The Batemans Bay foreshore and Clyde River are in the news of late for a variety of reasons, from dredging to missing boatramps, and bridges to foreshore plans.
Council now wishes to direct the public to the REGIONAL boatramp at Hanging Rock. But how legal is that boatramp and who owns it if you have an accident and need to sue? It turns out that the boatramp is actually on the area leased by the marina.
In 2018 the Batemans Bay Foreshore Advisory Committee was formed to look at the landscaping that will compliment the new bridge talking about green space, the relocation of the Clyde Street toilet block, new parking arrangements, traffic flows and boat ramp facilities. The area of focus was constrained from (but NOT including) The Boatshed along the foreshore to Clyde Street West to consider parking, playgrounds, visitor spaces and buses. The did what they were told to and in the end the committee was allowed to make a contribution on the location of garbage bins. Three of the members left disgusted and the names of the committee members was determined to be "confidential" and not to be published. The 'boxes' for public consultation had been ticked. Job done. But four members of the Clyde River Foreshore Committee had a bigger vision. They wanted to look at the foreshore as a whole. From the Oyster Sheds to the rockwall at Hanging Rock where one space fluidly merged into the next. A Promenade that serviced the community by function and interest. Further along from the restricted area the Committee were instructed to focus on is the Murra Mia walkway connecting with the Sculpture on Clyde placements of newly acquired public arts pieces. As you continue along beach road there will hopefully be a newly restored emergency helipad installation that will replace the town's all weather helipad. This original helipad unfortunately was closed by Council after they failed to administer the adjacent development requirements forcing the helipad to be removed to a temporary location at Mackay Park oval. That temporary arrangement still stands. Following the last visit of a cruise boat into Batemans Bay and with more due to arrive after Covid there has been discussion on how best to have passengers disembark and load. While awaiting the outcome of the draft Foreshore Plan that indicates a pontoon closer to the CBD an ongoing suggestion has been to extend the floating pontoon facility within the Hanging Rock Boat harbour, seeking Infrastructure funds from the NSW Government. When this was first raised with The Beagle we advised that the Hanging Rock boatramp and pontoons are contained within a Crown lands area that is privately leased. SOME HISTORY: It was known to The Beagle that Eurobodalla Council was well aware of this in 2013. They recognised that this was such an important issue that they initiated a report be prepared and presented On the 23rd of July 2013, SEVEN YEARS ago, at the ordinary meeting of Council the following were present: PRESENT: Councillor Lindsay Brown, Mayor (in the Chair)
Councillors Danielle Brice, Neil Burnside, Gabi Harding, Liz Innes, Rob
Pollock OAM, Peter Schwarz and Fergus Thomson
Staff: Dr Catherine Dale, General Manager
Mrs Kerry Foster, Director, Community and Corporate Outcomes
Mr Lindsay Usher, Director, Planning and Sustainability Services
Mr Warren Sharpe, Director, Infrastructure Services
Mr Anthony O’Reilly, Divisional Manager, Finance and Governance
Mrs C Hodges, Minute Secretary On the agenda was the O13/122 SUBLEASE FOR REGIONAL BOAT RAMP – BATEMANS BAY E85.2305 To save you the effort of opening the attachment I provide a copy of that Item here: SYNOPSIS
The Batemans Bay regional boat ramp at Hanging Rock is located within a Crown lease granted to Batemans Bay Marina Developments Pty Limited in July 2007. The lessee has agreed to grant Council a sublease over the boat ramp and associated infrastructure. This report recommends Council accept the offer and enter into a sublease for the facility.
BACKGROUND
The regional boat ramp facility at Hanging Rock was constructed in 1987 on land that was at that time Crown reserve. The ramp was constructed with consent from the then Lands Department, now the Crown Lands Division of the Department of Primary Industries, with 75% funding from the Department of Public Works.
CONSIDERATIONS
In 2007 Crown Lands granted a 70-year lease over Lot 11 DP 870049 and Lot 11 DP 124295 which included the public boat ramp.
Council has continued to maintain the facility since the lease was granted.
ASSET
Council has expended significant funds including government grants establishing, maintaining and upgrading the regional boat ramp. It is an important facility for the boating community and legal tenure is required for Council to legitimately expend Council funds.
LEGAL
In recent discussions with representatives of Batemans Bay Marina Developments, the option to excise the site of the boat ramp facility from the lease area, with a view to adding it to the adjoining Crown reserve for which Council is Trust Manager, was rejected.
Batemans Bay Marina Developments, however, is prepared to offer a sublease over the site for the term of the head lease. A plan of the proposed sublease area is shown below.
To ensure access from the boat ramp to the main channel it will be necessary to create an easement for marine access. For maintenance purposes, e.g. lifting pontoons, an easement for access for maintenance will be required adjacent to the sublease area. The proposed easements are shown in the plan (below).
SOCIAL IMPACT
Given the high level of usage, maintaining the regional boat ramp as a public facility with free access is extremely important for both boating residents and tourists alike.
FINANCIAL
Batemans Bay Marina Developments Pty Limited have agreed to grant the sublease for $1 per annum, subject to Council bearing the cost of both the preparation and registration of the plan of survey required for the sublease and the preparation and registration of the sublease. The estimated setup cost for the sublease is $8,000.
Providing the fee for the sublease is $1 per annum, apart from the costs associated with the establishment of a sublease, there will be no additional ongoing costs as a result of entering into a sublease.
CONCLUSION
Securing legal tenure over the regional boat ramp facility at Hanging Rock is essential. A sublease with a peppercorn rental is the most cost effective means to achieve it.
RECOMMENDED
THAT:
1. The offer by Batemans Bay Marina Developments Pty Limited to sublease part of Lot
11 DP 124295 covering the Hanging Rock Boat Ramp facility be accepted subject to:
(a) The terms and conditions of the sublease to include:
(i) The term to be in line with the head lease terminating 30 June 2077;
(ii) The lease fee to be $1 per annum; and
(iii) Council to be responsible for the maintenance and replacement of all
infrastructure within the sublease area.
(b) Dedication of an easement for marine access from the sublease area within
Lot 11 DP 124295 to the main boating channel;
(c) Dedication of an easement for access for maintenance purposes within Lot 11
DP 124295 adjacent to the sublease area.
2. The costs for the preparation and registration of the plan of survey required for the
sublease over part Lot 11 DP 124295 and the preparation and registration of the
sublease be borne by Council.
3. Consent be given to affix the Common Seal of Council to the sublease over part Lot
11 DP 124295.
KERRY FOSTER
DIRECTOR
COMMUNITY AND CORPORATE OUTCOMES The MOTION was moved by Councillor Thomson/Councillor Harding (The Motion on being put was declared CARRIED as per the minutes attached.) At this point, SEVEN YEARS after that very directive by Councillors was given, it is essential to be quite clear:
A report written by staff in 2013 advised that Council has expended significant funds including government grants establishing, maintaining and upgrading the regional boat ramp stating it is an important facility for the boating community and legal tenure is required for Council to legitimately expend Council funds. That same report stated that “to ensure access from the boat ramp to the main channel it will be necessary to create an easement for marine access. For maintenance purposes, e.g. lifting pontoons, an easement for access for maintenance will be required adjacent to the sublease area.” The report was very clear stating “Given the high level of usage, maintaining the regional boat ramp as a public facility with free access is extremely important for both boating residents and tourists alike” , concluding “Securing legal tenure over the regional boat ramp facility at Hanging Rock is essential.” Yet a motion, moved and adopted by the Councillors has still not been actioned by staff. In November 2018 The Beagle sought an explanation from Council, having been advised by the Crown Lands Office that there was no sublease and having had that confirmed by a council spokesperson. On Friday the 23rd of November 2018 a Council spokesperson provided the following statement: The Hanging Rock Boat Ramp sublease remains an open issue and we agree the tenure needs to be sorted out. The matter is complex, involving a number of parties, and is taking time to resolve. The NSW Government leased the land to the Marina in 2007, well after the initial construction of the boat ramp.In the intervening period, Council has been in contact with both the landowner (NSW Government) and its lessee as ways are sought to resolve this matter. This includes correspondence seeking to implement the resolution passed in 2013. The ramp is operating satisfactorily and, in part because of the ongoing dialogue, no issues have arisen. Council, the NSW Government and the lessee are also discussing other Batemans Bay Marina lease boundary matters, another reason resolving this matter is complex. Council has been encouraging the marina to develop a master plan for its precinct to ensure development is carried out appropriately and the boat ramp matter also continues to be part of that discussion. So there you have it. The Crown leased land to a private party knowing that the land contained a public owned and maintained asset. We learn however from the 2013 report that "In recent discussions with representatives of Batemans Bay Marina Developments, the option to excise the site of the boat ramp facility from the lease area, with a view to adding it to the adjoining Crown reserve for which Council is Trust Manager, was rejected." We also learn from the 2013 report that "Batemans Bay Marina Developments, however, is prepared to offer a sublease over the site for the term of the head lease. A plan of the proposed sublease area is shown below." We then learnt from Council's response (Nov 2018) that after five years and four months they had still not solved the issue and Council's asset remains within a privately leased parcel of Crown Land his is a timely place to remind readers of Councils very clear statement in their 2013 report It is an important facility for the boating community and legal tenure is required for Council to legitimately expend Council funds. Whilst the boat ramp remains within a privately leased Crown Reserve not under the control of Eurobodalla Council the Council is unable to legally seek grants for improvements to the facilities nor to expend funds on the further development or even the maintenance of the facility. So who is to blame for this inaction of five years and four months. Council, Crown Lands or the Marina? And if nothing has been achieved at all in seven years when might the community expect something to be achieved so that grant funding for infrastructure improvements can be sought? The questions remain:
IF ANYONE HAS AN ACCIDENT ON THE BOATRAMP OR PONTOON INSIDE OF THE AREA LEASED BY THE MARINA THEN WHO IS AT FAULT? IF COUNCIL HAS NO LEGAL TENURE OVER THE AREAS THEY IDENTIFIED MUST BE LEASED THEN WHERE DOES THAT PUT THE GENERAL PUBLIC. IS THE GENERAL PUBLIC ADVISED OF THESE FACTS BY ANY SIGN ERECTED AT THE BOATRAMP?
