Foreshore: Coastal property owners urged to take legal action

Wednesday 08 August 2018

Legal action has been described as "inevitable" following a senior Minister's refusal to offer compensation to two Jersey home owners, despite being instructed to do so by an official States Complaints Board.

Infrastructure Minister, Deputy Kevin Lewis's comments on the issue were yesterday described as "complete nonsense" by the Board's Chairman, and today one of the two complainants argues the Minister is not holding civil servants accountable for their actions.

The bitter land dispute could have implications for the hundreds of local property owners with premises which border on the foreshore - an ill-defined area of land between high and low tides, which was gifted to the public of the island by the Queen in 2015. 

A States Complaints Board found that Jersey Property Holdings, which falls under the Infrastructure Minister, had failed to act "fairly, prompting and transparently" in the cases of two local men - Alan Luce and Julian Mallinson - who were forced to pay more than £50,000 in total to the States in order to be able to sell their coastal properties.

There was no States policy on the issue in place at the time, and the men say they were "bullied" by Jersey Property Holdings into paying compensation because parts of the properties encroached onto the publicly-owned foreshore.

Pictured: Julian Mallinson, and his former property, Brise de la Mer.

During the original hearing, the Board heard how the duo were provided with valuations of how much they owed for encroachments on the foreshore but were unable to negotiate this. In Mr Mallinson’s case, JPH chose to charge several thousand more than the official valuation.  

This “‘take it or leave it’ stance” was blasted by the Board, who later argued that it was “inappropriate…to seek to maximize profit” from the public.

There was also dispute over how long the encroachments had been in place. Jersey Property Holdings (JPH) officials have admitted that they are 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. 

The Board were equally critical of the time taken to resolve the issues – 16 months in Mr Luce’s case and 19 in Mr Mallinson’s. 

Yesterday, the Minister responded to the Board's findings, rejecting most of them, including a request to pay compensation to the two complainants. 

Julian Mallinson commented: "I’m disappointed but not surprised by the Minister’s response as it seems to have been written on his behalf by Jersey Property Holdings.

"The Board held that JPH acted 'unjustly and oppressively' and by refusing to acknowledge this the Minister has perpetuated 'The Jersey Way' by which civil servants are not held accountable for their actions.

"I note the Chairman of the Board has responded to the Minister’s comments stating that his department’s general policy on the treatment of Public property is 'clearly nonsense', the financial watchdog has recently released a damming report on JPH and the Law Society has written to the former Minister saying they believe these policies to be unfair. By ignoring these opinions the Department is leaving itself open to the legal action which will inevitably follow."

His words were echoed by Alan Luce:

"The civil service machinery of this department is not acting for the people it has pledged to represent fairly.  The key to our  issues is that we had settled financial claims in order to sell our respective properties, under pressure to do so. The onus is now on a department to treat all foreshore property owners in the same manner, or  act in a blatantly discriminatory manner pursuing, easy target sellers only.

"I would also expect our newly elected politicians to be equally concerned that a constructed Board, at no cost to the public, and at arms length from the establishment, being supported by law, established by the States assembly to recognise the need for scrutiny on department actions - has been disregarded."

In his comments, the Minister denied that Mr Luce and Mr Mallinson were "vulnerable," that transaction advice should have been shared with both parties, that the time taken to conclude the transactions was too long, and that any compensation should be paid. But he does say that the new foreshore policy will be "reviewed" in the light of some of the Panel's comments. 

States Complaints Board Chairman Geoffrey Crill hit back at the Minister, commenting: 

“In his reply to the Board’s findings, the Minister appears to consider that all property owned by the Public should be dealt with on the same basis. That is clearly nonsense. Some property may be held for entirely commercial purposes, some for the provision of public services and some for more esoteric public benefit, like monuments and sites of special interest. The Board does not consider it to have been appropriate that JPH approached negotiations on an exclusively commercial basis.”

"The Board is also very surprised that the Minister maintains that 16 months was an appropriate period within which to conclude negotiations with the Complainants. Whether it was due to workloads, or commercial transactions being given priority, we feel that the negotiations in these cases were unnecessarily protracted and resulted in a great deal of stress to the Complainants. We hope that once a clear policy regarding the fixing of the boundary of the foreshore and the payment of compensation in relation to any encroachments has been adopted, the Minister will review the terms concluded with Messrs. Luce and Mallinson and refund them any difference between the compensation each of them paid and the amount of compensation that would be payable had the new policy been in place at the time.”

READ MORE:

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