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*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