Lloyd's Maritime and Commercial Law Quarterly
CONFLICT BETWEEN THE FISHING AND SAND AND GRAVEL INDUSTRIES IN SCOTTISH COASTAL WATERS: THE ROLE OF LAW
A. D. M. Forte*
During the last 20 years offshore commercial exploitation of marine aggregates (i.e. sand and gravel) has developed more rapidly than onshore recovery in the United Kingdom.1 To some extent this is attributable to depletion of workable onshore deposits and a rising demand for aggregates but onshore production is also subject to a statutory planning regime, in particular, the Town and Country Planning (Minerals) Act 1981. Since planning permission is not required for development below the low water mark2 it may be that the absence of the need to obtain such permission or of the need to comply with aftercare conditions under the 1981 Act3 have combined to make offshore production even more attractive.
Hitherto, most offshore dredging has occurred in English and Welsh waters but recent Press reports indicate that an application has now been made for an extraction or production licence for sites near Arbroath, the Firth of Tay and Dunbar in the Firth of Forth.4 The first and last of these areas are prolific fishing grounds and in Dunbar there is anxiety that the application is for an area “in the middle of prime fishing grounds for local shellfish and lobster boats”.5 It is the purpose of this paper to examine some aspects of the legal regime which currently regulates the exploration for and exploitation of marine aggregates within the territorial sea around Scotland. Demands of space have dictated that some topics cannot be treated as fully as one might wish and I have concentrated on three main areas, viz. (1) the Crown’s power to licence dredging; (2) the grounds on which such licences may be challenged; and (3) the problem of loss of or damage to fishing gear.
The Crown Estate Commissioners
Marine aggregates are minerals6 located on or under the sea-bed and consequently they are Crown property by virtue of its ownership of the sea-bed.7 Under s. 1(1) of the Crown Estate Act 1961 the sea-bed and subjacent minerals form part of the Crown Estate and are under the management of the Crown Estate Commissioners whose function is to enhance or improve its value.8 To this end the Commissioners may sell,
* Faculty of Law, University of Dundee.
1 Blunden, The Mineral Resources of Britain (1975), p. 50. See also Sand and Gravel Production, H.M.S.O., published annually.
2 Argyll and Bute D.C. v. Secretary of State for Scotland, 1977 S.L.T. 33; and see Himsworth, “The Limits of the Planning Realm” (1977) J. Planning and Environmental Law 21; Young, “Planning Jurisdiction in Scotland” (1977) 22 J. Law Soc. Scot. 61.
3 See 1981 Act, s. 22; and Town and Country Planning (Scotland) Act 1972, s. 27A.
4 The Scotsman, 7th December 1983; The Courier and Advertiser, 9th December 1983.
5 The Scotsman, supra.
6 “The question is whether gravel and sand come within the term ‘other minerals’. That minerals in an Act of Parliament or in a legal document prima facie includes such a thing as gravel or sand is now clearly settled by the decided cases”. Scott v. Midland Rly. Co. [1901] 1 K.B. 317, 320 per Kennedy, J. See also Mags. of Glasgow v. Fairie (1888) 15 R. (H.L.) 94; Hamilton v. N.B.R. (1886) 13 R. 454.
7 That the Crown does own the solum of the territorial sea is now clear. See Crown Estate Commissioners v. Fairlie Yacht Slip, 1977 S.L.T. 19; Gammell v. H.M. Commissioners of Woods and Forests (1859) 3 Macq. 419.
8 1961 Act, s. 1(3).
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