Ground shaky on coastal property law rights

There is no fundamental right of property owners to protect their land from rising sea levels, according to research by a Southern Cross University academic.

PhD candidate John Corkill OAM, from the School of Law and Justice, recently published research in the Australian Law Journal (2013, vol 87 pp 49-58) titled ‘Claimed property right does not hold water’. His research about the impact of erosion and rising sea levels on coastal properties, considered a relatively modern problem, uncovered relevant decisions by English courts more than 130 years ago.

“Unfortunately for private property owners, but fortunately for the public interest in the coast, there are three areas in which private property advocates have erred in their arguments,” he said.

“Firstly, there is no common law right to defend the sea in NSW. Secondly, such a claimed right is not and never was a fundamental right and thirdly, State Parliament has the widest possible legislative powers and may repeal, amend or ignore claimed property rights.”

Through his research, Mr Corkill found that the claimed common law right of land-owners to defend their property was first considered in England and that the defining case was decided in 1880.

“It is likely that work done centuries ago by English landowners on their own land to build and maintain sea defences was undertaken under common law, and in that sense, the landowners would appear to have once had a common law right to do such works themselves,” he said.

“However, while the court acknowledged the existence of this right at common law at that time, and recognised the need to prevent others from removing sea defences, this recognition did not extend to an enforceable right which could compel either the Crown or neighbours to build or maintain sea defences. The court also noted that since the 1400s works by the English Crown to construct sea defences had been carried out under the relevant legislation, not under common law.

“Furthermore, to rely on this limited recognition by an English court more than 100 years ago erroneously assumes that the enactment of NSW legislation which governs coastal management has not affected these common law rights. This is wrong, as the case law in New Zealand demonstrates.

“It is clear that the old English common law duty and the imperfect right of defending property has been supplanted in NSW by relevant legislation, whose objects also include the sustainable management of resources, and whose provisions also include relevant rules, plans and policy statements and procedures.

“Under current NSW law, coastal hazards such as coastal erosion and shoreline recession are managed by local councils using Coastal Zone Management Plans. This is part of a coherent scheme of legislation and therefore any Crown duty or imperfect right of a subject that may have persisted in the common law has been extinguished.

“As a consequence, the NSW Government has today no common law duty to protect against the inroads of the sea and the Minister’s power to construct coastal protection works such as sea walls, which is operated under the relevant modern legislation, is now, and has been for many years, discretionary, not mandatory.”

Photo: John Corkill.