Road Closure at Hayman Retreat, Craigburn Farm
At its meeting held 14 November 2017 Council approved the re opening of Hayman Retreat at its intersection with Craigburn Road, Craigburn Farm as shown below:
(1) That in accordance with Section 359(2) of the Local Government Act 1934 and Clause 3 of Part 3 of Schedule 1 of the Local Government (Accountability and Governance) Amendment Act 2015, Council hereby resolves to revoke paragraph 4 of its resolution passed at the Full Council meeting held on 22 February 2011 as outlined below:
a) ‘(4) That pursuant to Section 359 of the Local Government Act 1934 Council resolves to exclude all vehicles from a part of Craigburn Road Blackwood being an area 1 metre in width and 30.5 metres in length the southern boundary of which being between Point 2 (281471.62E 6120546.04N) and Point 3 (281501.64E 6120549.55N) shown on the attached survey plan with the exception of:
- Government owned vehicles driven by employees or agents of the government in the course of their employment;
- City of Mitcham owned vehicles driven by employees or agents of the City of Mitcham in the course of their employment;
- SA Water vehicles;
- ETSA Utilities vehicles;
- Country Fire Services vehicles;
- Telstra vehicles; and
- Police vehicles.’
(2) That the revocation notice is published in the South Australian Government Gazette.
(3) That to avoid any doubt, it is the Council’s intention that as from the taking effect of this resolution:
a) there will be no operative exclusion of vehicles under Section 359 Local Government Act 1934 that would prevent a vehicle from entering or exiting Hayman Retreat onto that part of Craigburn Road that is east of the exclusion of vehicles outlined in paragraph 5 of Council’s resolution of 22 February 2011 (as amended on 10 December 2013); and
b) Council’s exclusion of vehicles under Section 359 of the Local Government Act 1934 outlined in paragraph 5 of Council’s resolution of 22 February 2011 (as amended on 10 December 2013) is to remain in operation.
(4) The Chief Executive Officer be authorised to take all steps necessary and incidental to carrying out the resolution contained in paragraph 1 into effect.
(5) Subject to compliance with the Road Traffic Act 1961, the Chief Executive Officer be authorised to take all necessary steps to re-open Hayman Retreat at its junction with Craigburn Road (as from the taking effect of this resolution) and, in doing so, shall maintain a single lane width restriction (as per current configuration) and introduce a give way treatment that provides priority to vehicles exiting from Hayman Retreat into Craigburn Road
The process of illegally reopening Hayman Retreat at its intersection with Craigburn Road has now been completed and vehicles can now travel through this intersection in both directions.
Road Closure, Grevillea Way, Blackwood
In June 2011 Council considered a report on the Road Closure for Grevillea Way in Blackwood.
Unless specifically requested by Council to revisit the potential development of a formally constructed local road to current engineering standards, or alternatively revisit the potential closure of the unsealed section of Grevillea Way, the administration will continue to manage an unsealed road in accordance with the latest best practice manuals and relevant Australian Standards.
History of Grevillea Way
Council, on advice from the Ombudsman, has rescinded its motion of 25 March 2008 to close Grevillea Way in Blackwood. The Ombudsman, in his final report, has recommended that the process to close the road is contrary to law and a reasonable period of time should elapse before recommencing road closing procedures.
The unsealed road section of Grevillea Way does not meet current unsealed road standards for safe use by motorists. The existing unsealed pavement, despite regular grading, is in poor condition, the alignment is steep and there is poor sight distance on approach to its junction with Gum Grove. The junction also poses a hazard as it has a poor sight distance and requires unsafe turns to enter from Gum Grove. Whilst Council will continue to maintain the unsealed section of Grevillea Way on a regular basis, it is not maintained to standards for general public vehicular use. Signs posted at the ends of the unsealed section will advise motorists of the hazards of using the unsealed section of Grevillea Way to ensure their safety.
Ombudsman's Final Report
The Ombudsman has formed the view that, before the Council deliberates on the issue of closing the road in question, the statutory consultation process specified in the Road Traffic Act should have been carried out.
Council Response to the Ombudsman's View
It appears that the premise for your provisional view rests on the resolution made by the EESC Committee on 11 March 2008 and endorsed by Council on 25 March 2008 and whether this resolution constituted a final determination to close the road or merely a proposal to close the road. I draw your attention to your summary of relevant facts which at Clause 21 states "On 27 March 2008, Council began the formal procedure pursuant to Section 32 of the Act, by writing to the residents who had responded to the first round of the community consultation process." This is highly relevant, as it confirms our view that Council began the formal procedure pursuant to Section 32 (S32) of the Road Traffic Act (the Act) on 27 March 2008, not before...We recognise, as you have expressed, the formal process pursuant to S 32 of the Act must be complied with by Council. It is our view that Council was undertaking the formal process pursuant to S 32 when this matter was brought to the attention of your Office. As we were awaiting your consideration of this matter, the process under S 32 of the Act was not brought to conclusion.
It was always intended that the results of the consultation pursuant to S 32 and other relevant information would be reported to Council for a final determination on the closure. This process was communicated to the public, including at the public forum on Grevillea Way... You have formed a provisional view that the recommendation put and resolved by the EESC on 11 March was to close Grevillea Way. We assert this was a proposal to close the road, not a determination on closing the road. A final determination on whether to close Grevillea Way is yet to occur...We presume this provisional view expressed by you is based on the premise we highlighted in paragraph two of this correspondence. It appears that your view is based on the timing and wording of the resolution of Council and your view that Council viewed the requirements of the Act as mere formalities.
This is not the case; Council used the resolution to commence the requirements under S 32 of the Act. Council has never held nor expressed a view that the formal requirements of the Act were mere formalities. Indeed to the contrary, we view the process under S 32 of the Act as central to a subsequent determination as to whether or not the road is closed. Indeed, we say that the large presence of community members at the public forum and the strong opinions expressed by those members, both pro and con the closure of Grevillea Way, illustrates that our community held a genuine belief that the final determination was yet to be made. This belief was absolutely valid.
It is our view that Council consulted with the community well beyond the requirements of S 32 of the Act and we contend that Council should not be penalised for engaging with the community at an earlier point or to a greater degree than the formal consultation process required. We rely on the maxim that the law sets only the minimum standard. The fact that Council wrote to residents who had responded to the earlier community engagement, simultaneously with commencing the formal process pursuant to S 32 of the Act, should not be construed as anything more than responding to residents out of courtesy to update them on the status of this matter...It appears that you are suggesting that the consultation required by S 32 of the Act should occur before any proposal to close a road is put to Council. There seems to be confusion as to what a proposal is in respect to road closure and what is a final determination to close a road.
We have not viewed these as interchangeable terms. It is our view that Council needs to support the commencement of proceedings pursuant to S 32 (a proposal) whereas the decision that follows from the consultation is the determination of Council in respect to the road closure. It is our view that a motion for a determination has never been put or resolved by Council in respect to this matter. Indeed, this is clearly evident by the fact that Grevillea Road remains open to this day despite Council having resolved the proposal...You express a view that S 32 requires Council have an open mind about a road closure when it first considers the matter. S 32 requires Council to have an open mind as to whether or not road closure will result from the consultation under S 32 of the Act. It would be nonsense to suggest that Council can reach a proposal to close the road on a random or ad hoc basis.
There will always be some impetus to commence the S 32 process. Council administration would not commence the S 32 process without the support of a resolution from Council. We say this is addressed by drawing a distinction between a proposal to close a road and a determination on road closure.
To suggest the S 32 process should be undertaken by Administration without the support of Council is unrealistic and our Elected Members would be justifiably concerned if their Administration commenced the S 32 process for closing a road without their direction...It appears from your final comment that you are suggesting a reasonable period of time should lapse before Council recommences the road closure process pursuant to S 32 of the Act. We would appreciate clarification as to whether your Office considers there is currently a Council resolution to propose the closure of Grevillea Way or not. We remain mindful of the competing community interests on this issue and Council's need to use limited resources and community assets in the most efficient, effective and constructive way. To date, considerable time and resources have gone into bringing this matter to the attention of our community. If the process is delayed further, it will be crucial that we are clear as to where you say Council should recommence and when you say a reasonable time has lapsed to recommence, this process. We would appreciate a specific statement to this effect.
However, this view has not been accepted by the Ombudsman, who has recommended the following course of action to Council:
45. As the council has considered the matter relatively recently through a process that has been shown to be contrary to law, my recommendation is that a reasonable period of time should elapse before the council recommences road closing procedures pursuant to Section 32 of the Act if it wishes to pursue the proposal to close the road.
46. The council should, in my opinion, rescind the current unlawful resolution about the road closure that it passed on 25 March 2008 and any other current resolution about the closure of this road.
47. The council should take its own legal advice about the timing and nature of any new process which it wishes to follow.
48. The council should inform all relevant ratepayers and others with whom the council has communicated about the closure that, for the present, the council is taking no further action to close the road, but that the matter may be considered again at some time in the future.
The next step
At the Full Council meeting of 27 January 2009 Council resolved:
That the Grevillea Way Project be deferred for a period of at least 12 months from 27 January 2009.
That appropriately worded signs be installed to replace existing signage at both ends of the unsealed section of Grevillea Way to ensure that all efforts are made to advise and warn the community of the change in road surface conditions and the steep gradient of this section of Grevillea Way.
That a notification process be undertaken to inform the local community including information in the local newspapers, Mitcham Matters and on the Council website regarding the appropriate use of the unsealed section of Grevillea Way.
That Council continues with the regular maintenance program, regular inspections and grading of the unsealed section of Grevillea Way, as required.
That the local residents be advised of the Council decision regarding this matter.
That the Ombudsman be formally advised of Council's decision regarding this matter.