Letter to NCC General manager written 20.10.2011


Dear Mr Pearce

Thank you for the updated copy of the proposed agreement between Council and Save Our Figs .

We have considered your response to the matters that we raised in our previous correspondence and, whilst we find it regrettable that you are not prepared to accept a number of our requests (particularly those related to waiving rights to natural justice and legal action), we are prepared to proceed to sign the agreement for Expert Evaluation under the terms you have outlined.

However, we note with surprise that the new draft agreement you provided yesterday now refers to the proposed process as “Independent Expert Assessment”, replacing the term “Expert Evaluation” used in the previous draft. We expressed no disagreement with the term “Expert Evaluation” as a description of the proposed process, so it is unclear to us why this has been changed without notice or consultation. We ask that the original title be reinstated.

We do not believe that the process outlined in the agreement is accurately or reasonably described as “independent”. A genuinely independent process would be:

·         developed through joint negotiation and mutual agreement, and

·         undertaken according to a structure and process at arm’s length from both parties, including project management, and contract and payment arrangements.

The process outlined in the proposed agreement does not meet these criteria. Whilst we acknowledge that the proposed process does contain a number of elements discussed during our curtailed negotiation for an independent expert assessment process, and that some changes have been accepted as a result of our recent representations, the agreement document has been presented to us on a largely non-negotiable “take-it-or-leave-it” basis, and the process it describes will be very much under council’s direct control, despite the fact that Save Our Figs will be paying half the cost. Already, the names of three arborists nominated to conduct the assessment process have been generated without any consultation with Save Our Figs, and according to selection processes and criteria that are unstated and into which we have had no input. The proposed assessment process will be project-managed internally within Newcastle City Council entirely under your supervision, and entirely in accordance with council’s existing systems. We appreciate that this will occur with some internal separation from council staff who have been  closely involved in this matter, but that does not make the process genuinely independent of council.

In the highly unusual circumstances that now apply, we have entered into this recent phase of the process in good faith and in a spirit of compromise because the option you have offered appears to be the only hope for the community to avert the unnecessary loss of Laman Street’s beautiful heritage avenue of trees, and because we do not want to see significant civil disorder and continuing division in our city and community over this issue. We ask you to appreciate that Save Our Figs has already made significant compromises in reaching this point. We have indicated our willingness to pay up to $10,000 toward Expert Evaluation, despite the fact that the proposed model will be entirely controlled by council. We have already devoted hundreds of hours of volunteer time to accommodate the pressing timeline of this process. Under sufferance, we are even prepared to agree to waive standard rights to natural justice and legal action, and to accept an arborist selected by council with no consultation with us.

In doing this, we appreciate that the model you are proposing necessarily places an enormous burden of trust in you, and in your commitment and ability to manage it in a way that is transparent and accountable. Whatever the details of the agreement we sign with council, we are sure that you are very aware of the high degree of expectation in the general community that will flow from this agreement and the process it initiates, and the associated public interest and scrutiny it will entail. The extent to which this process will be “independent” will depend on those factors, rather than on any inherent independence in the structure or process of the proposed model.

Aside from this concern about the new title on the draft proposal, we are ready to sign the agreement, and to indicate our preferred expert from the list of three provided by council. We may need a little more time to complete the list of documents required under Schedule 5, but we imagine that this will involved only a minor delay, if any, to our ability to sign the document, pending your response to our request to reinstate the term “Expert Evaluation”.



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