SERIOUS doubt has been raised about the legality of this week’s fig-saving Newcastle City Council vote, and a councillor says he may go to court to prove the decision was in breach of the Local Government Act.
Cr Bob Cook read a statement late yesterday at a confidential meeting of a Laman Street reference group, claiming the decision on Tuesday to seek an independent assessment on the fig trees was both ‘‘immoral and illegal’’.
Cr Cook was then asked to leave the meeting, convened to begin searching for an appropriate expert to conduct the risk assessment, after he threatened individual councillors with legal action.
He said outside the council’s administration building he was ‘‘seriously considering’’ launching a legal bid, backed by other councillors, in an attempt to have the council’s decision ruled invalid.
Cr Cook and Cr Graham Boyd also emailed lord mayor John Tate yesterday, claiming he had breached the council’s code of conduct by allowing a debate that was contrary to the act.
- Cartoon by Peter Lewis. For a gallery showcasing Lewis's view of the figs saga, click on the artwork above.
The council is in the peculiar position of having to implement two possibly contradictory resolutions: one to remove the figs ‘‘as soon as possible’’ and the other to conduct an independent assessment of risk studies.
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Normally, the most recent vote of the council would become council policy, but it cannot in this case.
Under the Local Government Act, the August vote to remove the trees cannot be altered in any way for three months because it was subject to failed a rescission motion.
Advice sought from a Senior Counsel before Tuesday’s meeting backs this interpretation of the act.
‘‘I have received advice from Senior Counsel that any motion which in substance rescinds or alters a previous resolution of council, which rescission or alteration has previously been rejected, cannot be brought again within three months,’’ general manager Phil Pearce said in a memo to councillors.
He made the recommendation that Tuesday’s debate proceed, despite advice the resolution ‘‘could be invalid’’.
Cr Cook believed council management did not want to inflame the community.
‘‘Right now management is anxious that if they took an adversary view, that could be seen as inflammatory and that would put council under pressure,’’ he said.
The council would not comment on whether it was seeking legal advice internally.
Cr Cook said the independent assessment had the potential to cause reputational damage to council staff members and other experts involved in the fig tree saga.
Cr Brad Luke said the ‘‘clearly unacceptable’’ motion was further evidence the Division of Local Government needed to investigate the council.
‘‘The council should implement the original motion,’’ Cr Luke said.
Lord mayor John Tate said he would refer the matter to Mr Pearce, who could then take it to Local Government Minister Don Page.
Cr Tate said an email sent by Cr Cook yesterday morning amounted to harassment.
‘‘Given Cr Cook’s habitual submission of code of conduct [complaints] against me in events of this type, I feel as though I’m being harassed by him and my role is to refer it to the general manager and that’s what I’m going to do.’’
Cr Michael Osborne was at the working party meeting and said he asked Cr Cook to leave after the legal threats, because it was ‘‘inappropriate for him to be there’’.
He said he believed the resolution was valid because it did not alter the council’s original decision, but ensured the council’s risk assessments stood up to scrutiny.
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