TREASURY AND RESOURCES DEPARTMENT
JERSEY PROPERTY HOLDINGS
Property Transaction for Ministerial Decision - Minister for Treasury and Resources
The Sea Wall, Pontac to La Rocque, St Clement – Proposed Transfer of Land
PBA 15/Gen/3
Purpose
To seek the consent of the Minister for Treasury and Resources to:
- Acquire from the Crown the sea wall – Pontac to La Rocque - and the strip of reclaimed land between same and the 63 neigbouring properties.
- To transfer to the 63 neighbouring properties the relevant co-extensive sections of reclaimed land behind the sea wall.
Background
This report relates to the concrete sea wall lying from Pontac to La Rocque, which starts at approximately 650 m to the west of Pontac slipway and runs eastwards for a length of approximately 1,000 m finishing at the rock outcrop at La Rocque Harbour. The slipways at Le Bourg and La Charrière au Long bisect the sea wall. The location of the seawall is shown on the attached plan under Appendix A.
There are 63 private properties which adjoin the strip of reclaimed land behind the sea wall. The boundaries between those 63 properties and the reclaimed land are not agreed in contracts between the property owners and the Crown/Public.
The sea wall was constructed by the States in 1971/1972, and has been maintained by the Transport and Technical Services Department (and its former departments). T&TS will continue to maintain the sea wall.
On 11 January 1971 the States approved the purchase by the Public from the Crown for the sum of £100 of an area of foreshore for the construction of the sea wall and slipways as shown upon a drawing numbered LB2, and the cession by the Public to the owners of the relevant properties of the reclaimed land.
Drawing LB2 was produced by Coode & Partners of London and included a survey of the foreshore boundary with the private properties (there were 52 properties in 1971 as opposed to 63 now). The boundary line was irregular, and the drawing noted that the accuracy of the surveyed line could not be guaranteed. However, drawing LB2 remains the best information available as to the boundary line of the beach with the adjoining private properties as at 1971.
In places, the original boundary line as surveyed by Coode & Partners was very close to the rear face of the new sea wall, but in other places the distance was significant. At one point, the reclaimed land was as much as 6.5 m deep (21 feet).
The purchase of the land by the Public from the Crown and the cession of the reclaimed land to the property owners did not take place, for reasons, it is assumed, of priority against other transactions taking place at the time and in subsequent years.
On 30 April 1971 the Chief Administrative Officer of the Public Works Committee wrote to the 52 property owners stating that it was proposed to build a sea wall and that it would be necessary to pass contracts before Royal Court to define the boundary between the properties and the sea wall – the boundary to be the rear landward side of the wall. The Officer requested that the property owners sign and return the letter by way of agreement to pass contracts to define the boundary. The letter was silent as to whether the reclaimed land gained by the house owners would be ceded or sold, and the arrangements for legal fees incurred in passing contract.
Unfortunately, no records have been found to indicate which property owners, if any, signed and returned the letter.
On 21 July 1972 the States’ Land Officer wrote to the same property owners. The letter began:
“ Now that construction work on the sea-wall is front of your property has been virtually completed, and that you are probably planning how to utilise the area of land at the rear of the sea-wall which is shortly to be ceded to you, I have been asked by the Public Works Committee to remind you of the restrictions that exist on the area in question.
In brief, you may –
(a) place a flight of moveable wooden or metals steps against the sea-wall to allow you to access the beach; and,
(b) extend your present eastern and western boundary walls, hedges or fences as far as the rear face of the sea-wall, bearing in mind that the Public Works Committee has the right to remove temporarily any of the said boundary walls, hedges or fences which are constructed up to 8 feet from the rear of the sea wall in order to carry out any repair or maintenance work that might become necessary.”
Those two letters gave an undertaking to the 52 house owners that there was an option to define the boundary as being the rear landward face of the new sea wall, and invited the owners to extend their gardens and side boundaries up to the sea wall. The second letter stated that the land would be ceded shortly, but was silent as to legal costs, as was the States’ approval of January 1971.
To summarise the above, the States approved in 1971 the acquisition of Crown foreshore in order to build a sea wall, and the cession of the reclaimed land to the 52 adjoining properties. The wall was built and the States’ administration confirmed in writing to the house owners that they were free to extend their gardens onto the reclaimed land, and that the land would be ceded to them shortly. The Crown land was not acquired by the States and no land was ceded to the house owners. Therefore, the boundary between the properties and the foreshore remains the line as recorded on Coode & Partners’ drawing N° LB2. It follows therefore, that the property owners who have extended their gardens beyond that line, are presently encroaching on Crown Land.
Appendix B is a schedule of the 63 property names, the owners, and the dates of acquisition. The ownership of 17 of the properties has not changed since the letters of 1971/1972, but the other 46 properties have all been sold since then. The majority of the properties have had their gardens extended up to the sea wall. Unfortunately, other than in a small number of cases, it is not known when the extensions of the gardens took place. In no cases have buildings been constructed on the Crown land, but patios, steps and walls have.
It is understood that since 1972, when the subject private properties have changed ownerships, there have been very few enquiries from lawyers to the States’ administration in respect of the boundaries towards the sea wall. This seems surprising given the publication of the 1971 States’ decision, and the fact that there are no contracts in existence with the Crown/Public agreeing boundaries. Possibly, the majority of purchasers have been willing to accept the risk of passing contracts with undefined south boundaries.
Attached under Appendix C is a paper prepared by the former Solicitor General Miss Stéphanie Nicolle QC. In Miss Nicolle’s opinion, the 1971 States’ approval, together with the subsequent States’ communications with the property owners, may have formed the basis of a binding agreement for the land to be transferred. Consequently, those original owners in receipt of the States’ communications could seek to take action for the agreement having not been effected. Whether that postion can be transferred to subsequent owners of the properties is uncertain.
There are a number of other cases where beachfront properties have encroached on Crown or Public land, and in resolving the encroachments, significant financial considerations have been paid to the Public in some cases.
Brief details of those cases are given under Appendix D.
Based upon those previous cases, if the current encroachments at Pontac to La Rocque were not complicated by the previous States’ decision and letters to the owners, Jersey Property Holdings would be seeking to negotiate values of up £15,000 per property where the reclaimed land is significant in size. In areas where the original boundary as surveyed by Coode & Partners is close to the sea wall, it would be difficult to negotiate any value for the small land take.
In 1971 the land was being obtained from the Crown for the sole reason of building a sea wall. Therefore, other than seeking to recover some of the cost of building the sea wall (approximately £40,000 in 1971) from the householders (as effectively the wall was being built to prevent erosion of the coastline in front of their properties) there is a moral issue as to whether it would have been in order for the Public to seek to profit from the onward sale the land, having received it for the sum of £100.
The Crown reaffirmed its agreement to sell the land to the Public in 2002, at the same £100 consideration as agreed in 1971. Again, this is not seen as an opportunity for the Public to profit from the land, although it has been agreed with the Crown that should any financial consideration be received, it will be divided on a 50/50 basis between the Public and the Crown. Whether it is right for the house owners to profit from the Public land is also a matter to consider.
Correspondence from a resident of the area has been sent to the Parish Constable suggesting that a Public promenade be created at the sea wall. Unfortunately, because in places the original foreshore line is very close to the rear face of the sea wall, it would not be possible to create a safe promenade – the wall itself being only approximately 0.45 m wide.
The transfer of land to 63 properties will generate considerable work for Jersey Property Holdings and the Law Officers’ Department. The benefit to the Public of resolving the boundary is not significant, but is good estate management. The benefit to the house owners is greater, as future sales of the houses could be delayed due the uncertain boundary.
Contained under Appendix E are plans of the 63 properties in relation to the sea wall – produced by the Transport & Technical Services Department. The southern most solid line is the seaward face of the sea wall, and the parallel broken line is the rear face. The adjacent bold solid line is the original Coode & Partners’ survey line of the boundary in 1971.
Conclusion
The original 52 property owners at the time of the construction of the sea wall were justified in extending their gardens as far as the sea wall as per the invitation to do so in two letters from the States’ Administration.
When the ownership of those houses has subsequently changed hands, the new owners had less justification to extend their gardens. The difficulty however is that it is problematic to determine when the gardens were extended.
In 1971 the States agreed to cede the land to the house owners, and invited the owners to extend their gardens in advance of the contracts being passed. The passing of the contracts was not actively progressed, presumably for reasons relating to resources and priority.
The States may have created an agreement with the original 52 owners to cede the land. As that agreement has not been effected, it could be open to those original owners to take action. Subsequent owners would be in a weaker position.
To some extent the States has set a precedent in dealing with encroachments on other similar properties. Some of those owners who have paid thousands of pounds to resolve their encroachments might feel aggrieved at the position with this stretch of sea wall. The Public’s defence is that the land was acquired from the Crown for the sole reason of building the sea wall in 1971, and it would be morally wrong to seek to profit from that land.
On balance, taking all the factors into consideration, it is recommended that the original 1971 States’ decision is reaffirmed by the Minister, rather than seeking to negotiate individual land values for the reclaimed land.
Recommendation
It is recommended that the Minister agrees for the Public to acquire from the Crown the land upon which the Pontac to La Rocque sea wall is built, and the reclaimed land to the rear, for the sum of £100.
It is also recommended that the Minister agrees to cede the respective parcels of land to each of the owners of the 63 private properties which adjoin the reclaimed land adjoining the sea wall, thus establishing the boundary between the private properties and the Public property as the rear landward side of the wall, with all parties to be responsible for their own legal fees in passing contract before Royal Court.
Written By: Principal Property Manager
Signature …………………………
Authorised By: (Director/Assistant Director PH)
Signature ………………………… 08 July 2009
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