'Owners don't have right to protect land from erosion'
COASTAL property owners do not have a fundamental right to protect their land from rising sea levels, a Southern Cross University academic has found.
PhD candidate John Corkill, from the School of Law and Justice, uncovered relevant decisions by English courts dating back 130 years during his research about the impact of erosion and rising sea levels on coastal properties, considered a relatively modern problem.
Through his research, Mr Corkill found the claimed common law right of land-owners to defend their property was first considered in England and the defining case was decided in 1880.
He said it was likely work done centuries ago by English landowners to build and maintain sea defences was undertaken under common law.
"However, while the court acknowledged the existence of this right at common law at that time, and recognised the need to prevent others from removing sea defences, this recognition did not extend to an enforceable right which could compel either the Crown or neighbours to build or maintain sea defences.
"The court also noted that since the 1400s works by the English Crown to construct sea defences had been carried out under the relevant legislation, not under common law," said Mr Corkill, whose research was recently published in the Australian Law Journal.
"Furthermore, to rely on this limited recognition by an English court more than 100 years ago erroneously assumes that the enactment of NSW legislation which governs coastal management has not affected these common law rights. This is wrong.
"It is clear that the old English common law duty and the imperfect right of defending property has been supplanted in NSW by relevant legislation, whose objects also include the sustainable management of resources, and whose provisions also include relevant rules, plans and policy statements and procedures."
Under current NSW law, coastal hazards such as coastal erosion and shoreline recession are managed by local councils.
Mr Corkill said this was part of a "coherent scheme of legislation" and extinguished any common laws relating to the duty of the Crown or landholder rights.
"As a consequence, the NSW Government has today no common law duty to protect against the inroads of the sea and the minister's power to construct coastal protection works such as sea walls, which is operated under the relevant modern legislation, is now, and has been for many years, discretionary, not mandatory," he said.
The release of the research comes as The New York Times obtained a leaked draft of the United Nation's next major climate change report, which warned global sea levels could rise by 80cm by the end of the century if greenhouse emissions continue unabated.