Foreshore: policy for alleged encroachment payments [P.101/2020]

STATES OF JERSEY

FORESHORE: POLICY FOR ALLEGED ENCROACHMENT PAYMENTS

Lodged au Greffe on 4th August 2020 by the Deputy of Grouville

STATES GREFFE

2020  P.101

PROPOSITION

THE STATES are asked to decide whether they are of opinion

1. that Jersey Property Holdings should, with immediate effect, cease charging Islanders a consideration for alleged encroachments onto the Foreshore until a revised policy has been approved by the Assembly;
2. that such policy should be brought forward for debate by the Assembly by January 2021 and should confirm the date from which the deemed encroachments will be determined and be accompanied by a map clearly showing the boundaries used to establish land ownership;
3. that until such time as a clear revised policy is agreed by the Assembly, the Minister for Infrastructure should be asked to return, any monies so far received from people whose grievances have been upheld by a States of Jersey Complaints Board in relation to this matter; and
4. to request that the Department for Infrastructure publishes by the end of 2020, a map of all public accesses, footpaths and rights of way to the foreshore.

DEPUTY OF GROUVILLE

REPORT

The issue of fines or States compensation payments being levied against certain property sellers for alleged encroachments on the foreshore came to my attention at the end of 2017, when a very distressed seller (Mr. A. Luce ) brought the matter to me. I advised him to put his case together and take it to the Jersey Complaints Board, the official body set up by this Assembly to deal with the Public's grievances of States Administration. While  preparing  his  case  we  were  contacted  by  another  property  owner (Mr. J. Mallinson) who felt he too had been treated unfairly at the hands of the States in a similar compensation matter. A joint case was therefore prepared and presented at a Hearing of the Jersey Complaints Board (the "JCB").

It is worth noting that the first property owner had no knowledge that he did not have full  title  to  his  property  before  his  compensation  payment  was  demanded  by Government, as the alleged encroachments had been undertaken by previous owners of his property many decades before and without any acknowledgement in Title Deeds passed by the Royal Court.

The JCB Hearing took place in public on 11th April 2018 (R.71/2018), and the Findings of the board were presented to the States on 1st June 2018 (see Appendix 1). The Island's General Election had taken place in the interim and a new Government took office on 7th June 2018. An initial response to the Findings was made by the new Minister for Infrastructure to the States on 7th August 2018 (R.71/2018Res.), (see Appendix 2) whereby the Minister (understandably) suggests in clauses 8.12, 8.13, 8.14 and 8.16 that more time is needed to consider this complex matter and that he will be reviewing the policy and contracts in detail. At the time of lodging this Proposition, the conclusions of the review are still awaited. In fact, it was stated by the Minister during a Scrutiny Hearing on 16th April 2019 that the review would be published before the end of the year and in a subsequent Scrutiny Hearing by December and then January or April 2020.

It is for this reason I have decided to lodge my proposition as I do not believe it is right to continue in this manner. It is simply not fair on those who went through a very stressful process of having to deal with Government and Jersey Property Holdings (the "JPH") demanding inconsistently applied compensation payments, nor is it fair on other property-owners who may be contemplating selling their homes along the coast to have the uncertainty hanging over them.

There was an unhealthy assumption made by the previous Minister that the property sellers must be able to afford whatever bill the Government choose to render against them, along with valuation costs, legal fees and delays. Some individuals may have had mortgages associated with their property, financial stresses, or personal reasons in which they were required to sell up.

In Mr. Luce 's case, the action the Minister and Government of the day chose to take against him, did not only loose him the sale of his house, it then actually delayed any prospect of any sale for a further 15 months, while the Minister set about writing a policy to cover his actions and the department having to undergo a learning exercise in boundary setting and alleged encroachments. The result that this property owner then faced, was either paying compensation for an encroachment, which a previous owner had been responsible for, or not selling his home. Coupled with that, the value of the property  had  dropped  by  over  £100,000  because  of  the  uncertainty  created  by

Government. The Law Society of Jersey Property and Conveyancing Sub-Committee's opinion to JPH's approach is attached (see Appendix 3).

To be clear, I do not agree with the foreshore of this Island being encroached to the detriment of the public. I do not agree with private landowners blocking off public accesses, pathways and ancient rights of way to the Foreshore. But what I fail to appreciate, is how the actions instigated by the previous Minister for Infrastructure and seemingly up-held by the current Minister; (i) protect the land for the People of Jersey or (ii) "achieve best value for the public purse" as claimed by the Department.

The letter written by Advocate Richard Falle (see Appendix 4) touches on some of the complexities behind determining the ownership of the Foreshore and sets out very clearly, why it will not be a straight forward exercise to determine boundary lines – as the States knows only too well to its cost.

I should perhaps remind members at this juncture that there are currently 5 active Fiefs with engaged Seigneurs with valid claims yet to be tested. The law of unintended consequences must not cost the Tax Payer again by this apparent money-making exercise.

If the Department of Infrastructure is hoping to achieve best value for the public purse, then I am afraid I don't share the same optimism as the Minister that the current approach will achieve the best outcome for the People of Jersey. I consider I am probably more realistic of the outcome. Consider that, once Lawyers, Conveyancers, Professional Valuers, Negotiators and the States Administration set about determining boundaries, title, values, encroachments and setting fines with landowners – on a case by case basis – and by all accounts on a very selective and discriminatory basis, I am afraid I see absolutely no chance of best value' being achieved and delivered to the public.

Indeed, I fear the opposite will be the case and that is before any of the Seigneurs rights are challenged and it will be the public, who face the consequences of this situation.

I also wonder if any consideration has been given to the uncertainty and unease this situation has given rise to in the marketplace of coastal properties. The lending capacity, potential compensation for loss of sales, litigation against conveyancers who failed to pick up the Crown's interest and of course the loss in Stamp Duty? How much Stamp Duty are the States loosing because property owners are deciding to stay put' rather than face the uncertainty brought about by this randomly applied policy?

Ask yourself if homeowners, perhaps elderly couples who wish to downsize, would contemplate putting their home on the market to then face the possibility of having to go  into  legal  battle  with  Government?  The  unknown  cost  of  the  compensation determined it seems, by Officers in the department on a case by case basis. The unknown legal and valuation costs. And should they dare take issue with the process, they can face more time and effort not to mention additional stress, in taking their case to the States Complaints Board – which may find in their favour – and then – nothing. No recognition. No redress. "No comment."

The fact that the States Complaints Board, a body set up by this Assembly, made up of a panel of people who give their time and consideration to cases brought before them by the public, who are supported by the States Greffe staff, and who present their

findings to the States in an orderly timeframe; to then have them ignored with impunity by Government, is simply not right.

I ask the question again; how is this benefiting or providing best value' for the Public of Jersey?

But there is something altogether more disdainful about the approach and timetable adopted by JPH and that is this; while the Foreshore was owned by the Crown, the States were prepared to give planning permissions, convey properties, oversee contracts being passed in the Royal Court and collect Stamp Duty. Yet 62 working days after the People of  Jersey  received  Her  Majesty's  gift  of  the  Foreshore  on  12th  June  2015  (see Appendix 5), the Department of Infrastructure set about "going after" Her Majesty's Subjects for encroachments they had previously overseen. This action was pursued so soon after receipt of the Gift, there was not even time for a proper policy to be in place.

I therefore ask; did the States of Jersey as leaseholders of the foreshore not have a duty of care to the Crown to stop these encroachments rather than encouraging them with Planning permissions and the collection of Stamp Duties? And having turned a blind eye to them whilst owned by the Crown, should they now be seeking to cash in on them?

But, if these encroachments were made during the Crown's ownership of the Foreshore, then surely the fines' levied and the monies collected are owed to the Privy Purse and not the States Treasury?

The States of Jersey and Department for Infrastructure have a duty to protect the interests owned by the people of Jersey. Encroachments on the foreshore are intrusions to land owned by the Public, either by extending private properties, blocking public access,  erecting  unsightly  fencing  or  whatever.  None  of  which  are  necessarily acceptable and JPH must devise a way of dealing with them, in a fair, consistent, even handed  way,  so  a  policy –  agreed  by  this  Assembly –  that  recognises  the  States ownership of its land, can be applied in an open and transparent manner, not arbitrarily or discriminatory. Property owners need to know exactly where they stand.

JPH need to publish the maps they are using to determine the encroachments and clearly state the date from which they are determining the Foreshore boundaries. The Foreshore being defined as the area of land between "le niveau de la basse de mer" (the low water mark of tide) and "le niveau du plein de Mars" (the high water mark of the full spring tide). I want Members to consider where the high tide level might have been before the States themselves encroached the Foreshore by building a sea wall in 1864 or reclaimed land in various locations around the Island. This is not an issue confined to St. Clement and Grouville as my historic photographs and maps will demonstrate, (see Appendix 6). Depending which date we are using to determine the encroachments we might be looking at the high tide mark being on the slipway in front of the Royal Yacht Hotel, which gave rise to the names of our streets in that area – Pier Road, Wharf Street, Sand Street.

Hence my request in this proposition for a map and date which is being applied to establish the boundaries.

I recognise the need for these encroachments to be acknowledged and the title to be upheld since the 40-year rule of ownership started to tick from 12th June 2015. But this must be carried out in a fair transparent way, as many of the current property owners

had no hand in them. The States must cherish our land and must not oversee anymore blights on our seascape, unless it can be demonstrated there is good reason and it is for the public good.

In this proposition I also request that JPH focus some of their efforts into providing a map of all public accesses, pathways and public rights of way to the Foreshore which are also being eroded.

Financial and manpower implications

I believe the mapping exercise is currently being carried out, but my proposition attempts to focus the issue to a conclusion and that a revised policy should be brought forward anyway to ensure that it is clearer and is up held in a fair consistent manner. Again, the public accesses, footpaths and rights to the foreshore is information which should be in the public domain and if it is not easily available, then the time of one person researching, collating and publishing the information is needed. It is difficult to quantify an exact sum but establishing a fair policy will avoid future legal challenges by residents at the taxpayers' expense.

APPENDIX 1

States of Jersey Complaints Board Findings

APPENDIX 2 Minister for Infrastructure's response to States of Jersey Complaints Board

The Law Society of Jersey Property and Conveyancing Sub-Committee's opinion to Jersey Property Holdings' approach

Advocate Richard Falle's Letter

APPENDIX 5

Deed of Transfer

Historic photographs and maps

Details of Weighbridge reclamation

APPENDIX 6(b)

Details of Gorey reclamation

APPENDIX 6(c)

Details of St. Aubin reclamation

APPENDIX 6(d)

Details of St. Brelade sand dunes

APPENDIX 6(e)

Details of Havre des Pas reclamation