Borwick Development Solutions Ltd v Clear Water Fisheries Ltd

Factual and Procedural Background

The opinion concerns a claim in conversion brought by Plaintiff against Defendant regarding property on freehold land in the county of Lancaster, comprising commercial fishery assets and solar panels. Plaintiff, the former owner of the fishery, sold the land to Defendant through Law of Property Act receivers in June 2016. The claim relates to two categories of property: coarse fish stocked in nine man-made lakes and pools on the site, and solar panels affixed to the land. Plaintiff asserts ownership of both, while Defendant contends ownership passed with the land or that the fish were wild and unowned.

The fishery was developed from a former gravel extraction site with a large void turned into lakes, leased initially to a third party before Plaintiff resumed management and stocking from 2005 onward. The fishery operated commercially, with anglers paying license fees and required to return caught fish. Solar panels were installed in 2011-2012 on part of the mortgaged land to generate electricity for a restaurant and to feed surplus electricity to the National Grid under a contract.

Negotiations between Plaintiff and Defendant for sale included separate valuations for land and fish, but ultimately Defendant acquired the land via receivership without explicit transfer of the fish or solar panels. Plaintiff alleges wrongful interference with its property rights after the sale, leading to the present litigation focusing on issues of ownership and conversion liability.

Legal Issues Presented

1. Whether title to the fish stocks in the commercial fishery passed to Defendant with the sale of the land or remained vested in Plaintiff.
2. Whether the solar panels affixed to the land are legally considered fixtures passing automatically to Defendant on the sale of the land, or remain Plaintiff's property.

Arguments of the Parties

Plaintiff's Arguments

• The fish in the commercial fishery are not wild animals but are domestic or captive, having been born, bred, and maintained in a closed water system, and thus are capable of absolute ownership or at least qualified property rights.
• Fish were introduced into isolated water bodies with measures preventing escape or ingress, supported by a section 106 Agreement requiring physical separation of pools.
• Considerable investment and management efforts were made to stock, maintain, and protect the fish stocks, including naming specimen fish, indicating assertion of ownership.
• Defendant previously negotiated to pay a separate sum for the fish, evidencing recognition of Plaintiff's ownership.
• The law should evolve to recognize fish in commercial fisheries as domestic animals subject to ownership, adapting the qualified property per industriam principle to modern fishery contexts.
• The solar panels were installed for the economic benefit of Plaintiff's business and were not intended to be fixtures; they were removable chattels linked to a personal contract with an electricity supplier.
• The purpose of annexation is critical; the solar panels were affixed to generate electricity for the business, not to improve the land permanently, and could be removed without serious damage.
• Hire purchase arrangements gave Plaintiff immediate right to possession of the solar panels, entitling it to sue in conversion if unlawfully interfered with.

Defendant's Arguments

• Fish are wild animals (ferae naturae) and cannot be subject to absolute ownership while alive, only qualified property rights which passed automatically with the land as exclusive fishing rights (ratione soli).
• The fish in the lakes were not confined in tanks or similar enclosures giving immediate control; they swam freely in large lakes with varied depth and connectivity allowing some fish movement.
• Qualified property per industriam requires actual or immediate power and control over animals, which Plaintiff lacked given the size and nature of the water bodies.
• Any qualified property Plaintiff may have had was lost upon sale of the land; Defendant, as new landowner, acquired exclusive fishing rights and qualified property in the fish.
• The solar panels were fixtures, deeply embedded and forming part of a composite unit fixed to the land, intended to benefit the land by supplying electricity to the restaurant premises.
• Removal of the solar panels involved substantial work and damage, supporting their status as fixtures passing with the land.
• Legal tests for fixtures focus on objective purpose and degree of annexation, not subjective intention; Plaintiff’s personal contract with the electricity supplier is irrelevant.
• Panels cannot be considered in isolation from the wooden bases, which are admitted fixtures; the entire unit must be treated as part of the land.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Greyes Case (1593) Owen 20, 74 ER 869	Distinction between fish in enclosed ponds and wild fish; stealing fish from enclosed places is felony.	Recognized as early authority supporting ownership of fish in enclosed water bodies.
R v Steer (1704) 6 Modern 183, 87 ER 939	Fish in private ponds are property of pond owner due to confinement.	Supported Plaintiff’s argument that fish in enclosed ponds can be owned.
Blades v Higgs (1865) 11 HLC 620	Wild animals are not personal chattels while alive but may be owned as landowners.	Defendant relied on this to assert fish are wild animals with no absolute ownership.
R v Townley (1871) LR 1 CCR 315	No absolute property in wild animals; only qualified property.	Supported Defendant’s position on fish ownership.
Cresswell v DPP [2006] EWHC 3379 (Admin)	Qualified property in wild animals exists in limited circumstances; no absolute ownership while alive.	Guided court’s analysis of qualified property in fish stocks.
Dawes v Huddleston (1633) Cro Car 339	Ownership principles relating to fish as wild animals.	Referenced in discussion of fish ownership.
Hamps v Darby [1948] 2 KB 311	Fish are creatures ferae naturae; ownership rules for wild animals.	Supported Defendant’s argument on fish status.
Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153	Fishing rights pass with land unless severed.	Supported Defendant’s position that fishing rights passed with land.
Hesketh v Willis Cruisers Ltd (1968) 19 P&CR 573	Fishing rights as incident of land ownership.	Applied to confirm fishing rights passed with land.
Young v Hichens (1844) 6 QB 606	Qualified property arises where fish are confined in tanks or ponds.	Defendant argued fish in large lakes did not meet this test.
The Ship "Frederick Gering Jnr" v The Queen (1897) 27 SCR 271	Qualified property in fish in sea fishing context.	Referenced in argument regarding fish ownership.
Kearry v Pattinson [1939] 1 KB 471	Qualified property requires actual power and control over animals.	Applied to reject Plaintiff’s claim of qualified property in large lakes.
Elitestone v Morris [1997] 1 WLR 687	Tests for fixture vs. chattel: method and purpose of annexation.	Guided court’s analysis of solar panels’ status.
Holland v Hodgson (1872) LR 7 CP 328	Fixtures defined by degree of annexation and intention.	Used to assess whether solar panels were fixtures.
The Sheffield and South Yorkshire Permanent Benefit Building Society v Harrison (1884) 15 QBD 358	Composite nature of fixtures and machinery.	Supported Defendant’s argument that solar panels formed integral part of fixture.
The Metropolitan Counties Society v Brown (1859) 26 Beav 454	Assessment of machinery as fixtures considering entire unit.	Applied in solar panels fixture analysis.
Egon Zehnder v Tillman [2019] UKSC 32, [2019] 3 WLR 245	Clarification on Latin terms in animal ownership law.	Referenced to explain qualified property per industriam.

Court's Reasoning and Analysis

The court first addressed the legal nature of ownership in the fish stocks. It acknowledged the traditional rule that wild animals (ferae naturae) cannot be absolutely owned while alive but noted qualified property rights may exist in certain circumstances. The court accepted that fish in a commercial fishery, enclosed in isolated water bodies preventing escape, stocked and maintained by Plaintiff, could be regarded as subject to qualified property per industriam (by diligence and industry).

The court distinguished the fishery from rivers or open lakes where fish are wild and unowned. It found the fishery’s closed system, ecological controls, and commercial management sufficient to establish qualified property rights in the fish that could not pass through mesh barriers between pools. The court rejected Defendant’s argument that the size and nature of the lakes negated qualified property, holding that separation and control were the appropriate tests rather than immediate physical control.

The court further held that Plaintiff did not lose qualified property rights upon sale of the land, as the conveyance did not expressly transfer title to the fish. Analogies were drawn to domestic animals on land not passing automatically with land sale. The court concluded Plaintiff could maintain conversion claims for the fish stocks confined within the fishery.

Regarding the solar panels, the court applied established tests for fixtures: method and degree of annexation, and the purpose of annexation. It found the panels and their supporting wooden bases concreted into the ground formed a composite whole, the degree of annexation being substantial. The purpose was to supply electricity to the land’s restaurant, benefiting the property rather than the panels as chattels.

The court rejected Plaintiff’s emphasis on the personal electricity supply contract and the removability of panels alone, holding that the overall installation was intended as a fixture. Consequently, title to the solar panels passed with the land to Defendant, barring Plaintiff’s conversion claim regarding them.

Holding and Implications

Holding: The court ruled in favour of Plaintiff on the issue of the fish stocks, finding that Plaintiff retained qualified property rights in the fish confined within the commercial fishery and could maintain a claim in conversion. Conversely, the court ruled in favour of Defendant regarding the solar panels, holding them to be fixtures that passed with the land, defeating Plaintiff’s conversion claim as to those panels and associated equipment.

Implications: The decision affirms that qualified property rights may exist in fish stocks within a closed commercial fishery, distinguishing them from wild fish in open waters, and that such rights do not automatically pass with land unless expressly conveyed. The ruling clarifies fixture law application to solar panel installations, emphasizing composite structures and objective purpose. No new precedent was set beyond the adaptation of qualified property principles to commercial fisheries, and the decision directly affects the parties by confirming Plaintiff’s ownership of the fish stocks and Defendant’s ownership of the solar panels.