Fox family compound. Photo: Luis Enrique Ascui
Stretches of Victoria's coastline could fall into private hands after the land titles office set a controversial precedent on Christmas Eve, granting billionaire trucking magnate Lindsay Fox an extra 45 metres of prime beach - worth $5 million - to his Portsea property boundary.
Planning Minister Matthew Guy and Environment Minister Ryan Smith are furious at the decision and are considering court action against Mr Fox, legislative reform or a planning mechanism to stop other coastal landowners with similar titles from claiming public beach space.
''The government is aware of the significance of this issue,'' Mr Guy told The Sunday Age on Saturday. ''Anyone with this kind of older title is likely to [want the same deal] and we cannot have the situation where we lose hundreds of square metres of public beach.''
Lindsay Fox, after a morning swim at his family's Portsea compound. Photo: Justin McManus
Mr Guy said neither he nor Mr Smith were aware of the decision until after it had occurred. The titles office, he said, had ''questions to answer'' and both ministers had issued a ''please explain'' to the agency. Mr Guy said he had not seen the legal advice the agency relied on to extend Mr Fox's property to the high-water mark and the government may now have to clarify the official high-water mark across the whole state.
The Sunday Age understands that senior environment and planning departmental officials warned the ministers that ''considerable public anger and media interest'' would ensue once Mr Fox's title extension became public.
The decision added 37 per cent more land - or 2400 square metres - to the two main Fox properties on the exclusive Portsea cliff top, extending the boundary past their house-sized boatshed and over the beach by up to 45 metres. The billionaire paid a $477.80 application fee for land worth $5.4 million based on recent beachfront sales.
The proposed extension of land.
Mr Fox's long-time nemesis, local activist Kate Baillieu, said: ''Poor old Lindsay, he hasn't got enough. It reminds me of a greedy child who grabs something, wraps their arms around it, stamps his foot and shouts mine!''
Mr Fox has argued for 17 years that the property line of his $20 million family compound extended across the Point King Beach to the margin of Port Phillip Bay. Over this time he has installed bollards, a lawn, trees, hedges and security cameras to mark out his boundary. But what constitutes the bay's edge has been a murky issue, and previous governments have rejected Mr Fox's position.
In 2000, he told The Age he would never stop fighting for what was rightfully his: ''As far as I'm concerned, what's mine is mine and I will fight for it all the way. I will not stop.''
The controversial bollards. Photo: Pat Scala
Documents from the land titles office show that on Christmas Eve officials finally accepted the ''doctrine of accretion'' in relation to Mr Fox's property. This old legal principle means that when sand builds up on a beach - as it has at Point King Beach - landowners whose properties abut a coastline can apply to have their title extended as the high-water mark recedes.
Mr Fox's new title goes to the mean high-water mark observed between August to September 2009, as surveyed by the businessman's coastal engineer. It appears the titles office did not independently verify the evidence of the engineer or Mr Fox's surveyor before approving the extension.
Mr Guy said the Fox precedent would only affect those landowners with older titles abutting the coastline. This could be dozens of people, he said.
Illustration: Matt Golding.
On Saturday, one of Mr Fox's neighbours, Marita McIntosh, said she supported the title extension and that land titles adjoining Point King Beach clearly state that a property line should begin at the high-water mark. ''The water used to come up almost to the treeline, but the beach has grown a lot in size. The title says what it says,'' she said.
But Bob, a 13-year Portsea resident, said it was ''disgusting'' to see public land appropriated that way. ''There's a lot of people like me who don't actually live on the beach but use it all the time that will be very, very upset by this decision. I imagine the public will have a lot to say about this.''
Mr Fox was overseas and unavailable for comment on Saturday. Mr Fox offered three precedents from the mid-1980s and mid-1990s in support of his application, two at Sorrento which allowed property lines to be expanded up to man-made walls that were believed to reflect the high-water mark. A third example showed a landowner was allowed to define the edge of his Port Fairy property as the high-water mark of the Southern Ocean.
Senior planning barrister Michelle Quigley, SC, said the Fox title extension went against a long-held, bipartisan commitment in Victoria to public beach access. Of the 2000 kilometres of Victorian coast, 96 per cent was in public ownership, she said.
The Public Land Consultancy principal David Gabriel-Jones said the doctrine of accretion was untested in Victorian courts and should have been thrown out by Parliament years ago. ''An important matter such as the Port Phillip coastline should not depend on an interpretation of ancient areas of common law that belong in Noah's Ark or William the Conqueror.''
He said the point of law depended on whether the movement of sand was natural or artificial, and Portsea residents would have varying views on this (in the past, some have blamed the sand build up on Point King Beach on the Queenscliff ferry).
Opposition planning spokesman Brian Tee called for a review of the laws said using a ''spurious'' legal argument to secure Crown land was ''outrageous''.
''It could set an awful precedent for wealthy individuals to intrude on space that should be open to all Victorians.''
It's the third time the Fox family has attempted to move their property line further onto Point King Beach despite public outcry and opposition from planning authorities. In 1998, around the time Mr Fox put a controversial bollard fence along the beach, the land titles office rejected an application to increase the length of the landholding by nearly 30 metres. A second bid was made for 54-metre increase about a decade later, but Mr Fox eventually withdrew the claim.
The decision by the land titles office to reject the 1998 application was based on legal advice provided by the then solicitor-general in a report that has never been made public. The opinion reportedly cautioned that the high-water mark issue was murky enough that a flood of similar claims would ensue if the government tested the matter in court and lost.
With ROYCE MILLAR