a. Common 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)). 

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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 or fishery. 

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 Foreshore"] 

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. 

b. The 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 by law. 

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."

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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 public.

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 29, 1955

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 adjoining land. 

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 consider appropriate. 

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. 

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 areas. 

d. Other related Legislation 

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

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

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Ministry Paper No. 10 dated April 16, 1985 from the Ministry of Local Government

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. 

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9. Memorandum from the Attorney General's Chambers dated 1st July, 1987

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.