Eurobodalla’s new councillors have been briefed on the recent closure of Congo Road north.
Congo Road north, in part, runs through private property. This section of road was closed to the public following concerns raised by the landowner about the risks of injury to members of the public and the potential liability resting with the landowner.
Following receipt of independent legal advice prior to Christmas, Council had sought to remove a small number of trees along the edge of the physical road to assist the landowner and retain access for the public along the road. This work was deferred following objections received from some members of the community in regards to the legal opinion that Council gave that said the public road by common law definition and as such they could do as they wished under Section 88. Council had sought legal advice to undertake that activity under the Roads Act 1993. Members of the community objected to this work and raised concerns about the legal ability of Council to undertake the work, citing an alternate legal view. The alternate legal view put forward by the community was that Council was not legally able to carry out the tree removal under Section 88 due to the fact that the road was not a dedicated public road. Council was also challenged that Section 88 only allowed the removal of trees ON or OVERHANGING but not BESIDE a road. ROADS ACT 1993 - SECT 88
Tree felling
88 Tree felling
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. At the time of closure Council had advised the community that they had the legal right to remove the trees citing their own legal opinion being: In relation to the application of the Roads Act, whether a road on private property is a ‘public road’ includes considering whether the road falls within the common law definition of a public road. The long history of use of the road by the public generally, and the fact that
Council has maintained the road for many years means that the road falls within the
common law definition of a public road for the purposes of Section 88 of the Roads Act
1993. Council has a duty of care to ensure public roads are maintained to mitigate the risk to the community. Council has maintained Congo Road north through the subject property for many years. Realising that they could not proceed the work on the trees was paused and those legal questions referred to Council’s legal advisers for further review. At that point, given the liability risk that would now sit with the landowner, the agreement for the public to pass through their land was justifiably withdrawn and the northern route was closed to the public by Council.
Council has sought further legal advice on this complex issue including advice to enable responses to questions raised by residents. Council is not in a position to be able to re-open the existing northern road through private land, or to indemnify the landowner against potential liability. On December 15th 2021 Council stated: 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.
Additionally, Council now advise it has not been able to establish evidence, including through research by a specialist firm, to confirm the existence of a public road through prior use of the physical Congo Road north through the private land under Act 4 Willian IV. This means the land over the physical road is private land.
The landowner has pro-actively collaborated with the Rural Fire Service and made arrangements for access during bushfires, should that be required. NSW Ambulance have stated they are a busy mobile service, often on the road, and they will respond via Congo Road south. NSW Surf Life Saving have confirmed rescues would be conducted via rubber duck from Moruya SLSC, as per standard practice.
The landowner has also indicated a willingness to continue to work with Council toward providing a new road through the private land subject to that new road being in a mutually agreed location. Council is considering this possibility. To establish any new northern route, Council would need to allocate funding, giving priority to this project over others elsewhere in the shire. It might then be argued that Council is under no obligation to provide a northern public road access to the village when a quality, all weather public road is now in place to serve the village via Bingi Road. Should the councillors decide to investigate a northern access for the coastal village then that would require further detailed environmental studies that would include impacts on the adjacent Congo Creek.
Before any consideration of progressing Council would also need to confirm that a new road could be approved for construction across the private land in accord with the various NSW Government environmental legislative requirements.
Having done so they would then need to acquire the land in accord with Just Terms Compensation Act and other legislative requirements, including any portions that may be required from the adjoining National Park. Should all of the above be agreed to then, and only then would Council begin to expend the considerable funds to prepare surveys for the new road reserve and complete construction of a new road.
After review of further independent legal advice sought by Council, ongoing briefings will be provided to the new Council who will ultimately need to make decisions in the interest of the whole Eurobodalla community on the level of resource to be allocated to re-establishing the northern route.
Council has received correspondence from people seeking to have the northern route re-opened, from people asking that the route be kept closed, from people who agreed with the proposed tree removal on safety grounds, and from people who were opposed to the tree removal. Views have been expressed by people living along this route and from those living in other areas.
This complex matter will ultimately be a decision of the Council made by majority vote of the Councillors following a formal report to the Council. Congo continues to be serviced via Congo Road south and Bingie Road. This route was progressively upgraded and sealed by Council with the last section completed in recent years. This route is a public road.
The southern route is slightly further to Moruya than the northern route, taking approximately four minutes extra in travel time to Moruya. Council acknowledges the difference in travel time for Congo village residents. The southern route provides much shorter travel times when heading to the south.

Congo Road North to remain closed indefinitely