As sea levels rise and coastlines erode, Australia's legal system is struggling to keep up. Longstanding assumptions about who owns the coast – and who should pay when it disappears – are now at the centre of growing disputes.
Along the east coast, councils have faced backlash from beachfront homeowners resisting managed retreat from the coastal fringes. In the Byron Shire and along the Mid North Coast of NSW, proposals to limit rebuilding or development approvals have triggered legal challenges . Debates over seawalls and sandbagging to mitigate erosion continue to divide communities.
Now, new international research led by coastal management expert Professor Tim Smith of Southern Cross University is challenging the legal foundations underpinning these conflicts. The study argues that coastal law, which commonly privileges private ownership in Western legal systems, is increasingly incompatible with a dynamic, climate-affected shoreline.
Professor Smith, who has recently taken up the position of Deputy Vice-Chancellor (Research) at Southern Cross University, says the problem is structural.
"In Australia, land below the high-water mark belongs to the Crown and is therefore public land. While this is technically an 'ambulatory' boundary, our common law tradition assumes coastlines are stable and coastal property boundaries can be fixed," he said.
"But as the effects of climate change become more dramatic, those assumptions no longer hold."
Entitled Beach law in the anthropocene and published in the journal Ocean & Coastal Management, the paper found that coastal governance frameworks globally are dominated by private property rights and short-term economic priorities. This is often at the expense of environmental and Indigenous values, not to mention the universal right to access the beach.
Examples of this tension abound. In one landmark Queensland case cited by the researchers, a court's interpretation of the high-water mark granted private rights that extended into the sea on Great Keppel Island. Legislation was needed to close this loophole – but not before a number of private owners obtained favourable re-surveys of their land.
In another case in California (USA), community groups resorted to litigation to reopen public access to a beach which had been closed by a private road. In Naples (Italy), beach access that had been closed by a gate (erected to manage a bathing concession) had to likewise be restored through a legal challenge.
Co-author Professor Justine Bell-James from the University of Queensland said the imbalance in coastal law was shaping how disputes play out on the ground.
"We are seeing legal frameworks struggle to respond to sea-level rise, erosion and the effects of extreme weather on our beaches, with impacts across public spending, governance, real estate and even insurance," she said.
"Who owns the beach, who can access the beach and who should pay for restoring a beach are questions communities around the world are grappling with."
According to the researchers, incremental policy adjustments will not be enough. Instead, they call for a rethinking of what coastal ownership means and a move towards more flexible, shared, and adaptive legal frameworks.
Professor Smith said future reform must take a broad view.
"This might for example include the development of civil codes that prevent private property cutting off access to the beach, or a greater incorporation of alternative world views into the definition of ownership," he said.
Time is ticking. According to NASA data , the sea level surrounding the Australian coastline has risen 13 centimetres since 1993 and is forecast to rise 16 centimetres between the period 2020-2050 if current trends continue.
Access the full study here: Beach law in the anthropocene
