THERE is a growing interest in the rights of the members of the public to use beaches occupied by hotels, particularly in light of the number of hotels along Jamaica’s coastline. On the other hand, hotels are often particularly curious regarding the level of control which they can exercise over the beachfront. The Beach Control Act is the principal legislation governing the use of our beaches. Under this Act, the Natural Environmental Planning Agency (NEPA) is given the power to regulate the general use of our beaches by, among other things, granting licences and supervising licensees.

Generally, the Act mandates that “…all rights in and over the foreshore of this Island and the floor of the sea are hereby declared to be vested in the Crown”. The “foreshore” is defined as “…that portion of land adjacent to the sea, that lies between the ordinary high and low water marks, being alternatively covered and uncovered as the tide ebbs and flows”. The Crown (the Government of Jamaica) therefore may be said to have a right to all beaches unless there are existing rights.

These existing rights refer to the specific rights given to the following classes of individuals:

1. Individuals who have rights over the foreshore by virtue of the Registration of Titles Act or via any licences or express grants from the Crown before the institution of the Act;

2. Fishermen who had rights over the foreshore or any adjoining lands before the 1st of June 1956. These rights can include a right of access to a beach; and

3. The rights of a fee simple owner or the occupier (along with their guests and family) of land adjoining the foreshore. These persons are also entitled to use the foreshore and adjoining lands for private domestic purposes such as “…bathing, fishing and other like forms of recreation and as a means of access to the sea for such purposes”.

The categories above exclude usage of the beaches for commercial purposes as well as for public recreational purposes and as a result, such usage would require the permission of NEPA. Indeed, the Act prohibits the encroachment on or use of the foreshore or the floor of the sea for or in connection with any trade or business, or commercial enterprise (except as otherwise recognised under the Act) without a licence. These encroachments include wharfs, jetties, docks, piers, or other structure or apparatus on the foreshore or on the seafloor. However, the Government may withhold its permission if the issuing of the licence is likely to conflict with the public interest in regard to fishing, bathing, recreation or the protection of the environment.

It must also be noted that under section 3A of the Prescription Act, the public (and any specific class of the public such as fishermen) may have a right to use a beach and the means of access to this beach, if there was uninterrupted usage for 20 years. This uninterrupted usage must not be by way of consent given by the owner of the property.

Outside of the classes listed above, members of the public have no right to use the foreshore but NEPA retains a duty to reserve portions of the foreshore and adjoining lands, if it is of the opinion that there is a need for beaches for bathing, fishing, recreation, or forms of economic development.

Curiously, the Act is silent on the use of the waterfront (ie the water in front of the foreshore) by the public. While a licence may give permission to use the foreshore, the Act makes no provision for the demarcation of areas in the water. It would therefore appear that the public is free to use the water at the beach although their access via a licensee’s property may be restricted.

Grace A Lindo is an associate in the Commercial and Intellectual Property Departments at Myers, Fletcher & Gordon. She may be contacted at grace.lindo@mfg.com.jm or via www.myersfletcher.com.