed. These two guards had appeared from behind a metal security fence that bordered the foreshore, set back about 15 feet above the high tide mark. A massive argument started between the three of them. The fisherman said that he was 'on the foreshore' and that 'the foreshore belonged to the Crown', and that 'UK citizens had ancient access rights to the foreshore' (the land between the low tide and high tide marks), and that these rights dated back to the Magna Carta. He produced a laminated legal-looking document which stated in writing exactly what he had said. The two security men disappeared, muttering that they were going to call the police. The bloke then told me that 'this happened all the time' when he fished from the foreshore, and that as long as he didn't cross private land in order to gain access to the foreshore, he was perfectly within his rights to fish there. He wasn't at all worried about the police threat-he said he was well-known to the local police, in the sense that they'd been called out before due to previous complaints about him fishing from the foreshore, and that they now knew that he was completely right about everything he'd said, and that they wouldn't even come out any more whenever there were complaints made about him, usually from security guards who patrolled industrial estates that ran along the estuary. Let me say that this stretch is accessible by following a public footpath along part of the estuary, and then walking along the 'beach' that is exposed between high and low tide, where the footpath ends.
Does anyone here know anything about this?

[ 14. January 2003, 05:40 PM: Message edited by: Graham X ]

#2 poledark

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Posted 14 January 2003 - 11:35 PM

I think this is one of those areas that are completely confusing, there is a "right" to the foreshore, but there are also councils that "own" the beach, and other individuals that have private beaches,
I shall be very interested to read the answers to your questions Graham.

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#3 kevthefish

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Posted 14 January 2003 - 11:53 PM

Found this and have posted the link at the bottom:

The public right to collect bait and shellfish

The collection of intertidal ‘sea fish’ (fish, molluscs and crustaceans) is a public right – an integral part of the inalienable right to fish in tidal waters, and is open to everybody. This right is usually extended to allow the public to collect shellfish (molluscs and crustaceans) from the exposed foreshore, provided that they have a right of access to the shore. The public right to fish may be regulated under byelaw, but not extinguished. Exceptions are where these rights have been transferred to the owner of the shore (usually by pre-Magna Carta grant in England) or severed from the public fishery by Several Order (see below).

The public right to collect bait worms is ancillary to the public right to fish and is limited to personal use only (Anderson v. Alnwick District Council). There is no legal right to take worms commercially without the permission of the landowner. An exception may occur where private rights over certain areas of the shore exist, either by grant from a landowner or by local custom following extremely long and continuous use of an area by a clearly identifiable group of people. Such customary rights are rare and very difficult to prove. In practice, it is extremely difficult to differentiate between personal and commercial bait collectors on the ground, making this legal distinction unhelpful.

In Scotland, mussels and oysters were removed from the public fishery by The Mussels Fisheries (Scotland) Act 1847 and The Oyster Fisheries (Scotland) Act 1840. These species now belong to the Crown and rights to fish commercially for them are managed by the Crown Estate Commissioners through issuing licenses. In many areas the Crown has ceded title to these fisheries to local landowners or communities, although no public record of these titles is readily available and even the Crown Estate does not have clear records (McKay and Fowler 1997a). The Acts which removed mussels and oysters from the public fishery pre-date the judgement of Hall v. Whillis which supported the concept of the right to collect naturally occurring shellfish or other bait species (including mussels) by hand, provided that there is access to the shore and the end use is non-commercial. This suggests that the collection of mussels for bait or ‘for the pot’ in Scotland is a tolerance of the Crown.

Landowners’ rights

The rights of foreshore owners with regard to the collection of shoreline species are complex, and have still not fully been tested under case law. The ‘natural products’ found on the seashore belong to the owner of the shore, but not the ‘sea fish’ found there. The public may exercise common law rights (bait collection for personal use and collection of ‘sea fish’) over the foreshore without landowners’ permission. Exceptions occur where there are ancient proprietary rights associated with the ownership of coastal land over, e.g., adjacent shellfisheries (this most commonly occurs in estuaries or other inlets) or where fisheries are private as a result of a pre-Magna Carta grant in England.

Landowners may issue licenses or permits for individuals to take ‘natural products’, including commercial baitworm digging. This could encourage landowners to manage bait stocks sustainably to generate revenue, but their inability to regulate the activities of potentially large numbers of individuals collecting for their own use, or to distinguish effectively between commercial and personal collection may limit the success of this approach.

It is difficult in practical terms for many landowners to exert control over the damaging activities of ‘third parties’ (those who are not owners or occupiers) on intertidal SSSIs, e.g. commercial bait diggers, as legally required of landowners under Section 28(5) of the Wildlife and Countryside Act 1981. The Department of the Environment, Transport and Regions (DETR 1998 B) suggested some options for tackling this problem, including enabling conservation agencies a locus for involvement. These include: creating a specific offence (deliberately or recklessly causing damage) with appropriate penalties; using byelaws to prevent damage; and improving liaison between conservation agencies and Police Wildlife Liaison Officers. (The alternative approach is use of a Section 29 Nature Conservation Order – see Budle Bay case study.)


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#4 kevthefish

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Posted 15 January 2003 - 12:16 AM

1 Foreshore and Sea Bed Ownership

1.1 The Crown's prima facie title
The claim that the Crown is the owner of the foreshore and the sea bed under territorial waters was argued by Thomas Digges in 1568-69, and supported by Robert Callis and Sir Matthew Hale in the seventeenth century. It was resurrected in the nineteenth century, when the land properties of the Sovereign were transferred to the management of the Commissioners of Woods, Forests and Land Revenues (now the Crown Estate Commissioners) by the Crown Lands Acts 1810 and 1829.

In A-G v Emerson [1891] Appeal Cases 649, the House of Lords confirmed that the Crown is prima facie the owner of the foreshore. Lord Herschell stated at p 653:

"It is beyond dispute that the Crown is prima facie entitled to every part of the foreshore between high and low-water mark, and that a subject can only establish a title to any part of that foreshore, either by proving an express grant thereof from the Crown, or by giving evidence from which such a grant, though not capable of being produced, will be presumed."

The Crown's right to the territorial sea bed in England and Wales has not been judicially decided, but, in Scotland, Lord Dunpark stated in Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1977 Scots Law Times 19, at p 20:

"the seabed within the territorial limit and the foreshore are ... the property of the Crown (except in so far as the Crown may have made grants of the foreshore to individuals) as part of the realm and are held by the Crown for the defence of the realm and for the benefit of its subjects."

The Crown's ownership of the sea bed is based on the royal prerogative (ie sovereignty) rather than feudal tenure, and includes the right to grant leases and licences: Shetland Salmon Farmers v Crown Estate Commissioners 1991 Scots Law Times 166.

The principle of Crown sea bed ownership was also unquestioned in England in Lonsdale (Earl) v A-G [1982] 1 Weekly Law Reports 887, and is strongly supported by the Australian case of New South Wales v Commonwealth of Australia (1975) 135 Commonwealth Law Reports 337.


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1.2 Crown grants, leases and licences
The Crown Estate Commissioners retain virtually the entire territorial sea bed and about half the foreshore. Although they are permitted to dispose absolutely of Crown property, they rarely do so now, but instead grant leases for up to 150 years (Crown Estate Act 1961, s 3, amended 1983). Licences are granted for minor works and for dredging. In Scotland, the Crown also owns coastal salmon fishings and oyster or mussel beds within the territorial limit, but much of the foreshore in Orkney and Shetland is privately owned under udal law. The Commissioners' annual revenue includes about 26 million from foreshore and seabed property and from dredging licences.


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1.3 Accretion and encroachment
The foreshore is a "movable freehold", and property rights follow changes in high and low-water marks caused by accretion or encroachment, provided that the process is gradual and imperceptible: Scratton v Brown (1825) 107 English Reports 1140; Gifford v Yarborough (Lord) (1828) 130 English Reports 1023; Re Hull and Selby Ry Co (1839) 151 English Reports 139; Southern Centre of Theosophy v South Australia [1982] Appeal Cases 706.

If, however, tidelines are changed suddenly (eg by land reclamation) property boundaries remain as before, provided that the original positions can be determined: A-G v Reeve (1885) 1 Times Law Reports 675; A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] Appeal Cases 599. If gradual and imperceptible accretion is unintentionally caused by coast protection work, property boundaries change: Brighton and Hove General Gas Co v Hove Bungalows Ltd [1924] 1 Chancery 372.

2 Public and Private Rights

2.1 Public right of navigation
(See W Howarth, Wisdom's Law of Watercourses, 5th Edn, pp 131-133.)

The public has a right to navigate in tidal waters (ie the sea and tidal navigable rivers), and no grant of the soil can interfere with this. They also have ancillary rights, such as anchoring, that are necessary to navigation: Gann v Free Fishers of Whitstable (1865) 11 English Reports 1305. The right of navigation is not suspended when the tide is out, and a vessel may ground in order to continue a voyage on the next tide: Colchester Corporation v Brooke (1845) 115 English Reports 518. But the right of navigation is different from a right of way over land, because vessels are not obliged to follow a defined course: Evans v Godber [1974] 1 Weekly Law Reports 1317. On the other hand, navigation requires planned movement from one place to another for the purpose of transporting persons or cargo, and does not include "messing about in boats": Curtis v Wild [1991] 4 All England Reports 172; Steedman v Scofield [1992] 2 Lloyds Law Reports 163.

A private right of an owner of the foreshore or bed to control and charge for the laying of fixed moorings will be lost if it is inconsistent with the statutory power of a port authority to regulate the mooring of vessels in the same place: Ipswich Borough Council v Moore The Times, 25 October 2001.


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2.2 Public and private rights of fishery
(See Howarth, op cit, pp 176-182; J Gibson, On the Kingdom of the Shore, Lloyd's Maritime and Commercial Law Quarterly (1978) 616.)

The public has a general right to fish in tidal waters: A-G for British Columbia v A-G for Canada [1914] Appeal Cases 153. The public right of fishing includes an ancillary right for fishermen to dig for worms on the foreshore for their own use as bait, but this does not extend to commercial bait digging: Anderson v Alnwick DC [1993] 3 All England Reports 613. The public right of fishery may be excluded by a private fishery, provided that the private right was created by the Crown before 1189; the Crown was seemingly prevented from creating further private fisheries in tidal waters by Magna Carta: Malcomson v O'Dea (1863) 11 English Reports 1155. A private fishery may be re-granted by the Crown after 1189, if it was originally created before that date: Stephens v Snell [1939] 3 All England Reports 622. Evidence of long usage raises a presumption of a pre-1189 grant: Loose v Castleton (1978) 41 Property and Compensation Reports 19. Private rights of shellfishery may now be granted by the Department for Environment, Food and Rural Affairs (or the National Assembly for Wales) for up to 60 years under the Sea Fisheries (Shellfish) Act 1967, s 1.


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2.3 Other public activities (bathing, shooting and collecting)
There are no other general public rights over the foreshore. Thus, there is no right at common law to bathe in the sea, and no public right of access over a private foreshore for that purpose: Blundell v Catterall (1821) 106 English Reports 1190; Brinckman v Matley [1904] 2 Chancery 313. The foreshore is not a public highway: Llandudno UDC v Woods [1899] 2 Chancery 705. There is no public right to shoot wildfowl there: Fitzhardinge (Lord) v Purcell[1908] 2 Chancery 139. Nor is there a public right to collect sea coal washed ashore: Beckett (Alfred F) Ltd v Lyons [1967] Chancery 449.


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2.4 Crown prerogatives (unclaimed wreck and royal fish)
The Crown is entitled to unclaimed wreck, unless the right has been granted to a subject: Merchant Shipping Act 1995, s 241. "Wreck" means goods washed ashore; if still afloat, they belong to the Crown as flotsam, jetsam, lagan or derelict: Constable's Case (1601) 77 English Reports 218. To constitute wreck, goods must have grounded, but need not be left dry: R v 49 Casks of Brandy (1836) 166 English Reports 401. If the goods have touched ground, but are still floating, their status depends on how they are salvaged: R v Two Casks of Tallow (1837) 166 English Reports 414. Unclaimed goods found outside territorial waters belong to the finder: Pierce v Bemis [1986] Queen's Bench 384.

Royal fish (whales and sturgeons) stranded or caught within territorial waters are Crown property under the statute De Prerogativa Regis 1324, c 13.

http://web.uct.ac.za...ts/pbl/jgibson/
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#5 Rockhopper

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Posted 15 January 2003 - 05:58 PM

Wot about tidal structures such as breakwaters. We can access a local breakwater across public land but i assumme the breakwater is a private streucture and hence fishing is being restricted.

James

#6 peter mccue

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Posted 16 January 2003 - 09:07 PM

Interesting thread,

My local river Tees had a barrage put on it which created a 13mile lake upstream, whilst downstream it created a tidal Salmon pool which attracted anglers on piece.

People were fishing between the high & low mark & getting harrassed by security guards under orders to turf them off. :mad:

In the end a tough individual took the barrage company to court & won his case - & therefore everybody elses - to allow him to fish the tidal area of shore. :D

The one proviso to this is that you cannot fish within 100yds of a dam. The barrage company managed to fiddle this however by building their markers at 100 METRES thereby gaining an extra 9yds.

Well done to that guy in the original post for standing up for his rights.
Peter.

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#7 MrWiggly

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Posted 17 January 2003 - 12:51 AM

Does this "One hundred yards of a Dam" apply verbatim across the country ? What about weirs ? Does it apply in freshwater situations too ? Lots of freshwater anglers fish off dams and weirs.

Good thread this ....

[ 16. January 2003, 06:54 PM: Message edited by: MrWiggly ]
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#8 chesters1

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Posted 17 January 2003 - 01:08 AM

it is a good thread ,can anyone enlighten me on a similar subject ,when does a footpath become a footpath ? i know if its not on the "definative" map its not a footpath officially but where does the "definitive" footpaths come from :confused: .
are they paths that have been in use for years? if so how many?
if for instance a "footpath" has been in use for say 100 years can it go on the "definitive" map??? or is there another criteria rather than use ???
if a path after XX years becomes a official footpath then why isnt a beach a VERY wide footpath along the coast :rolleyes:

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#9 Norrie

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Posted 17 January 2003 - 02:50 AM

Hiya, It should all be the same as in Scotland where there is no law of trespass. As long as you dont damage or harm anything you can more or less go where you want within reason. Unless someone knows better?????. As far as I know ,when a path has been used regularly for 20years by the public I think it then becomes a right of way, there are only 2 rights of way in Scotland. One is the west Highland Way, the other is Wades Road over the Cairngorms from Garve Bridge to Ft. Augustas, I have covered them both.

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#10 chesters1

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Posted 17 January 2003 - 03:40 AM

quote:


there are only 2 rights of way in Scotland

no footpaths , bridalways or boats :confused:
surely the scots didnt NOT venture outside their houses ?
what about the pennine way that starts in scotland (sort of) :D

Believe NOTHING anyones says or writes unless you witness  it yourself and even then your eyes can deceive you

 

There is only one opinion i listen to ,its mine and its ALWAYS right even when its wrong

 

Its far easier to curse the darkness than light one candle

 

Whitby scallops caught by scottish boats best that money can buy,the nearer the shore they're dredged the better they taste