The Law of the Foreshore: what is it and why should I care?

You may never have heard of the law relating to the foreshore but it can be very important and as the title suggests, the aim of this article is to enlighten readers on what it is and why it could be relevant to them.

What is the foreshore?

First things first; what is the foreshore? It is formally defined as the area between the High Mean Water Springs and the Low Mean Water Springs. In other words, it is the strip of land which is covered by the sea at high tide, but not at low tide. For most people this will conjure up images of the foreshore along a beach, but beware, tidal rivers also have foreshore, and indeed the rules extend to any foreshore of tidal rivers as well as the riverbed itself.

What are the rules?

Put simply, title to the foreshore is presumed to belong to the Crown. That presumption can be rebutted by positive prescription, which is the process whereby someone can acquire good title by virtue of a title which is wide enough to include the land in question (known as a habile title) and open and peaceable occupation of the subjects on the back of that title, without any judicial interruption. In the case of foreshore, that open occupation must be for a period of 20 years rather than the usual ten.

The foreshore is also affected by the public rights. The public rights, as the name suggests, are available to the public at large and exist whether the owner of the foreshore is aware of them or not. They include such matters as the right to recreation, the right of navigation and the right of white fishing from the foreshore.

Why does the foreshore matter to me?

If you have a title which purports to include the foreshore, it would be worthwhile checking that is indeed the case. Crown Estate Scotland still own approximately 50% of the foreshore around Scotland and so there is a good chance that they will have the area noted on their systems as belonging to them. Depending on how your title is held, there may be the requirement for a claim being submitted to Crown Estate Scotland to establish that positive prescription has taken place in your favour.

This is a simplified summary of the position relating to foreshore and there are other considerations to take into account when dealing with it. These are complex and best dealt with by an expert as each location will have a unique scenario to review. If you have any queries, then please do get in touch with Anne Chapman or your usual Anderson Strathern contact for further information.

You might also be interested in –

• • Land Reform (Scotland) Bill: New provisions for large land holdings 
  • Adapting to climate change – how momentum builds resilience
  • What is a Crofter’s Right to Buy? 

Legal Disclaimer