*Estuarine Policy Review*, 41.2 (2026), 143-158

# The 1974 Braithe Order and the limits of consent

HELENA M. CROYDE

The Braithe Estuary Order 1974 is usually described as a consenting instrument, and for most of its life it has been used as one. Article 6(2), on which everything in this article turns, requires the Harbour Board to obtain the written consent of the riparian owners before works are carried out on the intertidal foreshore.$^{1}$ What the article does not say, and what the Board's practice for thirty years assumed it said, is that a consent once given runs with the land.

The assumption was not an unreasonable one. The drafting committee had before it a memorandum from the Board's own solicitor which treated consent as attaching to the works rather than to the owner,$^{2}$ and the article was drawn in language which, read quickly, supports that reading. But the memorandum was not adopted, and the words 'the owner for the time being' were struck out of the draft at the committee's second meeting.

The consequence went unnoticed for a long time because it seldom mattered. Ownership of the relevant foreshore changed hands twice between 1974 and 2003, and on each occasion the Board sought a fresh consent as a matter of course, without ever asking whether it was obliged to.$^{3}$

The question surfaced, when it did, for a reason unconnected with ownership. In 1998 the Board began keeping its consent correspondence on a single file rather than with the works papers, and the file made visible what thirty years of separate folders had hidden: that no two consents were in the same terms, that four of them were addressed to people who had by then sold, and that one had been given by a tenant whose lease had expired. The clerk who noticed it recorded the fact and no more.

It is worth pausing on the word 'owners'. The Order uses it in three places and defines it in none, and the committee plainly took its meaning to be settled by the general law. That was a defensible view in 1974, when the foreshore between the training wall and Thrimby Point was held in three parcels and the identity of each owner was a matter of local knowledge. It is a less defensible view now, and the Board's difficulty in the 2011 season had as much to do with finding the owners as with the terms on which they were willing to consent.$^{4}$

The committee cannot be blamed for this. Its brief was to produce an instrument that would let the Board dredge and maintain without a private Act for every campaign, and it did so in eleven articles and a schedule. Consent was one paragraph of one article, and the committee's own view, minuted twice, was that the paragraph restated the law rather than adding to it. Whether that view was right is the subject of the first part of what follows.

None of this would matter if article 6(2) were merely procedural. The argument of this article is that it is not: that the consent requirement was the price of the compulsory powers conferred by article 4, and that reading it as a formality which passes with the land empties the bargain the Order struck.

$^{1}$ Braithe Estuary Order 1974, art. 6(2). The Order is reproduced in full in the appendix to R. Sandiman, *The Braithe Estuary: A Documentary History* (Vardenne, 1988), 211-24.

$^{2}$ Minutes of the Harbour Board, 14 May 1973 (Braithe Record Office, BHB/3/17), 4.

$^{3}$ The point was not argued in *Tarbert v Braithe Harbour Board* [1981] 2 EstLR 88, where both parties proceeded on the assumption that art. 6(2) applied.

$^{4}$ The Board's file on the 2011 consents (Braithe Record Office, BHB/11/4) contains three letters returned undelivered and a note of a telephone call to a solicitor in Winnipeg.

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HELENA M. CROYDE

That changed with the sediment recharge programme. Placement of dredged material on the upper foreshore is works within the meaning of article 3, as the Board has always accepted, and the programme requires placement in the same locations year after year. A consent that expires with a conveyance is an expensive thing to administer, and by 2009 the Board was asking whether article 6(2) meant what it appeared to mean.$^{5}$

The answer its advisers gave - that the article requires consent from the owner at the date of the works, and that a consent given by a predecessor in title is of no effect - has never been tested in proceedings. It is, I shall argue, the right answer, and the reasons for it lie in the committee's treatment of a quite different problem: the position of tenants.$^{6}$

The remainder of this article is in three parts. The first sets out the drafting history of article 6(2) from the committee's papers. The second considers the Board's practice between 1974 and 2009, which is better documented than the drafting and is more revealing about what the article was thought to mean. The third turns to the tenancy question, and to the reason the committee's solution to it makes the wider reading impossible.

The argument is narrow in one respect that should be stated at the outset. I am concerned with article 6(2) as it stands, and not with whether it ought to stand. There is a good case, which the Board has put to the department more than once, for amending the Order so that a consent binds successors in title on notice. That case is not weakened by the reading advanced here; if anything it is strengthened, because an amendment is only necessary if the article means what I say it means.

A word about the sources is needed before the argument begins. The committee's papers survive in two series, one in the Braitha Record Office and one, less complete but better ordered, among the Harbour Board's deposited records. The two do not always agree about what was decided, and where they conflict I have preferred the Record Office copy, which was made at the time and initialled.$^{7}$

The second part of the argument rests on the Board's practice, and practice is harder to document than drafting. What survives is the consent correspondence itself: forty-one exchanges between 1974 and 2009, of which thirty-four are complete. They are unremarkable letters, and their interest lies entirely in what nobody writing them thought worth arguing about.

Three of the exchanges are worth reading in full and are printed in the appendix. The first, from 1976, is the only one in which an owner refused; the second, from 1989, is the only one in which the Board treated a consent as continuing without saying so; and the third, from 2004, is the one the advisers had in front of them in 2009. Together they show a practice that was consistent in what it did and inconsistent in what it assumed.

I have not attempted a comparison with the other estuarine orders of the period, though several use language close to article 6(2) and one, the Marnhead Order 1971, appears to have been its model. The comparison would be worth making. It would also be a different article, and would not settle the question this one is about.

$^{5}$ Report of the Committee on Estuarine Consents (Cmnd 6712, 1977), paras 88-94.

$^{6}$ See further A. Prosser, 'Consent and its conditions' (1994) 12 EPR 3, 9-14, whose account of the 1977 committee differs from mine at one point of substance.

$^{7}$ The Harbour Board series appears to have been reconstructed in 1981, probably for the purposes of the Tarbert litigation.

THE 1974 BRAITHE ORDER AND THE LIMITS OF CONSENT

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The committee's papers are in two series and neither is complete. What survives of the drafting is a bundle of eleven documents: four memoranda, the minutes of six meetings, and a marked-up print of the draft Order with two hands on it, one of them the secretary's.$^{8}$

The sequence that matters begins at the second meeting, on 14 May 1973, at which the solicitor's memorandum was considered and not adopted. The minute is short and gives no reason, which has led more than one writer to treat the decision as a formality.$^{9}$ The marked-up print shows that it was not. The words 'the owner for the time being' are struck through in the secretary's hand, and beside them, in the other hand, is written 'not without the tenancy point'.

That note is the hinge of this article. It ties the deletion to the tenancy question, which the committee took up at its fourth meeting and settled in a way that makes the wider reading of article 6(2) impossible. The connection appears not to have been noticed before, and the tenancy discussion is worth setting out at length.$^{10}$

The problem the committee faced was this. Much of the foreshore between the training wall and Thrimby Point was let, in 1973 as now, on grazing tenancies of a year and less. If consent ran with the land, a consent given by an owner would bind a tenant who had not been asked; if it did not, the Board would have to seek consent from whoever held the land at the date of the works, tenant or owner. The committee wanted neither result and said so in terms.

$^{8}$ Braithe Record Office, BHB/3/14-24. The marked-up print is BHB/3/22.

$^{9}$ Notably Prosser, 'Consent and its conditions', 7, who calls the deletion 'tidying'.

$^{10}$ Minutes of the fourth meeting, 9 July 1973 (Braithe Record Office, BHB/3/19), 2-6.

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Its solution was article 6(3), which nobody reads: consent is required from 'the owner and, where the land is let for a term of more than one year, the tenant'. The threshold of a year is the committee's own and appears nowhere else in the Order.$^{11}$

Article 6(3) only makes sense on the narrow reading. If consent ran with the land, a tenant's consent would run with the tenancy, and a threshold of a year would protect nobody: a grazing tenant of eleven months would be bound by a consent given by a predecessor's landlord, which is precisely the result the committee said it wished to avoid. On the narrow reading the threshold does what the minute says it was for.

There is a further point, smaller but harder to answer. The committee considered and rejected a draft in which consent was expressed to bind 'successors in title'. The rejected words are in the same marked-up print, struck through in the same hand.$^{12}$ A committee that struck out 'the owner for the time being' and 'successors in title' at consecutive meetings was not tidying.

The remainder of the drafting history adds little. The Order was settled at the sixth meeting and went to the department unchanged in this respect. The department's own file, which I have not seen, is said to contain nothing on article 6 at all.$^{13}$

$^{11}$ Braith the Estuary Order 1974, art. 6(3). The threshold is discussed at the fourth meeting, *ibid.*, 5.

$^{12}$ Braith the Record Office, BHB/3/22, fo. 4.

$^{13}$ I am grateful to the departmental records officer for a search, and for the confirmation that the file was weeded in 1998.