UK Coastal Zone Law Notes

2   PROPERTY IN THE COASTAL ZONE


 References 
 1   Foreshore and Sea Bed Ownership 
 2   Public and Private Rights 


Extended Contents

References

  • W Howarth, Wisdom's Law of Watercourses, 5th Edn, ch 2
  • A Wharam, The Seashore, Journal of Planning and Environment Law (1974) 705
  • FE Dowrick, Submarine Areas around Great Britain, Public Law (1977) 10
  • J Gibson, The Ownership of the Sea Bed under British Territorial Waters, International Relations 6 (1978) 474
  • P Jackson, Alluvio and the Common Law, Law Quarterly Review 99 (1983) 412
  • P Sinclair, Aspects of the Law of Anchorage, Conveyancer 64 (2000) 82 and 65 (2001) 475

1   Foreshore and Sea Bed Ownership

 1.1   The Crown's prima facie title 
 1.2   Crown grants, leases and licences 
 1.3   Accretion and encroachment 


1.1   The Crown's prima facie title

The claim that the Crown is the owner of the foreshore and the sea bed under territorial waters was argued by Thomas Digges in 1568-69, and supported by Robert Callis and Sir Matthew Hale in the seventeenth century. It was resurrected in the nineteenth century, when the land properties of the Sovereign were transferred to the management of the Commissioners of Woods, Forests and Land Revenues (now the Crown Estate Commissioners) by the Crown Lands Acts 1810 and 1829.

In A-G v Emerson [1891] Appeal Cases 649, the House of Lords confirmed that the Crown is prima facie the owner of the foreshore. Lord Herschell stated at p 653:

"It is beyond dispute that the Crown is prima facie entitled to every part of the foreshore between high and low-water mark, and that a subject can only establish a title to any part of that foreshore, either by proving an express grant thereof from the Crown, or by giving evidence from which such a grant, though not capable of being produced, will be presumed."

The Crown's right to the territorial sea bed in England and Wales has not been judicially decided, but, in Scotland, Lord Dunpark stated in Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1977 Scots Law Times 19, at p 20:

"the seabed within the territorial limit and the foreshore are ... the property of the Crown (except in so far as the Crown may have made grants of the foreshore to individuals) as part of the realm and are held by the Crown for the defence of the realm and for the benefit of its subjects."

The Crown's ownership of the sea bed is based on the royal prerogative (ie sovereignty) rather than feudal tenure, and includes the right to grant leases and licences: Shetland Salmon Farmers v Crown Estate Commissioners 1991 Scots Law Times 166.

The principle of Crown sea bed ownership was also unquestioned in England in Lonsdale (Earl) v A-G [1982] 1 Weekly Law Reports 887, and is strongly supported by the Australian case of New South Wales v Commonwealth of Australia (1975) 135 Commonwealth Law Reports 337.


1.2   Crown grants, leases and licences

The Crown Estate Commissioners retain virtually the entire territorial sea bed and about half the foreshore. Although they are permitted to dispose absolutely of Crown property, they rarely do so now, but instead grant leases for up to 150 years (Crown Estate Act 1961, s 3, amended 1983). Licences are granted for minor works and for dredging. In Scotland, the Crown also owns coastal salmon fishings and oyster or mussel beds within the territorial limit, but much of the foreshore in Orkney and Shetland is privately owned under udal law. The Commissioners' annual revenue includes about £50 million from foreshore and seabed property and from dredging licences.


1.3   Accretion and encroachment

The foreshore is a "movable freehold", and property rights follow changes in high and low-water marks caused by accretion or encroachment, provided that the process is gradual and imperceptible: Scratton v Brown (1825) 107 English Reports 1140; Gifford v Yarborough (Lord) (1828) 130 English Reports 1023; Re Hull and Selby Ry Co (1839) 151 English Reports 139; Southern Centre of Theosophy v South Australia [1982] Appeal Cases 706.

If, however, tidelines are changed suddenly (eg by land reclamation) property boundaries remain as before, provided that the original positions can be determined: A-G v Reeve (1885) 1 Times Law Reports 675; A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] Appeal Cases 599. If gradual and imperceptible accretion is unintentionally caused by coast protection work, property boundaries change: Brighton and Hove General Gas Co v Hove Bungalows Ltd [1924] 1 Chancery 372.


Contents

2   Public and Private Rights

 2.1   Public right of navigation
 2.2   Public and private rights of fishery
 2.3   Other public activities
 2.4   Crown prerogatives


2.1   Public right of navigation

(See W Howarth, Wisdom's Law of Watercourses, 5th Edn, pp 131-133.)

The public has a right to navigate in tidal waters (ie the sea and tidal navigable rivers), and no grant of the soil can interfere with this. They also have ancillary rights, such as anchoring, that are necessary to navigation: Gann v Free Fishers of Whitstable (1865) 11 English Reports 1305. The right of navigation is not suspended when the tide is out, and a vessel may ground in order to continue a voyage on the next tide: Colchester Corporation v Brooke (1845) 115 English Reports 518. But the right of navigation is different from a right of way over land, because vessels are not obliged to follow a defined course: Evans v Godber [1974] 1 Weekly Law Reports 1317. On the other hand, navigation requires planned movement from one place to another for the purpose of transporting persons or cargo, and does not include "messing about in boats": Curtis v Wild [1991] 4 All England Reports 172; Steedman v Scofield [1992] 2 Lloyds Law Reports 163.

A private right of an owner of the foreshore or bed to control and charge for the laying of fixed moorings will be lost if it is inconsistent with the statutory power of a port authority to regulate the mooring of vessels in the same place: Ipswich Borough Council v Moore The Times, 25 October 2001.


2.2   Public and private rights of fishery

(See Howarth, op cit, pp 176-182; J Gibson, On the Kingdom of the Shore, Lloyd's Maritime and Commercial Law Quarterly (1978) 616.)

The public has a general right to fish in tidal waters: A-G for British Columbia v A-G for Canada [1914] Appeal Cases 153. The public right of fishing includes an ancillary right for fishermen to dig for worms on the foreshore for their own use as bait, but this does not extend to commercial bait digging: Anderson v Alnwick DC [1993] 3 All England Reports 613. The public right of fishery may be excluded by a private fishery, provided that the private right was created by the Crown before 1189; the Crown was seemingly prevented from creating further private fisheries in tidal waters by Magna Carta: Malcomson v O'Dea (1863) 11 English Reports 1155. A private fishery may be re-granted by the Crown after 1189, if it was originally created before that date: Stephens v Snell [1939] 3 All England Reports 622. Evidence of long usage raises a presumption of a pre-1189 grant: Loose v Castleton (1978) 41 Property and Compensation Reports 19. Private rights of shellfishery may now be granted by the Department for Environment, Food and Rural Affairs (or the Welsh Ministers) for up to 60 years under the Sea Fisheries (Shellfish) Act 1967, s 1.


2.3   Other public activities (bathing, shooting and collecting)

There are no other general public rights over the foreshore. Thus, there is no right at common law to bathe in the sea, and no public right of access over a private foreshore for that purpose: Blundell v Catterall (1821) 106 English Reports 1190; Brinckman v Matley [1904] 2 Chancery 313. The foreshore is not a public highway: Llandudno UDC v Woods [1899] 2 Chancery 705. There is no public right to shoot wildfowl there: Fitzhardinge (Lord) v Purcell[1908] 2 Chancery 139. Nor is there a public right to collect sea coal washed ashore: Beckett (Alfred F) Ltd v Lyons [1967] Chancery 449. However, the Labour Party made a commitment in April 2005 to improve access to coastal areas, and the Marine and Coastal Access Bill, Part 9, will provide for the establishment of a long-distance coastal route around England for recreational journeys on foot or by ferry, together with an associated margin of coastal land for public access.


2.4   Crown prerogatives (unclaimed wreck and royal fish)

The Crown is entitled to unclaimed wreck, unless the right has been granted to a subject: Merchant Shipping Act 1995, s 241. "Wreck" means goods washed ashore; if still afloat, they belong to the Crown as flotsam, jetsam, lagan or derelict: Constable's Case (1601) 77 English Reports 218. To constitute wreck, goods must have grounded, but need not be left dry: R v 49 Casks of Brandy (1836) 166 English Reports 401. If the goods have touched ground, but are still floating, their status depends on how they are salvaged: R v Two Casks of Tallow (1837) 166 English Reports 414. Unclaimed goods found outside territorial waters belong to the finder: Pierce v Bemis [1986] Queen's Bench 384.

Royal fish (whales and sturgeons) stranded or caught within territorial waters are Crown property under the statute De Prerogativa Regis 1324, c 13.


Fig 2.1   A stranded whale on the foreshore at Reculver, Kent, 1995
(Click on the photograph to enlarge it)


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Created: 26/11/01 Updated: 15/3/10
© John Gibson
Institute of Marine and Environmental Law
University of Cape Town