*8.4. The Issue of Private Fencing*

Where vertical access rights cross private property, one of the major issues is illegal fencing or other physical obstacles intended to deter access. Tarlock [25] reports of many court cases regarding obstacles or misleading signs placed by property owners, even in California, where, relative to other US states, beach access rights are better protected. The California Coastal Commission has the authority to impose high fines. An example is a 2021 court decision upholding a USD 4.2 million fine for fencing off a 1.5-m public easement to the beach continuously for 11 years [56].

Several countries have deemed fencing to be important enough to scale it up from the local development permission level to the national or subnational level. However, "the devil is in the details", and countries differ in what types of land uses they do permit to gate.

In Spain, Greece, Italy's Puglia region, Turkey, and Denmark (to some extent), the legislation prohibits fencing within a specified distance from the shoreline—500 m in Spain and Greece, 300 m in Puglia, 100 m in Turkey, and 3 km in Denmark [29,31,33,35,37]. In Greece, however, a presidential decree has gutted much of this rule by exempting a wide range of land uses, including tourist facilities, as explained by Balla & Giannakourou [35].

Interestingly, in France, Prieur [32] reports of the opposite approach. A 1986 amendment to the national planning law explicitly instructs local planning authorities to ensure that tourist and related commercial facilities approved near the coast do not block vertical access. One can assume that this legislation was not easy to enact because of its economic impacts on tourism projects. The conflict between tourism projects and vertical public access is a difficult one to balance, especially in countries such as Greece, where tourism is such a significant part of the economy.

Israel provides another example of fencing as a "red flag". In this high-growth country, as noted earlier, the beaches are the most popular site of recreation, and crowding visibly increases annually. Environmental activists and enforcement authorities are especially engaged in monitoring any new fencing that curtails either horizontal or vertical access. The legislation now states that local authorities are no longer authorised to permit any fences in the coastal zone, except in special circumstances and with the permission of the national coastal regulatory committee [38].

#### *8.5. The Special Case of Gated Communities in Coastal Locations*

When the practice of illegal fencing is carried out not just by individuals, but by "gated communities" along the coast, it may become an especially contested issue, with symbolic or direct implications for distributive justice. In some countries, such as the USA, gating is legal and rampant (not specifically on the coast [57]). In many other countries, it is a de facto practice, even if unregulated or illegal [58,59]. In such cases, there is a double legal conflict with public accessibility: first, is it legal to gate residential neighbourhoods? Secondly, if gating is legal, do beach access rights override gating rights?

Within our study, the USA stands out because there are many gated communities along the coasts, and conflicts often reach the courts [25,60,61]. In California, despite the Coastal Commission's successes in providing for vertical public access to privately owned beaches, gated communities are a special challenge [25]. In such cases, the blockage of public access may be more correlated with social exclusion.

Where gating is carried out by stealth, governments or the courts may find it even more difficult to enforce access rights. As noted by the Portuguese team, residents of quasi-gated communities sometimes use physical design or symbolic gating to signal "do not go through our property" [28].

In Israel, the conflict between attempts to gate communities and coastal access has reached the courts. In two media-covered court challenges the petitions were triggered by the fact that the projects blocked coastal access. The court decisions became well-known rulings against neighbourhood gating in general [38].

Enforcement of vertical access rights could be even more challenging where residential buildings or tourist facilities are entirely illegal [62]. In this paper, we cover this complex topic only in passing (for detail, see [63]). Such situations are not reserved for developing countries. Even within our sample countries—all with advanced economies—illegal construction along the coast is (or has been) especially rampant. These countries include Turkey, Italy, Malta, Greece, Slovenia, and Portugal (for Portugal, see also [64]).

#### *8.6. Ports as a Special Issue*

Ports have good reasons to be located at and near the shoreline. National or regional legislation usually exempts them from enabling public access. Their premises have been tightly sealed off, even though they occupy hefty tracts of waterfront land. Due to increasing security needs (and international insurance requirements), ports have become even more locked in (Based on interviews with several port authorities in several countries, conducted during 2015, as part of the Mare Nostrum Project, ([55], pp. 31–32)).

In recent years, citizen expectations and urban planning policies have succeeded in persuading port authorities in some cities to open up at least a small zone for public access to the waterfront. However, such retrofitting attempts are costly and are sometimes achieved through deals with private developers. Here is an example drawn from one of our research visits. Figure 5 shows the only access point to the water at the Port of Marseilles (France). The port occupies a huge tract of the city's urban coastal land but has developed one edge with a publicly accessible shopping mall. This large balcony overlooking the water's edge is the closest that the public can get to the water and the only way to reach the balcony is to pass through the mall's "golden cage" elevators or stairs (Based on an interview with the relevant officer of the Marseilles Port Authority, July 2015, and a personal visit to the Port and the shopping centre).

#### *8.7. Summarizing Vertical Accessibility*

The cross-national survey of vertical access rights exhibits a variety of approaches, similar to what we saw with horizonal access. The survey highlights some of the legal differences associated with the differing property right regimes. At the same time, one can point to a positive trend by which NGO initiatives reinforced by court decisions, coupled with the evolution of planning norms, has succeeded to some extent in overcoming entrenched conceptions of property rights.

**Figure 5.** The shopping centre balcony at the Marseilles Port: the only place the public can get close to the shore, but the public must first pass through the shopping mall. Photograph by Cygal Pellach (2015).
