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Are archaic laws getting in the way of Australians enjoying the beach? Tim J Keegan/Flickr, CC BY-SA

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.

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