Fishing or fish farming: The conflict between a crown grant of salmon fishings in the sea and other crown rights in the sea in Scotland

摘要

Having regard to the foregoing cases, it is contended that where Crown Estate Scotland grant a fish farming lease to a developer in an area where the Crown has already granted the salmon fishing rights to a proprietor, that the salmon fishing proprietor may be able to challenge that grant on the following grounds: As a breach of warrandice, being the grant of a right in breach of the grant of the salmon fishing rights. That the grant of a fish farm lease would amount to a breach of the obligation not to derogate from the grant. That the grant by the Crown Estate Scotland, as a public authority, is contrary to the salmon fishings proprietor's rights under Article Ⅰ of the I st Protocol and so a breach of the Crown Estate Scotland's obligations under section 6(1) of the Human Rights Act. That the developer could be prevented from erecting structures on the sea bed in the area of the salmon fishing rights and could be prevented from polluting the sea in that area if there are reasonable grounds for apprehending injury. The Crown Estate Scotland, as landlord, may be held liable for the actions of their tenant, as the terms of the lease would inevitably lead to the wrongs against the salmon fishing right. The problem for the owner of the salmon fishing rights in the sea is that they have been emasculated by the 2016 Regulations which prevent the keeping of any salmon caught in the sea. However, it is submitted that the existence of the 2016 Regulations should not prevent the proprietor from challenging Crown grants, since at some point in the future stocks may recover, at which point the purpose of the 2016 Regulations (being to restore stocks) would be fulfilled and as such the 2016 Regulations should be lifted. Indeed, the continued development of salmon farms makes such restoration of wild salmon stocks significantly more difficult and so it is arguable that now is the time to make the challenges set out above, before the negative impacts of fish farming on wild salmonids and the wider marine environment grow yet further.