“Clock ticking” for States to make Foreshore property owners pay up

Monday 16 April 2018

The “clock is ticking” for States officials hoping to rake in ‘compensation’ worth thousands from islanders with properties encroaching on the island’s shoreline due to an ancient rule that could see the land pass back to owners in 37 years’ time – one of the reasons some were made to pay up before an official policy was put in place.

In a packed hearing with the States Complaints Board (SCB) last week attended by concerned estate agents and members of the public, Jersey Property Holdings (JPH) officials admitted that they were working to a five-year deadline due to the law of ‘possession quadragénaire’, which affords title to the land after undisturbed residence of 40 years.

With the States having been gifted the ‘Foreshore’ – a vague coastal strip of land defined as being between high and low tide – by the Queen in 2015, they said they were working to address “the majority” of encroachment disputes within the half-decade bracket because “the clock which wasn’t previously ticking is ticking now.”

The revelation was offered as a partial explanation as to why former coastal property owners Alan Luce and Julian Mallinson, whose plights were first revealed by Express last year, were two of a handful of islanders to be pursued for ‘compensation’ totalling more than £50,000 between them – despite no policy being published until more than a year after they had paid up.

The pair took their experience to the SCB over concerns about the allegedly “aggressive” nature of the States’ pursuit, which saw them both targeted when they tried to sell – a point at which they described themselves as being “vulnerable” and likely to have thousands swiped off their properties’ value. They added that the sums they were ordered to pay were disproportionate, and also based on vague calculations of the foreshore’s boundary rather than clear maps.

Pictured: Alan Luce, who was forced to pay around £30,000 when he tried to sell his coastal home, Roche de la Mer, despite not having created the encroachments himself.

Last week’s hearing was the final step in the complaints process, which will conclude with a report prepared by panellists Geoffrey Crill (Chair), John Moulin and Gavin Fraser containing recommendations to the States. 

During the hearing, it emerged that States officials had tried to charge chartered surveyor Mr Mallinson around £23,000 plus legal costs for encroachments by his Greve d’Azette-based apartment complex ‘Brise de Mer’, despite their own valuation expert suggesting a figure of over £4,000 less. He said that he had only become aware of this through the complaints process, as he had never previously been allowed to see the original valuation even though he was forced to pay for it. 

“That’s 22% more plus costs… Why? That’s not fair,” he asked. “We receive advice… and we also have to take a view on it,” Assistant Director Philip Ahier responded on behalf of JPH, following earlier comments that it was policy to “extract the optimum benefit from the Public’s property assets.”

Addressing concerns over the lack of ‘map’ defining where the Foreshore is, Estates Director Ray Foster said that the JPH was currently under-resourced to be able to accurately calculate the exact boundaries and was therefore “applying for funding to get that work done.”

Pictured: Julian Mallinson paid around £20,000 to the States for parts of his former property, the Brise de Mer apartment complex, that encroached on the sea wall and foreshore.

Under the policy, which was only published in December, JPH only pursue property owners for payment following a ‘trigger event’ such as development or a sale. Mr Foster added, however, that JPH intended to impose a “sliding scale” of compensation, meaning that those who ‘trigger’ pursuit after five years would end up paying less.

The admission raised eyebrows on the panel, with the Chairman questioning why those asked to pay in 15 years would have a “fundamentally different experience” compared to those “caught five minutes after you got ownership of the foreshore.” Mr Crill also observed that the ‘trigger’ policy might cause islanders to deliberately “keep their heads down.” Mr Luce suggested that a “moratorium” would have been a more appropriate option rather than placing sellers and developers “under duress.” 

The Chairman equally expressed his dismay over the length of the resolution process, which took over a year in both Mr Luce and Mr Mallinson’s cases.  “Resolving the definition of a boundary… would in my experience be resolved in a maximum of three weeks if it was going to be resolved at all,” he said. “There must be something wrong in the process.” 

Seemingly of most concern, however, was the “clawback clause” in the compensation contracts. It states that owners must remove the encroachments – whether a balcony, steps, garden area or door – at any moment if the Minister for Infrastructure demands it.

Pictured: JPH said that it had applied for funding to resource investigations into the exact boundaries of the foreshore, which old photos suggest could extend several metres inshore - and even over some roads.

The contracts also contained provisions for JPH officials to be able to access the area at any time – sardonically described by Mr Crill as “a bit of a bonus” when there was “no right previously” – and for property owners to take on the cost of any encroachment removal, which JPH said could be demanded as part of sea defence improvement or to restore the former south coast promenade.

The room was met with silence when Mr Crill questioned why JPH would not take on the cost of that work. Mr Foster later conceded: “I think we can take the clause back and review it.” 

The Panel are due to return their conclusions within the next few weeks, given the high level of public and political interest. The issue is one that has been closely followed by Grouville Deputy Carolyn Labey and St. Clement Deputy Simon Bree, whose parishes are affected. Deputy Bree previously said that the policy “smacks of a moneymaking exercise and government with a big G”, while Deputy Labey likened the process to highway robbery.

Even in the case of a favourable outcome for JPH in the report, Mr Luce reminded the Panel in his concluding comments: “Things are coming out now because people are talking. This will not end here.”

READ MORE:

Q&A: Everything you need to know about the Foreshore issue

In-depth: The man who paid £30k to the States just to sell his house

Sea wall row: Queen-approved wooden staircase formed part of £20k States bill