The Lie of the Land. The hillside required is in the left foreground.   Photo: Rob Blakers

The Lie of the Land. The hillside required is in the left foreground.

Photo: Rob Blakers

9th AUGUST 2018

At the Hobart City Council's Parks and Recreation committee meeting that shut the Council gate in the proponent’s faces I had a front row seat. 

ROCC’s spokesperson Ted Cutlan sat next to me. I 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 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. I was mystified when the motion to be voted upon was read and stunned by the vote. 

This account describes the request, examines the background to the fresh motion made in the meeting, and considers the response and repercussions of the vote. 

How the ABC reported it.

SPOILER ALERT: Is it surprising (let alone stunning) that a council committee 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"? Clearly not, because when their decision came before full Council it passed unamended.

lady osborne's meeting room

Most times, though held in public and always attended by interested and vested individuals, crowds are not common at Council committee meetings. This night the room was packed and as a precaution the police were invited to attend in case of disorder. 

The Lady Osborne Room, upstairs in the Council Chambers, is a formal cube. Dark red curtains run up high white 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 Aldermen Burnet (who sat in for Alderman Sexton), Ruzicka and Harvey. On her left the Director Parks and City Amenity, the General Manager, then Alderman Briscoe and Alderman Cocker (as an observer), leaving one table-side empty for invited presenters. The back of the room is panelled and before the meeting commenced the panels were slid aside. Behind were 100 seats, which soon filled. The media sat close to the table, but to the sides. Two MWCC directors, Adrian Bold and Jude Franks, sat with their consultant ecologist Andrew North behind them. Ted Cutlan sat in the front row on the left.

THE REQUEST

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 2.5 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 "Link Road" between McRobies Gully Road and the base station for its cableway. A new, 2.5 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 occassion 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. The map in the Report still bore the over-stamp CONFIDENTIAL and the Background concluded its consideration saying that "Subject to the resolution of confidentiality issues, the Council may wish to advise the community of its decision." Subsequently, 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. Council published the Report online. In seven pages the Report recommended that approval be granted—subject to 29 conditions. In terms of the decision, 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. (Those two approvals were 1.) land owner consent to the use as a road, and 2.) land lord consent to a request to lodge a Development Application.)

Five Bells

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 up to become Agenda Item 1: Accepted. After some further introductory remarks Alderman Reynolds called upon Ted Cutlan to address the committee on Agenda Item One. His allotment five minutes.

ROCC'S CASE

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. He 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.

MWCC PRESENTATION

About half the roadway cuts through the Council's "Biodiversity Protection Area"

About half the roadway cuts through the Council's "Biodiversity Protection Area"

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 genus of the leafy filigrees tipped with gold paint plastered around the ceiling—North was a man who preferred the field to the furrow or the filing cabinet—nevertheless 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?

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 made. She acknowledged that confusion had occurred between the length, which was 2.5 kilometers  and the cost, also quoted at $2.5 million, but in fact 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 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 recommended route in grey and stated that the survey route "only following an existing fire trail for a short distance."  Bold insisted that the route "was along the fire trail for a considerable distance".Another version (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 tenuiramisforest, a listed threatened community." Consequently, the report recommended approval be granted for a corridor that follows the fire trail".

Top Split - 1.png

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 overa "Recreational Track" shown on the Council's map as a dotted line. Known as the Tip Top (mountain-biking) track, this popular descent, fully funded and signposted by Council, would have to be re-routed or abandoned if the road was built. Neither this track nor Recreation was mentioned in any Report or in the meeting, but the Council's recommended corridor avoided the Tip Top Track.

Aerial map view of the Tip Top Mountain-biking track, funded and built by Counci, with the Access Road over most of it.

Aerial map view of the Tip Top Mountain-biking track, funded and built by Counci, with the Access Road over most of it.

The Swathe. No one asked about the mountain bike track. Goodbye to The Tip Top MTB track. Photo and graphics courtesy Rob Blakers

The Swathe. No one asked about the mountain bike track. Goodbye to The Tip Top MTB track. Photo and graphics courtesy Rob Blakers

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. These wide cuttings have been 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.

SCOOP The MWCC request described a roadway 9-metres wide, but it did not mention the additional disturbances required: cuttings, embankments, fills (shaded yellow). These would double and sometimes quadruple the road's width.

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”. His obstinacy hung in the air.

Bold dodged the hypothetical question of refusal of landholder consent. 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 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 they are plotted on the state's official ListMap (superimposed) below. The proposed roadway would cut through them all. 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 professor of botany and environment Jamie Kirkpatrick reported in the Mercury the day previously—photographed amongst the gums—who 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 MWCC Access Road cuts through all three stands of the Threatened Silver Peppermint forest groves.

The MWCC Access Road cuts through all three stands of the Threatened Silver Peppermint forest groves.

CONSIDERATION

The Chair foreshadowed that Councillor Briscoe would be tabling an alternative motion and Councillor Ruzicka indicated that she would likely seek to amend it. The Fire Trail alignment was discussed. Several Councillors spoke around the issues of consent. 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? No one trumpeted the request, but only Briscoe condemned it.

The General Manager noted that officers had concluded that the request should be agreed to—on condition—but also noted that the committee was not bound by that advice. 

 

THE briscoe MOTION

The discussion ended. Before Briscoe's motion was passed around the Chair asked Alderman Ruzicka about her amendment. Across the table, she said to Briscoe "Without Part 2?" and Briscoe nodded. Only the first part of his motion would be put. There was no discussion after that. It appeared that every one was familiar with the motion (which they were). The Chair put the Briscoe motion, that:

 
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.
— HCC F18/86378; 18/12 9/08/2018
 

All those in favour, the Chair said, say Aye…

Aye was heard a number of times.

All those against…?

Silence.

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, no groans. There was silence. Then in the shuffle as we began to leave, 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).

On the stone parquetry outside the media interviewed Cutlan. The proponents declined. The next day the motion was The Mercury's front page story.

I had obtained a first edition copy of the motion during the meeting from Alderman Harvey at the table and I read it three times but could still hardly comprehend it. 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, the intention was absolutely clear.

I assumed Briscoe had composed it. I assumed it had been caucused. I was wrong.

It was not Briscoe's motion—he had simply agreed to put it. I am advised that 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 circulated the motions as suggestions after a meeting with the General Manager and Council staff on Monday 9th of August. The first alternative (not put) modestly "advised" the MWCC to "seek landlord approval" before lodging a development application. The second (put) was put exactly 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 CUB's 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.

Reaction Time

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? Alldevelopments? Aside from that, what Hobartiansshould 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. 

Councillor 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 raised this in Full Council in the form of a question to the General Manager who explained that as the request had nothing to do with any commercial activities and consequently those by-laws were irrelevant. 

Councillor Sexton also noted that the meeting never voted on or even put the motion recommended by officers and therefore, technically, the motion was unresolved. The full Council meeting crushed that argument with lawyerly aplomb by noting that no motion had been made. The consideration was a recommendation, not a motion.

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.

I suspect that there is another horse in this. The answers offered by the proponents during the hearing left me with a sense—difficult to articulate because it was never actually mentioned—that the request had been couched in this way and submitted at this time based on some unstated consideration. The Request was not a stalking horse, it was a Trojan Horse. Difficult to resist but fatal to accept. One possibility being to demonstrate unreasonableness by Council, triggering Major Project status.

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." Councillor Zucco agreed that a majority on Council would likely vote for the motion, but vows to pursue the procedurals. The proponents have issued both hopeful and fatalistic prognostications. But both sides are determinedly lobbying all eleven aldermen and encouraging their supporters to have their say. Aldermen reported receiving over 1000 emails. (Most in favour of the motion.)

POSTSCRIPT

The Reynolds/Briscoe motion was brought to the next Council meeting and... cutting its long, raucous, procedure-driven proceedings to an immediate halt, as predicted, the motion was passed 7:4 with the mayor's head bowed slightly, the better to hold his 'aye' arm higher.

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 wrongly reported that the opinion made the Council’s decision “moot”. That conclusion was entirely wrong, as the Hobart City Council explains the land-owner consent issue

 

* 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.