Scotland’s transition to renewable energy is driving significant investment in offshore wind, tidal energy and electricity transmission infrastructure. Across the Northern Isles, many of these projects rely on new cable routes linking offshore generation assets to onshore electricity networks, and extension to electricity networks include linking the islands into the larger UK electricity grid.
Alongside planning, environmental consents and grid capacity, ownership of cable routes must also be considered to ensure the necessary rights are in place for the project. Udal law, which uniquely applies in Orkney and Shetland, means the legal position relating to foreshore ownership in the Northern Isles is different to the rest of Scotland.
Developers working elsewhere in Scotland can usually assume the Crown owns the foreshore. In Orkney and Shetland, however, matters aren’t always so straightforward. The continuing influence of Udal law means that ownership of the foreshore may instead rest with the adjoining landowner. That distinction can have important implications for projects involving cables, pipelines and other infrastructure crossing the foreshore.
What is Udal law in Orkney and Shetland?
Udal law is the system of property law inherited from the Norse settlers of the Northern Isles. Most of this legal system has disappeared over time, but one of its most significant surviving features is ownership of the foreshore. Historically, Udal ownership extended beyond the dry land to the area between the high and low water marks, known as the foreshore. The courts have recognised that this principle continues to apply in certain circumstances today.
Why foreshore ownership matters for renewable energy projects
For renewable energy projects, the practical significance is clear. Whether a development involves offshore wind, tidal generation, an interconnector or a grid reinforcement project, cables must usually pass from the seabed onto land. The point at which a cable comes ashore is often one of the most critical parts of the route. This means that identifying who owns that stretch of foreshore is an essential element of project due diligence.
Securing seabed, foreshore and cable route rights
In the Northern Isles, different ownership regimes can apply to the seabed and the foreshore. While the Crown’s ownership of the territorial seabed is well established, Udal rights may continue to apply above the low water mark. So, developers may require rights from more than one property owner to secure a complete route corridor.
The potential consequences of overlooking foreshore ownership can be significant. Delays arising from extra title investigations, negotiations or land rights requirements can affect project timetables and costs. In large infrastructure projects, even relatively small areas of land can become strategically important if they form the only feasible route between offshore and onshore assets.
The growing scale of renewable energy investment means that these issues are likely to become more prominent. Orkney and Shetland are well placed for offshore wind, tidal energy and electricity transmission developments. Many projects involve multiple landfall locations and extensive cable infrastructure. In that context, understanding ownership rights at an early stage can help avoid uncertainty later in the development process.
Why every Northern Isles site needs title investigation
It’s important to note that the position is not identical for every property. While Udal ownership of the foreshore remains common, this presumption can be displaced and the Crown may, through various routes, own parts of the foreshore in the Northern Isles. Because of this, the title history of each site needs careful investigation.
Developers, funders and landowners should be cautious about relying on assumptions, regardless of how well established those assumptions may be elsewhere.
Early due diligence for offshore wind and tidal energy projects
For those involved in renewable energy projects, the key lesson is simple: establish ownership of the foreshore as early as possible. A clear understanding of who owns the land between high and low water marks can be just as important as securing planning permission or grid connection rights. Early title investigations can identify potential issues, inform project design and reduce the risk of costly surprises later in the process. They can also ensure that negotiations with the relevant owners are incorporated into the project programme before the proposed route becomes fixed.
More than 500 years after the Northern Isles became part of Scotland, Udal law continues to have practical consequences for modern development. As renewable energy projects expand across Orkney and Shetland, understanding those historic property rights remains an important part of delivering successful infrastructure projects.
How we can help
If you are considering a renewables project in the Northern Isles, or have questions about an existing one, contact Ellen Eunson.