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Foreshore and Seabed DP SCOTTISH LAW COMMISSION Discussion Paper No 113 abcdefgh Discussion Paper on Law of the Foreshore and Seabed April 2001 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission EDINBURGH: THE STATIONERY OFFICE £16.00 0 10 888025 7 The Scottish Law Commission was set up by section 2 of the Law Commissions Act 1 1965 for the purpose of promoting the reform of the law of Scotland. The Commissioners are: The Honourable Lord Gill, Chairman Patrick S Hodge, QC Professor Gerard Maher Professor Kenneth G C Reid Professor Joseph M Thomson. The Secretary of the Commission is Miss Jane L McLeod. Its offices are at 140 Causewayside, Edinburgh EH9 1PR. The Commission would be grateful if comments on this discussion paper were submitted by 31 July 2001. Comments may be made on all or any of the matters raised in the paper. All correspondence should be addressed to: Mrs Judith A Morrison Scottish Law Commission 140 Causewayside Edinburgh EH9 1PR Tel: 0131 668 2131 Fax: 0131 662 4900 E-mail: [email protected] NOTES 1. Copies of comments received may be (i) referred to in any later report on this subject, (ii) made available to any interested party on request, and (iii) summarised on our website, unless consultees indicate that all or part of their response is confidential. Such confidentiality will of course be strictly respected. 2. For those wishing further copies of this paper for the purpose of commenting on it, the paper may be downloaded from our website at www.scotlawcom.gov.uk, or purchased from The Stationery Office Bookshops. 1 Amended by the Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999 (S.I. 1999/1820). CONTENTS Paragraph Page PART 1 – INTRODUCTION Our Remit 1.1 1 The Land Reform (Scotland) Bill 1.12 3 Acknowledgements 1.16 5 PART 2 – DEFINITIONS The Seabed - territorial waters 2.1 6 Question for consideration 2.6 7 The Seabed - public rivers 2.7 7 Tidality - the problem of definition 2.10 8 Questions for consideration 2.17 9 Summary 2.18 9 The foreshore 2.19 9 Question for consideration 2.25 10 PART 3 - CROWN INTEREST Introduction 3.1 11 Ownership 3.2 11 Ability to transfer or lease 3.5 12 Management 3.9 13 Accountability 3.12 14 Nature of the rights 3.20 16 Questions for consideration 3.23 16 PART 4 - PUBLIC RIGHTS Introduction 4.1 17 Fishing/Shellfish 4.2 17 Navigation 4.11 20 Recreation 4.25 24 Other rights 4.31 26 Commercial use 4.32 26 Protection of public rights 4.33 26 Access 4.34 27 Public rights and access rights 4.40 28 Questions for consideration 4.45 29 Extinction of public rights 4.46 30 Questions for consideration 4.54 31 i PART 5 - RESTRICTION OF THE PUBLIC RIGHTS Introduction For military purposes 5.1 32 Summary 5.2 32 An anomaly 5.6 33 Civil aviation - introduction 5.7 34 Power to make byelaws 5.11 34 5.12 35 PART 6 - CROFTING AND UDAL LAND Crofting - an introduction 6.1 36 The history of gathering seaweed 6.6 36 Regulation of crofting pertinents 6.9 37 Commercial use 6.15 39 Servitude of wreck and ware 6.21 40 Additional rights not servitudes 6.22 40 Conclusion 6.23 41 Questions for consideration 6.24 41 Udal law - an introduction 6.25 41 Udal law of the foreshore 6.29 42 Questions for consideration 6.34 44 Udal law of the seabed 6.35 44 PART 7 – HARBOURS Introduction 7.1 46 Ownership of the seabed 7.2 46 Question for consideration 7.8 47 Moorings 7.9 47 PART 8 - PROPERTY – CONVEYANCING PROBLEMS Introduction 8.1 48 Reclamation 8.2 48 Question for consideration 8.7 49 Standard rules of construction of deeds 8.8 49 Question for consideration 8.11 50 Land Register 8.12 50 PART 9 - SUMMARY OF QUESTIONS 51 APPENDIX 1 - STATUTORY CONTROLS AFFECTING THE FORESHORE AND SEABED 54 ii APPENDIX 2 ­ COMPARATIVE LAW 64 APPENDIX 3 - HARBOUR AND LOCAL AUTHORITIES WHO ASSISTED WITH OUR RESEARCH 103 iii TABLE OF ABBREVIATIONS Publications Aurrocoechea and Pethick, The Coastline: its Physical and Legal Definition I Aurrocoechea, and J S Pethick, The Coastline: its Physical and Legal Definitions (1986) 1 International Journal of Estuarine and Coastal Law Clyde and Edwards, Judicial Review The Rt Hon The Lord Clyde and Edwards D J, Judicial Review, Scottish Universities Law Institute (2000) Craig, Administrative Law Craig PP, Administrative Law (4th ed) (1999) Gordon, Scottish Land Law W M Gordon, Scottish Land Law (2nd Ed) (1999) 49 Halsbury's Laws of England Halsbury's Laws of England Volume 49(2) (4th ed) Reissue (1997) Hansard 1886 304 Parliamentary debate on the passage of the Crofters Holding (Scotland) Act 1886, Hansard 1886 304 April 6 925-941 Land Reform, Proposals for Legislation Scottish Executive White Paper, Land Reform: Proposals for Legislation (July 1999) Lordon, Crown Law Paul Lordon QC, Crown Law (1991) LRPG, Identifying the Problems Scottish Office Land Reform Policy Group, Identifying the Problems (February 1998) LRPG, Identifying the Solutions Scottish Office Land Reform Policy Group, Identifying the Solutions (September 1998) LRPG, Recommendations for Action Scottish Executive Land Reform Policy Group, Recommendations for Action (January 1999) Marsden, The Marginal Seabed Marsden G, The Marginal Seabed: United Kingdom Legal Practice (1981) Mitchell, Constitutional Law J D B Mitchell, Constitutional Law (2nd Ed) (1968) O'Neill, Judicial Review – A Practitioner's Guide O'Neill A, Judicial Review – A Practitioner's Guide (1999) iv Napier Commission Report of the Napier Commission 1884, Report and Minutes of Evidence C3980, London (HMSO) Registration of Title Practice Book Davis I and Rennie A (eds) Registration of Title Practice Book (2nd Ed) (2000) Reid, Property Reid K G C et al, The Law of Property in Scotland (Edinburgh, 1996) (being an updated reprint of the Laws of Scotland: Stair Memorial Encyclopedia Vol 18 (1993)) Rowan-Robinson and McKenzie Skene, Countryside Law in Scotland Rowan-Robinson J and McKenzie Skene D W (eds), Countryside Law in Scotland, Edinburgh (2000) Shennan, The Origins of the Modern European State 1450 -1725 J H Shennan, The Origins of the Modern European State 1450-1725 (1974) Scot Law Com No 168 Scottish Law Commission, Report on the Abolition of the Feudal System (Scot Law Com No 168) (1999) Scot Law Com No 176 Scottish Law Commission, Sixth Programme of Law Reform (Scot Law Com No 176) (2000) Scot Law Com No 181 Scottish Law Commission, Report on Real Burdens (Scot Law Com No 181) (2000) Stair Memorial Encyclopaedia The Laws of Scotland: Stair Memorial Encyclopaedia (25 vols, 1986-1995) Sparkes, A New Land Law Sparkes P, A New Land Law (1999) Sunkin and Payne, The Nature of the Crown Sunkin and Payne (eds), The Nature of the Crown (1999) v Part 1 Introduction 1. Our Remit 1.1 In late 1999 we received a reference1 from the Deputy First Minister and Minister for Justice, Mr Jim Wallace QC MP MSP, in the following terms: "Taking account of the land reform action plan, to consider the existing law of the foreshore and seabed, and to advise on possible reforms with a view to improving clarity and consistency.". 1.2 We have been requested by the Scottish Executive to report on the reference by 31 December 2002. 1.3 The terms of our reference require us to approach our review of the law of the foreshore and seabed as an integral part of the land reform action plan.2 Accordingly it is appropriate that we set out briefly the background to the action plan as it relates to the present review. 1.4 On 30 October 1997 the Secretary of State established the Land Reform Policy Group with the following remit: "To identify and assess proposals for land reform in rural Scotland, taking account of their cost, legislative and administrative implications and their likely impact on social and economic development of rural communities and on the natural heritage". 1.5 The Land Reform Policy Group (LRPG) considered a number of wide-ranging matters relating to land use and tenure in Scotland. At an early stage the LRPG recognised that such a comprehensive review of land tenure should include a detailed consideration of the law of the foreshore. In their first consultation paper the LRPG stated: "A more specific issue relates to the foreshore. Sometimes this is owned by the Crown, sometime by private landowners. If a landowner has a title which covers the foreshore, this carries the right to control how others use it. However the landowner's rights are subject to public rights over the foreshore, particularly in connection with navigation and fishing. The Group recognises that it would be a serious step to reduce or remove an owner's right to preserve the interest associated with the landholding.".3 1.6 The matter was put out to public consultation in February 1998 and respondents were specifically asked: "Could a strengthening of public rights over the foreshore be justified?".4 1 Under the Law Commissions Act 1965, s 3(1)(e). 2 LRPG, Recommendations for Action. 3 LRPG, Identifying the Problems, para 6.11. 4 LRPG, Identifying the Problems, para 9.1. 1 1.7 The responses to the first consultation paper were analysed and a more detailed proposal for a pattern of land ownership promoting sustainable development was published in September 1998.5 The key aims of this vision were stated as: • "increased diversity in the way land is owned and used, as the best way of dealing with damage to the local community or environment which can result from monopoly ownership, and of encouraging the fullest possible exploitation of rural development opportunities; and • increased community involvement in the way land is owned
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