ESS 122: Environmental Law Lecture 7(1) LAND USE IN THE COASTAL ZONE BRAMLEY J LEMINE

Land use in the coastal zone There are huge development pressures on our coastal zone (hereafter CZ) ranging from residential-recreational to mining. The CZ is ecologically sensitive and therefore ought to be subject to special land-use controls. The legislation (Act of Parliament) regulating CZ management in South Africa is the National Environmental Management: Integrated Coastal Management Act 24 of 2008.

Land use in the coastal zone The objects of the Act (in terms of section 2) are: a) to determine the CZ of the Republic; b) to provide, within the framework of NEMA, for the co-ordinated and integrated management of the CZ by all spheres of government in accordance with the principles of co-operative governance; c) to preserve, protect, extend and enhance the status of coastal public property as being held in trust by the State on behalf of all South Africans, including future generations; d) to secure equitable access to the opportunities and benefits of coastal public property; and e) to give effect to the Republic’s obligations in terms of international law regarding coastal management and the marine environment.

Land use in the coastal zone The central concept in this Act is the coastal public property (hereafter CPP) which includes 1. coastal waters; 2. land submerged by coastal waters; 3. any island (whether natural or artificial); 4. the seashore (but excluding any portion of the seashore below the high water mark which was lawfully alienated by the Seashore Act); 5. the seashore of a privately owned island within coastal waters; 6. any admiralty reserve owned by the State; 7. any state-owned land declared under section 8 to be CPP; 8. any natural resources on or in any CPP, the exclusive economic zone, or in or on the continental shelf, or any harbour, work or other installation on or in any CPP that is owned by an organ of state.

Land use in the coastal zone The CPP may be extended by designating public land to be CPP or by purchasing private land. The ownership vests in the citizens of the Republic and CPP must be held in trust by the State on behalf of the citizens of the Republic, and everyone has a right to reasonable access. The CPP is inalienable and cannot be sold, attached or acquired by prescription and rights over it cannot be acquired by prescription. This position differs from the position under the Sea-Shore Act where the President was the owner of the seashore and could be alienated by law.

Land use in the coastal zone The Act introduces new concepts of the coastal protection zone (hereafter CPZ); coastal access land; coastal protected areas; special management areas and coastal set-back lines. The CPZ comprises: 1) land set aside as a sensitive coastal area; 2) any part of the littoral active zone that is not CPP; 3) any coastal protection area, or part of such area, which is not CPP 4) any land unit situated wholly or partially within 1km of the high-water mark; 5) any land not mentioned above that is situated wholly or partially within 100 metres of the high-water mark; 6) any coastal wetland, lake, lagoon or dam which is situated wholly or partially within a land unit referred to above; 7) any part of the seashore which is not CPP, including all privately owned land below the high-water mark; 8) any admiralty reserve which is not CPP; or 9) any land that would be inundated by a 1:50 year flood or storm event.

Land use in the coastal zone The CPZ is essentially established for enabling the use of land that is adjacent to CPP or that plays a significant role in a coastal ecosystem to be managed, regulated or restricted for purposes relating primarily to ecological protection. Each municipality whose area includes CPP must, within a specified time, make a by-law that designates strips of land as coastal access land in order to secure public access to CPP. The process of designating access land requires consideration of the environmental impact and consultation with affected parties. Section 20 sets out the municipality’s responsibilities in terms of coastal access land (e.g.. signposting of the land, providing appropriate facilities). The provision of coastal access land will undoubtedly affect private, however, section 29 regulates the factors the municipality must take into account in designating the access areas which includes not restricting the rights of landowners unreasonably.

Land use in the coastal zone Section 22 deals with coastal protected areas, whereby a protected area which is not CPP may be declared by the MEC not to be part of the coastal protection zone. Another type of area is a special management area, declared such by the Minister, only if environmental, cultural or socio-economic conditions in that area require the introduction of measures which are necessary in order to more effectively attain the objectives of any coastal management programme; facilitate the management of coastal resources by a local community; promote sustainable livelihoods for a local community; or conserve, protect or enhance coastal ecosystems and biodiversity in the area. The Minister may prescribe specified activities which are prohibited in special management areas taking into account the purpose for which the special management area was declared.

Land use in the coastal zone Coastal set-back lines must be established by an MEC in order to protect CPP, private property and public safety; protect the coastal protection zone; preserve the aesthetic values of the coastal zone; or for any other reason consistent with the objectives of the Act. The MEC must also prohibit or restrict the erection, building, alteration or extension of structures that are wholly or partially seaward of that coastal set-back line. Chapter 3 of the Act details the procedures and factors to be taken into account by the relevant authorities in determining and adjusting coastal boundaries of the land types mentioned above. Chapter 4 deals with estuaries and requires the establishment of national estuarine management protocol and estuarine management plans. The protocol must be prescribed within 4 years by the Minister, in conjunction with the Minister of Water Affairs

Land use in the coastal zone The content of the protocol is also provided for in the Act. Chapter 5 provides for various bodies: the National Coastal Committee; provincial lead agencies designated by the Premier in each coastal province; Provincial Coastal Committees; and municipal coastal committees. Chapter 5 also makes provision for voluntary coastal officers. Part of the functions of the bodies described above is to promote and implement coastal management programmes. Chapter 6 outlines the purpose and contents of these programmes and regulates its coordination and alignment with each other. Provision is also made for coastal planning schemes which defines areas within the coastal zone which may be used exclusively or mainly for specified purposes or activities. These schemes will prevail over any other municipal land use planning scheme in the event of conflict.

Land use in the coastal zone Chapter 7 provides for the protection of the coastal environment and further provides a suite of measures to be used for this purpose. The first measure is the duty to avoid causing adverse effects on the coastal environment, which adapts section 28 of NEMA for use in the coastal zone. Also the Minister may issue a written coastal access notice to a person, prohibiting an activity and instructing that person to take appropriate steps to allow natural persons access to the CPP. The next measure is the repair or removal notice: the Minister or MEC may issue this notice to any person responsible for a structure on or within the coastal zone if that structure is having or is likely to have an adverse effect on the coastal environment by virtue of its existence, because of its condition or because it has been abandoned; or has been erected, constructed or upgraded in contravention of this Act or any other law.

Land use in the coastal zone Failure to comply may result in the competent authority causing the required steps to be taken and recovering costs from the responsible person. An organ of state that is responsible for implementing national, provincial or municipal legislation that regulates the planning or development of land must, in a manner that conforms to the principle of co-operative governance. The application of the abovementioned legislation must be in accordance purpose for which the protection zone is established, and it may not authorise land within the coastal protection zone to be used for any activity that may have an adverse effect on the coastal environment without first considering an environmental impact assessment report.

Land use in the coastal zone Environmental authorisations for coastal activities are also prescribed, and the Act sets out various factors that must be taken into account in respect of these authorisations and prohibiting authorisations in certain circumstances, such as where the development or activity is inconsistent with the purpose for which the particular land is designated. The Act repeals the Dumping at the Sea Control Act. The remainder of the Act makes provision for procedural and technical issues such as appeals; the power to make regulations; offences and penalties; delegations and the like.

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