Has Council been caught out lying to the residents of Congo?
In December 2021, claiming to be in receipt of independent legal advice, Council staff and contractors arrived to a section of Congo Road to begin the removal of ten trees. Understandably, and justifiably, they were challenged by the local community. The reason it was a justifiable challenge was that the Council had proven on several occasions to the Congo community that it couldn't be trusted around trees. A recent project to the south of the town had seen an agreement made between residents and Council design staff around the improvement of the Congo Road South access into the village. The residents had walked the route, marked out the trees of concern to be kept and basically had the agreement with Council staff that these would be retained. And retained they were. Until an engineer drove the road and, without any other measure than his gut, said that more trees had to go as they made him feel uneasy. No consultation. Withing days the trees had not only been cut but also mulched to remove any evidence of hollows. The community were disgusted. They had seen what Council had done on the Bingi Road a few years before and had hoped that their approach might ensure the same extreme tree removal would not happen again. Given the disgust and distrust held by the Congo community it was understandable that they appeared on site in December to demand of Council the authority that would allow them to destroy ten perfectly healthy mature trees located on private land. Council said they had legal advice and that the section of road traversing the private land was, by common law definition, a public road. They advised that because their advice said it was a public road they could initiate Section 88 of the Roads Act and remove the trees without consultation. The Council staff even advised a councillor who dared ask why the community had not been consulted saying "It is an operational matter and we don't consult with the community on operational matters". But it turned out that Section 88 only allows for the removal of trees On or Overhanging a road. Not BESIDE a road and certainly NOT within PRIVATE LAND. Council contractors were only minutes away from an unlawful act that would have seen them cutting down trees on private land where no recent formal inspections of each tree had been conducted as required by the EPA. Council at the time offered, by way of explanation of the legal advice they claimed to have saying the following:
In relation to the application of the Roads Act, whether a road on private property is a ‘public road’ includes considering whether the road falls within the common law definition of a public road. The long history of use of the road by the public generally, and the fact that
Council has maintained the road for many years means that the road falls within the
common law definition of a public road for the purposes of Section 88 of the Roads Act
1993. Council has a duty of care to ensure public roads are maintained to mitigate the risk to the community. Council has maintained Congo Road north through the subject property for many years.
Council arrived on site with every intent to remove the trees supported by their "legal opinion" that no one has seen. When asked at the time to provide evidence of the legal opinion Council refused. A GIPA request for this legal opinion was made and has been refused by Council on the grounds that it is not of public interest. The refusal could be for two reasons. The first is that there was no such Legal Opinion (because if there was then it was deemed incorrect and would have led to Council carrying out an illegal action - no law firm would offer such advice). The second reason for refusal might come from Council by way of measuring Public interest consideration against disclosure. Section 14 of The GIPA ACT: Council have indicated in their GIPA Refusal 1(e) There is a public interest consideration against disclosure if disclosure of the information could reasonably be expected to reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency (whether in a particular case or generally). I believe that it IS of public interest as I am of the opinion that either there was no such legal advise and that Council officers might have lied to the community with their claim of having legal advice given that they refuse to provide any evidence of such advice, or, that the advice was poor and nearly resulted in Council undertaking an illegal action. If either of these options are proven then that IS in the public interest. Did Council lie or was their claimed legal opinion worthless? A week or so later, after stepping away from their audacious attempt to remove the trees on private land on the pretext that they could do so as a roads authority Council then provided a follow-up clarifying statement overturning their claim they had any authority to remove trees on the private property. Council offered the following:
For public roads in the shire, Council is the road authority and can make and enact decisions about road safety and risk mitigation within the provisions of the Roads Act 1993. As a roads authority, Council also has protection under the Civil Liabilities Act 2002. In this instance, the section of road in question is privately owned and Council is therefore not the road authority and not protected under the Civil Liabilities Act.
Council also advised in their statement "it has not been able to establish evidence, including through research by a specialist firm, to confirm the existence of a public road through prior use of the physical Congo Road north through the private land under Act 4 Willian IV. This means the land over the physical road is private land." It is clear that the original legal advice Council staff claimed to have that would have permitted tree removal on private land was incorrect. Had Council gone ahead with their intent they would have been in breach of the law. They were advised this on site, on the day they arrived with contractors, and they quickly retreated. Was this because they were presented with the law and had been challenged over their claim of legal authority to action their plans? What Council failed to do in its communications with the public was to be forthright in its messaging and clearly state that;
On the subject of the public's right to access (traverse) the property, the Council accepts that this is private land, and all access is solely at the Landowner's discretion;
and that ; On the subject of the maintenance of the road by the Council, the Council has always accepted that this is at the Landowners discretion.
The Council also failed to advise the community, when they had every opportunity to do so that;
The landowner did not ask the Council to remove the trees alongside the road;
and that the landowner did not have any input whatsoever into the Council's risk assessment of the safety issue of the section of road that traverses his property;
and most importantly the Council did not consult the landowner in its decision to remove the trees. Given the subsequent legal advice received that the road was in fact Privately owned one can only assume that the legal firm apparently offering the original advice was inept or that the legal advice received was little more than an audacious lie by Council, told to bluff the community in the hope that they would go away. In order to clear this matter up, and it will NOT go away, The Beagle has now requested, via an Informal GIPA (in the name of openness and transparency), that Council provides: - the Name of the legal firm that provided the original legal advice Council claims to have received - the date of that advice - the solicitor who provided that advice - the advice (word for word) - if Council paid for that advice - and was a refund given for the advice that nearly set Council to breach the law There have been several requests to date for evidence of the original advice. Staff were asked for it in the days following the intended tree removal. Then subsequent GIPA applications have been made to no end. Earlier this week Council were warned that failure to provide the above by the end of this week, without a justifiable explanation, would see a full article in the Beagle revealing Council's refusal to provide evidence under a formal GIPA saying it was not in the public interest. This article, in itself, will now become of public interest. The Congo community continue to ask "Has Council lied to the community over the legal opinion it claims to have received?" This has gone on for far too long. Council might suggest that they will not provide the legal opinion as there are on-going negotiations with the affected landowner and revealing the advise would compromise on-going commercial negotiations. If they said that it would be called out as BS as the trees were not touched and the actions they intended are now history. They might claim they have legal privilege and to reveal the opinion might compromise any future legal matter that might arise. Once again if they said that it would be called out as BS as the trees were not touched and the actions they intended are now history.
Legal professional privilege protects confidential communications and confidential documents between a lawyer and a client made for the dominant purpose of the lawyer providing legal advice or professional legal services to the client, or for use in current or anticipated litigation. The privilege is the client’s, not the lawyer’s. The client can waive the privilege. That being the case one would wonder, given that the Council is now suspected of lying about the legal advice they claim to have received that they would produce evidence of it to win back the trust they have lost with Congo and the wider community. This is not the first time they have claimed to have "legal advice" and not presented evidence of it, nor is it the first time they have knowingly, on the record, lied to the public. The ball is now in Council's court. Are they liars, and made up the "legal advice" inhouse to bluff the community, or did they actually receive professional legal advice that nearly put them in breach of the law? This is in the public interest. At stake is their reputation and community trust.