A South Coast council must go back to the drawing board after its plans for a new northern access road to Congo were overturned. Photo: Region.
An attempt to reopen northern access to a South Coast village by making a new road has hit a speed bump after the plan was ruled illegal.
A part of the northern access road to Congo that runs through private property – Congo Road North – was closed by the landowner in November 2021, who cited potential liability issues, leaving Congo Road South the only road for those coming to and leaving the village.
In May 2023, Eurobodalla Shire Council (ESC) voted unanimously to support a proposed solution that included transferring ownership of a ‘paper road’ on the property from Crown Lands to the council, before redefining the road boundaries.
A ‘paper road’ is a kind of road that exists only on maps and has not been built.
At a meeting on 21 November 2023, councillors approved a survey plan showing the path of a new road and moved to lodge it with the NSW Registrar General for registration. However, the landowner sought a review of the decision.
In the outcome, handed down in late August in the NSW Supreme Court by Justice Stephen Rothman, council’s decision was overturned.
Justice Rothman found the part of the Roads Act relied on by council “does not provide the defendant with authority to do as it proposed to do”.
This meant the mechanism ESC used was invalid and the plan was thrown out.
Though the public previously had access to the gravel track, Justice Rothman found that did not mean it (legally) was automatically a public road.
“The most likely and probable scenario is that the track has been marked as a consequence of use rather than by any conduct of the plaintiff,” he said.
While preparing its plan for a new road to replace the gravel track, ESC had asked a surveyor, Michael James Spiteri, to come up with a route for a new road.
“On or about 3 April 2023, the defendant provided instructions to the surveyor, noting that, ‘When the survey is carried out, we seek your expertise to survey the widest road corridor possible but also a survey of 13.4 metres, which we have calculated would match the area of the paper road,'” Justice Rothman said.
Ownership of the paper road was transferred to ESC on 26 May, 2023 and had never been surveyed before 2023, according to the decision.
Justice Rothman found that this paper road is a public road.
On or about 9 August, 2023, Mr Spiteri prepared a survey plan with a proposed solution – a new road that took a different route through the property.
Justice Rothman found that while the new road “approximates the location and route taken by the track” the public previously had access to, the “two thoroughfares are significantly different”.
Ultimately, he found the boundaries of the proposed new road did not approximate the paper road.
Justice Rothman has also ordered that ESC pay the landowner’s costs, on top of council’s own costs of around $150,000.
Council’s General Manager Warwick Winn said the Supreme Court had provided clarity on the matter.
“It was important to test the potential of the paper road, and the court has now made a clear determination,” he said.
“Any future steps will be a matter for the new council to consider.”
In an email to Congo residents from early September, seen by Region, an ESC spokesperson said the hearing’s outcome meant progress on a solution would be stopped until after the September council elections.
“The executive team is preparing a detailed considerations paper for presentation to the incoming councillors. Any decisions regarding subsequent steps will be a matter for the new councillors,” they said.
“We understand there are mixed feelings in the community about this matter. We appreciate your patience as the new councillors work through this.”
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