Seabed and land covered by water

This guidance covers the registration of territorial seabed and other land covered by water.

The definition of registrable land includes the territorial seabed 12 nautical miles from the shore and rivers and tidal waters such as:

  • sea lochs
  • estuaries
  • tidal rivers and bays

This guidance lays out the special requirements for defining an area of seabed in your application for registration.

Seabed plots fall under a separate operational area. Title numbers to registered seabed plots will be prefixed SEA.

Plots that comprise both seabed and other land will normally be split into separate seabed and land-based titles as part of the registration process.

Seabed and land covered by water

The 2012 Act clarified the position relating to registration of the seabed, doubts having being expressed that the definition of land under the the 1979 Act included seabed. The 2012 Act specifically provides that land includes the seabed of the territorial sea (which extends to twelve nautical miles), and other land covered by water. A plot of land is therefore registrable to the extent that it falls onshore or within Scottish territorial waters. The keeper has introduced an additional single operational area for registrations of land offshore and within the territorial limit. Title numbers allocated to subjects registered in this operational area will be prefixed with SEA.

The keeper’s policy under the 2012 Act is to require a graphical extent when registering areas of the seabed or land covered by water. Under the 1979 Act the keeper, when registering salmon fishing rights in the sea, on occasion accepted a description of the subjects as extending a specified distance along an area of coast identified on a deed plan. This is no longer possible as Part 1 of the 2012 Act requires the keeper to delineate subjects on the cadastral map, and the onus is on the applicant to provide sufficient information on this as part of the application for registration.

Tenements are the only exception to the 2012 Act rule of "no registration without mapping". Thus, under the 2012 Act, the requirement for delineation or mapping on the cadastral map applies to applications for registration of a plot that form part of:

  • the seabed,
  • a separate tenement that shares a physical location with seabed, such as salmon fishing rights or the right to gather naturally occurring oysters and mussels.

Conditions of registration

The conditions of registration state at section 23(1)(c) of the 2012 Act that the deed should sufficiently describe the plot to enable the keeper to delineate the boundaries on the cadastral map. To enable such plots to be clearly identified and defined on the cadastral map the keeper has determined that the deed inducing registration should include:

  • a verbal description of the plot,
  • a description of the plot using the projected coordinate system: OSGB 1936 | British National Grid (EPSG:27700) providing the coordinates of the plot, preferably in the form of a table, which will be incorporated into the property description of the title sheet, and
  • a plan defining the boundaries of the plot, including location plan relating the plot to the coast of Scotland.

Plots comprised wholly of seabed or rights in the sea

Given the terms of Regulation 8 of the Land Register Rules etc. (Scotland) Regulations 2014, where the plot or right to be registered comprises seabed (which means a plot of land that falls wholly within the SEA operational area, i.e. the sea or tidal waters such as sea lochs, estuaries, tidal rivers or bays), the deed must include a description of the plot using OSGB36 coordinates. This is a requirement even where:

  • the seabed plot is located in close proximity to, or adjoining, the coast or
  • the seabed plot adjoins another defined feature on the Ordnance Map, such as a pier or jetty, or
  • the plot includes, or is wholly comprised of, a defined feature on the OS map, such as a jetty or pier, but the plot lies wholly below the Mean Low Water Springs (MLWS).

However, where the seabed plot is bounded by foreshore or land it is acceptable to describe that particular boundary either: (1) by using OSGB36 coordinates, or (2) by reference to the MLWS.  The MLWS is a defined feature on the Ordnance Map, therefore it is acceptable for identification purposes to tie the boundary to this feature in the description in the deed. For example, the deed could narrate:

"…the boundary between the points marked A and B on the plan follows the MLWS…"

In this example, points A and B mark the points where the sea boundaries intersect with the MLWS. This method is particularly useful where the boundary in question follows a sizeable stretch of undulating coastline. Coordinate information must be provided for the seaward boundaries.

Plots comprised of seabed and other land

Where the plot comprises a single area that straddles land and sea, the boundaries of the plot need not be described by reference to OSGB36 coordinates, but sufficient surrounding detail must be supplied to enable the plot to be fixed and delineated on the cadastral map.

In general terms, when the keeper receives an application for registration that relates to both land and seabed at the MLWS, the title will be split as part of the registration process, after the application has been entered onto the application record. The split will result in the seabed part being registered in the county of SEA, and the land part in the appropriate land-based county. Each part will have a separate title sheet and cadastral unit. Where a plot straddles both land and seabed, and these areas are occupied, either wholly or partially, by the same physical object (such as a jetty or pier) the keeper may proceed to register the plot in the land-based county only.

A "plot of land", for the purposes of land registration, may comprise more than one area of land.  Where the deed to be registered relates to a number of areas, and one or more is comprised wholly of seabed, OSGB36 coordinates should be provided for the wholly seabed area or areas.

Circular seabed plots

Where the seabed plot is circular in shape, where it relates to a mooring point, for example, it must be adequately described to enable the keeper to accurately delineate the extent on the cadastral map.  Use of a single coordinate is unlikely to be acceptable for mapping purposes.  In such cases the plot should be described either by: (1) providing a number of coordinates to define the edge of the circle, or (2) using a single coordinate that's described as being the central point of the plot, and narrating a diameter measurement for the area.

Land and Buildings Transaction Tax

Section 4(3) of the Land and Buildings Transaction Tax (Scotland) Act 2013 states that "land in Scotland" does not include land below the MLWS.  Therefore, registration of a deed relating to a wholly seabed plot is not a chargeable interest in terms of the 2013 Act. However, it is important to note that where the plot comprises both land and seabed, the part lying above the MLWS would be a chargeable interest under the 2013 Act.

First registration advance notices - seabed

The Register of Sasines comprises a fixed list of land-based counties, and does not extend to include the seabed.  Unlike the land register, there is no county of SEA in the Register of Sasines.  This means it is not appropriate to record a First Registration Advance Notice relating to a wholly seabed plot in the Register of Sasines.  Once a plot is registered in the SEA county, it will be possible to register an advance notice against that plot in future transactions.

Footnotes

  1. Section 113(1) of the Act narrates that land includes: (a) buildings and other structures, (b) the seabed of the territorial sea of the United Kingdom adjacent to Scotland (including land within the ebb and flow of the tide), (c) other land covered by water.
  2. The territorial sea limit extends 12 nautical miles from the coast.