Kames Bay Case – Petition of the Crown Estate Commissioners

Court ref: [2010] CSOH 70
Full Report.

This case in the Outer House of the Court of Session was an application by the Crown for a court order entitling them to remove private mooring equipment from Kames Bay, on the basis that there is no right of free mooring in Kames Harbour. The moorings were fixed permanently or semi-permanently to the seabed with buoys to mark them. Some moorings in the Bay were licensed by people who paid fees to use them, and the Crown wished to remove the unlicensed moorings.

Kames harbour was within a large area covered by a Royal Charter dated 1584, which made it a ‘free port or harbour’. However, the court said that this only meant that the public had free unimpeded access, not gratuitous use of the port or harbour. The public right of navigation only allows temporary anchoring, not mooring by use of permanent or semi-permanent fixtures on the seabed. Also, the public cannot gain a right to moor boats by prescription. An order was therefore granted, entitling the Crown to remove all unlicensed mooring equipment from the Harbour.

The case contains an interesting discussion about the Crown’s ownership of the seabed and the public’s rights in relation to the use of ports and harbours.

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