The right to bath on the beach

Australian’s today believe they have a public right to access and use the beach. That includes the right to swim and surf. It has not always been so. Doug Booth, the historian, has written a wonderful account of steps taken to enjoy the ocean waters (Australian Beach Cultures: the History of Sun, Sand and Surf, 2001). More recently, Caroline Ford in her book, Sydney Beaches, A History (2014, Chapters 1 and 2), has further explored the story of how Sydney residents and councils managed to change the rules around bathing in the sea.

There are two aspects to this story. One is how many beaches formed part of land grants. Property owners fought very hard to prevent the public from entering their land. Bondi was a case in point. Francis O’Brien had to receive considerable compensation for loss of property surrounding that beach. As noted by Ford: “O’Brien strongly resisted the resumption (in 1881) and was eventually awarded 6000 pounds in damages—a small price for the government to pay, some might suggest, for public ownership of this particular stretch of sand” (p.33). Waverley Council had been persistent in lobbying a somewhat reluctant property biased Government for foreshore ownership since the 1860s. The value of having access to coastal spaces for public recreation was being more and more evident at this time.

“The creation of Bondi Park was the first admission at the colonial government level that the public benefit from access to the beach was more important than the property rights of landowners. In this respect, it reflected broader trends towards providing ‘’healthy’’ open spaces for urban residents” (Ford, 2014, p34-35).

As an aside, it is interesting to note that under the new NSW Government in 2019 we have a Minister whose title includes “Open Spaces”.

The second part of the beach story discussed in Chapter 2 of Ford’s book (and of course by Booth), is how in the late 19^th and early 20^th century the surf also became accessible. Around this time the beaches were experiencing an influx of people to the seaside. No longer were property owners in command. Bathing in open areas in daylight hours was illegal and councils like Waverley tried to steer bathers into their oceans baths located on rock platforms and out of the surf. There were a number of surf incidents around this time and there was also a question of morality!

“By 1901, enough people were diving into the surf at Coogee to warrant new dressing accommodation and a special bather’s tram on Sunday mornings… In 1894 Newcastle Council had permitted all-day bathing on its beaches. The same year the NSW Legislative Council considered the merits of daylight bathing but ultimately voted against the law. By 1902 police along Sydney’s coast, perceiving that the law no longer reflected social mores, were increasingly reluctant to prosecute bathers dressed in “appropriate” costume” (Ford, 2014, p.49.

The famous incident on Manly Beach in 1903 where the then editor of a local paper, William Gocher, made a very public entrance into the sea in daylight in reality expressed “a broad cultural shift taking place across Sydney, which councils could no longer ignore” (Ford, 2014, p.50). The beach, the sand and the surf now became part of our way of life  becoming embedded in the Australian culture so much so that legislation and court decisions have progressively come to recognise this “right” of access and use of the beach and surf zone (see NSW Coastal Management Act, 2016).

The situation is not always that clear in other countries. As bedtime reading I have just finished trying to absorb a fascinating legal case that examines some rather esoteric ancient legal principles in relation to beach use in England. The case is R (on the application of Newhaven Port and Properties Ltd) v East Sussex CC (referred to in brief as R v East Sussex CC, 2015). This case was held on appeal before a bunch of Lords in the UK Supreme Court. It is of interest for two reasons: one, because it deals with public rights to use a newly formed beach created in part through the activities by a construction agency; and two, because it offers a comparative summary by Lord Carnwath of some general issues confronting beach access and use in different countries (e.g. USA, New Zealand and even Scotland!). He says these have not been considered before at this level and “which may become relevant in other cases”. In this case the Court was informed that while the Crown retained ownership and possession of more than half the foreshore around England and Wales, most of the foreshore which the Crown no longer owns was at some point conveyed or transferred away ( R v East Sussex CC, 2015, at section 26). The point is made (at section 28) that:

“The state of the law relating to public rights over the foreshore of England and Wales is more controversial than one might have expected. It appears clear that there is, at least nominally, “a public right of navigation and of fishing in the sea and rights ancillary to it” {cites Halsbury’s Laws}. However, the question in this case is the existence and nature of any further or greater rights, and in particular the right to use the foreshore for the purpose of bathing and the sort of familiar activities which people indulge in on a beach— at least in good weather”.

The case has many facets that deserve a read.  The Lordships looked at the issue whether this beach that came into existence in 1883 was available for public use “as of right”. They considered ancient shoreline law associated with public rights over foreshore use noting as one possibility under common law the public may have no right to use the foreshore for bathing (but did have for navigation). This could apply where there was no express permission from the owner of the foreshore; in such a case the public would be deemed trespassing. This possibility has had a long legal history in England. The case is complicated by local bylaws; use of this beach was regulated by the bylaws and could be used by the public by licence “not as if of right”. As I said a great read!

I cite this case to highlight the world of dispute in beach ownership and rights of access and use that Canadian authorities have recently termed the “fuzzy shadowland” of shoreline law. I refrain from delving here at similar disputes and problems articulated at length in many US law journals. But given the capacity for shorelines to move landwards onto private property there is an expectation that legal battles will continue in the future in many countries.

Bruce Thom  

Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2019, for correspondence about this blog post please email austcoastsoc@gmail.com

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