WHAT IS THE 'FORESHORE'?
The 'foreshore' refers to the area of land that lies between the Island's low and high water mark. This land was gifted from the Crown (Her Majesty the Queen) to the public in 2015.
Since the time of transfer, Jersey Property Holdings (JPH), under the ministerial remit of the Minister for Infrastructure, has sought encroachment compensation payments from a number of property owners along the foreshore. The sale of a property has typically been the trigger point for collection of these payments, in addition to planning consent applications or an approach made by a property owner to JPH.
WHY WAS THERE A REVIEW?
In late 2017, complaints from property owners regarding the current policy and handling of encroachments of the foreshore came to light and a Complaints Board hearing was held in 2018. Thereafter, a proposition (P.101/2020) was lodged in August 2020 by the Deputy of Grouville requesting that a revised policy be brought forward for debate by January 2021. Subsequently, the Minister for Infrastructure lodged an amendment to P.101/2020.
Although the Minister for Infrastructure largely dismissed the findings of the Complaints Board in 2018, it was agreed that an internal departmental review of the policy would be undertaken to re-assess the foreshore encroachment policy, and a revised policy would be issued, subject to the outcome of the review. A review of the current policy was undertaken by the Minister for Infrastructure over the last 2 years and the proposition P.111/2020 “Encroachments on the Foreshore: revised policy” was lodged by the Minister for debate on the 19th January 2021.
THE PANEL'S REVIEW
In consideration of numerous emerging key issues and concerns regarding P.111/2020, the Panel agreed to undertake a review of the revised policy.
The Panel focused its Terms of Reference on:
- The history of the ownership of the foreshore and the issues regarding the definition of its boundary;
- The establishment of the foreshore boundary;
- The impact of current encroachments on Jersey’s sea defences and on the maintenance of them;
- The approach used to seek compensation payments for encroachments; and
- Whether the revised policy is deemed fair, proportionate and fit for purpose.
In order to establish the scoping requirements for a review, in 2019 the Panel held a number of meetings with individuals affected, as well as the Law Society of Jersey. Throughout 2019-20, the Panel also continued to press the Minister for Infrastructure on the matter in public hearings and through written correspondence. Once the Minister's revised policy was eventually lodged in the States in September 2020, the Panel established its review and continued its evidence gathering. Two public hearings were held in late 2020; one with the Minister for Infrastructure and another joint hearing with the Deputy of Grouville and Sir Philip Bailhache.
The Panel received written submissions from nine stakeholders:
- Advocate Richard Falle
- Julian Mallinson
- Alan Luce
- Peter Vincenti
- Sir Philip Bailhache
- The Law Society of Jersey
- The States of Jersey Complaints Board
- B.F.H Le Feuvre
- Save Our Shoreline Jersey
All evidence has been published on the States Assembly website.
THE FORESHORE BOUNDARY
The Panel found there to be sustained uncertainty over the foreshore boundary, as well as the land defined as ‘publicly owned foreshore land’. As the boundary line is crucial for understanding whether an encroachment of the foreshore had occurred, or would occur in the future, it is the Panel’s view that this continued uncertainty is particularly concerning.
Whilst work has been undertaken to establish a Master Schedule of encroachments, the Panel has found that it would not be publicly accessible. In addition to this, the public have not been provided with a map that demonstrates the boundary line, or justification as to how it has been determined.
The Panel has recommended that, in the interests of greater transparency, the Minister for Infrastructure should further consider the boundary line of the foreshore, and that the means for determining the boundary should be publicly accessible.
The Panel accepts that the Minister for Infrastructure should be able to defend and maintain Jersey’s sea defences without them being placed at risk. However, the Panel found insufficient evidence to suggest that encroachments along the foreshore have significantly affected the Minister’s ability to defend and maintain the sea defences to date.
The Panel has recommended that the Minister for Infrastructure should consider a separate Sea Defences Maintenance Policy, in addition to how Planning Obligation Agreements might satisfactorily be utilised going forward, to ensure adequate upkeep and maintenance of seawalls where encroachments are concerned.
COMPLAINTS, COMPENSATION AND TRANSPARENCY
Another finding of particular concern to the Panel is that neither the current or revised policy provides a suitable complaints or appeals mechanism. This makes it difficult for individuals to appeal a decision made by the Minister in regards to foreshore encroachment compensation. The Panel has recommended that the Minister for Infrastructure should seek to incorporate a suitable and workable process for dealing with complaints within the revised policy.
It is the Panel’s view that any process considered for seeking compensation should be fair and non-discriminatory. The Panel has found that a ‘trigger’ approach is utilised in the current policy, which identifies encroachments when either the property is transacted, planning permission is sought, or a direct approach is made to Jersey Property Holdings by a property owner. The Panel has recommended that the Minister for Infrastructure should seek to apply the policy in a fair and non-discriminatory manner, and not just when a trigger event occurs. Additionally, the compensation that is sought or paid, should be reflective of the encroachment and limitations agreed.
The Panel found that a sliding scale had previously been applied to determine the level of a foreshore encroachment payment and that the sliding scale mechanism would continue. However, the review found that the criteria for the sliding scale is not included in the current or the revised policy. The Panel has recommended that the Minister for Infrastructure should further define and set out the criteria for a sliding scale into the revised policy so that it is clear and transparent, and this should be incorporated into the revised policy prior to its adoption.
During the review, the Panel received evidence to support an overwhelming and unanimous view that the revised policy remains an unfair approach, that is complicated, unclear and lacks transparency. It is the Panel’s view that in the absence of a fairer and clearer approach, it would be likely that an adverse impact may be felt by individuals who own property along the foreshore, both in monetary and personal terms.
In light of the evidence presented, the Panel considers the Minister’s revised policy to be fundamentally flawed, lacking in essential detail and not fit for purpose in its current form.
WHAT HAPPENS NEXT?
The Panel has presented its report ahead of the States debate on 19th January 2021.
States Members will debate whether to either adopt, or reject the Minister for Infrastructure's Foreshore Encroachment Policy (P.111/2020). The Minister will also be required to present a Ministerial Response within 6 weeks of the report's presentation date, outlining whether he accepts the Panel's findings and recommendations or not.
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