No right to protect your beachfront
COASTAL property owners do not have a fundamental right to protect their land from rising sea levels, a Southern Cross University academic has found.
PhD candidate John Corkill, from the School of Law and Justice, uncovered decisions by English courts dating back 130 years during research on the impact of erosion and rising sea levels on coastal properties, considered a relatively modern problem.
"Unfortunately for private property owners, but fortunately for the public interest in the coast, there are three areas in which private property advocates have erred in their arguments," he said.
There is no common law right to defend the sea in NSW.
Such a claimed right is not and never was a fundamental right.
State Parliament has the widest possible legislative powers and may repeal, amend or ignore claimed property rights, he said.
Through his research, Mr Corkill found the claimed common law right of landowners to defend their property was first considered in England and the defining case was decided in 1880.
He said it was likely work done centuries ago by English land-owners to build and maintain sea defences was undertaken under common law.
"However, while the court acknowledged the existence of this right at common law at that time, and recognised the need to prevent others from removing sea defences, this recognition did not extend to an enforceable right which could compel either the Crown or neighbours to build or maintain sea defences.
The research was in the recent Australian Law Journal.
"To rely on this limited recognition by an English court more than 100 years ago erroneously assumes that the enactment of NSW legislation which governs coastal management has not affected these common law rights."
Under NSW law, coastal hazards such as erosion and shoreline recession are managed by local councils.
Mr Corkill said this was part of a "coherent scheme of legislation" and extinguished any common laws relating to the duty of the Crown or landholder rights.