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January 21, 2019

Is There Such A Thing As A Private Beach In Queensland?

Queensland is home to some of the world's best beaches, but are some sections of our coastline closed to the public?
A Brisbane family feuding with Moreton Island's Tangalooma Resort has told ABC Radio Brisbane they were shocked and outraged when a security guard tried to force them off a public beach.
Lisa Wilkins, who was swimming with her partner and daughter near the resort on Good Friday, said they were told it had exclusive rights to the area.
Tangalooma Resort said it was seeking clarification from the State Government about what rights it had over the beach fronting the private resort.
So can someone own a beach in Queensland?
And what rights do you have if someone tries to shut down your day at the surf?

If it's under water at high tide, it's public

Queensland University of Technology law professor Bill Duncan said the Survey and Mapping Infrastructure Act (2003) was clear about who owned the state's beaches.
"All land that is subject to tidal influence is owned by the Crown, the Government, up to the boundary of the high-water mark at spring tide," he said.
Professor Duncan said spring tide was the highest tide recorded at a beach each year.
Because tides change and weather events can affect how much land area is considered part of a beach, the law relies on something called ambulatory boundary principles to determine where Crown land ends and privately owned or leased land begins.
"If the boundary changes through erosion or accretion, then the title to the land adjoining the boundary can also be changed and people will get a new title," Professor Duncan said.
This essentially means if someone owned a beachfront property or resort and a cyclone washed away a section of the private land, the boundary could change and the owner would not be compensated for it.

Professor Duncan said he was not aware of any exclusively privately owned beaches in the state.
However, he said the Government could make special arrangements with land owners and leaseholders, like Tangalooma Resort on Moreton Island, around access and use of public beaches.
"They have their dolphin feeding going on and it'd be part of their conditions," he said.
"Whether those negotiated rights give them exclusive access, I wouldn't have thought so."
University of Queensland senior law lecturer Dr Justine Bell-James said the law was updated four years ago to protect public access to beaches.
"The Queensland Government passed amendments to clarify their rights and give them the ability to put in place agreements and instruments to ensure there's still public access to the beach, even if boundaries shift due to erosion," she said.
"We have this strong commitment to maintaining public access to beaches in Queensland and that was certainly the point behind those reforms."


Can you be kicked off a beach near private property?

No, not if you're on Crown land.
Professor Duncan said the Government was the only entity able to restrict access to a public beach.
"If someone tried to kick me off a beach that looked like a public beach, I'd say show me the authority in writing because I've never heard of it," he said.
"There might be some specific purposes people could use the beach for but I'd be very surprised if they could throw the public off."
Professor Duncan said the only situation he could think of when exclusive access could be granted was if the beach was part of a mining lease.
"I suppose years ago we had mining on beaches for silicon and some might be subject to a mining lease, which would mean the mining people could have exclusive possession," he said.
"But that would be for a specific industrial mining purpose so there could be exception."

How can you tell what's private and public?

Professor Duncan said it was safe to assume anything beyond a fence line of a beachfront property was Crown land and free for the public to access.
He said it was likely there would be signage to mark areas the public did not have access to, but different rules applied to infrastructure on the beach and in the water.
"You might have additional rights if you have a jetty or a pontoon with your title," he said.

Source: ABCNews
https://www.abc.net.au/news/2018-05-01/can-you-own-a-private-beach-in-queensland/9714874