a) The sealing of all roads and parking areas not currently sealed. This would include that part of the existing Community road not already sealed and the existing car park behind the central Marina building as well as the newly created Community roads entering east and west from the central Marina building. It is uncertain if the new 1.2 hectare carpark is to require sealing but regardless the Community would be responsible for the cost of whatever treatment was required.
b) The installation of security boom gates on both sides of the central Marina building.
c) Landscaping of the Community property to a standard to be determined.
d) Dredging and widening the Marina river entrance.
…
Gary Bares estimates the cost of works at between $500k and $1m.
215 On 31 March 2005 Mr Briffa, then manager of the Eastern Neighbourhood Association, wrote to its members concerning parking of vehicles and trailers "on the grassed areas and access roadway" for prolonged periods. The letter stated that "these areas are designated for drop off and pick up only, vehicles should only gain access to these areas for approximately 15 minutes at any given point in time. The above rules are designed to provide easy uninterrupted access to boats 24 hours a day".
Mr Doyle
216 Mr Rodney Doyle leased moorings from Mr Watson for four years from 1996 after arranging to have his boat transported from Lake Eildon for that purpose. Before leasing, Mr Doyle told Mr Watson that one of the problems at Lake Eildon was that you could not get your car to the houseboat. Mr Watson said words to the effect:
Here you can drive your car to your houseboat. That's the good thing about the mooring. You've got access to it at all times.
217 That response was an important factor in Mr Doyle's decision to move his houseboat from Lake Eildon. During the time of his lease Mr Doyle was always able to drive to his mooring.
218 Recently Mr Doyle sold his houseboat (but kept his mooring) with a view to building a new houseboat. However, he has delayed the production of this houseboat because, without vehicle access to the mooring, he sees little point in having a boat there. He regards that as a shame as his children and grandchildren love the houseboat.
219 On a normal trip on the houseboat, Mr Doyle takes, among other things, food, slabs of beer and soft drink, clothes, 3 x 20 litre containers of water and ski gear. The ski gear includes three slalom skis, two wakeboards, two kneeboards, inflatable tubes, life-vests and wetsuits.
220 Until the access tracks to the moorings were blocked, Mr Doyle transported these things to his houseboat by driving his car down to the moorings. After access to the moorings was blocked, Mr Doyle used the boat ramp to put his ski boat in the water, and then tethered up his ski boat. He then unloaded gear from his car into the ski boat, drove the ski boat to the houseboat, unloaded the gear, drove the ski boat back the boat ramp and repeated the process. He then drove his car to the carpark and parked it, walked back to the ski boat, drove to his houseboat, tethered his ski boat to the back of the houseboat, and sailed the houseboat onto the river. The process was difficult and dangerous, because there were other people using the boat ramp. Mr Doyle considers himself lucky to have the ski boat to cart his gear, which most people do not have. Most people have to carry all their gear from the carpark to the boat.
221 Mr Doyle's wife has ongoing knee problems and has had four operations on her knee. Whenever his wife has to walk the 400 metres from the boat ramp to the houseboat, she has struggled. At night, it is almost impossible for her to do this walk. The Doyles have relatives in the area and often have night-time functions to attend. On occasions, after attending functions at their relatives' houses, they have paid for accommodation in the area, rather than staying on the houseboat, because it was impossible for Mrs Doyle to access the houseboat at night.
Mr and Mrs Hannay
222 Mr and Mrs Hannay first became aware of Deep Creek Marina in 1996 when they were handed a marketing brochure by the vendors of a houseboat they were purchasing, referred to at [154] above. This brochure stated "Berth owners have guaranteed access by road and by water to their mooring", and directed all enquiries to Mr Watson. In 1997 the Hannays moved their houseboat to Deep Creek. At first they rented a mooring in the Eastern Neighbourhood, which at that time comprised only 11 moorings. Before this move, Mrs Hannay sought and received confirmation from Mr and Mrs Watson that there would be accessible road access to the Hannays' mooring. Mrs Hannay also asked whether they would be able to park right next to their boat and Mr Watson replied:
The access is available at any time but I don't like cars parking right next to the boats. I want that area to be a picnic area; so, after you've unloaded, you can park on the gravel road up the top near the sheds.
223 The Hannays enjoyed vehicle access to this mooring for the years that they held the lease. There was never an issue about their right to vehicle access during that time.
224 In 2000, the Hannays purchased a berth in the Eastern Neighbourhood from the developers. Prior to contract the vendors' solicitors wrote to the purchasers' solicitors, stating:
We advise that in relation to your request for the sealing of the road to the site to be completed prior to settlement, we advise the Development Consent 18/90 from the Shire of Murray General Condition 13 sets out that the internal roads and parking areas are to be sealed with bitumen when the restaurant, motel and cabins are developed. We confirm that our client is prepared to place crushed rock on this road prior to the construction of the bitumen road.
225 Special condition 13 of the executed contract provided that, prior to settlement, the vendors would at their own expense and in a proper and workmanlike manner place crushed rock on the access road to the mooring berth. In my opinion, this conduct by the developers would be reasonably interpreted as a representation that the Hannays were entitled to use that access road. That is how Mrs Hannay understood it.
226 Prior to settlement of the contract, Mr Watson extended the lower eastern access road adjacent to the eastern end and there turned it up to join the upper eastern access road. There was also a road connecting the lower and upper access roads about half way along.
227 On an average trip to their houseboat, Mr and Mrs Hannay take 40 litres of water in 2 x 20 litre containers, two bags of wood for their heater, three bags of groceries, a slab of beer, clothes and other things. Since the developers blocked the access roads with concrete bollards in 2006, they have had to be selective and not take things they otherwise would have taken. On a recent trip they had to make six trips between their car and boat, in the rain, to transfer the things they needed. On that trip they ran out of gas, so Mr Hannay had to walk to the supermarket, pick up a gas bottle weighing about 18 kilograms and bring it back on a trolley over muddy, uneven and sloping grounds. Prior to the barricades going up, the supermarket owner would drive down, pick up gas bottles and replace them. Mrs Hannay considers this to be much safer.
228 To access their mooring, the Hannays still walk on the road they previously drove over, even though vehicle access has been blocked. This is because the community and neighbourhood access strips are partly blocked by several trees, become very boggy in the rain, are unlit, and there are holes in the ground.
229 When the Hannays required a mechanic to repair their houseboat motor, the mechanic had to walk in from the carpark three times, carrying his tools. This time was factored into his invoice.
230 Mrs Hannay's parents are in their early 70s. When they come to the houseboat, there is now a considerable amount of stress involved for them in getting to it. On one occasion, Mrs Hannay's father insisted on helping her bring gear from the car to the boat, causing him to take an angina pill at the outset to help deal with the stress.
Mr Fry
231 Mr David Fry became aware of Deep Creek in about 1995 when he had a houseboat moored at the nearby Merool Caravan Park on the Murray River. He and other houseboat owners at Merool received a letter from Mr Watson inviting them to shift their houseboats to Deep Creek for six months.
232 On his first inspection of the Deep Creek Marina Mr Fry observed, and liked, the vehicle access to the boats. He rented a mooring from Mr Watson for six months and, before the end of that period, purchased a mooring from Mr Watson in the Central Neighbourhood. He subsequently bought two more moorings and leased them out. He has since sold those two moorings but has retained his first mooring which is only four moorings from the boat ramp. His mooring is located just prior to the concrete barricade. Mr Doyle's mooring, together with moorings 27, 28 and 29 in his neighbourhood, are the only moorings that have vehicle access now that the access road has been barricaded.
233 On a houseboat trip, Mr Fry would normally take two car fridges, a 20 litre container of fresh water and one bag of clothes per person. He has observed the inconvenience caused by the loss of vehicle access for mooring berth owners on his side of the marina. They now drive their cars to the front of his mooring, park there temporarily while they make trips back and forth from their car to their boat, carrying everything they need for their weekend or holiday. He has also watched people loading things into their speedboats and using their speedboats to cart things backwards and forwards - including gas bottles - which he does not think is safe. He has observed people with elderly parents who have difficulty getting down to the moorings.
234 As noted above, in May 2005 Mr Fry received a letter from Andreones Lawyers in Sydney acting on behalf of Mr Bares, Mr Robertson and Mr Watson, stating that his boat was too long for his mooring and was trespassing into Lot 16. This upset him because Mr Watson had originally invited him to bring his boat to Deep Creek, he had rented from Mr Watson for six months before buying three moorings from him, and now Mr Watson was a party to an allegation that he was trespassing. At about the same time he received another letter from Andreones, alleging that he was trespassing by parking his car near the mooring. He had his solicitors respond to these allegations of trespass.
Mr Sidebottom
235 In 1999 Kelvin Sidebottom acquired an option to purchase a mooring from the developers in the Eastern Neighbourhood when the mooring was complete. It was about 12 months before that mooring was complete. In the interim the developers allowed him to keep a houseboat that he had acquired at their mooring in the Western Neighbourhood. Throughout this 12 month waiting period, Mr Sidebottom had road access to the mooring in the Western Neighbourhood.
236 In March 2000, when construction of the mooring in the Eastern Neighbourhood was complete, Mr Sidebottom's wife signed a contract to purchase that mooring from the developers on trust for herself and Mr Sidebottom. Mr Sidebottom had no doubt that vehicle access would always be allowed to the new mooring.
237 Since buying the mooring in the Eastern Neighbourhood Mr Sidebottom has driven his car to it at least 200 times. He considers that it is just too far to carry everything needed for a houseboat holiday without vehicle access. His wife and he would not have bought the mooring without vehicle access.
238 When Mr Sidebottom required a plumber on his boat, he and the plumber had to carry the plumber's equipment to the boat. As the width of the strip on which they were legally allowed to walk was only two metres wide, and had obstacles along it, it was nearly impossible to walk along it, let alone carry tools. For this reason, they were forced to walk on land outside the two metre strip (on Lot 16) in order to get to the boat.
239 Mr Sidebottom has a friend who has multiple sclerosis. The friend rarely gets to go on holiday so Mr Sidebottom had his boat professionally renovated to make it wheelchair friendly. However, since the developers put up concrete bollards preventing road access, Mr Sidebottom has not been able to get his friend to the boat.
240 Mr Sidebottom also used to invite guests from Rotary (of which he is a member) to his houseboat. He is 72 years old and most of his Rotary friends are of a similar age. When access was blocked, it became embarrassing to tell his friends that they had to park behind the restaurant and carry their things all the way to his boat. For this reason he has not had Rotary friends to the boat since access was blocked.
241 On a regular trip to his boat Mr Sidebottom takes 4 x 20 litre drums of fuel, food, bedding and gas, among other things. He used to buy gas from the restaurant, load it into his utility and drive it down to his boat. Since access was blocked, he has not been able to get gas to his boat.
242 Mr Sidebottom's mooring has electricity running to it. More than once, in heavy rain, the switch box at the top of his pole has had water in it - blowing the overload switch. When an electrician came to fix the problem, the electrician first turned the power off at the main switch box, which is located on the high ground owned by Lot 16 behind Mr Sidebottom's mooring. This means that to work on the electricity supply, the electrician first had to trespass on Lot 16 to turn off the power.
Mr Armstrong
243 Peter and Christine Armstrong leased a mooring in the Eastern Neighbourhood for about 12 months until February 2003. During this time, they were always able to drive their car to their mooring: they would drive to the boat, unload and park on the left hand side of the road next to the mooring.
244 The Armstrongs enjoyed their leasing experience. So, in 2003, they decided to purchase a mooring in the Eastern Neighbourhood from Anthony Watson and Sammy One Pty Ltd. Their mooring is one of the furthest from the carpark.
245 On an average short trip to their boat, the Armstrongs take 40 litres of fuel in jerry cans, 2 x 20 litre containers of water, three grocery bags of food, a dog bed and a bag of clothes. On longer trips these amounts increase. Since the access tracks to the moorings have been blocked, Mrs Armstrong normally needs to make one trip from the carpark to the boat carrying provisions, and Mr Armstrong two or three. The Armstrongs usually walk on the track on which they had previously driven, because it is flat and away from the water. As there is no lighting in the area, these trips are particularly difficult at night.
246 From the commencement of their lease in 2002, Mr Armstrong went to his neighbourhood association meetings. In mid 2002 his neighbourhood association agreed with Mr Watson to install an irrigation system on Lot 16 behind the eastern moorings on either side of the access track. The neighbourhood association put poles along the access track to stop cars parking on the new irrigation system and damaging it, although they allowed an area to park on the left hand side of the lower track. This work was done by the mooring owners at working bees and some thousands of dollars from neighbourhood association funds was spent on the fence and irrigation system. In late 2003 the developers removed the poles.
247 In 2004 the developers, who were developing their adjoining land (Lot 23) as an "extension" of Deep Creek Marina, built a temporary dam across the end of the Deep Creek Marina. This dam ran across to the "island", allowing the developers to drive machinery down from the upper access road behind the eastern moorings, across the dam and onto the island. The developers did not seek and were not granted permission from the neighbourhood association to build the dam. In building the dam, the developers shifted boats from the moorings that they built across, including the Armstrongs' boat without their permission, several times during the construction of the dam and once or twice after construction of the dam was complete. The dam was removed many months later.
248 If the Armstrongs had known that they would not have vehicle access to their mooring, they would not have bought it.
Mr and Mrs Hickman
249 From early 2004 to November 2005 Mr and Mrs Hickman leased a mooring in the Central Neighbourhood on its eastern limb. In 2005 Mrs Hickman purchased the mooring. Their mooring is eight moorings east of the hotel and supermarket, about four moorings along from where the developers blocked the lower eastern access road with a concrete bollard in 2006.
250 Between 1998 and 2003, before leasing their mooring, they visited the marina a couple of times and saw the houseboats moorings there with convenient vehicle access. During the period of their lease they always had vehicle access to their mooring.
251 Even though their houseboat is closer to the concrete bollard than most, the Hickmans have been badly affected by the closing of the access way. Vehicle access is necessary in order to get many large things on the houseboat from time to time: for example, televisions, barbecues, lounge suites, fridges, beds and mechanical gear.
252 The Hickmans also have three young children. When they go on the houseboat, they need to take food, drink, clothes, ski gear and fuel. Mrs Hickman has recently had a knee reconstruction and has therefore found it more difficult to walk to the mooring than otherwise.
253 Since the developers fenced off the wharf in 2006, to get to the hotel for dinner the Hickmans now need to climb the many timber stairs at the front of the supermarket. This is particularly hard at night and quite slippery when wet. They used to walk across the wharf and up the few steps at the rear of the wharf to the hotel, which was of a much gentler gradient. The new route has been particularly difficult for Mrs Hickman because of her knee problem.
254 Mr Hickman is very concerned about the difficulty any emergency service would have in getting to the mooring if needed. His greatest concern is his 77 year old father-in-law, who visits their mooring regularly, and who has a plastic knee and recently had heart by-pass surgery. He cannot walk very far without becoming short of breath. Mr Hickman is also concerned that if there was a fire at the marina, it would spread quickly because of the gas and fuel stored on houseboats. It would be critical to get fire services to the marina quickly.
255 Just as Mr Hickman would not buy a house without vehicle access, he would not have bought their houseboat mooring if it did not have vehicle access.
256 In 2007, Mr Hickman was kicking a football with his children next to his mooring when a man well known in the area as a former boxer told him to get off the property as it was private property. It appeared to Mr Hickman that this man was being paid by the developers to patrol its boundaries. The Hickmans would not have purchased their mooring if they thought they would not be able to play with their children on the bank.
Mr Leorke
257 In 2005 Mr Andrew Leorke bought a mooring in the Western Neighbourhood. It is five moorings away from where the marina meets the river. Before buying the mooring, Mr Leorke saw that there was a road to his mooring, and that mooring owners in the area would drive to their moorings and either park at the side of the road or drive back to the carpark. He also saw that there was a timber staircase coming down from the access road to his mooring.
258 In making his decision to purchase a mooring, Mr Leorke assumed that he would have legal access to his mooring along the roadway. He would not have purchased his mooring if he had thought otherwise. After he bought his mooring, and until the road was blocked, he used the road to access his mooring by car.
259 On an average trip to his houseboat his partner and he take food and five or six bags of clothes for themselves and their three children. Recently, he has had to carry all this in relays from the carpark. Mr Leorke walks along the access road, because the neighbourhood property along the waterfront does not have good accessibility. Mr Leorke now finds it particularly difficult to get rubbish off his houseboat. The easiest way to get a gas bottle to the houseboat is to transfer it on a small boat - which he thinks is dangerous.
260 Before the developers fenced off the wharf in front of the hotel, Mr Leorke used to walk through that area to get to the supermarket. It was pleasant to walk around the marina along the waterfront.
261 Mr Leorke's building company has been asked by the manager of the Central and Western Neighbourhood Associations to repair sections of the boardwalk on their neighbourhood property. However, now that the developers will not allow access along the road, there is no way of getting the necessary equipment along the strips of neighbourhood and community property.
Mr Muschinski
262 In mid 1995 Mr Thomas Muschinski received advertising from Mr Watson encouraging him to move his houseboat to Deep Creek. That material, (discussed above at [154]) included the statement:
Berth owners have guaranteed access by road and by water to their mooring.
263 He then received more advertising material in relation to Deep Creek which included the prominent statement:
All facilities can be accessed by road or from the river by houseboat or speed boat with public docking facilities available to visitors.
264 Mr Muschinski relied on that advertising material when, in September 1995, he decided to buy a mooring in the Central Neighbourhood. He would not have bought a mooring if he had thought he would not have access to it by road, and the advertising material reinforced his belief that he would have such access.
265 Mr Muschinski's father is 84 years old and requires a wheelchair or walker to move around. Prior to Christmas 2006, when the access ways were blocked, he was able to take his father to the houseboat by driving him right to the houseboat. He would very much like to be able to take his father on his houseboat again but, with the access roads blocked, he cannot. His father would not be able to walk the 200 or so metres to Mr Muschinski's mooring over the rough ground.
Mr Taylor
266 Mr Michael Taylor's company purchased a mooring in the Central Neighbourhood in October 2000. After receiving the trespass allegation letter from Andreones Lawyers in May 2005 (discussed above at [171]), Mr Taylor felt intimidated into accessing his mooring by driving along the access track to the stairs, unloading people, food, bags and other provisions down the stairs, then driving back to the carpark and walking back to the mooring. He considered this situation inconvenient and aggravating, because he felt robbed of what he felt was his right to park next to his mooring.
267 Since late 2006 when the developers blocked the access track altogether, his family and he have been put to great trouble and inconvenience. Among the guests they regularly have on their houseboat is his father, who turned 87 in September 2007, their five adult children and three grandchildren. This means that a lot of people, food and clothes need to be taken from the carpark to the houseboat mooring for each trip.
Mr Paine
268 In about March 2003 Mr Leon Paine rented a mooring in the Western Neighbourhood from Mr Watson for five months. During that period he was always able to drive his vehicle to the mooring, unload supplies and park at the mooring. In 2003 he purchased the easternmost mooring in the Eastern Neighbourhood. Until the developers denied access in 2006, he would drive his car right down to his mooring. Mr Paine's mooring is over 300 metres from the concrete bollard placed on the lower eastern access road in 2006. The carpark behind the hotel is a further 180 metres away.
Mr Smith
269 As discussed above at [146] - [148], in 1994 the original developers sold 12 mooring berths to companies owned by Mr Smith. Mr Smith has since sold six of these moorings. From the day his companies purchased the moorings until the time when the developers blocked access, there was vehicular access to the moorings.
270 Mr Smith also said that it used to be possible for visitors to the moorings to arrive from the Murray River in speedboats and moor at the public wharf. In his view, having the wharf closed to the public is unworkable. He testified and I accept that: "the big thing that was talked about from early on in the piece was the idea of putting up a hotel and a shop there and attracting people in from the river". He always saw the scheme as a tourist development.
271 Mr Smith is of the opinion that the barricading of the vehicle access tracks and the fencing off of the wharf have significantly devalued his companies' moorings. Had the scheme been presented at the outset on the basis that there was no vehicular access to the moorings, he would "not have touched the moorings with a bargepole".
Mr Williams
272 In October 2005 Mr Norm Williams bought a mooring in the Eastern Neighbourhood. Before doing so, he made four trips to the Deep Creek Marina. On each trip he had been able to access all areas of the marina in his car. Prior to purchase Mr Williams had seen the vendor parked next to the mooring and he simply assumed that access to his mooring would not be restricted.
273 Since vehicle access has been cut off, access is a big problem. All his family's clothes, food and water, among other things, have to be carried from the carpark to the mooring. Mr Williams says that if he were to try to do that and stay within the two metre community and neighbourhood property strips, which he understands he is legally restricted to in accessing his mooring, he would probably fall in the water. The two metre strip is too narrow and impractical, and there are big trees in the way. This means that he still gets to his mooring by walking on the access roads.
274 In April 2007 Mr Williams was at his houseboat with his two sons aged 7 and 8 when the younger son had an accident, resulting in his clothes catching fire. In order to take his injured son to hospital, he first had to walk to his car carrying his injured son while his other son used a bottle to pour water over his younger son's back. His mooring is one of the furthest from the carpark. He drove his younger son to Echuca Hospital from where he was airlifted to Melbourne with full thickness burns to 10 percent of his body. Mr Williams feels that the extent of his son's injury may have been reduced if he had been able to get him into a vehicle and therefore to medical assistance more quickly. With the access roads blocked, Mr Williams can see no way that emergency vehicles can now access the moorings.
Mr Buchanan
275 In June 2004 Mr Gary Buchanan's company purchased a mooring in the Central Neighbourhood. The mooring is five west of the hotel. In addition to a houseboat that Mr Buchanan and his family keep on the mooring, they have a speedboat that they often take on houseboat trips. They launch this speedboat at the boat ramp.
276 When they originally bought the mooring, the Buchanans would walk directly along the waterfront between their mooring and the boat ramp. That is, they walked along their neighbourhood property, through an area of community property, across what they thought was the public wharf, across the walkway to the front of the supermarket and down onto the boat ramp.
277 Since the developers fenced off the wharf, it is more difficult to get between their mooring and the boat ramp. This is because they now need to go around the wharf by climbing up the retaining wall onto Lots 14 and 15 (the hotel and supermarket), up and across past the fuel bowsers next to the supermarket, down a wooden staircase to the walkway at the front of the supermarket, along the walkway and down onto the boat ramp.
Mr and Mrs Clinch
278 Lindsay and Rita Clinch own a mooring berth in the Eastern Neighbourhood. When they initially purchased into the scheme, Mr Clinch assumed that the gravel access roads and the concrete boat ramp provided free and unfettered access to the water and houseboat moorings. Thereafter Mr and Mrs Clinch used the road on the eastern side of the marina to access their houseboat mooring and to park their car during the time they spent on the houseboat. Mr Clinch observed other houseboat mooring owners doing the same thing.
279 As noted above, Mrs Clinch received a letter on 26 May 2005 from the solicitors for the developers to the effect that parking adjacent to the mooring constituted a trespass. In late April 2005 the developers installed a boom gate to deny access to the boat ramp unless a fee was paid. Mr Clinch corresponded with the community association manager, Mr Haydon, regarding access rights in a letter of 13 June 2005.
Disability access
280 Mr Martin, an architect specialising in disability access, expressed the following conclusions which I accept:
(a) it is not practical to provide disability access that complies with the Building Code of Australia 2007 and the Disability Discrimination Act 1992 (Cth) along the neighbourhood property edge to service the Central and Western Neighbourhoods;
(b) it is not practical to provide complying disability access from the carpark to the eastern side of the Central Neighbourhood or along the neighbourhood property to service the Central and Eastern Neighbourhood;
(c) the only way to provide complying disability access to the three mooring neighbourhoods is to obtain Lot 16 land behind the community property and the neighbourhood property. This should include sufficient space for vehicle access and parking, which is best created where vehicle access currently exists. On the western side this would need to be not less than the available land of Lot 16. On the eastern side this would need to be at least about 20 metres expanding to the existing carpark.
Access for repairs and maintenance
281 Mr Neil Giffin, the managing agent of the three mooring neighbourhood associations, gave evidence which I accept. Since early October 2006 he has endeavoured to facilitate necessary repairs to mooring walls and timber decking in the Central Neighbourhood on the western side. It has been extremely difficult to do so. Mr Jarman objected to "dead man's anchor" holes (supporting the mooring walls) being dug on Lot 16 and to a development application for the works. Mr Giffin described the physical and logistical difficulties in doing the work without being able to utilise Lot 16 land:
37. It is physically and logistically very difficult to have the work conducted without being able to utilise or pass over the land in Lot 16. I have attached a coloured plan of the community scheme with hand marking to indicate the difficulty to which I refer. The plan is annexed and marked NG-J . To access the area requiring repair, the tradesman is required to:
(a) Park his vehicle in the area behind the pub which I have marked A on the plan;
(b) Walk down the grass embankment adjacent to the pub, with his equipment and any plant and machinery, along the line marked B ;
(c) Walk along the neighbourhood property 2 metre strip coloured blue and marked C (the additional 2 metre-wide lime coloured community property in this area is impassable); and
(d) Conduct the work within the area where the works are required marked D.
38. This is not only a real problem in this instance, but will be more of a problem for the other two neighbourhood associations I manage when repair works are required there. The other two neighbourhoods I manage are even more difficult to get to. This is because their strips of common property are only 2 metres wide and there are obstacles such as large red gums and steep grassy terrain that are also problematic to having tradesman access.
39. In fact it is not possible to access property in Neighbourhood Association DP 285433 without trespassing onto the neighbourhood property of Neighbourhood Association DP 285249 or Lot 16, with or without tools and equipment. This is because the connecting 2-metre wide strip of community property adjacent to the western half of Neighbourhood Association DP 285249 is too steep and is obstructed by trees.
40. I note further that these other two neighbourhoods will have another serious problem in that the dead man's anchors are longer than 2 metres and without the benefit of the adjacent community property in those neighbourhoods the anchors would need to be buried back into Lot 16.
41. There is in effect no vehicle access for tradespeople to conduct repairs despite the traditional gravel access roads still being in existence (although weeds are starting to grow on them). These access roads have been blocked off by very large concrete bollards making any vehicle passage impossible.
42. The problems with access are not only that the mooring walls and timber decking require repairs, but the lot owners need access to get their families and supplies to their boats and to conduct internal repairs and renovations to their boats as well.
43. I hold a major concern about access to the boats in case of an emergency, such as accident or illness. This has already been a problem when Norm William's son was injured, the details of which are set out in his letter to me dated 14 May 2007 and is annexed and marked NG-K.
44. In my opinion it is also only a matter of time before Lot 16's concrete bollards prevent a fire truck from attending a fire on a houseboat laden with gas and fuel and moored only 30 centimetres from houseboats on either side.
45. I also have serious concerns about the ability of the community to access the electrical boxes that supply all of the power to the individual houseboat mooring berths as these are wholly contained within the private development lot being Lot 16. I have formed the view that this is a clear indication of the developer's intention that the land directly to the north of the mooring berths, where the roads and meter boxes are, was intended to form part of community property. Indeed this is the only practical way to have vehicle access to moorings and the moorings themselves are only practical and worthwhile if the owners have vehicle access to them. In my view, many, many persons would not have bought into the community scheme if they knew they would not have vehicle access.
282 In cross-examination Mr Giffin agreed that the work could be done from a barge, but added that that would be totally unsatisfactory. I agree. He agreed that since obtaining development consent he had not approached the developers to use Lot 16. In my view, there was little, if any, point in attempting to obtain such an approval. The attitude of the developers was clear.
Access for emergency vehicles
283 There is a serious problem of access by emergency vehicles due to the placement of the concrete bollards by the developers. This is illustrated by the evidence of Mr Williams above. On 3 December 2007 the council served on the developers two notices of intention to serve an order under s 121H of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). One notice required the following:
Order 6, Section 121B of the Act