Does Nutrient.io keep footnotes out of body flow and linked to their references?

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.


143

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


145


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.




146


HELENA M. CROYDE


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 Braithe Estuary Order 1974, art. 6(3). The threshold is discussed at the fourth meeting, ibid., 5.
12 Braithe 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.

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