Sea Fisheries (Shellfish) Act 1967

Fisheries for shellfish

Power to make orders as to fisheries for shellfish

1

• (1) Subject to the provisions of this section, the appropriate Minister may, on an application made to him in accordance with subsection (2) of this section, by order provide for the establishment or improvement, and for the maintenance and regulation, of a fishery for shellfish of any kind specified in the order , on any portion of 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 and within waters adjacent to England and Wales to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured (which shore and bed are in this Act referred to as “the sea shore”) and, if desirable, for the constitution of a board or body corporate for the purposes of the order.

• (1A) Subsection (1) above has effect in relation to Scotland, with the modification that for “waters adjacent to England and Wales to” there is substituted “that part of the Scottish zone within”.

• (2) An application for an order under this section shall be made in such form and manner as may be prescribed by regulations made by the appropriate Minister; and the provisions of Schedule 1 to this Act shall have effect in relation to the making of orders under this section.

• (2A) In relation to applications to the Welsh Ministers, subsection (2) has effect as if for “prescribed by regulations made by the appropriate Minister” there were substituted “ specified by the Welsh Ministers ” .

• (2B) The Welsh Ministers may require a person who applies to them for an order under this section to provide them with such further information as they think necessary to enable them to determine the application.

• (3) An order under this section may confer on such persons as may be specified in the order—

• (a) a right of several fishery with respect to the whole of the area of the fishery to which the order relates, or

• (b) a right of regulating a fishery with respect to the whole of that area, or

• (c) a right of several fishery with respect to such part of that area as may be specified by or under the order and a right of regulating a fishery with respect to the remainder,

but shall not confer either right for a longer period at one time than sixty years.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) No order under this section shall take away or abridge any right of several fishery or any right on, to or over any portion of the sea shore, being a right enjoyed by any person under any local or special Act of Parliament or any Royal charter, letters patent, prescription, or immemorial usage, except with the consent of that person.

• (6) Any order made under this section may be varied or revoked by a subsequent order made under this section.

• (7) Subject to subsection (8) below, subsections (1) to (5) above shall apply in relation to any such subsequent order and to an application for such an order as they apply in relation to an original order made under this section and to an application for such an order.

• (8) Subsection (7) above does not apply in the case of any order made by virtue of subsection (10) belowor by virtue of section 5E of this Act .

• (9) Subsection (10) below applies in any case where it appears to the appropriate Minister that—

• (a) permission has been granted for the carrying out of any development in, on or over any portion of the sea shore to which an order made under this section relates (the “affected area”), and

• (b) as a result of the development, it will be impossible or impracticable to exercise any right of several fishery or of regulating a fishery conferred by the order in the affected area.

• (10) In any such case, the appropriate Minister may—

• (a) vary the order so that the area to which the order relates no longer includes the affected area, or

• (b) if the affected area comprises the whole or the greater part of the area to which the order relates, revoke the order.

• (11) The provision that may be made by an order made by virtue of subsection (10) above includes—

• (a) provision requiring the owners of the affected area to pay compensation to any persons who, at the time of the making of the order, are entitled to a right of several fishery in any part of the affected area by virtue of an order under this section;

• (b) provision for the amount of any such compensation to be specified in, or determined in accordance with provision made by, the order (including provision for or in connection with the appointment of a person to make any such determination).

• (12) Before making an order by virtue of subsection (10) above, the appropriate Minister must consult—

• (a) any persons who are entitled to a right of several fishery or a right of regulating a fishery in any part of the affected area by virtue of an order under this section, and

• (b) the owners or reputed owners, lessees or reputed lessees and occupiers, if any, of the affected area.

• (13) The appropriate Minister may require the owners of the affected area to provide him with such information relating to the development as he may reasonably require for the purpose of deciding whether to make an order by virtue of subsection (10) above.

• (14) In this section “ development ” has the same meaning as in the Town and Country Planning Act 1990.

• (14A) Subsection (14) above has effect in relation to Scotland as if the reference to the Town and Country Planning Act 1990 were a reference to section 26 of the Town and Country Planning (Scotland) Act 1997 (c.8).

Effect of grant of right of several fishery

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• (1) Where an order under section 1 of this Act confers a right of several fishery, then, subject to any restrictions and exceptions contained in the order and to section 12 of this Act, the grantees shall have within the limits of the fishery, or of that part of the fishery within which the right is exercisable, the exclusive right of depositing propagating, dredging, fishing for and taking shellfish of any description to which the order applies, and in the exercise of that right may within those limits—

• (a) make and maintain beds for such shellfish;

• (b) at any season collect such shellfish and remove them from place to place and deposit them as and where the grantees think fit;

• (c) do all other things which the grantees think proper for obtaining, storing and disposing of the produce of their fishery.

• (2) In this section “the grantees” means the persons for the time being entitled to the right of several fishery conferred by the order under the said section 1.

Effect of grant of right of regulating a fishery

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• (1) Where an order under section 1 of this Act confers on the grantees a right of regulating a fishery for any specified description of shellfish and imposes restrictions on, or makes regulations respecting, the dredging, fishing for and taking of any specified description of shellfish within the limits of the regulated fishery, or of that part of the fishery within which the right is exercisable, or imposes tolls or royalties upon persons dredging, fishing for and taking any specified description of shellfish within the limits of that fishery or part, then, subject to any restrictions and exceptions contained in the order and to section 12 of this Act, the grantees shall have power to do all or any of the following things, namely—

• (a) to carry into effect and enforce any such restrictions and regulations;

• (b) to levy any such tolls or royalties;

• (c) to provide for depositing and propagating shellfish of any description to which the order applies within those limits and for regulating the regulated fishery or regulated part, as the case may be.

• (2) Subject to the provisions of sections 4 and 5A of this Act, all such restrictions, regulations, tolls and royalties as aforesaid shall be imposed on and apply to all persons equally, and shall be for the benefit of the regulated fishery or part only, and , subject to subsection (2A) of this section, any such tolls and royalties shall be applied for purposes relating to the regulation of that fishery or part.

• (2A) An order under section 1 of this Act which—

• (a) confers on the grantees a right of regulating a fishery, and

• (b) imposes tolls or royalties upon persons dredging, fishing for and taking shellfish within the limits of the fishery, or of that part of the fishery within which the right is exercisable,

may provide that the grantees may, for the purposes of recouping any costs incurred by the grantees in connection with applying for the order, retain such portion of those tolls and royalties as may be specified in the order.

• (3) Any person who dredges, fishes for or takes shellfish of any description to which any such order applies in contravention of any such restriction or regulation, or without paying any such toll or royalty, as aforesaid shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50,000 a fine and to forfeit all such shellfish so taken or, if they have been sold, a sum equal to their value; and any shellfish or sum so forfeited shall be recoverable in like manner as a fine.

• (4) The court by which any such forfeiture is imposed may direct the shellfish or sum forfeited to be delivered or paid to the grantees to be applied by them for purposes relating to the regulation of the regulated fishery or part.

• (4A) Subsection (4B) applies where an order under section 1 of this Act—

• (a) confers a right of regulating a fishery for any specified description of shellfish, and

• (b) imposes restrictions on, or makes regulations respecting, the dredging, fishing for and taking of any specified description of shellfish within the limits of the regulated fishery or any part of it.

• (4B) A person commits an offence if—

• (a) the person is found within the limits of, or in the immediate vicinity of, the regulated fishery,

• (b) the person is found there at, or about, a time at which the restrictions imposed or regulations made by the order apply,

• (c) when so found, the person is in possession of such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of dredging, fishing for and taking shellfish in contravention of the restrictions or regulations, and

• (d) it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the person intends to dredge, fish for and take shellfish in contravention of the restrictions or regulations.

• (4C) A person who commits an offence under subsection (4B) is liable on summary conviction to a fine not exceeding £50,000.

• (5) Where any sea fishing boat is used in the commission of an offence under subsection (3) or (4B)of this section, the master, the owner and the charterer (if any) shall each be guilty of an offence and liable on summary conviction to a fine not exceeding £50,000a fine.

• (6) Subsection (1) of this sectionThis section applies where an order under section 1 of this Act—

• (a) confers on the grantees a right of regulating a fishery, and

• (b) by virtue of section 15(3) of the Sea Fisheries Act 1968, enables the grantees to impose restrictions on, or make regulations respecting, the dredging, fishing for and taking of shellfish within the limits of the regulated fishery or part,

as it applies where an order under section 1 of this Act confers such a right and imposes such restrictions or makes such regulations.

• (7) Accordingly, any reference in this section to restrictions or regulations is to be read as including a reference to any restrictions imposed by, or any regulations made by, the grantees.

Licensing powers in case of regulated fishery

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• (1) This section applies to an order made under section 1 of this Act, being an order which confers a right of regulating a fishery.

• (2) The restrictions imposed by an order to which this section applies may include restrictions prohibiting all persons from dredging, fishing for or taking, within the limits of the fishery or of that part of the fishery within which the right is exercisable, shellfish of the description to which the order applies except under the authority of a licence issued in that behalf by the grantees.

• (3) Any power to vary an order to which this section applies shall (without prejudice to the generality of that power) include power to vary the order so as to impose restrictions in accordance with subsection (2) of this section.

• (4) Where an order to which this section applies (either as originally made or as varied) imposes any such restrictions, then, subject to the provisions of the order and of this section, licences may be issued under the order in such numbers and to such persons, and operative for such periods, and may authorise the dredging, fishing for or taking of shellfish at such times, in such manner and to such extent, as the grantees may determine.

• (5) Where in pursuance of such an order the grantees propose to issue licences, they shall, unless they propose to issue licences to all such persons as may apply for them, notify the appropriate Minister of their intention; and the appropriate Minister may give directions to the grantees as to the exercise of their powers under subsection (4) of this section.

• (6) If the grantees issue or withhold licences without complying with the requirements of subsection (5) of this section or of any directions given thereunder, then, for the purposes of section 5 of this Act (and without prejudice to the generality of that section) the grantees shall be taken not to be properly carrying into effect the restrictions imposed by the order; but no licence issued in contravention of any such requirements shall be invalid by reason only that it was so issued.

• (7) Any licence issued under an order to which this section applies may with the consent of the appropriate Minister be cancelled by the grantees if the person to whom the licence is issued is convicted of an offence of contravening a restriction imposed by the order...; but, except as provided by this subsection, a licence so issued shall not be cancelled before it is due to expire unless the person to whom it was issued dies or surrenders the licence.

• (8) In this section any reference to the imposition of restrictions includes a reference to the making of regulations.

Cesser of right conferred by order under s.l

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• (1) If, in the case of any right of several fishery or of regulating a fishery conferred by an order made under section 1 of this Act, the appropriate Minister is not satisfied, either as respects the whole of the area within which that right is exercisable or as respects any part of that area, that the grantees are properly cultivating the ground for shellfish of any description to which the order applies within the limits of that area or part or properly carrying into effect and enforcing any restrictions and regulations contained in the order and levying any tolls or royalties imposed thereby, he may make a certificate to that effect and thereupon that right shall be absolutely determined as respects that area or, as the case may be, that part thereof, and the provisions of this Act shall cease to operate in relation to that area or, as the case may be, that part thereof as, or, as the case may be, as part of, a several or regulated fishery.

• (2) For the purpose of subsection (1) of this section, the appropriate Minister 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 such information, as that Minister thinks necessary or proper, and the grantees shall afford all facilities for such inquiries and examination, and give such information, accordingly.

• (3) For the purpose of carrying out any inquiry or examination with respect to a fishery in pursuance of subsection (2) of this section, any inspector or other person appointed by the appropriate Minister under that subsection may take evidence, and by summons under his hand require the attendance of any person and examine him and any person who attends before him, on oath or otherwise, as he thinks expedient, and may administer an oath or take any affidavit or declaration for the purpose of the inquiry or examination.

• (4) For the purpose of carrying out any such inquiry or examination, a person authorised in that behalf by the appropriate Minister shall, subject to subsection (5) of this section, have the right, at any reasonable time, to enter any land within the limits of the fishery, and to obtain and take away samples (which shall be marked, labelled or otherwise made capable of identification) of any shellfish found within those limits; and, notwithstanding anything contained in this Act, when the purpose for which any such sample was taken has been satisfied the person by whom the sample was taken may dispose of it as he may determine.

• (5) A right of entry under subsection (4) of this section shall not be exercisable in respect of any land unless not less than twenty-four hours’ notice of the intended entry has been given to the occupier of the land, and also to the grantees if they are not the occupiers of the land; and the person exercising the right shall, if so requested, produce written evidence of his authority before entering.

• (6) Any duty imposed on any person by subsection (2) of this section to afford facilities for any inquiry or examination in respect of a fishery shall include a duty to afford facilities for the exercise of any right exercisable in respect of the fishery in accordance with subsections (4) and (5) of this section.

• (7) Any person who obstructs an inspector or other person in the exercise of any power or right conferred by this section, or who refuses or without reasonable excuse fails to provide any information reasonably required by an inspector or other person in the exercise of any such power or right, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

• (8) In this section “the grantees”, in relation to a right of several fishery, means the persons for the time being entitled to that right.

• (9) In the application of this section to Scotland, subsection (3) shall have effect as if for the words “summons under his hand” there were substituted the words “an order signed by him”.

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