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Belongil residents’ bid to repair sea walls rejected

The Land and Environment Court has rejected a bid by three Belongil residents to repair the sea walls in front of their beachfront homes. Photo Chris Dobney

The Land and Environment Court has rejected a bid by three Belongil residents to repair the sea walls in front of their beachfront homes, on the grounds that it would restrict public access to the beach and foreshore.

In the latest chapter in the ongoing Belongil sea walls saga,Chief Judge Brian Preston dismissed an appeal by wealthy landowners John James, Bob Watson, and Geoffrey Tauber on December 21.

The landowners originally applied to the NSW Coastal Panel to undertake the repair works in January 2017 but received a ‘deemed refusal’.

They then took the Panel to court, arguing that they were simply seeking to repair the existing sea walls and so there would be little or no additional impact on public access or use of the beach.

See also: Mayor claims claims coastal management plan derailed by Belongil landowners

They said the works would in fact improve both public safety and access to the beach, and protect public property, as well as their own homes.

Unlawfully built

However, Chief Judge Preston found that the sea walls had been unlawful in the first place because they were built without development consent.

This nullified the residents’ argument.

‘By law, the sea walls should not exist on the beach,’ Chief Judge Preston said in his judgment.

‘The landowners’ argument that the repaired sea walls will not result in any additional limiting… of public access to or use of the beach… is based on, and seeks to take advantage of, the unlawful existing works and use… it is to be rejected.’

Erosion concerns

The Echo understands that the Coastal Panel’s view is that building hard structures such as rock walls on beaches erodes them over time.

No sand-loss mitigation plans have been put forward by the landowners.

Belongil resident John Vaughan, who has campaigned for the rights of beachfront property owners for many years, said Judge Preston’s finding that the beach walls were unlawful was ‘clearly nonsense’.

‘Tauber’s wall was installed after Council’s 2000 injunction failed, and works were allowed by the court to continue,’ Mr Vaughan said.

‘Watson’s wall – built circa 1976 – was installed by the Byron Erosion Trust… with the full knowledge of Council. No DA [was] requested or apparently needed.

‘The Walker’s meatworks wall [next to Mr James’s property] was known [about] and consented to by Council in 1976 – no formal DA demanded or required at the time.’

Mr Vaughan said each of the walls had been built in response to Council’s construction of the Jonson Street groyne to protect Main Beach and the town centre itself in the early 1970s.

‘Ignoring the impact of Council’s Jonson Street works and sheeting home the blame to the residents’ walls… is an extraordinary finding,’ he said.

‘It also essentially says to Belongil residents: “You can’t repair your sea walls even if you’re willing to pay for it yourself”.’

The court’s decision has brought renewed calls for the release of a coastal plan of management so that beachfront property owners across the Shire have clarity around what measures they can and cannot take to protect their homes from coastal erosion.


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15 responses to “Belongil residents’ bid to repair sea walls rejected”

  1. John Bailey says:

    I have been a resident of the Byron area for 26 years.I have seen the beach come and go,originally protected by car bodies and timber and in later years rock works.Residents should be allowed to protect their homes and the concept of planned retreat is BS as much of Byron CBD is at or below sea level and a breach of the Belongil dunes could see a flood event like no other.

  2. Craig Potter says:

    Why is it necessary for the Echo to call these people ‘wealthy land owners’ ? When I lived in Byron I lost count of the number of times I heard people say stuff like “rich bastards, they deserve everything they get”. Sickening bitterness and jealousy aimed at people they’d never met. These are people who just want to save their homes and the assets they have worked for. Keep it factual Echo. Whatever your views on planned retreat or rock walls are, personal enmity towards those who’ve done well has no place in the argument.

  3. matt says:

    Dumped car bodies sounds like a creative solution

  4. Dailan Pugh says:

    Beaches do come and go, though the trajectory for Belongil Beach is that it is going as proven by numerous studies, with sand losses of 63,000 m3 to 113,000m3 per annum. It is not just the beach that is going, the ad-hoc Belongil walls have greatly accelerated erosion at their western end, causing a recession of some 32m since 1999.

    The Byron Bay embayment has a natural sand deficit problem, with more sand transported by waves out of the bay than enters it. This is being exasperated by rising seas due to climate change. The Belongil rock walls have stopped Belongil Beach being able to retreat inland and already cost the community the loss of protective dunes and a lot of the beach.

    If the Belongil rock walls are allowed to continue to stop the beach retreating inland then it will continue to come and go until it is all gone. With sea-levels likely to rise by over one metre by the end of this century it won’t be long before the public beach is lost from in front the rock walls.

    A handful of private landowners should not be allowed to deprive the community of a public beach, particularly one estimated to be worth over $20 million a year in tourism revenue.

  5. Bruce McQueen says:

    What an extraordinary response to the court’s ruling by Mr. Above-the-law. Seems that in this day and age those with money believe they have a god-given right to break laws as they wish and the courts will let them do it!
    We continually see this type of arrogance from property developers, loggers and the latest scourge this region, the water miners.
    The natural assets and beauty of the Northern Rivers and Coast are for all to share. Maybe the only way to convince the arrogant rich that they are not above the law is to start gaoling them for their wanton lawlessness.

  6. John R Corkill says:

    The Land & Environment Court’s recent ruling makes it clear that the public right of access to and along the foreshore at Belongil Beach, is the superior consideration in NSW law, not the claims of private property rights to protection from the sea, made by some coastal landowners.

    The key reasons the court found the proposed seawalls “unacceptable” were that the walls would occupy ‘significant’ parts of the public beach for a long time, effectively alienating them from public use, and would limit, impede or diminish public access to and use of the beach. Thus the public interest has the highest priority among the competing rights. Further the court held it could not allow the landowners to gain from the earlier unlawful works, by granting an approval to repair them. “By law, the sea walls should not exist on the beach”.

    The message to Councils along the NSW coast from this decision, is that the public interest should be uppermost in decision making about managing coastal hazards, not private landowners’ demands, or their attempts to legitimise decades of unlawful use of public land.

    The public right of access to and along the beach has been a superior right under the common law of New South Wales for centuries and a part of the current legislative framework for decades. This decision confirms its continuing dominance. Now will coastal landowners get it?
    Private property rights are less important in the eyes of law, than the public right of access.

    Building seawalls at Belongil, on the open ocean coast, is not a sensible option, let alone ‘the answer’. We can expect metres of sea level rise in the next few centuries and more extreme storms. After this failed court bid, retreat to higher, safer ground is still the only feasible alternative. jrc

  7. John R Corkill says:

    Echonet.daily readers can decide for themselves as to who to believe about the ‘lawfulness’ of the existing seawalls at Belongil beach… Who is better placed to make a ruling…?

    Is it the private landowners – who have a direct vested interest in perpetuating the myth that unapproved seawalls are legal… or is it a senior lawyer, who is the Chief Justice of the Land & Environment Court?
    I’d back the court ever time, and these landowners ought to realise that most people would too.

    It simply does not matter what these landowners now say about their version of the history of the shoreline movement at Belongil Beach, or the timing of unapproved seawalls built by other landowners. The landowners brought the case to court and they had their chance to fully argue their case, so comments now – after the fact – which dispute the court’s ruling, on the basis of more spurious claims and recollections by another landowner, are risible, and can be afforded no credibility at all.

    The court ruled that the existing seawalls are “unlawful” and there is no genuine basis, in fact or in law, for doubting the correctness of the court’s ruling on the law of this State as it presently stands.

    Public access to and along the beach, and the public interest generally, have higher priority in law than the private property interests of landowners … This has been the law of this State for decades, and it’s about time that Belongil landowners dropped their wishful, twisted rhetoric and wised up to this cold hard reality.

    Byron Shire Council can now proceed with finalising their Coastal Management Plan for Byron Bay free from the disruptive – and now discredited – arguments of these private landowners. Council should ensure that protecting the public right of access to and along the beach, and the public interest generally, while managing the known coastal hazards of shoreline recession, are its central concerns. jrc

  8. John R Corkill says:

    Echonet.daily readers can decide for themselves as to who to believe about the ‘lawfulness’ of the existing seawalls at Belongil beach… Who is better placed to make a ruling…?

    Is it the private landowners – who have a direct vested interest in perpetuating the myth that unapproved seawalls are legal… or is it a senior lawyer, who is the Chief Justice of the Land & Environment Court?
    I’d back the court ever time, and these landowners ought to realise that most people would too.

    It simply does not matter what these landowners now say about their version of the history of the shoreline movement at Belongil Beach, or the timing of unapproved seawalls built by landowners. The landowners brought the case to court and they had their chance to fully argue their case, so comments now – after the fact – which dispute the court’s ruling, on the basis of more spurious claims and recollections by another landowner, are risible, and can be afforded no credibility at all.

    The court ruled that the existing seawalls are “unlawful” and there is no genuine basis, in fact or in law, for doubting the correctness of the court’s ruling on the law of this State as it presently stands.

    Public access to and along the beach and the public interest generally, have higher priority in law than the private property interests of landowners … This has been the law of this State for decades, and it’s about time that Belongil landowners dropped their wishful, twisted rhetoric and wised up to this cold hard reality.

    Byron Shire Council can now proceed with finalising their Coastal Management Plan for Byron Bay free from the disruptive- and now discredited – arguments of these private landowners, and Council should ensure that protecting the public right of access to and along the beach, and the public interest generally, are its core concerns. jrc

    • Peter says:

      The dismissal of these appeals to the Court is a defeat, but might be nonetheless be a considered a step towards victory.

      The key reason for the dismissals seems to be that the Court found that the proposed works would unreasonably impede public access to the beach and coastal foreshore; and that an aspect of this was that the proposed works on the existing “unlawful ”wall are in fact situated on public land, not private property.

      One would have thought that at law (even if difficult in practice) these concerns could be substantially resolved by building the proposed walls within the property boundaries, leaving the existing wall as is. A new wall so constructed would have no adverse affect on ongoing public access, and in all likelihood, temporary restrictions on public access during construction would also be reduced to a level where the “balance of convenience” would be acceptable to the Court. If this is correct, then this court decision has effectively narrowed down the points of difference between the property owners and the Panel that need to be settled to achieve a solution.

      There are other possible arguments that might also be put, but not evidently so far, to a Court. They are put in my next comment.

    • Peter Ingall says:

      Continuing from my previous comment, there are other possible arguments that might also be put.

      1. Evidently, old photos of Belongil show another street with houses in front of what is now the beach, which was washed away in a tropical cyclone last century. It is the Council’s responsibility to assure public access to beaches and to prevent the destruction of public roads situated between the sea and private property – and not the responsibility of private landowners. If, over many decades, the Council has failed to prevent or remediate erosion of public beaches in front of this now lost street and houses, as well as the street and houses themselves, it has by its failure caused the existing landowners’ predicament where they are faced with protecting their land directly from the sea.

      If so, the Panel’s argument that the landowners should not be able to protect their land should not be able to stand, given that the Council (the Council and Panel both represent the Crown) has caused the situation to arise by its failures over many decades. In legal terms, issue estoppel should operate to prevent the Panel or Council from making such objections here, even if based on legislation.

      2. Reference might also be made to Warringah Council v Franks & Ors [1999] NSWLEC 65, where the judge refused to grant that Council a mandatory injunction requiring the demolition of a wall erected in emergency circumstances, because it did not have regulatory consent. That was in Narrabeen, NSW.

      3. On the assumption that title of each of the relevant properties is a Crown grant of freehold and that there is no relevant reservation attached, any attempt by a Council or Panel to prevent a property owner from taking steps to protect his or her granted property (subject only to the general need to avoid nuisance to others), would be repugnant to the grant and so entitle the owner to compensation from the Crown for any resulting loss.

  9. Peter says:

    The irony of the judge’s decision – to find that repairing the existing wall would unreasonably impede public access to the beach and coastal foreshore – is that it, itself, in the long run ensures that continued erosion of the beach would leave nothing of the existing beach location for the public to have access to. He seems to have not realised this implication.

    Also, on the assumption that the relevant properties’ boundaries in their Crown grants of freehold are “right line”, i.e. fixed, and not bounded by the seashore as such (which would seem a reasonable assumption as the relevant properties were evidently originally landlocked), then as the beach receded onto the private land, it would then be on private property and the owners would be entitled to exclude the public entirely from the beach. So there’s a second irony for you! According to a South Australian case heard by the Privy Council, the legal doctrine of accretion does not apply to land with boundaries which are fixed in place by Crown grant.

    It is true that land which becomes submerged could no longer be registered as “land” under the NSW Torrens Title legislation, but that does not of itself deprive the landowner of ownership, because the Crown grant exists whether the designated land is submerged or not. Effectively, the land affected would revert to old system title.

    The adoption of Seas and Submerged Lands laws by NSW and the Commonwealth as part of the Offshore Constitutional Settlement means that NSW has sovereignty over waters to the 3 mile limit, so a Crown grant can persist whether it is submerged or unsubmerged. NSW would be able to resume the properties, but it would have to pay money under its existing resumption laws.

    That’s an idea! Resume all the affected Belongil properties at market value and NSW can leave the land and beach to erode without having any ongoing private property rights to contend with. Of course, they don’t have the budget to be so honest, so they prefer to erode private property rights instead.

    None of these issues seems to have been raised so far.

  10. Hi All Concerned,

    Unlike rock walls and sand bags, Sandcell from Australian Coastal Walls does incorporate pedestrian stairs and boat ramps that actually make beach access more readily to accomplish.

    Please see examples displayed on our website. These walls were installed over 38 years ago and are still doing their job more than adequately with little to no maintenance cost.

  11. Veronica Guy says:

    I never had much time for Ian Kingston, but he did point out that you can’t change coastal processes. He is even more correct now as climate change bites more ferociously.
    Mind you, Byron Council made quite a lot selling those Belongil blocks to those who had enough money to buy and build.
    This fight between Council, Belongil homeowners and the State has been going on for decades. Kingston said that those home ownersshould build homes that could be transported back as the beach was eroded. A sensible argument.
    Any sea wall merely seems to take sand from the south and transport it north, so the Belongil beach keeps on eroding.
    If any of you were around in 1954, you would have seen the demise of properties during that cyclone.
    A similar thing happened in 1974.
    If you want to live on the beach, you takes your chances. You wanted it you paid a greedy Council the agreed cash and now you takes your chances.
    So, belatedly, I approve of Kingston’s stance n the Belongil. Suck it up you guys. You paid a massive amount for your land, even more to build your dream home only to find you were building on sand. Tough s4!t.

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