Congo Road

Project: Exploring options to restore and secure northern access to Congo via Congo Road north.

Timeframe:

  • Ongoing since November 2021

Status: Preparing

Cost and funding: Surveying costs shared between Council and Crown Lands. Legal costs (approximately $150,000) and plaintiff’s legal costs for the Supreme Court hearing. Funding will need to be allocated for any further action.

Page last updated: September 2024

Latest news: September 2024

The NSW Supreme Court blocked our plan to reopen Congo's northern access, ruling that Council did not have the authority to approve the survey plan identifying a public road over the physical track. The new Council will decide the next steps.

Project details

We are working to: explore possible ways to restore northern access to Congo village.

Benefits to the community: certainty about access to and from Congo.

Background and purpose

A short portion of what is known as Congo Road north runs through private property. The landowner stopped public use of this section of Congo Road in November 2021 leaving Congo Road south as the village’s entry and exit.

Council has examined various options to restore access, including the possibility of the northern access remaining closed permanently. Congo residents have sought support from Council to find a way to restore the northern access.

Community engagement

In January 2022, Congo residents sought support from the new Council to find a way to restore the northern access to Congo.

At the Ordinary Council Meeting on 10 May 2022, Congo residents put forward suggestions about how to restore access and told councillors that not all options had been explored. Councillors agreed to explore all options and Mayor Mathew Hatcher asked for community members to formally submit their ideas.

We received 49 submissions, which represented seven general categories: restore existing access; acquire a northern alignment on the private land; keep Congo Road north closed; build a new road on Crown road reserve and National Park; build a bridge over Congo Creek for access via South Head Road; build a pedestrian and bike path through the property; establish new routes via the highway into Gumleaf Drive through private properties.

We reviewed these submissions and considered factors like land acquisition, road construction, environmental impacts, potential costs, National Parks and Crown Lands jurisdiction over various areas around Congo, and community preferences.

In November 2022 we invited Congo residents and people who made submissions to a workshop to explore six categories (the Gumleaf Drive idea was not included for discussion because private land ownership and significant environmental impacts make it unsuitable to pursue).

  • Attendees worked in groups to consider each of the six categories, leaving their comments and questions for Council staff and councillors to consider.
  • Overall, community members expressed their preference to restore the existing access through private land and strongly disagreed with keeping the road closed.

At the workshop, Council committed to:

  • work with Crown Lands to explore potential solutions to restore public access to the road
  • lobby Transport for NSW for upgrades to the Bingie Road and Princes Highway intersection
  • ongoing communication with Congo residents about progress.

Download workshop materials

Project updates

September 2024

  • The NSW Supreme Court has determined that the track crossing private land 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.
  • The Court prohibited Council from registering the plan with NSW Land Registry Services and undertaking any works required to open a public road over the track.
  • In addition to legal costs of around $150,000, Council is required to pay the plaintiff’s legal costs for the Court hearing.
  • The 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 the transfer.
  • We are preparing a detailed paper for the incoming councillors, who will consider any future steps.

February 2024:

  • The Congo Road matter was heard in the Supreme Court on 1-2 February 2024, with Justice Rothman presiding.
  • Evidence was filed in advance of the hearing and barristers for each party presented submissions over the two-day hearing.
  • Judgment has been reserved by the Court and we expect to wait at least a few months for a decision.
  • Registration of the road survey plan and any subsequent reopening of the proposed road cannot occur until the legal proceedings have been resolved.
  • We look forward to the Court providing clarity on the matter, especially considering this is the first time these provisions of the Roads Act have been tested in Court.
  • We appreciate the patience and goodwill of the Congo community while Council attempts to resolve this long-standing matter. We will advise the community of the hearing outcome as soon as we know.

November 2023:

  • Councillors voted at the Council meeting on Tuesday 21 November to approve the survey plan of the proposed road, and to lodge the survey plan with NSW Land Registry Services for registration. Three members of the community spoke to Council on the matter during Public Forum.
  • Council has lodged the survey plan with NSW Land Registry Services, however, legal proceedings have since been commenced to challenge the decision of Council. The matter has been listed for hearing in February 2024 and registration of the survey plan and any subsequent reopening of the proposed road cannot occur until proceedings have been resolved.

October 2023:

  • Public exhibition of the proposed road boundaries closed on 12 October. More than 80 submissions were received from members of the public.  All submissions will be reviewed by Councillors.
  • We are currently proposing a report to the November 2023 Council Meeting for Council to consider the submissions and make a decision about next steps.

September 2023:

  • The survey plan of the proposed road boundaries is now complete  and on public exhibition for community comment for 28 days, from 9am Wednesday 13 September to 10am Thursday 12 October.
  • Council has written to the private property owner and adjoining landowners to advise they can respond to the survey by way of a submission to Council. All members of the community can do the same.
  • Following the exhibition period, Councillors will considers any submissions and decide whether to approve the survey plan (with or without alteration). If approved, the plan is lodged with NSW Land Registry Services and once registered the boundaries identified by the survey plan become the boundaries of the public road.  The road will need to be graded and nine trees removed before public use.

August 2023:

  • Council causes a survey to be undertaken to identify the boundaries of the public road over the formed “track in use” under sections 18-21 of the Roads Act. The survey was completed in August 2023.
  • Ownership of the 'paper road' was transferred from Crown Lands to Eurobodalla Council in May 2023. Council is now the road authority.
  • Councillors have unanimously endorsed a plan that could transfer the ownership of the paper road from Crown Lands to Council. Residents and the Congo Community Association made presentations to Council ahead of the decision.
  • By completing this process the boundaries of the existing track in use would become the boundaries of the public road. Council would be the roads authority for the public road and public access would be restored.
  • Sections 18-21 of the Roads Act 1993 offers a path for Council, as the road authority, to define the boundaries of the paper road over the existing “track in use”.
  • Council has received legal advice that confirms it is open to Council to use sections 18-21 of the Roads Act 1993 to identify the boundaries of the public road, in accordance with the recommendations of Crown Lands.
  • Restoring public access and use of the road would require removing nine trees that would pose a liability to Council as the road authority - the same issue that caused the property owner to restrict access to the road in 2021.
  • Steps toward reopening the road are:
  1. Council applies to Crown Lands to transfer the undefined Crown Road to Council so that Council becomes the road authority.
  2. Council causes surveys to be undertaken to identify the boundaries of the public road over the formed “track in use” under sections 18-21 of the Roads Act.
  3. Notice of the proposed boundaries is published for public comment.
  4. Council considers any public submissions and whether to approve the survey plan, either with or without alteration.
  5. Council lodges the survey plan with NSW Land Registry Services for registration.
  6. Before use of the road by the public, the road would need to be graded and nine trees removed to meet Council’s insurance requirements.
  • We estimate this process might take six months or more to complete.
  • No compensation is payable for any loss or damage arising from the operation of section 21 of the Roads Act 1993. The Land Acquisition (Just Terms Compensation) Act 1991 does not apply because Council is not acquiring the land but is instead redefining the boundaries of the unsurveyed road reserve over the existing formed track in use.

February 2023

  • We wrote to Transport for NSW after the community workshop in November, asking them to prioritise upgrade to the highway/Bingie Road intersection. Transport for NSW responded in December, saying they are considering this intersection in the longer term and investigating opportunities for larger-scale treatments suitable to improve safety. Council’s General Manager has continued our advocacy to bring this work forward in his discussions with state election candidates.
  • We continue investigating potentially useful guidance provided by Crowns Lands about whether the Crown road reserve near the closed section of road could form part of a solution. Discussions with Crown Lands are progressing.

December 2022

  • NSW RFS Far South Coast branch has confirmed to Council that the road closure does not impact RFS service delivery. They advise RFS-supplied locks are in use by the private property owner. Council has also received written confirmation from the property owner's legal representative that RFS locks are used on the east and west boundary gates, and that in the event of evacuation the public would be granted access over the property in consultation with emergency services. This information, along with a NSW RFS offer to host a community meeting about bushfire preparation, has been provided to the Congo Community Association in response to correspondence.
  • Community workshop materials and residents' feedback are available to download from this page.
  • We are writing to Congo residents to let them know they can access the materials, and keep them updated on our meeting with Crown Lands and our advocacy to Transport for NSW.
  • Council staff met with Crown Lands representatives to examine whether the Crown road reserve near the closed section of road could form part of a solution. Crowns Lands provided potentially useful guidance and this is being investigated by Council. We will share progress on this matter with the community when information becomes available.
  • Council staff started discussions with Transport for NSW about prioritising the upgrade of the highway turnoff at Bingie Road. Correspondence has been sent to formalise those conversations and we expect a meeting with senior Transport for NSW staff soon. We will share progress on this matter with the community when information becomes available.

November 2022

  • Council hosted a community information session with Congo residents to explore the ideas put forward by the community.

June 2022 to October 2022

  • Council staff compiled 49 submissions received from the community, looking at factors like land acquisition, road construction, environmental impacts, potential costs, National Parks and Crown Lands jurisdiction over various areas around Congo, and community preferences.
  • These submissions fit into seven general categories:
    • reopen existing access
    • acquire a northern alignment on the private land
    • keep Congo Road north closed
    • build a new road on Crown road reserve and National Park
    • build a bridge over Congo Creek for access via South Head Road
    • build a pedestrian and bike path through the property
    • establish new routes via the highway into Gumleaf Drive through private properties (this category was not discussed at the November 2022 community workshop because private land ownership and significant environmental impacts make it unsuitable to pursue).

May 2022

  • Some Congo residents attended the 10 May 2022 Council Meeting and told councillors that not all options to restore access had been considered. Councillors agreed to explore ideas from community members, wanting to make sure all potential options are explored.
  • On Monday 16 May 2022, Mayor Mathew Hatcher wrote to all residents of Congo inviting them to submit their ideas by Sunday 5 June 2022.

November 2021

  • A section of Congo Road passes through private property. In November 2021, the landowner withdrew public access through the property citing potential liability issues.
  • Alternative access to Congo is via Congo Road south, off the Bingie Road highway intersection.

More information

For more information, please contact our Chief Operating Officer, Kellee Pisanos:

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