Eurobodalla Council has approved a Permit for a Gate across a public road on Coopers Island Road.
That means anyone wishing to enjoy the popular fishing spot on Tuross Lake will now encounter a gate across the Public Road that will require opening and closing.
The decision by a majority vote of Councillors is considered by many in the community to be poor, ill informed and "gutless".
After nearly four years of the community protesting that the road was a Public Road and, as such, should be fenced its full length with cattle not allowed to freely graze, without supervision, along its length the Council ignored the fact that the north western paddock is unfenced along its length adjacent to the Public Road and ignored that the cattle were often free to wander its length in breach of several laws.
A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road.
Council, in their failure to demand that the farmer apply a duty of care to his stock and fence the remaining section of road has now placed the legal onus on the community.
Council has advised that the gate permit they have now granted will "have certain conditions on the applicant regarding the closure of the gate however, all uses of the gate have a liability associated with failure to close the gate".
Council advises in their correspondence to a local resident:
"The Roads Act 1993 NSW section 132 Offences with respect to public gates states:
(1) A person must not cause any damage to a public gate or to any notice attached to the
gate in accordance with this Division.
(2) A person who opens a public gate must cause it to be closed again immediately after it
has been used.
(3) A person who fails to cause a public gate to be closed is liable for any loss or damage
suffered by the occupier of the land adjoining the public road on which the gate is
situated as a result of the gate having been left open.
The justification for the gate was the claim that a cow had, in the past, managed to jump over the cattle grid that is next to the Princes Highway at Trunketabella, north of Bodalla.
With the suggestion that a cow might jump the poorly maintained and unfit for service cattle grid that was located in a Council road reserve the Council allowed the farmer to erect the gate. Since then (nearly four years ago) there has been confrontation between the farmer and community over the fact that Coopers Island Road is a Public Road, maintained by Council, that provides access to a popular recreation spot on the Tuross River long used by first nations for cultural fishing and in more recent times enjoyed by locals and visitors alike.
The embarrassing point regarding the cattle grid is that it was revealed that Council has no standards for cattle grids installed on Public Roads. While they might be advised that the cattle grid was sub-optimal there was no method to measure if it was fit for purpose or adequately located and maintained.
As a result of the revelation it is now Council’s intention to have a draft Cattle Grid policy and a Public Gate policy ready for submission to the new Council. It is expected this will be in the first part of 2022. When ready it will go out on exhibition for public comment.
In approving the gate across Coopers Island Road and failing to alternatively require the farmer to fence the missing section of fence adjacent to Coopers Island Road (and to only move cattle along the road from one paddock to another under supervision) the Council has now caused the public to become legally responsible for the opening and shutting of the gate and to be legally responsible for any damage or otherwise that comes as a consequence of not shutting the gate properly.
