Dear Editor
I applaud you for your article titled “Congo outcry: Where is our road?”
However, your readers, and the community, are possibly led to believe that the fault in all of this lies with the Landowner, which is contrary to the facts at hand.
Please allow me to offer this supplementary commentary to give weight and balance to this issue.
Readers may think that the protest over saving the trees alongside the gravel road that traverses the private property (Lot 197) is new and is the main issue. This would be incorrect, as the issue of public access over Lot 197 predates all issues back to 1978 when the current owner purchased the property.
Two roads traverse this property. One is a paper road, and the other is the gravel road in contention. Only the gravel road is actively shown on any aerial photography of the property.
Firstly, let’s dispense with the paper road. Your interpretation that “… this indicates that the Crown recognised that this was the path used by the public…” is respectfully incorrect. There has never been any formal road, track or access as delineated by this paper road. Never. Period.
The only reference to this paper road has been by Council, who tried unsuccessfully to get (then) Lands Department to allow Council to offset this paper road against a future road reserve. This was done without informing the Landowner, but it came unstuck when Lands Department included the Landowner into the conversation.
However, what happened was that an Officer from the Lands Department visited the property. The issues discussed were the paper road and the quarry production. The Lands Department Officer advised the Landowner that considering that Council would use the paper road as an offset to a future road reserve, the Landowner could quarry through the paper road.
As this has in fact been effected since this meeting, with no adverse objection from either Lands Department or the Council, should be clearly indicative of the status quo of the subject.
Now let us attend to the gravel road, which is the focus of both protest and closure.
In 2008, continuing on with Council’s attempt to offset the paper road against future road reserve, the Council wanted to establish a road reserve over the existing gravel road. This failed for two reasons – the first being that the compensation implications that would be due and payable to the Landowner for sterilising the sand resource with such road, and secondly the safety factor of the road itself.
In April of 2008, a three-man team from Council’s Roads and Recreation Services, led by a much younger Warren Sharpe as Group Manager, accompanied by Nam Ranatunga as Asset Management Officer and Richard Compton as Senior Design Officer, conducted a Road Safety Review over the gravel section in question.
The review found that the primary hazard requiring immediate mitigation was “Trees both sides of the road reduce the sight distances at the corners of the road as well as acting as a potential roadside hazard for motorists”. The recommended action was “The identified trees have been marked for removal (IMPORTANT)”.
Yet nothing was done to mitigate any of the risks covered by this review. Nothing!!!
Pause for a moment and consider the implications of such a review team. A group manager with the authority to allocate budgetary funding. An asset manager with the authority to establish the value of any spend and a senior design officer whose experience spoke for itself.
If memory serves, dear Editor, this happened after your tenure with Council ceased. You worked under Warren Sharpe, and you trained Nam Ranatunga, who replaced you in your position, and you would have oft relied upon Richard Compton’s competence and decency. Perhaps you could enlighten us about how much authority and power this review team had to effect change?
Consider for a moment that Council focussed more on mitigating the compensation risks than the safety risks. They did not offset the paper road onto the gravel road, nor did they implement the recommendations of their own high level safety review.
What they did do though, is formulate a plan that diverts the current gravel road off Lot 197 in a northerly aspect still within the property, to join up with the road reserve in that area. Has this been discussed with the community? Has this been put to the Landowner?
For thirteen years Council ignored their high-level safety review. They did not progress any access solution to the Congo community regarding Congo Road North.
At this point let us establish balance in order to go forward on an even keel. So let’s be very clear on this issue. A dirt track traverses a property, and the Landowner gracefully extends permission for the public to use it. However, the use of the track warrants maintenance to it, so much so that Council starts to maintain it, bringing it up to a reasonable dirt road standard.
All of this is done without Council offering compensation to the Landowner or registering a road reserve over the gravel road. Yet the decency and graciousness of the Landowner in keeping the road open to the public shines.
Fast forward to December 2021, and a brain fart by someone in Council causes Council to instruct its contractors to remove the trees – 13 years later!
However, a respectable number of community members actively protested against Council’s actions forcing a confrontation between the protestors and Council, represented by none other than the Director of Infrastructure Services, Warren Sharpe OAM – the very same bloke who headed the 2008 safety review.
The Beagle has faithfully recorded the arrogant and, at times, pompous comments made by Warren Sharpe OAM at this and other meetings relating to this matter. I will only address his comment that Council had the right to proceed with the works on the basis that under common law, the gravel road was deemed to be a public thoroughfare. Therefore Council had the authority to maintain it.
I’m on the record as having the opinion that the common law could well apply to this stretch of road. Given that the Landowner has so graciously over the years allowed unfettered access to the Congo community to traverse his property, it does fairly well establish a basis for the common law to apply.
However, Council have failed to uphold their end of the common law aspect of this road. If, as they claim, the road falls under common law to be a public thoroughfare, then Council are obliged under the laws of the State of New South Wales to maintain said thoroughfare to a standard legislated. In this regard I submit I am of the opinion that they have failed.
Keep in mind that Lot 197 has approval to be mined for sand. That’s the whole of the Lot, subject to some exclusions and offsets as noted in the contract, not just the little bit that some readers would prefer. This permission has been in place since 1979, and is as established as any contract can be.
The mining of this property has been a commercial operation since inception, and considering that it is an extractive industry vital to the interests of the State, it holds itself to a very high standard of compliance. Consequently, no breach of compliance has ever been held against this operation, and one should be very cautious in alluding to anything contrary to this fact.
Since 2008, the Landowner has continually made it known to Council his concerns regarding safety of and along the road that traverses his property. This motivated Council to undertake the high-level safety review in 2008, although it seems that that is where the motivation ended, as Council has done nothing since.
Yet the Landowner graciously continued to allow unfettered access across his property.
Recently the Landowner informed Council that his insurers were threatening to withdraw his public liability cover under his policy due to the unacceptable risks that the road imposed. Keep in mind that the primary use of this property is commercial, and not for the exclusive benefit of anyone else.
This no doubt motivated Council to undertake another safety review, which unsurprisingly found the exact same hazards, risks and mitigation strategies as the initial 2008 review.
The gravel road across Lot 197 is now permanently closed to the public, notwithstanding access available to emergency services. As a result of Council’s actions, or rather their inactions to be more accurate, the common law access to traverse the property has been withdrawn by the Landowner.
Community anger should not be directed at the Landowner. That would be egregiously misplaced. He was, factually and legally, left with no alternative but to withdraw public access across his property. To not do so would have invited a loss of public liability insurance over his operation, which realistically would have been financially and commercially suicidal.
The trees, which were the initial issue with the protestors, now revert back to being part of the greater property, which is a privately held property used under license in the commercial pursuit of sand mining.
It is now high time that Council actively pursue the practical alternative to the road that once traversed Lot 197, by presenting to the community a plan to divert Congo Road North away from Lot 197, up and over the creek, and where it can join the road reserve accordingly.
It is for Council to supply the solution and access to the Congo community, not for the Landowner of Lot 197.
I sincerely trust that this adds balance and perspective to your excellent coverage of this issue.
Mervyn Sher
Broulee.
