A NSW Supreme Court judgement has prevented Eurobodalla Council's plan to re-open a northern access to Congo, a coastal village east of the highway near Moruya.
A short portion of the northern access road that runs through private property was closed by the landowner in November 2021 citing potential liability issues, leaving Congo Road south the single entry and exit to the village.
Residents sought support to reopen a northern access and Council worked with Crown Lands to find a solution that centred on a "paper road" that runs through the private property. Crown Lands transferred ownership of the paper road to Council, after which Council attempted to register a survey plan that identified the boundaries of the public road over the formed "track in use" in accordance with sections 18 to 21 of the Roads Act.
Success would have allowed the track to be re-opened under Council ownership.
The landowner commenced legal proceedings in November 2023 to challenge Council's decision and the matter was heard in the NSW Supreme Court in February 2024.
Justice Rotham's decision was handed down this month and determined that the track in use is not a public road, and that the boundaries of the new road identified by Council's survey plan did not sufficiently approximate to the paper road.
As a consequence, Justice Rothman concluded that Council did not have the legislative authority to approve the survey plan identifying the boundaries of a public road over the track in use.
The Supreme Court prohibited Council from registering the plan with Land Registry Services New South Wales and undertaking any works required to open a public road over the track.
The Supreme Court did determine that the paper road is a public road, which was transferred to Council in May 2023. From that date, Council assumed responsibility as the roads authority for the paper road. Council is examining the implications of this transfer.
In addition to legal costs of around $150,000, Council is required to also pay the plaintiff's legal costs for the Supreme Court hearing.
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.
"Any future steps will be a matter for the new Council to consider," he said.
"We are preparing a detailed considerations paper for presentation to the incoming councillors, and the land owners have also sought to provide information to the new councillors.
"We will continue to provide updates to the Congo community about any future actions."
