Tel Aviv Court Rejects NIS 36 Million Class Action Over Access to Nahal Asi Stream

The Tel Aviv District Court dismissed a class action lawsuit seeking NIS 36 million against Kibbutz Nir David regarding public access restrictions to the Nahal Asi stream. Filed in June 2020 on behalf of residents of Beit She'an and other visitors, the suit alleged discriminatory and illegal blocking of public entry to this natural water resource. Plaintiffs claimed violations of water laws and unjust enrichment, highlighting the contrast between closed public access for privacy and the kibbutz’s commercial tourism activities along the stream.

Judge Idit Barkovitz ruled that the case was unsuitable for class action status, emphasizing the complexity of balancing conflicting rights. She noted that while the public does not have an absolute right to unrestricted access through the kibbutz’s main gate, the kibbutz must also respect public water rights and act fairly. The decision aligns with a 2021 Haifa District Court ruling that recognized the stream and its banks as public land but also acknowledged the kibbutz’s lawful ownership rights.

The court endorsed a state-proposed balanced plan allowing controlled public access on the southern bank and along the "Green Beach" area, while restricting free passage on the northern bank adjacent to residences to protect residents’ privacy and security. The ruling also considered the kibbutz’s significant private investments in cleaning and restoring the neglected stream, which, although not conferring ownership, were relevant to access conditions.

Procedurally, the court rejected claims that the kibbutz operates as a commercial entity under consumer protection law or as a public venue discriminating against visitors. It affirmed that the kibbutz is a private cooperative serving its members, not the general public, and dismissed demands for retroactive financial compensation, noting the state’s prior failure to regulate the matter. However, the court left open the constitutional question of the kibbutz’s authority to block its gates, signaling that this issue remains unresolved.