OVERVIEW

1. OVERVIEW • Introduction • Right of access • Access in terms of the White Paper • Access in terms of the Common Law • Access in terms of the NEM: ICMA • Right to exclude • Right to exclude in the USA • Right to exclude in the RSA • Coastal access in England and Conclusion

2. INTRODUCTION (1) • Section 2 of NEM: ICMA provides that one of the objects of the Act is to “secure equitable access to the opportunities and benefits of coastal public property”.

3. INTRODUCTION (2) • In order to give effect to this object, section 18 of the NEM: IMCA imposes an obligation on municipalities to designate coastal access land.

4. INTRODUCTION (3) • Once it has been designated, section 18 goes on to provide that coastal access land is “subject to a public access servitude in favour of the local municipality in whose area of jurisdiction it is situated and in terms of which members of the public may use that land to gain access to coastal public property.”

5. INTRODUCTION (4) • Coastal public property encompasses the area where the land meets the sea • Generally speaking, it covers the area between the high-water mark and the territorial limits of SA. • Ownership of coastal public property is vested in the citizens and it is held in trust by the state.

6. INTRODUCTION (5) • Section 18 gives rise to a number of issues. • One is the extent to which a state is constitutionally entitled to interfere with a landowner’s power to exclude. • This is controversial because courts have adopted different approaches and these different approaches are based on conflicting views of the role of property.

7. THE WHITE PAPER (1) • The White Paper provides that the long term goal for coastal management efforts must be “sustainable coastal development”. • The most effective way to achieve sustainable coastal development, the White Paper goes on to provide, is through a programme of ICZM.

8. THE WHITE PAPER (2) • Apart from adopting the principle of sustainable coastal development, the White Paper also identifies 21 more specific goals and 62 objectives. • These goals and objectives, the White Paper explains, provide detailed directions for achieving sustainable coastal development

9. THE WHITE PAPER (3) • The right of physical access to the coast is dealt with in Goal B.1. • Goal B.1 provides that the state must ensure that the public have a right of access to the sea, and to and along (perpendicular & lateral) the sea-shore. • In order to achieve this object, the White Paper goes on to identify two objectives (Objective B1.1 and B1.2).

10. THE WHITE PAPER (4) • Objective B1.1 provides that the state must provide opportunities for public access at appropriate coastal locations. • Objective B1.2 provides that public access must be managed in a manner that minimizes adverse impacts and resolves incompatible uses.

11. THE COMMON LAW (1) • The common law grounds upon which a right of physical access to the coast may be claimed are limited. • A right of access may be claimed in those cases in which: • the state has reserved a right of public access in the original deed of grant; or • the owner has agreed to register a right of public access against the title deeds.

12. THE COMMON LAW (2) • Apart from these cases, the common law provides that a right of access may only be claimed as of right on the grounds of • (a) immemorial user (vetustas); • (b) implied dedication; and • (c) custom.

13. THE COMMON LAW (3) • It is also important to note that a public right of way cannot be acquired by: • acquisitive prescription; or • by means of a way of necessity.

14. THE NEM: ICMA (1) • The NEM:ICMA confers the power on municipalities to make by-laws that designate strips of land as coastal access land (s 18(1)). • Once it has been designated, coastal access land is subject to a servitude in favour of the relevant municipality in terms of which members of the public may use the land to access CPP (s 18(2)).

15. THE NEM: ICMA (2) • When a municipality exercises the power conferred upon it by section 18, it must comply with the certain principles. • These principles are as follows: • the decision must comply with national and provincial coastal management programmes; • the decision must comply with any applicable legislation;

16. THE NEM: ICMA (3) • the designated areas must be indicated on the municipal zoning scheme and incorporated in the municipality’s integrated development plan and spatial development framework; and • the designated areas may not be located within a harbour, defence or other strategic area without the consent of the relevant Minister (s 18).

17. THE NEM: ICMA (4) • The NEM: ICMA also sets out the process a municipality must follow when it exercises it power. • This process provides that the municipality • must assess the environmental impact of the designation; • must consult interested and affected parties in terms of section 53 of the Act; and • must give notice to the land owner (s 19).

18. THE NEM: ICMA (5) • Where a municipality has designated coastal access land, the NEM: ICMA imposes certain obligations on it. • These obligations provide, inter alia, that the municipality must: • Protect and enforce the public’s right to use of coastal access land; and • Ensure that coastal access does not cause adverse environmental affects (s 20).

19. UNITED STATES (1) • The US Supreme Court describes the right to exclude as an “essential stick in the bundle of rights that are commonly characterized as property”. • An important consequence of this approach is that any permanent or intermittent physical invasion is classified as an expropriation, irrespective of the extent or the purpose of the invasion.

20. UNITED STATES (2) • “Our holding today is very narrow. We affirm our traditional rule that a permanent physical occupation of property is a taking. In such a case, . . . the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation” (see Loretto v Teleprompter Manhattan CATV Corp 458 US 419 (1982).

21. UNITED STATES (3) • “We think a permanent physical occupation has occurred . . . where individuals are given the permanent and continuous right to pass to and fro, so that the real property may be continuously traversed, even though no particular individual is permitted to station himself permanently upon the premises (see Nolan v California Coastal Commission 483 US 825 (1987)).

22. UNITED STATES (4) • “Property rights must be able to speak in modular and informationally dense ways to those who must deal with property in a world in which most individuals have little prior information about each other and property rights acquire this by providing ‘default packages’ of rights that decide important questions ex ante for everyone. The great benefit of these simple, ex ante property rules is that they reduce information processing costs for those subject to the rules.”

23. UNITED STATES (5) • “Property law has nothing to fear from open-textured standards that allow courts to make ex post, fine tuned, contextualised decisions about the relative needs and interests of competing owners, owners and non-owners and the community even in cases where property rights have traditionally been protected by relatively crystallized ex ante rules of exclusion” (see John A Lovett Progressive Property in Action (2010)).

24. SOUTH AFRICA (1) • The right to establish a grave could amount to the granting of a servitude . • Such a right would constitute a significant inroad into the owner’s common law property rights. • A court will not interpret a statute in a manner that will permit rights granted under that statute to intrude upon the common law rights of another person, unless it is clear from the statute that such an intrusion was intended. • See Serole v Pienaar 2000 (1) SA 328 (LCC).

25. SOUTH AFRICA (2) • “Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right to bury a deceased member of his or her family who, at the time of that person’s death, was residing on the land on which the occupier is residing, in accordance with their religion or cultural belief, if an established practice in respect of the land exists” (see s 6(2)(dA) of ESTA 62 of 1997).

26. SOUTH AFRICA (3) • The right to appropriate a grave does not constitute a major intrusion into the property rights of the landowner. • Section 6(2)(dA) specifically provides that the right to appropriate a grave is subject to balancing with this rights of the landowner. • Section 6(2)(dA) has a legitimate goal, namely to enable occupiers to comply with their religious and cultural beliefs. • See Nlabathi v Flick 2003 (7) BCLR 806 (LCC).

27. SOUTH AFRICA (4) • “The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the rights not to be dispossessed of a home. Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible , taking account of all the interests involved”. • See PE Municipality v Various Occupiers 2005 (1) SA 217 (CC)

28. SOUTH AFRICA (5) • “In some instances a deprivation will escape arbitrariness if a rational connection between the means adopted and the ends sought to be achieved is present. In other instances, however, the means adopted will have to be proportional to the ends. Marginal deprivations of property will ordinarily not be arbitrary if they are rationally connected to a legitimate purpose. More severe deprivations will ordinarily have to be shown to be proportionate”. • See Reflect All 1025 v MEC, Public Transport

29. SOUTH AFRICA (6) • “In order to determine whether a deprivation is proportional, a court must have due regard to the purpose of the law in question, the nature of the property involved, the extent of the deprivation and the question whether there are less restrictive means available to achieve the purpose in question.” • See Reflect-All 1025 v MEC, Public Transport

30. ENGLAND (1) • The purpose of the Marine and Coastal Access Act 2009 is to improve public access to and enjoyment of the coast. • It imposes a “coastal access duty” on Natural England and the Secretary of State. • This coastal access duty has two linked objectives.

31. ENGLAND (2) • First, to establish a series of long distance paths around the entire coast of England along which members of the public will be able to make recreational journeys on foot or by ferry. • Second, to establish a margin of land along the length of the English coast to which members of the public will have access for a limited range of recreational purposes.

32. ENGLAND (3) • The Act also sets out certain obligations Natural England and the Secretary of State must comply with when they discharge their duty. • One of these is that they must “aim to strike a fair balance between the interests of the public in having rights of access over land and the interests of any person with a relevant interest in the land”.

33. ENGLAND (4) • The Marine and Coastal Access Act gives members of the public a right of access on foot for a limited range of recreational activities. • It does not extend to horse-riding or cycling. It does not include camping, fishing or engaging in organised games.

34. CONCLUSION • Public purpose; • facilitate the public use and enjoyment of coastal public property; • address the exclusion of black South Africans during the colonial and apartheid eras; and • promote economic development

35. CONCLUSION • Extent of the interference • no entitlement represents the essence of ownership; • simply a right of way and not a right to roam, less extensive than the English right of access • Less restrictive means • does not explicitly provide that the municipality must strike a fair balance; • can be addressed in municipal by-laws.