The Caswell Franklyn Column – That Beach is NOT Mine
From the time I was a boy, I have been hearing that there are no private beaches in Barbados. It never really mattered to me since I was never attracted to the beach. My mother had declared the sea off limits and the fear of her hand outweighed any desire to accompany my friends to the beach. Even now as a grandfather, I can’t swim and don’t go to the sea.
However, the incident, at Crane beach when vendors’ chairs were seized, piqued my interest. I sympathised with them and felt compelled to be part of the protest that was staged to support them. But ever cautions, I wanted to make sure that I was on good ground. So while Gabby and others protested, I opted to research the matter of beach access instead.
This is merely the outcome of my research and is not intended to be a definitive statement of the law; I am not so qualified and I would be happy for any clarification in this respect.
As I understand it, the Right Excellent Errol Barrow, when he led the Government, decreed that beaches in Barbados were public property. We must assume that he knew that private property extended to the high water mark. Nonetheless, he did not define what he meant by the term “beach” and therein lies the source of the confusion.
At section 2, the National Conservation Commission Act states:
For the purposes of this Act
“beach” includes the land adjoining the foreshore of Barbados and extending not more than 33 metres beyond the landward limit of the foreshore.
If beaches are indeed public property, this definition would therefore mean that Government acquired private property that extended roughly 33 metres landward from the high water mark, without paying compensation to the land owners involved.
To further complicate matters, Parliament again defined “beach” this time at section 2 of the 1998 Coastal Zone Management Act. It states:
“beach” means the entire area associated with the shoreline, composed of unconsolidated materials, typically sand and beachrock, that extends landward from the high water mark to the area where there is a marked change in material or natural physiographic form to a distance of 500 metres landward from the mean high water mark, whichever is the lesser distance.
A cursory reading of this definition would suggest that the beach ends where the sand or beachrock end, and that is the end of the matter. However, I have come to realise that nothing is ever this simple. Further reading led me to section 65A (2) of the Property Act which points out that the definition of “beach” in the Coastal Zone Management Act only applies to property that was conveyed after 1st May 2000. It states:
In all deeds, contracts, wills, orders, and instruments executed, made or coming into operation after 1st May, 2000, unless the context otherwise requires, any reference to the beach shall be construed as a reference to the beach as defined in the Coastal Zone Management Act, 1998 (Act 1998-39).
This suggests to me that a person, who acquires land on the coast after May 1, 2000, is not entitled to own the beach. And it begs the question, what about persons who owns property prior to that date? I found the answer at section 35 of the Limitation and Prescription Act.
If my interpretation of subsection 35. (1) is correct, there is a presumption that the public would have acquired the right to use the beach having done so for a period of 20 years without interruption. Mind you, that presumption can be defeated in court. Even so, that right becomes absolute if it had been enjoyed for 40 years, in accordance with subsection 35. (2) which states:
Where such a way or other matter has been so enjoyed for the full period of 40 years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
Since Bajans have been enjoying the beach for more than 40 years, it would appear that the beach might not be mine but I have the right to continue to enjoy it.