UK: Coastal Zone To Get Better Protection

Last Updated: 9 March 2009

Adam Gunn is a director at Routledge Modise Eversheds, South Africa

Originally published in Business Law & Tax Review, a supplement to Business Day

IN South Africa the sea and the seashore were previously regulated by the Sea-Shore Act of 1935. In order to align the regulation of this sensitive environmental zone in line with the constitution and environmental specific legislation such as the National Environmental Management Act of 1998, the National Environmental Management Integrated Coastal Management Bill ("the Coastal Management Act") has been enacted.

In October last year parliamentary approval process was completed and the Coastal Management Act was presented to the president for assent. Presidential assent has not yet been obtained and it is likely that this may be delayed until after the elections. Nevertheless the parliamentary approval process was accompanied by some lively debate including the issue of property rights within the coastal zone which the bill may affect.

In many parts of South Africa one is struck by the beauty of our coastline. Thankfully, in most coastal areas, development has not been allowed to encroach right up to the high-water mark. This has largely been due to the fact that development was restricted in the zone 200m inland from the high-water mark which was traditionally known as the "Admiralty Reserve".

There is much academic debate as to the origins of the Admiralty Reserve and it is not even certain whether this was a genuine attempt to promote conservation or a fortunate windfall for conservation due to the fact that the government wished to protect this area for its own purposes, such as the landing of troops or attachment of shipwrecks and associated items.

Whatever the historical origins of the Admiralty Reserve, its value to conservation over the years has been enormous. The result is that large parts of South Africa have their coastal dunes intact, at least for 200m inland of the high-water mark.

Previously the Sea-Shore Act defined the seashore as the area between the low-water mark and the high-water mark. Therefore no official protection was given by this statute to the area known as the Admiralty Reserve. The Coastal Management Act aims to provide protection and support for conservation in the coastal zone (including the Admiralty Reserve) and the area that it regulates is much larger and more comprehensive than was the case in the Sea-Shore Act.

To completely understand the regulation of this area in terms of South African environmental legislation, one would have to look at various other pieces of legislation such as municipal legislation and the National Environmental Management Act requiring environmental impact assessment in certain circumstances.

Specifically though, in terms of sections 8 and 9 of the Coastal Management Act, the government will have the power to expropriate private land for the purposes of declaring it public property. Private land may be expropriated in order to improve coastal public access, to protect sensitive eco-systems, to secure the natural functioning of dynamic coastal processes, to facilitate the objects of the Coastal Management Act and to protect people, property and economic activities from risks arising from dynamic coastal processes including a rise in sea-level.

These broad powers of expropriation have raised some concerns (including during the parliamentary process). However, they would be tempered by the Expropriation Act of 1975 and also by legal rights such as the property right contained in section 25 of the constitution.

As is to be expected, the Admiralty Reserve is given a very wide definition in the Coastal Management Act and is defined as "any strip of land joining the inland side of the high-water mark which when this act took effect was state land reserved or designated on an official plan, deed of grant, title deed or other document evidencing title or land — use rights as 'admiralty reserve', 'government reserve', 'beach reserve', 'coastal forest reserve' or other similar reserve".

The Admiralty Reserve, where it is owned by the state, will then form part of the coastal public property which will be under the trusteeship of the government, the aim being to further the conservation and integrated management of this area. Another major aim of the integrated approach to the management of this area is to facilitate access to the coastal zone — gated communities and housing estates having encroached on this in certain areas.

The conservation objectives of the Coastal Management Act are noble but they are required to be underpinned by solid governance if they are to be effective. If managed properly, the Admiralty Reserve could form a platform for conservation of the greater coastal zone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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