7.1.1. Jurisdictions with a Dry-Beach Public Domain

Several among the research countries with a dry beach public domain have elected to go beyond a general normative statement about access rights to provide geographically specific numeric standards (for better or for worse); in Italy, the law states that horizontal access should be provided within the 5 m closest to the shoreline (defined according to high tide; [33]). As Italy's public domain extends beyond the shoreline to the edge of the dry beach, this requirement both adds an additional "safeguard" for access along the beach and protects horizontal access in areas where there is no beach (e.g., cliffy shores) or where the beach is very narrow. France and Spain adopt a different approach—they provide additional public easements at the outer edge of their landward public domain. The French rule is 3 m and the Spanish 6 m. Because Spain's public domain is the most extensive, this means that, with this supplement, Spain grants the most generous horizontal access rights [29].

The public domain in Israel also extends landwards to the dry beach, but there are legal challenges in keeping commercial concessions away. The beaches in Israel are becoming very crowded due to the country's extremely high population growth rate and high population density. Over time, local governments granted various concession rights to commercial operators. Protection of the beaches from development, including access rights, has become a major rallying point for environmental NGOs. In 2004, the Coastal Protection Act was adopted as the result of concerted action by a coalition of NGOs. The new law, replacing prior reliance on national planning regulations, gave national and local government stronger implementation and enforcement instruments. They have been successful in pushing permitted commercial concessions to the back of the beach, allowing for continuous open horizontal access [38].

The story of Malta, as recounted by Xerri [34], is unique because the country only introduced a formal coastal public domain as recently as 2016. Prior claims of historic private ownership mean that much of the land within the public zone is privately owned—making Malta more comparable with jurisdictions without a dry beach public domain. The 1992 National Structure Plan had included a requirement that, in approving new development, the planning bodies would assure beach access "around the shoreline immediately adjacent to the sea or at the top of cliffs". However, this plan was later repealed by a government decision due to criticism by landowners and developers. The strip of land that should have been dedicated to the public for horizontal access has apparently been largely overtaken by private development, often illegally [34]. Malta's legislators and government bodies have tried to find alternative modes, primarily through planning and building controls. However, this has turned out to be especially difficult in Malta due to its highly conservative conception of property rights as expressed in court rulings.

#### 7.1.2. Jurisdictions without a Dry-Beach Public Domain

There are several jurisdictions without a public domain along the dry beach. We focus here on Australia and the UK and address the special case of the USA under a separate subheading.

In Australia and the UK, horizontal access rights are not explicitly anchored in any national (or state) legislation or regulation. Nevertheless, the importance of horizonal access rights is recognised and each country has instituted some policies to overcome the absence of a historic public domain.

Although, in Australia, accessibility of any type is left to the will of the subnational levels, in practice, horizontal access is broadly (but inconsistently) enabled by the states and local governments [27]. In the UK, a 2009 law adopted in England (but not Northern Ireland) has the highly ambitious objective of creating the English Coastal Route by incentivising (and helping to finance) co-operation with leading NGOs and local governments. In the meantime, the situation on the ground still varies greatly across local jurisdictions [24,41].

#### 7.1.3. The "Regulatory Takings" Doctrine and Its Impacts in the USA

The USA provides an especially legally "unfriendly" context for the provision of both horizontal and vertical access. Recall from Figure 2 that, in the USA, the public domain often does not extend over parts of the beach that are dry for much of the year. Public access rights are usually provided only along the submerged coastal strip (see Figure 4 and [25]). Thus, if members of the public can access the beach from some public venue, then they may be allowed to boat or swim in the water, including over privately owned land, but they will not be permitted to walk even within the water-covered part of the land. This is the situation also in the UK and Australia. However, as we have seen, these jurisdictions are incrementally providing what may be a more extensive proportion of coastal coverage of horizontal access rights than in the USA.

Where there is no general dry-beach public domain, governments may still be able to harness alternative legal or financial instruments to create a partial substitute for the public domain. Government authorities could purchase private land or undertake land expropriation (called eminent domain in the USA). Both would involve public expenditures and might instigate socio-political conflicts. Less drastic instruments could include voluntary donation of land by private or quasi-public owners; a precondition placed by planning authorities on development permission that the owner grant permission for public access of some form; a "deal" with the owner to provide public access in exchange for development rights elsewhere ("transfer of development rights"); or similar tools. However, the differences across countries in the capacity to apply such instruments depends, to some extent, on underlying legal differences in the conceptions of property rights. Here, the USA differs from most of the countries surveyed in this work.

In the USA, there is a persisting constitutional doctrine called "regulatory takings" [42]. Based on this doctrine, a landowner could, in principle, argue before the courts that a regulatory interference in property rights (in fact meaning a property's economic value) should be ruled as unconstitutional. Comparative research on regulatory takings [43] has shown that, in this respect, the US is an "outlier" among the 13 countries studied. In the present discussion, the direct comparison regarding coastal access is the UK, Germany, and Australia. There, the regulatory takings concept is either non-existent or applies under limited conditions outlined in statutory law. Furthermore, in the USA, regulatory takings law is almost entirely the product of jurisprudence, with an unprecedently large and growing body of decisions [44]. Thus, at any given point in time, government bodies often face legal uncertainty when they attempt to apply regulatory tools, such as zoning or development conditions to gain coastal access for the public—whether horizontal or vertical; see, for example, [16,45,46]. It is, thus, not surprising that, in the present comparative study, the US

falls in a category of its own, with little legal room for manoeuvre to achieve major legal transformations, even in the most basic category of beach access rights—horizontal access.

Despite these legal constraints, the establishment and operation of the California Coastal Commission shows that a concerted initiative supported by civil society can incrementally enhance beach access rights [47]. The California Coastal Act states that "development shall not interfere with the public's right of access to the sea". Even though the Act does grant property owners the right to apply for a special permit to terminate a previously existing public access right, the California Coastal Commission does not grant such permits easily [25]. The provisions of the Act cannot insulate it from challenges under the regulatory takings doctrine. A famous example is the 1987 US Supreme Court decision, *Nollan v. California Coastal Commission*, 483 U.S. 825 (1987). It demonstrates the complexity of the legal challenges concerning all of our accessibility categories. The Court ruled that a condition imposed by the California Coastal Commission on owners who requested to replace an existing house with a larger one to require dedication of a horizontal strip. To just justify using a regulatory tool rather than expropriating the strip of land along the shoreline (and paying compensation), the Commission argued that the proposed structure would "wall off the view" of the coast from the road above, and the compulsory dedication of the strip of land would mitigate that. The Court rejected this rationale and ruled an "illegal taking" of private property. This decision has generated extensive academic discussion about the relationship between land use regulation and property rights in general [48]. Nevertheless, several decades of legal experimentation and case-by-case achievements have placed California as a leader among US states in its quest to enhance public access rights along its coasts.

## *7.2. Summarizing Horizontal Accessibility*

To sum up the horizontal access category: The countries in our set, among them many EU members, still differ greatly in the horizontal access rights they provide to the public. We did point out some instances of a positive momentum to enhance these rights in contexts where they are very limited, but such efforts do not alter the general picture. There are still major disparities in the interpretation and protection of horizontal access rights—the most basic type of coastal access rights. Citizens or visitors in our set of 15 countries will have very different experiences when they wish to access the beach, even for the purpose of simply taking a walk along the seashore.

**Figure 4.** Public domain and coastal access among US states. (Prepared by Cygal Pellach, based on image by Rick Wilson/Surfrider Foundation, 2014.) For further details, see Tarlock 2021 [25].
