9th AUGUST 2018
At the Hobart City Council's Parks and Recreation committee meeting that shut the Council gate in the proponent’s face I had a front row seat.
ROCC’s spokesperson Ted Cutlan sat next to me.While we waited II ribbed him gently, saying "I bet they pass it, what do you reckon?" He demurred. He looked anxious and it wasn't long before I discovered why. He had to address the committee—alone—and the case would ride solely and entirely upon his elderly shoulders.
The proceedings lasted about 45 minutes and until the vote—though I thought Cutlan made a good case—I believed I would win my wager, so the superseding motion passed was so mystifying and the vote so stunning it would be the next day’s page one headline.
This account describes the request, examines the background to the famous “Briscoe motion” made in the meeting, and continues as to the response and repercussions of the vote under The Hobart Declaration.
lady osborne's meeting room
The Lady Osborne Room, upstairs in the Town Hall, is a formal cube. Dark red curtains run up high white plaster walls, and the room exudes the air of a courthouse. The embossed leather committee table dominates the space, easily seating sixteen. In the centre, on its far side, sat the Parks Committee chair Alderman Reynolds, on her right a Minute-taker, then the committee’s aldermen: Burnet (who sat in for Alderman Sexton), Ruzicka and Harvey. On the Chair’s left sat the Director Parks and City Amenity, the General Manager, then committee alderman Briscoe and Cocker (as an observer), leaving one table-side empty for invited presenters. The media sat close to the bottom end of the table, but to the sides. Behind them were two MWCC directors, Adrian Bold and Jude Franks, with their consultant ecologist Andrew North. Ted Cutlan sat in the front row on the left.
Most times, though held in public and always attended by interested parties, public crowds are not common at Council committee meetings. This night the room was packed. The back side of the room is panelled and before the meeting commenced the panels were slid aside. Behind were 100 seats, which soon filled. The committee table was wired for sound and as a precaution the police were invited to attend in case of disorder.
We had all come to hear the Committee consider File F18/86378; 18/12: the Mount Wellington Cableway Company Request for Permission to Undertake Investigative [Land and Flora and Fauna] Surveys across a 2.0 kilometre transect of Council bushland on the lower southern slopes of McRobbie's Gully in South Hobart.
The request was linked to the company's proposed "Access Road" between McRobies Gully Road and the base station for its cableway in Wellington Park behind the tip. A new, 2.0 kilometre long road is a big deal. The committee hasn’t considered an application that long in over twenty years. That it was a private road on Council land and through bushland made it a bigger deal. That it was in aid of the cable car super-sized the item. Though the cable car is Hobart's biggest tourist development proposal and one of the most controversial topics in the city, nothing concerning it had been before the Council since 2015. And that fracas had led to the state passing the over-riding Cable Car Facilitation Act.
The committee members had before them the Council officers' Report on the Request signed off by the Group Manger of Open Space and the Director of Parks and City Amenity. The request was originally slated for the "Closed Portion" of the meeting, and its accompanying outline map still bore the over-stamp CONFIDENTIAL. Council officers had only tentatively suggested it ever be made public. The Background concluded its consideration writing that "Subject to the resolution of confidentiality issues, the Council may wish to advise the community of its decision." Yet here we all were with the proposal in our hands about to hear it decided in the open. Why? At the insistence of the committee chair, F18/86378; 18/12 was transferred to the meeting's Open Portion. The Committee chair Alderman Reynolds informed the General Manager that if the item was not made open, she would put a motion that it be moved to Open. He deferred and Council published Council’s Report online.
As soon as the GPO's clock rang five bells the chair called the meeting to order. The banter of preamble stopped, papers and ipad set-ups and shuffling ceased. Her extra-ordinary first item was a request from an unidentified private individual to record the meeting. Two committee members objected, arguing it was unknown to what purpose the recording might be put. For want of details, the request was denied—though the media's right to record was confirmed. Next, Apologies: Deputy Lord Mayor Sexton. Previous Minutes: Adopted. Supplementary Agenda Item 10 (the MWCC Request) moved to become Agenda Item 1: Accepted. After some further introductory remarks Alderman Reynolds called not upon the proponent but an objector, Ted Cutlan, to address the committee on Agenda Item One. His allotment five minutes.
Cutlan began with landholder consent. The proponent was seeking permission to do a survey before gaining consent to do anything on the land. The proponent was putting the cart before the horse. Cutlan spent most of his minutes calmly enumerating the diverse values and manifold covenants upon the land in question, concluding that a roadway here would not be desirable. He then returned to the landholder consent issue and urged the committee to refuse the request.
Any questions, asked the Chair?
Councillor Harvey had a question about the proposed pathway: How much of it is along the fire trail and how much is through the bush? Cullen could not be certain. How can he be? The proponents had made contradictory statements themselves. He was unable to add any new information although, clearly, he knew the lay of that land.
The Chair then called the MWCC to make their presentation. Adrian Bold, Jude Franks and Andrew North moved into the hot seats. Bold spoke first, pointing out that the request concerned a flora and fauna survey, nothing more, and then deferred, saying he would let the expert ecologist Andrew North talk to it.
Though he no doubt could have identified the special, genus and phylum of the leafy filigrees tipped with gold paint plastered around the ceiling—North was clearly a man who preferred the field to the furrow or the filing cabinet—yet he acquitted himself well. It was, he said, a preliminary study: on-foot, non-invasive, by the book, to a template. He described the method of the meandering walk, the recording of the range of habitats, species found, including non-native species, but especially any plants or animals "Listed" under the Commonwealth's Environment Protection and Biodiversity Act, of which at least three were possible.* Unidentifiable species would have samples collected. North appeared to almost give the final report, listing the species he may find and explaining how they would be contextualised. He, like Cutlan, finished of his own accord almost right on five minutes, as requested. The proponents focused on their request, they made no counter-arguments against Cullen. They asked that their request be granted.
Any questions, asked the Chair?
In seven pages the Council Report on the MWCC Request recommended that approval be granted—subject to 29 conditions. But in terms of the decision made, two paragraphs in the Report became crucial: The "investigative works" were "following the fire trail on the southern slope of McRobies Gully" and section 4.6. noted that two further approvals would be required prior to the lodgement of a Development Application seeking to build the road. 1.) land owner consent to the use as a road, and 2.) land lord consent to a request to lodge a Development Application.)
There were a lot of questions. Every councillor had at least one question:
How would the information gained be used? Would Council be given a copy of the full Report? What would happen if critically endangered species were discovered? Might not a desk-top survey suffice at this point? Can you explain the divergence between the route stated in the request and the route described in media reports and on your website? Why not use the fire trail for the entire distance? Was the width of the proposed survey 25 meters on either side ( i.e. 50 meters wide) or 25 meters from the centre line? How many trees would be cut? Was the request not in aid of “the elephant in the room” (the cable car)? The purported cost of the road was questioned. Had an alternative route been considered? Why not put in an application for landholder consent first? If, hypothetically, landholder consent was not given, was there private land that they could access instead? Why is the request so urgent?
In answer, North explained that the survey would assign values to the findings and provide advice on strategies to prevent, minimise, reduce or ameliorate damage. In answer to a question on what would happen if critically endangered species were found, North said that would need to be contextualised, but, ultimately, the proponent may, for example, decide to build a tunnel. I got the sense that the committee just let the tunnel idea go through to the keeper, it was, after all, just an example, but the impression North left you with was that no matter what the survey found, it would not stop the road. His job was not to find problems; his job was to find solutions.
Jude Franks spoke candidly about two minor mistakes. Confusion had occurred between the length, (2.5 kilometres) and the cost—quoted at $2.5 million, when in fact the cost was closer to $10 million. The Committee appeared to accept this as understandable and no one criticised her. On another matter she also answered, Yes, a full copy (not a summary) of the report would be given to Council.
Adrian Bold was forthright, clear and brief, but came across as the more guarded of the three. He acknowledged that confusion had arisen over the alignment of the survey route. Media, quoting the company's website, stated that “The link road is designed to follow existing 4WD/fire trails”. In the Background of the Report (at 4.1) the request pertains to a "fire trail alignment", but in the formulated approval re-phrases this as "following the fire trail". Bold affirmed that the route sought was the route shown in the request, not as described on their website, explaining that it followed an alignment suggested by civil engineers in relation to grade and cost.
The committee well understood how confusion can arise. The MWCC map did not distinctly show the fire trail, but, just to hand, the committee had a map prepared by the Director of Parks and Civil Amenity on the day of the meeting. It showed the proposed route in red and the fire trail as a thick grey and stated that the survey route was "only following an existing fire trail for a short distance."
Bold insisted that the route "was along the fire trail for a considerable distance", but another illustrated map (below) clearly highlighted the divergence. The transect followed the road for less than one fifth of its length.
More disturbingly, the last-minute Memorandum concluded that: "The dissection of the land with the proposed [red] route is considered highly detrimental to the long term viability of the vegetation community in this area – Dry Eucalyptus tenuiramis forest, a listed threatened community." Consequently, the report recommended approval be granted for an [alternative] corridor that follows the fire trail".
Another version (below) clearly highlighted the divergence. The transect followed the road for less than one fifth of its length.
The Survey Corridor also ran right beside and, for almost a kilometre, right over a "Recreational Track" shown on the Council's map as a dotted line. Known as the Tip Top track, this popular descent, fully funded and signposted by Council, would have to be re-routed or abandoned if the access road was built. Neither this track nor Recreation were mentioned in any Report or during the meeting, but the Council's recommended survey corridor avoided the Tip Top Track.
On the matter of the road's width, though the proponent's map (faintly) showed them, no one raised the matter of the embankments and cuttings that the road would require, highlighted in yellow on the map below. (The MWCC Request also sought a Land Survey, but this was not discussed either.) On the question of the cutting down of trees, Bold retorted that the alderman was, he thought, getting ahead of herself. "This is about a survey, not tree-cutting." It was subsequently calculated that the road and cuttings would require 20,000 s/m of clearing.
The Request was promoted as a flora and fauna study but the Request itself makes clear on page one that it is a dual request: 1. Land Survey and 2. Flora and Fauna. The maps were produced by consulting engineers (Gandy & Roberts), not zoologists and the PDF filename is “Road Access”. The matter of “the elephant in the room” (as Councillor Burnet phrased it) was raised once. Bold begrudgingly acknowledged that the purpose behind the request was to build a road.
A road to a base station in Wellington Park?
Yes, it was.
But Bold could not bring himself to—or deliberately would not—utter the words “cable car”. A question on the Land Survey might have executed Bold. His obstinacy hung in the air. Bold also dodged the hypothetical question of refusal of landholder consent. Another prospect raised directly in the MWCC request. Asked was private land perhaps a possibility? Bold would not answer. Saving the day, Franks—though not sounding thrilled or confident—said that, “Yes, there would undoubtedly be other (private) land. But this is our own preferred final route.”
The committee then thanked the proponents and they returned to the gallery: tired, understandably anxious, but not lacerated.
No specific questions were asked about the threatened Eucalyptus tenuiramis (Silver peppermint) forest. No map showed their location. North knew them well. He had done the original survey that identified them, and this rare forest is plotted on the Tasmania’s ListMap (superimposed) below. The roadway would cut through all three stands. Even the Council's recommended route (slightly to the north) passed through them. Nevertheless, even without a map, the committee was aware of the comments by the august professor of botany and environment at UTAS, Jamie Kirkpatrick, reported in the Mercury the day previously—photographed amongst the gums—who had said: "It just puzzles me why anyone would propose to put a tourist road through a threatened [forest] community right next to a tip."
The request was now in the committee’s hands to discuss and decide, but the Chair foreshadowed that Councillor Briscoe would be tabling an alternative motion and Councillor Ruzicka indicated that she would likely seek to amend it.
In its deliberations the Fire Trail alignment was very briefly discussed, but power and process (consent) took more time. Several Councillors spoke around the issues. Briscoe arguing that “There is a broader context. No doubt, for small developments, the General Manager could handle a request such as this without Council's land holder consent, but this was not a small development." The request was more than a mile long. Briscoe also advised that he had spoken to the Director of City Planning and obtained advice that the request did not conform to the normal course: which is that firstly, landholder consent be sought (and obtained), then secondly, consent to submit a Development Application be had, and then, thirdly, any such Surveys (such as the flora and fauna) required for the DA could be requested. Why, Briscoe asked, are we starting at the wrong end? Why should this development be treated differently to all others?
Only Briscoe condemned it, but no one spoke for the request. Except the General Manager. He noted that officers had concluded that the request should be agreed to—on condition—but he also noted that the committee was not bound by that advice. A seasoned operator like Mike Lester (who was present as advisor to MWCC) had concluded that the Request would be denied before the meeting started and an astute observer would now have guessed the request was lost, but ROCC believed the committee was poised to accept it until the road alignment blew up. But far far more was to be decided.
The discussion ended, but the Request was not put to the vote—it was cast off the table without any further mention.
THE briscoe MOTION
Before Briscoe's motion was passed around, the Chair asked Alderman Ruzicka about her amendment. Across the table, Ruzicka said to Briscoe "Without Part 2?" and Briscoe nodded. Only the first part of his motion would be put. There was no discussion about it. It appeared that every one was familiar with the motion (which they were). The Chair read the Briscoe motion:
The Chair then put the Briscoe motion: All those in favour, say Aye…
Aye was heard a number of times.
All those against…?
It was unanimous. Five:Zero. The proponents had persuaded no one and their request was thrown out on its ear. I was not the only person stunned. There was no uproar, no applause, groans: there was silence. The Chair pointed out that the vote only meant that the motion would be tabled as a recommendation to Council. The real decision would be made by Council at its meeting ten days hence. (August 20, 2018). A hundred people stood and began to leave.
The media would be waiting outside, in the stairwell Ted was heads together with Louise Sales and Rob Blakers: all mystified. What did the motion say? Ted asked me. It was so obtuse I couldn’t say. But I had an idea. Kneeling beside Alderman Harvey at the committee table I whispered Ted’s request. Harvey silently tore off the motion carried.
On the stone parquetry outside Cutlan took media questions. The proponents declined. The next day the decision was front page news.
At home I re-read the motion three times with great difficulty. Composed in a quasi-statutory manner (not aided by being couched in the negative); circuitous and repetitive; grammatically clumsy—if not grammatically incorrect...it was no great moment in motion-making. It did not mention the request, the survey, flora, fauna, the fire trail nor McRobies Gully; moreover, it did not mention landholder consent or procedural protocol. Notwithstanding any of this, its intention was clear.
I assumed Briscoe had composed the motion and that he had caucused it: wrong.
It was not Briscoe's motion—he had simply agreed to put it. The motion (and at least two others) were composed by Council officers for the aldermen's consideration at the request of the committee chair—who cannot put motions. Secondly, after her meeting with the General Manager and Council staff on Monday 9th of August the Chair had circulated these motions as suggestions to the committee members. The first alternative (not put) modestly "advised" the MWCC to "seek landlord approval" before lodging a development application. The second (put) was put as composed. The third (withdrawn) made existing public roads on Council land available.
At the PR level, the motion had shock value. It offered a position to Council that could stand alongside the CUB Cascade Declaration. Strategically, it obliterated the subterfuge of a mere wildlife status report, forcing the full Council to grapple with a substantive issue: its land holder consent. It also created the basis for the General Manager to decline a landholder request made under the state's Major Projects legislation.
But it would all be for naught if the full Council rescinded the motion.
Continued …. THE HOBART DECLARATION
* UTAS botanist Professor Kirkpatrick noted that the Silver Peppermint gum forest was listed. Research by the Australian newspaper's Tasmanian correspondent Matthew Denholm compiled a list of ten nationally-listed species potentially in or reliant upon the bush. The Denholm list was disputed by the keen amateur naturalist Kevin Bonham.