Ministerial Enquiry Called Over Fig Fiasco

The Premier of NSW the Hon Barry O’Farrell MP
Tim Owen MP Hon Member for Newcastle
Mr Andrew Cornwell, MP

Dear Mr Premier, Tim, and Andrew,

Please find the letter to the General Manager as images below. Sent to the Lord Mayor and Councillors. You will see I have also attached the 1968 letter as evidence of our longstanding efforts.
This letter follows on from matters placed before the Premier and Directorate of Local Government. RE Previous letter copy below.

Cheers and hope you all are well
Yours sincerely
 Doug Lithgow

________________________________

Mr Ross Woodward Chief Executive
Local Government Division, NSW Premier’s Department
50 Keefe Ave
Locked Bag 3015
NOWRA NSW 2541      

Saturday, 17 December 2011

Dear Mr Woodward

Newcastle’s Civic Precinct Planning untruthfulness & Council’s Fig fiasco

This is a very serious matter requiring your attention. A bizarre situation has developed in Newcastle due to Newcastle Council’s public half-truths about the Newcastle Civic Precinct future development. This situation has been exacerbated by Council’s misinformation, inappropriate procedure and Councillor Intransigence. A breakdown of public confidence in the elected Council has occurred and requires appropriate investigation by the NSW Division of Local Government and possible intervention to correct the situation.

Newcastle citizens wonder why Newcastle Council has persisted in bullying their way into the Laman Street Fig fiasco. Council’s behaviour has caused heartache and inconvenience to the lives of those who care about the city and its amenity. There is also the unreasonable cost, inconvenience and waste that Councillors have unreasonably foisted on to the city ratepayers. As you know the Parks and Playgrounds Movement has given more than fifty years of service in the public interest to the Hunter Region, especially to the City of Newcastle and we are distressed by this bizarre situation that has been allowed to persist.

This unsatisfactory situation cannot be resolved if this important cultural precinct is to be stripped of its attractive mature trees without the a proper review of the exaggerated risk assessment that certain Councillors rely on to form an opinion that the trees need to be felled for the purpose of  removing a traffic hazard.

General Background

By apparently not wanting to amend the official Civic Precinct Plan of Management (POM) in a transparent way and by their clandestine development proposal the Newcastle City Councillors have created a fig fiasco. All Public Parks are required to have Plans of Management and Council is required to implement them. The 1993 Local Government Act introduced Plans of Management in an effort to provide better management of parks and public lands in NSW and to allow the community to have a say. In the year 2000 Council adopted an official Civic Precinct plan which included Council owned land at Civic Park, Laman Street, Christie Place and Church Walk Park.  Council may amend the plan but certain rules are expected to be followed for public exhibition, public submissions and a public hearing.

Council’s proposals that required the removal of 14 fig tress from Laman Street should have triggered the Plan of Management provisions of the Local Government Act and been lawfully exhibited to the citizens of Newcastle for their consideration.

The situation as it developed.

The exhibition of Council’s plans was not going to happen in the Civic Precinct because Council, as we now know, was secretly developing proposals for an under Laman Street building and major engineering works to level and extend Laman Street into Civic Park to create a wide mezzanine plaza that was to be called ‘Anzac Centennial Place’. The proposal was predicated on the removal of 14 trees in Laman Street and the obliteration of the existing Memorial Grove and changes to Civic Park Fountain. The proposal should have been exhibited as an amendment to the Civic Plan of Management but was not. Nor was it honestly introduced to Council’s two day workshop in May last year that was supposed to be considering the future of the Civic Precinct. The time and energy of the seventy participants that had given up their weekend in good faith to consider the issues was misused and wasted. Unfortunately there are other recent examples of the disregard of transparency in parkland planning at Nobbys, Merewether and King Edward Headland Reserve with Newcastle City Council and it may have become a systemic problem.

The proposal for an Anzac Centennial Place in Laman Street was registered with the Commonwealth Anzac Centenary Commission on the 17th of September 2010 in the name of the City of Newcastle,  (Submission Number 290 Commonwealth  Anzac Centenary Commission  from Website
 
Name/Organisation: City of Newcastle
Submission Summary: The creation of a new public space called Anzac Centennial Place at Laman Street, in the cultural and commemorative heart of Newcastle. The project consolidates and reinforces the commemorative efforts of a previous generation, thereby giving continuity to the community's acts of remembrance.
Date received: 17/09/2010) 



Council did not resolve and Exhibit their proposals & we had to commence Legal action.

Parks and Playgrounds Movement Inc. made an application to the Land and Environment Court in the public interest for an injunction to restrain the Council from their precipitous intention to remove the trees without first resolving and exhibiting their Plan of Management for the precinct.

We obtained the injunction but were unsuccessful on the wider issue because we were prevented from considering matters of merit. Furthermore Council did not disclose to the court evidence of their Centennial Place development proposal. Newcastle Council had not made this proposal public even though they had registered it with the Commonwealth Centenary Commission prior to the court hearing.

In that court case Council, in their Respondent’s Submissions lodged with the Court 5/11/2010 claimed that there was no broader activity proposed other than tree removal. (Paragraphs: 76, 77, 78, page15 see attached Respondent’s Submission L&E Court 05 Oct 2010).

They repeat this claim in the following paragraph (77) that no works beyond the removal of the trees has been sanctioned, or were presently proposed. They further claimed that to the extent that any works were envisaged to be undertaken beyond the removal of the trees, those works would be in consequence of the removal of the trees. 

Paragraph 78 goes on to maintain that it is the tree removal that has necessitated further works in the future.

The future works proposed but not made open and clear in public arena were for the building of an under-Laman Street Library building and the extension of Laman Street into Civic Park to create a wide plaza.  Normal Council transparency would require that such proposals affecting public land need to be exhibited to the public for consideration as provided for in the Local Government Act.

Far from being transparent, Council has insisted that these fourteen trees are a traffic hazard and must be removed as a matter of public safety.

The Council’s Exaggerated Risk Assessment requires independent review
Why are Councillors reluctant to review the risk analysis for the fig trees when they know their analysis has been fairly challenged as being exaggerated and unscientific? They have been offered help or funding for an independent assessment by the Insurance Coy, a citizen donor and by the Premier of NSW but certain Councillors have frustrated Council by resorting to technicalities of meeting procedure to evade this logical resolution. In this way they have caused a deep rift to develop between the community and council and caused much inconvenience and extraordinary costs by their intransigence.

The Newcastle’s fig fiasco is no doubt the result of a mixture of public misinformation, inappropriate procedure and Councillor Intransigence. We request that the Local Government division of the Premiers Department intervene as a matter of urgency to defuse the confrontation and institute a clear open process for the planning of the Newcastle Civic Precinct.

Yours sincerely
Doug Lithgow

President Parks and Playgrounds Movement

Copy to:
The Premier of NSW the Hon Barry O’Farrell MP
General Manager & Lord Mayor Newcastle City Council
_________________________________

Points of Contention in the Fig Debate

Dear Colleagues,

Re the contribution to the Fig Debate from Council’s web site:
http://www.newcastle.nsw.gov.au/about_newcastle/news_and_events/media_releases/media_releases/fig_forum_light_on_facts/_nocache

These issues are in contention from the Council’s point of view and can be answered formally.

The issues will not go away (trees or no trees) and the Council should show “Reasonable Cause” for their resolution to remove the trees under section 88 of the Roads Act 1993. (The question is: 'If a Councillor has' can mean 'If a Councillor thinks he has'. I believe that Council cannot now have a reasonable cause for the opinion that the trees are a hazard to traffic.

In the case Parks and Playgrounds Movement Vs Newcastle Council September 2010 it was presumed that General Manager Lindy Hyam had the opinion that the trees were a hazard to traffic.
However this week’s Forum demolished the basis for such an opinion to be held by the Council. Elected Councillors should show “reasonable cause” for their action in forming the opinion that the trees are a Hazard to traffic.

I have listed the issues in dot points below:

If you wish to understand the proposal for the widened Laman Street Plaza,  Called Anzac Place in Council’s submission to the Commonwealth Commission, it is attached below. The proposal was exhibited euphemistically as a Design Framework and has Council’s Logo on the front page. It claims to be from the two day workshop in March 2010 but was not.

Council states on its web: Last night’s fig fact forum included a number of statements that were false. These are addressed below. (I have paraphrased the 14 points. Full text on Council’s web site)

§         Council is a public body proud of its openness and transparency- it has conducted public forums, voice etc and provided information on Council Website.
§         Offensive to claim Council withheld Radar reports- request processed under Government Information (public access) Act.
§         Council has obtained 4 independent Arborist Assessments.
§         Council’s insurer will not cover risk beyond 31st Jan 2012.
§         Irresponsible statements that trees safe- 35 out of 135 removed failed and removed from the inner city.
§         Anzac Plaza is not reason for removing figs it is an idea sent to Commission –not funds application.
§         No tree reports have anything to do with Anzac Plaza.
§         Not the first time the Roads Act has been used to remove hazards - decision upheld by Court.
§         Behaviour of SOF people has required the Police.
§         A detailed response to Prof Stewart is on the Council Web.
§         SOF refers to arborist reports that contradict Council’s advice- they are not legally accountable Council’s advice based on knowledge of the site.
§         No ulterior motives and Council will replant 4 metre high trees in vaults to prevent root problems.
§         Council acknowledges that Trees have become contentious but acts for whole community.
§         Council desires to concentrate on Core Duties.

Cheers to all,
Doug Lithgow

Who is responsible for Council expenditure?

The Letter below was published by the Newcastle Herald 9th December. It should be made clear to everyone that Local Government Councillors can delegate some functions to their administration but they cannot delegate responsibility and they are barred especially from delegating financial responsibility. They cannot escape their legal responsibility although many do try to hide their responsibility by loudly claiming it is someone else’s fault. See Section 377 of the Local Government Act for matters that Council cannot delegate. DL.

Doug Lithgow


Wednesday, 7 December 2011


Letters Editor
The Herald
Bolton Street
NEWCASTLE 2300

Dear Sir

Who is responsible for Council expenditure?

Letters (Newcastle Herald 7/12 The other belligerents ) suggests that the community is responsible for expenditures of the Newcastle Council. This is wrong.

The Local Government Act 1993 makes it mandatory that only Councillors have the power to vote for expenditure of moneys or set Council Rates. It is only Councillors that can be responsible and must be held responsible.

For instance, certain councillors consistently vote that the trees in Laman Street be felled knowing full well that the risk analysis has been challenged as being exaggerated and should be reviewed. Furthermore councillors know that the cost of removing the trees is in excess of one million dollars plus the further costs of unpublished and un-costed proposals for refurbishing the street.

Some councillors have clearly not acted responsibly.

Doug Lithgow
See Section 377 of the Local Government Act for matters that Council cannot delegate.


BACKGROUND

Some background to the Laman Street Trees Issue.

These documents provide information to show how Newcastle got into the 'Fig Fiasco'.

The aim now should be to close Laman Street, have it Classified 'Community Land' and save the trees within a Civic Park Plan of Management. But by the article in the Newcastle Herald it appears that Labor has pulled out of the Laman Street Issue.

Dear Colleagues,

Some points from history of council strategy to destroy the old trees at Civic.

The removal of older trees from the City began with General Manager Janet Dore. It was her policy and she employed a specialist to carry it out.

His name was Phil Hewett (just retired and kept on as a consultant I believe). The only thing that put a brake on the destructive tendencies was the Community Land provisions of the Local Government Act especially the Civic PoM that included Laman Street (Council owned Land) Civic Park Christie place and Church Walk Park as a unit. (Adopted by Council April 2000)

Janet’s policy is set out in general terms in her article in the Herald 26th Jul 2002. (See below)

The Parks and Playgrounds Movement have been involved in promoting conservation and protection of parks and landscape going back to the 1930’s.

Parks and Playgrounds voiced our objection to the Civic Framework Exhibition that included the Laman Street Plaza plan and the Under Laman Street Library building proposals that immediately threatened destruction of the Laman Street Figs and initiated the current crisis. It is all in the Design Framework documents the Council exhibited at the start of the year.

Great efforts have been made but the Newcastle Council remains intransigent and new directions are needed.

The last Council had all the opportunities to set clear goals to guide the next Council. It had 4 Greens and a strong ALP group.

When Newcastle got a New Council and a new Gen Manager, most Councillors were new and had never been to a Council Meeting. The new General Manager had been planted in the job also with no experience in Local Government. Somewhere there is the backing of the ALP right wing in the last days of a corrupt Government. The right wing undermined and felled Bryce Gaudry and planted Jodie also with no experience.

With all new directors in the Council and the right wing hatchet men in control what can happen?

The Truth, Transparency and fiscal intelligence have been the first casualties in this bazaar political melee.

I look forward to a shake up and I hope SOF continues to claim the high Ground. Out of his will come a few decent Councillors?

Cheers
Doug.


If you want a stating point re: removal of old trees including the Laman St Figs see the article below which was published in the Herald. It involves the newly appointed Arborist Mr Hewett.

It is nicely written but cannot disguise the intent to get rid of the veteran trees. Janet wrote the article after we challenged the Council for cutting down the first Fig in Civic Park. The Fig tree root in the electric cable trench that features on Council’s web site is from that first tree felled on the corner of Auckland and King Street. No doubt Council could claim to be using the Roads Act. However the real reason for that removal was for a new widened cement foot path around Civic Park which was part of the 2000 POM).

Old trees pay for past malpractice - Janet Dore  Newcastle Herald  Published: 26-Jul-2002


Newcastle City Council now faces difficult decisions about the management of old trees in a changing urban environment

While the city plans for future urban forests, Janet Dore explains why old plantings and old practices continue to cause problems.



As a city that prides itself on policies based on sustainability, heritage and culture, the removal of Civic Park's ageing fig was a difficult and sad task.



Newcastle City Council planted 4500 trees last year.



We are committed to providing urban forests that beautify our city, promote sustainability and protect public spaces for future generations.



Those thousands of trees planted last year will one day shade our grandchildren and their children.



Removing the fig in Civic Park has raised issues that as a community we all need to consider. Our city has changed and will continue to grow around trees planted many years ago.



So how should we manage veteran trees in an urban environment that has changed dramatically over their lifetime?



Newcastle has many hundreds of large mature fig trees on public and private land, most of which were planted between 60 and 80 years ago.



If we reflect on past tree maintenance practices, we will discover that most are no longer in vogue today.



For instance, it was common to cut the tops off trees, almost as if they were rose bushes, and then to continue lopping as a routine practice. At the time, lopping seemed to solve the problems of growing large trees in confined spaces.



What we have found today is that lopping exposes the inner wood of trees to the elements and the bigger the exposed area of wood, the greater the risk that decay will severely weaken the tree at maturity.



At the same time, branches that grow to replace lopped branches are poorly attached and prone to falling.



It was also common in the past to install infrastructure and other civil works by open trench excavation, regardless of the presence of tree roots.

Technology today allows us to bore underneath tree roots and to repair infrastructure such as cables and pipes without open trenching.



However, since trees may take many years to decay, past work damaging the tree is often forgotten.

It has been suggested that we look to the issue of figs in Hyde Park, Sydney, and adopt a similar approach. However, this is comparing apples to pears.



The figs in Hyde Park have enormous space for root stability and have grown on a sandstone soil base. Their stabilising roots have found support in rock sandstone fissures.



By comparison, the figs in Newcastle have to contend with soils built of industrial waste with considerably less space to develop stable root systems.



This is not an issue unique to Newcastle. The management of veteran trees has become problematic for communities in Sydney and Melbourne and internationally. For this reason, a focus on urban tree management has become critical for future sustainability.



Unfortunately, urban living puts stress on our trees. A tree that may live many hundreds of years in natural conditions can reach its aged life after a mere 80 years in urban conditions.

The tree removed from Civic Park last weekend illustrates the problems we have in dealing with our past practices.



So, how should we be treating our trees in the future?



Newcastle City Council has introduced a pro-active approach to selection, maintenance and replacement of our urban trees.



We have surveyed 53,000 street trees and recorded their statistics on a database. We are currently auditing these trees, identifying their maintenance needs and setting an inspection regime for each tree.



We are also investigating the benefits of looking at the trees of Newcastle as an urban forest. An urban forest is simply the total of trees and large shrubs that grow on public and private land in any urban area.



Urban forests contribute significantly to quality of life for urban residents, by capturing stormwater, shading bitumen and buildings, reducing the risk of skin cancer and absorbing fine pollution particles that affect asthmatics.



Newcastle City Council is presently working with the Local Government Association to review software for calculating the benefits of urban forests. We are also developing a more integrated approach to design of new infrastructure so that civil works and trees do not come into conflict in the future.



Newcastle City Council will continue to plant trees in the city and manage these responsibly. Our tree selections have been made with due regard for the future and we do not anticipate the next generation of Novocastrians will have to experience the unexpected and heartbreaking loss of its veteran trees.

Janet Dore is general manager of Newcastle City Council.

Open Letter to the Honorable Barry O'Farrell MP

Open Letter to the Honorable Barry O' Farrell MP,
Premier of NSW

Dear Premier

Plan of Management identified Trees: Civic Cultural Precinct - Newcastle

The State must intervene at Civic Newcastle because of the Council's wrong conduct in inappropriately using Sec.88 of the Roads Act to clear Laman Street for widening into Civic Park to progress an unortherised development.

Every park in Newcastle is governed by a Plan of Management (PoM) indeed every public park in NSW has a PoM. This is a statutory requirement under the Local Government Act 1993. Crown Reserves in Newcastle like King Edward Headland Reserve have a PoM under the requirements of the Crown Lands Act.

Newcastle Council is morally and legally bound to respect the official plans of management and only approve complying developments. If a Council wishes to carry out other developments they must lawfully amend the PoM.

This machinery is there to bring a transparent and open approach to the management of public lands and parks and to give citizens a chance to make formal input with an independent public hearing.

The PoM for the Civic Cultural Precinct identified the Fig Trees in Laman street as a principal landscape feature and to be only subjected to minor pruning to maintain the vista.

By invoking the Roads Act to circumvent the provisions of the PoM and remove these significant trees is wrong conduct as there are no road works being done and there is no credible traffic hazard.

Newcastle Council should be caring for the trees and carrying out minor pruning as required by the Plan of Management.

Newcastle needs help to provide an independent risk assessment of the trees because the Council's risk reports are extravagantly exaggerated to justify a basis for invoking the Roads Act S88.

The people of Newcastle are outraged and need honest help.

Yours Sincerely

Doug Lithgow Freeman of the City of Newcastle
President Parks and Playgrounds Movement Inc.

Newcastle City Council ‘Civic Precinct Design Framework’ & Laman Street

The Design Framework for the Civic Precinct included many proposals including those illustrated below. They were bundled into a confusing item in the Council Resolution of the 17th ‘of August 2010 that caused the current problems at Laman Street Trees.

Now a year later, after more than $200,000 Dollars have been wasted and the Community’s trust and confidence in the Council shattered it Council hasn’t resolved what it is trying to do.

Laman Street is part of the approved plan of management for all the council owned land in the Civic Precinct. This land includes Civic Park, Laman Street, Christie Place and Church Walk Park. The management Plan controlling the area was adopted by Council in 2000 and is still the official plan. The Laman Street Trees are charted on the official PoM.

There is a lawful process for amending the Plan.  It requires the public exhibition of the amended plan and the invitation of public comment and transparent resolution of the plan.

Newcastle has never formally included its framework ideas into the official POM for the Precinct. Ideas including a Library under Laman Street have been touted.  (See below)

This proposal would require massive earthworks in Laman Street and the destruction of the fig trees to create a widened plaza extending into the park

COUNCIL MUST DECIDE WHAT IT IS DOING AND GIVE THE PEOPLE A CHANCE TO MAKE COMMENT BEFORE FURTHER DESTRUCTION OF THE LAMAN STREET.