We have previously explained how fishing rights could be acquired by prescription (long use) in a previous article. Fishing rights (and certain other rights, such as rights of way and rights of light) can be acquired by prescription where there has been a continued use of the rights claimed for a period of 20 years or more and certain other conditions are met. Here, we consider the impact Covid-19 could have on prescriptive claims in the context of the right to fish.
Prescription: the basic requirements
In order to acquire fishing rights by prescription, certain conditions need to be met. The use of the claimed rights must have been for a period of 20 years or more and they must have been exercised “as of right”, that is without force, secrecy or permission. There must also, in general, be a continuous use of the claimed rights. This does not mean that the rights need to be exercised constantly, but casual or occasional use will not be sufficient. What constitutes sufficient continuity of use will depend upon the facts of any particular case.
We act for many landowners and angling associations who seek to protect their right to fish by registering it at the Land Registry. Often, these claims are based on prescription, as they were never formally granted the right to fish.
Covid-19: restrictions on movement
The government’s restrictions on movement since March 2020 have, at various times, made it an offence for a person to leave the place where they live without a reasonable excuse. While the restrictions were relaxed to varying degrees in England and Wales from May 2020, the recent Welsh firebreak and the second English lockdown have further restricted the ability of many anglers to fish. The regulations which were introduced in England from 5 November 2020, for example, permit “outdoor recreation” in a public outdoor space, which can include fishing, but a person will only be permitted to fish with members of their own household, their support bubble or with one other individual. Social distancing is also required.
The restrictions on movement which have been imposed during 2020 will have significantly reduced the amount of fishing which has taken place.
Could the Covid-19 restrictions hinder prescriptive claims?
As stated above, to acquire fishing rights by prescription, a claimant must demonstrate the continuous use of the rights claimed for a period of at least 20 years. As the Covid-19 outbreak will have prevented many people from fishing for weeks, if not months, then could this amount to a break in the required continuity of use, and so frustrate a potential claim for prescriptive rights?
In our view, a temporary break in exercising the rights due to the Covid-19 restrictions on movement is unlikely to be fatal to a prescriptive claim. While a prescriptive claim requires continuous use, that use does not need to be constant. The courts have held that delays in exercising a claimed right for weeks or even potentially months can be permissible, although this will depend upon the circumstances of the particular case.
Our advice is that, provided it is lawful and safe to do so, then a party seeking to claim fishing rights by prescription should consider taking steps to preserve their claim. If they can, following all government advice, continue to fish, they should do so. Any extended delay in fishing might otherwise potentially be treated by a court as a break in the required period of use, and start the clock ticking again for the required period of 20 years or more.
If you would like any further information on these issues, including the registration of fishing rights or advice on rights which might have been acquired by prescription, do contact Michael Goodwin or Esther Stirling on (01989) 562377 or at [email protected] or [email protected]