Rising sea levels: An evaluation of the projected impact on real property rights

The predicted rise in sea level and associated increasing storm action over the next half century is colliding with settled property law for tidal properties much of which is held on the Australian coast in private ownership. Faster change to the climate is reported with more serious risk than anticipated, with implications for sea level rise now expected at the upper end of projections by the Intergovernmental Panel on Climate Change (IPCC) of around 0.8m by 2100 along the Australian coastline.

In response to the threat of sea level rise, the six Australian States have attempted to provide information to local government and development aspirants regarding adaptation to rising sea levels however unsurprisingly there are cross-jurisdictional differences in sea level bench marks which is of concern given that much existing development along the Australian coast is of very high value.

In evaluating this phenomena, it will be suggested that long settled property law particularly the common law doctrine of erosion and accretion will need to be revised to accommodate the impending collision between climate change and tidal private property. Further, the Australian Constitution at s.51(xxxi) sets out guarantees of compensation when private property rights are commuted, but the colonial drafters of the 1890s would similarly never have envisaged climate effects. The tantalising prospect will be raised of whether increasing inundation of tidal private property could be construed as invoking the payment of compensation.