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April 13, 2010

Ownership or management – there is a difference

The Crown Estate, based in London, frequently describes itself as the owner of the seabed around Scotland.  Not so.  The Treasury Select Committee has just clarified once and for all that although the Crown Estate manages this resource, it does not own it.  Scotland owns its own territorial seabed and the property rights are devolved to the Scottish Parliament.  That being so, will we derive the full benefits from all the renewable energy development underway within our waters?

Chris Watt, The Herald, 3 Apr 2010

Ownership or administration – there is a difference

The were once described as the worst kind of unelected, upper-class club, although the Crown Estate Commissioners is a statutory corporation responsible for the management of the Crown properties and property rights known as the Crown Estate.

The commissioners manage a £6 billion portfolio, with properties on Park Lane and Pall Mall, and the Glenlivet Estate, but confusion surrounds the organisation, which has taken to branding itself “The Crown Estate”, while the properties and rights they administer form “the Crown Estate”. The upper or lower case “T” is significant.

In its report published this week, into the management of the Crown Estate, the Commons Treasury Committee said: “As we started to receive evidence … it soon became clear that our first major task would be to arrive at a clearer understanding of the nature of the commissioners, including an appreciation of what is meant by ‘the Crown Estate’.

“The commissioners have increasingly claimed to own the seabed. Particularly over the past 10 years, as the prospect of £10 billion-worth of investment in offshore wind alone, not to mention tidal and wave energy developments, grew.

“The claim is repeated in The Crown Estate reports, website and press releases. One this week stated: ‘As owners of the UK seabed out to the 12-nautical mile territorial limit and over 55% of the foreshore, The Crown Estate will continue to work closely with its partners …’”

It is a territorial claim accepted by ministers and politicians as well as the media. Yet, in evidence to the Treasury Committee, the commissioners conceded they exercise “… the powers of ownership, although we are not owners in our own right”.

The committee found this significant. Its report said: “This quote does provide some greater clarity as many of the submissions we received thought the commissioners were the owners of the Crown Estate rather than the managers of it.”

In addition, the committee was clear that the Crown property, rights and interests in Scotland that are managed by the commissioners are legally disctinct from the rest of the UK.

“This is because Crown property rights in Scotland are defined and governed by Scots law, including Scotland’s Crown rights in Scotland’s territorial seabed and continental shelf area,” said the report. This had been recognised in the Crown Estate Act 1961, but devolution has reinforced the position.

“As a result of the Scotland Act 1998, the Scottish Parliament can legislate over the extent and nature of Crown property rights in Scotland, legislate to regulate the use of land and property rights and issue guidance,” said the report.

The act did reserve the commissioners’ administration of Scotland’s Crown rights to Westminster. But Andy Wightman, author of “Who Owns Scotland?” and a leading authority on public and community rights to Scottish land, said this is irrelevant.

“The administration may be reserved, but it has been clear for some time that the property rights in Scotland’s seabed are devolved. The Scotland Act settled this question,” Mr Wightman, who gave evidence to the committee, told The Herald.

“Quite why now, over 10 years later, the Crown Estate Commissioners continue to try to persuade us otherwise is a mystery. This is not a pedantic point, it is vitally important because the ¬seabed is a resource of growing importance to Scotland.

“The Scottish Parliament should simply abolish the Crown rights over the seabed and arrange for them to be held instead by Scottish Ministers who already hold, for example, all the land managed by the Forestry Commission.

“But it is equally important that local authorities should have a role in controlling the development of the seabed and the benefits that flow from this important resource.”

A £6bn business

The Crown Estate, which incorporates much of what was once the Royal Family’s vast hereditary possessions, is now run as a business.

Headed by Sir Stuart Hampson, it came into being in 1066 when the land of the realm was said to be held “in the right of the Crown”. There is still a presumption in law that land belongs to the Crown unless it can be proved otherwise.

The Crown’s assets total £6bn. In London they include Regent Street, Regent’s Park and St James’s. Its agricultural land spans 267,000 acres and it owns 55% of the coast and the seabed to a limit of 12 nautical miles. One of the estate’s stated objectives is that the Crown Lands are managed on behalf of the Government and that surplus revenue would go to the Treasury.

Just rights

Scottish Crown rights administered by the Crown Estate Commissioners, but which come under the Scottish Parliament, include:
• Rights to the seabed within Scotland’s territorial seas, excluding oil, coal and gas.
• Rights over Scotland’s continental shelf area to minerals and other natural resources excluding hydrocarbons.
• Owns more than half of Scotland’s foreshore.
• Rights to all naturally occurring mussels and native oysters.
• Rights to coastal salmon fishing in Scotland’s territorial sea, and to inland salmon fishing in Scotland, where they have not been granted.
• Rights to mine most of Scotland’s gold and silver.