Guidelines for sustainable intertidal bait and seaweed collection in Wales: Legislative review

The foreshore is subject to various public rights including the public right to fish in tidal waters. Ancillary to this right is the public right to collect, for personal use, bait on the foreshore and floating seaweed from the tidal waters. The collection of bait for commercial purposes is not permitted by the public right to fish, nor can it be the subject of a customary right. The collection of fixed seaweed or seaweed deposited on the shore cannot be the subject of a customary right either. To be legal, any such activities must be permitted by an acquired legal right known as a ‘profit à prendre’, which must be established either by an express grant, or by prescription (usage over time), or by permission of the land owner. This means that the legal position of persons carrying out activities on the intertidal area may well vary from site to site, depending on the nature of the relationship between the users and the landowner. The conservation legislation applicable in Wales comprises two main pieces of legislation; the Wildlife and Countryside Act 1981 and the Habitats Directive (implemented in the UK by the Conservation of Habitats and Species Regulations 2010). The Wildlife and Countryside Act provides the mechanism to designate an area as a Site of Special Scientific Interest and then protects those areas against both occupiers of the land and third parties that may damage the flora, fauna, or features for which the area was designated. Occupiers have a higher degree of responsibility for activities which they permit on their land.The Habitats and Birds Directives each require areas of land, foreshore and sea to be designated and managed for the conservation of particular habitats and species. In addition, the Habitats Directive places positive obligations on various public bodies to manage the designated areas so as to comply with the Habitats Directive. Both these pieces of legislation require active management of bait collection on the foreshore.The public right to collect bait (when exercised as part of the public right to fish generally) and the public right to collect seaweed cannot be curtailed other than by the Welsh Government by Act of Parliament. It may be regulated by byelaw, but such byelaws will need to be drafted carefully and be in line with enabling legislation.Collection activities can be regulated in a number of ways and by a number of different bodies. The most obvious being: •the Welsh Ministers under the Marine and Coastal Access Act 2009 and Sea Fish (Conservation) Act 1967; •National Resources Wales under either the National Parks and Access to the Countryside Act 1949 or the Wildlife and Countryside Act 1981; or •the relevant County Council under the Public Health Acts Amendment Act 1907.Regardless of any byelaws created under any of the above legislation, any collection activities not covered by the public right also need the permission of the occupier of the land in question. There can be no ‘one size fits all’ approach to bait digging management, as the key is to ensure that any management strategy is backed up by reliable scientific evidence specific to the area in question. The level of bait digging activity that may be acceptable for one area of foreshore cannot be extrapolated to apply to all areas of the coast. As well as a tailored approach suiting the specific area in question, any management strategy must include (as an integral part of that strategy) a package of enforcement measures which seek to ensure that the strategy is adhered to by all users of the foreshore. A strategy which is not backed up with adequate enforcement measures is likely to fail and may expose the implementing authority to the risk of infraction proceedings under the Habitats Directive