Where are we up to? 12.9.2010

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There are so many people who are cynical about council’s approach to Laman Street, because calling the trees dangerous doesn’t ring true with their instincts or experience. 

 

They’ve let their children have their school formal photos taken under them, they’ve had their wedding photos taken there, they’ve shopped at the annual Art Bazaar in December, they’ve walked under the trees to go to the Art Gallery or the Lovett Gallery or the library, they’ve parked there cars there to go to Anzac Day ceremonies in the park or to walk to Darby Street to have coffee – and so on, and so on. 

 Remember: no tree failed there in the Pasha Bulker storm or in any major storm before or since. The community-commissioned arborist, Mark Hartley, reviewed the QTRA reports on the street and has been incredibly generous with his time and assistance, and came to the conclusion that the trees are safe. His report is well worth reading. He did all this in an incredibly short time – I do wish I’d known about him earlier in the year. He has offered to have a phone conference with councillors who, one would have thought, should want to be making their decision based on the best possible evidence. Sadly, they may not take advantage of his expertise. 

And people ask, ‘So, since the trees aren’t dangerous, what’s the real reason why council want to get rid of the trees?‘ I have to say that they have me beat when it comes to answering this. It’s such a  tasteless and unnecessary plan that it baffles me. If you have any theories I would love to hear them. 

I think there’s an Australia-wide trend to try to take out large mature trees and replace them with teeny-weeny trees. This is in spite of climate change and urban forest policies and aiming for canopy covers of 40%. 

There’s lots of spruiking about public liability but wouldn’t you pick on something other than a structure that isn’t going anywhere? I think changing the Art Gallery design had something/a lot to do with the tree removal plan as well: presumably someone envisaged a deciduous exotic to go with the design. (Apart from the appalling plan to replace the trees, it amazed me that one would simply knock down the current gallery and put up a new building. The same people who wanted a brand-spanking new gallery think we should be ‘reinterpreting’ the facade of the Cultural Centre, which could compete with 1940’s-50’s hospitals any day. Did they knock down part of the Louvre when they wanted a new entrance? The Art Gallery of NSW has a modern extension; Bendigo and Ballarat galleries have modern extensions, and so on ad infinitum. Why not celebrate your heritage and enjoy having different styles together?) 

So – the group of campaigners working towards saving these trees have advice about what sort of process we believe council should be using to remove the trees. We have written twice to the General Manager. The second letter says in part:

  1. ‘…Our view is that Newcastle Council should handle its proposal to remove Laman Street’s avenue of Hill’s figs as a development application under Part 4, section 72A (2) (a) of the Environmental Planning and Assessment Act, and [we]seek council’s assurance that it will handle this proposal in accordance with the relevant assessment procedures set down for such applications. 

Our previous letter referred to provisions of the NLEP that we have subsequently realised have been superseded by newer provisions related to tree removal. Having considered these newer provisions, we believe they support the same conclusion: viz, that the proposal to remove the trees requires development consent, and that this consent cannot be given pursuant to the provisions associated with complying development. 

Our reasons for this are as follows: 

1.       The current NLEP still provides (at clause 14(e)) that the removal of trees requires development consent. 

2.       The proposal to remove the Laman Street trees does not meet the various criteria identified for complying development for tree removal in Part 5 (1), (2) or (3) of Schedule 2 of the NLEP, for the following reasons: 

  • The trees are not on land subject to Element 4.10 of the Newcastle Development Control Plan 2005 [5(1)]
  • The trees are not on flood prone land [5(2)]
  • The trees are not proposed to be removed pursuant to a development consent [5(3)]

Furthermore, the trees appear to be located on land – or on the curtilage of land – listed in Schedule 6 of the NLEP, and would therefore be excluded as complying development by Part 5(4) of Schedule 2 of the NLEP. 

Swan Street figs not being looked after

 

The proposal may also come within the threatened species preclusion of 5(4) of Schedule 2 of the NLEP, given the role of the current trees in supporting a significant number of indigenous species. 

 Council’s current intentions for the future development of Laman Street – as reflected in its resolution of 17 August 2010 – have obviously moved well beyond the original concerns with managing any immediate risk presented by some of the trees. The action now proposed by council to remove the entire avenue of trees simultaneously and within three months is not justified by any reasonable assessment of the current level of risk presented by the trees, and is clearly of the nature of a development proposal rather than a response to immediate risk. 

Given the importance of this proposal to the Newcastle community, we trust that Council will recognise that it has both a formal and community obligation to deal with this proposal as a development application, including subjecting it to independent planning assessment, placing it on public exhibition, and initiating independent associated social, heritage and environmental assessments that can be scrutinised by the community. 

 We therefore reiterate our view that council must proceed with its proposal to remove the Laman Street fig trees as a development application under Part 4, section 72A (2) (a) of the Environmental Planning and Assessment Act, and we seek your immediate assurance that council will handle the proposal in this way.’ 

The general manager’s response tomorrow.  Home 

More root pruning - the other end of Laman Street

 

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2 Responses to “Where are we up to? 12.9.2010”

  1. Kevin Schreiber Says:

    Dear Caity Raschke,

    I reside at 59 Laman Street and have been overseas for most of the time that the machinations and subsequent decision by council to remove the majestic Hills Figs from Laman Street has taken place.

    I am now in a state of shock to realise that this action seems unstoppable and that this act of vandalism will in all likelihood be perpetrated by the very civic authorities who local citizens rely on to safeguard their environment, heritage and amenity.

    It would seem after reading Mark Hartleys’ report that there may well be another agenda at play. If the Council were to truly have the interests of the community at heart and be committed to ensuring the decision to remove the trees was based on correct science, why would they not conduct the ‘pull-test’ to justify their action? I’m sure if this was to prove that the trees were in fact dangerous, the majority of people would understand the necessity for their removal. It would also provide support for the councillors decision in the eyes of the electorate.

    Perhaps the council would like to remove the trees for some of the following reasons:
    -they are costly to properly maintain with current finances
    – they create problems for stormwater management
    – their roots damage roads and pavements
    – Flying foxes and fruit from the trees create a mess under their canopy
    -parking and traffic management problems
    and perhaps most importantly council would like to provide better connectivity, both physically and visually between the Library/Art Gallery and Civic Park, Wheeler Place and City Hall (part of the brief for new Art Gallery) and the trees create a barrier.

    Finally I have lived in Laman Street, within touching distance of one of these trees for the past 8 years, including through the Pasha Bulker storm and I know that these trees are not compromised as suggested in councils arborists reports. In fact they are surprising healthy.

    Is it too late and do we just accept the actions of a potentially badly informed, ignorant group of individuals who are condemning some magnificent lifeforms to an early death or is their any other option?

    Kevin Schreiber

  2. Jeremy Smillie Says:

    Hi Adrian Swain
    I am a resident in Newcastle. I have a question for you regarding your report to Frank Cordingley, NCC, and the Civil Liabilities Act 2002, which is integral to understanding financial risk for organisations considering arborist reports.
    To state up front: I am not a lawyer.
    Justice Ipp of the Supreme Court of NSW, with a special interest in Negligence and Tort, reviewed this field of law with a view to increasing personal responsibility and reducing the excesses of negligence law. This fuelled the creation of the Civil Liabilities Act NSW 2002. Justice Ipp states (and while also quoting Chief Justice Spigelman) :

    The courts are now attributing greater weight to the notion of personal responsibility when determining liability in negligence cases. For example, the High Court has said: “People of full age and sound understanding must look after themselves and take responsibility for their actions”. The Chief Justice of New South Wales has said:
    “In many respects the tort of negligence is the last outpost of the welfare state. There have been changes over recent decades in the expectations within Australian society about persons accepting responsibility for their own actions. Such changes in social attitudes must be reflected in the identification of duty of care for purposes of the law of negligence. The recent authoritative statements in [the High Court] give greater emphasis, in the development of the law of negligence, to the acceptance by individuals of a personal responsibility for their own conduct, than may have been given in the past.”1
    AND LATER
    In Reynolds v Katoomba RSL All Services Club Limited[88] Spigelman CJ, in holding the law does not recognise a duty of care “to protect persons from economic loss, where the loss only occurs following a deliberate and voluntary act on the part of the person to be protected”2

    Clearly it creates much anxiety when, for example, council officers put into place risk mitigation processes which are then ignored by people. This also appears to have caused modification of your risk assessments.
    On page 11 of your report to NCC you state:
    “The resulting implication of the ignorance of posted parking and access restrictions is
    that targets are not being restricted from the target area. As such the risk
    management measures would be considered to be negated.”

    1. Is there a legal basis to your this statement?
    2. Does QTRA take into account personal responsibility as recognised by the Civil Liabilities Act NSW 2002 ?
    3. Does council have to then act further by e.g. setting up impenetrable barricades if signs are ignored?
    4. How has the arboriculture community responded generally to the Civil Liabilities Act 2002

    I would be happy to discuss this by phone if you would like or email me
    Kind Regards
    Jeremy Smillie
    cc Frank Cordingley
    Lindsay Field

    1. PERSONAL RESPONSIBILITY IN AUSTRALIAN SOCIETY AND LAW: STRIVING FOR BALANCE The Honourable Justice David Ipp* Supreme Court New South Wales.
    2. POLICY AND THE SWING OF THE NEGLIGENCE PENDULUM D A Ipp, Judge of Appeal, Court of Appeal, Supreme Court of New South Wales

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