Tuesday, July 07, 2015

Part 1 Blog on Community Engagement Policy Options: Battery Point Foreshore Access - Somehow I don’t think it’s over yet.

You may remember in the heat of the 2014 October local government elections I was the lone Alderman that voted against the Hobart City Council’s development application for Stage One of the Battery Point Shared Accessway. 


This blog asks what lessons that might possibly be considered and suggests some ways forward.  I don’t think this saga is over yet.  Flick to the end if you want a quick summary and possible less costly solutions.

I’ve waited on commenting for two reasons.  Firstly Hobart City Council still had to decide whether it would appeal the Tribunal’s decision in the Supreme Court.  After more expensive legal advice, it won’t.  At least not in this iteration. 


But that hasn’t stopped various of the local newspaper opinionators from continuing to hurl invective at the residents’ wants to maintain their right to their homes having a reasonable degree of privacy and peacefulness in their backyards, just like most of all of us.  Seriously, where is the line the local rag draws when it comes to vilifying people – just what is meant by “elite” anyway and isn’t this the sort of behaviour that incites others to mindless hatred? 

http://www.themercury.com.au/talking-point-waterfront-barons-must-release-their-grip-on-derwent-access/story-fnj3twbb-1227418898722  S

Secondly, a number of people wanted me to find out the cost of all this and now we’ve had a RTI application on the financials of the project; you can see the money cost of policy decisions.  The real cost in terms of relationships and opportunities foregone haven’t been pretty either.  And these don't include the costs, legal, real estate and officer time, of the earlier compulsory acquisition of the low water mark titles.


The planned Battery Point walkway won’t go ahead.

Stage One: The rejected design

So, to recap. 

What was proposed was a publicly built and ratepayer funded pedestrian and cycleway from Marieville Esplanade to the slipyards in Napoleon Street.  It would be seaward of the waterfront properties along its route and for the most part within and elevated above the River.  It proposed to cross two pre-existing legal jetties with some sort of drawbridge arrangement to overcome this, yet to be designed or thought out as to operation. 
As Stage One, people using it would be entering at Marieville Esplanade across Sandy Bay Rivulet to travel towards Hobart and exiting into the suburb of Battery Point at Napoleon Street with no wayfinding designed to get them to the city proper.  When storm surges would be too high, the Accessway would be temporarily closed, thus making people take other routes for cycling through Battery Point or onto Sandy Bay Road via Quayle Street.  Such routes were not part of the proposal.

Originally there was talk of getting Federal and State funding, but that evaporated once conservative Liberal regimes were installed at both levels and started yelling about “budget emergencies”.  Failing to gain monies as a Federal regional funding project, it was listed as an ICAP project in the City Council’s budget, with the cost to be fully borne by Hobart’s ratepayers.  And note here, works were valued in the DA as $5M.  Some have argued that even that was a low figure given the unresolved design issues.

What’s formed my thinking over time about this?  I've walked the foreshore at low tide and viewed it from the water.  I've spent quite some time on analysis of all the planning documents and reports supplied to Aldermen.  These stretch back years to before I was initially elected in 1999 (when it was suggested as “Whalers Walk”) .  The more I considered it, the more it was investigated and various options explored, the latest iteration was simply not a goer.  People ask, what happened to having just very simple access to overcome the disappearance of the rocky beach at high tide? 

Indeed, the sight of the late Lady Mayor Doone Kennedy walking along the foreshore in high heels and commenting about it being more a “Wailers Walk” she wouldn’t see constructed in her lifetime as she struggled amongst the rocks was a vision to remember by those who recount it.

Indeed, so did a group of Hobart’s cycling citizens who took it upon themselves to find a safe route through Battery Point starting at Marieville Esplanade and ending up at Salamanca, avoiding Napoleon Street.  And they succeeded.  Twice over, if I remember correctly, in identifying routes that would have required some careful road works but ultimately created a safe cycling route to doubled as a tourism trail.  And where is that work, once it was presented to Hobart City Council?  That letter must be archived somewhere and hopefully still findable if we send staff off to check the files.  Certainly the roadworks and wayfinding would cost less than the $5-8 million touted around for Stages 1-3 of the proposed Accessway.

From a simple scramble track on the foreshore accessible most of the time but subject to significant risk management issues (ah lawyers, and OHS experts, how you chivvy project designers), the latest iteration had morphed into a concrete and steel two-way cycle and pedestrian way set out from the foreshore in the water.  It would link with the Sandy Bay Road cycleway and eventually, via Stages 2 and 3, connect the University with the City’s waterfront area.  Thus, in the fullness of time a walkway to serve tourists, city residents, students and locals alike, fully lit and available 24 hours a day (storm surges excepted) was to be provided.  It was touted by some to rival that of Brisbane’s concrete waterfront walkway in the economic tourism benefits it would bring.  Build it and they will come!

With Stage One, my planning concerns included sorting out the traffic of all sorts being increased in a suburb already congested with commuter and resident on-street parking thus narrowing the narrow streets further.  I was not convinced that the use of the actual walkway would not unreasonably impact on residential amenity. 

The reports identified there would be problems of environmental impacts over time not only on the bridge with storm surges but also under on the sea floor in the long term, especially around Stage 3 where mapping of sea grass beds had been done.  I've yet to understand how species such as the Spotted Handfish would be escorted to other locales if this was their preferred habitat to start with.  Note that Stage 3 was yet to be designed, considered the most fraught with risk given the heritage issues along this stretch. 

The design of the accessway was unknown and uncertain as to operation when it came to the use of the existing jetties to be crossed.  Regardless, the development application was worded in such a way that all these problems were expected to be overcome during the construction phase by designer and engineers.

And what happened?

Last year, Council voted 11 to 1 to proceed with the development, based on the view the foreshore was a community asset; widespread community support and demand existed for access along it.  Community surveys of the wider Hobart population who did not live there supported this view, and there were mixed views in Battery Point as well.  Various coalitions of support from the Greens to cycling, tourism and other pressure groups all came out in support.  It would facilitate transport between University campuses of Sandy Bay to IMAS, Hunter Street and the Menzies campi.  Politicians of various elected levels and colour were in favour, even including it in regional funding grants that failed to materialise.  Yes, there had been a rather unedifying open air “public meeting” at Marieville Esplanade in support of a walkway prior to one local government election, with various of the day’s Aldermen up on a soapbox with unhappy trading of opinions with various Battery Point residents over the idea.  Yet the later re-election of the former was surely a sign from God the project was favoured and all opponents would be hurled down in front of the planning altar to beg forgiveness for their temerity in opposing and be forced to pay the Council’s costs?

So, as Council was warned, several of the most affected residents took planning advice and lodged an appeal with the independent umpire, the Resource Management and Planning Appeal Tribunal.  (Their role is helpfully explained on page 4 of the Reasons for Decision.)

Two appeals were lodged on a range of grounds.  All the advice to the Aldermen from Council staff and hired experts was that the development application would succeed and those residents opposing, having been vilified over the years in the court of public opinion and by various public figures, would lose.  A palpable victory scent was in the air.

So here’s the Tribunal’s decision, all 76 pages of it, including the residents’ grounds of appeal: http://www5.austlii.edu.au/au/cases/tas/TASRMPAT/2015/13.pdf 

I’ve noted some of the page numbers to help you navigate it.

The Tribunal weighed the evidence of each side’s experts against the planning system rules in place, including planning policies, relevant schemes and case law.  That’s why the decision goes over much of this, and then relates these to the grounds of appeal. 

Please take time to read it.  There are some comments in there by the Tribunal that might raise even the most imperturbable eyebrows when you think how much public money went into this project and how it was found wanting.

Bit of a surprise outcome for the other Aldermen, I have to say.  Okay, yes, I had to keep a bit of a straight face, I’m human and fallible.  I’ve read the ruling in full.  I’ve seen for the first time what the actual grounds of appeal have been from residents, and which of those had weight, and what the Tribunal ruled agreed with and rejected.  I’ve compared it to the concerns that stood out for me as an Alderman.  And yes, my interpretation of the planning rules largely accorded with the Tribunal’s, although they, as always, had much to further teach.

You may well conclude, as I do, this ruling is an educative experience in planning raising a number of policy questions for Council-initiated public projects.

When it comes to public projects, who should judge?

When you’re politically invested in seeing a development proceed, should you also be sitting in judgment?  A number of people have observed over time how private developers employ consultants to give expert evidence that favours their development when lodging development applications.  And they would do that, wouldn’t they?  Well, it’s in their best interests, for better or worse, it’s their money and their property. 

Has Hobart City Council acted the same?  In my opinion, yes.  However, in this case it is public money and public property, let alone the impact on private property from which Council derives an income.  So the bar needs to be set a lot higher, as Council acts in trust, when it comes to getting the right advice.  And that advice comes at a price.

From the first Sinclair-Knight Mertz report onwards way back in the early aughties exploring various access options (and pointing out the risks), what has influenced how advice and expert opinion has been read and therefore how development has been proceeded with?  Let us all be honest with ourselves, being truly dispassionate and rational when you’re seeking a particular outcome you really want to see happen is a difficult skill to acquire.  Add politics to the planning and we have to re-set the base line for difficulty in getting a good community engagement and project scoping process. 

The issue of any local council owning land and making planning and other regulatory decision regarding its management has been a question raised too often to ignore (and yet the Minister for Planning continues to do so).  However, getting an expert independent panel to sit in judgment outside of the pro-development groupthink is a role that is left, too late more often than not, to RMPAT or the Tasmanian Planning Commission.  By that time, everyone is squared off into various corners with their hired experts (if they can afford them, God suffer the cash-strapped debt laden working classes) and not speaking.  Is that any way to run a planning system?  Is that any way to really engage with those most affected and the wider community?

And what about the affected residents rights under the planning system?

Worse still, as we’ve seen in this case, rather nasty invective is being hurled via all sorts of media and the development has ended up a political football as we observed last October, and are still observing, in the local newspaper via the letters and opinion columns, based on public support and demand for the project.

From the beginning, people have lived with relatively unimpeded view of the water from their backyards along the waterfront of Napoleon Street along to Clarke Avenue/Finlay Street.  They’ve paid a premium for it, both in real estate, rates and taxes.  For this, they’ve secured a relative degree of backyard privacy and an amenity reflective of the local area.  In defence of this they argued at the Tribunal various grounds of adverse impact including privacy, amenity and access to the river.  The use of the river and viewing of the shoreline from the water were all important values that added to their amenity and to the values of the location.  And by values, I don’t just mean financial.

When it came to amenity issues, the Council’s expert planner argued as if the accessway were no different from a balcony, deck or roof terrace in a residential zone, and in effect having such an accessway within three metres of a residential boundary was a responsible planning decision (pp. 59-60).  The Tribunal was not convinced this was a responsible assessment.

The Council’s experts argued that the public interest was greater than residential amenity (pp. 10-13), as well as the accessway being set back further than would be between neighbouring houses.  The Tribunal viewed it differently (pp. 31-32) – the “anticipated 1000 strangers using the accessway have no investment in respecting the privacy of these residences...the accessway will have a deleterious impact on privacy and thus the amenity of the residences on that foreshore”. 

In fact in terms of public interest (pp. 30-31), the Council failed to provide sufficient evidence of the need for the project, or “that fulfillment of a community need outweighs the amenity and other issues which arise in this case”.  This is surprising, given the history of the project and what is indicated pp. 5, 10 as to evidence.  Yes, the foreshore was opined to be a community asset, but it was not the foreshore that was directly affected; the accessway was going to be on the water, and that was Council’s strategy to avoid a planning conflict.

Residents argued that it was “difficult to contemplate more significant an impact to this shoreline than is contemplated by this development”.  Assessing the development through the State Coastal Policy, the Tribunal considered that “assuming a ‘public common right of access to and along the coast’ to exist, and that the accessway fulfills that right of access”, the development nonetheless conflicted with the protection of natural and coastal values, and its use could not be “conducted in an environmentally acceptable manner”.  The nature of the construction, its siting and design caused the Tribunal to conclude it would “have a significant and detrimental impact on the aesthetic qualities of the locale”.  The development offended the State Coastal Policy and was “contrary to it”. (p. 54).

So how to find the right advice?

How can you brief professional consultants to get the right advice?  Do you say, we want this to proceed, what obstacles can be overcome, find the best way?  Or do you ask them, is this really a good idea we should be proceeding with in the first place?  Is it actually sustainable or affordable or really needed in the wider scheme of running a city? 

And it could be reasonably argued, any person having been historically elected through support or opposition for various policies and projects has their framework for questions and analysis already shaped up by the time they send consultants off with riding instructions.  There are some global questions people have asked about all sorts of projects, public or private.  Did the proponent really listen to any contrary advice or just seek another report or mine a report for advice that fits the favoured thinking?  Why does a proponent keep pushing the boat out to achieve an outcome?

How do we listen to advice?

It’s always an educative experience observing the behaviour of elected people at all tiers of government in placing their trust, if not actually handing over a portion of their capacity for analysis, to expert consultants.  Professionals do the job for a living and get a reputation for being excellent at it, so we are inclined towards trusting.  Life is too short for anyone to amass the expertise and knowledge required to run a country or even a city across the multiple professions and trades needed to do the job, let alone competently.

Yet if elected people are invested in a project, are they more likely to gravitate to favourable advice from experts and dismiss any possible negatives as problems that can be overcome into the future?  If elected people have an unwavering belief in their capacity to be right (after all, they got elected and re-elected on what they perceive as their backing for various projects), what impact does this have on judgment when assessing a planning development application report when it finally comes before them?  I hear protesting calls of “I’ve kept an open mind”, yet seriously, people have asked me, is this really possible?  And please, spare me the “on balance” defence.  There is no balance in planning matters – someone or something always loses.

Being invested in a project brings the risk of losing sight of unintended outcomes with particular decision lines.  The seductive appeal of breaking up the accessway project into three stages was based on the argument of Council being more likely to overcome foreseen heritage and environmental problems in Stage Three.  So in the Tribunal argument for Stage One was as if approval of Stage Two and Three was a laid down win.  It was clear the Tribunal didn’t agree.

For example, when one of the traffic consultants raised significant concerns over cycling traffic management, these issues were effectively buried as something that another consultant would overcome during construction and relegated off as “advice” rather than planning condition.  Advice, in planning terms, is in effect, to be ignored if it can’t be implemented, as it does not have the regulatory weight of a planning condition.  The Tribunal disagreed (pp. 13-15; 33-38), observing that conflict and accidents would be introduced with the increased traffic generation, and in effect, relying on the success of future DA’s for Stages 2 and 3 was unreasonable.  So many times Aldermen have rejected planning representations based on “what if” and “I am going to”, saying they have to deal with what’s before them, not on future decisions or plans.  But not in this case.

In effect, what was proposed was much like building a “short section of freeway within a city without improving the conditions at each end of the freeway to cater for increased traffic generation” (p.15).  And further, the introduction of the increased traffic generation with only Stage One built would result in a “deleterious effect on residents” and that means all the residents, not just those on the waterfront), and therefore, residential amenity (p. 38).  There was no guarantee Stage 3 could be built and it was not good planning to rely on this.

When concerns were raised at committee over the lack of opening designs to allow existing jetties to be used, these were brushed off as something to be dealt with once the development was approved and construction was started.  The attitude presented at the committee was one that the designers and engineers would have the answers in time.

The Tribunal disagreed – it was contrary to planning law to impose a condition that lacked finality and was invalid due to the degree of uncertainty it imposed (pp. 48-52).  Case law backs this up (see p. 51).  How could Council’s expert planners and legal advisers then suggest such a condition and its frailty not be picked up by the hired expert independent planner? 

So what can we conclude?

It’s fair to ask then whether the momentum, the groupthink, the seven plus votes around the table, for the project was so great that warning signs were being ignored.  It was clear the project did not have full local community support when it came to those most affected and any local or otherwise opposition was not given as much weight as perceived community benefit (greater good) around the Council table.  As the Tribunal’s ruling on a number of points indicated, expert advice to Council got it wrong.  When opponents presented contrary planning points of view, these were expected to be dismissed in the Tribunal.  A number were but a number were not.  The decision to break a contentious project into stages to overcome future difficulties in fact created more immediate problems, but these were not, in my opinion, given proper consideration in the planning process if the Tribunal’s comments are any guide.

And sadly, given my sixteen years of inside knowledge to this whole sorry saga and observations of word and deed, I’m yet to be convinced that successful public office and policy implementation seem to be other than a matter of muddling through, even if that is not how the histories will finally read.  Observationally, successful elected office today seems less a matter of exercising leadership by making decisions and more a matter of exercising judgment.  And when it comes to community engagement, that can’t be easy if you still believe you’re the one elected to make decisions.

So what of the future?

Council is still is of the “firm belief that facilitating movement in and around Battery Point and its foreshore is appropriate and would provide great community benefit and make a meaningful contribution to the amenity of Hobart” (HCC Media Release 23 June 2015).

Do we accept that access cannot meet every possible disability?

Do we accept financial and physical constraints mean it is not possible for every access want to be catered to? 

These are key policy questions.  I know for an elected person it is difficult to say, no, yet isn’t it time we started to admit it is alright to do so from time to time?  Is it possible that we are capable of stopping ourselves from raising expectations to the point where we all end up in these sorts of costly messes?

If we had made that media statement years ago, how might it have ended up today?

  • Would we have listened to the late great ex-Lord Mayor Doone Kennedy and planned for a realisable scramble track to meet most walking wants?
  • Would we have encouraged a mix of access options to the foreshore more likely to “satisfice” and encourage innovation?
  • Would we still have entered into a highly contentious and costly legal battle with two resident property owners who possessed land to the low water mark, followed by compulsory acquisition of land between high and low water mark even though the land has ended up of no use to this iteration of the project?
  • Would we have rather secured their property against the sort of burglary and vandalism which they had experienced and had caused them to put up the barriers to access that caused complaints in the first place, and then proceeded to negotiate safe access across the foreshore?
  • Would we then have consulted with other property owners whose boundaries were on the high watermark and negotiated the means to facilitate public access on the foreshore proper avoiding negative impacts on their jetties or use of boat sheds?
  • Would we have considered a floating walkway that rises and falls with the tide to negotiate those bits of foreshore were much of the rock beach has disappeared and designed such that jetties would not be impeded?
  • What could we have learnt from the New Town Rivulet Linear Park and the impact on residential amenity there? 
  • Would we have worked with residents and cyclists to find the best possible and signed cycle route through Battery Point to join the Marieville Esplanade end of the Sandy Bay Road cycleway with the City?  That might have ended up with better footpaths and road amenity for all the residents and visitors in Battery Point, as a consequence?
You know, this sounds very similar to how the Hobart Rivulet Linear Park has been developed.  Very quietly, successfully, and yes there are some conflicts over increasing cycling use, yet we’re working on them.  With all the community; in a respectful and consultative way that doesn’t end up with residents vilified in various forms of media.  After a long period of hold ups and land tenure problems, we’re finding a way through from Collins Street to the fringes of the Mountain for most people, for most access needs.
There’s a lot of fence-mending (and community engagement) needed with various Battery Point residents if we’re to get a fresh approach up.  This Council has apologised for its actions in the past and moved on to better things.  Is it possible it could, after time, consider this?  Some of the relationships might well be irreparable given the nasty words tossed around yet we can’t live in a city of walls created by past hurts.  It’s the sort of “Wailers Walk” we can all live without.
PART TWO blog on Community Engagement Policy Options to follow.

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