Who owns the beach when the sea is rising?
We commonly assume that Australians have a fundamental right to access the vast array of beautiful beaches that fringe our continent.
But as sea levels rise, these assumptions are being put into question. Two recent events, one in New South Wales, the other in Victoria, have highlighted the issue of beach ownership and access.
Staying put
In 2013, at Old Bar on the NSW north coast, landowners submitted a development application to construct a seawall that would have extended onto the public beach. They did this under their land title, which had a “fixed” or “right line” boundary. At Old Bar, the beach and dune has been receding for a lengthy period so the original “fixed” boundary on dry land was now on the active beach.
The NSW statutory Coastal Panel acting under the Coastal Protection Act 1979 rejected the application. But if the application had been successful, we could have seen the beach divided into sections preventing safe beach access in front of the planned seawall.
Then, this past summer, Victorians were made aware of a title extension onto the Point King Beach near Portsea by trucking magnate Lindsay Fox. Officials accepted his claim based on the seaward movement of the high water mark under the so-called “doctrine of accretion”.
Fox’s property is a somewhat unusual case. Unlike the “fixed” property boundaries held by most titles, Fox’s and nearby properties have “ambulatory” boundaries. This means they can move seawards with the mean high water mark as sand builds upon the beach.
But if there is erosion of the beach, the registered high water mark will move landward, resulting in property loss. The doctrine is ancient common law based on a principle of gradual and imperceptible movement of the shoreline; and it’s unknown how many of these properties exist around Australia’s coast.
Privatising the beach
Both cases have a similar objective: for the private landowner to use what they see as a property right to claim land for private purposes. In the case of Old Bar it was for property protection and at Port King Beach it was for personal amenity.
What these two cases highlight is that there appear to be valid ways for land owners to “privatise” the beach, or part of the beach. Attempts to do this in the USA and UK have led to community conflict, legal battles and government intervention. Australia is seeking to learn from their experiences in how the interests of the public are secured, as more and more land that is privately owned is becoming threatened by rising sea levels and shoreline recession.
It is complicated where the law permits compensation if land lost is converted from private to public use, a situation that can occur in the US but not in the UK.
John Corkill, a legal scholar at Southern Cross University, is studying aspects of the Australian shoreline law, in particular in NSW where there is a mix of “right line” and “ambulatory” titles. His research indicates there is a level of ambiguity regarding the operation of NSW property law when the mean high water mark gradually moves across a “fixed” boundary. He is calling on the NSW government to put in place a process that would clarify existing uncertainties.
In Victoria, the Planning Minister and others have expressed concern over the extension of title to Mr Fox. The government is currently exploring ways to stop coastal landowners with similar titles from claiming what is considered to be “public beach”.
Beaches for public good?
We have a legacy of property subdivision on land immediately adjoining beaches. Whatever the specifics of the freehold title, “ambulatory” or “right line”, the situation is ripe for increasing dispute between public and private interests.
It could be argued that our beaches should be enshrined as Crown Land held in trust by governments for the “public good” with unfettered right of access. This principle should be recognised in law in each state of Australia. Corkill’s work shows that actions must be taken soon by governments to resolve the present confusion and ambiguities in law.
The “time to act is now”, as stated in the 2009 House of Representatives Inquiry on managing our coastal zone in a changing climate. Sea level will continue to rise well into the future and coastal recession will become more prevalent, as it already is along the shores of large parts of the US and UK. We cannot afford to leave a legacy of restricted access or shores armoured by seawalls with no beach in sight.
This article was originally published in The Conversation.
Comments
The Ocean is owned by the Sea life its theirs to rule. As for Beaches they are owned by everyone(who rides a board that is :) If any group of people has the experience in knowing how to preserve our coastline it is us THE SURFERS!!!!! If any local government wants to know if submissions are safe and good for the coastal environment they should get advise from the local surfing Fraternity. FULL STOP.
If there are some really interested readers they could look for precedents in the way accreted land along rivers is dealt with.
The additional land becomes crown land. The landholder who loses the bank gets no compensation.
The access usually being limited to the landholder next to the accreted land the Lands department offers a licence to use the land as long as it adheres to local zonings.
The fee is only some hundreds of dollars.
It isn't a perfect comparison but agitation to change These laws will have legal impacts beyond the coastline I'd guess.
Yeah well I'm willing to bet that the Portsea issue had more to do with deepening of the heads entrance than just mere rising sea level .
Kerry, a wonderfully spiritual contribution, along the lines of 'only surfers have a valid knowledge of what goes down at the beach'. I can't agree with you. Surfers are as conflicted in their perspective as anyone else, but generally with a narrower range of knowledge to contribute to the argument.
I don't think surfers worked out climate change, don't really know anything about property laws, would struggle with the ideas behind the 'fair compensation' aspects of the constitution. Actually, all that surfers can contribute to the debate is a knowledge of sand and ocean movements over a given area, and a less than selfless perspective of ownership of a certain break.
I have been close to this issue for some 20 years now. I am well aware of Bruce Thom's work, and have read his many contributions to the debate as Professor Bruce Thom. A quick google shows that Professor Thom is now an Emeritus Professor, essentially meaning that he is retired, but probably still active in his research. What he doesn't say here is that he is almost certainly the foremost expert in Australia on this issue, and his references to the work of John Corkill underplay his vital and ongoing knowledge, research and academic papers written on the subject, his leadership of various government bodies in advising governments on the issue.
It does need clarification and codification. Beach erosion is inevitable. How the law recognises that and responds to it is completely clouded, with governments desperate to do nothing at all until they have to.
The Old Bar case was one of the ground breaking legal responses, as was a decades long fight between residents at Belongil with the Byron local council, and here was a great example where local council actions, building a rock wall on main beach, literally and definitively caused the erosion at Belongil. What happens then.
Well, what happens is 20 years of residents fighting with council, lawyers getting fat on the profits of work because governments and councils don't want to acknowledge and deal with the problem, and won't admit any culpability for work that they have done in the past which directly contributes to the problem.
The Portsea case is unusual, in that normally it is about land being lost rather than accreted. I doubt that Lindsay Fox would have been so successful if he wasn't one of the wealthiest men in Australia. It shouldn't be the case that these issues should be decided by how deep your pockets are.
The issue for surfers will be where beaches are lost. That will happen.
Many rivers, the issue is not so much about 'changing these laws will have legal impacts', the issue is that there aren't any laws that deal with the problem, so legal change, in the form of actually creating some laws rather than relying on common law rights and fighting through the courts, is the best way to go.
Bruce Thom refuses to blow his own trumpet, but I would want him front and centre of any legislation to clarify the rights of land owners, beach goers and the general public.
Onya batfink, I for one had no idea (i.e. re: Bruce Thom)
As for the wider issue(s), unfortunately those with the resources usually get their way until, or unless, the outcome becomes extremely unpalatable for the vast majority of people. If wealthy beach front owners start to receive compensation for the loss of their land (or have public funds used to protect their properties) that's when the majority will become involved in the "debate".
I can't help but think "the simplest solution is often the best" with this issue. If you've bought ocean front land and it starts to disappear due to natural erosion, then c'est la vie. If the erosion is due to another element (i.e. governments building walls, etc.) then that would require compensation to be fair and just ...
Let's put this into a different context. You buy land and build a house in the known flight path of an airport, and airport which is planned to grow. Do you get compensation for the extra noise? On the flip side, if you buy land and or house and there is no plan for an airport and then one is built, and it affects you, do you or should you get compensation?
Wooli is also an interesting case: http://www.protectwooli.com.au/
wingnut I had a look around Wooli earlier in the year and honestly I think the village could not be protected by anything less than a major engineering project totally out of character with the district. The property owners would be better off lobbying for a new village on crown land with free title to existing land owners. Many of the structures would be capable of being moved and they could lobby for those costs also. They also need to get their situation more into the public eye. There's a State election not too far away and they may be able to wring some promises out of the local politicians in the run up.
quite easily dealt with, many parts of CPA 1979 can be used. Most local councils signed up to Agenda 21 which holds them to inter generational equity legislation. When rich, vested interest is obviously an issue, community action a must.
AS for erosion and rockwalls, as shown by my suggestions taken onboard at places like Stockton, a rockwall- not a groyne, built with little headland and coves will trap sand and build up sand and lastly as The Tweed River SandBypass Jetty has shown, State Govts and Local Councils should investigate buying dredges if they have to- to pump sand onto eroded beaches whilst making a frame peaks in the surf zone or build artificial reefs.
@Batfink…thanks for the info - very relevant. I would have thought if land is being eroded then the public would have access below the high tide mark. That is I believe the landowner only has ownership to the 'high tide mark' assuming he had access prior to erosion. This would make it flexible regardless of the water levels.
Is there such a thing called the "Queens Chain" in Australia...?
I have heard of cases along the Murray River that uses the "Queens Chain".
It used to be a well documented legality in NZ, but I believe this changing with time.
Hard one, on one hand it would suck to buy a certain sized piece of land, then see the ocean reclaim it and it slowly get smaller and loose your right to protect it.
Then on the flip side ideally all beaches should be public space at least to the high tide line.
Governments shouldn't have allowed land to bought or subdivided so close to beaches in the first place, so its partly there fault, but too late now.
I guess saltwater canals are different if man made yeah? and what about all those mansions in places like sydney harbour that are built down to the waters edge?.
In Indo its simple you buy land to the high tide mark then throw in some big boulders, concrete, coral and start extending out and make your block bigger.
Doesn't always work though as I do know of one surf camp that leased some land then had plans to build a bridge out to a nearby rock island to build a bar, but the locals stopped them and said you don't own the rock island, your land stops at the high tide mark.
Too true
The poor bloke at Old Bar has basically been left with nothing as a result of council and government red tape.
It wasn't like you could blame him from buying in an erosion prone area either, as there was a council bitumen road plus another 50m of dunes from his original boundary to the high tide line. All that has gone, plus the 80m of his property and the council sit on their rule book and just watch it all happen and won't do a thing to assist or give permission for him to do anything to prevent it.
Makes you wonder what is going on in this world when a bloke is loosing his home when just down the road they are protesting about the river mouth being blocked by sand, wanting to open up the flow of the river and residents having to buy a private dredge to keep navigation channels open.
Yet council won't allow the guy to install geotextile bags and a very blunt no to dredging sand from the river mouth and return it back down to the south, yet they jump up and down for joy in making sand islands for birds to nest on.
Crazy
This is turning into the Maldives. Next they'll want exclusive rights to the break
if you think that through, in years to come, possibly ... YES ???
Sea level rises, beach erosion, so "old" high tide mark (and therefore property boundary) then underwater, so the "peak" might be at their back fence and your surfing into "their" old yard ... so, the landowner claims ownership of the break ... :0
Yes, I've always found a 'solution' focus is always more beneficial than an adversarial approach. HOWEVER, with most council or government 'public forums' or even 'public submissions' the organizers seem to do a great job in burying everything in bureaucracy to 'wear down' the opponents, and / or, take the focus of the issues(s) they do not want challenged - that's the real shame because it means the only way to get the message through is via an adversarial approach.
A lifetime of experience in a local area, watching sand movements and changes is also usually viewed as less value than some academic qualification - that too is a real shame.
Anyone remember the feedback from the 'old boys' regarding the impact of the changes to Kirra groyne years ago? And, look what happened :( ... at what cost to the taxpayers? That's just one example that many on here will be aware of ... plenty more around; unfortunately :(
thats why the coastal protection act 1979 and the Agenda 21 declarations plus local shire areas beach plans being so important. so if u have a local meeting concerning your coastal zone, dont focus on the negative, be part of the positive, nothing beats local experience and observation.
Jeez, our Facebook post promoting this article attracted some interesting responses too.
"As sea levels rise???? Sea levels aren't rising"
"i would have thought that surfers would be the 1st not to be controlled by the media and believe the lies"
"I've been surfin for 55yrs and no fuckin way has the sea level risen the sand moves back n forth changing the banks so fucken sick climate changers WAKE UP"
"this is just nonsense. My auntie lives on a tidal canal and has done since 1973 and she says the water level at high tide hasn't changed. If it had risen by 6cm as your graph claims the water would encroach her backyard by 3m"
"...cherry picked, averaged, skewed and biased CSIRO data to suit their idealogical stance that benefits their research funding"
"Really want to drink this mad Climate Change Kool Aid Swellnet ? Check where all your fellow Climate catastrophists live, that's right, million dollar coastal beachfront mansions and they aren't selling them. Even if it was true, what are you gonna do about it, King Canute?"
Ostriches all Ben.
Just received a quality new response (on FB) in the last few hours:
"Gay! The whole maldivian sea level rising story was one of the marketing departments tourism plan. Boy did that work......... look how many atolls have hotels now! Probs better if the sea level did rise".
And the solution is … ?? You can clearly see why the debate is superfluous but solutions are not forthcoming.
tb I posted this in another thread but it is a good indication of where the solution will be found. As the big investors pull out of fossil fuels and go into renewables, emissions will start to fall. Well worth a read.
https://www.project-syndicate.org/commentary/fossil-fuels-carbon-pricing...
Read that yesterday BB, interesting...
Cheers
Yeh the politicians think they are in charge but repealing the carbon tax is nothing if the big investors decide to put their money elsewhere. Money makes the world go round and it looks like a number of major investors have decided that dumping the carbon economy is the best way to ensure long term economic growth. It's no use making billions out of oil and coal if you're paying out more in insurance claims and taxes for the necessary infrastructure.
BB...As you know renewables is not the total solution. Except for nuclear there is no alternative for coal or gas for base load. Hence at least in the immediate term (20 years) coal is needed. Yes, I agree investors go where there are opportunities and renewables still has a period of growth. Still the debate is fractured and emotive.
tb the point is that the 20 year serious transition period needs to start now, so that the technology to deliver reliable base load power can be pursued down the various promising lines available. The financial markets can see that long term investment in carbon extraction is increasingly risky while investment in alternative sources is becoming less risky. I don't see nuclear having any significant role to play. It's old, unpopular technology with very significant environmental (and financial) risks.
BB...well if we really had an 'emergency' and hence need solutions now, then nuclear has to be on the table, regardless of its risks. Major player, China, is not doing anything major till 2030. Maybe that's what we all need to do. There is ample research in alternate energy sources. That's has been the case for well over forty years. Besides fusion there is nothing in the labs that can replace base load supply. There are of course other sources to add but not base load - specifically for large towns or cities. You would be useful to get a balanced debate on this as I am sure we all want to keep this spaceship clean and nice for all.
Yeah I understand that theory, as the floater I work on is not producing much these days, around 7000 barrels a day. They Woodside, will de-mobb the floater and close the field up soon when it drops to 6000 a day, the ongoing costs with maintenance with in guideline of NOPSEMA are too high.
I know I work in this industry and it pays the bills, after the last 3-4 years I have realised that they are not at all environmentally friendly as they say they are....:(
I do hope for a change within these big oil and gas companies, but IMO it will be awhile yet.
Early 1990s Pasta Point (Tari Village) in the Maldives was forecast to sink by 2001.
Current status no real change apart from overdevelopment of a once laid back island and a heap more plastic in the water.
We polluting the living bejeezuz out of the planet, but it will recover maybe in 1 million years or so, when as a species when are long gone and our self importance is recorded in fossils.
PS Lindsay Fox likes land grabs as much as pies just like Clive & Ginna .
Prof Bruce Thom may be the grandfather of east coast science, but I do wish he would provide some better examples than the case studies mentioned. In NSW and in most states - we already have a good system for land tenure. Why fiddle with it fiddlers?
As Many Rivers mentioned....
"look for precedents in the way accreted land along rivers is dealt with. The additional land becomes crown land. The landholder who loses the bank gets no compensation. The access usually being limited to the landholder next to the accreted land the Lands department offers a licence to use the land as long as it adheres to local zonings."
Case studies> What about case studies from Britain? - they have land tenure going back thousands of years and a chalk coast that recedes several meters each year. What happens there?
It would appear to me - the problem is not who owns the land, the problem is not where the boundary of the land is. The problem - say at Old Bar - are the local and state government sprecks who control the management of the land. The problem is with the land managers. Is our government providing us options and design solutions for rising sea level and changing shorelines - no. But yet, try and get a house design through government and the same sprecks have plenty to say about style guides and design constraints.