Property owners ordered to remove a breakwater from the State foreshore

Injunctions – seeking damages for development works carried out by the defendants and their predecessors in title on State owned foreshore adjacent to the defendant’s property - breakwater the majority of which is constructed on the State foreshore, a seawater retention, elements pertaining to the swimming pool, a slipway - adjustments and reconfigurations were made by the defendants to the swimming pool so that it no longer protrude onto the State property - majority of the breakwater is on the State foreshore - breakwater was constructed by one of the defendants’ predecessors in title – predecessor in title refused planning and retention – state evidence – defendant’s evidence - matter of dispute as between the parties is now largely confined to the issue of the breakwater - what is to be done about the breakwater – section 12 of the Foreshore Act 1933 - necessary proofs which the first named plaintiff must establish when the State initiates proceedings in respect of structures that are built on the State foreshore without a requisite lease or licence - burden of proof - Article 10 of the Constitution - or the Court to adopt the defendants’ argument would be tantamount to the Court depriving the State (as a juristic person capable of owning property) of the benefits of remedies which are otherwise available to all landowners in the State - argument that the defendants did not construct, and are not in possession of, the breakwater – argued that the defendants are guilty of continuing trespass and /or of a continuing nuisance - never exercised physical detention of the breakwater and that they do not and never asserted ownership of it or claim an exclusive use over it – Court satisfied that a case has been made out that the defendants have asserted possession of the breakwater in issue – alleged delay by the State - five year delay is not of itself sufficient to deny the plaintiffs relief in this case – prejudice – no evidence that the defendants have been unable to meet the State’s claims - Third Party issue – third party joined by order of the court – leave to join third party set aside due to delay - defendants are now prohibited from maintaining their claim against the third party - submitted that the unavailability to the defendants of their remedy against the aforementioned Third Party should not prohibit the plaintiffs from obtaining an injunction - public interest objective in preserving the State owned foreshore, the Court agrees with the State’s argument that the outcome of the Third Party proceedings should not debar the granting of relief in this case – delay not sufficient to deprive state of relief - contention that the breakwater should be left in situ in circumstances where it is fit for purpose and has provided protection for the defendants’ property in excess of twenty seven years - breakwater is necessary for the preservation, integrity and/or maintenance of their property and the immediate coastal area in proximity thereto - breakwater does not adhere to international standards - reasonable and safe access to the beach for the public requires the removal of the breakwater – views would not be interrupted by the solution offered - neither unduly prejudicial nor oppressive to the defendants if the breakwater was removed - satisfied to direct the defendants to remove the breakwater from the State foreshore at Blind Harbour and to restore the foreshore to its condition prior to the said works – relief granted.