England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE POPPLEWELL)

		Royal Courts of Justice Strand London WC2 Monday, 15th October 2001

Monday, 15th October 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal, with the appeal to follow if permission is granted, made on behalf of Mr Clive Mills. Mr Mills wishes to appeal from an order of Popplewell J made on 2nd February last dismissing Mr Mills' appeal from an order of His Honour Judge Barratt made in the Chichester County Court on 19th July 2000. Judge Barratt ordered Mr Mills to give possession to the Arun District Council, the claimant, of land described in the order as Norfolk, Dukes, Baltic and Old Quay Wharves, East Bank, River Arun, Littlehampton, West Sussex falling within registered title WSX 233745. We have, however, been told that for most purposes the whole of the land can aptly be described as Norfolk Wharf.
2. The order for possession took effect on 1st August 2000, and the order also granted injunctive relief as from that date. The land identified in the order belonged to Arun District Council which has for several years been considering, and is now putting into effect, proposals for the comprehensive redevelopment of the land for a mixture of commercial, residential and public access purposes. Those proposals appear to have been the subject of a good deal of controversy, both because of the general importance of the site to those who live in the ancient town of Littlehampton and because of its implications in particular for the town's fishermen, who have evidently been suffering from a number of local difficulties (quite apart from the well known difficulties which the whole of this country's fishing industry are at present facing).
3. There were judicial review proceedings earlier this year but this court is not concerned with those public law issues. We are concerned with relatively narrow issues as between the parties, and in particular with the rights which Mr Mills claims under a public Act of Parliament enacted in 1771 and known (since the Short Titles Act 1896) as the White Herring Fisheries Act 1771 ("the 1771 Act").
4. Before going into more detail about the 1971 Act I should say something about the geography of the case. Littlehampton is a very ancient settlement going back to Roman times. It is where the River Arun runs into the sea, and Littlehampton Harbour (which has been in continuous use for over 1000 years) is in effect the lower reach of the River Arun. If I have correctly understood section 36 of the Littlehampton Harbour and Arun Drainage Outfall Act 1927 ("the 1927 Act") the harbour is for the purposes of that Act defined as extending from the open sea to the south side of Arundel Bridge. Arundel is another ancient town a few miles inland, north of Littlehampton, and the river Arun is apparently navigable (with small craft) at least as far as Arundel. The modern town of Littlehampton has grown up on both sides of the river, but mostly on the east bank. The land identified in the order is in a fairly central position on the east bank, where there is a slight bend in the river.
5. The land (which was formerly a timber yard belonging to Travis Perkins) is for the most part concrete hardstanding, as would be expected for a series of wharves. They are bounded on one side by the river, where the land is supported by steel sheet piling or shuttering. On the other side they abut onto Pier Road. The wharves have in recent years been little used, because of the plans for comprehensive redevelopment.
6. Mr Mills is a fisherman, and the county court judge accepted that he is a herring fisherman for the purpose of the 1771 Act, although herring is by no means the only fish that he catches in his fishing vessel, the Lady Lena. That vessel belonged to his wife's grandfather, Mr John Dales, but Mr Mills is now the skipper and he has an official licence to fish.
7. The county court judge referred to the difficulties that Mr Mills and other local fishermen have been encountering as a result of the proposed redevelopment. He said that Mr Mills and some others (against whom the District Council did not take proceedings) had since 7th March 2000 occupied part of the land. We do not know whether Mr Mills' action was by way of protest or a bit of self-help, or both. That does not matter. The essential issue is whether Mr Mills was entitled under section 11 of the 1771 Act to take the action which he did take. That is the only issue on which Lightman J gave Mr Mills permission to appeal to the High Court (as he did on 16th October 2001).
8. The Act of 1771 was passed for the encouragement of herring fishing, which its preamble described as being:

"... of great importance to these Kingdoms, by increasing the trade and navigation thereof, and being a nursery for seamen, and otherwise a means of employing and providing for great numbers of industrious poor."

9. Most of the Act has been repealed, but part of section 11 and the whole of section 12 are still in force. I must read most of those sections as now in force.

"And... all and every person or persons employed in the said fisheries may fish in any part of the British Seas, and shall have and exercise the free use of all ports, harbours, shores, and forelands in Great Britain, or the islands belonging to the crown of Great Britain, below the highest high-water mark, and for the space of one hundred yards on any waste or uncultivated land beyond such mark, within the land, for landing their nets, casks, and other materials, utensils and stores, and for erecting tents, huts, and stages, for the landing, pickling, curing, and reloading their fish, and in drying their nets, without paying any foreland or other dues, or any other sum or sums of money, or other consideration whatsoever, for such liberty (except as herein-after is excepted), any law, statute, or custom to the contrary notwithstanding..."

10. The remaining part of section 11 imposes criminal sanctions for anyone interfering with the exercise of the liberty conferred by section 11.
11. Section 12 is in the following terms:

"Provided always, that nothing in this Act contained shall extend to exempt the vessels or boats employed in the said fisheries from the payment of such harbour or pier duties as are, and by the law ought to be, demanded for ships, vessels, or boats, in piers or harbours which are built or artificially made, but that such harbour or pier dues shall be paid in like manner as the same were liable to be paid before the passing of this Act."

12. In his amended defence Mr Mills relied on section 11 as a defence to the District Council's proceedings. The only clear reference to the Act was to what has been called in the course of argument "limb (b)". The county court judge held that Mr Mills was a person employed in herring fishing (and that finding has been upheld on a cross-appeal by the District Council). The District Council would have sought to challenge it by a further respondent's notice in the event of a further appeal in this case. However, the county court judge held that Mr Mills' occupation and use of part of the District Council's land between Pier Road and the River Arun was not authorised by the 1771 Act, whose wording permits (and I repeat the crucial words):

"... the free use of all ports, harbours, shores, and forelands in Great Britain, or the islands belonging to the crown of Great Britain, below the highest high-water mark, and for the space of one hundred yards on any waste or uncultivated land beyond such mark, within the land..."

13. The county court judge treated the other essential issue, apart from whether Mr Mills was a herring fisherman, as being whether the part of the wharf occupied or used by Mr Mills was "any waste or uncultivated land" (see paragraphs 5 and 24 of his judgment). That appears to have been in line with the amended defence and counterclaim. Mr Colin Nicholls QC and Miss Mary Macpherson (who have appeared for Mr Mills in this court and who, in Miss Macpherson's case, appeared before Popplewell J but in neither case appeared in the county court) say that this was wrong, and that Mr Mills' case did not depend solely on those words. The words "any waste or uncultivated land" have been referred to as limb (b) of the argument, the preceding reference to any port, harbour, shore or foreland have been referred to as limb (a).
14. The county court judge dealt with the matter by ruling that land in private ownership, covered by concrete hardstanding, was not "waste or uncultivated land" which was available to be used for purposes such as drying nets or curing fish, even if it was for the time being standing empty. The county court judge relied on a decision of the Scottish Court of Session in Campbeltown Shipbuilding Co v Robertson (1898) 35 SLR 722, a decision on the 1771 Act. In that case fishermen had for some time used a piece of land in Argyllshire for hauling up boats and drying nets. The land belonged to a shipbuilding company which had initially left it unfenced and used it only for storing timber.
15. The litigation ensued when the company fenced the land and decided to extend its ship-building activities on to it, and the fishermen (and especially Mr Robertson and his mother) tried to pull down the fence and to continue to use the land. The sheriff court decide against the Robertsons and the Court of Session dismissed their appeal. The Justice Clerk (with whom the rest of the Court of Session agreed) said (at page 724):

"It is contended by the defendant that if he, as a fisherman had used the ground for a long period of time as ground on which to draw up his boat and to dry nets, the pursuers have no right to exclude him by using the ground for extending their yard or for any other purpose except cultivation. I cannot entertain that proposition. It is not a question of time at all. They have right under an Act to use ground which belongs to the pursuers for drawing up their boats, but the Act says that the right is only to be exercised on waste or on uncultivated ground. The right extends only to that point of time at which the proprietor sees fit to use his ground for useful purposes. When he does so it gives way to his right of property."

16. The county court judge said that that case was "dead against" Mr Mills. The wharves might be currently disused but they were not waste. They were developed and they were enclosed. In those features this was a much clearer case than Campbeltown Shipbuilding Co v Robertson, a decision which is not strictly binding in England but which is entitled to a good deal of respect.
17. The county court judge refused permission to appeal but it was granted on paper by Lightman J on what he referred to simply as "the issue of construction", without further definition of what that issue was. Before Popplewell J, and in this court, a question has been raised as to the width of the permission to appeal granted by Lightman J, and in particular whether Mr Mills was limited to his submissions on "waste or uncultivated land", to the exclusion of arguments based on the reference to "harbours" in section 11. That was what I have referred to as limb (a); "waste or uncultivated land" being the second limb, or limb (b).
18. As to the scope of the arguments open to the appellant Popplewell J said this:

"It is clear from authority that it is open to an appeal court to allow a point which has not been argued below now to be argued under certain conditions. It was accepted by Mr Drabble QC that, depending on the argument, it might not be necessary for any further evidence to be called and in those circumstance I allowed Mr Horton to develop argument on what has been described as the first limb of s.11. Mr Horton, encouraged by those behind him, stoutly maintained that it was in any event open to him to argue the point because s.11 as a whole had been relied on by the defendant in his pleadings.

I rejected and continued to reject that contention. It is quite clear that the first limb, if not expressly abandoned before the County Court judge, was impliedly abandoned by the point not being taken and by the only issue on this part of the case being confined to the question of "waste or uncultivated land."

19. That reasoning and conclusion has been challenged by Mr Nicholls in this court, but in my view it was a fair and accurate summary of the position. We have a complete transcript of the closing submissions of counsel then acting for Mr Mills. That transcript runs to some 45 pages, and the precise points which counsel was relying on do seem to have varied and received different emphasis at different parts of his closing submissions. However the transcript as a whole seems to me quite strongly against the submission that the point was still kept open. Counsel addressed himself almost exclusively to what has been called limb (b).
20. In this court the would-be appellant faces the serious difficulty of a lack of findings of fact by the county court judge on points which he now seek to raise. I would accept that both the county court judge and Popplewell J seem to have recorded that the wharves in question were physically within Littlehampton Harbour, although they were not part of the undertaking of the Harbour Board since they have been successively in the ownership of various private owners, latterly Travis Perkins followed by the District Council.
21. Under section 55 of the Access to Justice Act 1999 a further appeal to this court is permissible only if it would raise an important point of principle or practice or for some other compelling reason. The correct construction of section 11 of the 1771 Act may be regarded as a point of some general importance, but for my part I think that this application can be disposed of without deciding whether the word "or" between "waste" and "uncultivated" in section 11 is conjunctive or disjunctive. It may be that it is not wholly one or the other, as with many phrases such as, for instance, "sport or pastime" or "trade or business". The 1771 Act is a statute enacted when standards of statutory drafting were rather different from what they are today. The essential idea conveyed to my mind by the words of the statute is of unproductive undeveloped land in its natural state. Extensive concrete hardstanding supported by steel sheet piling or shuttering in the middle of a small town cannot, in my judgment, possibly be described in that way. An appeal on limb (b) would in my view be hopeless. In fact Mr Nicholls did not in his oral submissions add anything on that point to what is said in the written skeleton argument.
22. This application (and an ancillary application to adduce further evidence) have been prepared with enormous care and attention to detail and for that reason (as well as because of the need to give Mr Mills and others in his position as fair a hearing as possible) I think that it is right to consider and say something also about the first-limb argument, which centres, as I understand it, on the words "harbours" and "shores." It is said that the wharves were part of Littlehampton Harbour and furthermore that they were constructed on land which, until their construction, was under the highest high water mark. It is said, therefore, that Mr Mills was entitled to the free use of them (so long as he paid harbour dues under section 12) regardless of whether the wharves were "waste or uncultivated land". This point is sought to be elaborated by an argument based on the high water mark at Littlehampton at times of exceptionally high tides, although Mr Nicholls has acknowledged that that point would require permission for further evidence to be adduced, and that the only reason why such evidence was not adduced at first instance was, in effect, the failure of the lawyers then acting for Mr Mills to put that evidence before the court. As I say, I think it right to consider those arguments but it seems to me that they have such startling consequences that they cannot possibly be right. They would mean that any herring fisherman would have the right to intrude into a busy wharf which was in private commercial ownership and to start carrying on activities such as smoking fish or drying nets, without notice and without compensation for any disruption which he caused, if only the wharf was on a site which was below the highest high water mark.
23. That would be, to my mind, a truly extraordinary result, and it seems to me that it can be reached only by an over-literal construction of the statute, looking at the dictionary meanings of individual words rather than seeking to make sense of the text as a whole. A harbour may be an entirely natural harbour, or it may have more or less elaborate artificial infrastructure, as section 12 of the 1771 Act has clearly recognised. A modern regulatory statute (such as the 1927 Act relating to Littlehampton Harbour, or more generally a definition section such as section 57 of the Harbours Act 1964) would naturally define a harbour as including its artificial infrastructure, such as wharves.
24. But the 1771 Act (or the two sections of it which survive) was, it seems to me, directed to quite different purposes. It envisaged that herring fishermen would have to pay harbour dues for their vessels to be within the built environment of an artificial harbour. It cannot have been intended, by its fairly imprecise language, to confer on herring fishermen the right to the free use of parts of the built environment of a harbour which were on shore and in private ownership. I would not go so far (and I am not at all sure that the county court judge went so far) as to say that the Act can never bite on land in private ownership; plainly it can bite on waste or uncultivated land which is in private ownership. But in the context of section 11 the reference to a "harbour" cannot, in my view, include wharves, even if (as the new evidence would seek to show) the level of the surface of the wharves (which is, it appears, about 3.45m above AOD at Newlyn) may be marginally below the level reached by an exceptional spring tide.
25. In their written submissions both sides have relied on the decision of Paull J in Iveagh v Martin [1961] 1 QB 232. That case concerned a quay built in Chichester Harbour and it is important to note the finding that the quay obstructed access which would otherwise have been enjoyed by reason of the public right of navigation in tidal waters. It is not necessary to go far into the complicated facts and issues in the case, but the judgment of Paull J appears to me far more favourable to the District Council than it is to Mr Mills: see especially at page 276 where it is said that if the defendant was right:

"Strange consequences could follow. A wharf built for the purposes of landing oil could be cluttered up against the will of the proprietor with vessels discharging wheat, or being repaired."

26. For these reasons, despite the carefully crafted written and oral submissions made on behalf of Mr Mills and the great care with which the very interesting historical material has been prepared, I consider that an appeal on the first limb of section 11 would be just as hopeless as an appeal on the second limb. It is not necessary to consider the proposed respondent's notice.
27. I would dismiss these applications.
28. LORD JUSTICE KEENE: I agree. On any fair reading of the material in this case it is clear that at trial in the county court the case on behalf of the applicant was that this land was waste or uncultivated land within 100 yards beyond the highest high-water mark. What has been referred to in argument as Limb A of section 11 of the 1771 Act was not being relied upon at that stage. That is why no evidence was adduced to establish that the land in question came within Limb A.
29. In essence, therefore, the applicant today is seeking to run a point that could have been taken at trial but which was not taken. To support that point Mr Nicholls seeks to adduce fresh evidence and yet he has to acknowledge, as he did in argument, that such evidence could have been adduced without difficulty at trial. The advent of the Civil Procedure Rules does not mean that a litigant is entitled to have a second go at a trial merely because he did not put his case as well as he might have done the first time around. Finality in litigation is still an important consideration within the overall objective of dealing with cases justly; and the reasoning lying behind Ladd v Marshall still has force.
30. In those circumstances it would, in my view, not be right to allow the new point to be raised at this stage. Nor can I see any defect in the county court judge's decision that this land was not waste or uncultivated land. It is enclosed land, covered with hardstanding, allocated for a comprehensive development scheme in the adopted local plan. It enjoys a development brief, and a planning application has been lodged. It has been sold conditionally to a developer. Enclosed land which is awaiting a development under active consideration of this kind cannot be regarded as waste or uncultivated land within the meaning of section 11. While one can only sympathise with the plight of Mr Mills and his fellow fishermen this appeal has no real prospect of success and it would not be a kindness to allow it to go further.
31. I too, would dismiss the application.
32. SIR CHRISTOPHER SLADE: I agree with both judgments.
(Applications dismissed with costs; costs summarily assessed at £7,000).