Farmers may be able to block campers’ vehicles from crown-land water frontages

A bid by Victoria’s Andrews Government to open up crown land water frontages to camping, which has angered many farmers, has just hit a major roadblock.

Farmers fear campers will bring rubbish, risks and fire if they are allowed access to river frontages, via unused roads.

VICTORIAN landholders could use a legal loophole to block anglers’ and campers’ vehicles driving over unused roads on their properties to reach crown land river frontages, limiting access to foot traffic only.

The Andrews Government forced through amendments to the Land Act last November that allow members of the public to set up tents and campfires on up to 8287 crown-land water frontages, despite them already being licensed to adjoining farmers and other landholders.

But many of these river frontages are only accessible via unused roads over which many farmers hold 99-year agricultural licences, which do not specify what form of public access must be provided – foot, horse or vehicle.

Public Land Consultancy principal David Gabriel-Jones said while the public had a right to pass over an unused road, the laws were silent on what form that took.

“The mode of access is undefined,” Mr Gabriel-Jones said.

“If it’s been licensed as an unused road, it’s still a public highway, but that does not mean it has to be opened up to vehicles.”

“The term ‘public highway’ does not have the meaning that most people think of today. It’s based on centuries-old English common law, under which anyone is allowed to come and go.”

That claim is reinforced by numerous references to common law definitions, including the authoritative legal encyclopaedia Halsbury’s Laws of England, which states a public highway is simply “a way over which there exists a public right of passage”.

It means that while farmers must grant the public access to unused roads, they may simply provide pedestrian access via a stile or pedestrian gate, while blocking vehicle access.  

The revelation poses a major roadblock to the Andrews Government, as it tries to deliver on its 2018 election promise to open up its crown land river frontages to campers, amid opposition from thousands of farmers and other landholders concerned at the impact on livestock, vegetation and the risk posed by camp fires.

VRFish advocacy director Ben Scullin said ultimately the government could step in and cancel the agricultural licence a farmer held over an unused road.

But Mr Gabriel-Jones warned such an extreme move would force landholders to fence either side of the re-instated road and shire councils would have to then take responsibility for maintaining and upgrading it to for vehicles.

A Victorian Government spokeswoman said “people who use this land for recreation such as camping and fishing will have responsibilities to use the land respectfully, just as licence holders have responsibilities to ensure public access to public land”.

But landholders are already considering their options in regard to being forced to open up unused roads to vehicles.

Nagambie Morningside Park thoroughbred stud farm manager Will Rowsthorn, who has 4km of Goulburn River water frontage, said there were already public access points beyond the properties’ boundaries, without him having to open up his unused roads to campers’ vehicles.

“You can walk and it’s a mode of access,” Mr Rowsthorn said.

However the Victorian Fisheries Authority has already identified the property’s unused roads as access points for the public, as it spearheads the Government’s push to open up access to water frontages to the public.

But The Weekly Times is aware the Department of Environment, Land, Water and Planning has been reluctant to push Rowsthorns and other landholders to open up their unused roads, with key bureaucrats fearful of the impact vehicles and campers will have on sensitive crown land water frontages.

Mr Rowsthorn, like many other landholders, wants to know “who is going to manage access and camping”.

“We spend a lot of money controlling weeds and have some really expensive horses, so for me its hard to consider,” Mr Rowsthorn said.

“I understand people wanting to camp, but let’s find locations set out for them.”

Mr Gabriel-Jones said the Government had little choice but to go back to Parliament to seek further amendments to the Land Act if it wanted to draft regulations that clearly defined how and when the public could access unused roads.

As they stand, last November’s amendments the Land Act, which opened up water frontages to camping, failed to included clauses that grant the Government the power to make regulations over unused roads.

The Department of Environment, Land, Water and Planning has announced consultation on crown land water frontage regulations will begin on March 1, but Mr Gabriel-Jones said the process should be delayed until the Land Act was amended to cover unused roads.

“We need regulations clarifying the circumstances in which access should be allowed, and the mode of any such access”, he said.