SIMON
FACT SHEET NUMBER 5
BUYING A FISHERY
Whether you are buying a
large commercial fishery or leasing a stretch of river there are issues that
need careful consideration:-
1. WHAT
AM I GETTING?
There
are a variety of interests a prospective fishery owner might be acquiring. At its simplest an acquisition might be
of freehold land with lakes or a river running through it. Alternatively there might be a lease of
freehold land.
However
in many cases what is offered is just the right of fishing with the owner
retaining freehold ownership. A
right of fishing is what is known as a profit a prendre. These rights can either be purchased in
perpetuity or leased for a specific period.
A
further possibility is that you acquire a “sole, exclusive and several fishery”. The significance of this phrase is that
such a grant also operates to vest the bed of the river or lake in the grantee.
It
is important to note that when you buy land by the side of a river or lake
there is a presumption that you own one-half of the width of the bed of the
river or lake abutting that land.
2. WHAT SHOULD I BE
CONCERNED ABOUT?
The
first important issue is to ensure that you have a proper right of access to
the fishery from the nearest public road.
Fisheries are often in remote locations and it is crucial that adequate
rights of way exist and that these are sufficiently broadly defined for the use
planned for the fishery. If you
want to have vehicular access it needs to be checked out that car parking areas
are available.
A
careful review should be undertaken of responsibility for boundary features and
their maintenance including responsibility in relation to river banks and
clearance of vegetation.
Care
should be taken as to the extent of your rights and whether others have rights
that may compete with yours. Issues
may arise such as the right to use boats or times of usage of the fishery. It may be that the landlord or third
parties have rights over the same waters, e.g., navigation rights or gravel
extraction rights. (See also Fact Sheet 2 - Navigation).
Particularly
where a fishery is leased, it is important to know what maintenance obligations
are imposed and what rights and obligations you have as to stocking. Leases will contain a series of
covenants, i.e., obligations on the tenant and these need to be checked
carefully.
In
many cases, particularly where the use is a commercial one, you need to be sure
that there is an appropriate planning consent in place for the type and
intensity of the use you want to put the fishery to and, if relevant, that
Highway Authority approval has been obtained. (See also Fact Sheet 8 - Dealing with
Authorities).
3. WATER SUPPLY AND
DISPOSAL
Whether
a new fishing lake is to be constructed or an existing one acquired it is
essential that there is an adequate supply of water and that there are rights
to discharge any surplus flow of water.
Water supply may involve an abstraction licence. (See also Fact Sheet 8 - Dealing with
Authorities). Discharging
surplus flows may need the consent of a neighbouring owner if discharged
through a pipe or culvert.
4. POLLUTION
AND DISEASE
Whilst
expert advice may also be needed, it is first important to establish by
enquiries before contract whether the water has suffered historic pollution
problems or fish have been lost through disease. Ideally evidence would be obtained of
S.30 stocking consents for all introductions of fish. (See also Fact Sheet 4 - Stocking Consents)
5. RESERVOIRS ACT
Where
a fishing lake is, or will be, formed with a raised embankment it is likely
that the provisions of the Reservoirs Act 1975 will apply. This Act imposes obligations on owners
to appoint a supervising engineer to carry out periodic inspections. Owners are also obliged under the Act to
carry out any works recommended by the engineer. (See also Fact
Sheet 11 - Reservoirs).
6. STOCKING AND
NETTING
Once
a fishery has been acquired consents are needed from the Environment Agency to
remove surplus fish by nets or introduce new fish from another source. (See Fact Sheet 4 - Stocking Consents).
7. PLANNING
In
the case of most commercial fisheries the use of the site for fishing will
require planning permission. Therefore
when acquiring a fishery it is essential that either a valid planning consent
or a Certificate of Lawful Use is produced. If neither can be produced then ideally
the contract should be conditional on planning approval being obtained. If this is not possible detailed
evidence should be obtained from the seller if it is asserted that the fishery
has been operational for more than ten years.
It
is also important to consider whether improvements to the fishery after it has
been purchased will need planning approval. Thus if it is intended to erect new
buildings, dig new ponds or significantly increase the use of the fishery then
permission may be needed. If the
access to the fishery is to be altered then approval from the Highways
Department may also be needed. (See
also Fact Sheet 8 - Dealing
with Authorities).
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Please note that this fact sheet
is intended to give general guidance on the stated area of law. We cannot accept any responsibility
for the consequences of relying on this fact sheet in relation to particular
circumstances of which we are not aware.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691
791583
e-mail. srbj@btconnect.com