The Americas / Balancing competing priorities in the Turks and Caicos Islands: the problem of public beach usage and protection of neighbouring property rights

Extract –
As the British Virgin Islands focused on the sales of companies, the Cayman Islands on the hedge fund market and Bermuda on insurance and reinsurance capital, the Turks and Caicos Islands (“TCI”) looked much closer to home as the basis for sustained economic growth: its many miles of prize-winning beaches.
With tourism in TCI having gathered significant momentum in the last 25 years, the islands are located 575 miles southeast of Miami, Florida and 75 miles (120 km) north of the Dominican Republic. Like several others in the Caribbean Region, TCI is a British Overseas Territory with a written constitution containing guaranteed Part 1 Fundamental Rights and Freedoms – an aspect as yet untested but which may well become relevant in the context of one solution now adopted by the TCI Government and which is explained below.

Beach access and usage
With such a record of success in selling both use of the TCI beaches and ownership near to them, it is no surprise that local entrepreneurs see those same beaches as a lucrative potential source of revenue. Suddenly a major selling point, specific land – and the jurisdiction as a whole – is lost. Peace and tranquility are displaced by the opposite of that. Re-sale and rental value of impacted beachfront land has plummeted and entire areas where beach vendors are known to operate have become functionally unsaleable.
Legislation – an attempt at the impossible.
Escalating tensions as between vendors and neighbouring owners, as well as between vendors themselves, have made statutory intervention inevitable.
In December of 2021 legislation was brought into force so as to regulate the beach and coastal areas. This was done by placing vending activities within designated zones on each of the islands of which the TCI comprises. These are the Beach and Coastal Vending Ordinance (“the Ordinance”) and the Beach and Coastal Vending Regulations (“the Regulations”). The vending and coastal commercial activities (such as the ubiquitous jet ski) are overseen by a committee that may (or may not) grant the requisite licence. A patrolling process is provided for, together with powers of arrest.
Unlike ongoing unrestricted public access to the beach, the Ordinance makes permission a pre-requisite to beach vending or other related activities.
In addition to the process of obtaining permission, the Ordinance provides a zoning regime. The details for that are contained in Schedule 3 of the Regulations and are confusingly explained.

Deficiencies and recommendations
Whether a well-intended and genuine attempt to solve a growing problem or instead merely intended to give the appearance of addressing these problems without proper resourcing and training, several problems remain. These include:
(i) Enforcement
There is an absence of any clear indication as to complaint mechanisms. As such, claims for breach of statutory duty and / or judicial review aimed at requiring use of these statutory powers seem inevitable.
Beach vending regulations exist in Anguilla similar to that of the TCI. However, the Anguilla provisions provide for the ability of any person who knows or suspects that a permit holder or his agent or employee is in breach to make a complaint to the “Curator of Beaches” (i.e., the Director of Land and Surveys). Such complaint is then investigated and within 14 days a report is generated by the Curator of Beaches to the complainant on the progress of the investigation and the action proposed to be taken in relation to any breach of the regulations.
(ii) Sanctions and Penalties
Offences related to beach vending licences, result in a maximum fine of $1,000 (Schedule 2 of the Ordinance). Query the extent to which that is anything even close to a deterrent.
(iii) Appeal Process
A challenge of a decision not to issue a permit for a special event may be appealed in writing. However, the individual who refused the permit also sits on the appellate body. The most basic of “due process” flaws. The separate process of appeal relating to the licence (not to issue, not to renew, to suspend or revoke) is flawed for similar reasons.
There is similar legislation in Barbados aimed at regulating vending and protecting the right of vendors on the beach, an esplanade, fishing land site, a public market etc. The Barbadian legislation provides for appeals in respect of a decision to be appealed to a National Vending Appeals Tribunal. The Tribunal consists of an attorney of 10-years standing, a vendor with 10 years’ experience and a person in knowledge of the business of vending. Also, a further appeal process from the Tribunal decision to the High Court.
(iv) Beach vending zones
Schedule 3 of the Regulations provides for the beach vending zones using a colour-coded guide specifying particular beach vending activities as permissible at a designated beach vending zone. There are 43 designated locations. The different activities are colour-coded. The locations are identified using one of the very same colours: the result is that confusion reigns.

Compulsory acquisition of land – the “Nuclear Button”

In common with many other jurisdictions, the TCI has a system of compulsory acquisition in the public interest.

As recently as August 2022 this has been invoked for the purposes of a beach vendor site off the beach. That reflected the problem of vendor activity having plainly got out of control nearby.

The fact that compulsory acquisition is necessary even after the coming into force of the Ordinance and Regulations seems a tacit acceptance that targeted legislation has not succeeded in that for which it was intended. With constitutionally guaranteed rights to both peaceful enjoyment of property and protection from deprivation of property it seems inevitable that there will be challenges to this type of attempted solution.

Conclusion
The implementation of the legislation in respect of beach and coastal vending was ushered in as a positive means towards solving the growing problem of land use priorities in TCI. In these early days of implementation, it is far from clear that it offers a solution. All signs so far remain to the contrary.

Tim Prudhoe
Andwena Lockhart