The results of a case opening today in Edinburgh’s Court of Session may set a precedent for some shoreside Royal Burghs with access to moor boats on the sea bed in their area.

The Port Bannatyne Moorings Association is challenging the Crown Estate’s right to impose fees for licensing moorings laid down in the waters around Argyll’s Isle of Bute.

The challenge is being made on the basis of historical documents, with two Royal Charters feeding the focus of the dispute.

In 1400 AD Robert III of Scotland established Rothesay as a Royal Burgh. In 1584 James VI made Rothesay a ‘free port’ in a Charter of Confirmation.

This Charter is not time limited and declares (and sit down – really long sentences were – and are – the form in such documents):

‘We give and grant to the magistrates and inhabitants of the said burgh, present and to come, a free port and harbour for ships in the bay and station of the said Burth of Rothesay and the Kyles of Bute, the stations of Cumbray and Fairly and Holy Isle and all others within the aforesaid bounds, with free entrance and exit for ships and boats for carrying burdens with merchandise not prohibited by our laws and Acts, with all the privileges and liberties of a free port and receptacle for ships, with power for the support of the aforesaid port, to receive and raise of goods, merchandise, ships and boats’.

Land reform and community rights campaigners – and For Argyll – are unequivocally on the side of the Brandanes. These are ancient common rights which the powerful have always – and successfully – sought to erode. Restating them and insisting on their primacy is a strike for what democracy is supposed to be.

Back in 2006, Argyll & Bute Council retied from an attempt to take on the Crown Estate o the issue – although campaigners always believed that the Council fought on the wrong battle ground. It had challenged the Crown Estate’s right of ownership of the sea bed (a battle for another day) rather than on the Brandanes right to use it.

After that, in early 2007, the Port Bannatyne Moorings Association formed and initially agreed to collect moorings fees for the Crown Estate.

Within a year, tin 2008, the Association had adopted a position where it refused to pass on such fees to the Crown Estate unless it took action against those who had moored their boats free in the past.

Towards the end of 2008 the Crown Estate raised a petition at the Edinburgh Court of Session to prove they were legally entitled to remove unauthorised moorings from the bay at the heart of the dispute. It has to be said that such action, were the Crown Estate given permission to do it and went on to carry it out, would hugely inflame the situation. The evocations of Bailiffs and poindings would be awful PR, never mind their impact in a situation where the Crown Estate’s ownership is a moot point.

A fund was set up to enable the Port Bannatyne Moorings Association and its supporters to fight the case.

It is hard to see the legal basis for refusing the Port Banntyne Moorings Association’s position. Hhowever, force majeure may triumph at the Court of Session as in the UK it too often does. In such an event, this ownership of the sea bed around Bute will remain a moot point both for historical legal reason and by contemporary perspectives on the enriching rights of anachronisms like the Crown Estate.

It is a patrician, paternalistic and exploitive institution through which the British Sovereign of the day hangs on to ownership of and authority over a vast property portfolio worth a very conservative £6 billion in exchange for turning over to the Treasury the revenue surpluses from its assets. This is what it says about itself on its website:

‘There is no organisation in the world quite like The Crown Estate.

‘With a property portfolio encompassing many of the UK’s cityscapes, ancient forests, farms, parkland, coastline and communities, The Crown Estate’s role as employer, influencer, manager, guardian, facilitator and revenue creator is unique.

‘We have two main objectives: to benefit the taxpayer by paying the revenue from our assets directly to the Treasury; and to enhance the value of the estate and the income it generates’.

There is no doubt that the Crown Estate and its staff have acquired a depth of very useful knowledge in many subjects over the years but, anachronistic rights apart – the expectation of gratitude is one that sits uneasily in these more egalitarian times.

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• Court appoints ‘amicus curiae’ to examine Royal Burgh of Rothesay charters in dispute with Crown Estates over mooring rights (0)
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