Specialist Topics
Foreshore, Seabed and Natural Water Boundaries
Foreshore
When the subjects of an application adjoin the sea or a tidal river, it is not always clear from the titles whether the foreshore is intended to be included. If the description expressly narrates that the foreshore forms part of the subjects (or is perilled on a plan which clearly includes the foreshore) then there is no difficulty of identification. More commonly, however, some element of interpretation of the description is required.
If there is nothing else in the description to indicate the contrary, where a property is described as being bounded by the ‘sea’ or (tidal) ‘river’ or ‘lowest ebb’, the boundary can be taken to be the low water mark of ordinary Spring tides and the foreshore will be included. Conversely, if the boundary is described as the ‘full sea’ or ‘sea flood’ or ‘flood mark’, then the boundary can be taken to be the high water mark of ordinary Spring tides and the foreshore will be excluded. Where the subjects are described as being bounded by the ‘beach’ or ‘seashore’, there is doubt as to whether the foreshore is included. Some authorities (see Stair Memorial Encyclopaedia vol. 18 paragraph 315) suggest that doubtful titles will be interpreted to exclude foreshore when they derive from the Crown, but in favour of the grantee when they derive from a subject proprietor. This view, however, should not necessarily be taken to be settled law. Moreover, different considerations apply to properties in Orkney and Shetland (see Udal Tenure - the Foreshore)
Plans registration officers have standing instructions to refer through the EBM procedure any cases where foreshore may be included. The legal registration officer should take into account the whole title descriptions and circumstances before coming to a view as to whether any part of the foreshore is included. If there is any doubt as to whether the titles are habile to include the foreshore, the case should be referred to the Legal Services.
Once the decision has been taken that the title includes foreshore, the case will be categorised at X3 and settled in Registration Services. Staff in Registration Services should therefore note the following points.
If it can be established that the subjects include an interest in the foreshore, the registration officer must come to a view as to whether the title is beyond challenge. As noted above, a title which derives from a Crown grant expressly including foreshore can be held to be beyond challenge, provided there is no evidence of competing title or adverse possession. For all other titles, however, the registration officer will require to be satisfied that:
It is impossible to give hard and fast rules as to what constitutes sufficient evidence of prescriptive possession. Clearly the possession must include the consistent exercise of acts which can be attributed only to outright ownership, not merely to the exercise of a servitude right or the exercise of those rights available to the public at large. The acts of possession must relate to the whole area of foreshore claimed, and must evidence exclusive ownership (but subject to the exercise by the public of the rights which the Crown retains on their behalf).
If the registration officer considers that the evidence produced may fulfil the requirements, the case may, if necessary, be referred to Legal Services for advice. In the majority of cases, however, the officer will have no option but to exclude indemnity in respect of the lack of evidence of prescription having fortified the title insofar as it relates to the foreshore. This exclusion of indemnity should be entered in the proprietorship section of the title sheet.
For properties in Orkney and Shetland, prescription against the Crown is not relevant except where the landward title derives from the Crown (see Udal Tenure - the Foreshore)
Where indemnity is to be excluded, the legal registration officer must inform the applicant’s solicitors in writing that the Keeper intends to exclude indemnity in respect of their client’s entitlement to or right in the foreshore. The letter should include the proposed wording of the exclusion of indemnity, and should make it clear that, if the applicant requests the Keeper not to exclude indemnity, the Keeper will follow the procedure set out in section 14 of the 1979 Act. The letter should draw the solicitors’ attention to paragraphs 6.83 and 6.84 of the Registration of Title Practice Book. The normal timescale for response to a requisition should be allowed. The Keeper’s requisitioning policy is set out in the chapter covering Documents and Evidence.
If the applicant’s solicitors confirm that their client agrees to the exclusion of indemnity (or if they fail to respond within the permitted timescale), the registration officer should proceed to register subject to the exclusion of indemnity. As part of the EBM procedure, plans and legal registration officers should bear in mind the mapping considerations noted below.
If the applicant’s solicitors request the Keeper not to exclude indemnity, the legal registration officer should send a duly completed L16 Notice to the Crown Estate Commissioners. An extract from the DMS showing the extent of the foreshore in question must be attached to the Notice. (As noted above, in Orkney and Shetland this procedure applies to only a proportion of titles).
If
(a) the Commissioners reply within one month of the date of receipt of the Notice (N.B. not one month of the date the registration officer sends it), confirming that they have an interest in the area of foreshore in question and
(b) the Commissioners confirm within three months of the date of receipt of the Notice (N.B. not three months of the date the registration officer sends it) that they are taking steps to challenge the applicant’s title,
then the Keeper will proceed as above to issue a registered title subject to an exclusion of indemnity.
If the Commissioners fail to reply within the timescales noted, the Keeper may assume that the Crown has no interest in the area of foreshore in question. In that event, any decision on whether to exclude indemnity will depend on the normal rules of prescription in section 1(1) of the Prescription and Limitation (Scotland) Act 1973. However, the question of prescriptive possession must be considered in the light of the comments noted under ‘Prescription’ above.
18.9 Mapping considerations
As with other natural water boundaries, titles including the foreshore give rise to two main difficulties in relation to mapping. The first is in establishing where the seaward boundary lies at the time of the foundation writ, particularly since the tide lines shown on the ordnance map may not reflect the up to date position. The second is that the operation of alluvio or avulsio may alter the line of the low water mark. The authorities differ in their view of the effect of alluvio and avulsio on the extent of a registered title. The legal and plans registration officers should therefore take into account the instructions relating to natural water boundaries when deciding how to map the registered title.