Letter from SOF Inc to NCC GM written 19.10.2011

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Dear Mr Pearce:

Thank you for your invitation to enter into an Agreement to Procure Expert Evaluation of the Laman St trees. On behalf of the many Novocastrians who love these trees, we wish to extend our appreciation to you for providing this opportunity in the light of the evident impracticality of implementing the council’s resolution to remove the trees in the current volatile situation.

We have now had the opportunity to examine the proposed Agreement, and believe that it provides an sound basis upon which to proceed with the proposed expert evaluation. Below, we have raised a small number of issue which we believe could and should be quickly resolved, and that – once this is done – we would be ready to sign the agreement immediately.

The points we wish to raise are:

1.       Cl. 2.1: We request the addition of the words “The General Manager may add further names to this list in the event that none of the nominated experts on the list are available to undertake the Evaluation.” This covers the contingency of having no available nominees.

2.       Cl.2.7 (a): We request that this part be deleted, since it entails SOF signing away standard rights to procedural fairness/natural justice. The potential qualification in the wording “except as may be provided in the Expert’s Terms of Engagement” is unclear, since the Terms (in Schedule 5)  are not included in the copy of the document provided, and we have not yet had the opportunity to consider them.

3.       Cl. 6 (a):

3.1.    We request that the words “or the Trees” be deleted from this subclause, since the current wording could be construed as preventing SOF from entering into any court proceedings in relation to the trees, even where these might be entirely unrelated to the Evaluation.

3.2.    We request that the words “…provided the Evaluation complies with the terms of this agreement” be added at the end of this subclause, so that it reads “not commencing or maintaining any court proceedings in respect of the Evaluation, provided the Evaluation complies with the terms of this agreement.”

4.       Schedule 1 “Issues for Expert’s Evaluation”, question 4 (p. should read “What steps, if any, could reasonably be taken to eliminate or reduce the risk to an acceptable level“. This was the final version of the list of questions generated at the mediation: the current wording is based on an earlier draft of the McHugh questions.

5.       Schedule 5 (General Terms of Engagement of Expert): We request a copy of this, since references to it in the “Agreement to Procure Expert Evaluation” document relate to several matters of significant substance in that document (such as rights to procedural fairness /natural justice).

Matter for noting:

We have concerns about the vagueness of question 7 in Schedule 1, which has been added to the list of questions generated at the mediation, in relation to the lack of any transparent criteria for what might be construed as “reasonable”, and what standard of reasonableness might apply.

Thank you once again for this initiative, and we look forward to your response to these matters, and to signing the agreement in the near future.

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