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Law and Access to the Foreshore
There is no legal concept of what is colloquially known as a beach.
The foreshore is that portion of the land adjacent to the sea that
lies between the high water and low water marks, being alternately
covered and uncovered as the tide ebbs and flows.
Many people believe that the public has a right of unimpeded access
along the foreshore. However according to common law3,
the basic rule is that "the public has no right of passing
along the foreshore, except in the exercise of rights of navigation
or fishery, or in respect of a lawfully dedicated right of way from
one place to another over the foreshore; there is no right of stay
or of recreation there and no right to go across the foreshore for
the purpose of getting to or from boats, except such places as usage
or necessity has appropriated for that purpose, and no right to
wander at will. This rule applies whether the foreshore is the property
of the Crown or of a private person."4 The Beach
Control Act of 1956 vests all rights in and over the foreshore and
the floor of the sea in the Crown and further states that "No
person shall be deemed to have any rights in or over the foreshore
... or the floor of the sea, save such as are derived from or acquired
or preserved under or by virtue of this Act." (Section 3 (4)).
There is no common law right
of bathing... on the foreshore or of taking gravel, stones,
sand or seaweed from the foreshore or of holding meetings on
or passing over the foreshore except for the purposes of navigation
The public may have rights
of access to the foreshore by virtue of an access agreement
or access made under ..(an Act). [Encyclopedia of Forms and
Precedents, Vol. 9, 4th Edition, "Public Rights over the
McCalla, Winston, Opinion on
the rights of the public to unrestricted access along the foreshore
of the island, 31st December, 1987
In Jamaica, with the very limited tidal variations - 30 - 40cm
(12" - 16") the foreshore is relatively narrow with an
average width of approximately 1.5m to 2m (5' to 6') depending on
the topography of the shoreline.
The sea below the low water mark "constitutes
the high seas and the public have the right of navigation and a
right of fishing therein which cannot be interfered with by the
Crown in its capacity as the owner of the foreshore or the floor
of the sea"5 (except in cases where the law prohibits
such activities, e.g within fish sanctuaries).
Beach Control Act and the Prescription Act
The two principal laws concerning policy on beach access in Jamaica
are the Beach Control Act and the Prescription Act.
The Beach Control Act vests all rights of the foreshore in the
Crown, but as noted above, the Act preserves the rights of persons
having a registered title over the foreshore prior to 1956 and those
of fishermen who acquire rights by prescription.
Owners of private property adjoining the foreshore may pass over
or use the Crown's property for private domestic purposes (this
extends to family and friends), subject to the rights of certain
members of the public to use the seashore for purposes approved
The public has unrestricted access only to those beaches which
have been declared to be 'public recreational beaches' pursuant
to Section 52 of the Beach Control Act and upon payment of a fee
(if a fee has been set).6
The public may also claim the right of unrestricted access where
a right of access has been established pursuant to section 4 of
the Prescription Act which states:
When any beach has been used by the public or any class of
the public for fishing, or for purposes incidental to fishing,
or for bathing or recreation, and any road, track or pathway
passing over any land adjoining or adjacent to such beach has
been used by the public or any class of the public as a means
of access to such beach, without interruption for the full period
of twenty years, the public shall, subject to the provisos hereinafter
contained, have the absolute and indefeasible right to use such
beach, land, road, track or pathway as aforesaid, unless it
shall appear that the same was enjoyed by some consent or agreement
expressly made or given for that purpose by deed or writing."
Coore, David, Opinion on the
matter of the Beach Control Law and in the matter of the rights
of fishermen to use the foreshore and the floor of the sea
Memorandum from the Attorney
General's Chambers dated 1st July, 1987
The Beach Control Authority was established under the Beach Control
Act "to control the use of the foreshore so as to advance on
a fair basis the interests of developing commercial enterprises
and in particular the hotel industry, the interest of the public
who have a right to have places for recreation, to have the means
of access to the sea for their own amusement and for the interests
of the fishermen which must be protected and developed".7
The functions of the Authority were:
a) The granting of Licences for the use of the foreshore and/or
the floor of the sea for commercial or private purposes.
b) Ascertaining the needs of the public in relation to the
beaches and making provisions for them.
c) Acquiring beach lands for the use and benefit of the public.
d) Maintaining and developing beaches for the benefit of the
e) The protection of existing beaches and where possible, the
establishment of new ones.
The law stipulated that a licence was required from the Authority
for the use of the foreshore in connection with any commercial enterprise
along the coast which involved the use of or encroachment on the
foreshore and/or the floor of the sea and the overlying water.
It was by the grant or refusal to grant licences that the Authority
was able to regulate the pattern of development which should take
place along the coast.
One of the early actions taken by the Authority in 1957 to protect
existing public rights, was to retain for the use of the public,
the popular Dunn's River beach in St. Ann which the owners desired
to develop exclusively for hotel purposes.
For the protection of the foreshore, the Authority also encouraged
the construction of sea defences, such as groynes, at places where
erosion threatened to destroy the beach, e.g at Annotto Bay in St.
Mary and St. Margaret's Bay in Portland.
Hansard, Proceedings of the House of Representatives, November
The Authority has the power to declare any beach used by the public
for fishing, bathing or recreation a public beach. The owner of
a beach declared by an order to be a public bathing beach may request
the revocation of the order to enable him to recover full control
over the beach in the interest of commercial development of the
Under Section 13 of the Beach Control Act, the Authority may maintain,
use and develop any beach or land which it acquires or may make
provision for the use and development of such beach or land by any
person, body or authority on such terms and conditions as it may
The Beach Control Act also provides for the declaration of protected
areas and the prohibition of activities such as fishing, waste disposal,
dredging and coral removal in such areas.
Regulations were developed under the Beach Control
Act concerning licensing, safety measures, the operation of hotel,
commercial and public recreational beaches as well as orders on
protected areas (Ocho Rios, Port Royal, Montego Bay and black coral).
c. The Natural Resources Conservation
Authority (NRCA) Act
The NRCA Act, 1991 vested in the NRCA the power to administer the
Beach Control Act.
The NRCA Act also gives the Authority power to require environmental
impact assessments where certain proposed activities may have a
negative effect on the environment. The Authority's wide powers
include the protection of flora and fauna, the establishment of
national parks, the setting of standards for water quality, etc.
The NRCA approves all plans for the development of beaches, inspects
beaches to ensure adherence to prescribed safety and sanitation
standards and enforces regulations relating to declared protected
The NRCA has authority to issue or revoke licences,
change the terms and conditions of annual licence renewal, and regulate
the types of structures that may be licensed for construction on
the foreshore and in near shore waters.
d. Other related
Other laws which affect beaches include the Fishing Industries
Act, the Harbours Act, the Jamaica National Heritage Trust Act,
the Local Improvements Act, the Morant and Pedro Cays Act, the Quarries
Control Act, the Town and Country Planning Act, the Tourist Board
Act and the Urban Development Corporation Act,
| 2.2 POLICIES 1950s - to the Present
| The approach of the Beach Control
Authority was basically one of a judicious apportionment of the limited
coastal resources in an effort to cater to the various competing demands
of bathing, fishing, resort development, industry, etc., and the Authority
at the time embarked on a policy of issuing exclusive licences to
the resort sector, after making reasonable provision for public bathing
| a. Priorities
The priorities of the Beach Control Authority as determined at
the outset were as follows:
(a) The provision of beaches for fishermen.
(b) The provision of public bathing beaches.
(c) Preservation of scenic coastal drives, wherever possible.
(d) Licensing of hotel and resort beaches.
(e) Other commercial uses of the foreshore
Today, the priorities include the rehabilitation and maintenance
of safe and healthy beaches as well as the expansion of public access
Acquisition and Management of Beaches
Where coastal areas were subdivided, the Beach Control Authority
in collaboration with the Parish Councils and the Fisheries Division
would seek to ensure that beach properties were reserved for public
recreational and fishing use. In most cases, beach properties reserved
in a subdivision were either transferred to the Authority or to
the Parish Council. In some cases the Beach Control Authority directly
acquired beach property for public use. In other cases, private
property owners donated beach property to the Authority as a gift.
From the start of its operations in 1956, the Beach Control Authority
adopted a policy whereby public bathing beaches after acquisition,
were handed over to the respective Parish Councils for development
and control. The capital funds for such development were always
provided in the Authority's Capital Budget, while the recurrent
maintenance and staff requirements were made available to the Parish
Councils through the Ministry of Local Government.
It was never the policy of Government that the Authority should
take responsibility for the actual administration of any public
bathing beaches, although there would be prior consultation with
the Parish Councils regarding the type and extent of facilities
considered desirable for each site.
The Authority's parent Ministry would be advised of all plans that
were being made for the development, maintenance and administration
of such beaches.
The beach policy as set out above was carried out from 1958, soon
after the Authority became operational, until October 1985, when,
as part of a structural adjustment programme, it was decided that
"Those services for which the Local Government Authorities
continue to be responsible and which can be more efficiently
performed through private contractors, will be privatized through
service and management contracts or leases. Specifically this
policy relates to.............public bathing and fishing beaches."8
As a result of this policy of divestment, all monetary support
for maintenance and operational expenditure on public bathing beaches
was cut off and efforts to have them divested failed to attract
any viable proposals.
These beaches fell into a state of disrepair, particularly after
Hurricane Gilbert. Some beaches are still being used by the public
without the benefit of life guard protection and other basic amenities.
In an effort to have the public bathing beaches restored with a
minimum demand for public funds, Government took the decision in
1989 that Recreational Development Corporation (RDC) should be established
to carry out this process.
In October 1992, however, the Government gave approval for the
assets and functions of Recreational Development Corporation to
be vested in Tourism Product Development Company, which was to be
managed by Tourism Action Plan Limited (TAP).
It was intended that the management and development responsibilities
for certain beaches would be divested by way of an instrument of
lease offered to selected concessionaires. TAP was given the responsibility
to select the concessionaires, after all the facilities had been
advertised publicly. All plans were to be approved by the relevant
agencies. Two beaches have been divested to date.
As far as fishing beaches are concerned, the policy was to ensure
that when land including a beach was acquired for this purpose,
it should be handed over to the Fisheries Division of the Ministry
of Agriculture for management.
This Division has the ultimate responsibility for fishing beaches
including the facilitation of beach development and the monitoring
of activities on fishing beaches (including the offshore cays).
The Division has found it difficult, however to maintain all fishing
beaches and therefore, a policy has been adopted which encourages
fisheries organisations (e.g co-operatives) to take over direct
management of the beaches they use
Ministry Paper No. 10 dated April 16, 1985 from the
Ministry of Local Government
| c. Licensing
Under the Beach Control Act, two basic types of beach licences
may be granted (renewable on an annual basis) - an 'ordinary' licence
and an exclusive licence. From the legal perspective, "an ordinary
licence may be granted to many persons in respect of the same right.
Where an exclusive licence is concerned, the cases suggest that
it grants a right to one person against all other persons to do
that which the licence permits....Thus if a hotel owner has been
granted an exclusive licence for the use of the foreshore, it would
mean that the Beach Control Authority ought not to grant any one
else a licence to do what the particular hotel owner has been empowered
to do. In effect it means that no one else may exercise the right
granted to him by the exclusive licence."9
Prior to the mid-1970s, the Beach Control Authority issued licenses
that conferred exclusive rights to the use of the foreshore to the
property owner. Since 1976, the issuing of exclusive licenses has
been terminated and licences only give the property owner the right
to use the foreshore. However, previously issued exclusive licenses
were not rescinded, and the practice of renewing them has continued.
In order to ensure orderly development, site specific conditions
are usually attached to the licences. The conditions attached generally
include provisions such as those set out at Appendix I.
- Memorandum from the Attorney
General's Chambers dated 1st July, 1987
| d. Public
The Beach Control Authority's policy was that access to all public
bathing beaches should be free of charge and that the public should
be required to pay only for amenities provided (should they desire
to use them). Such fees should used to assist in the maintainenance
of the facilities.
To ensure that optimum use was made of foreshore lands, the Authority
arranged with Parish Councils for all applications for subdivision
lands to be submitted to it for comments and recommendations before
final approval. In this way the Authority succeeded in having several
portions of beach lands reserved for public use.
The Authority also aimed to preserve the scenic beauty of the coastal
drive by recommending that the height of fences between a road and
the sea should be restricted to 1.3 m (4' 6") from ground level.
The Beach and Coastline Preservation Policies in the present Development
Manual include the following statement:
Development and subdivisions along the coast and river banks
should be so designed as to allow the public to enjoy the seaside,
the river banks and the beaches. For that reason, special areas
should be left for fishing beaches and for good bathing beaches
with access provided from a public thoroughfare. In some areas,
adequate parking may be required.
An area of seaside park should also be provided in every housing
development or subdivision along the coast, between the high
water mark and the nearest row of lots. This will add value
to the lots within the subdivision and at the same time allow
unrestricted passage along the foreshore.
In Negril, in particular, the Development Order specifies that
"no development will be permitted on land adjacent to the line
of high water mark which would preclude public access to and from
the foreshore....To enable the fullest enjoyment of the natural
beauty of Negril, at no point will the erection of structures or
fences be allowed within 45m (150 feet) of the high water mark except
where, due to the presence of rocks, no beach exists or with the
permission of....the local planning authority..."