Seabed Registration Guidance

Table of Contents

Useful Links

Automatic Plot Registration (APR) - Plans Guidance

Dummy Cheque / Waived Fee Process

Description of Seabed Plot Must Be Acceptable

Digital Map Data & Digital Deed Plans

Mapping Seabed

Udal Law and the Foreshore in Orkney & Shetland

General

Section 113(1) of the 2012 Act provides that the seabed of the territorial sea of the United Kingdom adjacent to Scotland (including land within the ebb and flow of the tide at ordinary spring tides), falls within the definition of "land" for the purposes of registration in the Land Register. The territorial sea limit extends 12 nautical miles from the coast. The Keeper has introduced an additional single operational area for registration of seabed plots. Title numbers and cadastral units allocated to subjects registered in this operational area will be prefixed with SEA.

In the absence of evidence to the contrary, the foreshore and seabed are presumed to belong to the Crown as part of the regalia majora (rights that cannot be alienated such as rights of the public for navigation and fishing) and regalia minora (the property right in the foreshore and seabed that can be divested). However, no recorded or registered title will be held by the Crown. The management of the Crown estate is the responsibility of The Crown Estate. In Orkney and Shetland, the Crown is presumed to have a right to the seabed, but not the foreshore.

The conditions of registration state at section 23(1)(c) that the deed should sufficiently describe the plot to enable the Keeper to delineate the boundaries on the cadastral map. Therefore, as with any other plot of land, applications to register areas of seabed, or other rights in the sea, such as salmon fishing rights or rights to gather naturally occurring oysters and mussels, require to be delineated on the cadastral map.

Seabed Registration Requirements

Special registration requirements are in place to ensure seabed plots can be clearly identified and defined on the cadastral map. The Land Register Rules etc. (Scotland) Regulations 2014 contains additional requirements in relation to seabed registration. Regulation 8 provides that for registration of a plot of land comprising seabed, the deed must contain:

a description of the plot of land based on OSGB36 coordinates; and
a plan, in a form that the Keeper considers reasonably identifies the location of the plot of land in relation to the coast of Scotland.

For more details of how these requirements must be met in the applications being submitted for registration, see page on Description of Seabed Plot Must Be Acceptable for more details.

For guidance for plans settlers, including guidance on how to map seabed plots bounded by the foreshore, circular seabed plots, and using OSGB36 coordinates, see page on Mapping Seabed for more details.

Advance notices

It is a requirement that an advance notice relating to an unregistered plot of land, or an unregistered lease, must be recorded in the Register of Sasines. It is also a requirement that the advance notice must contain a description of the land by reference to a deed recorded in sasines. These requirements present difficulties for the Keeper in accepting first registration advance notices that comprise seabed, for the following reasons:

The Register of Sasines consists of a fixed set of land-based counties, which does not include seabed. If an advance notice relating to a seabed plot were recorded in the nearest land-based county, it is not clear that this would provide the usual protection for the forthcoming transaction.

New deeds relating to the seabed will in most cases be granted by The Crown Estate, which will typically not have a recorded title. In these circumstances, it is inevitable that an advance notice won't meet the requirement that it contain a description of the land by reference to a deed recorded in sasines.

It may be unclear from the description of the subjects in the advance notice that it relates wholly to seabed, e.g. the plot may actually comprise both seabed and foreshore or other land. However, if it the advance notice description does not contain reference to a previously recorded deed in sasines, then the advance notice should be referred for possible rejection.

Once the seabed plot is registered in the Land Register, it will be competent to submit an advance notice in relation to any subsequent deed affecting that plot.

Closing notes

The closing note process is also different when processing an application to register a plot of land wholly comprised of seabed. As stated above, there are typically no prior recorded titles to seabed, and the Register of Sasines doesn't include seabed or the SEA county. This means that the closing note process need not be followed where an application is submitted in the SEA county.

Where an application, which appears to comprise seabed, is submitted using the nearest land-based county, intake will create the application using the county specified on the form. A land-based county may have been given because the plot actually comprises both seabed and land, meaning it can be registered in the land county. The closing note officer should add a closing note on the Foreshore search sheet (or where there is no Foreshore search sheet, the Crown Estate Commissioners search sheet), details of which are listed on the following page in the Sasine Manual, where a land-based county has been stated on the application form.

What Does the Registration Officer Need to Consider?

The seabed application must comply with the relevant general application and registration conditions. However, in addition to the usual intake and settle checks, the registration officer will also need to consider the following matters:

Application form

1. Registration county

For the avoidance of doubt, an apparent error in the county specified on the application form is not a reason for rejection. For example, the agent may specify a land county on the form when it appears that the application relates to seabed, or vice versa. When creating the application on LRS, the intake officer should use the county specified on the application form. If necessary the registration county can be amended at a later stage in the registration process. In general terms, any decision to amend the registration county, or to split the cadastral unit between land and SEA counties, will be taken at plans settle stage, and need not be considered at intake.

2. Title examination/ Certification of title

The application must comply with the usual requirements for a valid application in terms of sections 23, 25, 26 or 27 of the 2012 Act, as appropriate. Where an application is received for first registration of a seabed plot, the deed will usually be granted by The Crown Estate. However, no recorded or registered title will be held by the Crown, and the applicant may include a statement to this effect in either the title examination section or the further information section of the application form.

3. LBTT

LBTT is payable on any notifiable land transactions in Scotland, unless it is exempt. The definition of "land in Scotland" in the Land and Buildings Transaction Tax (Scotland) Act 2013 does not include land below the Mean Low Water Springs (MLWS), therefore a transaction relating to a wholly seabed plot is an exempt transaction for the purposes of LBTT. For transactions where the plot comprises land both above and below the MLWS, only the part that is above the MLWS would be a notifiable transaction.

It is for the parties involved to determine what is a land transaction for LBTT purposes, and to make whatever tax return is appropriate. However, checks will be completed at intake stage to identify if the deed to be registered is a tax notifiable transaction. If the applicant has answered "no" to the LBTT question on the application form, but the plot to be registered appears to comprise both seabed and land above the MLWS, this may lead to rejection. Such cases should be referred as appropriate.

Deed inducing registration

1. OSGB36 coordinates

Where the deed relates to a wholly seabed plot, it must contain OSGB36 coordinates, and this information must be properly incorporated into the deed. The coordinate information must form part of the property description, either by being narrated in the body of the deed, being set out in a schedule or annex that is duly incorporated, or being included on a deed plan that is duly incorporated. It is not acceptable for the coordinate information to be contained in a separate document, or referred to on the application form only.

2. Location plan

Since the use of coordinate data will effectively determine the location and extent of the seabed plot for mapping purposes, the deed plan need only identify the location of the plot as relative to the coastline of Scotland. For this reason, it is acceptable for the location plan to be at a smaller scale than that specified in the deed plan criteria, provided the plot is described sufficiently by coordinates. See page on Description of Seabed Plot Must Be Acceptable for more details.

3. Land/foreshore boundaries

Where the seabed plot is bounded by land or foreshore, and coordinates have not been provided for that particular boundary, the property description must be sufficient to tie the boundary to either the MLWS or MHWS. See page on Description of Seabed Plot Must Be Acceptable for more details.

4. Subjects comprising land both above and below the MLWS (land and seabed).

The Keeper may in certain circumstances use her discretion to divide a cadastral unit where the plot being registered comprises both seabed and land or foreshore. When splitting at the MLWS, the seabed part will be registered in the county of SEA, and the land and/or foreshore part will be registered in the appropriate land county. Each part will have a separate cadastral unit and title sheet. Where the Keeper decides not to split the cadastral unit, the whole plot will be registered in either the SEA or land county as most appropriate. It is unlikely to be clear at intake that a cadastral unit split may be appropriate. Therefore, any decision to split a cadastral unit should be taken at plans settle stage. See below Seabed - Splitting the Cadastral Unit into Land and Sea Plots for more details.

Sea Fishings

Under the 2012 Act, a separate legal tenement constitutes a plot of land, and the Keeper must make up and maintain a title sheet for each registered plot of land. Salmon fishings, being a separate legal tenement, constitute a plot of land, and a separate title sheet and cadastral unit will be created for the ownership of the salmon fishings. In order for salmon fishings in the sea to be registrable under the 2012 Act, the extent of the plot must be defined sufficiently for to allow the Keeper to delineate it on the cadastral map. It is for the parties to the application to determine the extent of the plot and to provide the Keeper with sufficient mapping information. Where the sea fishings lie wholly below the MLWS, the requirement to describe the plot by reference to OSGB36 coordinates will apply.

Further guidance on salmon fishings, including sea fishings, can be found on the salmon fishing - description in title sheet and mapping salmon fishings pages.

Territorial Sea Limit

The Territorial Sea Act 1987 provides that the territorial limit for Scottish waters is 12 nautical miles. Prior to the 1987 Act the territorial sea limit was 3 nautical miles.

If a deed describes the seabed plot by verbal reference to "the territorial limit", this will be 3 or 12 nautical miles depending on whether the deed was granted before or after the 1987 Act respectively. A verbal description alone is not sufficient for mapping purposes, the applicant must still define the boundaries of the seabed plot with OSGB36 coordinates and a location plan.

Splitting the Cadastral Unit into Land and Sea Plots

The Keeper may in certain circumstances use her discretion to divide a cadastral unit where the plot being registered comprises both seabed and land or foreshore, i.e. where parts of the plot are located above and below the Mean Low Water Springs (MLWS). The cadastral unit will be split at the MLWS, resulting in the seabed part being registered in the county of SEA, and the land and/or foreshore part being registered in the appropriate land county. Each part will have a separate cadastral unit and title sheet.

It is unlikely to be clear at intake stage that a cadastral unit split may be required, therefore the decision to split a cadastral unit should only be considered at plans settle stage. Where the plans officer identifies that the plot to be registered comprises areas above and below the MLWS the application should be referred to a senior caseworker, who will seek further guidance if necessary.

To create the second application, the plans officer should refer the application to an intake officer who will follow the guidance below - the example is based on the first title sheet (referred to as the principle application) being the existing land or SEA application.

Once the split has been completed, the two title sheets and associated mapping information will be available via email notifications to the relevant parties. (There is no registration fee for the creation of the second title sheet.)

When should a plot be split into separate cadastral units?

Each application to register a plot that includes areas above and below the MLWS should be considered for splitting into separate cadastral units. However, it is unlikely to be clear at intake that a cadastral unit split may be appropriate. Therefore, any decision to split a cadastral unit should only be taken at plans settle stage.

The plans settler should check the extent of the plot against the OS map and establish if:

the whole plot lies below the MLWS - the whole plot should be registered in the county of SEA;
the whole plot lies above the MLWS (land or foreshore) - the whole plot should be registered in the appropriate landward registration county; or
the plot lies partly above and partly below the MLWS (land or foreshore, and seabed) - consideration should be given to splitting the application into separate cadastral units and title sheets in the county of SEA and the appropriate landwards registration county.

Splitting the title will not be appropriate in all circumstances however:

Examples of when a cadastral unit split may be not appropriate

Where the plot straddles both seabed and land or foreshore, and these areas are occupied by a permanent feature, such as a jetty or pier, a cadastral unit split is not appropriate.
Where the plot comprises one or more areas of seabed and land or foreshore, which on their own are very small or fragmented, it may not be practical or expedient to split the areas into separate cadastral units.

If the plans settler considers that either:

a cadastral unit split may be appropriate; or
a cadastral unit split is not appropriate but that the application has been taken on against the wrong county;

the application should be referred to a senior caseworker, who will seek further guidance if required.

Existing registered titles that contain land and seabed

An application may be received over an existing registered title that contains both land and seabed areas. A small number of such titles were registered under the 1979 Act in the relevant land county, and there are also titles registered under the 2012 Act where the decision not to split the cadastral unit has already been taken.

Where an application is submitted over an existing land and seabed title sheet, the policy of splitting the cadastral unit at the MLWS need only be considered in certain circumstances:

Where the application will result in a change to the extent of the existing cadastral unit (i.e. a transfer of part or first add to application) it may be appropriate to split the cadastral unit. Such cases should be referred to a senior caseworker in the first instance, who will seek further guidance if necessary.

Where the application will not result in a change to the extent of the existing cadastral unit (e.g. a standard security or discharge has been presented for registration) a cadastral unit split need not be considered. A standard dealing application over a title sheet containing both land and seabed can proceed following the standard dealings process.

Creation of additional SEA or land title sheet

The L32 Intake Create Instructions form can be used to request the additional application.

The application type should be the same as the principle application and will be created including the normal information, subject to the following:

the registration date should be the same as the principle application;
in cases where the additional application is an APR application, the additional information field should include reference to the tenant's title sheet number;
no additional fee is payable (the splitting of the title is an administrative process) - see dummy cheque process - UID number does not exist;
the movement note should include reference to travelling with [application number for the principle application].

An archive information sheet should be included with the new application that the original documents are available with the principle application.

Categorisation

The applications should be categorised as Category 4. Once the applications are confirmed in LRS they should be released as normal to the next LRS location.

Leases

Where a lease application that triggers APR is received and the plans officer identifies that the plot to be registered comprises both land and seabed, a cadastral unit split should be considered in terms of the above guidance. Once approved, an additional AP application should be created in the relevant county following the process above. However, there is no requirement to split the lease title sheet between land and SEA counties since the policy only applies to cadastral units and no separate cadastral unit is created for a registered lease.

If, for example, the lease and APR applications were originally created in the land county, and it is subsequently decided that a land/SEA cadastral unit split is required, an additional AP application will be created in the SEA county. The original plot now comprises two cadastral units and two title numbers. The lease application will proceed under its existing land county title number. The only amendment required to the lease application is to ensure that the property section of the lease title sheet refers to both cadastral unit numbers. Further mapping guidance can be found at How to Map a Lease or Sub-lease affecting more that one Landlord's Title.

Plans and Legal Settle Process

Once the additional application is returned to the plans settler, the settle process can begin:

The original and additional applications should be kept together (the deeds will be in the original application). If a reason for rejection is found, both applications will need to be rejected since only one deed is being registered (no additional rejection fee should be tendered for the additional application).
The plans settler will map the cadastral units, deciding which parts are mapped within the land plot and which within the seabed plot, referring to the guidance section on Mapping Seabed for guidance on the particular requirements and styles used in seabed titles. The property section descriptions will be completed in the most appropriate style for each cadastral unit - see Property Section Styles in the Title Sheet for examples.
The legal settler will complete the title sheets, deciding (where appropriate) which rights and burdens are to be included within the land title sheet and which are to be included within the seabed title sheet, referring to the guidance set out below for the particular requirements and styles used in seabed titles.

Seabed Title Sheet Guidance

The title sheet for a seabed plot differs from that for other plots of land in the following ways:

the title number and cadastral unit number will have a SEA county prefix
a schedule of OSGB36 coordinates will be disclosed in the property section
a note stating that the table of coordinates represents the boundaries of the plot will be added to the property section

In all other material respects, a seabed title sheet resembles any other plot of land title sheet. Other than the points noted below, the property, proprietorship, securities, and burdens sections should be completed following our usual processes.

Property Section Guidance

Description

In most cases the coordinate information will form the basis for delineating the boundaries of the seabed plot on the cadastral map. However, the deed should also contain a verbal description of the plot and a deed plan showing the location of the plot in relation to the coast of Scotland. The seabed plot may be remote from the coast, and it will often not be possible to include a property description in the title sheet that refers to adjacent or nearby addressable properties, roadways, etc. The examples set out in the Property Indexing Guidelines and Sample Property Section Styles - Seabed should be followed where appropriate.

OSGB36 coordinates table

Where the plot being registered is comprised wholly of seabed, the deed being registered must contain a description of the plot based on OSGB36 coordinates. The coordinate information will usually be contained in a table or schedule incorporated into the deed, or it may be included in the main body of the deed. Alternatively, the coordinates may appear on a deed plan, which is duly incorporated. Where the plot being registered is partly seabed and partly land or foreshore, there is no requirement to describe the plot by reference to coordinates (provided the plot is otherwise mappable), but coordinates may still be included in the deed.

Where the plot has been mapped using the coordinate information, the plans settler will add a title note to inform the legal settler. The coordinate information must then be reflected in the property section of the title sheet, and a schedule of coordinates will be used for this purpose. The schedule will be added by the legal settler, and it will contain a list of the easting and northing coordinates. The schedule of coordinates is included in the picklist of property section schedules on the LRS as schedule type C (schedule of coordinates).When easting and northing figures are entered into the schedule of coordinates (either manually or by copy and paste) the LRS will automatically round-up the figure to three decimal places. An example schedule is shown below.

SCHEDULE OF OSGB36 COORDINATES

No.	Easting / Northing
1	071653.953 / 801815.079
2	071580.737 / 801792.320
3	071512.985 / 801899.526
4	071595.107 / 801934.066

In addition to columns of easting and northing coordinates, the table of coordinates in some deeds may also contain columns of longitude and latitude. This additional information should not be entered into the property section schedule.

Property section schedule - process

Create schedule on LRS

1.1 Open A section workdesk and select the schedules tab.

1.3 Click Add.

1.4 Select schedule type C - 'schedule of coordinates' from the drop down list.

1.5 Click Add.

Add coordinate information - manual entry

2.1 Where the list of coordinate points is relatively small the settler may enter the information manually into the schedule.

2.1.1 Select Amend in the schedule workdesk to open the coordinates field.

2.1.2. Manually type in the first easting and northing coordinates, using a forward slash to separate the two figures, e.g. 071653.953 / 801815.079

2.1.3 Hit return, and repeat for each of the following coordinate points.

2.1.4 Once all coordinate points are entered, click Ok, and the coordinates should appear in number order in the schedule workdesk.

Add coordinate information - copy and paste

3.1. Where the list of coordinate points is more extensive, the information can be converted into an Excel spreadsheet and then copied and pasted directly into the LRS schedule. Copying the information from Excel will ensure the data formats correctly in LRS.

3.1.1 Where an electronic list of coordinates is available (e.g. if a list of coordinates has been provided as part of the applicant's digital data), it may be possible for the plans settler to provide the legal setter with the information in a spreadsheet format. Copy the easting and northing coordinates from the spreadsheet, and go to step 3.1.5.

3.1.2 Where there is no electronic version, the legal settler can convert the coordinate information from the deed into an Excel spreadsheet using the ABBYY FineReader process.

3.1.3 To convert the information from the deed into a spreadsheet format, select 'Microsoft Excel' from the 'send document to' drop down list in the ABBYY FineReader dialogue box prior to starting the conversion.

3.1.4 Once converted, copy the easting and northing coordinates from the spreadsheet.

3.1.5 Select Amend to open the coordinates field in the schedule of coordinates workdesk on LRS.

3.1.6 Paste the information into the coordinates field using Ctrl + V.

3.1.7 Click Ok, and the coordinates should appear in number order in the schedule workdesk.

Additional notes

In addition to a schedule of coordinates, the legal settler must also add a note to the property section to confirm that the coordinates listed represent the boundaries of the plot. The style of note will depend on the nature of the plot and how it has been mapped. The plans settler will inform the legal settler that the plot has been registered using coordinate information by adding the relevant title note. The legal settler will then add the appropriate property section note in one of the following styles:

Additional notes

For seabed plots, other than circular plots or plots tied to the MLWS:

Note: The table of OSGB36 coordinates represents the boundaries of the subjects in this Title.

For circular seabed plots (e.g. mooring point areas) that are defined by reference to a single central coordinate and radius or diameter measurement:

Note: The table of OSGB36 coordinates represents the central point(s) of the circular plot(s) forming the subjects in this Title, the radius of the plot/each plot being [xxx] metres from the central point(s).

Note: The table of OSGB36 coordinates represents the central point(s) of the circular plot(s) forming the subjects in this Title, the diameter of the plot/each plot being [xxx] metres.

For seabed plots tied to the foreshore, where that particular boundary is described by reference to the MLWS rather than by coordinates, letter references will have been added to the cadastral map by the plans officer to mark the ends of the boundary:

Note: The table of OSGB36 coordinates represents the boundaries of the subjects in this Title between points [x and y] in blue on the cadastral map. The boundary between points [y and x] is tied to the MLWS.

The above notes are not currently available on the LRS picklist, so must be entered manually.

It is not competent to incorporate coordinate information into a title sheet by reference to the deed in the archive record. The ability to incorporate by reference in terms of section 10(3)(a) does not extend to the duties set out in the Land Register Rules, such as the requirement to include coordinate information in the property section of the title sheet.

Example Property sections

Example property section for seabed plot

Example property section for circular seabed plot

Proprietorship Section Guidance

In most cases where a seabed plot is being registered for the first time, the deed inducing registration will be granted by The Crown Estate. Where the deed is a long lease, or any other deed that triggers automatic plot registration (APR), this will result in the Crown's underlying seabed plot being registered. The Crown Estate administers property estate on behalf of the Crown but is not the owner, and should not be entered as proprietor in the title sheet. In such cases, the legal settler must ensure that the entry in the proprietorship section of the APR title sheet is "HIS MAJESTY KING CHARLES THE THIRD". No further designation is required.