THE INTEGRATED COASTAL MANAGEMENT ACT NO 24 OF 2008 (ICMA) – AND THE

AMENDMENT BILL

Jennifer WHITTAL, South Africa

Introduction

PROBLEM: differently interpreted, and possibly contested, by

the various professions who will need to operate within the framework it creates

some aspects have complex implications

AIM: to understand the ICMA from a professional land

surveyor’s perspective to propose some solutions

This presentation addresses the following:

The definition and nature of HWM in SA legislation

Datums, water marks, legislation in the coastal zone

The HWM as a cadastral boundary Coastal Zone boundaries derived from the

HWM

THE INTEGRATED COASTAL MANAGEMENT ACT

Coastal waters

Coastal Waters‘coastal waters’ means—(a) the internal waters, territorial waters, exclusive economic zone and continental shelf of the Republic referred to in sections 3, 4, 7 and 8 of the Maritime Zones Act, 1994 (Act No.15 of 1994), respectively; and(b) an estuary;

The HWM definitions HWM (old)

“means the highest line reached by the water of the sea during ordinary storms occurring during the most stormy period of the year, excluding exceptional or abnormal floods” (SSA, section 1)

HWM (ICMA) “means the highest line reached by coastal

waters, but excluding any line reached as a result of exceptional or abnormal floods or storms that

occur no more than once in ten years, or an estuary being closed to the sea”

(ICMA, Section 1(1)).

The HWM definitionsHWM (ICMA Amendment Act) ‘high-water mark’ means the highest line

reached by coastal waters, but excluding any line reached as a result of—(a) exceptional or abnormal [floods or storms that occur no more than once in ten years] weather or sea conditions; or(b) an estuary being closed to the sea;

(ICMA Amendment Bill, Section 1(q)).

HWM (b) definition swash line or a hard line

(harbours) influenced by weather

(winds, storms, air pressure, temperature and humidity etc.) or sea conditions (wave action, the tides, sea level changes, water composition etc.)

a line of variable height - not a contour; not a tidal datum

no time limit/period

Estuary‘estuary’ means a body of surface water—

(a) [that is part of a water course] that is permanently or periodically open to the sea;(b) in which a rise and fall of the water level as a result of the tides ismeasurable at spring tides when the [water course] body of surfacewater is open to the sea; or(c) in respect of which the salinity is [measurably] higher than freshwater as a result of the influence of the sea, and where there is asalinity gradient between the tidal reach and the mouth of the bodyof surface water;

What events are included in defining the HWM?

Ordinary storm events Over any time period incl annual Weather and sea conditions flooding estuaries?

Estuaries can be flooded by weather conditions and still remain an estuary in terms of the definition

All spring tides included Open estuaries

Temporarily closed to the sea? If closed for 1 year vs 20 years…

when can it be considered a closed estuary?

EROSION AND ACCRETION

Section 14 ICMA AAPosition of high-water mark14. (1) No person may replace the high-water mark curvilinear boundary witha straight line boundary in terms of section 34 of the Land Survey Act.(2) If the high-water mark is landward of a straight line boundary of acoastal land unit when this Act took effect, or the high-water mark moveslandward of a straight line boundary of a coastal land unit due to the erosion of the coast, sea-level rise or other causes, the owner of that coastal land unit—(a) loses ownership of any portion of that coastal land unit that is situated below the high-water mark to the extent that such land unit becomes coastal public property; and (b) is not entitled to compensation from the State for that loss of ownership, unless the movement of the high-water mark was caused by an intentional or negligent act or omission by an organ of state and was a reasonably foreseeable consequence of that act or omission.

Erosion and accretion – str line Str line seaward boundary – Erosion:

Erosion leads to portion below the HWM transferring ownership of the “land unit” to CPP

Looking at definition of “land unit” this implies registrability under the Deeds Registries Act which implies formal subdivision at least if not formal transfer.

Confusion as to whether the whole land unit becomes CPP Str line seaward boundary – Accretion:

Accretion prior to subdivision will not result in the former land unit regaining land if CPP extent inland can be proven

Accretion prior to subdivision will result in the land unit regaining land if the CPP extent inland cannot be shown

Accretion after subdivision and transfer will have no effect as the subdivided land unit will be declared CPP in its entirety and be owned by the State. No portion will revert to ownership of the former parent land parcel.

Erosion and accretion - ambulatory Note – a HWM boundary can no longer be substituted by a

straight line boundary The ICMA AA is silent on erosion and accretion of ambulatory

HWM boundary and so the principles of the SSA are the same here

HWM seaward boundary – Erosion: The boundary is ambulatory and if there is erosion, the land unit

loses land to the CPP. There is not requirement to survey or transfer land

HWM seaward boundary – Accretion: The boundary is ambulatory and if there is accretion, the land unit

gains land from the CPP. There is not requirement to survey or transfer land Reclamation ≠ accretion

LOCATING THE HWM

Locating the position of the HWM

Note that there is a HWM irrespective of whether this is a cadastral boundary or not at the location in question. Case law - physical inspection by PLS

and SGO: debris and waste, vegetation types, drift sands, discolouration on coastal rocks, evidence of local residents

Beaconing does not alter ambulatory position

Drift sand developed into a dune field adjoining a stabilised dune covered with hardwood coastal forest northeast of the Mcantsi estuary.

Picture of a storm-damaged beach at Salt Rock. A sand berm indicates a natural re-establishment of the high water mark after a storm

removed all evidence of its lawful position

EC SG information

The Halophyte Sarcocornia perennis growing in the intertidal zone between the Mlele estuary and the sea – they are found below the

HWM

A sandy seashore at the mouth of the Cefane River, indicating several types of vegetation that can be considered to define the

position of high water mark. Xerophytes are found above the HWM.

Summary from EC SG Tidal ebb and flow, wave action and wind are the key

features of the littoral (intertidal) zone. The high water mark being the inland border thereof is

seldom visibly defined by the very distinct line of the edge of the hardwood coastal forests visible on aerial photographs.

Instead, it is an ambulatory line – a continually moving line needing close inspection for the presence of: Halophytes, salt water washed landscape and rock

discolouration below the high water mark, and Xerophytes, Mesophytes, debris, drift sand and wind-

dominated landscape above the high water mark.

DATUMS, WATER MARKS, AND LEGISLATION IN THE COASTAL ZONE

LAND BOUNDARIES AND THE MOVING HWM:ACCRETION, EROSION AND THE ICMA

Proposals which have now been incorporated:

Leave the HWM cadastral boundaries as they were under the Sea Shore Act HWM boundary remains curvilinear and ambulatory

over time – simple to understand and implement Is not legally affected by survey or beaconing –

surveyed position does not become the legal HWM legal HWM coincides with physical HWM ……

Proposals which have now been incorporated:

The principle of submerged boundaries falls away – a partially submerged land unit then has a HWM curvilinear and ambulatory boundary Becomes an investment/insurance/market issue for

property owner – no state liability Rights to the sea shore override land owners rights

when HWM over the land Accretion and erosion principles of 150 years

of case law retained

EXTENT OF COASTAL PROTECTED ZONE

Coastal Management Line‘coastal management line’ means a line determined by an MEC in accordance with section 25 in order to demarcate an area within which development will be prohibited or controlled in order to achieve the objects of this Act or coastal management objectives…..Section 25 the MEC must consider the location of

immovable property and the ownership and zonation of vacant land.

Coastal Protected Zone All land within 1000 m (1km) of HWM

Zoned agricultural Zoning undetermined or Not zoned Excluding lawful township, urban area or human

settlement All other land within 100m of HWM If part of water body is in these areas then include it All private land below HWM Sea shore (LWM-HWM) and littoral active zones Admiralty reserves, sensitive areas, CPAs 1:50 year flood/storm plains

DETERMINING THE EXTENT OF COASTAL PROTECTED ZONE

Incorrect method 1:

Incorrect method 2:

Correct construction of derived lines from the surveyed HWM

Survey procedures

PLS surveys the physical HWM – evidence should be used to ascertain its position as per definition in AA

E-Record submitted to SGO as in HWM survey – position noted on Noting Sheets, accuracy given to nearest 2 metres (?)

HWM position conveyed to local authority for planning and property development control purposes

Local authority should need help with calculating the position of CPZ inland boundary in relation to the cadastre

If tasked to do this, force the CPZ boundary to coincide with inland cadastral boundaries of all parcels in accordance with ICMA AA

WHO SHOULD CONDUCT A SURVEY OF HWM?

Theoretical/methodological framework

Land Management Paradigm: Rights Restrictions and Responsibilities (RRRs)

Usual real rights associated with ownership Development rights and restrictions Use rights and restrictions Responsibilities (e.g. maintenance)

All are real since relate to land not owner Determination of boundaries of these RRRs is a cadastral

function

Who should conduct HWM surveys? Land rights at sea shore are limited by the HWM

HWM is cadastral HWM and coastal zone determination are not as

simple as they seem – measurement and modelling needs to stand up in the courts

The extent of coastal zones can be determined without a Land Surveyor, but their position relative to cadastral boundaries is to be indicated on zoning maps for owners

Registrar notes in register that the HWM has been surveyed

PROFESSIONAL LAND SURVEYOR

contact: jennifer.whittal@uct.ac.za