Landowners who block established public rights of way through their properties to the beach could face court action from government under new legislative amendments tabled this week.
Planned changes to the Prescriptions Law will allow government to apply to the Grand Court to resolve disputes involving beach access paths.
The proposal is the first legislative step toward resolving an issue that has caused conflict between beachgoers, property owners and developers for decades.
A new Public Land Use Bill to regulate how beach access paths are managed is also planned, though this has yet to be published.
The proposals come in the wake of a growing number of complaints of private land owners blocking commonly used access paths to the beach.
In some cases, property owners have erected gates and removed beach access signs. In the most extreme cases, developers have built new properties across established access paths.
Any path that has been in consistent use by the public for more than 20 years already acquires the status of a public right of way under the Prescription Law, regardless of who owns the land.
However, enforcement of this legislation has been a challenge for decades.
Speaking in the Legislative Assembly last year, Planning Minister Kurt Tibbetts said the law was restrictive because it requires aggrieved citizens to bring a private lawsuit at their own expense to the Grand Court when an access is blocked.
The amendments will allow government to do it for them, effectively giving them power to intervene when landowners block public accesses.
An introduction to the amendment, published in the official government gazette this week, indicates that an agency charged with responsibility for ensuring public access to beaches would be able to make an application to the Grand Court to have a dispute settled.
The issue of ensuring public access to the beach in the face of increasing development, particularly along the Seven Mile strip, has come before multiple governments over the past 20 years with almost unanimous support from legislators.
Despite vocal support on all sides, rights of way have continued to be blocked.
An action group, Concerned Citizens, filed 500 affidavits with government in 2003 in an attempt to convince government to register nearly 200 beach access paths as public rights of way.
Director of Planning Haroon Pandohie, at the time an assistant in the planning department, wrote a memo to government’s lawyers in support of the move.
He wrote, “The department supports the move and would be most grateful if you could process these affidavits and supporting documentation through the courts … the increased population and tourist arrivals result in decreased areas for residents. Ensuring that all residents are allowed to access the beach and sea without too much difficulty will significantly contribute to our social development.”
Stephen Hall-Jones, at the time a senior Crown counsel, wrote that it was not possible under the law to register new rights of way en masse. He said the Prescriptions Law automatically created the right of way and the courts were mandated to intervene only if there was a dispute.
He said the only way to enforce the law was for citizens to bring private actions in court on each occasion their access was blocked. He said it was not possible for government to do it for them.
“Individual members of the public must launch individual lawsuits against individual landowners for individual declarations of the court …. The problem is that individual lawsuits are expensive and individuals may not be willing to spend lots of money establishing public rights of way on behalf of the public generally.”
He advised that there was no way round this issue other than for citizens to attempt to raise money for their lawsuits.
Now, nearly 15 years later, amid continued pressure from the Concerned Citizens Group and following on from a private members’ motion from East End Legislator Arden McLean last year highlighting new incidences of access paths being blocked, government is moving to change that law.
Under the proposed changes, government or the planning department could take court action against land owners that block accesses.