DAILY QUOTE: "Fishing is much more than fish. It is the great occasion when we may return to the fine simplicity of our forefathers" ~ Herbert Hoover
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Harpeng Road, Wivenhoe PocketIn January 2012, a temporary road closure application for part of Harpeng Road was lodged because of environmental concerns and unauthorised access across the privately owned land - see Attachments 1 and 2 (Lot 3 on S31231 and Lot 55 on CC893). A number of objections were received to the proposed road closure from the public. The basis of the objections was that the public had been using Harpeng Road to gain access to the Brisbane River for recreational activities for many years and there is no other access area for this stretch of river that is able to be used. The existence of the fence obstructing access was also raised.Somerset Regional Council objected to the road closure on the basis that the road was required for access to the river.A number of letters supporting the proposed road closure were also received citing the damage caused to the riverbank by the public and untidy state of the site due to the rubbish left behind.The application was refused in January 2013. Due to the ongoing dispute regarding the existing fence reducing access to the river, departmental officers conducted an inspection of the site in on 14 June 2013 and found that:- there is an unlocked gate on Harpeng Road at the top of the bank. The steep dirt track down the bank of the river would be treacherous in wet weather and difficult in the best of conditions to negotiate. Access can be gained by foot. - the fences constructed by the landowners appeared to be on the correct alignment as an extension of their fences along their properties boundary on Harpeng Road. - landowners advised that people are cutting their fences and effectively trespassing on private property to find a less steep route down to the waters edge. - due to the difficult terrain, vehicles become stuck on the bank and the public then seek assistance from the landowners. - the council can put a locked gate at the top of the bank for safety purposes under the Local Government Act and allow access to the river by foot only. - the current fence and gate provide a safety factor to stop people driving down the steep bank and then having difficulty getting back up again without trespassing on the adjoining properties.On 18 June 2013, the department’s position was reconfirmed being:1. Section 13A(4) of the Land Act 1994 (the Land Act), allows adjoining owners to a non-tidal boundary watercourse to exercise a right of access and grazing over the bed and banks of the adjoining boundary watercourse, therefore an adjoining owner may fence the riparian areas of the watercourse that adjoins the boundary of their land. 2. Harpeng Road extends to the Brisbane River watercourse boundary only and that the Somerset Regional Council has confirmed that the road does not extend across the watercourse to the road area adjoining Lot 55 on CC893. It is the department's view that the fences within the bed and banks of the watercourse are in the appropriate location from the boundary of the adjoining lots (being Lot 3 on S31107 and Lot 115 on S31231) to Harpeng Road and that public access to the watercourse from Harpeng Road is available for fishing, recreational purposes. Where from hereThere is ongoing contention that the adjoining owner should not / does not have the right to construct a fence across a watercourse which subsequently restricts the public’s access and use of the river.Section13 A (4) (a) of the Land Act defines the ‘owner’ in terms of s20 (3) of the Water Act 2000 which defines who is authorised to take or interference with water without a water entitlement. The general intent of s20 (3) is that the owner of land adjoining a watercourse has an as of right access to the water for stock and domestic purposes. The Land Act then states that the ‘owner’ as defined by the Water Act may use this land for grazing secton 13(4) (b) .In the Harpeng Road case, the owners of Lot 3 on S31231 and Lot 55 on CC893 - have access rights for the entire width of the Brisbane River between their two properties. As the Land Act allows for grazing on this land, a fence that links the two parcels and prevents stock from straying outside the authorised area is considered reasonable and legal.The Land Act also states under section 13(4) (c) that the owner may commence a trespass action against a person using this land. Therefore, the owners are entitled to commence trespass proceedings against any person using this land without their permission.On face value, access to the Brisbane River along Harpeng Road still exists and based on the available imagery, the land between the owner’s properties does not appear to contain any actual water. The Land Act does not allow for permits to occupy on non-tidal watercourses. However, in this context, the owners rights prevail in accordance with section 13 of the Land Act and no further authorisation is required. Land Act 1994 - Division 3 The non-tidal environment13A Land adjacent to non-tidal boundary (watercourse) or non-tidal boundary (lake) owned by State(1) If land has a non-tidal boundary (watercourse), other land that adjoins the boundary and is on the watercourse side of the boundary is the property of the State.(2) If land has a non-tidal boundary (lake), other land that adjoins the boundary and is on the lake side of the boundary is the property of the State.(3) Subsections (1) and (2) apply despite the alienation of land by the State.(4) A person (the owner) who may take water under the Water Act 2000, section 20(3)—(a) may exercise a right of access for the owner, the owner’s family, executive officers, employees, agents and stock over the part (the adjacent area) of the watercourse or lake that is the property of the State and that adjoins the owner’s land; and(b) may exercise a right of grazing for the person’s stock over the adjacent area; and(c) may bring action against a person who trespasses on the adjacent area as if the owner were the registered owner of the adjacent area.(5) If the adjacent area is being used by the State for a purpose under the Water Act 2000—(a) subsection (4)(a) and (b) applies only to the extent exercising the right does not interfere with the State’s use of the adjacent area; and(b) subsection (4)(c) does not allow the owner to bring an action against a person acting on behalf of the State.
Someone will end up drowning in the annabranch and in my opinion the landholder, the Somerset council and those who administer the land act will be to blame. And a PFD will not save you in there either.
Has anyone thought to smack a warning sign on the entrance to the annabranch ?Just putting a question others may ask out there
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