Coming before Parliament for enactment some time later this year is the National Environmental Management: Integrated Coastal Management Bill — the announcement of which caused a huge fuss last year when some newspapers totally misread the intentions of the bill and raised alarming headlines suggesting it would restrict foreign buying of coastal properties.

The bill, in fact, is designed to establish a system of coastal management which, in the opinion of many in the property industry — alarmed by almost unfettered coastal development — is long overdue. Moreover, the bill seeks to establish secure equitable access to coastal public property, of which access is often denied to members of the public by the establishment, for example, of residential developments like golf estates along the coastline that seal off public access to the seafront.

Prevent pollution

The bill’s working draft states its intention: “To establish a system of integrated coastal and estuarine management in South Africa… in order to promote the conservation of the coastal environment, and the ecologically sustainable development of the coastal zone; to define rights and duties in relation to the seashore and other coastal areas; to determine the responsibilities of organs of state in relation to the seashore and other coastal areas; to prohibit incineration at sea, pollution in the coastal zone and other adverse effects on the coastal environment; to give effect to South Africa’s international obligations in relation to coastal matters…”

The Department of Environmental Affairs and Tourism has received comment on the draft bill from many sources and a number of amendments have been made.

However, the amended bill has not yet been released and is expected to be submitted to the Cabinet, possibly in August. It is understood that the department is keen to table the bill in Parliament before the end of the year.

Squandered by overuse

The preamble to the (unamended) bill points out that everyone has the constitutional right to have the environment, including the coastal environment, protected for the benefit of present and future generations.

The coastal zone, it points out, is a unique part of the environment. It is critical of the present-day situation, stating: “Much of the rich natural heritage of our coastal zone is being squandered by overuse, degradation and inappropriate management,” and “the economic, social and environmental benefits of the coastal zone have been distributed unfairly in the past.”

A major issue is that of public access to the beach. Government is of the view that all South Africans have the right of access to our shores — not just rich people who can afford holiday homes by the sea. Access to the coast has become a major problem in many areas.

In an effort to counter this state of affairs, the bill empowers coastal municipalities to take steps to control public access and to ensure the maintenance and upkeep of coastal access land.

'Public access servitudes'

It states that within four years of enactment, coastal municipalities must make by-laws designating strips of land adjacent to the coast as “coastal access land”. In other words a public access servitude.

As an interim measure, any place over which public access has deemed to exist for at least five years prior to the commencement of the act, including access to boat launching sites and proclaimed fishing harbours, will become “public access servitudes”.

The coastal municipalities will have to play their part. They must maintain coastal access land, control its use, signpost entry points and “within available resources” provide facilities such as toilets and parking areas. Presumably they can levy charges to help cover costs.

At issue will be encroachment on privately owned land.

Little protection

The act will give government the right to acquire privately owned property for the purpose of declaring it coastal public property by means of purchase, exchange or expropriation. Thus, are beachfront property owners in danger of losing their investments, having them replaced with inferior properties or being paid unreasonable compensation? The bill appears to offer them little protection.

The meaning of seashore becomes important and the definition and interpretation of “high water mark” even more so. According to the bill, “seashore” means:

• Land between low and high water mark;
  
• Land reclaimed from coastal waters
  
• Coastal cliffs, if the base of the cliff is in continuous contact with the sea for an hour or more during each normal spring tide (excluding the cliffs and seashore alienated before the commencement of the act).

However, if the high water mark moves inland due to natural causes, the owner of the land situated inland of the mark loses ownership of any portion of that land situated below it — and will not be entitled to any compensation.

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Published courtesy of Intellectual Property Magazine.

Climate change impacts

Also brought into consideration should be the reality of last year’s floods at Glentana near George where homes were washed into the sea.

Climate change was the main subject when the Minister Marthinus van Schalkwyk addressed Parliament during his budget speech in June (“Melting ice; a hot topic”). A national climate change adaptation plan is in progress, he said, adding that South Africa’s first ever Long Term National Climate Policy should be published some time in 2008/9.

Another issue is timing. Will ownership change immediately in the case of a rise in the high water mark or will there be a time stipulation? What happens, for instance, if the high water mark should revert back to its previous level?

Yet another issue is the provision that the owner of land lost by changes in the position of the high water mark may not require the state to take measures to prevent land erosion adjacent to coastal public property, unless the erosion results from state conduct; nor can an owner erect anything on the seashore to prevent extension of the shore itself.

Strict control

The bill also has strict provisions by which to control and restrict coastal developments through management programmes at a national, provincial and municipal level. Any activity adversely affecting the coastal environment may be prohibited. These provisions include:

• Developments seaward of the coastal setback line may be prohibited and province may establish or change the setback line to preserve the coast.

• There will be a coastal buffer zone, within which developments will require a special permit (including new buildings and major alterations to existing structures). Permits will only be issued “in the interests of the whole community”, the socio-economic impact and the likely impact on the coastal environment.

• The coastal buffer zone includes residential, commercial or industrial land within 100 meters inland of the high water mark and agricultural land within one kilometre of the high water mark.