DEPARTMENT FOR INFRASTRUCTURE
JERSEY PROPERTY HOLDINGS
Property Policy for Ministerial Decision - Minister for Infrastructure
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Policy: Encroachments on the Foreshore
PBA 0624-01-001
Purpose
The purpose of this report is recommend to the Minister the attached Policy on encroachments on the Foreshore (Appendix A), and to seek his approval of the document.
Background
Freehold title of that part of the Foreshore in the Bailiwick not already owned by the Public of the Island (the “Public”) was transferred by the Crown to the Public on 12th June 2015 by way of gift. The Public has, over many decades, acquired from the Crown parcels of Foreshore of varying sizes, some by gift others by outright purchase for a cash consideration. A non-exhaustive list, by way of example, includes:
1954 - Occupation structures and thousands of yards of anti-tank walls including any Foreshore to the rear thereof;
1982 & 1983 - Foreshore at La Collette on which extensive land reclamation took place;
1983, 1989 & 1995 - Foreshore adjacent to the Esplanade on which the Waterfront and Jersey International Finance Centre have, and continue to be, constructed;
1992 - Havre des Pas Bathing Pool; and
2010 - The sea wall at Pontac, St Clement constructed in the 1970’s, including any Foreshore to the rear thereof.
Prior to June 2015, the Crown had leased the remainder of the Foreshore to the Public by a series of long contract leases, the first commencing in May 1950 and intended to expire in 2098. The most recent (2005) lease lapsed by virtue of the Public’s 2015 acquisition of the remainder of the Foreshore not already in its ownership.
Given its various duties under the leases in respect of protection, maintenance, use, policing etc, the Public as Lessee (with Crown consent) effected a level of land management control as if it were the owner. The great majority of the Island’s sea defences, having been built over a number of centuries on the Crown Foreshore at States cost, have been subsequently maintained at taxpayer’s expense, thereby affording adjacent landowners the ability to construct private dwellings and other structures on land which would not otherwise have been possible.
Current Situation
Encroachment on the Foreshore remains an on-going challenge for JPH. Land is a scarce resource in Jersey. The development/ redevelopment of coastal sites is highly desirable for owners, buyers and developers[1] Where such sites adjoin the Foreshore, often close to the rear of sea defences, Public land is at significant risk of being encroached on.
Over many years, Officers have dealt with encroachments on the Foreshore in a variety of ways, examples being:
- Steps being established on/through sea defences to provide beach access to private properties.
- Openings for gateways being formed in garden enclosures to give direct access onto reclaimed Foreshore behind sea defences.
- Windows, openings or structures being established too close to the boundary with the Foreshore for which the necessary rights or access rights do not exist.
- Reclaimed Foreshore behind sea defences being included in gardens.
- As above, but with areas of the Foreshore being built upon, sometimes including up to, or onto, the sea defences themselves.
In circumstances where it has been considered that encroachments can remain, this has been subject to the payment of a fair and proper consideration by the relevant landowner, and subject to agreed terms and conditions established in a contract passed before the Royal Court.
The process in respect of apparent encroachments, once brought to Officer attention, involves, firstly, clarifying whether there has been an encroachment. This is usually determined by instructing the Law Officers Department (“LOD”) to research the property title and provide advice and recommendations as to how the matter might be resolved.
Once that has been considered by JPH and any other relevant States departments, JPH will write to the landowner concerned advising of the findings and inviting further discussion, often at a site meeting with landowners and their legal representatives.
Where encroachments on the Foreshore have taken place, the land encroached upon is either:
(i) physically restored to its former state; or
(ii) licensed or leased to the neighbouring owner to allow him/her to use the land for a certain term; or
(iii) sold to the neighbouring owner, where it has been determined that the land does not affect Public access to the Foreshore and/or that service provision by the States is not affected.
Some encroachments on the Foreshore (generally on strips of land immediately behind sea defences) have existed for many years, and the land may have the benefit of planning permission. Until 17 August, 2007 it was possible for any person to apply for planning permission on any land, irrespective of whether the actual landowner consented. Since that date it is a legal requirement for a certificate from the owner of the land certifying that it approves the planning application being made.
The intention behind the requirement is so there is no doubt that an owner knows and agrees to the making of an application. The requirement that if an applicant for planning permission is not the owner of the land to be developed the application must be accompanied by a certificate by the owner of the land certifying that he approves the application being made, is mandatory. Provision for certification by the owner is embodied within the planning application form. Responsibility for ensuring that a planning application is certified by the owner, and that the certificate is accurate, rests with the applicant. The processing of a planning application that contains an inaccurate certificate does not confer on the applicant any proprietary rights.
An owner of a property may have purchased it with the encroachment already in-situ, and may advance an argument that they are not the party responsible for it. Whilst that may be correct, a landowner should have been advised of such an encroachment by their lawyers during the conveyancing process but may have, nevertheless, decided to complete the purchase with knowledge of the encroachment. The fact that a current landowner was not responsible for an encroachment may however be accorded some weight when considering how best to resolve the matter.
As a matter of Jersey customary law prescription does not run against land owned by the Crown. This means that no person may claim title to land owned by the Crown simply by occupying it for a long time. So an encroachment on land whilst in Crown ownership will not belong to the person encroaching, no matter how long that encroachment may have persisted. Now that the land is owned by the Public, a person proving at least 40 years’ peaceable unchallenged enjoyment, starting from the date of the acquisition by the Public, may be able to acquire legal title to it by “possession quadragenaire”.
JPH is nevertheless mindful of historic encroachments, some possibly made with the benefit of planning permission, perhaps in circumstances where the landowner is not responsible for the original encroachment, JPH has sometimes felt able to offer a negotiated purchase of the land by the landowner rather than seek to have the encroachment removed. A sliding scale has been applied to any settlement to reflect the number of years’ existence of the encroachment. JPH feels this is a fair approach, notwithstanding that an area of Public land may have been permanently lost to a third party.
Another important aspect regarding encroachments onto land to the rear of sea defences is the potential significant disadvantage this causes to the DfI in respect of seawall maintenance, particularly where structural storm damage occurs. Generally, it is desirable to have at least eight feet clearance behind a sea defence for maintenance access. In many cases where contracts have been passed to allow encroachments to remain, terms are agreed which place the onus on the landowner to remove encroaching structures, if deemed necessary by DfI, to effect sea defence repairs.
Another relevant consideration is the Minister’s power under Part 4 of the ‘Drainage (Jersey) Law 2005,’ to designate a sea defence as a ‘flood defence’ with the proviso that no person shall construct or remove any building or other structure within five metres of the designated flood defence. The 2005 Law confirms the importance, in certain cases at least, of ensuring that there is clear land behind a sea defence. The Minister reserves his position in respect of the designation of sea defences in this way, where appropriate and proportionate for the purposes of flood defence. The Minister will request the Environment Minister and his Officers to have regard to the provisions of Article 32 (Control of Development) of the Drainage Law as well as the provisions of Article 16 of the Planning and Building (Jersey) Law 2002 when considering applications for planning permission to develop any land adjacent to a sea defence.
In terms of resourcing the Policy, JPH and the LOD have discussed the manpower requirements and consider that an additional Officer in each department (ie a surveyor and a conveyancer respectively) would be required for a duration of three years. An application for additional funding would be required.
Conclusion
Given the circumstances and complexity of many Foreshore encroachments, it is imperative that the Minister and his Department can demonstrate the application of a clear policy and procedure when dealing with such encroachments.
The attached policy has been drafted with the benefit of experience of a number of recent encroachments. It is considered to be a fair policy, and if approved, will be subject to annual review by JPH.
Recommendation
It is recommended that the Minister approves the attached policy on encroachments on the Foreshore (Appendix 1).
It is also recommended that the Minister notes the departmental procedure which is followed by JPH in dealing with Foreshore encroachments.
Written By: Principal Property Manager
Signature 
Authorised By: (Director/Assistant Director JPH)
Signature ………………………… 11 December 2017
Insert File Ref; here Page 1 of 12
DOCUMENT PROFILE |
|
Document Registration 0624-01-001 Po1 |
Document Purpose To set out the policy of JPH in respect of dealing with encroachments on the foreshore and the possible courses of action that will followed when encroachments are brought to its attention |
Short Title Foreshore Encroachments Policy |
Author Philip B Ahier, Principal Property Manager, JPH |
Publication Date 11 December 2017 |
Target Audience The Public States Members All DfI and LOD Officers Property agents and law firms |
Circulation List States website |
Description A policy of JPH dealing with encroachments on the foreshore |
Linked Documents JPH’s 2006 valuation policy “Statement on Land Valuation” as approved under MD-PH-2006-0094. JPH’s Procedure on Encroachments ref 0624-01-001 Pr1 of 11.12.2017. |
Approval Route Director of estates, JPH and the Minister for Infrastructure |
Review Date January 2019 |
Contact Details p.ahier@gov.je 447812 |
Purpose:
The purpose of this document is to set out the policy of JPH - as approved by the Minister - in respect of dealing with encroachments on the Foreshore and the possible courses of action that the department will follow when encroachments are brought to its attention.
Definitions:
Consideration: A financial value given to land/property in connection with a proposed transaction.
DfI: Department for Infrastructure.
Encroachment: Unauthorised and unlawful entering upon the land, property, or the rights of another party.
Foreshore: The land surrounding Jersey, as customarily described as lying between the “high water mark of full Spring tide” and the “lowest mark of tide”.
JPH: Jersey Property Holdings (part of DfI).
Reclaimed
Foreshore: Areas of the Foreshore which have been subject to development to potentially enhance the use of the land, ie, the construction of a sea defence, and in-filling the void behind the wall to create a level area of land.
Flood defence: A structure intended to provide defence of land against sea water or coastal erosion. Commonly referred to as a seawall.
The Minister: The Minister for Infrastructure.
Preamble:
Land transactions in respect of the Foreshore and other Public land are made in the name of “The Public of the Island of Jersey”, being a conveyancing term to describe land held by the States of Jersey.
The States Assembly is the elected body through which decisions are made that relate to the Public's land. Standing Order 168[2] provides that the prior agreement of the States is not needed for certain transactions in land if the action is recommended by a body established by the States to manage land and buildings owned by the Public and the recommendation is accepted by the Minister.
JPH was established in 2005 to manage the States’ property portfolio, and is now part of DfI.
This policy concerning encroachments on the Foreshore is intended to complement and supplement JPH’s 2006 valuation policy “Statement on Land Valuation” as approved under MD-PH-2006-0094.
The Minister, through DfI and JPH, has certain responsibilities in respect of the Foreshore including flood defences, control of encroachments and beach cleaning. In addition, other Ministers have a range of functions and duties relating to the Foreshore such as development control, the policing of beaches and controlling deposits in the sea.
JPH, and its predecessor department “Property Services[3]” have dealt with encroachments on the Foreshore since the early 1990s, with evidence of encroachments dating back considerably further than that. All cases dealt with by JPH and Property Services have had regard to the proper value of the land taken. An exception to this, but which was not an encroachment, was reclaimed Foreshore behind the Pontac to La Rocque seawall built in the early 1970s. In connection with that new wall, the States decided, in 1971, to acquire the necessary Foreshore from the Crown, and to gift the reclaimed Foreshore behind the new wall to the respective house owners as extended garden areas.
Neither the land transaction with the Crown, nor any subsequent transactions with the householders took place at the time. However the view taken was that the decision of the States and subject correspondence with the householders made it difficult to do anything other than completing the transactions on the terms intended in 1971. As such, in 2009, JPH sought Ministerial approval[4] to complete the transaction with the Crown and with the householders, and a significant number have since been completed. JPH considers that the 1971 decision of the States did not create a precedent affecting the outcome of encroachments on the Foreshore or other negotiated sales of the Foreshore.
Subject to the above-mentioned primary considerations, JPH will seek to address all Foreshore encroachments taking a planned approach. The purpose of this document is to set out what JPH’s approach will be.
Policy:
- There are four principal categories of encroachment on the Foreshore and bases for resolving them:
- Minor Encroachments. JPH may decide to leave such encroachments in abeyance. Refer to policy 4 below.
- Interfering Encroachments. Refer to policy 5 below.
- New or recent Encroachments. Refer to policy 5 below
- Non-interfering Encroachments. Refer to policy 6 below.
- There is a general presumption:
- against parts of the Foreshore being annexed and incorporated by adjacent private landholdings
- that access by the general public to the Island’s beaches, promenades, footpaths and coastline will, wherever possible, be preserved and enhanced when considering requests from landowners to ratify existing or potential encroachments
- that the Foreshore is an amenity to be enjoyed, where possible, by the public in general
- that the Public’s property rights in respect of the Foreshore, including areas of reclaimed Public land behind sea defences, will be protected
- that public access is not to be rendered more difficult or even made impossible by the actions of third party landowners
- A proactive approach is to be taken to dealing with and resolving encroachments on the Foreshore, to include:
- identifying existing and new encroachments
- identifying possible future encroachments via new planning applications, and
- monitoring such other means as may bring an alleged encroachment to the JPH’s attention.
- Where encroachments onto the Foreshore occur which are of a trivial nature in scale[5], JPH may decide to allow the status quo to continue. However, landowners may nevertheless consider it prudent to agree a ratification of the position by passing a contract with the Public in the Royal Court to that effect. In such circumstances, the costs of so doing will be borne by the landowner.
- Any encroachment on the Foreshore or adjoining Public land which:
- frustrates, obstructs or makes harder the exercise of any of The Minister’s/DfI’s/JPH’s powers and functions, especially in respect of access for maintenance and repair of flood defences, and/or
- compromises the Public’s access to the Foreshore or any right of access or exercised right as a matter of longstanding habitual and recognised custom by the general public, and/or
- affects the delivery of a service by the States of Jersey, and/or
- has occurred at present or recently
shall, apart from exceptional circumstances, be subject to action to cause the Public’s land to be restored to its state prior to the encroachment taking place, and for all costs in doing so to be recovered from the encroaching party.
- Where encroachments onto the Foreshore occur which do not interfere with the Public’s access to the Foreshore and/or affect the delivery of a service by the States, DfI will either require:
- the removal of the encroachment
- the encroachment to remain, subject to a perpetual transaction with the encroaching party to include the receipt of a fair and proper consideration, and any additional costs to future public works that the presence of the encroachment may cause, plus reimbursement of all surveying and legal costs incurred and payment of any relevant taxes such as GST
- the encroachment to remain, but subject to a licence or lease of the encroached land to the encroaching party at a fair and proper consideration and any additional costs to future public works that the presence of the encroachment may cause, plus reimbursement of all surveying and legal costs incurred and payment of any relevant taxes such as GST
- In respect of policy 6.b. above, where a decision is made to seek to transact with the encroaching party, the consideration should be ascertained on a case by case basis, having due regard to specific factors and details of the encroachment.
- Where an encroachment has existed for at least ten years, whether or not planning permission has been obtained, and whosever caused by (that is to say either the current or a former owner), JPH may propose a settlement option, ie, policy 6 being either a perpetual transaction or a lease/licence - rather than removal. In assessing a fair and proper price for the land in such ‘historic encroachment’ situations, JPH may also have regard to any circumstances which appear relevant to it concerning the particular encroachment in question, including the period of existence of the encroachment.
End of policy
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