Official review deems foreshore policy "fundamentally flawed"

Friday 15 January 2021

A scathing official report on the foreshore policy has slammed it as “not fit for purpose, fundamentally flawed and lacking in essential detail", nearly four years after Express first brought the Government's decision to fine coastal homeowners to light.

The Environment, Housing and Infrastructure Scrutiny Panel, chaired by St. Brelade Constable Mike Jackson, made a series of recommendations on the policy and joined calls for the long-awaited foreshore map to be released.

The new policy was released in September last year, several years after complaints over its predecessor had been submitted. 

The Government's decision to begin forcing coastal homeowners to pay 'compensation' to Government if their properties are deemed to encroach on the Foreshore - defined as the zone between high and low tide - was only brought to light after an Express investigation in 2017.

Despite more than 400 properties being affected by the policy, no map has ever been produced defining exactly which properties should be considered to be bordering on the foreshore. Having boundaries set by the tide means the area constantly changes, and could be affected by climate change.

Pictured: The Scrutiny panel described the foreshore as a “moveable concept” which has historically “been difficult to define”. 

Three-and-a-half years later, the most recent version of policy has now been fully investigated by a panel of politicians, who criticised it at every turn.

The Scrutiny Panel raised several issues in the policy including the uncertainty around the nature of the foreshore boundary, which they described as a “moveable concept” which has historically “been difficult to define”. 

In addition to this uncertainty, amplified due to structures such as sea walls, the impact of land reclamation and climate change, the Panel noted there is a dispute over the fact that all foreshore land was owned by the Crown and therefore could not have been given to the public in 2015.

The report goes on to state that the Law Society highlighted how the Crown had previously been “untroubled” by alleged encroachments and described the Government’s approach as “exploiting a previously tacitly accepted position to make money”.

“We understand their concern to avoid further encroachments, but not their rapacious demands over previous alleged encroachments established (effectively) on their watch,” they added.

Pictured: The Panel, chaired by Mike Jackson, issued a number of recommendations on the policy.

The panel also voiced concerns over how the policy proposes to deal with encroachments and how deliberate and unintentional ones are differentiated. They also recommended the Minister applies the policy “in a fair and non-discriminatory manner”, and not simply in the case of a sale or planning application.

The Panel rejected the reasons advanced by the Minister for not disclosing the foreshore map, which they argued should be released “interests of greater clarity and transparency”. 

“The Panel is concerned regarding the lack of transparency by not allowing the public access to the research undertaken, the Master Schedule, or aspects thereof, or map in relation to informing an explicit boundary line for the foreshore,” they wrote. “Noting that a substantial number of properties (approximately 400 properties) are being considered regarding alleged encroachments, this is particularly concerning.

“The Panel considers that all members of the public wishing to purchase or sell properties that adjoin the foreshore should be knowledgeable of the boundaries that apply, and the information used to define them.” 

International Development Minister Deputy Carolyn Labey recently broke ranks to put forward an amendment to the Government’s foreshore policy calling for the same. 

The review also found that there is currently no suitable complaints or appeals mechanism included in either the current or the revised policy to enable individuals to appeal a decision made by the Minister on compensation for an encroachment. 

The Panel said the only option available was to make a case to the States of Jersey Complaints Board, which they described as “particularly concerning”, and called for a “a suitable and workable process” to be included in the policy before it is adopted. 

Pictured: The Assembly will be debating the policy on Tuesday 19 January.

While the revised policy was meant to address issues with the current one, the Panel said it had found “an overwhelming and unanimous view that [it] remains an unfair approach”, adding that the new policy is “complicated, unclear and lacks transparency” and would neither be workable or benefit the public.

In addition, the Panel said the policy failed to address the recommendation from the Complaints Board which upheld the complaint of unfairness by Alan Luce and Julian Mallinson, who were fined around £50,000 between them for alleged encroachments. 

“In consideration of all the evidence received the Panel considers the Minister for Infrastructure’s revised policy to be fundamentally flawed and lacking in essential detail,” the Panel wrote.

“It is the Panel’s view that the revised policy is not fit for purpose in its current form. 

“Whilst the Deputy of Grouville’s amendment goes a large way in its attempt to improve the policy in terms of fairness, clarity and transparency, as highlighted in this report and our recommendations, there are other aspects of the policy which still remain flawed. As a result, we feel we are unable to support the adoption of the revised policy.”

“The revised policy is not fit for purpose in its current form” I couldn’t have put it better myself! SO - hopefully the Assembly will accept my amendments, as a salvage job - or vote the lot out and await attempt no. 3 from JPH. https://t.co/C9Nzesr3yX

— Carolyn Labey (@CarolynLabey) January 14, 2021

Mr Mallinson welcomed the report and thanked Scrutiny for "its hard work over the last year."

"I’m not the least surprised that the Panel considers Jersey Property Holding’s Revised Policy to be unfair and not fit for purpose, echoing the findings of the Complaint’s Board and the Jersey Law Society," he said.

"I hope States Members will also reach this rather obvious conclusion when they vote next week”.

The policy and Deputy Labey's amendment are due to be debated in the coming weeks.