Encroachments on the Foreshore and Climate Change

The policy document entitled “Policy: Encroachments on the Foreshore” has two definitions relating to the foreshore:

Foreshore: The land surrounding Jersey, as customarily described as lying between the “high water mark of full Spring tide” and the “lowest mark of tide”.

Reclaimed Foreshore: Areas of the Foreshore which have been subject to development to potentially enhance the use of the land, ie, the construction of a sea defence, and in-filling the void behind the wall to create a level area of land.

Other important definitions are:

Encroachment: Unauthorised and unlawful entering upon the land, property, or the rights of another party.

Flood defence: A structure intended to provide defence of land against sea water or coastal erosion. Commonly referred to as a seawall.

With regard to “reclaimed foreshore”, the policy document says that there is a general presumption, inter alia:

a) against parts of the Foreshore being annexed and incorporated by adjacent private landholdings
b) that the Public’s property rights in respect of the Foreshore, including areas of reclaimed Public land behind sea defences, will be protected

Item (b) is very vague, but if we take (a) and (b) in conjunction with each other, that would seem to cover the waterfront reclamation land as well as the land reclaimed and built upon at the bulwarks at St Aubin by private property owners.

I am sure the policy does not intend that to be included, but it illustrates the problem with its definitions and policy, that it is so vague. It lacks sharp clarity.

A better examination of the Foreshore is given by Richard Falle and John Kelleher in their paper “The customary law in relation to the Foreshore”.

What do we mean by the foreshore? English law is clear: the foreshore is to be considered as land, having mutatis mutandis the same character as terra firma. Coulson and Forbes’ The Law of Waters offers the following definition -

“The seashore or foreshore may be defined as that portion of the land which is alternately covered and left dry by the ordinary flux and reflux of tides. Although in common parlance the word “shore” has more often a more extensive meaning - taking in all that extensive belt of waste ground or strand, shingles and rock liable to the action of every kind of tide - yet it is now finally settled that in legal intendment no more of that unclaimed tract is seashore or foreshore than that portion which lies below high-water mark of ordinary tides.”

The position in the Islands generally is, however, in one fundamental respect, different from England and, indeed, the rest of the British Isles. Custom, rather than case law, has from the earliest period, defined the character and extent of the foreshore in Normandy and its Isles. We infer from the texts that the foreshore is to be regarded as one with the adjacent land, that is to say, as one with the rest of the maritime fief. The relationship of physical dependence is a matter of simple observation; where municipal sea defences do not interpose an artificial division, the beach and terra firma are a continuum.

In the late nineteenth century, the Loi (1882) établissant des Parcs à Huîtres, conferred on the States of Jersey power to grant oyster concessions over the foreshore. It is sufficient here to note that the law defined foreshore thus -

“Edge and foreshore of the sea” shall be deemed to mean all that it covers and uncovers during the new and full moons and as far as the great tide of March can extend over the beaches.

While the custom law considers reclamation and sea defences, in one respect it tends to consider the foreshore as more or less static – there can be land reclaimed by alluvion (land reclaimed by sediment being deposited by sea or stream).

The Crown Estate document has a better definition of Foreshore that accommodates this:

“Foreshore has a legal definition which is the area between mean high water (MHW) and mean low water (MLW) (and MHW springs/ MLW springs in Scotland) and as such it is effectively a moveable freehold, subject to the doctrine of accretion and diluvion (explained below).”

“Diluvion is the gradual, imperceptible and natural erosion of land above MHW causing the land to become foreshore. The newly created foreshore becomes owned by the owner of the adjacentforeshore. Accretion is the opposite of this process whereby foreshore is subject to natural deposition of material which causes it to increase in height above MHW, rendering it non tidal.”

The Crown Estate document also has a better understanding of the problems faced with definitions of Foreshore:

“Where a sale of foreshore or seabed is anticipated, unless the sale is for subsequent land reclamation, or for permanent barriers to the sea, e.g. for a new harbour wall then in our experience great care should be taken if this is considered as an opportunity to fix the boundaries of the sale – experience has proved that these can be difficult to interpret and problematic in later years both for foreshore and adjoining landowners, where these differ, due to the dynamic and unpredictable changes in the shoreline. This problem may be exacerbated by predictions of mean sea level rise and increased wave height.”

Foreshore is therefore strange legally because it is a “moveable freehold boundary”, in which the concept of gradual change plays an important part.

It should be noted that the policy document issued by the Department of Infrastructure presents a hugely oversimplified definition of Foreshore which seems to assume it is completely static. There is no mention of “moveable freehold”, but instead it is treated in the policy document as if it were a fixed freehold.

What is also not accounted for is the possibility that – other things being equal – the foreshore can change more rapidly because of climatic conditions, and in particular, rising sea levels, but also severe weather conditions leading to more severe weather events, and greater high water marks.

In his paper, “Reconsidering Coastal Boundaries in the Face of Sea-level Rise”, Mick Strack observes that:

“The law is not concerned with trifles or matters that cannot be readily observed, the legal boundary will follow the movement of the natural feature (usually the line of MHWM) as long as the movement is slow, gradual and imperceptible”

And he comments that:

“The rate of future sea-level rise is unknown and speculative, but historic trends suggest a rate that by any legal interpretation must fall within the definition of slow, gradual and imperceptible (not changing during hour to hour, day to day observation). However, the effect of storm events on coastal topography (and boundaries) is often readily observable in its progress in taking land and encroaching upon boundaries.”

Sea level rise may well be negligible out to the current planning horizon, but the evidence seems to be that more extreme weather is already upon us. This is also considered by Joseph L. Sax of Berkeley Law in his paper “Some Unorthodox Thoughts about Rising Sea Levels, Beach Erosion, and Property Rights”

He comments:

“As the sea rises, if the accretion/erosion rule is applied, the sea and the state's migratory ownership will cover the upland. That looks like a physical invasion of the upland owner's property, but it hardly seems appropriate that application of the traditional common law erosion rule would ipso facto constitute a taking of the upland owner's property."

“The rate and magnitude of the rising sea levels are physically quite different from the historical experience out of which the common law rules grew. The rising sea level is neither gradual like traditional accretion, erosion, or reliction; nor is it sudden and violent like traditional avulsion. We are facing a historically distinct situation that is not a good factual fit with the "background" rules.”

I can't see any easy solutions. This blog is not about that. But at a time when the Foreshore boundaries are being contested, it is an attempt to show some of the issues raised by using an ancient definition which allows for gradual change of coastal boundaries at a time when they may be much more rapid that the traditional legislation allows.