Presentation by Lei Parker, to the June 8th 2021 Eurobodalla Council meeting
GMR21/029 Coopers Island Road Bodalla
Councillors,
When you were elected you were given delegations by the State Government. One of these delegations was Road Authority for Council controlled Public roads.
You handed that delegation down, through the General Manager, to Council staff with expectation that they would act on your behalf and ensure the legal instrument of the Roads Act was complied with.
Coopers Island Road is a Public Road that currently consists of the causeway and the bridge and the road reserves, owned by the community with a replacement value of its assets estimated at $389,000. The sale or closure of Coopers Island Road would permanently prevent public fishing access to Bowns Creek. The withdrawal of access to cultural and recreational fishing from this site will have an immeasurable impact on our community, especially given that there has been no public consultation. Coopers Island Road comes under the Roads Act 1993 and as such, under delegation that the council of a local government area is the roads authority for all public roads within the area, you are responsible for ensuring the laws within that Act apply. The law around erecting gates on a public road is very simple. You can NOT erect a gate on a public road WITHOUT a gate permit. To do so is illegal. Fact: There is an illegal gate across Coopers Island Road that has been there for nearly two years. Fact: The staff, under your delegation, have allowed this gate to remain. Therefore, you have allowed it to remain. Fact: The staff and yourselves have received multiple complaints from the public regarding the illegal gate yet you have failed in your delegated duty to remove it. This is not a complex matter. The gate is illegal. You have failed to remove it. The question has to be asked “Why didn’t Council, when first advised, request the gate to be removed. Council was first made aware of the illegal erection of the gate in mid-2019. Two years ago. Council staff were advised and given absolute references to various Acts regarding gates, permits, cattle grazing and access to waterways. The references given were all to relevant Acts of which Council had delegated duty to enforce. Yet Council did nothing. Council has witnessed this issue festering like a boil for two years. Hostilities between the community and the farmer have flared up. Yet the Council still chose to do nothing In the report before you today it says: “Council has received complaints from the owners who advise they are suffering significant stress from conflict with visitors, including trespass, blockage of the roadway and vandalism. Council acknowledges the difficulties faced by the landowners and farm workers regarding the alleged behaviour of some members of the public.” What it doesn’t say however is that the community were presented with a gate across a public road. Their public road. It doesn’t advise of the conversations between the public and the landowners regarding the illegal fencing of the foreshore that the report suggests, by way of excuse, that “prevents stock from entering Bowns Creek and enable unhindered stock and stock truck movements.” The staff report however, accurately confirms that “The fencing erected by the property owner near the causeway is not on the road reserve boundary, is narrower than the road reserve near the causeway and presents a barrier across the road reserve.” Option 2 in front of you today recommends: Write to the owners of Lot 2 DP 12290 requesting that the gate and fence near the causeway across the road reserve be removed within 28 days from the date of the letter or after such time has elapsed, Council remove such This removal is allowed under your authority. It is not a new authority. It is in fact the very same authority you had two years ago but failed to enact. Councillors, you have failed to enact your delegated obligations to remove the gate for two long years. In the report today you offer neither explanation nor apology of your inaction. The report before you states: “The fencing erected by the property owner near the causeway is not on the road reserve boundary, is narrower than the road reserve near the causeway and presents a barrier across the road reserve. The physical road is partially outside of the public road reserve.” Having worked with Eurobodalla Council for 21 years in the capacity the Roads Register Officer I can advise councillors that the intent to adjust the road boundary to address the minor encroachments has been on Council’s to surveying do list for more than 30 years when it was first identified along with Clouts Road and the many other cadastral anomalies that still linger. The report before you today states: “In October 2019, Council wrote to the owners requesting the fencing near the causeway be removed as it had been erected across/on the public road reserve, and because the position of the fencing creates a danger for visitors attempting to park in the road reserve, effectively limiting access to the waterway. The fencing has not yet been removed.” Can the Councillors advise why their directive, under delegation, was ignored by the owner and why no follow-up action was carried out? Note that this was long before the Bushfires, yet on February 18th, 2021, Council had the temerity to say in a media release “The landowner has raised concerns about public use of this area, and initial discussions have been held with the owner, as well as local fishers. Progress was delayed, however, as Council’s focus switched to bushfire and flood repairs.” The report before you offers the owner’s view that there is an overriding public benefit in closing the road being “The overriding public benefit is in the reduced cost to Council in maintaining the road and associated infrastructure, and avoidance of the risk for which Council is liable under its duty of care to the users of the road.” Councillors, you have been advised that the road reserve is 10 metres wide and that the owners claim that it does not meet the road standards. You are advised by the report that the owners have also raised the issue of road maintenance. The report states that Council staff consider that the road reserve is fit for purpose, considering its usage saying “Vehicles can turn around within a 10-metre road reserve. At present this is restricted due to the fencing, erected without Council approval by the property owner, that does not align with the road reserve. Staff also advise “Maintenance has not been able to be carried out since April 2019 because the turning space for graders has been restricted due to the fencing near the causeway. Maintenance crews will be ready to undertake maintenance works as soon as a way forward is implemented that permits the required movements by the grader.” It is understood that an estimated saving of $32,000 has been made to date. This might explain to the public the alternate recommendation to you today that allocates up to $40,000 from the 2020-21 budget to realign the road back onto the road reserve and other associated works to improve safety and the operational management of the property to ensure minimising conflict between livestock and road users. The report before you suggests that the owners maintain that cattle could jump the cattle grid and for safety reasons the gate is required. The Cattle Grid is located on a Public Road and the cattle should not be on this road unless supervised and only to pass from one side of the road to the other. As it is a Public Road cattle are not allowed to graze unless there is a Grazing Stock Permit. Required for any owner who intends to graze livestock on a travelling stock reserve or public road. Council now finally accepts the gate on Coopers Island Road, while not locked, still requires a public gate permit under the Roads Act. The owners were advised by Council in October 2019 to apply to Council as the roads authority for a permit to authorize the gate. A public gate permit application was received on 17 February 2021. Council incorrectly advised the owner to apply under Section 128 of the Road Act 1993 that states: ‘(1) A roads authority may permit the occupier of any land through which an unfenced public road passes to erect a gate across the road at any place at which the road intersects a boundary fence’. Council now concedes, two years after being advised of its error by the public, (with extracts of the Act provided for clarity and reference) that “Therefore, as the road has been fenced, Council is not permitted to approve a public gate, should Coopers Island Road remain a Council road. The owners will be advised of this most recent legal advice obtained by Council.” The fact remains that the gate has been illegal for two years and that Council only now accepts the fact having received “Legal advice”. Had they read the Road Act 1993 they would not have required “legal advice” as the Act is very clear. The staff prepared report further advises Councillors: “Given that the owner has now fenced both sides of Coopers Island Road, Council is unable to approve a public gate across Coopers Island Road. Council should therefore give the landowner the opportunity to remove the gate. Council has sought advice regarding the application of the Right to Farm Act 2019, in these circumstances in response to views expressed by the owners. The legal advice to Council is as follows: ‘The Right to Farm Act does not grant any right to the landowner to use the road for farming activities free from alleged interference by the fishers or the public. There is nothing in the Roads Act or any other legislation giving the landowner rights to use the road in connection with farming activities that are superior to those of other members of the public, including the fishers.’ The report states that public complaints have been investigated and confirm that visitors are unable to park near the causeway in the road reserve because the public road reserve has been fenced off. In 2019 a correspondence with Council advised: “some of the new fencing has been erected on the Crown Land, this has been confirmed by a site visit with Warren Sharp last year. The fencing has been extended to join the bridge thus preventing access to the water. This was not the case previously. The new fence has prevented the launching of kayaks/canoes or other small car toppers from the bank. Some fishers including my self-frequented this upper area of the river as it is a long way to paddle from Tuross Head. Prior to the fence changes there was ample area for a few cars to park - the new fence line has also made it more difficult to turn around.” “Warren confirmed the fence was constructed on Crown Land and would have to be moved. Previous parking on Crown Land would need to be restored so cattle trucks could pass parked vehicles if needed. The front gate was not needed.” This correspondence forms part of Council’s corporate knowledge that it was aware and had confirmed, in 2019, that there were fencing encroachments. As such it required an action in 2019. Councillors, that action, under your delegation, never happened. The report before you states: “The owners claim that access to the waterway could conflict with the environment and would potentially damage the saltmarsh near the bank.” Council staff however have countered “It is noted that the likely areas for access are unlikely to impact the saltmarsh as the designated saltmarsh areas are not in the vicinity of this access.” The report also states “The owners maintain that public access along Coopers Island Road is a potential biosecurity issue, compromising their Wagyu beef export business The report further offers: “The property owner has raised the conflict between the recreational fishing activities and the operation of their farm. This includes concerns that Wagyu beef production requires adherence to biosecurity controls, and part of their concern with visitation on the property is the risk of biosecurity breaches which could compromise the beef production method and adversely impact the agricultural enterprise.” Councillors, are you aware that adherence to biosecurity controls first requires a Biosecurity Plan? Of interest is the fact that the mention of a Biosecurity Plan. The first the community heard of any suggestion of biosecurity risk was when Councillor Liz Innes spoke with Simon Lauder of ABC South East Radio on February 17th, 2021. It is understood that the owners concern around biosecurity have also been mentioned in subsequent briefings to Councillors. Councillors, from the 1st of August 2019, people entering properties where a Biosecurity Management Plan applies must comply with the measures outlined in the plan. DPI strongly advises that anyone engaged in commercial agricultural or horticultural activity, including processing and education, develops, and actively follows, a biosecurity management plan.
Having moved from Moree to the South Coast and having been a successful cattle breeder with more than 800 head the landowner would be aware of the requirements and benefits of a formal Biosecurity Management Plan. The foremost benefit being control of visitors to the property via endorsed signage.
With a biosecurity management plan in operation, it becomes a legal requirement to obey relevant signs, procedures and measures outlined in the biosecurity management plan. Under a biosecurity management plan signs must be displayed at the entrance to the management area to which the plan applies.
Failure to comply with these arrangements when dealing with biosecurity matter, such as animals or produce, may be an offence under the Biosecurity Act 2015. Penalties can include an on the spot fine of $1000 or a court ordered fine of $220,000 for individuals and $440,000 for corporations.
Signs must:
advise that a biosecurity management plan is in place
outline that it may be an offence under the Biosecurity Act 2015 for a person to fail to comply with the measures set out in the biosecurity management plan
tell visitors how they can contact you (or a property manager), for purposes of inspecting the biosecurity management plan and understanding their biosecurity obligations on your property
Again, the report before you states:
“The property owner has raised the conflict between the recreational fishing activities and the operation of their farm. This includes concerns that Wagyu beef production requires adherence to biosecurity controls, and part of their concern with visitation on the property is the risk of biosecurity breaches which could compromise the beef production method and adversely impact the agricultural enterprise.”
The question to be asked is:
“Given their concern that Wagyu beef production requires adherence to biosecurity controls with visitation on the property risking biosecurity breaches why do they not already have a Biosecurity Management Plan that requires endorsed Biosecurity signs to be displayed at the entrance to the management area to which the plan applies?”
The report before you states that the owners have also raised several issues including that visitors fish from the bridge preventing access by trucks, leave rubbish, damage infrastructure, impede stock movements and interfere with farm operations.
Staff have now correctly advised you in this report that:
“The bridge, causeway and culvert are classified as part of the public road under the Roads Act 1993. There is no specific provision of the Roads Act or any regulation under the Roads Act which provides that a person may not stand or fish off a single lane road. In response to people fishing from the bridge, there is no provision in the Roads Act or any other legislation giving the landowner rights to use the road in connection with farming activities that are superior to those of other members of the public, including fishers.
The rural zoning of the farmland does not preclude fishers or other members of the public accessing Bowns Creek via Coopers Island Road. The landowner, the fishers, and the public alike, must obey the relevant road rules made under the Roads Act and any signs or notices that may be erected by Council with respect to the use of the road.
These rules make it clear that the users of public roads must behave in a way that accommodates the rights of all other users of the road, subject to any specific requirement to the contrary in the legislation. Hence, the landowner must accommodate the fishers’ right to use the road to gain access to, and to stop and fish on or near, the crossing, and, similarly, the fishers and the public must accommodate the landowner’s right to pass along the road, move machinery along the road and drive stock along the road. Due to safety concerns of multiple users of the bridge, Council may restrict fishing off the timber bridge by placing signs on that structure
The report says:
“Coopers Island Road was converted to a public road in the 1930s and is currently a public road. The road is used by the owners to access their property and has been used by the public to access the Tuross Lake system for recreational fishing.
The report adds “Historically, the area adjacent to Coopers Island Road has been visited by fishers and campers via the public road, who have parked cars, launched kayaks and small craft, and fished from the creek bank, the causeway and the bridge over Bowns Creek.”
Historically the land was squatted on by John Hawdon in 1848 when he applied for, and received, a Crown Lease of 30,000 acres bounded on the North and East by Coila Lake, on the west by Bodalla Mountains and south by Wagonga River.
What the history books fail to say is that long before John Hawdon the area was the home of the Yuin and that Coopers Island was known as Umeboro Island.
Umeboro Island has long been of significance to the local First Nation people. It has served as a fishing haven for countless generations and in more recent years was the site of considerable First Nation activity as over 100 families lived on the island and cropped beans and peas for market.
In all the engagement that Council has had to date with the community via letters of protest, emails of frustration, public meetings generating petitions and on-site visits with councillors and staff NOT ONCE were the local First Nation community contacted, included, or consulted regarding the proposed sale that would see them lose access to a traditional fishing area and access to the upper reaches of Tuross Lake.
The following Parish Plans track the history of the road from 1887.
Note the above is a Land Board (LB) notation to indicate a recognised track for consideration to become a Public Road.
Note the proposed Causeway by Eurobodalla Council in 1964. The Causeway is Public Road. Note also the track remains, however, a Public Road has been created over the property perpendicular to the highway to intersect the track.
The Parish Plans above offer an insight into why there is a paper road across Lot 2 DP12290. This was the original road and was superseded by the new Public Road that runs perpendicular to the highway to meet the original LB. 22.3650 continuing to, and crossing the causeway.
Above: From Council’s GIS system showing Public Road Reserves
The report before you states that owner’s solicitors suggest:
Council now has the power under the Roads Act 1993 to close a public road. Section 38A of that Act enables a council to close a “council public road” for which it is the roads authority under certain conditions. Some of the conditions for closure include:
• The road is not reasonably required as a road for public use (whether for present or future needs), and
• The road is not required to provide continuity for an existing road network. The owners consider that the closure of Coopers Island Road satisfies these requirements.
Following the 300 signature petition and the other presentations today you will find that the community strongly believe that the road IS considered “reasonably required” as a road for public use for present or future needs and that the road is required to provide continuity for an existing road network that connects the community to a Crown foreshore and to cultural fishing and public recreation.
While councillors may have been briefed by a senior staff member suggesting “getting rid of the road” was a good idea they failed to ask staff what the Crown thought of their backroom intent. Had they done so, two years ago, it would have saved so much time, effort, needless community friction and eventual anger combined with sheer frustration and exasperation that has once again tarnished Council’s reputation.
Councillors, the report before you advises that “Representation has been received from the Office of the NSW Crown Land Commissioner on 31 May 2021 regarding public access to Crown Waterways over Council owned or Crown Roads which states: ‘Please be advised that the Commissioner is of the view that, as a matter of principle, it is of the utmost importance to retain public access to Crown Waterways over Council owned or Crown Roads, and that those roads should not be privatised to exclude that public access’. This entire issue has been poorly handled from the outset. Once again Council’s failure (and reluctance) to communicate has let them down. It has left a taste of distrust of Council for failing to represent the public while appearing to empathise with a landowner who is, in the opinion of the community, clearly in breach of the law by way of the illegal erection of a gate and of illegally erecting encroaching fences on public land. The issue has also shone a light on the short comings of Councillors to oversee their delegated authority. Councillors, my questions to you:
“Who in Council, delegated with your authority, failed to act in a timely fashion on removing the illegal gate on first hearing of the offence in 2019?”
“Why would a staff member, given the trust of your delegated authority, take it upon themselves to disregard their obligation and duty under the Act to remove the gate and the fencing, especially given the disrepute that they have now brought to Council, and to your own reputations, for having failed to act?”
“And why didn’t you, as Councillors, and as the delegated body, step in as soon as you heard the first protests from your community of a failure by staff to act and represent your community and the authority given to you?”
Given that the owner is a known developer and given that Coopers Island and adjacent lands are able to be developed for housing and tourism the opportunity to own the only access from the highway would benefit the owner while the sale or closure of Coopers Island Road would permanently prevent public fishing access to Bowns Creek.
That being the case I believe you have no option but to ensure Coopers Island Road remains a Public Road and vote today on Option 2.
THAT Council:
1. Does not close or sell Coopers Island Road to the property owner of Lot 2 DP 12290 as noted in the confidential attachment.
2. Allocates up to $40,000 from the 2020-21 budget to realign the road back onto the road reserve and other associated works to improve safety and the operational management of the property to ensure minimising conflict between livestock and road users.
3. Write to the owners of Lot 2 DP 12290 requesting that the gate and fence near the causeway across the road reserve be removed within 28 days from the date of the letter or after such time has elapsed, Council remove such.
4. Thank all submitters for their input.
