Julatten trees - the final chapter ?

To: "" <>
Subject: Julatten trees - the final chapter ?
From: Lloyd Nielsen <>
Date: Wed, 28 Oct 1998 23:12:37 -0800
 Hello everyone

Hopefully this will be the final chapter in the saga of the Julatten

I am pleased to say we have  had a second win over the Council - the
trees are to stand as they are and will not be lopped.  A comprimise
very much in our favour has been agreed to - some light pruning of a few
small dead branches on some of the trees after the birds' breeding
season is over - about February - will be carried out.  No potential
hollow bearing branches or others that will effect the birds in any way
will be touched.   (Council has described it as a 'win win' situation
for everybody concerned! )

 And believe it or not, some of the area beneath the trees is to be
planted up to create an exclusion zone.

We actually put a similiar proposition to Council several months ago as
a compromise during the first round.  There was no planting of
understorey mentioned but we agreed to a few more small dead branches
being removed.   Council rejected this on the grounds that it would not
fulfil its 'duty of care' to the public.

The final  blow was won by a magnificent effort from Wildlife Consultant
John Young in persuading Council to adopt the compromise.  (Council had
agreed to postpone the lopping until John could address Council on the
matter).  John's somewhat aggressive and convincing persuasion in such a
situation, combined with the pressure we had on Council through TV and
media and the pile of protest messages streaming into the Minister's
Office from all our friends seemed to have Council slowly backing
down.   In the end after a final day of very hard work on John's part,
the Council voted unanimously to adopt the compromise (one Councillor
forced Councillor Gray's hand up though after the meeting, in typical
form,  Gray was adamant the trees should still be lopped or cut down).

So there it rests.  We are still  waiting for the Minister's response
and will still be pursuing some form of permanent exclusion zone through
his department.   Needless to say, we are not being complacent about the
whole matter despite another win, for we have experienced the way this
council works (or does not work!).

One final interesting point - the day after the Council meeting which
agreed to the compromise, legal opinion
arrived from the Environmental Defenders Office (of which we will be
making Council very aware).  I know there are quite a few  people
interested in this so I will briefly list the main points -

We were advised that -

There was not sufficient evidence requiring Council's interference with
the trees
There was quality evidence that no interference was required
There is legal authority that clearly states removal of any potentially
dangerous tree is not what is required by
duty of care
The basis upon which Council proposed to act, namely compliance with its
duty of care is not necessary nor a
contravention which 'could have been reasonably avoided' and so would
comprise an offence against the Nature
Conservation Regulations 1994.
That erection of signs alone would satisfy the duty of care
That erection of a simple fence to prevent approach to the danger zone
without noticing the signs would go
beyond what is legally required of similar authorities in the more
recent cases in the High Court.

It seems that Council's legal advisers are unaware of the recent cases
in the High Court and that basically their
advice is outdated.  One of the important recent cases is Romero v
Conservation Commission of the Northern
Territory [1998].

 I would like to say once again, many many thanks for your support in
the form of faxes, messages to the Minister
and to us with encouragement and so on.  It was quite overwhelming.
Thanks from us all up here!

 I might add (from this experience) that if you have a problem such as
this, get onto your Environmental Defenders Office ASAP.  And if it
becomes 'stalemated', contact John Young.  (He had a good win with the
recent Masked Owl problem near Port Macquarie as well).  And I would
also be happy to give advice on our experience if a situation arises.

Lloyd Nielsen.

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