All at sea!

Should the rising sea levels wash away your garden, it’s just too bad – so beware, advises an article In the latest edition of Pam Golding Properties Intellectual Property magazine.

Alec Salmond, the controversial leader of the Scottish National Party, made an impassioned speech recently calling for changes to the country’s old, virtually feudal, property laws. Foreigners, he said, were buying up land in the Highlands and islands, evicting farm workers whose families had lived and worked on the land for generations. A German, he said, had bought an entire Hebridean island and evicted 100 crofters.

Salmond’s outcry has rubbed salt into an old wound, stirring once more the xenophobia never too far from the Scottish breast. The country has serious affordability issues for over 50% of the population and in the Highlands, second-home buyers have nearly priced the local population completely out of the market.

The message to South Africans is, quite simply, that foreign ownership of property is a global hot potato.

The sometimes emotional debate on the subject in this country is not unique – far from it. The panel of experts whose report is with government outlined numerous restrictions imposed by many foreign governments on non-citizens attempting to buy property.

Interestingly, few are blanket prohibitions. Mostly they apply to categories of property such as farm land, State land and coastal land. The reluctance to allow foreigners to close in on beachfront property, with its subsequent effect on property prices, is one common thread. Each time, for example, a luxury beachfront apartment in Cape Town’s Clifton sells for millions of rands there is a fresh outbreak of indignation. Yet far more Clifton homes are owned by South Africans than foreigners.

It’s just that not too many of us can fork out R20 million for a seaside pad.

What has become a popular anthem among those lobbying for a restrictive South African policy is that beachfront developments close off access to the sea and sand, which are every citizen’s birthright. The residential golf estates mushrooming along the Garden Route are favourite targets; so too are farms being turned into game reserves.

In the occasional debate on foreign land ownership here, a constant complaint is that developments are cutting off public access to beaches. Yet so far the author of the article says he has not heard any of the panel’s experts pointing out that when the Integrated Coastal Management Bill is enacted by Parliament (it was debated in the Chamber late November), developers/investors who have fenced off areas of beachfront property will have to open access to the public. End of story!

The Bill provides that every municipality whose area includes coastal public property must, within four years of this Act, make a bylaw that designates strips of land adjacent to that coastal public property … to secure public access to the coast.

Furthermore, until such time as strips of land have been designated as coastal access land in a particular municipal area the following regions must be regarded as having been so designated:

* Any public right of way, municipal servitude or other land that the public was entitled to use to access public coastal property when the Act commences; and
* Any place which, for at least five years immediately prior to the commencement of the Act, had been used by the public to gain access to the coastal property, including access to boat launching sites and proclaimed fishing harbours.

Municipalities are faced with fairly onerous responsibilities, some of which may strain their financial means. However, they are entitled under the Act to appeal to the provincial authorities for help. For example, they must, within their available resources, signpost and control these entry points, provide parking areas, toilets, boardwalks and other amenities.

The new Act will be much more far-reaching than public access to beaches. It is designed to protect our coastal environment – including such issues as estuarine pollution, dumping at sea and inappropriate development. Overseeing the new regulations will be a yet to be appointed National Coastal Committee, reporting to the Minister of Environmental Affairs.

Of particular interest to coastal dwellers is the fact that the Act will have an impact on beachfront property owners – many of whom have been adversely affected by flooding, sea encroachment and what is seen as hazards emanating from global warming. The Garden Route is a prize example.

If the high-water mark (below which the land belongs to the State) moves inland due to the erosion of the coast, sea-level rise “or other natural causes”, the owner of the land loses ownership of any portion of the land which becomes situated below the high-water mark – and is not entitled to compensation. The land becomes part of the seashore.

Worse, owners are prohibited from taking steps to protect their property from sea encroachment. The Bill currently states: “No person may construct, maintain or extend any structure, or take other measures on coastal public property to prevent or promote erosion or accretion of the seashore except as provided for in the Act.”

What is proposed is a coastal buffer zone – and one of its purposes will be “to protect people, property and economic activities from risks arising from dynamic coastal processes, including the risk of sea-level rise.” It’s all rather confusing.

Hopefully by the time the Bill passes both Houses, the issue of one’s right to protect private property from a rising tide will be much clearer.
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