Consistency required if management of Scottish seabed to be devolved

Alan Cook of Pinsent Masons, the law firm behind Out-Law.com, was commenting as a Holyrood committee made recommendations for changes to the bill which will ultimately govern Crown Estate Scotland. Crown Estate Scotland manages public land, property and property rights on behalf of the Scottish ministers, and is currently being managed on an interim basis following the transfer of the Crown Estate's Scottish functions to the control of the Scottish government on 1 April 2017.

The Scottish parliament's environment, climate change and land reform committee broadly welcomed the Scottish Crown Estate Bill in its stage 1 report (81-page / 1.93MP PDF), while also suggesting ways in which it could be strengthened. In particular, it has recommended that local authorities be permitted to take over the management of some Crown Estate Scotland assets, including some of those related to renewable energy, "where they can clearly demonstrate the appropriate expertise to do so", among other considerations.

"The report recommends that management of the seabed would remain at a national level, though leaves open the potential for local authorities to manage smaller scale wind and wave/tidal projects within 12 nautical miles of shore where they can demonstrate appropriate expertise," said Cook, a property law expert at Pinsent Masons. "Overall, the report recognises that much of the Crown Estate's assets should be managed at a national level, but it also encourages more involvement for local authorities where appropriate."

"The renewable energy industry will be concerned to know that the seabed interests for renewable energy projects will be managed on an efficient and consistent basis, and the basis on which local authority boundaries would be extended out to sea would also require to be considered," he said.

The Scottish Crown Estate Bill provides for the long-term management of Crown Estate assets now devolved to Scotland. This includes 37,000 hectares of land, seabed, coastlines and rural estates and covers a wide range of public assets, including the rights to offshore renewable energy out to 200 nautical miles as well as the management of ports and harbours and rights to fish wild salmon and sea trout.

The bill also provides for further devolution of certain Crown Estate Scotland assets to be managed by local authorities, island councils, public bodies and community organisations, in line with the recommendations of the Smith Commission on further powers for the Scottish parliament. The committee, in its report, welcomed the inclusion of this in the bill.

The committee has recommended that a national body with a Scotland-wide overview retain responsibility for the management of offshore renewables, energy-related assets and other cables and pipelines, but is of the view that the bill should retain provision for further devolution to occur "where a local authority can demonstrate appropriate expertise and it is considered beneficial from a socio-economic, environmental or sustainable development perspective".

The seabed, however, should be managed nationally, reflecting its status as a "national asset", according to the committee. It has recommended an amendment to the bill to ensure that the seabed cannot be sold. The committee said that it is "broadly persuaded of the merits" of continued national management of Scotland's four rural estates, but said that it "may be desirable to retain the flexibility to have some local management in future" should circumstances change.

In line with these recommendations, the committee has asked the Scottish government to clarify how it intends to maintain strategic oversight of all Crown Estate Scotland's assets once some are transferred to local authorities and community organisations. It should do so before stage 2 consideration of the bill by the Scottish parliament.

"The bill aims to ensure the estate's assets are managed sustainably by those who are best placed to do so," said committee convener Graeme Day. "Whether that's Crown Estate Scotland, a local authority or community group, this bill is a welcome step forward in terms of community empowerment."

"Since 2017, the Crown Estate Scotland (Interim Management) has worked hard to engage with the estate's tenants and to improve communication with them, which is something that tenants have really welcomed. The bill offers an opportunity to build on this approach and to ensure that environmental factors are always at the heart of the Crown Estate in the future," he said.