What is the effect of the Integrated Coastal Management Act proposed Amendments - land surveyor's perspective

1. THE INTEGRATED COASTAL MANAGEMENT
ACT NO 24 OF 2008 (ICMA) – AND THE
AMENDMENT BILL
Jennifer WHITTAL, South Africa

2. 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

3. 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

4. THE INTEGRATED
COASTAL MANAGEMENT
ACT

5. Coastal waters

6. 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;

7. 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)).

8. The HWM definitions
HWM (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)).

9. 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

10. 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 is
measurable at spring tides when the [water course] body of surface
water is open to the sea; or
(c) in respect of which the salinity is [measurably] higher than fresh
water as a result of the influence of the sea, and where there is a
salinity gradient between the tidal reach and the mouth of the body
of surface water;

11. 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?

12. EROSION AND
ACCRETION

13. Section 14 ICMA AA
Position of high-water mark
14. (1) No person may replace the high-water mark curvilinear boundary with
a 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 a
coastal land unit when this Act took effect, or the high-water mark moves
landward 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.

14. 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.

15. 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

16. LOCATING THE HWM

17. 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

24. 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

25. 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.

26. 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.

27. DATUMS, WATER MARKS,
AND LEGISLATION IN
THE COASTAL ZONE

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

30. 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
 ……

31. 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

32. EXTENT OF COASTAL
PROTECTED ZONE

33. 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.

34. 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

35. DETERMINING THE
EXTENT OF COASTAL
PROTECTED ZONE

36. Incorrect method 1:

37. Incorrect method 2:

38. Correct construction of derived
lines from the surveyed HWM

39. 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

40. WHO SHOULD CONDUCT
A SURVEY OF HWM?

41. 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

42. 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

43. contact: jennifer.whittal@uct.ac.za