Agenda of Special Parks and Recreation Committee Meeting

Item No. 4.1

Agenda (Open Portion)

Special Parks and Recreation Committee Meeting

Page 6

4/3/2019

REPORT TITLE: Fern Tree Park Master Plan Implementation - Response to Petition - Retention of Bus Shelter and Sympathetic Redesign of New Toilet

REPORT PROVIDED BY: Acting Group Manager Open Space

Director City Amenity

1. Report Purpose and Community Benefit

1.1. The purpose of this report is to respond to a petition proposing the retention of the Fern Tree Bus Shelter (as a component of the implementation of the Fern Tree Park Master Plan) received and accepted by the Council on 4 February 2019.

1.2. The petition conveys local Fern Tree resident concern regarding the proposed removal of a local Fern Tree Bus Shelter and its replacement with new modern combined toilet and shelter as part of the implementation of the City’s and Wellington Park Management Trust’s Fern Tree Park Master Plan 2017.

2. Report Summary

2.1. The Fern Tree Park Visitor Node Master Plan 2017 recommends the upgrading of facilities in Fern Tree Park including a playground, new picnic shelter, new combined toilet and bus shelter, upgrading of the Fern Glade Car Park with a new footpath and roadworks for improved access and safety between the sites.

2.2. Planning permissions and permits have been issued, detailed designs prepared and a contract executed with contractor appointed with the planned to commence in March 2019.

2.3. The development of the Master Plan has taken five years. It was initiated in 2014 with prolonged and extensive investigations undertaken due to the significant site constraints and accommodating the site’s broad values. Regular engagement was had with the community along the journey.

2.4. The most challenging decision was finding a suitable location for the toilet which was ultimately determined by the community to be located on the old rock bus shelter built next to the Park and Pipeline Track.

2.4.1. It is noted that the current public toilets located within the Park are now the worst in the City’s network for amenity and access, with their replacement essential.

2.5. On the 4 February 2019, a petition was received and accepted by the Council signed by 74 Fern Tree residents (representing 26% of Fern Tree households) requesting:

for the Hobart City Council to respect the historic, landscape and community values of the Fern Tree Park by retaining the stone bus shelter built by local community members post 1967 bushfires, and by redesigning the proposed toilet, which will be highly visible from the road, to be more sympathetic to the historic as well as natural values of the Huon Road corridor through its design, materials and finish. We request further community consultation on the revised design.

2.6. The lead petitioner also sent a letter to accompany the petition requesting the consideration of two other sites for locating the toilet;

2.6.1. One in Fern Tree Park near St Raphael’s, and

2.6.2. The other 70 metres along the Pipeline Track from the Park entrance.

2.7. The lead petitioner also requested consideration of the redesign of the toilet with different materials, colours and aesthetic to complement the rustic character of Fern Tree; and called for further consultation with the community.

2.8. A meeting was held on site on 22 February 2019 with some petitioners and representatives of the Fern Tree Community Association (which had previously stated its support for the project). Concerns were discussed and it was agreed the identified site options would be further investigated with the results reported to the Council in its consideration of the petition.

2.9. The two sites have undergone preliminary (independent) assessment in the week since the site meeting.

2.10. The site next to St Raphael’s Church has been eliminated due the impact of its heritage landscape values being unacceptable.

2.11. Three options are presented for the Council’s consideration in responding to the petitions request.

Option 1

Proceed as planned with some redesign of the toilet/ new bus shelter on the current site. Communications to be had with all Fern Tree residents regarding the project history and site evaluation.

Option 2

Negotiate the separation on the existing construction contract to allow the construction of landscaping, playground and picnic shelter. Then allow 30 days for investigations to explore in more detail the relocation of the toilet. Temporary toilets to be installed at Fern Glade Car Park in absence of a formal toilet facility.

Option 3

The entire project be deferred necessitating the cancellation of the contract, and reallocation of the funds for this project to another project.

3. Recommendation

That:

1. The implementation of the Fern Tree Park Master Plan be staged with the works on the redevelopment of the Park, excluding the construction of new toilets, to proceed as planned, subject to the successful negotiation with the contractor in respect to the current signed construction contract, with the General Manager to be delegated authority to negotiate any contractual amendments.

2. Subject to Clause 1, the provision of new toilet facilities be undertaken as a separate stage, including:

a. Detailed assessment of an alternative toilet site location, proposed as being sited 70m from the Park entrance along the Pipeline Track

b. Exploration of potential design refinements of the currently approved toilet/bus stop facility to address petitioner concerns with the appearance of the facility within the local context.

c. The installation of temporary toilets in Fern Glade Car Park pending the construction of new facilities.

3. Consultation be undertaken with Fern Tree residents on any proposed changes to the siting or design of the toilets in order to secure broad local community support.

4. The petitioner and signatories to the petition and Fern Tree residents be notified of the Council’s decision.

5. A further report be provided to the Council with the outcomes of the recommendation.

4. Background

4.1. The Council at its meeting of 4 February 2019 received a petition entitled Fern Tree Bus Shelter Retention on behalf of 74 Fern Tree residents who signed the petition.

4.2. The petition requests:

4.2.1. for the Hobart City Council to respect the historic, landscape and community values of the Fern Tree Park by retaining the stone bus shelter built by local community members post 1967 bushfires, and by redesigning the proposed toilet, which will be highly visible from the road, to be more sympathetic to the historic as well as natural values of the Huon Road corridor through its design, materials and finish. We request further community consultation on the revised design.

4.3. The Council resolved that the petition be received, noted and referred to the appropriate Committee.

4.4. A letter, dated 28 January 2019 was also sent to the Lord Mayor and the Chairman of the Parks and Recreation Committee outlining the lead petitioner’s concerns. The 16 page letter was intended to accompany the petition (refer to Attachment A).

4.5. The petition and correspondence relates to the City’s planned implementation of the Fern Tree Park Master Plan (2017) which provides for the upgrading of facilities in this area, a new combined bus shelter and public toilet; a nature based playground and picnic area; upgrades to Fern Glade Car Park and entrance to the Fern Glade Walking Track; landscaping and vegetation removal and safer access for pedestrians into the park and along Huon Road

4.6. This report outlines the history of the project, the extent of community engagement undertaken and details consideration that informed the Master Plan content.

Project History

4.7. In April 2014, the City with the Wellington Park Management Trust (WPMT) commenced the process of developing a Fern Tree Park Visitor Node Management Plan that included Fern Tree Park, Fern Glade Entrance Car Park, Silver Falls and Fern Tree Bower.

The need for the Master Plan was driven by aging and deteriorating park infrastructure built in the early 1970’s and the recommendation for a master plan for Fern Tree Park and surrounds in the Wellington Park Management Plan 2015; and the City of Hobart Public Toilet Strategy 2015-2025 recommending the Fern Tree Park toilet’s replacement. Overall the upgrade of Fern Tree Park was to improve the Park to one that is commensurate with being one the three main access points into Wellington Park.

4.8. Local consultant Inspiring Place, engaged to prepare the plan, facilitated community engagement in the early stages of the development of the plan with two on site sessions held with community representatives. The Fern Tree Community Association (FTCA) and Fern Tree Playgroup were identified as key local community stakeholders. The FTCA invited residents to attend and City officers erected posters at key locations around Fern Tree to promote the sessions, ads were placed in newspapers, and City website and social media promotion undertaken.

4.9. The lack of safe access to and between Fern Tree Park and Fern Glade Car Park and Stephenson Place combined with the topographic challenges were identified at an early stage in the Master Plan development as significant constraints to the development of new and accessible infrastructure within the Park. Access consultant, Michael Small, was therefore engaged to assist in finding solution.

4.10. An historic heritage assessment was undertaken by the WPMT for the Fern Tree Park entry area within Wellington Park. The Fern Tree bus shelter (the building requested for retention in the petition) was not considered in the assessment as it is outside of Wellington Park.

4.11. Additional issues were identified with regards to finding a suitable waste management solution for a new toilet that would minimise impact on the Park’s natural and cultural heritage values; this included the large number of valuable and listed trees located around the playground and picnic area.

The TasWater drinking water pipeline that traverses underneath the Pipeline Track also restricted options for locating and constructing new facilities.

A number of locations and solutions were investigated in detail.

4.12. To overcome these constraints a solution was eventually proposed to locate a new public toilet to be built at the rear of the Fern Tree Tavern Car Park with support from the Tavern owner.

4.13. This was recommended in the Draft Master Plan which was released for community engagement in November 2016. A broad range of mediums were used to invite community comment on the draft plan.

4.14. The City’s Hobart Access Advisory Committee (HAAC) visited the site with the specialist access consultant and project team.

4.15. The community and stakeholders then responded to the draft master plan with the majority including the HAAC, indicating that they would not support moving the toilets to the Fern Tree tavern car park, a location outside of and distant to the park.

Fig 1: Community engagement session on Draft Fern Tree Park Master Plan investigating initial Tavern toilet location

4.16. The project team and consultants responded to the community and reconsidered the park site and all waste management and access options for the toilet and picnic shelter including:

4.16.1. A site nearby to that suggested by Ms McConnell in her recent letter, being opposite the two storied BBQ shelter along the Pipeline Track; and

4.16.2. The sand pit and playground next to St Raphael’s Church. (Further discussion and assessment of these options is found above).

4.17. It took considerable time with a detailed investigation and evaluation of options undertaken to determine a suitable location.

Most options were eliminated due to poor access, impact on the drinking water pipeline and/or cultural heritage or natural values.

The current location of the old rock bus shelter was determined to provide the best assisted access solution, waste management solution (pump out with no threat of leakages impacting on Hobart’s drinking water supply), and minimal disturbance to the pipeline and native vegetation and identified heritage values.

The bus shelter had not been identified as possessing heritage value in the project’s historic cultural heritage assessment.

4.18. This location was supported by the City’s HAAC.

4.19. This new location for the toilet was not taken back to the Fern Tree community for consideration prior to the release of the Final Plan.

4.20. The recommendation to build a double storied structure on the site of the old bus shelter was included in the Final Fern Tree Pak Visitor Node Master Plan as the solution that would deliver a new bus shelter on the lower level and three toilets (one all access) to service the increasing number of visitors to the Pipeline Track, Fern Tree Park and Wellington Park.

4.21. It is noted that the bus shelter was built by the Fern Tree community from stone and mortar, similar to the Park’s picnic and toilet facility following the 1967 bush fires. They were assessed as deteriorating due to their age and quality. No social values analysis was undertaken as part of this project as it was not an assessment that is normally carried out for park-based master planning

4.22. The Final Fern Tree Park Visitor Node Master Plan was approved by Council in May 2018 and the Wellington Park Management Trust in July 2018.

4.23. The detailed designs were then prepared for the implementation of master plan.

4.24. Council Officers were invited to attend the Fern Tree Community Association AGM in April 2018 to provide a project update and presentation of the plans.

The draft designs were presented at the meeting with around sixty people attending. Unfortunately part-way through the PowerPoint presentation, technical difficulties were experienced effecting the full delivery of the designs, so a hard paper copy of the plans was given to the Committee Executive to consider and provide feedback. Overall the general feedback during the meeting was positive.

4.25. A planning application for the development was lodged in May 2018 which included the detailed historic heritage assessment referred to Section 4.10.

4.25.1. The City’s Development Appraisal Unit report presented to the 10/9/2018 Council Planning Committee Meeting contained an assessment by the City’s Cultural Heritage Officer which stated:

“The proposed new structures (including toilets, bus shelter and picnic areas facilities) have been designed in a natural palette of subdued colours and natural materials such as stone, timber, gravel and exposed aggregate.

In this respect the details of the proposal do have a rustic, natural qualities that are not inconsistent with the landscape values of the precinct.

In this respect the proposal satisfies E13.7.2 and E13.9.2 in that the design and siting of buildings and works does not result in detriment to the historic heritage significance of the precinct.”

4.26. City Officers also met with Deputy Chairman of the FTCA in late August 2018 to discuss the details of the planning application. He indicated the groups support for the plans.

4.27. That meeting was followed up by an email in October 2018 from the FTCA which:

4.27.1. Expressed no objection to the toilet block over the bus shelter.

4.27.2. Stated no objection to incorporating the bus shelter into the design of the new toilet block even though the committee has some ownership over the Fern Tree bus shelters.

4.27.3. Asked for consideration of stone walling in the design of the new facility to be in keeping with the look and feel of the area and the cultural landscape of Fern Tree and other bus stops.

4.27.4. Asked for stone walls and other cultural features to be considered in the design of the new park and buildings.

4.27.5. Encouraged the used of Fern Tree Design Guidelines when developing the site.

4.28. Following the planning application’s advertising, the lead petitioner sort a meeting with City Officers to be briefed on the content of the plans. Following the meeting she applied to make a formal deputation to the City Planning Committee regarding the planning application on 10 September 2018.

4.28.1. At the meeting, the lead petitioner presented her concerns and views regarding the lack of community engagement on the project and the loss of bus shelter with its associated heritage, attributed social values and rustic character inherent in the fabric of Fern Tree. The City’s Senior Architect, Senior Park Planner, and Senior Cultural Heritage Officer also provided deputations to the Committee responding to the deputation conveying what has been stated above reading these issues in this report.

4.29. A planning permit was issued by the Council on 17 September 2018. Two permit conditions responded to the heritage issues requiring that all stone from the demolished structure be reused or recycled as part of the wider project; and that all elements of the bus shelter be recorded prior to commencement of work.

4.30. The bus shelter is not within the Wellington Park so these works were not included in the Park Activity Assessment lodged with the WPMT.

4.31. On Friday, 24 February 2019, City Officers and Alderman Briscoe met at Fern Tree Park with the lead petitioner, five of the local residents who signed the petition, and a representative from the Fern Tree Community Association.

4.32. It was agreed that a preliminary assessment of alternate options for the siting of the toilet would be undertaken and included in this report in response to the petition.

Summary of Preliminary Assessment of identified sites for the toilet

4.33. Independent professional advice has been obtained to inform consideration of each location which is summarised below.

Site 1 – Pipeline Track – Opposite the double story BBQ Shelter

4.33.1. Attachment B provides images of the approximate site location (about 70 metres from the Park and Pipeline Track entrance). This location next to the TasWater Pipeline would require the clearing of the mudstone slope covered with wet sclerophyll small trees. It may impact on the roots of one to two large gum top stringy barks.

4.33.2. There are no design details for building however the preliminary assessment has been based on a building with a footprint of 8m long by 2.5m wide.

4.33.3. Structural engineering comments

Consulting engineers (Saltmarsh & Escobar) advised that the required cut for this site would pose significant construction challenges when trying to maintain the stability of the embankment. This is due to the weathered mudstone of the bank, the four metre vertical height and the close proximity to the pipeline. They further advised that the threat to the pipeline will be significantly increased during the construction.

4.33.4. TasWater comments

TasWater advised that the construction at this new site may be intrusive but is unable to be certain of this until these pipelines are located.

4.33.5. Arboricultural comments

Arboriculture consultants Tree Inclined has advised that the footprint of the works, including substantial excavation within the outer structural root zone of the two large eucalypts, is likely to damage structurally important primary roots, potentially impacting on the stability of these trees, as well as their health and longevity. Approximately 18 small trees and one moderate size wattle (tree 3) would also need to be removed.

4.33.6. Historic cultural heritage comments

The City’s Senior Cultural Heritage Officer prefaced more details are required to make informed comment.

In the absence of that he stated that provided the new structure is sufficiently distant from the historic pipeline and does not have any physical impact on heritage features, it may be possible from a heritage point of view.

4.33.7. Traffic engineering comments

The City’s Senior Engineer Roads and Traffic Engineer has advised that this site offers no potential risk to users stopping and parking to use the toilet as it will not be accessible from the road.

Occasional service vehicles pulling in to pump out the toilet in this location are acceptable.

However the limited information provided cannot inform how far the building would extend into the road reserve, as such a detailed assessment is not possible.

4.33.8. Cost and time implications

The City’s Senior Architect has estimated that a re-design and construction of a new toilet in this location would attract an additional cost of $133,000.

4.33.8.1. The revised design would also require a new planning application that would delay the project by approximately 6 months.

4.33.9. Access implications

The site is approximately 70 metres from the Park entrance with a gentle uphill slope. The location would provide extra track width for users as the old BBQ shelter is to be demolished.

The additional distance from the park facilities is not ideal from an access point.

Site 2 - Park location near the sandpit and adjacent to St Raphael’s Church (Attachment C)

4.33.10. The City’s Senior Cultural Heritage Officer advised that any new structure proposed in the vicinity of St Raphael’s Church (no matter how modest or how well-designed) will undoubtedly have adverse visual impacts upon the unique setting and aesthetic values of the Church.

Such a proposal could not be endorsed from a cultural heritage perspective, and should be immediately discounted.

4.33.11. Given the nature of this advice, no further assessment has therefore been undertaken for this site.

Site 3 – Car Park at the Fern Tree Tavern

4.33.12. As previously advised, exploration of an option to locate the new toilets across the road, adjacent to the Fern Tree Tavern was firmly rejected by the Fern Tree Community when subject to community engagement.

5. Proposal and Implementation

5.1. Three options are presented to elected members for consideration. Each is followed by discussion of the consequences for each of these options.

5.1.1. Option 1

Proceed as planned with some redesign of the toilet/ new bus shelter on the current site. Communications to be had with all Fern Tree residents regarding the project history and site evaluation.

The approved toilet and bus shelter interior would be changed from current board mark concrete treatment and be clad with a veneer of natural rock.

The retaining wall at the rear of the picnic shelter would be similarly clad with the same veneer. rock.

The colour of the timber greying naturally and grey roofing would remain the same, as it is supported by City heritage officers.

The old stone bus shelter would be demolished and replaced.

This is considered to respond to the FTCA concerns but it does not address the petitioners’ objection to the modern design and colour selection being not compatible with the rustic character of Fern Tree.

It is estimated that this option would increase the cost of the project by up to $50,000.

5.1.2. Option 2

Negotiate the separation on the existing construction contract to allow the construction of landscaping, playground and picnic shelter. Then allow 30 days for investigations to explore in more detail the relocation of the toilet. Temporary toilets to be installed at Fern Glade Car Park in absence of a formal toilet facility.

5.1.3. Option 3

The entire project be deferred necessitating the cancellation of the contract, and reallocation of the funds for this project to another project.

Procurement Officers have advised that a penalty for contract cancellation could range from $133,000 - $237,000.

The City also submitted an Australian Government Building Better Regions Fund - Infrastructure Stream grant application in November 2018 seeking $818,000 for just under half of the project budget. The application which indicated that the project was ready to commence in March 2019.

The projects reconfiguration is likely to jeopardise the success of this grant application.

The reputational loss associated with this option would be significant for the City, as well as the financial loss of Council resources that have already been committed for the project.

6. Financial Implications

6.1. Funding Source and Impact on Current Year Operating Result

6.1.1. The financial implications is contingent on the recommended action by the Council.

A contract for $1,135,000 has been executed with TasCon to build the Fern Tree Park buildings and landscape.

These funds have been sourced from the 2018-2019 capital works program allocations for the project and for Fern Tree footpaths.

A further allocation of $625,000 in 2019-2020 is made for Fern Tree footpaths.

6.1.2. If the contract were to be cancelled, the City’s Procurement Officer has advised that the financial penalty could be reasonably assessed as the contractor’s costs to date with an additional claim for lost profit ranging from 10% - 20% being $113,527 - $227,054. This would have to be deducted from the capital works budget allocation for the project.

6.1.3. There could be additional costs associated with the legal and time costs if the dispute went to the Supreme Court.

6.1.4. If it was recommended to support for the alternative site for toilet, a further $133,000 in addition to a potential $80,000 contract penalty amounting to a further $213,000.

6.2. Impact on Future Years’ Financial Result

6.2.1. Comments above.

6.3. Asset Related Implications

6.3.1. Dependent on the recommended avenue of action.

7. Legal, Risk and Legislative Considerations

7.1. With regards to the contract, the Council is bound by the terms of the Conditions of Contract after Contract Award under the governing law of the State of Tasmania under the jurisdiction of the Courts of Tasmania with any proceedings to be instituted in a Tasmanian Court (the Supreme Court) or in a Federal Court from the Tasmanian Registry of that Court.

7.1.1. The procurement itself when over $250,000.00 (ex GST) must be in accordance with the Local Government Act 1993 as set out under Sections 333A and 333B and Regulations 23-29 of the Local Government (General) Regulations 2015 (“The Regulations”).

7.1.2. Council’s obligations under the Contract in these circumstances are addressed in a range clauses.

7.2. There is a significant risk of loss of reputation if the project was shelved at this point; with financial loss and potential withdrawal from a grant application that would contribute $818,000 to the project.

8. Environmental Considerations

8.1. A comprehensive assessment of the environmental impact of the alternative toilet location will be undertaken if this option is supported by the Council.

9. Social and Customer Considerations

9.1. It would be disappointing for both Council and users of the Fern Tree Park and stakeholders to abandon this project at this point in time.

9.2. There would also be reputational consequences for the Council and a significant financial penalties incurred for cancelling or amending a contract.

10. Marketing and Media

10.1. There is the potential for the petitioners to direct their concerns to the media about the siting of the new toilet on the site of the rock bus shelter if they are dissatisfied with Council’s recommendation.

10.2. The project history and comprehensive assessment of site options for this facility however provides evidence that the City has placed considerable time and resources to find an acceptable solution for the park.

11. Community and Stakeholder Engagement

11.1. It is contended by the petitioner that insufficient community engagement has been undertaken during the development of the Fern Tree Park Master Plan; most particularly in the latter stages of the design implementation which identified the old rock bus shelter site for the construction of a new combined bus shelter and toilet.

11.2. This project has been underway since 2014. It is noted that the communications plan developed at that time did not include notifying every Fern Tree property. Such comprehensive engagement processes have previously not been included in the preparation of similar park-based master plans. Rather the FTCA was contacted as the stakeholder group to engage with the local community as it was considered to representative of the community. This group has also indicated its support for the project.

11.3. It is evident with the lodgement of the petition that 26% of the community feels that there has been insufficient engagement.

11.4. Two of the options presented to the Council in responding to the petition include consulting further with the entire community, or to inform them of the project history and extent of investigations with regards to the toilet siting issue.

11.5. This would be in accordance with the City’s 2018 Community Engagement Framework objectives.

12. Delegation

12.1. This matter is delegated to the Council.

As signatory to this report, I certify that, pursuant to Section 55(1) of the Local Government Act 1993, I hold no interest, as referred to in Section 49 of the Local Government Act 1993, in matters contained in this report.

Jill Hickie

Acting Group Manager Open Space

Glenn Doyle

Director City Amenity

Date: 1 March 2019

File Reference: F19/18966

Attachment a: Letter - 28/01/2018 - Community Concern - Proposed New Fern Tree Park Toilet and Bus Shelter ⇩

Attachment b: Photos - Site 1 - Alternative Toilet Location - Pipeline Track and Huon Road ⇩

Attachment c: Photo - Site 2 - Alternative Location for Toilet - Fern Tree Park ⇩

Item No. 4.2

Agenda (Open Portion)

Special Parks and Recreation Committee Meeting

Page 38

4/3/2019

Memorandum: Parks and Recreation Committee

Cable Car Proposal - Authorities to Enter

Legislation

The State Government enacted the Cable Car (kunanyi / Mount Wellington) Facilitation Act 2017 (“the Act”) in October 2017 (refer Attachment A).

The Act provides authority to the Minister to grant permission to a proponent of a cable car development to undertake investigative works required to allow it to compile necessary information to support a development application for a cable car development.

The power of the Minister to grant such permission is not limited to land within Wellington Park and can extend to land outside the boundary of Wellington Park. It’s not clear whether this was an express intention of the Act, however it is possible within the terms of the Act.

For the sake of completeness, it should also be noted that the Act removes the requirement for the General Manager to provide consent for the lodging of a development application pursuant to s52 of the Land Use Planning and Approvals Act 1993 for any cable car project on kunanyi / Mount Wellington.

Authority to Enter

Prior to the issue of an Authority to Enter, the Act requires the Minister to consult with the Wellington Park Management Trust in determining the conditions and scope of any investigative works to be undertaken within Wellington Park.

The legislation does not require the Minister to consult with the City as landowner (inside or outside Wellington Park), however notification is required prior to the issue of an Authority to Enter.

With the issue of an ‘Authority to Enter’, and the specific removal of the City’s rights as landowner, it is not appropriate for the City to provide any assistance or comment to the Trust or the relevant State Agency in respect to the drafting of an ‘Authority to Enter’ in respect to City-owned land within Wellington Park, nor provide any on-ground assistance to the proponent in the investigative activities granted via the Ministerial approval to be undertaken. This position was conveyed in the report to the Parks and Recreation Committee on 7 June 2018 (refer Attachment B).

Authority to Enter (Access Zone) – February 2019

The Minister via correspondence received by the Lord Mayor on Friday 1 February 2019 (refer Attachment C) informed the City of his intention to issue Authorities to Enter for investigative activities both within Wellington Park, and on City-owned land outside the Park (located in McRobies Gully)

As offered in the correspondence, Senior City Officers met with representatives from the Department of State Growth on Thursday 7 February 2019 to receive a briefing on the scope, and details, of the draft Authority to Enter, as related solely to the City’s land outside of Wellington Park, referred to as the Access Zone.

In summary, the proposed Authorised Activity as it relates to the Access Zone was as extracted below:

Following the officer level meeting, advice was forwarded to the Department of State Growth on Friday 8 February 2019 detailing issues and suggested changes to the draft Authority, to better ensure the interests of the City as land owner (and manager) were preserved (within the context that the City’s permission for the proponent to enter and undertake works is not required under the Cable Car (kunanyi / Mount Wellington) Facilitation Act 2017).

Acknowledging the position that the City should not become involved in the drafting of conditions or activities in relation to Authorised Activities within Wellington Park (as the Act and Authorities to Enter pertaining to land within the Park provide any required powers or liability protections to the Trust or the Crown) City Officers took the view that as the Trust holds no such management or regulatory powers outside the Park boundaries, it was incumbent on the City to provide comment to the Department.

The City’s primary concern related to its view that the document was poorly prepared, made erroneous errors of fact or omissions and did not provide the City with any notice of entry by the proponents (or their representatives) and did not provide the necessary legal and liability protections for the City.

Further, officers drew attention in the draft document that despite the scope of permitted investigative activities being relatively quite limited (see Attachment 1 Column 2 of the Access Zone Authority), as defined in the appendix to the Authority to Enter, the content of the document made reference to other more extensive activities such as drilling and helicopter transport.

Subsequently a copy of the final Authority to Enter (Access Zone) was provided to the City by the Mount Wellington Cableway Company (MWCC) (refer Attachments E & F).

A review of the final document indicates that very few of the issues identified by the City as land owner had been addressed by the Minister.

Attached is a copy of the emailed advice to the Department in respect to the Access Zone, including indications as to what extent these suggestions were accepted by the Minister (refer Attachment G)

Authority to Enter (Wellington Park)

Comment was not provided on the Authority to Enter (Wellington Park) (refer Attachment D) in accordance with previous external legal advice that cautioned the City from taking an active role in the process of issuing or managing Authorities to Enter (specifically in relation to Wellington Park land) in order to avoid any potential liability for the activities undertaken by the proponent.

However it remains for the Council to determine if it wishes to provide such advice to the Minister, as the owner and manager of land within Wellington Park.

In correspondence forwarded by the Lord Mayor to the Minister, the Minister was requested to defer the issuing of an Authority to Enter for Wellington Park, until the Council considers the matter at its meeting on 4 March 2019.

Advice was provided to the City on 21 February 2019 that the Secretary of the Department of State Growth had approved the Safety Management Plan lodged by MWCC relating to the Access Zone (outside of Wellington Park). The advice went onto advise that the MWCC would commence the Authorised Activities on 21 February 2019.

REcommendation

That:

1. The Council note and endorse the Officer comments to the Department of State Growth made in relation to the Draft Authority to Enter (Access Zone), as received by the Lord Mayor on 1 February 2019, and marked as Attachment G to the report.

2. The Council write to the Minister, expressing its disappointment that the majority of the issues raised were not addressed in the conditions of the final Authority to Enter (Access Zone).

3. As owner and manager of land within Wellington Park, the Council express its disapproval at the process and the extent of the activities proposed under the Draft Authority to Enter (Wellington Park).

N.D Heath

General Manager

Date: 1 March 2019

File Reference: F19/22569

Attachment a: Cable Car (kunanyi / Mount Wellington) Facilitation Act 2017 ⇩

Attachment b: Copy of Report to Parks and Recreation Committee -
7 June 2018 ⇩

Attachment c: Letter to Lord Mayor from the Minister -
1 February 2019 ⇩

Attachment d: Draft Authority to Enter (Wellington Park) Recieved
1 February 2019 ⇩

Attachment e: Issued - Authority to Enter (Access Zone) - 11 February 2019 ⇩

Attachment f: Issued - AMENDED Authority to Enter (Access Zone) -
14 February 2019 ⇩

Attachment g: Extract of Officers' Emailed Suggestions to Department - Draft Authority Enter (Access Zone) ⇩

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