Anatomy of a regulatory notice … saying it’s regulatory doesn’t make it so

V__AF10The above sign recently appeared at the top of Point Pure, in the Brooyar State Forest. Whilst the climbing community are used to seeing the occasional notice appear here and there, this particular one caused an immediate kick-back on social media because it stipulated a requirement for permits.

In reality, I suspect that the wrong sign went up and we can expect to see it taken down some time soon. However, as I tracked the dialog on social media, it became clear to me that this example, having grabbed everyone’s attention, would serve as a useful means to illustrate the nature of executive authority in the management of the public estate. If we want the climbing community to be effective stewards of the crags at which they climb, they can be so only to the extent to which they understand the process of management.

Note that this particular example is specific to the management of a State forest. However, the principles I’ll point to apply equally well to management of a National Park, although the actual legislation differs.

The kickback

The immediate, visceral response to such an event will ever be along the lines of “them” and “us”, and whilst this is understandable, I have always argued that such a response is ultimately unhelpful and will do nothing to resolve access issues. We need to stop chaffing at the “system of people”, the bureaucracy, and shift our focus to the “system of laws” that define the public estate and how it is to be managed.

So… some dude comes along and erects a sign at Point Pure stating that you will cop a fine if you do not comply with requirements x, y and z. Who the hell does he think he is, bossing folks about on public land? Well, as it turns out, there should be nothing arbitrary about such an action, and the source of authority, assuming a valid authority exists, lies far beyond the person placing the actual sign. It’s a system of laws, remember, not people, so let’s bypass the people and go look for a basis for the action within the State legislation.

Am I on public land or not?

The first port of call is to look up the land registry and locate the parcel of land that encloses Point Pure. Using Qld Globe and Google Earth this is a five minute job. We find Point Pure is within the large 3,330ha parcel 82/FTY1310. We can then check the tenure of this parcel and confirm it is indeed State forest.

Of course the question then arises as to what sort of beast is a State forest. Well, it turns out that State forests come into being by virtue of s25 of the Forestry Act 1959, under which they are set apart from Crown land, and declared as State forest by the Governor in Council. Governor in what?, I hear you ask. Yes, quaint naming to be sure, but easily understood – the Governor in Council is the highest level of executive government in Queensland, comprising members of Cabinet plus the Governor who just tags along for the ride. So, State forests are brought into existence by means of the Forestry Act, and from that point onward are managed under its terms.

Yes, State forest is part of the public estate, but, it is set aside for a specific purpose which, as per s30(1) of the Act, is –

the permanent reservation of such areas for the purpose of producing timber and associated products in perpetuity and of protecting a watershed therein.

Furthermore, the chief executive is required under s30(2) to –

ensure each State forest is used and managed in the way the chief executive considers appropriate to achieve the purposes of this Act, having regard to— (a) the benefits of permitting grazing in the area; (b) the desirability of conservation of soil and the environment and of protection of water quality; (c) the possibility of applying the area to recreational purposes.

Broadly speaking this means climbing as a recreational activity is to be tolerated, provided it doesn’t interfere with timber production. I say tolerated, because whilst it appears the chief executive has no statutory obligation to promote recreation within State Forests, it is clear he has an obligation to manage the area for recreational access where the possibility exists. I read this as meaning that there should be “free and fair access” to the public estate set aside as State forest where such access doesn’t impact timber production.

What is a regulatory notice?

Under s34AA, the Act provides for the regulation of the use of State forests by erecting notices. The scope is wide, and covers just about anything the chief executive might want to regulate – subsection (1) –

The chief executive may authorise the erection or display in relation to a State forest or a part of a State forest of notices for the purpose of regulating or prohibiting— (a) the use of the State forest or that part of the State forest by persons; or (b) the use in the State forest or that part of the State forest of vehicles or vehicles included in a specified class of

vehicles; or (c) the bringing into the State forest or that part of the State forest of animals or animals included in a specified class of animals.

In a nutshell, the chief executive is empowered to regulate you, your car or horse and your dog by means of notices. However, in order that it be enforceable, a notice needs to be visible to the public, and needs to point to a regulation within the subsidiary legislation of the Act, that is the Forestry Regulation 1998. We see this in subsection (3) –

A regulatory notice— (a) may be erected or displayed within, or at or near the entrances to, the State forest or the part of the State forest to which the notice relates; and (b) must specify or indicate a particular requirement or particular requirements to be complied with by persons entering, or in, the State forest or that part of the State forest; and (c) may expressly state that a contravention of a requirement contained on the notice constitutes an offence against this Act

Set out under s34AA of the Forestry Act we see provisions for the “Regulation of use of State forests by notices”. It follows from s34AA that, at Point Pure, an administrative agent empowered under the Forestry Act may place a regulatory notice that specifies “a particular requirement or particular requirements to be complied with by persons entering, or in, the State forest or that part of the State forest”. I’ll discuss the detail of the requirements in another post. For now, I want to concentrate on the authority to erect a sign in the first place, because without such authority, requirements mean very little.

Who is empowered to place a regulatory notice?

So how do we know who is the administrative agent for the Forestry Act? Who says one bunch of bureaucrats may go about putting up regulatory notices in State forests yet another bunch may not? Once again, this might seem arbitrary, but in principle it’s not. The Queensland Constitution describes the process to be followed subsequent to a general election by which the leader of the majority party is invited by the Governor to form government. Part of this process involves appointing Ministers to portfolios, assigning administrative units to those portfolios and enumerating the acts of parliament they will be responsible for executing. The outcome of this deliberation is published as an Administrative Arrangements Order. If we look up the order published for the current government, we see that the Forestry Act is jointly adminstered by the Minister for Agriculture and Fisheries and the Minister for National Parks and the Great Barrier Reef. The division of responsibility being “Custody and Management of State Forests covered by the Plantation Licence Area” in the case of the former, and “Custody and Management of State Forests not part of the Plantation Licence Agreement” for the latter.

The final piece of the puzzle that remains to be solved is which of the two Ministers is responsible for the sign. Once again Qld Globe makes our job easy. Looking up the extents of land under plantation licence agreement we can confirm that the crag at Point Pure is not within a plantation licence area, and thus the Minister for National Parks and the Great Barrier Reef has ultimate responsibility, and, according to the Administrative Arrangements Order acts through the Department of National Parks, Sport and Racing. In practice we would expect to see QPWS, as a sub-unit of NPSR act as the administrative agent.

Now, the notice in question claims authority from the Department of Natural Resources. A quick search of the Administrative Arrangements Order for the current and last government fails to turn up a department of that name, and, furthermore, the nearest matching administrative unit, the Department of Natural Resurces and Mines, is not responsible for execution of the Forestry Act. And even if they were responsible, the Forestry Act at s34AA(3)(c) and s34AB(1) makes it clear that a regulatory notice must “expressly state that a contravention of a requirement contained on the regulatory notice constitutes an offence against this Act”.

Here we have a curious artifact of the bureaucratic machine indeed, and that’s even before we get onto the subject of the actual requirments themselves. As it stands, I doubt this sign has the force of a regulatory notice, and the mere act of saying it is can hardly make it so.

Summary

A regulatory notice will, a) state the Act or Regulation that underpins it, b) state the penalty prescribed by the subsidiary legislation for a contravention, and c) state the responsible administrative unit.

Howard Smith Wharves – the debate in the Council Chamber

by Dave Reeve

Introduction

I posted the following piece to the ACAQ Facebook page as part of our investigation into the proposal by Brisbane City Council to grant a 99 year lease over the Howard Smith Wharves precinct to HSW Nominees Pty Ltd.

The Debate in the Council Chamber

This is the last piece in my analysis of the HSW Development Proposal, and what it means for the climbing community. The debate in the chamber is of interest in that it sheds light on the position of individual Councillors. Well it should shed light, but for the fact that Council is dominated by a large majority of the one party, and the need for debate is minimal. Such debate as there is, is pretty much a formality that leads up to the foregone conclusion of the vote.

However, we do see the independent Councillor Nicole Johnstone raise most of the issues we would raise, so we know we are not totally off-beam with our assessment, unfortunately HSW is not in her ward, and she quite rightly has local issues to attend.

The LM introduces the proposal very briefly, having spoken at length on the subject during Question Time. He affirms that “concept and delivery”, rather than “financial return”, were the deciding factors in the choice of proposal. Remember this is a political debate, never take anything spoken at its face value. Think peas and thimbles, and you have the idea.

[Lord Mayor]
……. but importantly, Madam Chairman, as part and parcel of this, we saw the setting that was made right at the very beginning of this, in terms of its assessment, was that the major scorecard was around concept plan and the capacity to deliver. They dominated over any returns to Council, Madam Chairman. This is a unique site and we needed to look at it in that context. It was a decision that the cabinet firmly made, that we wanted to make sure that the concept and that the delivery were the priorities in terms of this proposal.

Cr Dick, takes a scatter-gun approach to his role in opposition. It lacks the forensic probing that is really required, but the targets are worth noting.

[Councillor Dick]
…. Just finally, Madam Chair, on the Stores Board submission, which is the Howard Smith Wharves Revitalisation Project, as the LORD MAYOR outlined in question time and also in the E&C debate. The HSW Consortium is a partnership between Elisha Bickle and Adam Flaskas. The Howard Smith Wharves Consortium and, as the LORD MAYOR confirmed, they’ve sold the hotel development right to Asia Pacific Group. I note in the report that the Howard Smith Wharves Consortium have taken on the maintenance of locations with the parkland.

Now this is one area where we haven’t heard a lot of information about the project. Now, as people will recall and we were in the old chamber when at one council meeting the LNP decided to use its majority to take the money out of the Central Ward Park Trust Fund, remember that one?

[interjection]

To pay for the redevelopment of Howard Smith Wharves, to deliver the parkland which is the real reason that we’re debating this issue because the community have been promised for a very long time new parkland in that area. Forget the bodgie figures around 80 per cent that they go on about when they include the cliff face as part of the 80 per cent, all of that nonsense.

[interjection]

That’s right. When you can throw a frisbee against the rock wall. But, Madam Chair, we’ve received very little information about this and this is something that I know local residents and people who have been following this issue way back from years ago. We then saw the rezoning change onto that site, so residents wouldn’t get a chance to object to that, remember that change came through Council as well?

[interjection]

They shot that one through so we could actually see a change there. So residents would be shut out of the process. Now we’re seeing the hotel redevelopment, commercialisation of that site without any attention today by the LORD MAYOR regarding the flooding issues which I know have been raised continuously. Now it’s been emerged that the family or the parent group of that developer are also LNP donors as well, which I raised in question time today as well.
Well there may be some—

[interjection]

I take the interjection, Madam Chair, that Councillor ABRAHAMS is suggesting it may be a pattern. I certainly hope there is no pattern involved because we want to see the highest quality development in Brisbane across the city with no connections to donors as well, but we’ll be debating that a little later today where those questions have been seriously raised regarding other developments. So I certainly hope some of those issues will be raised in today’s debate. We’ve had very little information about what that will mean for the broader Brisbane community, about what we will be receiving there on that site.

It’s an incredible opportunity for us to get this site, to make sure we deliver for our city.

The Deputy Mayor rises to bat back most of the points raised by Cr Dick. The problem with a scatter-gun attack is the response is even more scattered. Make of it what you will.

[Deputy Mayor]
… So we will see this city really—once this development rolls out—really come to love this precinct, I’m confident of that. Now, in relation to the documents that we have here and the arrangement that is being entered into with the HSW nominees, is a good outcome for the city in a number of ways. As the LORD MAYOR said, if Council was just looking for financial returns from this, there would have been a different outcome. We wanted something, though, that was best for the city, best for the people of the city and would be that iconic precinct that I mentioned before.

It’s really disappointing to hear Labor’s contribution to this. All we hear is negativity and carping. Particularly with something so important to the city and something which I know Councillor DICK will be down there at the cafes and bars when it opens, enjoying it. We know he will be, he’ll be running along the riverfront there, he’ll be enjoying a drink at the craft brewery, no doubt about that.

The way that he has approached this has been really disappointing, I think. It’s a pattern of behaviour that we’ve seen on a whole heap of different things. Might I add that Labor opposed free Wi-Fi in parks? Another example, there are so many examples where they get up here and they make negative comments yet it turns out to be a great thing for the city, and this is another one of those examples.

The suggestion that the 80 per cent includes the cliff face is just wrong. It’s just wrong. That was a line that David Hinchliffe was peddling years ago. So they’ve obviously dusted off the old notes from David Hinchliffe and recycled them. It is not true; the cliff face is not included in the 80 per cent. The suggestion that there’s been nothing done to deal with flooding, once again, not true. Not true.

The development has to be built in the same way that any other development needs to be built when there is a potential flooding issue. So all of the floor levels will be built with the flooding issues in mind and we will see that incorporated into the assessment process when a DA is lodged. So once again, ridiculous claim.

The claim that Central Ward Park Trust Fund funds were going towards this park project is actually not accurate. It’s not accurate. Once again, a little bit of twisting of the truth. What those funds will be used for is improving the top of the cliffs, which are not part of this project at all. So those funds have been corralled for the time when this project occurs so that we don’t have a situation where the bottom area will be great but the top area would be old and tired.So those funds are still sitting there ready to be put into work to improve the top of the cliffs which, as I said, are not part of this project.

Finally, I just wanted to say that the suggestions that have been made about the HSW Consortium and particular individuals and comments about donations are just completely inappropriate and wrong. The people that are involved in this consortium have other projects across the city. Those projects are very successful, and might I add, they have been in the past awarded tenders by the previous Labor Administration.

So it was okay for Labor to award those people a contract that involved Victoria Park Golf Course, but suddenly now they’re raising those outrageous suggestions. They know it’s not true but they just love to throw it in there. They love to throw the mud and hopefully they think some of it will stick. Well nothings going to stick here because this is a great project for the city of Brisbane and these are respected, experienced providers of great entertainment precincts in other areas and including our own Victoria Park Golf Course.

So I am confident they will do a great job, looking forward to this project rolling out to the benefit of Brisbane residents. As I said, very disappointed that Labor’s not coming on board with something that is really good for the city.

Cr Johnston rises to ask some very pertinent questions. It is good to see that we are not the only ones that see a problem with accepting a proposal in the absence of certain key information. However, no other Councillors take up the argument and her critical points are lost.

[Cr Johnston]
Now I would like to make some comments on the Howard Smith Wharves Revitalisation Project. I am really in two minds about this. Activation of the space down there would seem to be very important and it can be of great benefit to the city. The issue I have is, I’m not sure that the LORD MAYOR and this Administration have quite got the design and the scope of this right. I think given the importance of the space and the seriousness of the issue that we’re looking at here today, that is a lease for 102 years to a small Brisbane private company that there does need to be a high level of scrutiny both within Council itself and by this Council with regard to the contracts being awarded.

What I note is when I went to look at the files, there is very little information on the files. There’s a few post-market submissions and so forth but there is a lot of information missing that would help us make an informed decision as a Council today. I don’t, Madam Chairman, just trust the LORD MAYOR and trust that they have done the right thing here because time after time we see mistakes and problems with the contracts that this Council enters into.

So this is one of these areas where, trust us; it’s all okay, is not going to work. Now I note that in the Council papers before us today, the purpose of this project was—and this is paragraph 44—a developer is being procured to fund, construct, operate and maintain the finished development in return for long-term leasehold rights over the site at minimal cost to Council.

Now that’s what we’ve been asked as the core mission of the revitalisation of this space. I note that several companies came forward with varying proposals and the proposal which is described in the papers variously as the A&E submission and the HSW submission is the one that Council is proceeding with today.

I guess I question a couple of core issues around this. Firstly, I note that this Council will invest $4 million into the revitalisation of this space. That is due to occur after a minimum amount of some $13 million has been invested by the proponent. That does not seem minimal to me, $4 million is a lot of money and I am, I guess, a little confused as to how a project of this size and capacity is not self-funding and why it is that this Council is contributing $4 million when we would normally, I think, here see more commercial terms.

I guess I’m just questioning why this Council is subsidising what is going to be a major economic investment for a private company in Brisbane. I note that there is a hotel going on the site, there is a retail and restaurant precinct going on the site and there’s a small convention space going on the site. This Council is estimating that over the life of the lease, so three years for the commercial component and 99 year lease, that Council will receive $528 million in revenue from the project.

So I guess the question to me is, if it is this economically significant and viable, why is this Council investing $4 million? This is what I’m not sure about. Because I would want to see ratepayers’ funds going into projects that can’t be funded in some other way. I guess I would like a little bit more explanation of why this money is being put in by Council. I note that other proponents certainly were seeking some investment by Council into this but given the economic benefits that have clearly formed such a vital part of the assessment of this tender application, why is there a need for a $4 million subsidy from this Council?

That’s unclear to me. Particularly given the very substantial financial benefits that this Council expects to see flowing from the project. I think, Madam Chairman, that we really should have a little bit more information about this because the other concern that I have in the council papers before us today, there’s a summary, essentially, of the financial terms for the project. But on the files themselves there is very little information that you can read to actually look at the raw data, look at the material that’s been submitted.

I note in one of the few documents, which is a summary of the recommended proposal and transaction, there are a number of documents that form part of the project agreement. That includes the project agreement itself which outlines the rights and obligations of both parties. It is a construction lease; it is the base precinct lease, the building management statement, the precinct plan and all of the easements and access rights.

Now, none of those documents are actually on the file. So we can’t look at them. We’re being asked to make a blind decision today because the relevant documents that are referred to, which are the heart of this transaction, have not been publically made available to the councillors today to review. That is really problematic. I know that the LORD MAYOR will stand up and say, well it’s been recommended by the Council officers, and this is no reflection on them, but I would like to see the documentation that supports this deal and I would very much like to see some of the details around it so when I make a decision and vote in this place, I’ve done so fully informed.

That’s not possible because the files do not contain any of the essential legal agreements and they have not been made available for councillors to review in the normal way. That is really problematic. So I am very concerned about the lack of transparency around this particular process. The other concerns I have relate to access, public access. The artists’ impressions seem to provide access both along a new riverfront component and also along the pathway behind the back of the existing heritage buildings.

Now one thing is true, I do run down there as well and I vary it up a bit; sometimes I do the bridge loop, sometimes I go the other way, and I’ve tested out the new boardwalk. But what I will say is, at the moment, it is extremely wide access down there in that area behind the old heritage stores. You get hundreds of people cycling, walking, dogs, prams, runners. I am very concerned that we don’t just see a standard three-metre path for community access through that area.
Because once you add in the retail component, you will have people milling around doing a very social activity versus the through traffic at the moment and that is a concern together with the flooding.

Cr Howard rises to add absolutely nothing of value, and one can only admire the strong stomach of those subjected to such oleaginous speech. “So, Madam Chairman, you will have heard me talk previously about ensuring that Central Ward has parks as beautiful as our children.” …… surely to hear once would be enough?

The Lord Mayor then rises to make a few concluding remarks before the submission is put to the vote. Interestingly, he singles out connectivity as a major benefit of the development. One wonders how he imagines putting this connectivity node into private ownership is going to help matters.

[Lord Mayor]
Well, Madam Chairman, again, in regards to Howard Smith Wharves, I believe that in the fullness of time when it’s completed, I think it’ll be an outstanding addition to our city. Madam Chairman, to use words that have been used before, it is the missing link on the river. The connection that Howard Smith Wharves will give to the Riverwalk, to that of the CBD, I think that it will be, in the future, seen as an outstanding precinct. The whole connectivity through there, I think, Madam Chairman, will really ensure its success.

 

The voting was as follows:
AYES: 18 – The Right Honourable the LORD MAYOR, Councillor Graham QUIRK, DEPUTY MAYOR, Councillor Adrian SCHRINNER, and Councillors Krista ADAMS, Matthew BOURKE, Amanda COOPER, Margaret de WIT, Vicki HOWARD, Steven HUANG, Fiona KING, Geraldine KNAPP, Kim MARX, Peter MATIC, Ian McKENZIE, David McLACHLAN, Ryan MURPHY, Angela OWEN-TAYLOR, Julian SIMMONDS and Andrew WINES.

NOES: 5 – The Leader of the OPPOSITION, Councillor Milton DICK, and Councillors Helen ABRAHAMS, Peter CUMMING, Kim FLESSER, and Victoria NEWTON.

ABSTENTIONS: 1 – Councillor Nicole JOHNSTON.

 

The minutes for the meeting of 21st October 2014 are archived here

 

Howard Smith Wharves – risks arising from the project

by Dave Reeve

Introduction

I posted the following piece to the ACAQ Facebook page as part of our investigation into the proposal by Brisbane City Council to grant a 99 year lease over the Howard Smith Wharves precinct to HSW Nominees Pty Ltd.

HSW – the project risks

We see from the submission tabled at the Council Meeting of the 21st October last year that the winning proposal was HSW Nominees Pty Ltd, ACN 166 209 874, trading as HSW Consortium, and that the development agreement was to be signed with this corporate entity. In earlier posts I have pointed to the fact that Council intends transferring the public space at HSW to the private control of this corporate entity, with the later committing to some sort of undertaking to keep “public space” as “public” as possible. I have already expressed grave doubts about such a proposal, and now will add more doubt by taking a look at the process involved in the development itself.

At the outset I want to make it very clear that I am not criticising Adam Flaskas and Elisha Bickle. On the contrary, I am in open admiration of anyone who can bring energy and creativity to such a project. My criticism, if any, is with Council who really need to go that extra yard and show due diligence before committing public land to the private estate.

Now, anyone is free take a look at what is on the public record with respect to HSW Nominees provided they are prepared to cross ASIC’s bureaucratic palm with silver, so, $47 and a few internet minutes later, we know that HSW Nominees Pty Ltd is a company owned by Elisha Bickle and Adam Flaskas and none others. Further we know that they own the company in equal share with a total of $1200 in capital issued, and that it has been sitting dormant since 10th October 2013.

I understand many of the climbing community will not be familiar with business practice 101, so I’ll spell out a few things that may not be obvious. Firstly, when the development is complete, the corporate entity, HSW Nominees, is the one that will be executing its right under the terms of the lease to allow/disallow public access. In practice, this means the directors of the entity, or any managers they appoint, will be the ones making the access decisions. Secondly, either or both of Elisha and or Adam are free to sell all or part of their interest in HSW Nominees, and, should they do so, the lease would stay in place for the benefit of their successors. When you consider that we are talking about a 99 year lease, you can see that such a successional event is sure to occur at some point.

Next we need to understand that a lease agreement is a commercial contract between two parties that is created in a spirit of equity. As time passes, and new actors move onto the stage, what was once equitable may become to be viewed otherwise. Thus, we can see that whilst Adam and Elisha might have a clear vision of untrammelled public access to the site, the same need not be the case for their successors, and depending upon the wording of the contract, and depending upon the will of their successors, public access could yield to commercial imperative.

I have been making the argument for some time now that access to public land should be about legislation, not land managers. If we are to put in place public policy that really is to offer value to future generations, we need to heed the structure of the stage, not those that would act upon it. We should value acts of legislation over acts of equity.

Whilst the directors of HSW Nominees will be the main actors on the stage, we need to be mindful that in the wings there will be the financiers of the project. If the play stays on the intended script, we will never see these guys emerge from the shadows. However, if at any point it looks like their investment is at risk, we will see them step forward, perhaps even to the point of causing the appointment of a new lead actor in the form of an administrator. They do this by exercising a right embedded in a charge over all the assets and undertakings of the HSW Nominees. We would see this charge registered with PPSR at the time the finance is put in place. There may be multiple financiers and multiple charges, in which case there will be an agreement which describes how one is to rank against the other in the event of default. At the present time there are no charges registered.

I should emphasise that there is nothing untoward about any of the above. This is all standard business practice aimed at ensuring the best outcome for the project. Our interest in this stuff narrows down to what it might mean for public access should the project run into trouble.

Recall that the intention is to have an equitable arrangement in place that aims at keeping the “public” space as public as possible. What happens to this if HSW Nominees goes into administration? The Administrator’s primary duty is to extract value out of the situation so as to minimise loss to all parties bar the shareholders. It is not his job to complete the project. However, we know that Council, as part of the development agreement will also hold a charge over the assets and undertakings of the company. Ideally, this should be the senior ranking charge so that Council can step in and take over the project itself should the need ever arise. This possibility is covered in the risk assessment presented in the agreement document, under “Contractor Insolvency” –

Project Agreement requires:
– A company charge in Council’s favour over all the assets and undertakings of the HSW Consortium. Initially this will be a first ranking charge. Council would cede priority to the senior financier
– A side deed with the builder allowing Council (or a party nominated by Council) to step in as principal under the building contract to complete the works
– Bank guarantee in amount of $800,000 to be provided by the developer as security
Note: In the event of developer insolvency, financiers will have sale rights. Removal of these rights would negatively impact the developer’s ability to obtain finance for the project

However, note that in the real world, there is no way a financier will step in without placing a charge that gives him the freedom to take whatever options necessary to recover his investment. Council’s charge would stand for naught. If we wish to maintain public access to the HSW parkland, then such a scenario would seem a sure way of losing it. I would like to hear from Council why they consider such a risk to be worthwhile. Even to know they have considered the possibility of what happens on default would be a comfort.

Howard Smith Wharves – development submission 21Oct14

.by Dave Reeve

Introduction

I posted the following piece to the ACAQ Facebook page as part of our investigation into the proposal by Brisbane City Council to grant a 99 year lease over the Howard Smith Wharves precinct to HSW Nominees Pty Ltd.

HSW – anatomy of the deal

The submission for the latest proposed development of Howard Smith Wharves was presented for approval at the Council Meeting of 21st October 2014. We can examine both the document and a transcript of the debate that ensued.

I’ll try to explain what the submission means in simple terms, and in another post detail the objections that were raised by the opposition.

The submission document says this –

Purpose:
To seek Council approval to enter into a Project Agreement with HSW Nominees Pty Ltd, ACN 166 209 874 (trading as HSW Consortium), for the Howard Smith Wharves Revitalisation Project. The Project Agreement is summarised at section 7.5 and includes the granting of:
– A construction lease for a term of three years commencing after HSW Consortium has obtained development approval for its concept plan; and
– A base lease and associated precinct leases for a term of 99 years commencing after the completion of construction.

 

Background/Operational Impact:
Council wishes to revitalise the 3.43 hectare Howard Smith Wharves site and has sought development proposals. A developer is being procured to fund, construct, operate and maintain the finished development in return for long-term leasehold rights over the site, at minimal cost to Council. The project is expected to create a vibrant, welcoming and safe public space that delivers economic benefits to Brisbane in a high quality riverside parkland setting.

There is much to like, and certainly not a lot to dislike about the above. In any universe, a dream come true is always to be welcomed, and the idea that the developer should “fund, construct, operate and maintain…. at minimal cost to Council” is surely good value for the rate-payers. However, even a cursory parsing shows that the key desired outcome “to create a vibrant, welcoming and safe public space” is at odds with the developer having “long-term leasehold rights over the site”. It is indeed dreaming to think that such a long term commercial lease over a public estate does other than transfer it into the private estate.

Yet, this is the nature of the deal.

But, I hear you ask, what of other clearly successful projects that employ mixed use of parkland – Southbank is surely awesome? Indeed, Southbank sets a high bar for future projects. But wait on a minute, whilst Southbank is situated on Council’s freehold estate, [not strictly correct – see update], the commercial entities located there lease no more than the footprint of their premises, and the parklands remain public space. Most importantly, parkland development, design and upkeep bows to the public will – albeit ponderously – via the local political process. The same situation is not proposed for HSW, presumably, because Council is not prepared to pay for it.

A large section of the submitted document describes the process of firstly calling for proposals, and then the process of selecting the most appropriate candidate. These processes follow the usual strict rules for tendering within the public domain, and gives no cause for concern.

Moving onto the list of reasons for selecting the winning proposal we get an insight into the selection committee’s thinking. Note that I say selection committee because it was not Council proper, ie a meeting of duly elected Councillors, that made the selection, but a committee of unelected civil servants drawn from the State and Council apparatus. They say –

 The major reasons why the HSW Consortium achieved the highest score for their concept design are:
– The design included a covered event space which would activate the site yet not be closed off to the public when events were not being held;
– The event space was low level compared to other proposals which resulted in more of the cliffs being visible from the river;
– The hotel was smaller than other proposals and the façade design blended the hotel into the cliffs;
– HSW Consortium’s proposal to Build, Own and Operate including maintenance obligations within the park and other public areas, was viewed more favourably than proposals that sold on the development and obliged Council to maintain the park and other public areas;
– The extent of development is significantly less than proposed in the other shortlisted proposals which would be more acceptable to the community but also consistent with heritage principles; and
– The public spaces would be activated by events and were more extensive than shown on other shortlisted proposals.

The first point to jump out is the fact that Council surrendering control of public space is seen as desirable, with “proposals that sold-on the development and obliged Council to maintain the park and other public areas” less so. If this is the case, are we to assume that somewhere within Council Executive there was a desire to avoid the establishment of Council-controlled parkland [not strictly correct – see update], as per Southbank? Assuming the Executive doesn’t act outside the Lord Mayor’s direction, how is it we come to this pass after years of public consultation, consultation that made clear the desire amongst rate-payers for parkland development at this site?

The second point is the spruiking of the fact that the so-called “public space” won’t always need to be closed to the public. I guess this means that it will be open, except when it’s not… I’m glad we’ve got that one clear.

In the document there is a lot of stuff enumerating what will be built, and the scaling of monetary returns to Council. This seems all very reasonable.

Turning to the public space requirements, which need to be our area of focus, we find a number of requirements that must be met, presumably by the end of the development lease, and before the 99 year lease is granted. This includes a spend of $13.31M on improvements including at least the following –

The scope of park and public space improvements will be further refined prior to development application (DA) approval being sought, however, they will include the following elements:
(i) refurbishment of existing air-raid shelters
(ii) pedestrian and shared paths throughout the site
(iii) turfing and other soft landscaping
(iv) a kayak ramp
(v) public amenities
(vi) public space furniture such as bollards, bins, seating and cycle racks;
(vii) two lifts and one set of stairs to the top of the cliffs
(viii) public board walk structure adjacent to the river

So we don’t see rock climbing on the list, but in my opinion, that fact is neither here nor there. It doesn’t matter what is on the list if “free and fair” access to it is constrained by the leaseholder.

We note that Council, for their part, undertake to add a further $4M to the $13.31M above.

Listed as a key consideration we find the following

(c) Use of Parklands Precinct
The parkland and public space will be leased to the developer who will be responsible for maintaining these areas. The conditions of the lease have been drafted as such that these areas will be generally open and accessible for use by the public. There will be periodic events, functions and other activities carried out in the parkland and public spaces to activate the site; however Council can require proposed events to be cancelled if it considers that the proposed activities will result in the parkland and public spaces not being available to the public.

Once again we note that the “parkland and public space will be leased” which means these components will be transferred from public to the private ownership. Assuming such a process occurs, it is misleading to refer to them as public spaces. Rather they are spaces where the public will be permitted entry according to the exact wording of a draft lease document, one that was not made available at the Council Meeting where approval was sought, and, at this point in time, is not available for public inspection.

Notice how this is a reversal of the usual order of things for carrying out private functions or group activities in a public park. The default position is the park is open for “free and fair” access by individuals, but may be used from time to time for private functions via a permitting system. Is it true then, that Council considers the price tag of $17M too high to develop the site for “free and fair” access? Really? Yet they are prepared to spend $4M to see it end up in private hands.

Another key consideration from the list we have –

(d) Conditions precedent to the Project Agreement
The Project Agreement contains a number of conditions precedent which must be satisfied to enable the Project Agreement to continue. These conditions precedent are as follows:
(i) DA approval – The proponent is obliged to lodge a DA within eight months and then has a further 18 months to obtain DA approval.
(ii) The parties agreeing on the terms of the four separate leases for the retail, park, hotel and car park precincts. These separate leases must be created within two weeks of the signing of the Project Agreement but will be based on agreed principles stated in the Consolidated Form of Lease that is included in the Project Agreement.

Note that HSW Consortium have 18 months to get DA approval (development application approval) from when the DA is first lodged. I’m guessing that they intend to lodge sometime in early June, that is, following the current public consultation phase.

Note that there will be four leases executed, one for each of the four components of the development, and that these leases extend an underlying base lease for the site. In some ways this might simplify matters, given our concerns centre on the public space component. However, without sighting the actual lease, we have no way of judging the impact on public access. One has to ask why wasn’t the Project Agreement tabled at the Council Meeting, and why isn’t it available for public inspection? After all, from the timing below, it would appear to have been executed

Execution of Project Agreement
70. The Project Agreement has been prepared, including the conditions precent summarised above. HSW Consortium is expected to sign the Project Agreement to formalise its offer to Council on 10 October 2014. The Project Agreement will then be ready for execution by Council, should this post market submission be approved.

Up to this point, I have concentrated on what this deal means for public access if all goes according to plan. However, in the real world, things rarely go according to plan, and we need to consider the nature of the fall-out should the development run into financial difficulty. Some of this is covered in the proposal document, and I’ll explain what all this means in a subsequent post.

 


Update

I looked into the land ownership structure at Southbank in a bit more detail, and found that some serious thought had gone into the issue. Most strikingly, the structure used to guarantee its open and public nature makes the proposals for Howard Smith Wharves look amateurish.

Council vested land into the South Bank Corporation, a child of the South Bank Corporation Act 1989, thereby handing control of the precinct to the State. The membership of the board of this corporation, and the way in which South Bank is to be managed are all laid out in the legislation.

The question of whether or not the legislative framework is a good one is unimportant compared with the simple fact it exists. If it exists, then there is a well established process by which the will of the people can be exerted. In short, a public corporation exists to serve the public good whilst a proprietary company, by very definition, exists to serve its private owners. To believe that a proprietary company, HSW Nominees, is a suitable vehicle for the management of “public parkland” is naïve in the extreme.

Howard Smith Wharves – from Council’s point of view

by Dave Reeve

Introduction

I posted the following piece to the ACAQ Facebook page as part of our investigation into the proposal by Brisbane City Council to grant a 99 year lease over the Howard Smith Wharves precinct to HSW Nominees Pty Ltd.

HSW – a View from the Council Chamber

Thus far we have seen that Council does in fact own most of the HSW precinct in fee simple, and at first blush, the corporate individual which is Council has a perfect right to do what it likes with it, including assigning it to another corporate individual by means of a 99 year lease. I’m sure there will be a multiplicity of subsequent blushes by the time we are through, and I need to do more digging around to inform myself if I’m not to add mine to the collective embarrassment. However, here is something to chew on.

At the Council Meeting of the 21st October 2014, the approval of Council was sought to enter into a project agreement with HSW Nominees Pty Ltd for the Howard Smith Wharves Revitalisation Project. However, before that item came up for discussion, the ground was prepared during Question Time by Cr Knapp asking the Lord Mayor a Dorothy Dixer, thereby permitting him to spruik the HSW project. Bear in mind that here we have a politician selling to his fellow pollies, so this viewpoint is worthy of careful note.

But there is another big plus which this Council will debate a little later today, and it is that of what I have referred to as the missing link in Brisbane’s river horizon—this is the Howard Smith Wharves. This Council is being asked to support what will be the development of that 3.42 hectare site. Some 80 per cent of the site under the proposal will remain as parkland and public open space, but indeed, the other 20 per cent will consist of 10 per cent of existing heritage-listed buildings, and 10 per cent of new development.
In relation to that new component, it will consist of what is a 150-room, five-star boutique hotel, three storeys in height in part, six storeys in height in other parts. But it is of a scale and level which we believe fits in with the landscape, with the cliff face. The other exciting component of this development is that it will engage with two lifts to go to the top of the cliffs—one at the hotel end, and one at the other end of the site.
The other component of the new development that is proposed is a 1,500 square metre exhibition space, and this space is proposed for markets, it could be festivals, it could be pop-up retail, it could be weddings; there is a whole range of opportunities that might pertain to that particular space.
One thing I should have mentioned in relation to the five-star hotel is that it is intended to be developed and operated by Asian Pacific Group, so that is just the hotel component. They are a part of the Deague group, and that is their plan. But the overall operation and proposal is recommended to HSW Consortium as the preferred operator; that is a consortium which is led by Adam Flaskas and Elisha Bickle. They are local people who live at New Farm.
It is not their intention to simply develop and move on. It is their intention to develop and operate the site. They have skin in the game. They are locals, and they want this to be another additional offering, another part of the story of Brisbane—Australia’s New World City. So it is that this particular site I think will be a fabulous new addition.
Apart from the aspects that I have mentioned, the older buildings that are there, the heritage-listed buildings, will consist of restaurants. There will be potential for other retail markets within that particular site. The proposal also includes a marina, and the operators have the option to take this up. If, however, they decide not to, then Council will have at some point an opportunity to go in and to reassign an opportunity around that. We believe it is a great site for a marina development and would be a good addition to the river-scape.
The development itself does not provide the biggest return to Council. We always, when we went into this site, said what we wanted was an outcome which this city could be very proud of, an outcome which was sensitive to the cliff face, sensitive to the Story Bridge. We have already done a lot of stabilisation of the cliff. There is still a section to be done, and that is behind the proposed hotel. That will be part and parcel of the responsibility of the successful consortium, if determined by today’s Council.

I think it is pretty clear from the above that the LM is envisaging something that is primarily a commercial precinct. Sure the mantra of 80% free space pops up on cue, but to my mind this is a Pavlovic reflex resulting from the public maulings that have ensued over the last decade, whenever any attempt has been made to offer up something other than a park.

If your heart is set on the vision of a commercial precinct with genuine revenue generating capacity, my guess is that 80% free space is a constraint rather than an asset. It certainly isn’t a reserve for “recreation” and “park” as is say KP, and it is duplicitous to pretend otherwise.

And, once the deal is done, we will have nothing but the weasel words of a single lease document standing between parkland for public recreation and “parkland” as a device to ring the cash registers of a private commercial operation. In my opinion it is simply untruthful to pretend that putting public parkland into the private domain can ever achieve the adherence to “community purpose” that is offered under the Land Act for state reserves.

I hasten to add that I’m not anti-development, and if it wasn’t for the fact that HSW is home to one of the two climbing cliffs in the CBD, I would support this development. Natural climbing resources are rare, and, given the CBD location, valuable. The multi-million dollar recreational value of the cliff has totally escaped scrutiny.

Howard Smith Wharves – land ownership

by Dave Reeve

Introduction

I posted the following piece to the ACAQ Facebook page as part of our investigation into the proposal by Brisbane City Council to grant a 99 year lease over the Howard Smith Wharves precinct to HSW Nominees Pty Ltd.

HSW… who owns the land?

OK, so here comes part two…. by what authority can Council put the unique HSW cliffs into private hands?

BOREDOM ALERT… this stuff sucks, but it is important, and at the risk of being way less than 100% correct, I’ll try to make things as simple as possible.

Before we can get off first base, we need to know who owns the land on which the wharves are situated. To do this we need to identify the relevant land parcels, and then look up the land registry to identify the registered owner of each parcel. I have now done this, and the information is presented in the map below.

HSW Registered Owners

In this map the broad red line represents the Neighbourhood Plan Precinct, NPP-005, for the City Centre Neighbourhood Plan 2014. It is worth noting here that this precinct was originally in the New farm and Teneriffe Hill Neighbourhood Plan at a point when considerable community pushback was encountered for the HSW development proposals of the time.

The four land parcels shaded mauve are the land parcels we believe are proposed for transfer to HSW Nominees via 99 year lease. There may be a couple of other small ones as well, but there is currently no information in the public domain that describes exactly what is being offered. I’ll cover this point in a later post. For now, I’m simply noting the titles for the four parcels that most likely will be leased.

From exchanges minuted in the Council Chamber, I believe that the small parcels across the top of the cliff will remain under Council management.

A quick explanation of the practical implications of land tenure might be helpful. In Queensland, there is a diminishing pool of unallocated state land from which land parcels for either private ownership or community purposes are from time to time excised. A land parcel is transferred to an individual, or corporate individual, under a Deed of Grant by the Governor in Council. Note that this is a State mechanism, and the authorising body, the Governor in Council, consist of a committee of the State Governor plus the State Cabinet. The Deed of Grant confers rights on the owner of the land parcel.

When such a parcel is described as being held in “fee simple” this is the strongest form of land ownership, one that provides a title that can be inherited by successors, and be bought and sold at the whim of the owner. Thus, when we see that Council holds most of the HSW estate in “fee simple”, this means that the various land parcels were excised some years ago and have most likely passed through the hands of several owners before being bought by Council. Notice that apart from the requirement to register the change of ownership, the State apparatus having excised the land parcel no longer has a continuing interest in its fate. Of course, when Council, rather than a private individual wishes to acquire it, then the State apparatus will raise its hoary head via The City of Brisbane Act, and perhaps other legislation, to enumerate what acts a Council may or may not do. However, this is a matter apart from the actual process of acquisition of the land parcel. This issue of Council owning land in “fee simple” worries me, mainly because I don’t see how adequate checks and balances can be exercised, and is something I’ll raise again later.

Coming back to the mechanism for allocation of unallocated state land, the Minister responsible for overseeing the execution of the Land Act may, from time to time, dedicate unallocated state land for one or more community purposes. Typical purposes are “park” or “recreation” and often both of these categories. This process gives rise to the tenure of a state reserve and we see such a land parcel at the far eastern cliff top of the HSW precinct. An example of a reserve for the community purpose of “park and recreation” well known to the climbing community is the KP Parklands. An important characteristic of state reserves is the fact they remain under the control of the state, and although local councils acting as trustees often manage them, the rules governing their management are primarily derived from state legislation. This legislation addresses many of the trans-generational pitfalls of public land ownership and management. If the HSW precinct was on state reserve rather than held in fee simple by Council, we wouldn’t be looking at the possible loss of the HSW cliffs to private control.

Howard Smith Wharves Development

posted by Dave Reeve

Introduction

I’m going to assume that readers know something of the long history of climbing at the Howard Smith Wharves within the Brisbane CBD, and also something of the on-off nature of the plans for development of the site. Wikipedia has a good summary of this often fraught process. In an attempt to establish recreational climbing on this, the second, of the only two climbing crags within the CBD, ACAQ has spent countless hours of volunteers’ time only to have high hopes dashed as the behemoth of State and Council shifts from one foot to the other in an apparent fit of indigestion.

It was sheer good luck that it came to our notice that a new development proposal was entering the public consultation phase. I feel that the call for comments was very poorly circulated given the public interest that proposals for the development of this site have engendered in the past.

We have chosen to engage the climbing community via our Facebook Group, and as we dig into the nature of the proposed development, I have been posting up short informative pieces that explain the legislative framework which underpins the access issue confronting us. This issue is one example of a general class of issue that has been perplexing me for some time, and I thought it might be useful to have the FB posts up on this blog for future reference.

Consultation Notice

FB post following meeting with the developers on the 9th May 2015

Thanks to all the folks that made it down to HSW today to say their piece at the public consultation. The consultation will show that a random sample of the public is composed 90% of climbers…. awesome. Thank you.

The quick story is that, if no serious objections are raised during the current public consultation phase, the HSW Consortium will take a 99 year lease(s) on the entire HSW precinct effectively transferring it from public to private hands.

There are many twists to this story, with probably many more to come. I’ll be posting stuff up as I get to grips with what is happening here. For now, I’ll repost my summary of what I found out at today’s meeting from the event page……

Yep… I found it a pretty interesting session. I’ve now got a rough idea of what is happening here, and how it is likely to impact climbing access to the cliffs.

Whilst I applaud the vision and vibrancy of the development plan proposed by the HSW Consortium, being a grumpy old guy, I tend to look beyond the first flush of enthusiasm for those unintended consequences that can emerge unbidden some years down the track.

Progress in the public space is ever a balance between self-interest and the public interest, and the cleanest view of such a balance is to evaluate what things look like for the next generation…. self interest being mortal, the public interest, trans-generational.

Bearing the foregoing in mind, I found it somewhat disturbing that neither the principal, nor his project manager, were able to offer any clues as to the legal mechanism that was going to guarantee the park land established under the project would remain open for free and fair access at a point say 40 years into the proposed 99 year lease. Now, it maybe that Council is tying their hands to ensure that public access remains, and these guys just haven’t figured it out yet …. a sort of naivety not normally found amongst property developers and their financiers. Or maybe, it’s that the type of public access that is to the forefront of their minds is the same sort of public access offered by a shopping mall… open during trading hours only?

If the cliffs we wish to climb are inside an estate that is to all intents and purposes privately owned, then how does this differ from the access issues we face climbing on the private estate. I wonder if the penny has dropped yet, that the public liability for cliff-based activities ultimately falls on the holding body, HSW Nominees Pty Ltd? When it does, what’s the bets the shutters come down?

I’m digging into the matter, and will post up details of the who is who in the business, what was said in the Council chamber when the matter was debated, and any details of the leases(s) that I can uncover. Boring stuff, but remember, we work under a system of laws, not people. Laws persist across generations, whilst people, especially those that shine brightly, disappear in an alarmingly short number of years. Fifty years ago, I climbed at KP and HSW. In fifty years time I’d like to ensure our kids and grandkids are still climbing at these unique crags. An attempt to effectively sell one of them out of public ownership deserves our close attention and scrutiny.

 

 

International Standards for Bolts – why we need them

posted by Dave Reeve

Introduction

In this essay I intend to present a set of reasons why the free-wheeling, outdoors-loving, climbers of our community should embrace that bane of their work-a-day lives, the world of paperwork, spreadsheets and conformance, at least, in as far as demanding that it apply to the fixed infrastructure on which we confer such trust. Sometimes, paperwork is exactly what is needed.

However, don’t panic, I’m not suggesting that we have to stop climbing and start filling out forms, but, I am saying that we need to get used to paying others to do the paperwork for us. In the case of climbing bolts this means we need to get used to paying a premium for an EN 959 / UIAA 123 compliant product.

It seems strange to me that Australian climbers have accepted the enclosure of ropes, harnesses, slings, carabiners, cams and nuts within a regulatory framework imposed by the European Union without so much as a murmur. At no point has anyone suggested that such safety standards are a restriction of their right of free choice, that, really, a length of rope from the local hardware would do just fine. On the other hand, looking over the same period of development of the sport, the imposition of an similar dictate with respect to bolts has been to the larger extent ignored, and, as a consequence, today’s climber can be confronted on the rock with a bewildering array of fixed protection of unknowable provenance and uncertain performance.

Why is this? Is it because there is a difference between what we would do for ourselves versus what we would do for anonymous others – because ropes and gear are exclusively personal property and cliff infrastructure is not? I’d like to think not. I’d like to think that, as a community, we were smarter than that.

Finally, I should state that we in Queensland have been lucky to have had a decade of leadership and guidance through the active community initiative of Safer Cliffs Qld. This initiative has tracked evolving ‘best practice’ and done much to discourage ‘rogue’ bolting within the State. Thus, I see my call for a move to standards compliance as something that builds upon the efforts of Safer Cliffs, not as a criticism of them.

Product safety standards in a nutshell

I’ll briefly put on my safety engineer’s hat. Trust me, this will be painless…

In drawing up a safety standard for say, a climbing rope, the first thing that needs to be done is to define how the rope will be used within the intended application space. We safety engineering geeks like to define formal use-cases within a  formal domain. The idea of this is that it allows us to be very clear about what is normal use and what is abuse. Thus, doing things like using the rope to tow your car, or to tie up the dog, are outside the domain, whilst taking whippers when working a sport climb is within the domain.

Within the restrictions of the domain, we then consider what the properties of the rope should be, given that risk to the climber is to be mitigated. For example, given a worst case fall of factor two, the impact force on the climber should be less than the nominal 12kN considered as the upper limit of survivability for the human body. Accordingly, we see prescribed  within the standard for dynamic climbing ropes, a drop test, and an associated maximum impact rating of 12kN.

In a nutshell –

In conforming with a product safety standard, a manufacturer vouches that his product is ‘fit for purpose’ within the restrictions of a particular domain.

It is worth pointing out that the domain reference is critical, and it is absolutely unsafe to take products from one domain to another. For example, a standard applicable to the integrity of an anchor employed in the height-access domain, should not be taken as applicable within the recreational climbing domain and vice versa. Similarly, a nice shiny stainless steel carabiner product from your local ships chandler is not fit for the purpose of a climbing anchor lower-off.

Product safety standards are kryptonite

Firstly, I’ll discuss a viewpoint that is perhaps uncharitable, but nonetheless a reality that comes with exposure to the public gaze. So,  I’m standing at the base of the cliff at KP and, as far as I am concerned, minding my own business, when I am confronted by a self-important fellow who wants to share with me the insight that climbers, and by inference, myself, are few pence short of the pound. “What makes you think those fixtures in the cliff will hold your weight? What makes you think that rope is strong enough?” And so on. “Ah…. ok…. time to unwrap the krytonite”, thinks I. So I point to the figures on the spine of a biner…”Oh look it has a CE mark. Oh look 23kN, strong enough to lift your car into the air”. The corporeal dimming is evident  as we move on to study the dyneema sling at my waist…”Oh look, another of those CE marks. Oh look 23kN again, that’s another car off the ground”. By this stage my antagonist has diminished to a mere wraith, so I finally hit out with, “And those fixtures on the cliff are EN 959 compliant you know, strong enough to hang your car on” to conclude the vaporization process.

When, as climbers, we are confronted in the manner above, either by members of the public or by officialdom, we often find a cultural divide that is hard to bridge with words alone. However, citing a standard legitimizes our activity, and suddenly everyone is happy. I know this is bizarre, but it is something I have seen work time and again. When the lycra-clad super-hero, defender of the common decency, arrives to challenge your behaviour, it is good to have kryptonite to hand.

Recreation on the public estate

Whilst it is personally satisfying to tranquilize the officious, it is better from a public policy point of view to understand the arguments that can be made regarding the recreational values of the public estate. In this regard, we can say that bolting a bunch of sport climbs at an otherwise unfrequented crag undeniably adds to the recreational value of the area. Such value will increase into the future as the popularity of the sport grows, but it comes with a maintenance cost that has to be borne by the public purse. These costs range from that of having to manage increased visitor impacts, through to the payment of public liability claims.

As a community, we need to be adept at arguing the case for climbing as a net value-add recreation. We need to understand which of our actions add value, and which work to minimize potential costs. The value-add of bolted infrastructure is easy for us climbers to comprehend, the issue of public liability, less so, especially given that, for most climbers, the taking on of personal responsibility for the control of risk is a big part of the appeal of the sport.

However, It is inescapable that the act of ‘putting on the mantel of land manager’ brings with it a plethora of issues over which the manager is obliged to exercise ‘duty of care’. These obligations are neither trivial, nor straightforward, being under-pinned as they are by the very broad principles of Common Law. And where that land manager is a government agency, failure to provide ‘duty of care’ can elevate public liability claims to being a substantial drain on the public purse, and ultimately the tax payer.

Of particular relevance to the climbing community, is the issue of the public liability associated with bolts. This one issue alone, has dampened the development of recreational climbing within the NPRSR estate over the last twenty years. I have written a long piece on the history of this subject here. In recent years, the ‘Civil Liability Act’ of 2003, and the ‘Nature Conservation and Other Legislation Amendment Act (No. 2) 2013’, have been introduced with the intention of reducing the stifling effect of a litigious public environment on the development of outdoor recreation. And it is pleasing to see indications that this is starting to happen.

However, put yourself in the shoes of the land manager sitting at his desk in George St. You know items of infrastructure are being installed throughout the estate you manage, and the best you can do is hope that a) the installers are adequately discharging their ‘duty of care’ , and b) if they aren’t, the ‘dangerous activity’ provisions of the Civil Liability Act will be sufficient to shield the public purse.

More kryptonite, please

Enter the kryptonite – nothing discharges ‘duty of care’ like a an international standard. It brings independent, third party, internationally recognized opinion to the table. That being said, we need to flag the corollary that nothing leaves lingering questions about the discharge of ‘duty of care’ like the failure to apply a standard when one exists. Step into the land managers shoes again for the moment. What would you rather do? – get involved in arguing the details of the specification of a bolt, or stand back and apply internationally recognized third party opinion? And how much does that third party opinion cost when it is built into a EN 959 conforming bolt? Lets say $3 extra per bolt, times eight bolts, is $24 for a typical sport route. With a life span of twenty years and one thousand ascents per year that comes to an amortized cost of 0.12 cents per ascent. One has to wonder why we even need to discuss this.

 EN 959 and UIAA123 – the standards for climbing bolts

EN 959 is a standard produced by Technical Committee CEN/TC 136 of the European Union. On the other hand, UIAA 123 is a standard of the International Mountaineering and Climbing Federation. The latter builds upon, and adds further requirements to EN959.  In practice, the differences from the manufacturing point of view are minor, and thus we find that commercially available bolts, if rated, tend to be rated for both standards.

We don’t need to sweat the engineering details, and instead, can concentrate on what these standards do for us. A conformable bolt will withstand at least 15kN (EN 959) or 25kN (UIAA 123) outward pull when properly set in the rock. There are other desirable features of a climbing bolt, but this performance figure is the big one.

Unfortunately, UIAA and CEN/TC don’t show their working, and thus we don’t know the reason for the minimum load values they specify. However, it is possible to show that using a UIAA/EN conformable dynamic rope, harness, slings, carabiners etc, that the possibility of generating a force in excess of 15kN on a bolt is extremely remote. Of course, we have every reason to want to quantify ‘extremely remote’. With thousands of folks out climbing most days of the week, you’d think it likely that someone is going to get unlucky.

Firstly, anecdotal evidence shows that even with the fairly patchy bolting standards of the past, severe harm arising directly as a consequence of bolt failure is very rare. The reason for this is that the exposure to harm is not as great as it might seem to the casual observer. Climbers are taught to avoid exposure to single point failure and will employ redundant safety systems to the greatest extent possible.

Secondly, when we calculate the probability of a load exceeding 15kN at a bolt, we find it is very, very low. I know this from the probabilistic models I have built in my attempts to quantify the risks associated with bolt failure. For example, if we assume a typical mix of male and female climbers, each category having a typical distribution of body weights, and we have them climb using some ten to twenty different ropes each of different impact force rating, and then have them fall at different heights above bolts set at a range of heights above the ground, we can estimate the distribution of impact forces experienced by a typical first bolt, a typical second bolt and so forth. As we might expect, the forces involved with first bolts, far and away exceeds that at the higher bolts due to the dominant effect of the fall-factor.

For a typical first bolt, we can show that less than one in one million falls on that bolt will exceed the 15kN limit. For second and third bolts the chances of failure are vanishingly small. Given that the majority of climbers are not going to fall on all the first bolts we have out there, it would take a participation rate of millions of ascents per annum before the EN 959 specification could be shown to be insufficient.

Thus we can see that –

EN 959 provides a specification that ensures compliant bolts are ‘fit for purpose’ within the recreational climbing domain. The level of structural integrity can be considered just right for the application space.

 

Can home-made bolts be EN959 compliant?

Yes they can, but there are caveats. To fully understand the gravity of the caveats we need to take a look at how product safety works within the European Union, because this is the framework that is driving the safety standards of recreational climbing equipment worldwide.

Without getting mired in European law, we need to understand that the standards applicable to things like dynamic climbing ropes, harnesses, biners, in fact most items of gear, are drafted to support a presumption of conformity with the Personal Protective Equipment (PPE) Directive, 89/686/EEC, of the European Parliament. Whilst the PPE Directive is the law, the standards themselves are not law. However, by complying with the standards, a manufacturer can argue that they meet the requirements of the law, and thus should be free to apply the CE mark to their product, and likewise free to place it on the market within the European Community.

In practice, the PPE Directive holds up two further hurdles one must clear. These are generic process requirements which reflect the seriousness of the consequences of failure to conform with the applicable standards. The first of these is that conformance of a sample with the standards must be confirmed by a type-approval body at random intervals of not less than one year. The second is that a quality system must be in place to oversee the manufacture of the product. This is where the paperwork, and additional cost comes in.

These latter hurdles appear insurmountable for any small operation wishing to manufacture bolts, but there is “wriggle-room”. Personally I don’t believe such wriggling is good for the climbing community, or the industry, but I’ll describe it so we can understand what is possible here, and especially what claims can be made for a product that comes into use.

The most obvious room in which to wriggle can be found in the fact that although a harmonised standard, EN 959, exists for bolts, the standard is not called up here as a means of compliance with the PPE Directive. Now it can be argued that Article 1.3 of the PPE does not extend to the means of attachment to the rock –

Any system placed on the market in conjunction with PPE for its connection to another external, additional device shall be regarded as an integral part of that equipment even if the system is not intended to be worn or held permanently by the user for the entire period of risk exposure.

Thus ropes and slings are clearly in, but points of attachment to the rock such as bolts, maybe, not so much. Yet we have harmonised standards for pitons, ice-screws, cams and nuts called-out as supporting compliance with the PPE Directive, but not bolts. Go figure! It looks like EN 959 fell into the EU ‘too-hard-basket’.

So if you market a piton in Europe, then there is no escaping the need for it to be CE marked indicating its compliance with 89/686/EEC, which in turn means it is has to be EN 569 compliant. But a climbing bolt? No such requirement exists. Of course, the usual principles of product liability would apply, but the fact remains you are not going to have anyone chasing you because it is not CE marked.

Thus, provided the home workshop yields a product that conforms with the design requirements of EN 959, there is no reason why EN 959 compliance can’t be claimed for this product. In my opinion this is both a good thing and a bad thing – good because it sets the bar for acceptable bolt design at a level that is robust, inexpensive and within the capabilities of folks who like to do their own thing – bad because, whilst the design is specified, the manufacturing process is not, and without things such as compositional analysis of incoming stainless steel stock, we can expect to see a lot of ‘rogue’ stainless ending up on our cliffs.

Can home-made bolts be UIAA 123 compliant?

No they can’t, or more exactly, they can’t carry the UIAA certification mark. The UIAA standard requires samples be submitted to the UIAA certification authority for inspection. It also goes further than EN 959, and places a requirement for the verification to type of incoming steel stock. In this sense, the UIAA standard has more of the intent of a standard pendant from the PPE Directive. Thus UIAA 123 compliance involves a quality system and paperwork, a show stopper for the small home workshop.

 Where to from here?

New route developers are a special breed – highly individualistic, and given to ‘secret squirrel’ bolting operations. Because not all of this group will embrace standards, we can expect to see that as new routes spring up, there will be some with good bolting, and others less than good. Personally, I don’t see this as a problem because the risk from bolt failure is strictly proportional to the traffic, and if a route is ignored, the bolts are a matter of tiny concern. Providing the bolting itself is not visually intrusive, the route will fade into obscurity.

However, not all new routes are doomed to oblivion, and if a crag offers sufficient quality routes, and if it is within 20 minutes of a car park, it is inevitable that it will become popular. At some point in the growth of its popularity, the integrity of the bolting will become an issue. It is this second phase of crag development where standards are clearly appropriate.

Firstly, being popular, the crag will be on the radar of the land manager who rightly will have concerns about the bolting quality. If a crag is to be shut down, it will be at this emergent stage of its existence. Thus, being able to point to an international standard for the infrastructure is invaluable.

Secondly, being popular, if there is to be an accident arising from bolt failure, this is when it is most likely to occur. That is, at the point when there is a marked increase in traffic on aging or incompetent hardware. On the positive side of the equation, however, we have the fact that it is far easier to raise the funds needed to rebolt a popular crag than someone’s pet project. So the issue comes down to one of community awareness and leadership.

We are well into this second phase, a maintenance phase if you like, for a number of crags in South East Queensland.

It should be obvious that replacing one lot of poor quality bolts with another does little more than line up a third phase of maintenance, and beyond that, a fourth and so on every five to ten years down the track. I would hope that, as a community, we have sufficient vision, and are sufficiently caring for the climbing generations that follow, that we don’t entertain a course of action that creates the pock-marked mess of continual bolt replacement that we see blighting some overseas climbing destinations. The UIAA are onto this problem, and are addressing the issue of bolt life span with a view to specifying bolt designs which should achieve a truly inter-generational service life of fifty years. This seems a very worthy aim, and if such bolts could be installed at the second phase, imagine what it could do for the sustainability of a crag over several generations. Surely this is an initiative we can all support.

 

 

 

 

 

Some thoughts on the re-opening of Mt Coonowrin

posted by Dave Reeve

Introduction

I was asked by a poster on Qurank, why I was so confident that Coonowrin would be re-opened for climbing, and what I thought the steps should be to achieve that goal.

So, I sat down to compose an answer, but as I did so, a monster began to emerge. As I followed down each twist and turn, descended into each rabbit hole, it became clear that I had already given the only simple answer possible – ‘because it will’. The full answer proved convoluted and is only for those that like paper more than rock.

Why do I think Coonowrin will be re-opened?

Easy….. because there is no reason for it to be closed, and every reason for it to be open. Fortify this reality with an ever increasing number of the voting public who would see value in it being open and you have the impetus for change.

Why is it closed?

Because of the risk to the public from rock fall. You can read the official position here.

Viewed from todays standpoint, the closure makes no sense. Coonowrin is no more, or no less, likely to drop rocks on those below than any other steep cliff situated on the public estate. We have seen this fact clearly illustrated in the wider Glasshouse park where Crooky was closed, ostensibly for reasons of public safety, but in the event, it was Beerwah that actually let fly with several potentially lethal barrages.

Why was it closed (a different question)?

To understand the closure, we need to go back a few decades and look at the history of park administration. This is a history I covered in my essay linked here. I’ll crib a few paragraphs to save typing –

Several other societal trends over this period play into the story. In the fifties, such National Parks as existed were managed by a state apparatus whose motivation was primary production and the exploitation of the state’s resources. Under these circumstances, located as they were on “worthless” land, NPs inevitably acquired Cinderella status, and there was no clear vision and no underpinning legislation to guide their management.

However, with growing affluence came “green” ideology, which began to impact the political discourse. In 1975 the National Parks and Wildlife Service was formed leading to the Queensland Parks and Wildlife Service a few years later. Although, no clear legislative framework was in place as to how QPWS should manage the parks under its supervision, a shift occurred within the public service whereby conservation values gained primacy in the formulation of management policy. There followed a phase of management best likened to locking the public library for fear of people damaging the contents through the wilful act of reading.

In 1992, the Nature Conservation Act came into force, and for the first time, we see articulated in the state legislation a clear vision for the role of National Parks, and the principles by which they should be managed. Underlying this legislation, one of several eminently practical principles can be seen at play. Namely, the best outcome for the preservation of the natural environment within the National Parks will ensue if every effort is made to present to the public that which is considered worthy of preservation.

However, clear as it was that the QPWS had a duty to present the estate containing Coonowrin, and clear as it was that there was no question of compromise to the park’s conservation values, the administration pulled the trick (one that they have since used on two other occasions) of closing the park under the subordinate legislation of the NCA relevant to the safety of visitors. This was achieved by the simple dodge of having geotechnical engineers report on the likelihood of the cliff dropping rocks on people below. Not surprisingly, any such report will point to the obvious and ever present risk of rock fall.

Thus we have an administration with a history of shutting out climbers and bushwalkers now finding a reason to close the park at Coonowrin. I guess this is hardly surprising, but why Coonowrin and not any of the other peaks?  Well, there is also the fact that there was an active quarry situated at the base of the mountain, and plenty of rumours abound concerning the risk posed to the stability of the mountain from blasting operations close to its base, versus a desire within the body politic to keep the quarry operational…. but as I say, rumours and not facts.

This closure was peculiar in other ways. Quoting again from my essay

In the closing days of 1999, a profound hiatus opened between the climbing community and land managers when Mt Coonowrin, a major and unique facet of South East Queensland climbing, was closed to public access. The closure was pre-emptive, with no public consultation period, and I believe, without the knowledge of the public servants who were actively engaging the climbing community via the South East Queensland Rockclimbing and Abseiling Site Management Forum. This unfortunate mis-step destroyed the trust that had been built up, and pushed  the new surging interest in sport climbing “underground”, with the subsequent development of sport crags being carried out “below the radar” of the land management.

I have little doubt the closure was a politically naïve misstep by someone who had no idea of the burgeoning outdoor recreation movement that would soon appear on the scene to demand access to what, after all, is a public space.

The distinction between why Crooky was closed, and why it should remain closed, is important, because it points to the fact that the current closure is little more than an unfortunate artefact from earlier times when bureaucratic overreach was cultivated for its labour-saving excellence.

Is Coonowrin less stable than other Glasshouse peaks?

The nature of the peak is to present a rack of hexagonally jointed columns which are oriented predominantly in the vertical plane. This means that within geological, not human, timescales it will erode by sloughing-off parts of columns and large blocks. In this sense, it is similar to Ngungun, but unlike say Tibrogargan, which is more massive, but definitely no more stable, on its steeper aspects. As with Ngungun, the presence of vertical joints adds a important component to the recreational climbing value of the mountain.

There is also the issue of the large slip block on the NW aspect which is slowly (geological timescales again) grinding its way down the mountain. My old traddie horror-show , “Mank Master”, has one pitch contained entirely within the slip face…. very cool and very unusual. Is it active? You betcha. Is is dangerous? Yep, in the same way as an impacting meteorite is dangerous….. probably not worth worrying about, but undoubtedly an awesome, if fleeting, experience.

For a number of years, SEQ climber, Rob Manthey, patiently surveyed old Crooky (with QPWS consent) looking for signs of instability. You can access his risk assessment here.  The main conclusion was –

In summary, from both theoretical extensions to Coffey Coonowrin 1999 [1] estimations of rock fall frequencies and intensive observations on site, the risk to any individual visiting the site falls within common guidelines for personal risk acceptability.

So the upshot is that there is no evidence that Coonowrin poses any more of a danger to visitors than other peaks within the Glasshouse NP. The attributes that make these mountains attractive to the visitor are the very ones that manifest the hazard of rock fall, and consequently it is not possible to present the unique values of the Glasshouse peaks without elevating the risk profile for the adventurous visitor. QPWS are charged with presenting the park, and shutting it to visitors is a lazy response to the problem of public liability, a cop-out that  a growing and increasingly outdoor-active population are starting to question.

The spectre of public liability

Having just called the act of shutting of Crooky a lazy management response, in fairness to QPWS, I should point out that there is a knotty problem here for the land manager. In my essay I show how societal changes began to make the management of visitor safety difficult.

A further societal trend worthy of comment is as follows.  With growing affluence there has been a parallel growth of the Nanny State, and with it, a shift in society’s perceptions of negligence and public liability. When I was a lad in the fifties, we were well warned of the hazards of diving into swimming holes, and yet everyone knew of someone, who knew of someone now wheelchair-bound, serving as testament to the folly of such actions. These people received no financial recompense, and nor did anyone think that they should….. it was simply what happened when you did stupid things.

However, within a matter of decades the landscape shifted to embrace a new idea whereby people weren’t always responsible for their own judgment calls, and the land manager was negligent if he failed to warn of even the most clear and evident danger. Couple this with an unending supply of youth, a percentage of whom will always rise to the dare of their peers, and you have opened a channel by which the more entrepreneurial of the legal profession will help themselves to the largess of the state. A situation was created under which young men still continued to break their necks by diving into rock pools, but the state now compensated them and their families for those fleeting seconds of errant thought.

The debate about how much of a Nanny the state should be is not relevant here. What is relevant is the fact that the apparatus of state needs to manage the estates for which it is responsible in a way that does not result in a bleeding of the public purse through liability claims. As we will see, this one issue rose to dominate the discussion of management of climbing on the public estate.

The problem for QPWS lies in the fact that the act of presentation of a ‘wild place’ inevitably results in an elevated, visitor-risk-profile. Add to this, the further fact that accidents in ‘wild places’, though of low frequency, often have serious consequences, and it becomes clear that in presenting a park we have created something that is certain to tweak Nanny’s apron strings, and to draw disapproval from the armchair-bound voyeurs of public affairs. However, it is exactly this low frequency, high consequence scenario that gives meaning to all activities that illuminate the spirit of adventure. Remove the risk and you eviscerate the sport.

In the case of Coonowrin, there can be no doubt that the State has an obligation to maximise the value of the Park for its public owners, and if that is not to quarry it, then the only other possibility is to open it to recreational stakeholders. And of course, the act of opening it will draw additional potential liabilities under the tort of negligence, but so what? Deal with them by warning as appropriate, then get back to executing the NCA. Let’s get back to managing the estate such that a good balance is struck between recreational and conservation values.

“But, but…. look at what happened with the L. Wabby ruling… look at the way warning signs failed to halt an action of breach of negligence.”  True, and I understand what happened here. QPWS did the right thing, and built a track down to L. Wabby on Fraser Is. to present its unique values. The public loved it, millions of them loved it. The track greatly enhanced the asset value of Fraser Is. And yes, history shows 1 in 100,000 will break their necks while running down the dune to jump or dive into the lake , but by any standard, such is not a dangerous activity. It is arguable that more people have died on the roads travelling to Fraser Is than have broken their necks at L Wabby.

I object to what is happening here, and I think every taxpayer likewise should object. The State is being used as insurer of last resort. This is doubly wrong. Not only is it wrong in matter of principle, it is wrong because it is disabling a important piece of State legislation, the NCA, and although the recent amendments to the act should work against such interference, the fact the Civil Liability Act stood for nought in the above judgement makes me cynical.

Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.

Swain v Waverley Municipal Council (2005) HCA 4 at [5] , per Gleeson, C.J.

It is time to weigh Nanny on the scales at the High Court of Australia.

Why should it be opened (not the opposite of why was it closed)?

The short answer is that we have here, in plain view of the thousands-strong outdoor recreation community, an iconic public asset, the value of which has been degraded through a decade or more of neglect, masquerading as ‘duty of care’.

I believe that, if opened to the public, this peak alone could draw in excess of 100,000 visitors per annum and have an asset value of well over $2M per annum. It’s contribution to the adventure tourism spend within the Glasshouse Mountains could be very significant.

If I am wrong, and indeed there are very special and compelling reasons for the continued closure of Coonowrin as compared with the other Glasshouse peaks, then with several million dollars per annum riding on the decision, and a thousands-strong outdoor recreation community knocking at the gates, I would expect the department to tell us those reasons, or point to a process by which public access might be resumed. To date, this has not happened.

 

 

 

 

 

 

Are land managers curtailing the freedom of the individual under the guise of a ‘duty of care’?

posted by Dave Reeve

Provocative title I admit, but it is a question worth asking, if for no other reason than the fear of litigation, which is crippling the management of outdoor recreation in both the public and private spaces, has reduced the scouting movement, amongst others, to a mere shadow of its former self, and is on course to elevate the X-Box as the only source of adventure for the coming generation.

Today, as I was bouncing back and forth on the UIAA website looking for something quite different, I happened upon the following link to The Italian Observatory for Liberty.

There is not a lot of information about these folk, but I was struck by the fact that, whereas I tend to view the restrictions on our sport as coming from the bureaucratic incompetence (surely no one wants to deprive the coming generations of the risk-elevated outdoor experience?), this group see it as an attack on foundational liberty.

Zanantoni said the group was formed to combat an obsession with safety, typical of advanced societies, that is in conflict with what drives mountaineers who seek adventure and liberty.

Hmmm…I think they have a point.

Update: 9thJuly12

The Italian Observatory seems to have failed to pay its domain name fee, so I’ve reconnected the above link to a very excellent US blog that discusses the Italian Observatory

The social rejection of the forms of liberty that imply dangers is particularly reactive to accidents in mountaineering, ski-mountaineering and climbing.   Out of it comes the restrictive interpretation of laws and the plan of oppressive ones.  Local authorities often set constraints to the access to mountain areas which are not justified by environmental concern

Hmmm… where have I heard that argument before.