Pralhad Kolhe brought the case while he illegally blocked public access to the harbour
A tiny Scottish fishing community is under attack after a judge ruled last week that families who have fished from Cove Harbour for over 400 years must remove their boats and equipment - which means they will not be able to earn their livelihood.
Picture from Press & Journal story June 2 2018 - Decision to be made on the future of Cove Harbour
The judge made the ruling in favour of a plastic surgeon, who makes his money in a BMI private hospital in Aberdeen doing tummy tucks etc, who bought the land in 2001 and in 2014 decided he wanted the fishermen stopped from earning there living from Cove Harbour.
The Press & Journal reported on the 13th July 2018
"In his judgement, Sheriff Miller has ordered the owners of the boats to remove them as they have “no right” to “occupy and use” the land owned by Mr Kolhe.The fishermen now have 28 days to remove their small fleet of traditional vessels and equipment from the harbour.
In his judgment Sheriff Miller said fishing activities had been shown to have been carried on from the harbour “throughout living memory and beyond”.
However, he found that the fishermen had stored boats there as past of a “local custom” with “no formal system” in place for the allocation of berths.He said no permission had ever been sought by the locals for leaving their creel boats on Mr Kolhe’s land."
No previous owner has prevented the fishing operations being conducted on this land, this way, for the past 400 years and as there had never been any formal set up this strengthens the local fishermen's case.
Local woman Claire Adam explains in her petition on Change dot org
""it will be impossible to fish for a living out of the harbour due to the practicalities; storing a boat elsewhere, driving it to the shore on a road trailer, transferring to a beach trailer, completing the launch, parking up the car and trailer. Multiply this by the ten or so fishermen that work their pots from Cove. In addition if cars and vans are found to be parking in the harbour area, proceeding will be raised to prevent this! Obviously this ultimatum will also have huge implications for the folks who utilise the harbour for casual and recreational users."
The plastic surgeon bought the land knowing the fishermen's boats, equipment and huts were on the land and he made no move to get the seller to sort out this obvious un-vacant possession when he bought the land, which both should have done at the time.
Mr Khole refused to discuss any of this with the fishermen despite their repeated attempts to do so via his lawyer.
Instead Mr Khole, illegally put up a sign claiming the harbour was private property and illegally blocked the access road to the harbour and pier with boulders since 2015 - to try to prevent the fishermen from parking their cars or anyone getting vehiclular access - despite Kincardineshire council and local people paid together, years earlier, to have a metal road built to ensure ease of access for everyone.
(Picture from the fishermen's facebook page)
"that large boulders which were placed at the entrance to the harbour in 2015 by Mr Kolhe to prevent vehicular access must now also be removed within 28 days as they were obstructing a public right of way."
Cove Harbour is a natural inlet, used continuously for over 400 years, allowing fishermen "to beach their vessels and to land catches as well as provide areas to store, dry and maintain their fishing gear" wrote Jim Adam from the Cove Fishermen’s Association in the Aberdeen Voice .
It costs up to £20,000 to buy the equipment to run each operation, and it is these fishermen who continuously clear the debris when storms strike to ensure the beach is clear for everyone to use.
Another petition, set up by Claire Adam explains
"Landowner Pralhad Kohle is trying to prevent fishermen at Cove Bay from using their boats, as people in the community have done since the 1790s. He is trying to evict them and has blocked access with boulders. Cove Bay would not be the place that it is without the harbour. Cove was built and founded on fishing and removing the boats would remove the heart of the village. It would take away people's livelihoods and remove a natural resource from future generations. The local community deserve to keep their heritage, and be allowed to enjoy it."
The plastic surgeon first ordered the fishermen, in April 2014, to
"remove their vessels and all associated equipment within 14 days"
He then sent the fishermen another lawyer's letter, in August 2015, demanding the remove all their fishing equipment claiming the fishermen
"have no rights or title to store fishing vessels or equipment"
with Mr Khole, stating, in the same letter, there shall be no parking of vehicles in the harbour area otherwise he:
“will have no alternative but to raise proceedings to prevent this.”
to give him vacant possession of the land - but that should have been established and challenged when he purchased the land in 2001.
He also threatened they would be banned from parking their cars at the harbour.
Despite the ruling by the Judge - cases like this have been won on appeal - and in this case there are two important principles of law which apply - proving this is a wrongful judgement.
The principle of Long Usage
The judge did not make clear what the principle of Long Usage is, when concerned with use of land - the principle is clear
"It is a broad principle of property law that, if something has gone on for a long time without objection, whether it be using a right of way or occupying land to which one has no title, the law will eventually recognise the fact and give the person doing it the legal right to continue"
There can be no more clear cut case for the principle of long usage to apply in this case - 400 years and “throughout living memory"
Customary Rights in Law
Customary rights apply when
"Something which has been practised since time immemorial by reference to a particular locality may acquire the legal status of a custom, which is a form of local law".
"It is known in case law as Customary Rights "Customary rights". Something which has been practised since time immemorial by reference to a particular locality may acquire the legal status of a custom, which is a form of local law.The legal criteria defining a custom are precise. The most common claim in recent times, is for customary rights to moor a vessel.The mooring must have been in continuous use for "Time Immemorial" which is defined by legal precedent as 12 years (or 20 years for Crown Land) for the same purpose by people using them for that purpose."
"Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law."
Again, in this case Customary Rights most definitely apply as this has been the continuous practice for over 400 years - from "time immemorial".
It is clear the fishermen, like Jim Adam, in the picture below, have common law and long usage land rights in this case.
Picture from Press & Journal story July 13, 2018 - Boats at centre of long-running battle will have to be removed as ruling on historic Cove Harbour is issued
Rich people use their money to go to court, in cases like this, in an attempt to remove everyone else's rights (because they can afford it) - relying on our lack of money and knowledge of our rights and judges removing our rights for them on the same basis).
These families cannot afford to fight the judge and the landowner to appeal this decision, especially now their ability to earn their livelihood has been wrongly removed by the judge, where the fisherman have been left with a sizeable legal bill still to pay.
These fishermen desperately need public support - and probably public donations to help them appeal this judgement and win the fight for their Customary Rights and land law established right of Long Usage - which does not just affect this tiny Scottish community but everyone in Scotland if this wrongful judgement is allowed to go unchallenged.
If you agree this judgement is obviously completely wrong, please share this story, with everyone you know, to raise awareness, and lobby your councillor, your MSP and your MP - no matter where you live - as this decision will be used as the legal precedent across Scotland to remove customary rights and land use rights from everyone in Scotland.
It is important your MSP is asked to get involved as the Land Reform Act in Scotland review admitted this area is not clear enough and needs updated - to ensure our customary rights are preserved.
Please take five minutes and write to or phone your MSP and MP and demand they join the fight for the Cove Harbour fishermen's right to earn a livelihood, as is their right.
This decision, could be used by fracking companies along with every land owner, private or corporate, to also remove our right to use the land we live off and use right now, right up to the foreshores of Scotland so they can frack (which poisons the air, the land, the water and all life, as a court confirmed just weeks ago, fracking is not banned in Scotland) - or block us from using land as we always have done, despite the Land Reform (Scotland) Act.
Send your MSP and MP and every councillor in your area a link to this story, or a hard copy - because believe it or not, they will most likely not know our rights either - in this case - and it is important they are informed to ensure they also join the fight and do their job by putting pressure on senior members of their political party and the Lord Advocate, whose job it is to protect our customary rights.
The fishermen and their family's are completely physically, emotionally, mentally and financially exhausted and need everyone in Scotland's support to appeal this decision for future generations sake in every community of Scotland - they only have four weeks to appeal.
But I would suggest, if this case is not won on appeal, it is taken to the Supreme court, which means the fishermen will need our continued support - because any court removing our customary rights is attacking our human rights too.