Budawangs nr Endrick R - Extinction of public right of way

[colinm]

"They hang the man, and flog the woman, that steal the goose from off the common.
But let the greater villain loose, that steals the common from the goose!" - Anon

TL;DR: The local land owner is attempting to close and own the roads permitting access to Round Mt and Endrick R walking tracks in the Budawangs. It is possible to object, and may be possible to prevent this.

I was planning a hike around Mt Quilty when I read some reports http://bit.ly/prj3s9 and http://bit.ly/pdOaBf suggesting that access via Michael Dowling's Hut was constrained. I've read other similar reports.

I wanted to clear up issues of access, so enquired of NPWS Nowra about the status of access. The woman to whom I spoke seemed to bridle when I mentioned the possibility of public rights of way, her response was "it's Private Property" (and you could hear the capitals in her speech.

So I contacted Palerang LGA, on 21/07/2011, and asked some questions about the rights of way. One of the officers there happened to mention that there's a pending application (pending since 2006) to purchase some of the roads around there.

I plotted the relevant cadastral information for the lots, and posted https://groups.google.com/d/topic/aus.b ... discussion to aus.bushwalking mailing list, asking for more information and giving what information I had, including the cadastral plot http://bit.ly/qVOCfJ and a graphic of the rights of way in question http://bit.ly/nvbwfI

I also spoke to the LPMA 'roads team' in Nowra who administer the Crown Lands Act wrt enclosing roads. I was given to understand that the applications in question by Geoffrey Norman Woodham lodged in 2006 are referenced GB 07 H 379 and GB 06 H 33 and handled by a case officer who is on leave until 22th August.

In view of the possibility of the whole deal being done, and the right of way extinguished forever, I sent the enclosed objections to the nominated contact, who acknowledged their receipt and inclusion in the file with the following "Your objections have been received, they have been placed with the file, the case officer ... is on leave until 22nd August, your objections will be looked into on her return." Note that the objections have been received and will be looked into ... this is significant in view of my next interaction with NPWS.

Yesterday, 26/07/2011, I spoke to the NPWS officer who is dealing with this area. My impression of him is that NPWS is sympathetic to preserving public access.

From my contemporaneous notes: I believe NPWS only became aware of this late in the proceedings, that they have negotiated a right of access for NPWS - but do not know if this extends to members of the public or authorised by NPWS. NPWS reported that no objections at all had been lodged, that the time available for objections to be lodged had expired, and that the application had been approved, and a letter of offer has issued. This is a curious representation, given what the LPMA told me, and it sounds as if LPMA has misinformed NPWS, or me, or possibly both.

I think objections are still timely, and even urgently necessary.

Given this potentially imminent irreversible state, I emailed the relevant Minister with an application under S56 of the Crown Lands Act asking him to create a public easement over the land comprising the public road, in case the road has been closed, but not yet sold. I hope this, alongside my objections, would at least forestall the enclosure long enough to do something about it.

It is unfortunate that the Act permitting people to close public roads and extinguish public rights of way doesn't require those people to publish their intent widely, just a letter to neighbors and a classified ad in the local rag will do it, even when the closure could impact people all over the state, as this could.

I was instructed by LPMA/LPI to email my objections (citing the application references GB 07 H 379 and GB 06 H 33, and polite reasons for objecting) to michelle.batten@lpma.nsw.gov.au who will then place them on file for consideration by the case officer. The relevant minister is Greg Pearce MLC, office@pearce.minister.nsw.gov.au http://www.parliament.nsw.gov.au/prod/p ... mbers/3041 and he may also appreciate being apprised of what people think about this, and the entire subject of covert road closure.

Colin.

[Dale]

Great post Colin and thanks for the heads up - that is quite the loophole.

I'll be sending a mail to Mr Pearce today.

[wildwalks]

Thanks Colin
Are you happy to post a copy of your letter. So that I comment on similar themes.
thanks
Matt

[colinm]

Hi Matt,

I don't want to post anything that could be used as or considered a blueprint.

In my limited experience, it's very much better if each communication comes from a new and unique viewpoint - that way each communication has to be considered on its own merits and addressed individually, rather than their being grouped together and dismissed as a whole. The objective, as far as I can see, is to make sure the people making the decisions have to actually really *think* about the consequences and make the right decision - that it's bad public policy to close access to a whole bunch of existing tracks in exchange for a probably paltry sum. Truth is, they probably didn't realise the impact and since the application wasn't widely viewed nobody had a chance to inform them of it.

Colin.

[kjbeath]

The problem is, the neighbour is the national park, so it is dependent on the ranger to deal with it. Some of them are excellent, are bushwalkers, and will attempt to keep access. Others basically aren't interested in bushwalkers and probably don't even know what is happening in their park.

[colinm]

We are all neighbors of this man, because the land he is attempting to purchase is a public road granting access to a public reserve (the national park.) The problem is not primarily that NPWS might have failed to act on it, it's that the people trying to walk into the park haven't been told that they have a public right of way, and haven't been told that the man who (I presume) put up 'No Trespassing' signs is trying to alienate it.

[PeterJ]

This is most disappointing news, as I was planning to go into the park by the Endrick River Road in early September.

One of links you mention suggested walking south to avoid the private property. Any thoughts on that option?


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I am here: http://maps.google.com/maps?ll=-42.857995,147.276868

[colinm]

You can still get access to the Vines via the Redground track to the north of Mt Quilty - NPWS have made a formal track. You can also get access via Alum Creek fire trail to the more western parts of the park.

What's missing is a direct/formed route from the Alum Ck carpark to the Round Mountain and Endrick River tracks - for that you can either trust your GPS (or bring along a surveyor ) and try to pick the public rights of way between the farmer's land, or you can bush bash from Alum Ck track to Round Mountain Track.

[colinm]

Update: The LPI (was LPMA) is still going through with the sale (if it can) but is negotiating with NPWS to place an easement for foot traffic over the road reserve (or other road reserves) as a prerequisite of the sale. In other words, I think LPI has recognised a real public utility to maintaining access, and is taking good-faith steps to preserve it. I also think they're now better informed of the kinds of issues which can arise due to road closures near national parks, and NPWS is taking steps to be more in-the-loop in these matters.

I wanted a Crown Lands Act S56 easement, but LPI're insisting that's contrary to policy. I think a walking easement would be sufficient, although it represents some reduction in the public's right (making it depend upon NPWS authorisation, instead of an absolute right.) I think, should NPWS accede to administering such an easement, then this represents a reasonable compromise.

Further work would need to be done to *mark* the right of way over the land, but I suspect that'd be pretty simple.

I will keep everyone informed as to real progress (the relevant .gov.au people are just talking in intentions at the moment, no real action has yet been taken.)

[wildwalks]

Good work Colin
Thanks for keeping us in the loop.
Matt

[davidp]

Anyone heard any more abot this proposal to stop foot access to Mt quilty via Enderick river ?
This is also a great route to ride pushbikes.
I agree it is very important to maintain foor and pushbike access in this area.
Is there any recent news on this ?

[PeterJ]

When I was there in late September this year, I noticed a for sale sign on the gate. It would be good if this property could be purchased and made into a reserve that allowed bushwalker access. I have been trying to pass on the suggestion to Graeme Wood who I understand is a keen bushwalker and bought land in Tasmania to preserve it for conservation purposes.

As for my walk, I will post a report shortly.

[colinm]

Good progress on the public rights of access around Michael Dowling's Hut.

LPI have agreed with NPWS that any sale of the crown road reserve will be conditional upon an easement for foot traffic, which NPWS would then administer. This means that if the farmer decides to buy, he has to allow people to walk on the crown road reserve, to get access to the national park.

Note: The crown road reserve is *not* the formed road across the farmer's land - that belongs to him and to walk across it would likely be trespass. The crown road reserve is the land around the outside of his property which was set aside to make a road (sometime) and which gives the public an unfettered right of access to the park along that route. In the past people may have walked along his road and that may have annoyed him, but I think this is mainly because people didn't realise (why would they?) that there was an extant and usable route over public land. I expect that this new route will become usable, over time, and that problems with trespass and access should be resolved with that.

If the farmer decides to buy the land currently forming the road reserve he will have to permit access for foot traffic (ie: bushwalkers) and NPWS will have to at least mark the route of the easement so it can be followed without trespass in the following terms: "Full and free right for the body in whose favour this easement is created [ie: NPWS], and every person authorised by it [ie: bushwalkers], to go, pass and repass on foot at all times and for all purposes without animals or vehicles over the land indicated herein as the servient tenement [ie: the crown road reserve]."

If the farmer decides not to buy the land currently in the road reserve then it remains public property administered by LPI: anyone can walk it, and (I am told by LPI) there is no objection to marking the route along it. In fact, if he does not decide to buy the land and doesn't seek an enclosure permit he has to fence alongside the road reserve and thus it should be possible to follow that fenceline as a route.

The farmer used to have an 'enclosure permit' which enabled him to close off the road reserve, and use it for grazing or whatever, but apparently that has lapsed, so (in theory) if he doesn't buy the reserve he will have to fence the road reserve off from his property. There's every chance he won't buy the land under these new terms of public foot easement. In that case NPWS doesn't administer the route and LPI does, and LPI can be asked to instruct him to put in the fences.

Either way, then: there currently is a right of way (albeit badly marked) which doesn't follow the formed road across his land, but skirts it to the west and north (if I recall correctly.) The right of way for foot traffic will be preserved in either possible outcome. The route will be able to be marked either by fencing or by the NPWS (or, indeed, by bushwalkers with trail markers/tape/etc.)

So, it's a good outcome so far. I'll have to keep monitoring the state of play to ensure that whoever does end up controlling the land or the easement also permits the route to be marked, but apart from that it looks as if the right of way will be preserved and can be used.

[colinm]

When I was there in late September this year, I noticed a for sale sign on the gate.

It's been for sale for a while, apparently.

It would be good if this property could be purchased and made into a reserve that allowed bushwalker access. I have been trying to pass on the suggestion to Graeme Wood who I understand is a keen bushwalker and bought land in Tasmania to preserve it for conservation purposes.

The property has a whole bunch of buildings on it - a dwelling and the (restored) original hut. I imagine it might be a bit of a problem to have a reserve or similar with buildings on it: who's going to maintain them, who's going to be sued if the building collapses on a school party, etc etc. Additionally, such 'improvements' would probably price the property out of the realm of consideration.

As long as people can legally and safely skirt the property to gain access to the NP beyond, access is possible and benevolent people/societies can save their cash for other things.

[davidp]

Actually this is a very pretty bit of bush and would be good for a conservation group to purchase. It is currently a big "whole" in the park
Maybe there is a group of people out there who might be willing to purchase it , subdivide it and keep the bush bits as reserve and sell the other bits back with a covenant
Do you know which real estate company is listing it ?

[davidp]

thanks

[PeterJ]

Sorry, I didn't take note of the agent. I seem to recall it just had a person's name and number to ring to view.


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I am here: http://maps.google.com/maps?ll=-42.857303,147.277420

[kevj]

Please excuse my ignorance. But exactly where is the Redground trail? I would like to ride my MTB from Sassafras to Nerriga via Newhaven Gap and Endrick River trail. Once I approach the private property that ha Michael Dowling's Hut on it where do I go/turn?

[davidp]

there are two ways to ride a mtb from nerriga to quil;tys via endrick river
A -- one road goes right past the old stone hut ( as discussed above) It is the more direct and best for walkers but as it goes within 100 m of the restored hut the farmer will see you
b -- another road marked on the map diverts well to the north crossing the river twice It still has the same access issues ie there is a public access route that is not marked but the actual road is partly on private land but as it runs out of view from the hut it is the perhaps the best route for cyclists (but is far too long for walkers )

regarding the old stone hut -- i was told he never actually got council permission to "restore' or 'modify" the historic hut which some history buffs were upset about . Years ago when i saw it it was quite a ruin . ,

[cdg]

My brother bought a property that was very rundown, and was adjacent to a national park. He discovered that an unofficial road into the national park had been created through his property. As he didnt want his cows to wander off he fixed the fences it and put in new gates. After the third or fourth event where his cows wandered off after idiots opened it and didnt close them, he put a lock on it. Rounding cows up in a national park is not easy, and having his cows in there is against the law. He put a keep out sign on the gates. Some wiseacre cut the locks, and pulled the sign off. He understands that it was an easy way into the park, but the official access and road is only 2 kilometres away!

[davidp]

One can be sympathetic and understand both points of view

Perhaps an option is to mark the official (but hidden) public walking route with signs and a bit of a rough walking track. I am sure most walkers would be happy if gates were locked as it keeps the cars out. Walkers usually prefer to walk on a subtle narrow winding track than on a wide exposed road anyway. A 3km slog along a car road at the end of a pleasant three day walk is definitely best avoided.

[kevj]

there are two ways to ride a mtb from nerriga to quil;tys via endrick river
A -- one road goes right past the old stone hut ( as discussed above) It is the more direct and best for walkers but as it goes within 100 m of the restored hut the farmer will see you
b -- another road marked on the map diverts well to the north crossing the river twice It still has the same access issues ie there is a public access route that is not marked but the actual road is partly on private land but as it runs out of view from the hut it is the perhaps the best route for cyclists (but is far too long for walkers )

regarding the old stone hut -- i was told he never actually got council permission to "restore' or 'modify" the historic hut which some history buffs were upset about . Years ago when i saw it it was quite a ruin . ,

Thanks davidp, Coming the other way (ie reaching the gate to the private property coming from Nerriga) where does one go?

[PeterJ]

We did the walk from Endrick, but avoided going through the property in question.


I posted the write up here

[north-north-west]

I suspect that something similar has happened to Kennedys Road at Yaouk. I tried getting in there for a loop on Lone Pine and Yaouk tracks a couple of months back, but the road was gated with a *&%$#! great sign from the Crown Lands Dept saying it was now a private road. The horse camp near Bung Harris Creek looked like it hadn't had any use for some time.
One can still walk or ride in, of course, but the loss of vehicle access does make it harder.

[davidp]

This extinction of right of way is a disturbing trend ..... especially when it is done without consultation.
Would it be possible for all such proposed road closures to first be notified to the federation of Bushwalking Clubs? or something similar. ?

[colinm]

I've just been informed of the current state of negotiations, and it seems they will lead to an acceptable outcome. Here's the map I was given regarding the easements LPI are going to require of the lot owners. The upshot is that LPI aren't prepared to sell the road reserves without the owners agreeing to an easement for foot traffic.

Note that the easements don't necessarily (or always) follow the formed roads - some trail marking would presumably be required.

quilty-ROF.jpg (60.31 KiB) Viewed 31650 times

[davidp]

will this allow bicycle traffic as well ?

[colinm]

I'm no expert in these things, but I imagine (a) it doesn't provide for bicycles, but (b) who would really object? and (c) the rights of way aren't formed tracks, and may never be formed tracks, so a bike may struggle to get there.

I also don't know if bikes are allowed by NPWS in that area, you'd have to ask them or someone who knows.

[colinm]

I received the following email from Crown Roads "As you are aware this office has been investigating possible closure of Crown roads near Morton National Park at Nerriga and negotiating access requirements with National Parks & Wildlife Service. The Crown roads at Nerriga of concern to National Parks (i.e. the roads shown by yellow colour in the diagram below) will not be closed at this stage."

Also enclosed was the attached map/photo showing the public rights of way:

Map of roads near Endrick

image004.jpg (62.73 KiB) Viewed 30972 times

So that's done and settled. Well done everyone.

[davidp]

Well done
It is important to remain vigilant however as this is an important access route for walkers