In these stormy days, one is reminded of Charles Dudley Warner’s quip: “Everyone complains about the weather, but no one does anything about it”. This past week, much to the exasperation of Wamberal residents as they forfeit a good slice of their back yards, we remain confused about what to do and who should do it.
Suffice to say, Mother Nature is simply the confounding bystander and as such, is exempt from liability.
Residents, on the other hand, are beside themselves with anger and frustration. We could call them coastal elites, but most are just moderately well-off individuals living the great Australian dream that is quickly becoming a nightmare.
The sea, in all its beauty and dynamism, does what it has always done and erodes the shoreline. Human-induced climate change dramatically amplifies this erosion.
So who’s responsible and who should fix it?
Maintaining a seaside lifestyle can prove a perilous proposition. We all depend on the benevolence of Mother Nature, but when her fury is artificially enhanced through climate change, is it time to question our relationship with her? That is, is the great Australian dream of a seachange and a beachfront home — firmly embedded in our Aussie psyche — now a misguided manuscript?
But who’s actually at fault here: the local council or the sea-battered residents? In the first instance, one would point to the local council as the likely culprit for approving development under conditions of climate change — at least when it comes to more recent developments.
Second, the property owner must accept some responsibility for buying or building on a site under the same conditions. Third, some degree of ignorance and apathy must be apportioned to both.
The law of the land where it meets the sea
Most importantly, what does the law say about who should own this dilemma?
Property rights are often contested, especially when it comes to ”who should pay” — and especially in the case of a destructive natural event.
Property law is complex and changeable with the time and place, but precedence is given to the socio-legal worldview of the ‘here and now’. Transition zones between terrestrial and marine environments are particularly complex.
Coastal land is constantly in flux. Property boundaries are at the mercy of accretion and erosion. Beach erosion, sea-level rise, sand drift, and storm surges are caught up in this complexity.
Moreover, local councils have provisions that prevent property owners from constructing their own revetment walls without first getting approval. That said, this is often waived in times of emergency and if the structure is temporary.
In an Australian context, in common law, where land is bounded by water, the legal boundary is the high-tide watermark. Land below the high-tide watermark is considered Crown land — as such, as land is inundated, the landowner loses title to his or her land, which reverts to the Crown.
A point to note is that any change to the water boundary must be of a natural and gradual consequence (see Corkill, 2012). No government compensation is payable for gradual loss or gain of land. Boundaries are therefore changeable as accretion and erosion rearrange them over time.
The doctrines of accretion and erosion, however, were not designed to deal with gradually rising seas and the increasing erosion as a consequence. And any system of forced withdrawal from the coastline would involve substantial interference with property rights and thus, would most likely be challenged politically and legally.
Planning to retreat
A planned retreat — a sequence of phases to withdraw physical assets from the coastline to establish an ecological and/or structural buffer — for example, would require people to forfeit ownership of their land in expectation of inundation from a rising sea level at some future time. Presumably, they would be reluctant to do this without due compensation.
In Australia, governments are obliged to provide compensation — described in the legislation as “adequate” or “reasonable” or “on just terms” — for the acquisition of land, and there is legislation governing land acquisition at both Commonwealth and state government levels.
Section 51 (xxxi) of the Commonwealth Constitution reads:“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws” (“Commonwealth of Australia Constitution Act 1900 (Cth)).
In common-law, the acquisition of private property by the government without the consent of the owner of that property is permissible provided the owner is compensated, and the acquisition is in the public interest. Note, however, that compensation is, prima facie, payable if a property is acquired and not necessarily in the case of an extinguishment of a right of property.
Privately owned land can be acquired by the relevant government either through mutual agreement or by compulsory acquisition. The law is less clear, however, whether compensation is payable should restrictions be imposed, that prohibit landowners from developing their land due to the risk of sea-level rise.
As in the Wamberal case, and many other similar cases, coastal development has fostered a culture of strong property rights driven by growth policies and the framing of coasts as places of exploitation and enjoyment.
Moreover, where the government has endeavoured to manage coastal land responsibly by limiting development, private property owners have resorted to litigation to enforce their property rights.
To avoid the prospect of contested property rights, some coastal councils are buying up beachfront properties as they come to market, establishing setbacks — planned retreat — in some instances, prohibiting property owners from constructing protective seawalls, and refusing to approve development, or insisting it is temporary or relocatable, in vulnerable coastal zones.
Development in vulnerable coastal zones can also be viewed from the position of ratepayers that are compensating beachfront property owners and developers for their indiscretion to build on land that is effectively within the high tide watermark, and well within the highest astronomical tide (HAT); notwithstanding development approval from the relevant authority to build there.
Although this might be viewed as a positive for economic growth, the impact on the coastal zone’s natural resilience cannot be viewed with the same optimism. The destabilisation of the foredunes of beaches, as a consequence of shoreline development, has significantly accelerated coastal erosion.
Looking beyond the usual fixes of revetment walls, groins, and artificial reefs
It’s time to look beyond technology fixes for habitual human indiscretions, along with the copious lists of prescribed steps that claim to solve the climate change problem, and focus on taking ”action”.
A well thought-out integrated coastal policy is an excellent place to start. Its aim should be to minimise the conflict between development objectives and adaptation imperatives, whether directly associated with climate change or otherwise:
- First, there is a need to clarify the legal liability associated with sea-level rise, coastal erosion, and storm surge inundation.
- Second, planning policy and building codes are in dire need of reform to specifically account for the manifestations of climate change.
- And third, we need to overcome idiosyncratic state legislation and work towards an integrated policy of climate change adaptation across all Australian states and territories.
Acknowledged is that the last one is difficult, but not impossible!
See our recent article:
But it will require a substantial rethink of the current policy perception of sea-level rise as a passive and gradual phenomenon, and its links to intensifying coastal erosion and storm surge.
Realistically, in most vulnerable coastal zones, a planned retreat is the commonsense option — not to mention that it also falls within a government’s
duty of care”.
Finally, to reiterate, a major goal must be to remove the uncertainty for beachfront property owners, which remains a source of conflict and frustration because of the question of liability — or more succinctly, whose responsibility is it to protect beachfront property, and who should pay for it?
Stephen Dark has a PhD in Climate Change Policy and Science, and has lectured at Bond University in the Faculty of Society & Design teaching Sustainable Development and Sustainability Economics. He is a member of the Urban Development Institute of Australia and the author of the book Contemplating Climate Change: Mental Models and Human Reasoning.
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