Our shrinking beach access
Publicly-owned land by the beach will be first to go when the seas rise. Eloise Gibson reports on a legal conundrum that no-one seems to be talking about.
A hundred years of progress at getting New Zealand’s coastline into majority public ownership may be about to start unravelling, because of sea level rise.
The public recreational land that’s sometimes called the Queen’s Chain is a patchwork of council-owned reserves, roads, Crown-owned national parks and other land that together make up more than 70 percent of New Zealand’s coastline.
People treasure it – and, as a result, so do politicians – but it’s ill-equipped to move with the tide.
While beaches in countries like the United States are dotted with “Private – Keep Out” signs, we enjoy comparatively open access to land adjoining the ocean.
But the boundaries of the public space will in many cases not move to adapt to coastal erosion and flooding. Instead, the seaward edges will be pushed inland towards private land boundaries, narrowing (and, in some places, possibly eliminating) public strolling, running and picnicking areas.
The emerging issue is a legacy of laws that were intended to promote free access to beaches, but weren’t designed to deal with shifting coastlines. “It’s a red flag saying our current legal framework does not really address this and we need to adjust it to protect our public access,” says coastal expert Raewyn Peart, who was alerted to the issue by Newsroom. “If we start losing large tracts of public access to the coast, that would be a tragedy.”
About 70 percent of the land adjoining the sea around New Zealand was owned either by the Crown or a local council when the Government last published a stock-take, in 2003.
Land Information New Zealand reported that, of our 19,833km of coastline, 38 percent was owned by the Crown (including national parks, railway land and wildlife reserves) and just under 32 percent was owned by councils, much of it in esplanade reserves or roads. The other 30 percent was privately-owned.
The share of land next to the foreshore in public ownership has been rising, especially at urban and popular beaches. After early, rampant sell-offs by provincial governments in the decades after the signing of the Treaty of Waitangi, the settler government began to claw back coastline into public ownership, a process Peart described in her 2009 book on the shoreline Castles in the Sand.
The book outlines a 2003 study of the Otago Peninsula, which credits the Resource Management Act, passed in 1991, with helping boost public ownership of the Otago coastline from less than 20 percent in the 1860s to over 60 percent today.
The RMA says that whenever someone subdivides a beachside property into lots smaller than 4ha, they must set aside a 20m-wide esplanade reserve for the local council. That’s why, Peart says, public ownership tends to be higher at urban beaches than rural ones.
“It’s an important issue because it could affect a significant amount of New Zealand’s coastal property and access, as a result of rising sea levels. The question is, does it disappear altogether and become part of the un-owned foreshore and seabed, or does it stay but become unusable?”
While the subdivision rule isn’t always strictly enforced, it has given councils ownership of some prime seaside locations, including swathes of Auckland’s North Shore, a beach- and stream-side pathway on the former campground at Coromandel’s Hot Water Beach, and other prized spots around the country.
The threat from climate change isn’t exclusive to public land. Sea level rise poses risks to any land on erosion- and flood-prone coast, no matter who owns it.
But on at least 70 percent of our coastline, public land will be swallowed first.
That may not be a major issue in places such as national parks, which extend kilometres inland, giving public areas room to move. But it may be worrying in areas where the publicly-owned land is arrayed in a thin strip along a border with private land.
The legal quandary at the heart of the issue was raised by a community group, Empowered Christchurch, who got in touch about Newsroom’s series of sea level rise stories. Among other worries, the group was concerned that sea level rise would extinguish legal title to public land, under the law that replaced the controversial Foreshore and Seabed Act.
Newsroom has obtained legal advice from Bell Gully showing that council-owned esplanade reserves in some places are likely to shrink when the sea moves inland. Bell Gully partner and environmental law specialist Andrew Beatson talked us through the legal details.
In short, some legal tools for granting people coastal access, such as requiring esplanade strips (where the private owner keeps the land but people can walk along it) allow public pathways to move inland when the sea encroaches. That may create problems for the landowner, if they’ve built their home close to their front boundary.
But another problem is potentially posed for public land held in esplanade reserves, where the council owns the title: the land title will simply shrink. The seaward boundary is usually defined by the high water mark, which will gradually creep inland when sea level rises. Meanwhile, the landward boundary will stay put, squeezing the public recreation area.
We asked Beatson to explain the effect of the Marine and Coastal Areas Act (which replaced the Foreshore and Seabed Act). He confirmed that significant swathes of land could be rendered “un-ownable” if they were held by councils as esplanade reserves.
“The real issue is that this legislation, and in fact most of our property law, was developed in the context of people assuming land was simply there and doesn’t move, and clearly that’s not going to be the situation going forward."
That’s because, under the Act, title boundaries can move in response to gradual processes like sea level rise. Because of the law’s (partial) rule that no one can own the seabed, council-owned property that ends up seaward of the high tide line will in some circumstances become incapable of ownership. Meanwhile, the boundaries of privately-owned land immediately inland of the reserves will not move, unless the sea eventually reaches that boundary.
“It’s an important issue because it could affect a significant amount of New Zealand’s coastal property and access, as a result of rising sea levels,” says Beatson. “The legislation has a bearing on who owns what, as a result of natural processes.” With respect to vulnerable coastal land: “The question is, does it disappear altogether and become part of the un-owned foreshore and seabed, or does it stay but become unusable?” he says.
Neither option bodes well for public access. The situation is little better if the land is exempt from the Marine and Coastal Areas Act, as is the case with roads, national parks and Crown-owned reserves held under the Reserves Act. If land is exempt from the Act, it may still be lost via the common law doctrine of accretion and erosion, which may cause the Crown to lose ownership of any land that is gradually inundated by sea level rise.
Then, of course, there’s the obvious issue that people can’t use the land, no matter who owns it. “The council will often be hit first,” says Beatson. “A lot of these areas are vested in the local authority and they have their own title. That won’t move. [There’s the] 20m reserve for the public to come and walk along and enjoy, and then immediately behind that you have your privately-owned coastal property.”
“If erosion eats into that walkway, it will get lost, and even if it can survive a legal threat and continue to exist in title, there may be a physical impediment to people being able to use it. It won’t retreat back into the edge of that new coastal property.”
Beatson says the issue will also affect private land that ends up below the high tide line. “The bigger issue is the underlying reality that people are going to have to understand and adapt to the reality of rising sea levels, and for some people their land won’t move with that [process]. Their land will decrease in size, so they are going to have a physical problem to deal with because they may not have many options in terms of available land to respond to that threat. You can’t keep moving back with the tide, so you are going to run out of land at some point.”
Peart says the issue exposes how our laws are ill-equipped to deal with a future affected by sea level rise. She fears it may threaten one of the most attractive features of being a Kiwi: comparatively open access to our coasts.
“The real issue is that this legislation, and in fact most of our property law, was developed in the context of people assuming land was simply there and doesn’t move, and clearly that’s not going to be the situation going forward. It’s really throwing up the inadequacy in our legal framework,” she says.
“That legal context needs to be adjusted to cope with the new circumstances. We will be in a situation of rising coastal erosion and that will impact on public access. It’s not just esplanade reserves – a lot of our access to the coast is roads and paper roads and we’ve already seen a lot of those roads being closed and enormous cost to rehabilitate them. Inevitably some of those will go.”
Peart believes that having easy beach access is “part of what it is to be a New Zealander”. “It’s part of our heritage and culture and an enormous part of our quality of life,” she says. “It’s also about environmental matters, because as the sea rises all those species that live on the edge are getting pushed out, and at least if there’s an esplanade reserve they have a bit of room for nature,” she says.
“You go to the beach in America and suddenly there’s a sign saying, ‘private property’, and I find that a personal affront because in our culture is embedded the idea that the public can access the coastline,” says Peart. “It’s an important thing to preserve, particularly as the population is growing and there is more need to get out of our urban environment and experience nature and the coast.”
“It’s a big part of why New Zealand is such a fantastic country to live in.”
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