Isle of Anglesey County Council and Another v The Welsh Ministries and others: CA 20 Feb 2009

The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make orders conferring exclusive rights of several oyster and mussel fishery on ‘grantees’, defined as ‘the persons obtaining the order’.
Carnwath LJ said: ‘Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach. That applies particularly in a relatively esoteric area of the law such as the present, in relation to which cases may rarely come before the courts, and the established practice is the only guide for operators and their advisers.’
and ‘The present statutory context provides an unusually strong, and in my view fully sufficient, basis for having regard to the later history. The Act itself contained a procedure for enabling any principal objections to the form of an order to be settled by Parliament itself. In that respect, to borrow Lord Nicholls’ phrase in the Jackson case, the involvement of the legislature has gone ‘much deeper’ than in most of the cases in the books. In my view that history points a clear way to the resolution of the ambiguity in the 1868 statute, in so far as that is left in doubt by the context and purpose of the statute itself.’
‘ . . the commissioners recognised the possible ambiguity in the 1868 Act, and gave a clear indication as to how it should be resolved. They found support, as I have done, in the ordinary incidence of a ‘several fishery’ and also in the specific provision in s.29 for the establishment of a ‘body corporate’. By approving the Bill in the form recommended by them, Parliament can arguably be taken, at least for the future, as impliedly endorsing the reasoning of the report.’
Pill LJ added: ‘Carnwath LJ has described the subsequent legislative events. I agree with him that, when construing section 40, the present statutory context provides an unusually strong basis for having regard to the later history. The legislature has subsequently been involved both in approving orders under the 1868 Act, as its section 38 originally required, and in passing the 1967 Act with knowledge of the many extant orders under the earlier statute, including the 1962 Order at issue in this case. I agree with Carnwath LJ’s analysis of the Law Commission report and its effects.’
Pill, Carnwath, Lawrence Collins LJJ
[2009] EWCA Civ 94, [2009] NPC 28, [2009] 3 WLR 813, [2009] 3 All ER 1110, [2010] QB 163
Sea Fisheries Act 1868 40
England and Wales
Appeal fromIsle of Anglesey County Council and Another v Welsh Ministers and others QBD 6-May-2008
Challenge to the grant of planning permission to create a marina in an area designated as a mussel fishery. . .

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These lists may be incomplete.
Updated: 26 January 2021; Ref: scu.301650