Ownership of the seabed is becoming more important as offshore projects increase. Mary Campbell addresses the implications
Who owns the seabed? A seemingly trivial question, but one that is pertinent to all offshore developments, including wind farms, oil and gas rigs, wave- and tidal-power generators and undersea cables.
The foreshore
The terms “foreshore” and “seashore” are interchangeable. The foreshore is the land between the high-water mark and the low-water mark and is calculated by taking the mean line of the high and low tide between the spring and neap tides.
There is a presumption that the Crown owns the foreshore, the islands that arise from it and the mines and minerals below it. The Crown Estate Commissioners (CECs), who manage the foreshore on behalf of the Crown, estimate that the latter owns 55% of this land. The CECs grant leases or licences of the foreshore, the majority of which are held by local authorities, ports and harbours and conservation bodies.
The foreshore is subject to public rights of navigation and fishing and private easements can be acquired in the usual way. The public does not have a general right other than over those parts that have been registered as common land.
The presumption of Crown ownership can be rebutted by the following means.
? An express grant of the foreshore:
For example, an express grant from Edward III vested the Crown’s right to the Cornish foreshore in the Duke of Cornwall. Holy Island and parts of
? Adverse possession:
The time period for a claim against the Crown is 60 years. A person claiming adverse possession does not have to show exclusive possession as is required in respect of land above the high-water mark (terra firma) because of the practical difficulties in preventing the public from using the foreshore.
Instead, the claimant must show that he has had all the beneficial use of the foreshore that a grantee of the Crown would enjoy. This is judged on a case-by-case basis, not least because the extent to which the beneficial ownership can be enjoyed will depend largely upon the foreshore in question. Erecting piers or inclosing the foreshore, removing sand and stones or seaweed, fishing and shooting, mining and charging anchorage fees have all previously been sufficient to prove possession.
? Sudden encroachment of tidal water creating foreshore on former terra firma:
Gradual encroachment does not rebut the presumption that the Crown owns the newly created foreshore. The nature of the foreshore means that its boundaries are not fixed. It also means that land that was previously foreshore (and owned by the Crown) can, over time, become terra firma and belong to the owner of adjoining land.
Seabed within territorial waters
By the UN Convention of the Law of the Sea 1982, territorial waters extend 12 nautical miles from the mean low-water mark. It is again presumed that the Crown owns the seabed within the
The presumption of ownership extends to mines and minerals, other than coal, which is vested in the Coal Authority by the Coal Industry Act 1994. In 2006-07, royalties taken by the Crown in respect of its marine estate, principally for the extraction of marine aggregates, amounted to £38.3m, 14.6% of the total turnover for the Crown Estate. Those raised from offshore renewable energy generators amounted to £0.7m of total royalties.
Continental shelf and deep seabed
All
This extends for 200 nautical miles from the baseline from which territorial waters are measured in the case of the
Under the Convention, the state whose coastline abuts the continental shelf does not own that part of it but does have the exclusive right to exploit its natural resources. All states may lay cables and pipelines along the continental shelf. The Continental Shelf Act 1964 vests the
The International Seabed Authority was established by the Convention to control the exploitation of the deep seabed’s resources beyond the limits of national jurisdiction. The Convention also provides that all states may lay cables and pipelines in the deep seabed. In the
Leases, licences and consents
Assuming that the Crown owns the foreshore and seabed of a potential offshore wind-farm site, an application must first be made to the Crown Estate. If approved, the CECs will grant a lease of the seabed or, if the wind farm is to be sited beyond territorial waters but within designated areas on the continental shelf, a licence.
Leases and licences are granted for either 20 or 40 years (depending upon whether the project forms part of the first or second generation of wind farms), plus a year either side for the construction and decommissioning of the wind farm. They are preceded by an agreement for lease or licence. Under the agreement, the tenant or licensee has seven years within which to obtain all relevant statutory consents. The consents will depend upon site-specific issues and may include those:
? from the secretary of state for business, enterprise and regulatory reform, under section 36 of the Electricity Act 1989, for the construction and operation of a generation station within territorial waters and, under section 37, for the development of associated onshore overhead electric power lines or consent under the Transport and Works Act 1992 Order
? under the Energy Act 2004 for offshore wind farms in designated areas on the continental shelf (this extends the section 36 consenting regime to these projects)
? from the secretary of state for environment, food and rural affairs (or from the Welsh Assembly government), under section 5 of Part II of the Food and Environment Protection Act 1985, for the placing of construction materials and the disposal of materials on the seabed and
? from the secretary of state for transport, under section 34 of the Coast Protection Act 1949, for construction works under or over the foreshore.
The developer will also need to submit for approval an environmental statement and decommissioning programme. Consultation with the Ministry of Defence and Civil Aviation Authority should be undertaken early because rotating turbine blades may affect radar systems.
The planning regime does not apply below the mean low-water mark. However, associated onshore works may need planning and statutory consents.
White paper proposals
In March, Defra published A Sea Change: A Marine Bill White Paper, which proposes changes to the licensing and consents procedure for offshore projects.
It aims to simplify the regime by reducing the number of required consents and the cost of obtaining these. It proposes the creation of a marine policy statement that all
The licensing process for developments of less than 100Mw will be managed by a new marine management organisation. Under proposals set out in the white paper Planning for a Sustainable Future, the Infrastructure Planning Commission will assume licensing responsibility for offshore renewable energy developments exceeding 100Mw. Licensing for offshore oil and gas infrastructure will remain with the Department for Business,
Mary Campbell is a senior associate in the real estate department at Allen & Overy LLP