It is common for beachside residents to receive letters from the government informing them that the state now owns another tiny portion of their back (or front) yard. This will occur where residents’ land is bounded by the ocean and its boundary is ambulatory and determined by the “mean high water mark”.

The position at common law is that the land boundary changes as the position of the water’s edge changes. This is known as the doctrine of erosion and accretion. The common law position has been altered by statute and the position in Australia varies from state to state, but in NSW clause 48 of the Surveying and Spatial Information Regulation 2017 largely mirrors the common law doctrine. That is, the ambulatory boundary varies at law only if:

1) The change to the position of the water’s edge is so slow and gradual that it is imperceptible to the naked eye; and

2) The change is the result of natural processes.

The doctrine goes both ways, i.e. private landowners can also potentially acquire land if the ocean recedes over time. However, statute does operate to limit their rights in this respect if that acquisition would result in a loss of access or enjoyment by the public.

Wamberal residents

Despite the above, the doctrine can be excluded by express intention in the instrument granting the land, so depending on the terms of the initial grant to a specific lot, some properties need not be concerned with their land being eroded away (in a legal sense) at all. It is unlikely that the properties at Wamberal on the NSW’s Central Coast would be captured by the erosion doctrine in this instance in any event, given that a clear change occurred as a result of a particular extreme weather event.

Ownership rights

Therefore, despite the erosion, it is likely that the beachside residents have retained ownership of their land (as it was before the storm). However, this doesn’t mean they have unfettered rights to undertake any activities of their choice on that land, including the building of a sea wall or similar. Legal ownership of land is determined by reference to what is denoted on the Register, but the government still has the right to restrict what owners can do with their land. Most people will be familiar with the council approval process under the Environmental Planning and Assessment Act, but also relevant here is the Coastal Management Act. Basically, this means residents are at the mercy of council in respect of what they can do to protect their land.

It is not a stretch to imagine a day in the near future where the government exercises its rights to compulsorily acquire beachfront land from residents, if only to reduce the associated headaches that invariably come with it. If that day comes, we may see Dennis Denuto come out of retirement.