Summary

From a report prepared for the Countryside Commission

There is a public right of recreation on the foreshore in Scotland, including Orkney and Shetland. To enjoy this right the public must have a legitimate means of access to the foreshore.

Recreational authorities on the foreshore may be controlled by common law of nuisance, by byelaws made under the Civic Government (Scotland) Act 1982, or, if the foreshore is subject to an Access Agreement or Order by byelaws made under the Countryside (Scotland) Act 1967.

If the foreshore is a Local or National Nature Reserve, byelaws made under the National Parks and Access to the Countryside Act 1949 may restrict or prohibit access to or along the foreshore entirely.

It is a criminal offence to drive a motor vehicle on the foreshore and to ride a bicycle on the foreshore to the danger of the public.

As has been noted above the foreshore means the solum between the high and low water marks of the ordinary spring tides, regularly covered by the tide of both the sea and navigable rivers.

The foreshore is subject to the public right of navigation. However, because of its nature, the foreshore can only be navigated when the tide is in. The right of recreation on the foreshore is in effect a dry land version of the right of navigation. It is essentially a right of passage but like the right of navigation has come to be used for recreational purposes.

The right of recreation on the foreshore was recognised in Scots Law as early as the mid 19th century. In the case Officers of State v Smith (1) the Lord Justice-Clerk held, "I have no doubt however, in further holding that one of the public uses, to protect which the Crown has either a right of property in, or of guardianship over, the shore is the common use of the shore by the subjects for the purpose of either passage from port to port or of mere enjoyment and healthful exercise." (2)

The right was recognised most recently in McLeod v McLeod (3), a criminal case, where Sheriff Poole held that "by the beginning of this Century it was clearly recognised that there was a right of recreation in the public use of the foreshore and that that recreation had included the use of shot guns over a very long period." (4)

Basis of Right of Recreation on Foreshore

The basis of the right is analysed and explained by Lord Moncrieff in the case of Marquis of Bute v McKirdy (5) :

"In the case of lands which are situated below high water mark .... a title is at once available to which the public may ascribe possession which they exercise by virtue of resort. This title is that title of the Crown to the whole of the foreshore of the realm, under which these shores are held inter regalia for certain primary and secondary public uses, concurrently with being held under the separate and subaltern title which, subject always to the public uses, vests the same shores in the Crown for beneficial enjoyment. In view of the decision in the case of Officers of State v Smith (6) and having in view certain pronouncements of opinion by the learned judges who decided that case, as for example the passage in the opinion of the Lord Justice-Clerk at the foot of page 720, and having further in view the opinion to a similar effect of Lord President Inglis in Duncan v Lees (7), I do not think it can now be disputed that, in appropriate cases, a practice of resort by the public to the shore for recreation must be regarded as an exercise of one of those minor public rights with which the Crown is charged."

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