Continued from The Trojan Horse
By the end of the next day, passionate responses to the committee decision could be heard.
Two fellow aldermen, (not on the committee) Thomas and Zucco, were quick to respond. Thomas was reported as “aghast at the abuse of process”, a view later echoed by MWCC chair Jude Franks who argued aldermen had denied the company procedural fairness. "I think the people of Hobart will see this for what it was — a kangaroo court designed to crush the cable car project before we are given the opportunity to submit a development application." Alderman Zucco formed the view that "serious questions need to be answered as to whether proper processes and procedures under the Local Government Act, Council By-Laws, and HCC policy and meeting procedures had been adhered to."
What specific procedure was not adhered to or “procedurally unfair” neither Franks, Zucco nor Thomas detailed. That debate would await the Council meeting. To me—a partisan but schooled as a lawyer—the committee process was ordered, balanced, calm and reasoned. I am no expert in meeting protocols, but I saw no abuse of process. The request was made in writing, reported on, heard in open session, considered and refused. But Thomas was getting at the motion itself: it was “completely different to what was for the meeting, and the chairman should never have accepted it.”
Whether the chair should have accepted the motion I can not say; but it was formulated by council officers and no other alderman raised a concern—including Alderman Ruzicka who is well-versed on the rules around motions. The motion did not mention the request, it is true, but it did not ignore it. It covered it. It pertained to its import (the road) specifically. The motion stated that: "... land owned by the City...not be made available for ... an access road…” This is not "completely different to what was for the meeting". The meeting is for the Parks committee to put recommendations on Parks (in the form of motions) to Council. They did.
Councillor Zucco described the decision as "interference" by "idealistic aldermen", adding "It's very, very poor for the aldermen of the city to interfere with a process. We have professional officers who have got far more experience than any alderman to determine whether or not the request was suitable to proceed."
The advice in the Background Report recommended approval. One problem was that Council officers had given conflicting advice. The advice of the Parks Manager was to approve the request, but the committee heard through Councillor Briscoe that the Director of Planning had advised him verbally that the request was out of order. The established process for any development was to start with a request for Landholder consent and then to seek consent to lodge a Development Application and then any specific surveys required to fulfil the application could be considered. This established process was enumerated in the Background Paper too. (The confusion may have been caused by rush. The Council Report was "Supplementary". That is, it was completed after the deadline for agenda items closed. In the rush, the Director of Planning may not have been consulted.) The committee was forced to resolve the problem of its officer's making. More significantly, however, the Council’s General Manager Nick Heath stressed during the meeting that the committee were, in any case, within their rights to reject the advice of all Council officers. If rejecting advice is “interference", why have a committee, why meet? The committee is not one of the Council's rubber stamps.
A more personal criticism was Thomas's, that "The meeting was hijacked by emotion.” Thomas was not at the meeting and there is no recording of it for him to review. I witnessed no emotional outburst by anyone. Franks took it much further, saying that “These five aldermen clearly have a fixed, set in stone view and a closed mind about the project. Their decision last night means that they now in no way could ever objectively consider this project." The motion demonstrated "undeniable bias" against the cable car proposal.
There is a crucial misapprehension in this. Not only was the cable car proposal not considered, the process and requirements for committees are very different to in-Council. (Why, by the way, did the proponent seek to have the matter heard in secret, in “closed" session?) Is Franks foreshadowing a legal challenge to any decision Council makes that she does not agree with? And what alternative means does she suggest for considering the project? Should Council deny half its own aldermen from speaking or voting on the proposal in Council? That would be a despotic departure from procedure. Her suggestion could be viewed as an attack on representative government. In the end, all the committee did was formulate a motion for Council to decide.
Thomas also argued that "Hobartians should, at least, consider all developments, whether or not they like them.” Really? All developments? Aside from that, what Hobartians should do is one thing, the committee was charged with considering the request. It would have been criticised if it had veered into a development application. No development was not on the agenda or part of the request. The committee was not asked to consider a development per se, and indeed, the motion acknowledges that the development—which is entirely based in Wellington Park—is covered by the state's Cable Car Facilitation Act and beyond the Council's purvey. During the meeting the proponents frequently sought to bring the discussion back to the request, but that was the very crux of the dilemma the committee had been put into by the request. The request obviously pertained to the development but no development application had been submitted to consider.
On radio a day later Councillor Zucco had refined his criticism of the motion: why didn't the committee just refuse the request? Why did it go so far? Good question. The committee never goes far, all the committee did was produce a motion for Council to consider and modify, defer, reject or adopt as it saw fit. Nothing the committee said or recommended denies the proponent the procedural opportunity of seeking to lodge a Development Application. The motion simply recommended that Council not give its landholder consent for roads, facilities or a cableway to be built on Council land, so when the MWCC said the Council was about to vote "whether to close down any chance of the cable car," it may be accessed of grand-standing, of making a molehill into the mountain. There is private land all around the mountain. As for it being a Kangaroo Court, Franks might have been quoting me. I texted a media representative on the night of the decision and used that very phrase. But it was not a Kangaroo Court. It is not any court.
Back to Zucco, why does the motion go so far? Committee chair, Councillor Reynolds, argued it was better "council makes a clear decision now." That does not quite explain it, after all, the committee is not the Council. The skewered proponents claimed they had proceeded in this order [Survey then landholder consent] on the advice of Council officers.
Councils must be wary of the means deployed by property developers pursuing large, divisive proposals. The reason the motion goes so far is probably because the request went too far. The Request was not made as some gift horse to Natural History. It was not made by field naturalists, academic botanists or the Royal Orchid Society. It was sent by property developers as a stalking horse for the project. Faced with Hobson's Choice, the motion crashed through the dilemma to require the Council to face the bigger issue: consent.
Councillor Zucco acknowledged that a majority on Council would likely vote for the motion, but vowed to pursue the procedurals. The proponents issued both hopeful and fatalistic prognostications. Both sides determinedly lobbied all eleven aldermen and encouraged their supporters to have their say. Aldermen reported receiving over 1000 emails. (Most in favour of the motion.)
The [Reynolds] Briscoe motion was brought to the next Council meeting. The larger Council chamber was so crowded it was standing room only. A delegation from one of Hobart’s sister cities in Japan seated held front row seats on another Tasmanian environmental passion play.
After the usual formalities, the Park’s committee decision was moved by consent to Item #1. Alderman Zucco sprang to his feet to attack it. A long, raucous, procedure-driven proceeding ensured, but Zucco’s motion was defeated on the voices—and this proved a harbinger. Much to the vocal disapproval of many citizens in attendance.
Alderman Peter Sexton worried that the issue of commercial activities in Parks and Reserves (which is covered in By-laws) had not been canvassed or considered, and consequently the Council might be accused of having failed in its own governance. Sexton asked the General Manager for an opinion. The GM explained that as the request had nothing to do with any commercial activities those by-laws were irrelevant. Councillor Sexton noted that the meeting never voted on or even put the motion recommended by officers and therefore, technically, the motion was unresolved. The GM crushed that argument with lawyerly aplomb, noting that no motion had been made. The consideration was a recommendation, not a motion.
The most impassioned speaker was the former mayor, Alderman Thomas. Thomas is a lawyer and his boldest claim was that the motion was ultra vires. He left us in some doubt before translating the Latin as “beyond the powers”. Doom awaited any Council whosoever proceeded down that route. When his time had elapsed the Lord Mayor shook his head. He would not accept the alderman’s motion. It was Thomas’s turn to be shocked. He stood for a point of order but after a whispered consultation with the General Manager the Lord Mayor reiterated his decision. He was under no obligation to accept a motion and he declined. That was the end of that.
Others spoke in favour. They were heckled time and again. The Lord Mayor called for silence and respect twice, but not particularly successfully. I noted on a score card in my pad what I implied each alderman’s vote would be from their speech and it was looking to me as: In Support: 5, perhaps 6 as against Against: 4.
The Clerk read the motion to the chamber:
“In respect to any proposed cable car development that may be established in Wellington Park and noting the provisions of the Mount Wellington (Cable Car Facilitation) Act 2017, any public and operational land owned by the City, located on the foothills of kunanyi/Mount Wellington and outside Wellington Park not be made available for the construction of an access road or any other infrastructure to support a cable car development.”
The motion passed 7:4 with the Lord Mayor's head bowed slightly, the better to hold his 'aye' arm higher.
The next day’s headline in the Mercury read: Setback: Aldermen impose land ban COUNCIL’S NO TO CABLE CAR. But Is it surprising (let alone stunning) that the council, charged with protecting parklands and recreation, refused a request to (effectively) build a two-kilometre long road on top of a popular recreational track right through one of their bushland "parks"?
The answers offered by the proponents during the initial hearing left me with the apprehension that the request had been couched in a such a modest way and submitted at this time based on some unstated consideration. The Request was not a stalking horse for the project, it was a Trojan Horse. Difficult to resist but fatal to accept. One unstated possibility would be to demonstrate unreasonableness by Council, triggering a transferal of the project from the local Council to a state-controlled Major Project process.
LANDLORD V. LAND OWNER
Councillor Reynolds did not "see any reason why the council would knock back the Parks Committee's recommendation". "I think it's a sensible decision. We have to make the best decision for the Hobart community, our environment and our parks."
In November the Hobart City Council received legal advice on what is, effectively, a very minor requirement regarding the General Manager’s consent as landlord to planning applications. The Mercury reported that this legal opinion made the Council’s decision “moot”. That Is wrong, as the Hobart City Council explains the land-owner consent issue.