“Can we go to the Beach?”
So you’re walking the coast path with the family and the kids see something interesting and want to know if they can go and see it. The good news is that if they’ve asked if they can go down to the beach, you’re probably fine but if they’ve spotted an interesting looking tower on the landward side of the path, the answer is more likely to be no.
Why is that?
Access to coastal land is governed by the Marine and Coastal Access Act 2009 (“MACAA”), the Countryside & Rights of Way Act 2000 (“CROWA”)and, just in England, by no fewer than 49 Access to the Countryside (Coastal Margin) Orders (the “Coastal Margin Orders”), the principal one of which is the Access to the Countryside(Coastal Margin) Order 2010 (the “2010 Order”), the other 48 are alllocation specific), so what follows is a general summary of the law in England.
Wherever the Coast Path is routed, the principles applicable to public rights of access are effectively the same: the starting point is that there is a public right of access to “coastal margin” (“Coastal Margin”)to the seaward side of the Coast Path and no public right of access to the landward side of the Coast Path but from the starting point there is power to make adjustments, hence the 48 Coastal Margin Orders.
The meaning of Coastal Margin is defined in the Access to the Countryside (Coastal Margin) (England) Order 2010, art. 3, the material part of which provides:
“(1) Land in England is coastal margin for the purposes of Part 1 of the CROW Act (access to the countryside) if it falls within one or more of the following descriptions.
(2) The first description of land is—
(a) land over which the line of an approved section of the English coastal route passes,
(b) land which is adjacent to and within 2 metres either side of that line, and
(c) land which is seaward of the line of an approved section of the English coastal route and lies between land within sub-paragraph (b) in relation to that approved section and the seaward extremity of the foreshore,
if the land within sub-paragraphs (a) to (c), taken as a whole, is coastal land.””
It follows that for the right of access to apply to land tothe seaward side of the Coast Path, it must be land which “taken as a whole, is coastal land.” (“Coastal Land”), that will exclude most man-made structures and some recovered land.
The meaning of Coastal Land is given by the CROWA, s.3(3),a provision, which, ostensibly, applies only to Wales:
“ "(a) the foreshore, and (b)land adjacent to the foreshore (including in particular any cliff, bank, barrier, dune, beach or flat which is adjacent to the foreshore)”
The equivalent English provision, s.3A of CROWA provides, however, within subs. (10):
“ ‘coastal land’ has the same meaning as in section 3”.
The term “foreshore” is generally defined as that land which lies between high and low water mark at ordinary tides - Attorney General v Chambers (1854) 43 E.R. 486
If land is Coastal Land, there will not be a right of access if the land in question is “Excepted Land”. Excepted Land is defined Sch I Part I of CROWA and includes:
(1) para 2. “Land covered by buildings or the curtilage of such land.”
(2) para 4. “Land used as a park or garden.”
(3) para 3 “Land (other than coastal margin) within 20 metres of a dwelling”
(4) para 9. “Land as respects which development which will result in the land becoming land falling within any of paragraphs 2 to 8 is in the course of being carried out.”
“Can we buy a chalet by the beach?”
Obviously the answer is yes (if you can afford it) but if the chalet is on a holiday park it may well either be subject to a lease or else be a mobile home. People often “see the beach and not the lease” and, in the case of mobile homes, will frequently be told by sellers “these things get bought and sold without using lawyers”. The law relating both to leaseholds and mobile homes can be notoriously complicated. Leasehold holiday homes at least have the protection of the Landlord and Tenant Act 1985(“the 1985 Act”)in relation to variable service charges but fixed service charges are not within the terms of the 1985 Act, so a problem like that which happened in Arnold v Britton [2015] UKSC 36 could still happen. In that case a modest fixed service of £90 per annum service charge at the start of the lease terms in 1974 increased by “by ten pounds per hundred for every subsequent year or part thereof”– a service charge is not “variable” for the purposes of the 1985 Act if it increases by a fixed formula, only if it varies according to the actual cost ofthe services provided – so that by 2012, the annual charge had reached £3,366and, by the final year of 98-year lease term, it would have increased to£1,025,004. Mobile Homes that are holiday homes still have relatively little in the way of statutory protection. Things were much improved for residential mobile homes by the Mobile Homes Act 2013 but they needed to be, because, while it would wrong to suggest all operators of mobile home parks are bad, the 2013 legislation was introduced following the House of Commons, Communities and Local Government Committee Report 'Park Homes' (HC 177-I), which observed "the evidence we received suggested that malpractice was widespread across the sector". So take care.
Rawdon Crozier. Rawdon was Counsel in Arnold v Britton and in Phillips v Francis [2010] L. & T.R. 28, which established that leasehold holiday homes had the benefit of the 1985 Act. Rawdon is regularly instructed on Park Home matters and has advised on the application of the Marine and Coastal Access Act 2009.
Rawdon Crozier's practice has a strong emphasis on property, professional negligence and contract law. Rawdon appears for and advises both landlords and tenants in cases involving residential, business and agricultural/farm business tenancies and has been involved in some of the leading cases on leasehold holiday homes and service charges. For more information about our Property Law Team please follow this link www.kbgchambers.co.uk or contact our Civil Clerks Jamie & Grace on civilclerks@kbgchambers.co.uk
