With the northern end of Congo Road now blocked by a land owner, forcing the residents of Congo to drive to Moruya via Bingie, the question now being asked is how did it come to this? Like anything it is best to go back to the beginning. From the Parish Map of 1893 you can see that Portion 197, owned by John Staunton,has a a dotted line road across it. This indicates that the Crown recognised that this was the path used by the public.
The 1917 Parish Plan update shows it a little more clearly. This Parish Plan also has the notation that defines the Road as 50 Links (10.05m) wide.
The next Parish Map update continues to show the same formation. A track that traverses Portion 197.
In 1969 that same Road 50 links wide is in place. This is a Crown Road. Owned by the Crown
Below is an extract of Eurobodalla Council's Geographical Information System. If you note Por 197 you can see the 50 Link Wide Track has now been digitised. What you are looking at there is a Crown Road Reserve 50 links wide that traverses Por 197 to provide access for the residents of Congo. While this Crown Road Reserve has been "set in place" over several decades the fact is that the community drove through Portion 197 along the best possible route. If there was flooding then they would adjust that route to higher ground. As it is sandy in this area they would also have adjusted the route to firmer ground. Over decades the section of road that the public uses meandres its own path to the north of the Crown Road Reserve. This has been with the approval of the landowner. Until recently it has never been an issue. Council, in recognising the public use of this "alternate" route, and recognising the landowners approval to use this route, have given the section of road traversing the private property a good depth of gravel and, for decades now, have graded it four times annually.
For more than thirty years Council has been aware of the fact that they were spending ratepayers money grading a road on private property. For one reason or another this was accepted as being permitted as it provided the Congo community access to the north. Of interest is that the Congo community had no legal access via the south until Council struck a deal with National Parks and extracted a public road reserve linking the Congo village to Bingi Road.
The satellite image above (source Six Maps) shows the Crown Road reserve of 50 Links Wide traversing Por 197. If you zoom in you can see the Crown Road reserve (Officially known as 7-1618LF) crosses over the sand mine pits located on Portion 197. You can also see the gravel road that is used by the Congo residents to the north of the sandpits. Given that it is now impossible for the community to request that the dedicated Crown Road reserve created to give them access to Moruya be made available to them as a route, as they have been blockaded by the owner, the community are asking "How did it come to be that the landowner mined a Crown Road Reserve?"
The title for Portion 197 (below) is quite clear : The land excludes the CROWN road (known as 7-1618LF
So if the landowner has mined the Crown Road thereby removing any opportunity by the community to access their Congo homes legally via a dedicated road for such purpose then the question needs to be asked "Does the landowner owe the Congo community a road?"
Council recently claimed that they had the right to remove trees along the section of privately owned road because "Under common law definition it is public".
By declaring "under common law definition" Council then considered they had the right to invoke Section 88 of the Roads Act 1993
To ensure clarity: From Council's own Vegetation Clearing – Roadsides and Infrastructure Lines Policy
Section 88 of the Roads Act 1993 stipulates that:
“A roads authority may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard.”
"Vegetation adjacent to public infrastructure, such as underground services within private lands, may also pose a risk to the infrastructure, requiring removal of the vegetation; for instance, tree roots causing damage to underground services. Where Council is aware of trees on private property that pose a significant risk to the public (e.g. a tree near a public boundary at high risk of failure) Council may request the landowner to take appropriate action to ameliorate that risk. Council may also undertake tree/ vegetation work to remove unwanted species (e.g. non-endemic species), or to renew trees (e.g. tree replacement in commercial business districts as part of the ongoing management of streetscapes)."
The problem that arose was that Council wanted to remove trees that were NOT on a dedicated public road. They needed an 'out' and the common law definition of a public road by nature of its use was, in their opinion, all they needed.
With that they informed the community that in ten days they were arriving on site, closing the private road section for a week and removing ten trees.
The community reacted immediately to the announcement of the road closure and to the tree removal.
The community challenged the Council on their use of Section 88 of the Roads Act and reminded Council that the private road was not a dedicated public road reserve and that Section 88 only allowed works "on or above" and NOT 'beside".
On their plan above Council had only identified one tree to be have overhang treatment.
By Council's own policy
"Where Council is aware of trees on private property that pose a significant risk to the public (e.g. a tree near a public boundary at high risk of failure) Council may request the landowner to take appropriate action to ameliorate that risk."
How was it then that Council were doing the work for the local landowner, contrary to their own policy?
What we have, a week from Christmas, is the fact that:
Council considers, under common law definition, that the section of road traversing private land is public thereby allowing them to repair it and work on it, and above it.
The land owner says it is a private road traversing his property and he is at liberty to close it.
So... is it a public road - or is it a private road?
Council now say:
"For public roads in the shire, Council is the road authority and can make and enact decisions about road safety and risk mitigation within the provisions of the Roads Act 1993. As a roads authority, Council also has protection under the Civil Liabilities Act 2002. In this instance, the section of road in question is privately owned and Council is therefore not the road authority and not protected under the Civil Liabilities Act."
That being the case their common law definition and their actions to close the road for a week to remove trees under Section 88 simply had no legs. Yet they were onsite with contractors and police to begin the process they claimed they had every legal right to carry out.
Given all of the above it appears that the landowner has mined a Crown Road and removed the opportunity for the community to legally access Congo from the north? Will the Congo Road North be opened this summer? Council advise that "To ensure his own legal protection, the landowner has withdrawn consent for the public to access across his land along the physical gravel road regardless of any work that may be undertaken by Council to mitigate the risk. The section of Congo Road north across the private land will therefore remain closed as per the landowner’s decision.
Council will await further legal advice before responding to Congo residents about the appropriate next steps."
