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November 4, 2009

Who should benefit from the seabed?

The Crown Estate currently lays claim to all of Scotland’s foreshore and seabed and earns a hefty annual revenue from Scotland’s territorial waters. Many of Scotland’s 196 ancient burghs are coastal communities and some of these have long argued that their royal charters give them a prior claim to the seabed. The Royal Burgh of Rothesay has taken its challenge to Court of Session

David Ross

The waters around Bute have become a battleground between boat owners and the Crown in a case that will be closely watched by other coastal communities round Scotland.

A case in the Court of Session in Edinburgh will decide between the merits of two historic royal charters.

The row centres on whether boat owners will have to pay to put down a mooring in Kames Bay to the north of Rothesay.

They have long argued have argued that the terms of two charters granted to the Royal Burgh of Rothesay, in 1400 and 1584, mean they do not have to pay to put down moorings on the seabed.

The Crown Estate, owner of the seabed within Scottish territorial water, has publicly stated: “Anyone wishing to place a mooring or any other structure on the seabed in Kames Bay requires a licence from The Crown Estate. The cost of a mooring licence is £70 per year for an individual or £35 per year for members of the local moorings association.”

However, Rothesay was established as a royal burgh by King Robert III of Scotland in 1400 and was declared a “free port” by James VI in a Charter of Confirmation granted in 1584.

The terms of the latter document are rehearsed in the latest edition of the island’s local paper, The Buteman, reminding islanders of the words of the last man to ascend the Scottish throne on the subject of Rothesay.

It said: “We give and grant to the magistrates and inhabitants of the said burgh, present and to come, a free port and harbour for ships in the bay and station of the said Burth of Rothesay and the Kyles of Bute, the stations of Cumbray and Fairly and Holy Isle, and all others within the foresaid bounds, with free entrance and exit for ships and boats for carrying burdens with all kinds of goods and merchandise not prohibited by our laws and Acts, with all the privileges and liberties of a free port, and receptacle for ships, with power for the support of the foresaid port, to receive and raise off goods, merchandise, ships and boats”.

Craig Borland, editor of the Buteman told the Herald: “The impression, however unintentional, is that the Crown Estate forgot all about Kames Bay for years and years, and has come along pretty late in the day and started insisting that people pay to do exactly what they had been doing anyway, so far without getting anything in return.

“But there’s potentially a lot riding on the outcome of this case. If the Crown Estate loses, there could be quite a few seafront royal burghs dusting off their own charters to see if something similar might apply to them.”

Andy Wightman, the leading land reform and community rights campaigner, said: “This case is an excellent example of how land rights which communities traditionally enjoyed have been eroded over time. In an ideal world, the citizens would have full knowledge and control over their common good assets which include mooring rights.

“These are inalienable community land rights and must be asserted and defended. If they are not, then powerful interests will once again have won over the common rights of the public.”

Argyll and Bute Council challenged the Crown Estate on the issue but threw in the towel in 2006, although many thought it had wrongly focused on ownership of the sea bed, rather than the right to use it.

In the aftermath the Port Bannatyne Moorings Association (PBMA) was formed in early 2007, and agreed to collect fees for the Crown Estate.

But in 2008 the association decided not to pass these on without the Crown Estate taking action against those who had moored without paying.

Later that year the Crown Estate, which has a property portfolio valued at £6bn, raised a petition at the Court of Session, to prove they were legally entitled to remove unauthorised moorings from the bay. But a fund was established to help those who had not paid to fight the case.

Most of principal figures in the dispute are witnesses in the hearing so did not want to comment.