Encroachments on the Foreshore - Revised Policy
Overview
This paper provides an overview of the amendments to
“Encroachments on the Foreshore: revised policy” (P.111/2020) that are due to be debated by the States Assembly on 2nd March 2021. The appendices to this paper show how the revised foreshore policy will look, depending on which of the amendments is adopted.
1. The need for a revised foreshore policy
On 4th August 2020, the Deputy of Grouville lodged
Foreshore: Policy for Alleged Encroachment Payments (P.101/2020) to address the issue of fines, or States compensation payments, being levied against certain property sellers for alleged encroachments on the foreshore. The proposition was subject to an amendment by the Minister for Infrastructure, and the States Assembly adopted the proposition as amended. In doing so, the Assembly agreed:
that no further land transactions should take place between the Public and third parties in respect of strips or parcels of reclaimed foreshore until a revised foreshore encroachment policy has been debated;
that such policy should be brought forward for debate by the Assembly by January 2021;
that upon a revised policy being agreed by the Assembly, the Minister for Infrastructure should re-consider Finding 8.15 of the
States of Jersey Complaints Board’s report (R.71/2018) in respect of refunding the difference (if any) between the considerations paid under the two respective land transactions and the considerations that would have been paid had the new policy been in place at the time; and
to request that the Department for Infrastructure publishes, by the end of Quarter 1 of 2021, a map of all public accesses, footpaths and rights of way to the foreshore.
2. Encroachments on the Foreshore: revised policy (P.111/2020)
In line with the States Assembly’s agreement of P.101/2020, the Minister for Infrastructure brought forward
Encroachments on the Foreshore: revised policy (P.111/2020) on 18th September 2020. The proposition was subject to a
review by the Environment, Housing and Infrastructure Scrutiny Panel, which concluded that the proposed revised policy is “fundamentally flawed and lacking in essential detail”. The Panel was therefore unable to support the adoption of the revised policy as presented in the main proposition.[1]
3. Encroachments on the Foreshore: revised policy (P.111/2020): Amendment
The Deputy of Grouville lodged an
Amendment to P.111/2020 on 31st December 2020, proposing the following changes to the revised Encroachments on the Foreshore policy:
- It requests the Minister for Infrastructure to provide a map, setting out the public boundary, as part of the encroachment policy document[2];
- The Revised Policy would establish Historic and New / Recent Encroachments as being more or less than 10 years old, but does not specify a date from which the 10-year mark is to be determined. The Deputy’s amendment proposes 12th June 2015 and the date before which encroachments should be considered as ‘historic’;
- The amendment would also make numerous deletions to the revised policy set out in P.111/2020, including the removal of paragraphs relating to ‘Categories of foreshore encroachment’, ‘The principles of policies’ and ‘The Public’s landside ownership of the foreshore’; and
- The Deputy’s amendment proposes a new section under the heading ‘Policies’, which sets out an alternative way of identifying and dealing with both ‘new / recent’ and ‘historic’ encroachments:
“Encroachments occurring after the date upon which the States approved this policy document will be required to be removed and the foreshore restored to its prior state at the cost of the encroaching party.
Encroachments occurring prior to the date upon which the States approved this policy document, but after 12th June 2015, will be dealt with as follows –
Minor encroachments will be permitted to remain subject to such reasonable conditions as the Minister may specify in a licence agreement.
Interfering encroachments will be required to be removed and the foreshore restored to its prior state at the cost of the encroaching party.
Non-interfering encroachments, which are not minor encroachments, may at the discretion of the Minister be permitted to remain subject to such reasonable conditions as he may specify in a licence agreement, including the payment of reasonable compensation.
Encroachments which have occurred prior to 12th June 2015 (historic encroachments) will be dealt with as follows –
Minor encroachments will be permitted to remain subject to such reasonable conditions as the Minister may specify in a licence agreement.
Interfering encroachments may be required to be removed and the encroaching party may be required, depending on the particular circumstances of the case (including the length of time that the encroachment has existed), to contribute appropriately to the cost of such removal.
Non-interfering encroachments, which are not minor encroachments, will be permitted to remain subject to such reasonable conditions as the minister may specify in a licence agreement.
Notwithstanding the above policies, if an encroachment at any time affects any duty of the Minister to repair or improve flood defences pursuant to the Drainage (Jersey) Law 2005, he may deal with the matter as he thinks fit.[3]”
Whilst the EHI Scrutiny Panel was not able to fully consult on the Deputy of Grouville’s amendment due to time constraints, the Panel supported the amendment in principle, stating in its report that “the Panel considers that the basis of the Deputy’s amendment is in keeping with a number of the findings and recommendations made in this report."[4]
Addendum 1 shows how the revised policy will look if the proposition is adopted as amended by the Deputy of Grouville.
4. Encroachments on the Foreshore: revised policy (P.111/2020): Second Amendment
On 16th February 2021, the Minister for Infrastructure lodged his own
amendment to the original proposition in response to the key findings and recommendations made by the EHI Scrutiny Panel in its review of P.111/2020. The Minister has proposed the following amendments to his original Encroachments on the Foreshore policy:
- With regards to resolving issues involving encroachments on the landside boundary of the foreshore, that “the Law Society of Jersey’s Standard Seller Questionnaire (Jan 2019), in particular questions 3 and 19, may also lead to approaches being made to JPH by the Public’s neighbours” and that “the age of an encroachment will be considered as one of the factors in its resolution”;
- With regards to new/recent encroachments, that Jersey Property Holdings will take action to “regularise” as well as resolve them; and
- That the following new section entitled “General” should be added to the end of the policy:
“General
In so far as it can be ascertained, the age of the encroachment prior to 2015 when the Crown transferred ownership of the foreshore to the Public of the Island) will be taken into account as a factor in how the encroachment will be considered and dealt with in relation to all types of encroachment. The longer that the encroachment has been in existence prior to 2015 the more favourably this will be taken into account towards the third party concerned.
Secondly, if the third party can provide evidence that the Crown in fact agreed to the encroachment this will be taken into account favourably in considering and dealing with the encroachment.”
The final part of the amendment requests that an appendix to the amendment (Appendix 1) be appended to the revised policy.[5] This Appendix establishes how Jersey Property Holdings will proceed in resolving encroachments on the foreshore with adjoining owners – including the manner in which JPH will enter into discussions with such owners – as well as the following:
- The procedure by which the upper limit of the foreshore/default boundary lines will be established;
- ·A detailed sliding scale to determine the reduction in the value of land subject to a transaction based on how long the encroachment has been in existence for;
- A procedure for resolving foreshore encroachments covering the following potential scenarios:
o Cases where no encroachment is claimed but there is a lack of a ratified boundary between the foreshore and third-party property;
o A claim of ownership by the Public over the land being disputed by an adjoining owner;
o If an adjoining owner agrees to remove the encroachment;
o If an adjoining owner agrees to a sale of the encroached land; and
o Cases in which an adjoining owner may apply for a license for continued use of the encroached land.
Addendum 2 shows how the revised policy will look if the proposition is adopted as amended by the Minister for Infrastructure.
