*8.3. Vertical Access Rights in National (or State) Legislation*

Apart from the jurisdictions where the law recognises the right to roam, the others might face many property rights challenges in achieving vertical accessibility. Provision of public access paths could entail issues of land expropriation ("eminent domain" in the USA). Imposition of an obligation on private property is even more challenging.

We were, thus, happily surprised that most of our set of countries do address this topic within their national-level coastal legislation or regulations (see Table 1). Denmark is notable in that its legislation goes beyond the general right to roam to embed vertical access rights in national legislation: vertical accessibility should be ensured and, if possible improved whenever new development is proposed within 3 km of the shoreline, as explained by Anker [31]. This is an exceptionally generous rule.

Here are some more examples of such wording: Portugal's Public Water Domain Definition Law says only that access to the shore would be granted to the public [28]. A somewhat more specific wording is found in Italy's Financial and Budget Law, which requires that access to the maritime public domain be guaranteed in statutory plans for that domain [33].

Although these examples of wording are rather general, embedding vertical accessibility rights in national-level legislation could, in principle, hold some legal weight when petitioners argue before the courts that vertical public access has not been adequately ensured.

Several countries have gone yet further and provide numeric standards. France's national planning law stipulates that, if there is no public path within 500 m to reach the public domain, the local government *may* create that path by imposing an easement over private property (with compensation). If needed, the local government has the powers to turn the path into a road [32]. Spain and Greece adopted numeric standards too [29,35]. Spain's legislation mandates that roads for vertical access be no more than 500 m apart and, unlike France, leaves little discretion to local government. In addition, in Spain, nonmotorised paths must be provided every 200 m.

In some jurisdictions, vertical access standards are to be implemented through demarcation of the access routes in local urban plans. An example is Greece, where, during a field research visit to the city of Kavala, we were shown the statutory plan. There, access roads or paths are delineated approximately 500 m apart [55]. However, the authors of both the Spanish and the Greek chapters report that implementation of these standards falls below expectations [29,35]. Possible reasons are lack of funds to purchase or expropriate land or insufficient political will.

One can debate how realistic numeric standards imposed by national government are, and how locally democratic they are. However, they do represent attempts to provide some concrete norms. They are also easier for public interest groups to monitor and for the courts to review. In theory, quantitative norms may help to create greater social-distributive justice because they are expected to be blind to land prices and to the economic political influence of various interest groups.

Our comparative findings about vertical access, like horizontal access, indicate a positive momentum in some countries. Notably, in recent decades, Portugal's 2005 legislation ambitiously requires that the areas where there are sandy beaches be made fully vertically accessible by 2016. We learn that some progress has indeed been made [28].

By contrast, Malta's jurisprudence is making it difficult for government authorities to progress towards vertical access rights. As noted earlier, the shoreline is already highly developed. Government has attempted to achieve incremental change to vertical access opportunities by conditioning new building permits (or retrospective legalisation permits) on provision of public access, but this has been ruled illegal by the courts. Xerri [34] reports that, in a 2015 decision, the planning tribunal, while expressing some sympathy for both horizontal and vertical public access, saw no way of imposing such a condition under the existing legal framework:

" ... no law can grant third parties rights on private property if not through the legal means which the legislator would have already put in place for such purpose. A policy certainly cannot, by itself, grant private property rights to third parties or be used to deny the development requested by an owner on his own land." (Victor Borg vs. Malta Environment and Planning Authority).

Unlike the other jurisdictions analysed here, Malta's direction may be characterised as regressive. Yet, even within this country's challenging legal and physical contexts, there is an increasing recognition of the importance of coastal access rights, especially within some local plans [34].
