Disputes over the ownership of land gradually surrendered to the sea date back to 14th-century England. Now, in this time-honoured tradition of legal argy-bargy, the great 21st-century seawall debate is being pushed towards the NSW Supreme Court.
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The NSW Registrar General is reviewing a request by environmentalists, coastal councils and property law experts for the Supreme Court to clarify whether beachfront landowners have the legal right to defend their homes from the ocean or governments have a duty to intervene.
The court would be asked by the Registrar General for a binding determination for the administration of the law, known as a stated case. The court receives only one or two of these cases each year.
Last year, John Corkill, a Southern Cross University PhD candidate and former environmental campaigner, concluded that while landowners had a limited common law right to defend against the sea by building walls, that right is trumped by NSW coastal protection laws that acknowledge beaches should be preserved for the public good.
He reached this point after reviewing English court rulings dating back hundreds of years, as well as modern Australian and New Zealand cases.
''The doctrine of accretion holds that, since the position of bounding waterlines may move over time, legal boundaries formed by water may also change over time but only if two conditions are satisfied - the change must occur gradually and as a result of natural processes,'' he said.
''Australian case law has made it clear that where land is gradually eroded by the sea, or covered by rising seas, any part that comes to lie below the mean high water mark ceases to be land that is 'real property'. When that happens, a boundary originally defined by survey ceases to exist, the property gains an ambulatory boundary and the ownership of the lost land reverts to the Crown as the NSW government … Hence references to a property boundary being 'fixed' are, in fact, misleading.''
Tom FitzGerald, Australian Coastal Society NSW convener, said the Supreme Court needed to intervene before a storm of legal action took place. He said the society had written to the Registrar General urging him to make the referral to avoid years of disputes as sea levels rise.
Angus Gordon, the NSW Coastal Panel chairman, who advises Environment Minister Robyn Parker on seawall approvals, said a ''fundamental questioning'' of the ownership of private property and the beach now existed.
