Eve Hollole at her family property, located just outside of Wonthaggi, where a fierce legal battle is being fought over a disused public road. G165114
FARMERS, be warned.
The land on which your livestock is grazing could be taken away from you without notice.
That’s the threat hanging over the Hollole family who’ve farmed land just outside Wonthaggi for more than 100 years.
The land at issue is on an old subdivision, drawn up in the late 1800s, which had not been acted upon until last year when a neighbour started grading a track through the Holloles’ front paddock.
The neighbour applied for a permit in relation to the Hollole family’s land, allegedly claiming that he owned the road and needed it to access his stockyards from higher ground.
Despite the protests of the Holloles, the Bass Coast Shire Council has done nothing to help them.
In fact, it was the council that granted the neighbour the permit for the work in the first place.
Eve Hollole’s family is furious that it was allowed to happen.
“On December 1, 2012, our neighbour approached my mother and informed her that he had obtained a road occupation permit from the Bass Coast Shire Council to construct a road through her front paddock, which would enable him to access his stockyards from higher ground,” Ms Hollole explained.
“He then went outside and proceeded to grade a large road through her paddock.”
Ms Hollole acted immediately, hiring a fencing contractor to fence off the affected area. It has since been returned to pasture, although the threat remains.
“Our family has used this paddock solely for agricultural purposes for the past 115 years – the farm has been in our family since 1899 and the road in question is on our Certificate of Title.”
After several in-depth discussions with council officers and after the Holloles challenged the validity of the permit, they were told to apply for road discontinuance as soon as possible, which they did.
“Alarmingly, once the road discontinuance process had been commenced, the council tried to use its powers under the road discontinuance process to sell part of the road – a portion of our farm – to the neighbour.”
Ms Hollole said the council was made aware that the neighbour allegedly provided false and misleading information to the council on his permit application, which she said she has since obtained through Freedom of Information (FOI).
“He informed the council that he owned the road,” she claimed.
“Council staff also failed to carry out a title search and did not require the land to be surveyed.”
Although the council has now decided not to proceed with the road discontinuance process, according to Ms Hollole, it continues to claim jurisdiction over the site, adding the disputed roads to the Public Register of Roads in October this year.
It has also ordered Ms Hollole to remove the fences, gates and water trough on the disputed roads and threatened to charge her for the cost of removal.
“Perhaps it is a minor point but how does the council then propose to prevent cattle from escaping onto the Bass Highway?” she asked.
“I am fairly certain that the removal of fences and the gate would not be the best idea”.
Stopped in its tracks
The matter almost came to a head on Friday, December 19 when Ms Hollole said council attempted to send its contractors to the property to remove the farming infrastructure.
If they had shown up on the day, however, they would have found a very resilient Ms Hollole parked across the cattle grid, good-naturedly but defiantly sitting on the bonnet of her car.
Wonthaggi Senior Sergeant Steve Gibson said police were contacted prior to the day with concerns there may have been a breach of the peace.
“But there was no need for police to attend,” he said.
“The issue of people going out there to survey the property that day was resolved.”
Snr Sgt Gibson added that the only reason police would have gone to the property, due to the land rights matter being a civil issue, would have been to prevent any breach of the peace.
Ms Hollole, a practicing lawyer, said any landholder whose property included disused road reserves or subdivisions was at risk.
She said her family’s case shows farmers could lose significant portions of their land, transferred or sold to third parties by the council.
“In its broader application, if this decision is upheld, it has significant ramifications, not only for our family, but for many farmers throughout the Bass Coast Shire,” she said.
“The net effect is that farmers are now at risk from having significant portions of their farms transferred or sold to third parties, or otherwise appropriated by the council who, in the case of land sales, will be paid market value (or higher) for the land.
“It does not provide for farmers to be compensated for the loss of their farm land and the revenue the council stands to make from these land sales is far from insignificant.
“The council’s position is that it retains the right to issue permits to third parties without notice, or to otherwise appropriate the land from land owners in respect of any part of that farm which comprises an unused road reserve.”
Ms Hollole said the council does not have the power to arbitrarily alter the property rights and interests of established farming families.
“This policy is clearly illegal. A basic tenant of administrative law is that a person whose interests will or are likely to be adversely affected by a decision has the right to be given notice and to be heard before that decision is made.
“It also provides that (in this case) a local council cannot use its legislative power for an improper purpose.
“Further, in our particular case, from a legal perspective, the council has never had the right to control our roads which I suspect could be the case for most farms in the Bass Coast.
“It begs the question, how many of these unused roads on farms have the council already sold back to farmers or to third parties? How much revenue has the council made from these land sales over the years?
“In our view, it is clear that a number of senior officers do not have the necessary skills, attributes and experience to be making key policy decisions; it is also unequivocally clear that these decisions should not have been delegated to the administration.”
Last year, Ms Hollole said she provided a brief to all councillors in the hope the decision would be called in and “a sensible commercial arrangement would be reached”.
After receiving no assistance from the councillors, the Hollole family then contacted the Victorian Ombudsman who has confirmed that it will be commencing an investigation into the matter shortly.
“This is not just about our family,” Ms Hollole continued.
“It is about the well-being and good governance of our community.
“It’s about holding those in power to account, and ensuring that the decisions they make are lawful and for proper purposes.
“I grew up in the Bass Coast – maybe it’s Mabo, maybe it’s the vibe, but to me, it’s worth fighting for.”
The council’s Governance and Organisation Development general manager, Mark Brady, confirmed the road had been added to the Roads Register on October 30.
“Council has legally sought to have the road available for public use given its status as a road and the needs of other adjoining land owners,” Mr Brady said.
“Unfortunately our requests have not been complied with and therefore, council has no other option than to consider further legal avenues to make the road available.”
Asked whether the council had met with the Hollole family to discuss the issue in the past year, Mr Brady said it was now a legal matter.
“Council had earlier meetings with the Hollole family; however given the legal nature of the matter, dealings are now being undertaken with legal representatives.”