Council backs down on tree removal at Congo

A confrontation between Congo residents and Eurobodalla Council this morning on Congo Road North has resulted in a win for the community who have gained a 48 hour reprieve for the ten trees that Council intended to remove. Just after dawn community members gathered to confront tree removal contractors and Council staff demanding that proposed work stop immediately until legal opinion could be obtained given that the trees were actually on private land and that there was no legal dedicated public road reserve. While the protesters were met on site by the land owner who advised them they were trespassing on private land and that the road was private 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. Council having established, via legal opinion, that the road was public appear to be in conflict with the owner who clearly is of the impression the road traversing his property is private and that he is at liberty to close it whenever he choses. Nevertheless Council arrived on site today with their common law definition that the road was public and set about establishing the site as a work site erecting barriers and signage to say road closed.

The protestors now found themselves in a Work Site and were asked to leave. Advising that they would not the police were called resulting in the attendance of four police vehicles including the presence of the regional Chief Inspector of Police who were there to remove the protestors from a work site. THose gathered were told that Police were called because they were trespassing on land that was private property where road works were about to commence.

It was at this point that the protestors, being well informed, challenged Council and the police over the common law definition of a public road and Council's subsequent "mandate" that they had authority to carry out the tree removal. In a win for the community the Council have now backed down and have given the Congo Community 48 hours to assemble a legal challenge as to why they should not proceed with the removal of the trees. It is understood that the opinion of the land owner who is adamant that the road is private will be introduced in the first instance to challenge the common law assumption of Council that the section of road is public. Based on Council's assertion (and on legal opinion they have allegedly obtained) that the road is public they move that, as such, they can carry out the proposed tree removal under Section 88 of the Roads Act without the need to consult the community or undertake the other checks and balances normally required of general tree removal away from dedicated public road reserves. In this case however the road is a graded gravel section and the definition of what are the actual extents of a public road across private land is under scrutiny. Given that the road is only a formation of gravel traversing private land the public road is that formation. From edge to edge. There are no shoulders, there is no drainage. Therefore if you stepped off the edge of the road you would be on private land. Council was very clear in its letter to residents of Friday afternoon that, given the physical road is within private property, and the public passes along this road at the discretion of the landowner, ... 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. Under the common law definition it can not be argued that the graded gravel road formation is a public road. The community generally accept this. What they do not accept is that Council says that it has authority to remove tress that are outside of the roadway. The next section is what Council relies on to give them licence to do the proposed tree removal:

Section 88 of the Road Act 1993 (NSW) provides 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.’

Council add "Having assessed the safety risks presented by the trees, Section 88 enables Council to take steps to remove the trees or parts of the trees overhanging the public road." Yet Schedule 88 does not allow the removal of trees that are not ON or OVERHANGING. It is clear in Councils diagram below that they intend to remove trees BESIDE the road formation. These trees are not ON the road not, in most case, overhanging the road. Therefore, it will be argues that Council can not use Schedule 88 to remove them.

There is a moot point around Council's statement "Having assessed the safety risks presented by the trees". When pressed by the community for a copy of the Risk Assessment and how that risk assessment was carried out Council staff advised that they had used the Ausroads Guide to Road Design Part 6: Roadside Design, Safety and Barriers.

One of the many attending the protest this morning was Brett Stevenson. Dr Stevenson questioned Council’s application of the Austroads Guide to Road Design Part 6 to assess the risk of the trees along the gravel road. He noted that this guide recommends that significant trees should be assessed in accordance with jurisdiction guidelines before removal is proposed saying "In the case of this gravel road, the trees are not on the road but are adjacent to it and are on private land zoned Rural 1 where the Native Vegetation/Local Land Services legislation applies". Council staff were asked by a contingent of Congo residents last Wednesday for details around the Risk assessments, how they were carried out and the resultant report that declared the trees such an immediate risk that work had to be carried out during a caretaker period, with no reference given to the local Traffic Committee, no community input sought and only ten days notice of intent to close the road to local traffic for a week. Ausroads suggests, to determine the risk of a tree that:

For rural roads, with tree lined edges, the risk is dependent on the traffic volume and the lateral offset to these hazards from the edge of the lane. For context the method used by Council was from a guideline for rural roads with speeds of 70kph and over - not for a 40kph road along a gravel section over private land that has no incidence of any accident involving a car colliding with a tree in fort years.

Above: The Ausroads Assessment Guidelines for trees are NOT designed to be used with a gravel road with a speed limit of 40kph. Of concern was the failure of Warren Sharpe to make mention, in his radio interview on ABC South East with Simon Lauder, that the section of road is signposted at 40kph as can be seen in the image below taken on the site last week.

Council staff were also asked for evidence that each tree had been assessed for wildlife habitat and impact. The answer was no. Their explanation for failing to undertake the required habitat inspections might be found in their letter to residents: "For the larger trees, as a precautionary measure, removal will be undertaken by working from the top of the tree. If significant hollows are identified with habitat, then works on those specific trees will be held over until the new year.

Regardless of whether any hollows are identified, Council has already agreed to work with

National Parks in the new year to increase the total number of hollows available within the

adjoining National Park, where this provides additional habitat value." By the above statement Council indicate they were going to discover if the trees had hollows as they cut the tree down from top to bottom. It is understood that Council no longer has an Environment Officer employed to carry out such assessments and that their last one left five years ago without the position being filled.

Above: "Why now Council? Why the rush to remove trees that have been like this for the past forty years? Why during caretaker period?" Photo: Wolfman & The Dazzler The tree contractor was on site ready with cherry picker, crew and chipper. When asked by the protestors if they could provide a copy of the letter of authorisation for the work from Council that advised that they had been told to make no comment at all. In normal circumstances landowners are required to have an independent assessment of all proposed tree removal carried out with a detailed report. Once approved a letter of authority is required to be provided to a contractor prior to any further action. Should it be found there is no report, nor any authority given the contractor and the landowner both face penalties. Protestors this morning suggested to the tree removal contractor that they seek legal opinion on where they stood should they become an unknowing third party to an illegal tree removal by Council using Schedule 88 to remove trees that are neither On or Overhanging. Local, Deb Stevenson, asked why the works were being undertaken now given that the road

along with the trees had been in place for over 30 years. The Eurobodalla Director of Engineering, Warren Sharpe, responded saying that Council wanted to get the works done before the Christmas holidays for safety reasons. Warren Sharpe said that the protestors were standing on private property and that the public only passed along the gravel road with the concurrence of the land owner. He said

that Council had sought legal advice which had confirmed the status of the gravel

road. He said that the land owner had asked that no public meetings be held on his

land and that the meeting contravened this request. He said that "where safety and liability issues were concerned, Councils method of consulting the community was to inform them, not to discuss the matter with them". Mr Sharpe said that Council had identified trees to be removed that were of risk to the community and the land owner adding that initially there were 16 trees to be removed, but Council had reduced this to 10 to mitigate the loss of trees and retain important ones. He offered an example of this by saying was Council’s decision to realign the road at the bend closest to the sealed section of Congo Road where crashes occur to take out trees on the creek side of the road, but retain habitat trees on the inside corner of the bend. When questioned about the number and details of the crashes one of the police present said he had attended a crash on the section of road. When asked if the crash involved a drink driver he went silent. He added that as the Emergency Management Officer in Council he had responsibility to consider emergency access to Congo and that in the interests of bushfire access and safety this section of road needed to remain open. He told the gathering and the assembled police that Council was willing to delay the works for 48 hours to allow for continued consultation with the community. Several of the protesters questioned this and asked for more time until a new council had been elected and could be consulted about the matter. Council have not been able to give an answer as to why trees just 100 metres away in the National Park section of Congo Road that were of the same size, the same overhang and even the same "lean" were not being actioned as well given the high risk that Council was associating, using an inappropriate assessment method, to the ten trees they had earmarked for removal. It what was an amusing occasion this morning the protest stopped with everyone stepping away from the road to allow the passing of the School Bus. Only last week the Council staff had justified their intent to trim overhanging branches saying that the low branches posed a risk to the bus rooftops. It was noted this morning that the bus actually clears the overhead branches by metres.

VIDEO: Vox Pops on the Congo Road protest

AUDIO: Congo Road Protest - Gillianne Tedder, and Warren Sharpe with Simon Lauder of ABC South East Radio, November 29th 2021 Recorded under Fair Dealing All copyright remains with ABC

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