From a busy stretch of West Bay Road, the distinctive beach access sign directs tourists and residents down an overgrown but serviceable path, in the direction of the ocean.
It curves through several condominium developments for some 500 feet before traversing a quiet residential street. Then it hits a dead end in the form of a locked iron gate.
Committed beachgoers can walk 50 yards farther up the road to find a second path to the beach, which locals say has been used for years. This too is barred by a gate. A sign indicates that the access is for “keyholders only.” In the other direction, a third beach path is similarly gated.
Still farther down the road, another public access sign indicates a fourth lane through two properties leading to the beach. It is accessible, though confusingly someone has engraved “private access” in the concrete.
Within this short stretch of Boggy Sand Road are four examples of the conflict and confusion surrounding the issue of public rights to the beach and the obligations of land owners to facilitate access through their properties.
Similar conflicts have arisen across the island. Several legislators have highlighted multiple access paths in thier districts that are blocked or where signs have been removed.
New laws envisioned
Now government is planning new legislation, which could come to the Legislative Assembly next year, to make the various laws surrounding beach access paths more efficient and easier to enforce.
The issue has been a source of conflict for decades.
It came to a head again, in part because of the access issues along Boggy Sand Road.
Samuel Jackson, a planning lawyer, said he was asked to investigate the legal issues around the beach accesses at Boggy Sand after it was brought to his attention by Morne Botes, a developer who is building condos in the area.
Mr. Jackson has personal experience with the problem.
Close to his home in the Barkers area of West Bay, he says, someone has built a property across a beach access path.
While various statutes cover elements of beach access rights, Mr. Jackson believes one fundamental aspect of the law is already very clear: Once a right of way has been used consistently by the public, that right cannot be removed, no matter who owns the land.
“It is incumbent on government to recognize, respect and protect these public prescriptive easements to access and use the beach and/or the sea. Anything less than that would be an abrogation of their sworn duty to the people of these islands, in my view.”
There are several types of beach access road, including semi-private – established through agreements between landowners – and dedicated public rights of way – established by operation of the Development and Planning Law regulations – and usually accompanied by the distinctive brown beach signs.
Mr. Jackson questions the legal basis for these public rights of way, but suggests that the vast majority of them should be covered anyway by the Prescriptions Law, which dictates that land acquires public ownership through constant use.
The law, adopted in the Cayman Islands in 1964, is adapted from much older U.K. legislation and predates Cayman’s Registered Land Law. Essentially it says that any path used without obstruction for more than 20 years acquires the status of a “public prescriptive easement.”
In some instances, he says, it is legitimate for landowners to restrict access where a path is registered as a private easement, essentially a restricted access agreement between a landowner and his neighbors. However, if a path has been used publicly for years, as residents claim is the case on Boggy Sand Road, it cannot subsequently be designated as private access, according to Mr. Jackson.
East End MLA Arden McLean brought the issue to the Legislative Assembly last month, calling on government to do more to protect the rights of Cayman Islands residents to the beach.
As development increases and more overseas investors buy up prime beachside real estate, he said, conflicts are increasing.
His private members’ motion was backed by several legislators, including North Side MLA Ezzard Miller, who claimed landowners in his district are pulling up public access signs and fencing off rights of way.
Planning Minister Kurt Tibbetts said government is working on a solution, though it believes new legislation is required.
He said government needs to amend the Prescription Law to allow it to bring lawsuits on behalf of the people when access ways are blocked. It also plans to introduce a new Public Land Use Bill to regulate how beach access paths are managed and who is responsible for their upkeep.
Mr. Tibbetts said the current law is restrictive because it requires aggrieved citizens to personally bring a private lawsuit to the Grand Court when their access is blocked. He suggested the legislation could come to the House in January.
At Boggy Sand Road, developer Mr. Botes said he was happy to see movement on the issue, which is an ongoing source of conflict between residents and beachside land owners.
He became aware of the problem because of a 500-feet public access that runs through his own land, where the Boggy Sands development is going up. Neighbors complained that the access hits a dead end when his land runs out at Boggy Sand Road. He said he had joined with other landowners in the area to ask for the accesses to be opened up and was happy to see progress.
Mr. Botes, who was also involved with the battle to save Smith Cove from an encroaching development, said, “By becoming involved with the Save the Cove cause I have been approached by many more Caymanians and expats that have been working on beach access issues for many years. It is clear that it is becoming an islandwide problem that needs to be rectified. The beaches of our beautiful islands should be accessible to all.”
Members of the Cayman Citizens Alliance, which fought the closure of part of West Bay Road to make way for the Kimpton Seafire resort, were credited during the Legislative Assembly debate with research on the beach access issue. Alliance members declined to comment for this article.