(c) The Proposed Respondents will say that the 1868 Act permitted the Board of Trade to grant the exclusive right of several fishery "subject to any restrictions and exceptions contained in the order". Article 5 of the 1962 Order is one such exception and the restriction simply provides that the Grantee shall not exercise the right of several fishery themselves. It is therefore incorrect to say that the order is a nullity because section 40 of the 1868 Act and Article 5 of the 1962 Order effectively cancel each other out.

(d) The argument put forward by the proposed Claimants also ignores the fact that a several fishery is not an exclusive right for the owner to take all the fish in a given place, but is a divisible right of which the holder has the ability to deal with as it sees fit. In particular reference is made to the Notes for Guidance relating to Several and Regulating Orders issued by DEFRA dated August 2003 (DEFRA document FIS3). A copy of that document is attached to this letter. Under the paragraph entitled "What powers are conferred by Several Rights?" on page 2 it is stated that s.2 of the 1967 Act gives the Grantees of the Order exclusive rights to fish, dredge or take within a defined area shellfish of a description to which the Several Order applies. It specifically states that the right of several fishery is a property right and may be leased or transferred. In exercising this right the Grantees may create and maintain shellfish beds and may collect, move or deposit shellfish as they see fit within the defined area. The Order which confers this right will set out the extent of such powers and any condition as to which they are subject.

Whilst it is accepted that the guidance notes relate to Orders made under s.2 of the Sea Fisheries (Shellfish) Act 1967, it will be argued by the Proposed Respondents that the terms of s2 are for these purposes identical to those contained within s.40 of the 1868 Act.

(e) The Proposed Respondents would emphasise that the existence of Several Orders with power to grant sub-leases and conditions whereby the Grantees are not to exercise the rights themselves are not unique to the 1962 Order. Similar provisions are contained within other Orders granted under the 1967 Act, including the Wash Fishery Order 1992.

(f) The Proposed Respondents do not accept that the restrictions and exceptions contained within Articles 16 and 18 reserve the rights as set out by the proposed Claimants in the Letter.

(g) The Proposed Respondents will state that the natural meaning of the reference to restrictions and exceptions in section 40 of the 1868 Act is to allow for limitation on, and only on, those statutory rights and privileges of several fishery listed in section 40.

(h) In any event the Council are put to strict proof as to their interest in the relevant land and the existence of the rights which they purport to exercise pursuant to the reservation contained in Article 18.

(j) Further, or in the alternative, the Proposed Respondents will argue that any right or reservation which may have been created under Article 18 of the 1962 Order was personal to the Council. Although it is not clearly stated in the Letter before Claim it is the Proposed Respondents' understanding that the marina will be constructed by the Anglesey Boat Company Limited, which is a private limited company, who will acquire title to the Council's property, which is the subject of this dispute. On the basis that Article 18 specifically does not relate to the reservation of any estate right, then the Proposed Respondents would state that any reservation that may exist in relation to the operation of Article 18 of the 1962 Order would not pass to the Anglesey Boat Company Limited as the builder and operator of the proposed marina.

(k) The Proposed Respondents would state that Articles 16 and 18 of the 1962 Order do not qualify the operation of section 7(4) of the Sea Fisheries (Shellfish) Act 1967.

(l) It is a fundamental principle of constitutional law that primary legislation is supreme and prevails over and governs all delegated legislation howsoever made. The Order is a form of delegated legislation made by Statutory Instrument. The Order must therefore give way to the provisions in primary legislation, including those provisions within the 1967 Act itself. It follows that for the terms of the Order to qualify section 7(4) of the 1967 Act such qualification must be provided for by the terms of the Act itself.

(m) It is not accepted that section 7(4) protects only such rights of several fishery as are conferred upon the Sea Fisheries Committee and/or Mr Wilson and Extramussel, on the basis that those rights were conferred subject to the rights of the proposed claimants under Article 18. The rights reserved under Article 18 only serve to limit the fishing rights of the Grantee and Article 18 can at most only protect the rights that the Council otherwise already has.

(n) Sub-section 7(4) applies to "any person" subject to express and limited exceptions. The exceptions expressly contained in sub-section 7(4) are for (i) acts done by grantees, their agents or employers (or owners in relation to private oyster beds); (ii) cases where the limits of a fishery are not marked or known (sub-section 7(5)). Furthermore (iii) sub-section 4 provides for offences not to apply to any part of a fishery described for the purpose of sub-section 7(4) in the Order. Parliament could easily have provided for a further exception for actions done pursuant to savings made in grants under section 40 or generally in relation to landowners of several fisheries. Parliament chose not to do so.

(o) There is a general rule of construction that where Parliament has provided for exceptions to criminal offences further implied limitations or qualifications will not be read in. Furthermore it would make a nonsense of the legislation if having granted a several fishery to protect and maintain shellfisheries it permitted landowners to then damage or destroy them with impunity Furthermore there is a presumption that the general rules of criminal law apply: Bennion statutory interpretation (London 2002 section 334 page 923). A clear intention to exempt a person from the criminal law must be shown to exist.

(p) In relation to the purported reservations under Article 18 exempting the Council from the provisions of section 7(4), it cannot be the case, for the reasons mentioned above, that any purported restrictions under Article 18 can exempt third parties from compliance with section 7(4), namely the fact that any offence under section 7(4) would be committed by the Anglesey Boat Company Limited or their servants or agents.

(b) any rights enjoyed by the Committee and/or Mr Wilson and/or Extramussel are subject to the rights of the proposed Claimant to build upon or permit building upon the marina land; and

(c) that section 7(4) of the 1967 Act does not render it unlawful for the proposed Claimant, or any person permitted by them, to build upon the marina land.