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March 1, 2021

Rights of landowners fighting coastal erosion ‘on shaky ground’

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Coastal erosion, such as this at Belongil, is causing headaches for home-owners and councils alike, but a property law experts says landowners have no basis in law to claim they still own the land lost to rising seas. Photo Jeff Dawson

Coastal landowners in NSW have no basis in law to claim they still own land that is lost to rising seas, according to a Southern Cross University (SCU) researcher.

Property law expert John Corkill is asking state legal authorities to clarify whether property owners have a right to protect their properties from coastal erosion: a contentious issue up and down the NSW coast, especially at Belongil Beach in Byron Bay.

The PhD candidate from the School of Law and Justice at SCU is hoping the NSW Registrar-General will take up the case with the NSW Supreme Court so it can rule on the status of fixed boundaries of affected properties.

Mr Corkill has recently published research focusing on the common law doctrine of accretion in the Property Law Review titled ‘Ambulatory boundaries in NSW: Real lines in the sand’.

‘Disputes over the ownership of land covered by the sea date back to the 14th century in England so the doctrine of accretion is an ancient and well settled legal doctrine,’ he said.

‘Ambulatory boundaries are natural boundaries formed by a permanent body of tidal or non-tidal water,’ he said.

John Corkill
John Corkill

‘In NSW, under this doctrine, boundaries formed by tidal waters are defined by the mean high-water mark and all land below this belongs to the Crown, as in the NSW government.

‘The doctrine of accretion holds that, since the position of bounding water-lines may move over time, legal boundaries formed by water may also change over time, but only if two conditions are satisfied: the change must occur gradually, and as a result of natural processes.

‘Australian case law has made it clear that where land is gradually eroded by the sea, or covered by rising seas, any part that comes to lie below the mean high-water mark ceases to be land that is “real” property.

‘When that happens a boundary originally defined by survey ceases to exist, the property gains an ambulatory boundary, and the ownership of the lost land reverts to the Crown as the NSW government.

‘Hence references to a property boundary’s being ‘‘fixed’’ are, in fact, misleading,’ he said.

Mr Corkill found that under the common law and current NSW statute law, when land is lost to the sea no compensation is payable to landowners.

‘Because the land is lost, not through a decision by government, but because of the action of the sea, the land is not acquired under NSW legislation, but is ‘‘silently transferred’’ under common law,’ he said.

‘Further, because land that falls below the mean high-water mark ceases to be real property under the Act no ‘‘property’’ is in fact acquired, with the result that there is no basis for a claim for compensation.’

Mr Corkill further warns that the impacts of the doctrine of accretion are not limited to tidal waters.

‘As the entrances to intermittently closed and open lakes and lagoons are affected by erosion and rising sea levels, it is likely that these water bodies, previously not subject to tides, will become continuously connected to, and part of, the tidal waters,’ he said.

‘When these entrances become permanently open, the basis of earlier rulings that the doctrine of accretion did not apply, owing to their non-tidal nature, will change.

‘As seas rise, many land titles that become bound by the waters of the open coast, tidal rivers or tidal lakes will be so adversely affected that eventually they will be wholly lost to the sea.’

Given that in NSW residential land alone that is threatened by coastal erosion and a sea-level rise of 1.1 metres has been valued at between $12.4 billion and $18.7 billion, Mr Corkill said it would be unlikely that the NSW government would introduce legislation to overturn the doctrine of accretion and make the Crown liable to claims for compensation.

‘Sea walls destroy beaches, so there won’t be beaches in Australia in the future if we go down this path, and with it go all the recreational resource, all the wildlife habitat, all the fisheries nursery habitat, all the industries and focus that comes from coastal industries, such as tourism, surfing. All of those things will basically face steady decline,’ Mr Corkill said.

Mr Corkill told the ABC that a legal battle last year in which residents of Old Bar on the NSW north coast were blocked from building a rock wall to protect their properties had partly prompted his action to ask for clarification.

The Old Bar case was won by the NSW Coastal Panel, but property owners there and the NSW government are looking into the government’s building the wall instead.

Mr Corkill told the ABC that the Old Bar residents’ case was based on an unsound argument that ‘there’s a right to build a sea wall and that we have a legal obligation to approve them’.

‘Now, neither of those two things are in English law; they haven’t been part of the Australian law for years and to revive them now as a basis for coastal protection, when the law is quite clearly the other way, is mischievous,’ he said.


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6 COMMENTS

  1. Another Southern Cross Uni voice shooting from the hip!
    RE: “Mr Corkill has recently published research focusing on the common law doctrine of accretion in the Property Law Review titled ‘Ambulatory boundaries in NSW: Real lines in the sand’.”

    Mr Corkhill is confused and is causing confusion in the public mind and his view is disputed in other venerable law publications.

    It should first be noted that the legal issues at Belongil Beach have nothing to do with the slow impact of erosion and erection on property boundary positions that area of law reference by Mr Corkhill is simply not applicable to issues at Belongil.
    He says that “Coastal landowners in NSW have no basis in law to claim they still own land that is lost to rising seas” He is most unlikely to be right in relation to Torrens Title, a recent form of title that was expressly developed to put an end to past confusions and disputes over property boundaries. This also begs the question, if the law is so clear and in agreement with Mr Corkhill’s view, why does it need a test case?

    At the center of Mr Corkhill’s confusion about Belongil Beach legal issues lies the fact that rising seas and slow erosion and erection have nothing to do with damages caused by artificial coastal realignment, for example, the damage caused by Council’s built structures such as the Jonson St protective works . The relevant area of law is tort and there is a long history of supportive law related to this kind of damage caused to property.

    The right to or possibility of implementing protective works also has nothing to do with the area of law Mr Corkhill wants to test.
    What is the point of a test case when in cases like Belongil Beach the issues are far more complicated than the simple view expressed by Mr Corkhill and the answers and legal remedies would vary with each individual case..

    Mr Corkhill states,”Sea walls destroy beaches, so there won’t be beaches in Australia in the future if we go down this path, and with it go all the recreational resource, all the wildlife habitat, all the fisheries nursery habitat, all the industries and focus that comes from coastal industries, such as tourism, surfing. All of those things will basically face steady decline,’ Mr Corkill said.” Once again shooting from the hip?

    This statement is simply [wrong] and expresses a […] personal uninformed and simplistic view of coastal processes particularly as they relate to Belongil Beach.

    Do rock walls necessarily destroy beaches? The Gold Coast beaches have had rock wall protected residences on the beach front for almost fifty years; rock foreshore protection works at Manly and Bondi Beaches in NSW have been in place for over 100 years. There is no evidence in these locations of any long term impact on sandy beach amenity, surfing and tourism in these locations!

    The current Belongil Beach dune system has been expertly dated as over 5000 years old. There is also no dispute that sea levels over that 5000 year period has averaged 1 meter than present levels and up to 1.7 meters higher at times.
    These facts put Mr Corkhill’s boundary issues into a sensible perspective

  2. ‘Do rock walls necessarily destroy beaches? The Gold Coast beaches have had rock wall protected residences on the beach front for almost fifty years’. John Vaughan April 3 2014.

    Have you had a look at the Gold Coast beaches in the last few years John ? The amount of sand trucked onto the beach ? The 24 hr sand pumps ??

    I tried to walk along Belongil Beach last week (not at high tide, low surf) and was repelled by the ocean meeting the rock walls built by the ignorant and greedy. Greedy, like Metgasco shareholders…….

    • Global warming doctrine tells us that bush fires will be more frequent and extreme due to man made climate change, should we extend the doctrine that Mr Corkill espouses, (that is not to assist people affected by man made sea level rise) to those impacted by future bush fires?, should we close down the RFS and let bush fires proceed naturally and un impeded?, So what is a few people die and a few houses burn down, after all, they chose to live there didn’t they.
      Your assertion that people who own properties projected to be impacted are “greedy” or “wealthy” is flawed as the majority of coastal property is in comparatively low cost areas when compared to suburban home values.
      The cost of protective adaptation is comparatively low and would also benefit the wider community through preservation of public beaches, sea walls while vilified do work but are not the only solution, world wide artificial reefs are being used to protect and improve public beaches. Mr Corkill’s views seek to insulate the wider community from the cost of man made global warming, and lack any consideration of social equity.

  3. Shoot the messenger eh? Did Mr Vaughan actually read the journal article? Did he go to the website and read submission to the Registrar General? Or is it he who is just ‘shooting from the hip’?
    The reason we need a test case is because of arguments like this put by landowners like this, that they own the land below MHWM, that their claimed property rights are paramount and that they know it all. The case law from NSW is clear but the false claims of landowners persist contrary to clear declarations of law by senior courts. Unless landowners drop the nonsense about property rights providing a basis for seawalls, or compensation etc….we need the Supreme Court to provide a clear ruling as to who is right. The law, as I explain it, is specifically about Torrens title land, so that pseudo-argument and nonsense rebuttal just doesn’t wash, sorry. My research is not some mere ‘personal, uninformed opinion’, as Mr Vaughan, sledges. It is research published in eminent peer reviewed law journals refereed by law professors, and Mr Vaughan’s view is not. It is the spouting of a vested interest. Saying that other venerable law journal articles dispute my published research is ‘playground level discussion’ of complex matters. What journals? They dispute my findings how? My review of thirty years of published research on seawall impacts here, in the US and in the UK shows that there is very high degree of agreement about adverse impacts of seawalls. Mr Vaughan would have us ignore that research and instead believe his ‘opinion’? Me confused? EchoNet readers should review my research and then form their own view! And BTW its Corkill, not Corkhill.

  4. John Corkill, you will agree you are not an expert on sea-wall impacts. So let’s be practical and local, Wategos Beach is and has been protect by a sea-wall for over forty years. The wall protects a public road and the property behind.You would agree that generally the sandy beach amenity has been maintained for the public? What are the deleterious impacts of this wall Mr Corkill?
    Should it be removed and the road and property behind be exposed to severe storm events? Should the Council have no right to protect the residents of Wategos beach via this rock wall? If the sandy beach amenity at Belongil Beach can be managed as coastal engineers have been able to do in other places what is the problem? Belongil Beach residents simply want the serious impact of Council’s Jonson St structure on the Belongil Dune system and the sandy beach amenity managed, it’s not rocket science.

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