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.
‘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.