Court lawyer Mark Stanarevic, and principal lawyer Dr James McConvill of James McConvill and Associates congratulate Kelvin Flanders on filing a writ against South Gippsland Shire Council in the Supreme Court. The case is due to have its first conciliation meeting in March.
By Danika Dent
SIMILARITIES with The Castle aside, Fish Creek’s Kelvin Flanders will finally have his day in court.
After at least 15 years of letters, various lawyers, Freedom of Information requests and lost opportunities, Mr Flanders is taking South Gippsland Shire Council to court.
The council has hired the leading law firm representing local governments in Victoria, Maddocks, in the Supreme Court fight with Mr Flanders.
The case, if pre-court mediation fails, is expected to be heard in March or April.
The case revolves around a strip of land – a driveway.
Mr Flanders contends South Gippsland Shire Council has illegally acquired a strip of land on his farming block by calling it Shields Roads, Fish Creek.
Google Maps, VicRoads and council’s public road register have the road labelled as Shields Roads, turning into Roughead Road, Fish Creek, which is a dairy laneway, leading to turnout paddocks.
Mr Flanders has been trying to resolve the issue since he first found out about the road that goes through his property.
Mr Flanders has a suitcase full of correspondence between his lawyers and council going back to the 1980s, when he first bought the land.
“It’s a common driveway that they’ve tried to take over,” Mr Flanders said.
“It was a fluke that I found it out, otherwise it just would’ve gone through.
“The titles I’ve got, which are legal documents, are inconsistent with what council’s saying.
“I went to council to try and get it sorted and was told I don’t own the land in question, even though I’ve got the titles.”
Mr Flanders has engaged James McConvill and Associates to take on the council in the Supreme Court.
“We are arguing that in labelling the road Shields Road as a public road, council has acquired this part of Mr Flanders’ land without following the proper procedures, and without providing Mr Flanders with due compensation,” principal lawyer James McConvill said.
“Council has utilised the property as a public road without going through the proper process.
“Under the Land Acquisition and Compensation Acts, there is a set procedure to follow including notice of acquisition, an objection period and if it proceeds, just compensation.
“From what we can find out through various letters and Freedom of Information requests, council hasn’t done either of these things at this point of time.”
Road to nowhere
Complicating the issue is that neither Mr Flanders nor his lawyers can understand why a road is needed.
“I’ve got an agreement in place with a neighbour who uses the driveway to get to their house, and that’s been in place longer than all of this,” Mr Flanders said.
“It’s a common driveway, but council is saying it’s a public road.”
The ‘road’ leads to Mr Flanders’ dairy farm and a disused homestead.
Under the maps available, it connects to Roughead Road, which is gravelled cattle laneways leading to and from the dairy.
“There’s no need for the ‘road’ to be part of the titles,” Dr McConvill said.
“It’s all very vague as to why it was put on the public road registration.
“For all intents and purposes, it’s just a driveway.
“There has been a lot of going back and forth between Mr Flanders, council and lawyers – for over 15 years, and it’s gone on long enough.
“That’s why we issued the statement of claim and we are now awaiting the shire’s lawyers’ response.”
Mr Flanders hopes the Supreme Court case will take the road off the public register and provide him with compensation.
For all the years the road/driveway has been in contention, Mr Flanders said he has performed all maintenance and has missed out on opportunities to extend his farm.
“For me the road stops right here,” he said at the cattle grate and fence.
“It’s had a massive impact on me, my opportunities and my family.
“It may not seem important, but during this whole thing, everyone’s made money off it and I’m left with this mess.
“I’ve lost out on opportunities to expand further because everything’s inconsistent.
“As I understand it, titles are legal documents.
“If what council has done is legally consistent, then it’s dishonest.
“A principle’s at stake here.”
South Gippsland Shire Council was contacted for comment but said as the case is now before the courts, it would not comment.