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Dogs Stay Out

Posted by James Neilson on 20 January 2020

Does Council have the power to approve the construction of an exclusion fence on a local government road reserve?

Background

The State and Federal governments support the Queensland Feral Pest Initiative Program which aims to control invasive plants and animals.  Under the Program, funding has been granted in respect of the construction of exclusion fencing to fence out wild dogs.

Issues

Exclusion fences are typically constructed on private property, usually on the boundary where the private property abuts a road.  But what if a section of exclusion fence needs to be constructed on a local government road reserve?  Does Council have the power to approve the construction of a section of exclusion fence on a local government road reserve?

Considerations

Relevantly, it is necessary to distinguish between:-

1. the construction of a section of exclusion fence on a road reserve, running parallel to private property; and

2. the construction of a section of exclusion fence where the exclusion fence crosses a road reserve.

Local governments routinely approve the construction of exclusion fences which cross a road reserve.  To do otherwise would defeat the purpose of the exclusion fence.  But what if the section of exclusion fence is to be constructed on a local government road reserve, but running parallel to a boundary with private property? 

Under the Local Government Act 2009, section 60(1), a local government has control of all roads in its local government area.  What does control of a road involve?

Relevant case law indicates that a local government has all the powers in relation to a road as it would have if it were the owner of the land comprising the road, but only to the extent that the exercise of such powers is relevant to the performance of its role as a highway authority.  For example, a local government, in its capacity as the statutory entity with control of a road reserve, could not authorise the erection of a shopping centre within the road reserve because that would obviously have nothing to do with the performance, by the local government, of its functions as a regulatory road authority.

Whether a local government may authorise the construction of a section of exclusion fence on a road reserve (running parallel to private property) will depend on the facts and circumstances associated with the relevant section of the exclusion fence. 

A determination must be made in each instance based on an objective consideration of relevant facts and circumstances.  Also, the determination must be made against the background of the Local Government Act 2009, section 9, which gives each local government the power to do anything that is necessary or convenient for the good rule and local government of its local government area. 

Relevant considerations would include the following:-

1. the total length of the exclusion fence to be located within Council's local government area, and more particularly, whether the construction of the exclusion fence, in its entirety, will benefit the community in Council's local government area as a whole;

2. the length of the section of fence to be constructed on the road reserve, for example, is the section of fence, in the scheme of the exclusion fence in its entirety, a relatively small component, the construction of which will close out, or complete, the construction of the exclusion fence as a whole;

3. to what extent will the fact that the section of fence has not been constructed defeat the purpose of the construction of the balance of the exclusion fence.

Objectively speaking, is it the case that:-

1. the section of fence which is to be constructed on the road reserve is a relatively small part of the exclusion fence as a whole; and

2. the construction of the section of the exclusion fence substantially contributes to the effectiveness of the exclusion fence as a whole? 

If the answer to these questions is yes, there is merit in the argument that the construction of the section of the exclusion fence on the road reserve falls within the scope of application of section 60 of the Local Government Act 2009.

How a local government approves the construction of the section of fence will depend upon whether the process associated with the construction of the fence interferes with the relevant local government controlled road or its operation, in the manner contemplated in the Local Government Act 2009, section 75, or not.  If there is interference, section 75 will come into play.  If there is no interference, the local government's local laws will, likely, come into play, and in particular, the prescribed activity of the alteration or improvement of a local government controlled area or road.

The Stock Route Management Act 2002 may also impact on the construction of the proposed section of fence in circumstances where the relevant local government road is part of the stock route network.

If you are still unsure and need advice on construction of an exclusion fence on a local government road reserve, contact James Neilson today, or call (07) 3243 0000.

James NeilsonAuthor: James Neilson
About: James is a partner in the firm's Commercial & Advisory Group.
Tags: Local Government Planning & Environment Legislation

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