Paynter calls roads legislation review
STATE Opposition leader Matthew Guy has described the Bass Coast Shire Council’s Supreme Court legal action against a Wonthaggi farming family as an “appalling waste of public money”.
The council ordered the Hollole family to remove pipes, water troughs, fences and a cattle grid after claiming management of part of the farm that was slated as a roadway 100 years ago, but never built.
Bass MP Brian Paynter highlighted the issue in Parliament recently, and has called on the Minister for Planning, Richard Wynne to review the laws in relation to unmade roads on historical subdivisions.
He has also requested an amendment to the Local Government Act 1989 (Vic) and the Road Management Act 2004 (Vic) so that these types of road are adequately reflected in legislative framework.
Roads legislation in Victoria is complex.
While some roads are managed by local councils, others are managed by the state government.
A key challenge for municipal authorities charged with the onerous task of asset management is to first know which type of road they are dealing with.
Is it a road under the Local Government Act, the Road Management Act or is it a public highway at common law?
If a road does not fall into any of the categories above, then it is likely to be what is colloquially known as a ‘paddock road’ and the freehold title of the landowner.
These ‘roads’ will appear on a landowner’s certificate of title but have never been made or used for public purposes.
They are ordinarily the result of historical subdivisions and they are known as ‘paddock roads’ because they exist on farms in rural areas.
The issue is particularly significant for the Bass Coast where there are a number of ‘paddock roads’, the result of old subdivisions that were created at the turn of the century to facilitate the development of the township of Wonthaggi.
The matter was first bought to Mr Paynter’s attention by his former electorate officer, Ms Eve Hollole when the council issued a road occupation permit to a neighbour in respect of her 87 year-old mother’s farm.
The Hollole family were not given notice of the permit, title searches were not carried out and surveys were not required.
They first became aware of the permit when their neighbour started grading a road through their front paddock.
Since that time, the council has continued to appropriate ‘paddock roads’ on the Hollole property, including her 100 year old driveway.
It has also ordered her to remove fencing, piping and water troughs as well as her cattle grid which is currently preventing cattle from escaping onto the Bass Highway.
Mrs Hollole has lost tenants because they were unable to operate their business with certainty and at the expense of ratepayers, the council has also instituted Supreme Court proceedings against Mrs Hollole for refusing to comply with its demands.
Mr Paynter said that the Hollole farm is just one example of where roads legislation in Victoria is proving to be unworkable.
“While the facts of the Hollole case are undoubtedly alarming, on a more general level it seems to me that there is a fundamental lack of understanding across the sector about the status of these types of roads. The position needs to be clarified,” Mr Paynter said.
In a speech to parliament earlier last month Mr Paynter said that the legal anomaly was “causing reputational harm to local councils and protracted litigation to the detriment of ratepayers. It also has the capacity to significantly devalue the value of rural grazing land across Victoria”.
Mr Paynter said the situation was “untenable” and that local councils, as well as ratepayers, need to be able to proceed with certainty when it comes to dealing with their assets.
Mr Paynter has also called on the Minister for Local Government to clarify the legal status of the roads on the Hollole property.
As it currently stands, if a local council acts beyond power and illegally appropriates a title holder’s “paddock roads”, it is then up to the individual landowner to challenge the decision in the Supreme Court and most people do not have a spare $100,000 for the privilege of having to do so.
Leader of the Opposition and former Planning Minister Matthew Guy has also thrown his support behind the Hollole family, labelling the case “an appalling waste of public money”.
“In the case of Mrs Hollole’s farm, it is clear that Mrs Hollole does not have the means to defend herself against a council with comparably deep pockets.”
Shadow Attorney General, John Pesutto MP has commended Mr Paynter for raising the issue in Parliament and noted that the broader issue has been raised in the past, including by the Law Institute of Victoria.
Mr Pesutto also cited the need for a legislative review.
“Ideally what we would like to see is some sort of ‘carve out’ or exclusion for ‘paddock roads’ so that local councils and state authorities are unequivocally clear when it comes to jurisdictional issues, particularly in the area of planning and permits.
“I have informed the Hollole family that I will be speaking with the Victorian Attorney General, Martin Pakula this week.”
When asked about the impact the case has had on her family and her elderly mother, Ms Hollole said that her mother’s suffering has been immeasurable.
“It is morally reprehensible that the council is using its ratepayer-funded deep pockets to drag an 87 year old pensioner through the Supreme Court of Victoria on account of its own failings.
“It is also nonsensical to require the removal of our driveway fencing and cattle grid because certain officers within the council do not seem to comprehend that farms (in particular those which abut the Bass Highway) require working fences and cattle grids to be in place to ensure the safety of the general public, including the safety of the children on the circa 19 school buses that pass our front gate every week day.
“A number of very serious allegations have repeatedly been raised with the councillors and I can hope that their lack of interest in the case is not politically motivated.”
Ms Hollole is employed as the Risk Coordinator for South Gippsland and Baw Baw shires as part of a shared services arrangement between the two councils.
It is understood that the matter has been referred to the Independent Broad Based Anti-Corruption Commission (IBAC) for investigation.