COASTAL ACCESS IN SCOTLAND

THE MARINE BILL: COASTAL ACCESS FOR HORSE RIDERS.

APPENDIX III

Historically, was the law in Scotland different to that in England?

The Scotland Land Reform Act 2003[i], gave the public a statutory right of air and exercise to the beaches and foreshores on foot and on horse back, subject to a code of conduct. This formalized the pre-existing common law rights.

Those responsible for preparing the Marine Bill put forward the view that the rights of public access in England differ from the common law rights or ‘traditional freedoms’ that existed in Scotland prior to that Act.

This paper looks critically at this assumption.

During the 19th century there appears to have been broad agreement amongst English law lords that the law relating to access to beaches and foreshores was the same in both countries. The Crown held the seashores subject to rights of the public (on foot and on horse back) and was entitled to intervene in order to protect those rights on their behalf. The only pronounced difference was that much more of the shores surrounding Scotland had been granted out to private individuals, than was (or is) the case in England.


Case Decided in Smith v. Stair and Others[ii]

The House of Lords - 13th July 1849

Alexander Smith, W. S., Appellant
The Right Hon. John Hamilton Dalrymple, Earl of
Stair and others, Her Majesty’s Officers of the State for
Scotland, for Her Majesty’s interest, Respondents

Briefly: Smith, the defendant, had built a sea wall, thereby causing an encroachment, on the sands adjacent to the town of Portobello in Scotland. He claimed that he had title to the land on which the wall had been built. Her Majesty’s Officers of State for Scotland had intervened to protect the interests of the Crown, and the public, whose right to air and exercise on the sands had been interrupted. The inhabitants of the neighbouring town of Portobello and the
surrounding country had for time immemorial been in the habit of using the sands for the purpose of riding, and walking, and the royal troops had used them for exercise and been reviewed upon them.

In 1846 this case was heard before the Lord Ordinary of Scotland. As Smith the defendant could not prove his title to the land in question, the court found for the representatives of Her Majesty. The decision was appealed against and subsequently heard in the House of Lords in 1849.

Their Lordships decided that:-

“Title to Sue. – The Crown has title to prevent, by application for interdict, any encroachment by the proprietors of the ground adjoining the sea shore, upon the enjoyment of the shore by the lieges for the purpose of passage or relaxation.”

“Property – Bounding Charter. – a proprietor of ground, described by his title as being of a specified extent, has no right to inclose that part of the shore which is covered by the sea only by ordinary spring-tides. Over which the public has been from time immemorial in the habit of passing, and over which he cannot prove any past use or possession by himself.”

“Crown Costs. – No costs given to the Crown in an action by it to protect rights of the public to the sea shore.” Page 487.

Consideration was given to the definition and extent of the shore, during which Hall, on Sea-Shores p. 8., and the remarks of Holroyd and Bailey in Blundell v. Catterall were cited. So although the Blundell v. Catterall judgment was considered; that was only in relation to the bounds of the Crown land, and not regarded as relevant to the public enjoyment of the shore at Portobello. Below are the remarks of a former Lord Chancellor Lord Brougham. Given that the role of the Lord Chancellor is to preside over major constitutional issues, his opinion must be regarded as having some weight.


“The ground indeed, upon which mainly the judgment of the learned judges is rested, is, that the Crown as guardian of the public interests, has the right to interfere on behalf of those interests, just as the Attorney-General has the right to do so in this country (England) by information against a nuisance, and as the Officers of State do in Scotland who exercise that control.”
Page 498. Lord Brougham

“The question is, whether the officers of State representing the Crown have sufficient interest to apply for and interdict? Mr. Smith objects that the public have made use of these sands only by sufferance, without legal right, and that the Crown have no right to the soil, or interest in where the new wall is erected, because it is above the sea mark of the ordinary neap tides.”
Page 499. Lord Campbell.

“But it has often been held in England, and the doctrine resting on sound principles it must be equally applicable in Scotland, that a party in possession, even with a doubtful title, shall be protected against a wrong doer by an injunction. Therefore, irrespective of the right of the Crown to the sea-shore, and without touching the question whether the sea-shore extends to the flood-mark of ordinary spring tides, or only of neap-tides, I am of the opinion that, by reason of easement enjoyed by the public over the locus in quo from which they are now excluded, the Officers of the State had the right to apply for this interdict, and that it was properly granted in their favour.”
Page 500. Lord Campbell.


“Without pronouncing or even hinting at any opinion as to whether the sea-shore extends to the flood mark of ordinary spring tides, I should have thought that as against this wrong-doer a sufficient case for an interdict had been made out ratione soli. Notwithstanding some loose dicta to the contrary, there can be no doubt that by the law of Scotland, as by the law of England, the soil of the sea-shore is presumed to belong to the Crown by virtue of the prerogative, although it may have been alienated, subject to any easements which the public may have over it.”
Page 500. Lord Campbell.

The judgment of the Lord Chancellor in the case of Gammell et Al. v. Her Majesty’s Commissioners of Woods, &c., and the Lord Advocate of Scotland, 1859, provided further official confirmation of the Crown’s ownership of the sea-shore, in both England and Scotland.

Gammell et Al. v. Her Majesty’s Commissioners of Woods, &c.,
and the Lord Advocate of Scotland[iii].

The House of Lords. 1859.

The case had been brought by appeal before the House of Lords, to decide upon the important question of whether the salmon fishings around the sea coast of Scotland belonged exclusively to the crown and formed part of its hereditary revenues. Page 392.

Although this was a case about salmon fishing, the Lord Chancellor’s remarks about the parity between the law of England and Scotland with regard to the sea-shores, are relevant to the subject of public access to them.

“If I have rightly apprehended the argument of the counsel for the appellants, it is this:

They say the law as to the right of the sea-shore is different in Scotland from that of England; that in Scotland ‘the shore is not as in England, held to be the property reserved to the Sovereign, but presumed to be grant as part and pertinent of the adjacent land under the burden of the Crown’s rights as trustees for public uses’. (Bells Principles, section 642.) That the right of Salmon fishing therefore cannot be connected with any right in the shore, and that in open sea they are incapable of becoming the subject of feudal property.” Page 393.

Several editions of this legal text book on Scottish law upheld the same view.

A Handbook of the Law of Scotland[iv].
James Lorimer 1862.

“1216. Sea-shore.- Closely analogous to the right of highway is the right which the public possess to the sea-shore. The seas and the sea-shores of Great Britain are said to be inter regalia, i.e. they belong to the Crown for public use. The shore comprehends all between the high and low water-mark; but by the former term is meant only the point which he sea reaches in the ordinary spring tides.”(Stair, ii. 1.5; Ersk. ii. 1.6, and 6. 17; Bell’s Prin. 641; Inst. Lib. Ii. Tit. i., secs. 1.3.) Page 245.

“1217. There is no substantial distinction between a grant of land as bounded by the sea, and as bounded by the sea-shore; the shore is given in both cases, subject to the public use.” Page 246

“1218. After a grant so bounded, nothing remains in the Crown but the public trust; and no private person can, by subsequent grant or otherwise, be allowed to interpose between the grantee and the shore.” Page 246

“1219. Nearly all the sea-shores in Scotland have been granted to individuals under the burdens and limitations in these sections.” Page 246

Writing in 1896, Sir Robert Hunter, formerly Honorary Solicitor to the Commons Preservation Society, citing the Smith v. Earl of Stair judgment, considered the position of the public in relation to access to the foreshore, to be slightly more certain in Scotland. However, this did not take into account their Lordships opinion in that case, that the law relating to the foreshore was the same in England as in Scotland, and Lord Brougham’s comment that in a similar case in England, the Attorney General would intervene to support the rights of the public.


The Preservation of Open Spaces and of Footpaths and Other Rights of Way
A Practical Treatise on the Subject. – 1896.
By Sir Robert Hunter M.A.

Hunter described the situation with regard to public access to the foreshore as it had been left following the Blundell v. Catterall decision.

“In other words, where the fore-shore is the Crown’s, as in most places, the public, though not exercising a right that can be pleaded in law, will not practically be interfered with in passing over it; and this will doubtless be the same in most cases, where the foreshore is in private hands. But the enjoyment of the public cannot be set up to prevent some other use of the fore-shore inconsistent with such enjoyment; and such inconsistent use is more likely to arise where the fore-shore is in private hands. In fact the position of the public with regard to the fore-shore is very much that which it occupies with respect to a common. Practically, while a common is open to the public to wander over it at will, there will be no criminal procedure for trespass, and no damage upon which to found a civil action can be shown; but the public cannot set up a right of wandering to prevent inclosure. So it is with the fore-shore. Page 320.

He writes that the legal position was more certain in Scotland.

“In Scotland at least, the Crown will interfere to prevent an encroachment on the fore-shore by a person having no title. (Smith v. Earl of Stair and Others, Officers of the State of Scotland.)”Page 321.

“This decision, though not exactly establishing a public right to use the sea-shore for purposes of passage and recreations would enable them to prevent inclosure by the owner of the soil, shows that, in Scotland at least, there is such a quasi-easement as will justify interference by the representatives of the Crown to prevent wrong doers.” Page 322.












[i] COASTAL ACCESS IN SELECTED EUROPEAN COUNTRIES.
http://66.102.9.132/search?q=cache:_qyhm7b5dvkJ:www.naturalengland.org.uk/leisure/access/coastal/docs/CoastalAccessEurope-SUMMARY_tcm2-31606.pdf+foreshore+Scotland+%22natural+england%22&hl=en&ct=clnk&cd=1&gl=uk&lr=lang_en

[ii] Smith v. Stair.
http://books.google.co.uk/books?id=6202AAAAIAAJ&pg=PA493&dq=smith+v.+stair+%2B+house+of+lords&lr=&as_brr=3#PPA487,M1

[iii] Gammel et Al. v. Her Majesty’s Commission for Woods &c….
http://books.google.co.uk/books?id=ctoSAAAAYAAJ&pg=PA391&dq=gammel+et+al+%22house+of+lords%22&lr=&as_brr=3

[iv] Lorimer.
http://books.google.co.uk/books?id=IK0uAAAAIAAJ&pg=PA246&dq=Lorimer+%2B+sea-shore&lr=&as_brr=3#PPA245,M1