Specialist Topics

Foreshore, Seabed and Natural Water Boundaries

Seabed (including alveus of tidal rivers)

18.10 Identification

As with foreshore, it may not always be clear whether an application for registration includes an area of seabed or tidal riverbed. Typical examples might include a conveyance of the solum on which the pillars of a bridge or pier are erected, or a lease for fishing or mineral exploitation. Even where there is a deed plan, given that the low water mark shown on the ordnance map may not reflect either the current position or the position at the time that the foundation writ for the interest was granted, if the interest lies close to the shore or in a river or estuary it may be difficult to say with certainty whether seabed is affected. Where there is any doubt as to the interpretation or extent of the titles, the application should therefore be referred to the Legal Services.

18.11 Registrability

The registration of interests in the seabed raises two significant questions in principle:

• The Land Register is described in section 1(1) of the Land Registration (Scotland) Act 1979 as a register of ‘interests in land’. In section 28 of that Act, the term ‘interest in land’ means any estate, interest, servitude or other heritable right in or over land (short leases being excepted), and ‘land’ is defined as including land covered with water. On one view, the seabed is an obvious example of an area of ‘land covered with water’. On another view, it is less clear that the seabed falls within the statutory definition. This latter view is best illustrated by the judgment of Lord Wheatley in Argyll and Bute District Council v Secretary of State for Scotland (1977 SLT 33). He argued that, while the wording of each statute has to be construed in its own context, the thread running through the planning statutes suggests that ‘land covered by water’ is tidal land (i.e. land sometimes covered by water), not seabed (i.e. land perpetually covered by water).

This decision predates the 1979 Act and does not relate expressly to the conveyancing or registration statutes, but it does call into question the extent to which the Keeper could or should register titles to the seabed below the level of the tide, since such areas may not constitute ‘land’ as defined in the 1979 Act.

• The Land Register only affects those areas of Scotland which fall within operational counties. The operational areas are defined in relation to county divisions of the Sasine Register, and these divisions in turn depend for the most part on the corresponding former local government counties. It is not clear whether seabed or riverbed below the line of the foreshore was included in the local government counties. Even if such interests do fall within the definition of ‘land’ in the 1979 Act, they may not therefore fall within any of the operational areas for the Land Register.

In the absence of conclusive authority on these points, the Keeper has in practice adopted a pragmatic approach to applications for registration where the area of seabed is adjacent to the foreshore and physically connected with land (e.g. by a pier or bridge). Where such an interest is included in an application for registration, the plans or legal registration officer should refer the case to a senior caseworker, who will decide whether this pragmatic approach is appropriate in that particular case. Any application relating to an interest which is offshore (rather than attached to land or foreshore) must be referred to the Legal Services.

18.12 Prescription

The difficulties noted for foreshore apply also to seabed and the alveus of tidal rivers. (See previous paragraph also titled Prescription)

18.13 Notification

Since the Keeper has voluntarily agreed with the Crown Estate Commissioners that he will treat section 14 of the Land Registration (Scotland) Act 1979 as if it applied to seabed as well as foreshore, the procedures listed under ‘Notification’ for foreshore should be applied also to any interest in the seabed or the alveus of a tidal river.

However, the applicant’s solicitor may not, of course, agree that notification to the Crown Estate Commissioners is permissible, since a strict reading of section 14 in conjunction with Rule 21(2) of the Land Registration (Scotland) Rules 1980 may prohibit the Keeper from making the notification. The advice of Legal Services must therefore be sought before any approach is made to the applicant’s solicitors or to the Crown Estate Commissioners.

18.14 Mapping considerations

The mapping considerations for foreshore should be borne in mind in relation to any interest whose initial extent or future fluctuation may be affected by alteration of the extent of the foreshore, or the extent to which a river is tidal. Special considerations apply to any interest in the seabed which adjoins the foreshore of Orkney or Shetland. All such cases should be referred to Legal Services.

18.15 Removal of exclusion of indemnity

Apart from titles which derive from the Crown and have subsequently been possessed openly and without challenge, many registered titles which include an interest in the foreshore or seabed will be subject to an exclusion of indemnity. In the event of an application for removal of that exclusion of indemnity, three considerations should be borne in mind:

• Where notification has been made to the Crown Estate Commissioners under section 14 of the Land Registration (Scotland) Act 1979, and the Commissioners have informed the Keeper that they are taking steps to challenge that title, the Keeper may not remove the exclusion of indemnity unless either the Keeper has received evidence that the Commissioners’ challenge has proved unsuccessful, or the Keeper is convinced that the Commissioners have abandoned their challenge, or the registered title has been put beyond challenge by the operation of prescription.

• In a question with the Crown, the relevant prescriptive period is 20 years. In a question with any other party, the relevant prescriptive period is 10 years.

• The operation of prescription requires more than merely the efflux of time. An exclusion of indemnity cannot be removed unless the Keeper is convinced that the interest has been possessed by the registered proprietors and their predecessors openly, peaceably and without judicial interruption throughout the prescriptive period. 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).

The nature of the evidence which may be acceptable will depend on the circumstances of an individual case. Applications for removal of the exclusion should be referred to a senior caseworker, who will seek the advice of Legal Services as appropriate.

This topic contniues …