Specialist Topics
Foreshore, Seabed and Natural Water Boundaries
Foreshore and seabed
The foreshore is defined for Scotland (except Orkney and Shetland) as being the area of shore between the high and low water marks of ordinary spring tides, where the shore adjoins either the sea or the tidal part of a river flowing towards the sea. While the Ordnance Survey map does show high and low water marks, there is no presumption that the area between those marks is in fact foreshore; the line of the shore may have moved since the O.S. map was last updated or (in relation to tidal rivers) silting may have meant that formerly tidal areas are no longer tidal. Some authorities suggest that the definition of tidality depends on the salt content of the water, not just the fact of the recurrent raising and lowering of the water level.
The seabed (insofar as it forms part of Scotland) is defined as the area from the lowest point of the foreshore out to the limit of the United Kingdom’s territorial waters. It is assumed that the relevant boundary is 12 international nautical miles from the landward baselines used to measure territorial sea boundaries. For the purposes of the discussion and instructions which follow, the term seabed also includes:
Ownership
18.2 Crown rights and Crown grants
In the absence of evidence to the contrary, the foreshore and seabed are presumed to belong to the Crown. No recorded or registered title will be held by the Crown. The management of the Crown estate is the responsibility of the Crown Estate Commissioners.
As proprietor, the Crown may grant titles or leases of parts of the foreshore and seabed. Since the Crown owns without a recorded title, it follows that no evidence of prescriptive progress is required for a grant by the Crown of an interest in foreshore or seabed, provided there are no indications of conflicting title or adverse possession.
In Orkney and Shetland, the Crown is presumed to have a prior right to the seabed, but not to the foreshore (see Udal Tenure - the Foreshore)
The Crown’s right to divest itself of ownership is subject to the Crown’s duty to protect the rights of the public in the sea and tidal rivers. These rights are principally the right of recreation and navigation and the right to catch certain types of fish. Apart from salmon fishings, such rights fall within definition (g) of overriding interests in section 28(1) of the Land Registration (Scotland) Act 1979.
18.3 Barony titles
Barony titles are a form of Crown grant. Where barony lands adjoin the foreshore, the barony title is normally considered to be habile to include the foreshore (but not the seabed) even if this is not expressly stated in the title description. Prescriptive possession of the foreshore by the barony proprietor validates the title. However, in terms of section 1(4) of the Prescription and Limitation (Scotland) Act 1973 the relevant prescriptive period is 20 years. The question of prescriptive possession is discussed in Prescription, and the particular issues relating to barony titles are discussed in Barony Titles.
It is possible for titles other than those deriving from the Crown to include foreshore or seabed expressly in the title description. The normal rules of prescription apply to the validation of such titles, except that the relevant prescriptive period is 20 years. However, given the nature of foreshore and seabed and the fact of the public’s inalienable rights, it can often be difficult to show that the infeft proprietor has fulfilled the requirements for possession in section 1(1)(a) of the Prescription and Limitation (Scotland) Act 1973.
Different considerations apply to titles adjoining the coastline of Orkney and Shetland (see Udal Tenure - the Foreshore)
Section 14 of the Land Registration (Scotland) Act 1979 imposes specific duties upon the Keeper in relation to applications for registration which include interests in the foreshore. These duties are designed to protect the interest of the Crown against proprietors who seek to set up titles as a foundation for prescription against the Crown. The duties reverse the normal requirement (in Rule 21(2) of the Land Registration (Scotland) Rules 1980) that the Keeper must not inform proprietors if another party sets up a title which competes with their own.
In terms of section 14, if it appears to the Keeper that the subjects of an application consist wholly or partly of foreshore, unless it is clear that the title to the foreshore is beyond challenge (e.g. because it derives from the Crown or has already been fortified by prescriptive possession on a habile title) then the Keeper will exclude indemnity. The Keeper must inform the applicant that indemnity is to be excluded. If the applicant requests the Keeper not to exclude indemnity, the Keeper must then notify the Crown Estate Commissioners of this request.
Section 14(2) details the steps the Commissioners must then take if they wish to challenge the applicant’s title. On receipt of the notification, they have one month in which to give the Keeper written notice of their interest and three months in which to confirm to the Keeper that they are taking steps to challenge the title. If the Commissioners observe this procedure, the Keeper must continue to exclude indemnity in respect of the foreshore, until either the operation of prescription (coupled with satisfactory evidence of possession) permits the Keeper to remove the exclusion; or the Commissioners appear to the Keeper to be no longer challenging the title; or the Commissioners’ challenge has been unsuccessful.
The provisions of section 14 relate specifically to foreshore rather than seabed. However, the Keeper has voluntarily agreed with the Crown Estate Commissioners that he will apply the same provisions to interests in the seabed as are applied under section 14 to the foreshore.
The procedure under section 14 should not be followed in relation to titles in Orkney and Shetland which include foreshore, unless the landward proprietor's title derives from a Crown grant (see Udal Tenure - the foreshore)
The procedures which registration officers should follow when dealing with foreshore and seabed interests are noted on the next page: