Review of the Legal Responsibility for Beach Safety
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Review of the legal responsibility for beach safety January 2019 for the Maritime and Coastguard Agency 67744745-3 Contents Executive Summary 3 Part 1: Introduction - what is a beach and what are the risks? 18 Part 2: Who are the duty holder(s) in a beach environment? 33 Part 3: What duties are owed? 43 Part 4: Are the existing duties sufficient? 94 Part 5: Conclusions and recommendations 122 67744745-3 Legal Responsibility for Beach Safety Executive Summary In the UK there are, on average, almost two drowning deaths per week. When aggregated, drowning and water suicide on the coast and inland account for 600 deaths annually; in excess of twice the number attributed to fire. It is accepted that those who undertake risky activities do so at their own risk. However, at present, the legal responsibility for safety at the foreshore is unclear with many competing duties. It also appears that there may be a lacuna in legal responsibility which leaves those with land or Councils adjacent to the foreshore acting out of largely moral and social responsibility rather than legal obligation. This report considers the legal framework and responsibility for water safety at the beach and offers recommendations for change. As is often the case, this report has its genesis in tragedy and forms part of the actions agreed by the Secretary of State for Transport following the Inquest into the deaths of seven men at Camber Sands. While commissioned by the Maritime and Coastguard Agency ('MCA'), it is important to stress that this report and its findings are entirely independent from the MCA. 1. Introduction 1.1 In the summer of 2016, seven men drowned in 2 incidents in the sea at Camber Sands. As is usual, this was followed by an inquest in June 2017. At the end of the Inquest, the Coroner recommended that a review of responsibilities pertaining to beach safety in the current system should be carried out. The Secretary of State for Transport, in response to the Preventing Future Deaths Report produced by the Coroner, committed to commission an independent review to gain an understanding of the legal situation. This document is that independent review. 1.2 Swimming or engaging in water-based recreation has many laudable and important benefits to both physical and mental health, but also is something that carries substantial, and in many cases obvious, risk. The most recent WAter Incident Database ('WAID') statistics show that there were 95 coastal drownings in 2018. The Royal National Lifeboat Institution ('RNLI') reports that it saved 84 lives and aided over 24,000 people in 15,558 incidents in 2017 and it is expected that it saved a similar number in 2018. Likewise, HM Coastguard responded to more than 24,000 incidents in 2018, many of these incidents would have been attended by both RNLI lifeboats and MCA Coastguard Rescue Teams. In addition to the RNLI there are beach lifeguarding activities undertaken by Surf Life Saving GB ('SLSGB') clubs. While the data is not available for the entirety of the UK, SLSGB clubs in Devon and Cornwall made 107 rescues in 2018. If this is extrapolated around the UK it is clear that in excess of 16,000 incidents and approximately 25,000 people are rescued annually – without the continued application of both Public Rescue Equipment ('PRE') and appropriate lifeguarding it is clear that the number of coastal drownings could have been very substantially higher. 3 67744745-3 Legal Responsibility for Beach Safety 1.3 It very quickly became apparent whilst carrying out this review that the legal framework in relation to beach safety is unclear and held together by a patchwork of legislative duties, most of which do not fully extend to, or operate in, the area of primary risk. Much turns to the geographical extent of the United Kingdom: it creates a literal line in the sand where on one side there are duties and on the other there are not. It is something which then has to be balanced against the expectation that those carrying out risky activities do so at their own risk. 1.4 The lack of clear regulation and protection raises the real policy question of whether people ought to be protected to some extent when undertaking leisure activities of this nature, and if so, then by whom and what level of protection is appropriate. 2. Issues 2.1 There is an almost universal view, amongst the stakeholders engaged, that greater clarity of the responsibilities for safety on the foreshore is desirable and such clarity would be welcomed. 2.2 The need for clarity starts from the basic question of what is a beach? This call for clarity, or at least recognition, that the situation is not straightforward, dates back to at least a Transport Select Committee in 2005 - and in all likelihood much earlier than that as similar topics were raised when the Royal Society for the Prevention of Accidents ('RoSPA') launched its Beach Safety Guide in 1993 - and it is clear that stakeholders have been 'muddling through' for many years acting out of quasi- moral, rather than legal, duty. 2.3 There are several interwoven issues that arise which underpin why clarity is necessary. To address them in the simplest way possible, this report is split into five sections, and this Executive Summary summarises the conclusions of each: (a) Part 1: Introduction - what is a beach? (b) Part 2: Who might owe a duty? (c) Part 3: What duty might be owed? (d) Part 4: Are the duties sufficient? (e) Part 5: Conclusions and recommendations 3. What is a beach? 3.1 The first issue is that there is no definition of a beach. This therefore makes attributing liability more difficult as it is not always entirely clear which areas of land are being discussed. Simply put, what is a beach to one may not be a beach to another, similarly a beach can occur in a range of different locations, though this report is only concerned with coastal beaches. 4 67744745-3 Legal Responsibility for Beach Safety 3.2 After reviewing the various available definitions, the most useful and widely used term for the land abutting the sea was the term 'Foreshore'. While also not subject to one consistent statutory definition, Foreshore is generally accepted to mean the land between the mean high water and mean low water mark. I have adopted that definition in this report. 3.3 Once one adopts the definition of the Foreshore it is necessary to consider labels for the land on either side, adopting the colloquial: the 'dry' bit to the land side and the 'wet' bit to the seaward side. The beach area can therefore be split into its constituent parts, namely the: (a) Shore: i.e. the 'dry' bit; (b) Foreshore, which is the 'sometimes wet and sometimes dry bit', and together with the Shore is the area that most would usually consider to be the 'beach'; and (c) Sea: the 'always wet' bit. 3.4 While not legally binding or originated, I have used the following definitions in this report: (a) Shore: land side of the mean high-water mark. This may be covered in sand, shingle, car parks or a variety of amenity type facilities. This is the almost1 always 'dry' bit. (b) Foreshore: land between the mean low water and mean high water marks which at some point during the day will be covered in water of varying depths depending on the tidal position and the topology of the beach. (c) Sea: the area seaward of the mean low water line. This will almost always be covered in water, though the depth at any given point will vary dependent on the state of the tide. The Sea is the territory of the Crown up to 12 miles offshore: an area known as the Territorial Sea, but this area is technically outside of the UK. Inevitably this is the almost always 'wet' bit. 3.5 This report is concerned with the legal responsibility for drowning-type risk that arises as a consequence of a person travelling from the Shore to enter the water at the either the Foreshore or the Sea. No drowning risk arises on the Shore, it has no water, yet the Shore is the only location on which PRE or safety activities or personnel could realistically be based – you would not typically place PRE in an area that may be inaccessible by virtue of water coverage. This paragraph alone illustrates the complexity of the issue. 3.6 The significance of the delineation between the Sea and the Foreshore cannot be overstated. It quite literally sets out a line in the sand between the UK and what is outside of the UK. This is significant 1 I have used the term almost to reflect the fact that certain high tides will exceed the mean high-water mark and some retreat lower tides will retreat further than the mean low water mark. In addition to the mean high and low water marks there are a range of other tide measurements that are available in the literature. 5 67744745-3 Legal Responsibility for Beach Safety as the vast majority of the legal duties only extend to the boundary of the UK or extend beyond the UK on a very limited and specific basis. 3.7 It is also necessary to apply a definition for the activity that is being considered. For the purposes of this report I have adopted Sea Based Recreation, which is defined below: (a) Sea Based Recreation - means swimming, bathing or otherwise using the Foreshore or Sea for recreational activity that is not based in, or originating from, a vessel and is conducted within a distance of 200m of the mean low water mark.