15 August 2017
A number of articles have appeared in the local media in respect of encroachments on the Foreshore. Some of the content appears to have caused confusion and the following statement sets out the Department’s position with regard to encroachments:
The Department for Infrastructure has a duty to protect the land interests owned by the people of Jersey, the Public. A requirement for planning permission does not overrule or remove the need to have in place the necessary legal rights to carry out building or other operations on another person’s land. Planning applications do not generally involve detailed investigations into ownership of land. The planning department cannot give rulings on ownership and that is not its function.
Encroachments on the foreshore are intrusions on to land owned by the Public, by either building or extending on such land or blocking public access to the land. The encroacher is benefitting from the enjoyment of such land and increased value to their property.
The approach taken by Jersey Property Holdings (JPH) to such issues is consistent with the 2006 Ministerial decision that JPH has a duty to extract the optimum benefit from the Public’s property assets.
As a matter of Jersey customary law prescription does not run against the estate of the Crown. This means that no person may claim title to land owned by the Crown simply by occupying it for a long time. So an encroachment on land whilst in Crown ownership will not belong to the person encroaching, no matter how long that encroachment may have persisted.
On 12 June 2015 the Public of the Island were given by Her Majesty the Queen the freehold interest of the Foreshore, which included any intervening land between Foreshore and sea defences and the Seabed to its furthest extent in the Bailiwick of Jersey. Prior to that acquisition, the Public had leased the Foreshore under leases from the Crown and, for many decades before and since those leases being granted, had constructed, maintained and administered sea defences, jetties, piers, harbours and the like on the Foreshore with Crown's consent.
The States, through the Minister for Infrastructure, must consider how best to protect the interest of the Public. Taking no action in respect of encroachments would, over time, risk title to land forming part of the Foreshore passing to parties who have encroached on the land now that the land is no longer owned by the Crown. There is also an element of unfairness in permitting a small group of people to benefit from obtaining, over time, rights to property which are held for the Public at large without the Public receiving fair compensation.
The purchaser of a property is responsible for verifying the legal boundaries of the property they intend to purchase and should take legal advice before they do so. Where land borders property in Public ownership such as the Foreshore and boundaries may be uncertain, the purchasers or their agents are encouraged to contact the Department to verify the position.
Before publishing a detailed policy for dealing with encroachments on Public land, whether in respect of the Foreshore or otherwise, the approach taken by the Department for Infrastructure is to contact the relevant parties when a ‘trigger’ event occurs.
These are typically
- notification of a potential disposal of a relevant property by sale or contract lease
- submission of a planning application potentially involving the Foreshore
- an approach to the Department
The Department cannot ignore a pending transaction involving land that may belong to the Public. To do so would run counter to its obligations to achieve best value for the public purse and risks perpetuating a defective chain of title. What the Department has done since 2015 is to negotiate a fair settlement that reflects the circumstances of each case.
The Department will soon issue a policy on encroachments, which will draw on its experiences to date as well as remaining consistent with any relevant legal duties and the 2006 Ministerial decision.
It is worth noting that before the transfer of the Foreshore to the Public, action was taken from time to time on behalf of the Crown to address encroachments on the Foreshore.
The Planning Law requires applicants who do not own all the land affected by an application to ensure that a certificate is obtained from any adjoining landowner giving authority for the application being made.
By giving such authority as landowner the Public is not approving the proposed development nor is it granting or giving away any legal rights. The Public is simply allowing the applicant to apply for approval of the proposal.
Any queries on encroachments should be directed to the Department for Infrastructure, Jersey Property Holdings, in writing:
By e-mail to email@example.com
Or by letter to:
Department for Infrastructure
Jersey Property Holdings
La Route du Port Elizabeth
St Helier JE2 3NW