Just a name, or a claim to ownership?
So who cops the insurance risk?
The unapproved jetty at Franklin
All that the Franklin Township Committee asked for was a simple wooden footbridge across this creek.
Where Petty Sessions wants an 80m jetty.
Huon Valley Guessing Games Council is caught up in the jumble of facts and hearsay that is the knotty tale of the unapproved jetty on the Franklin foreshore near the Petty Sessions restaurant.
Signage on the archway at the entrance to this pontoon structure states PETTY SESSIONS JETTY, and there is a responsibility disclaimer just beyond it that reads, “THIS IS A PRIVATE JETTY providing berthing facilities for authorised customers of Petty Sessions restaurant”, and that “Person [sic] using this facility does so at their own risk. Petty Sessions takes no responsibility for loss or damage . . .”
Seemingly permanently moored at the jetty is the FRANKLIN ECO CRUISES vessel Lady Jane II (of which Mike Wilson, deputy mayor and mayoral aspirant, is understood to be a joint owner). A “NEXT RIVER CRUISE” sign is nearby.
As far as I can glean, the jetty was constructed early this year, around March time (by whom I don’t know), without a current planning permit — which may suggest that, as well as being unapproved, it could also not be legal.
However — with council generally very secretive, especially on socially and environmentally sensitive issues — there is a possibility that the structure might have had some kind of permission to be built under the wide-ranging “delegated authority” that council affords its management. (I have not been able to spot anything in documentation that this is the case. Perhaps council can explain how the builder/s of this jetty felt that it was OK to construct it.)
That the structure “does not have approval” is stated in an email Matthew Grimsey, as council’s acting general manager, sent to me (via the executive assistant to the general manager) on September 25. (Grimsey’s permanent position with council is “executive manager regulatory and development services”.)
Grimsey’s email was in response to my question to council at its last monthly meeting (September 17), in which I asked, of the then acting general manager, Emilio Reale:
“Can you confirm that the jetty near the Petty Sessions restaurant at Franklin, signed as the property of Petty Sessions, is approved. And, if it is not approved, have users of the jetty been informed by council that this is the case?”
Grimsey’s response was: “. . . I advise that the jetty does not have approval. Council is unaware of all users of the facility, however identified users have been made aware of this fact.”
This information about the jetty has come at a time when council workers along the Huon foreshore near Petty Sessions have been in a near-frenzy of activity. “I saw three trucks and about 15 workers there one day,” said an observer. Substantial structures have gone up, a sealed walking path has been laid, areas have been grass-sown, children’s play equipment installed, and, amazingly, a substantial brand new covered structure now straddles the narrow muddy creek slightly to the north of the Petty Sessions Jetty.
The now-defunct Franklin Township Committee (FTC), in its dying days, requested no more than a simple footbridge over that creek. Last week, a person who was on the FTC expressed astonishment at how council was contemptuously ignoring the late committee’s recommendations for the Franklin Foreshore Master Plan.
It seems that council can explain away all of this obviously massive expenditure in the vicinity of the unapproved jetty and the nearby Petty Sessions restaurant as “development of the Franklin Foreshore Master Plan”, a document that the FTC worked so hard on to reflect the wishes of the community. A huge covered footbridge over the creek certainly was not part of their vision for the waterfront. As one Franklin observer of the torrent of council activity said last week: “They’re even painting the ‘improvements’ in the restaurant’s colours.”
Well, considering where the ‘improvements’ are, I suppose that’s not altogether a bad thing. It’s nice to have a bit of harmony in an area where there’s not much of it.
Back to the jetty, and information about its antecedents, including a mooring, not attached to the foreshore, a lease on which belonged to a person no longer a resident of Franklin. Apparently this mooring was loaned to another person. Then, somewhere along the way, circumstances changed until, eventually, suddenly a jetty appeared. (That, cut short, is a much longer story that is far too complicated to go into here.)
This writer has been unable to find information that might suggest that the owners of the jetty — whoever he/she/they/it may be — have a lease over the crown land upon which the approach to the jetty stands. Said one valley resident: “It’s nothing more than a land grab.” The question is, if it, indeed, was/is a land grab, was it successful or is it still only a potential land grab?
Whatever is going on, as of September 25, the ‘Petty Sessions Jetty’ situation remained unresolved. The unapproved jetty, I sense, is a topic of negotiation involving council, the “developer”, whoever that might be, and Crown Lands, on whose property the jetty’s access stands. And that, in itself, is a worry. Surely a “private jetty” standing on unleased Crown land should be the concern of all residents of Franklin, the destiny of whose foreshore seems now to have been taken well out of their influence?
One councillor who has been asking questions, on behalf of her constituency, about the circumstances surrounding the jetty is Liz Smith, an independent councillor who is standing for re-election this month.
Smith has often been chided by Deputy Mayor Mike Wilson for asking “questions on notice” of management at council’s ordinary (public) meetings. “Why don’t you just go and see the appropriate manager?”, has always been his attitude. He complains that Smith is wasting council staff time by asking for written answers. Smith’s attitude is that, when ratepayers and residents want answers, it’s not appropriate that she hands on to them verbal information obtained from council staff. To be on secure ground, she needs written advice to substantiate the information she provides.
Matthew Grimsey, in a recent, non-confidential email communication to Smith, wasn’t keen on formal questions either. He wrote, inter alia: “I consider this a very unsatisfactory way in dealing with these questions . . . I would prefer to discuss these with you directly . . .” He followed up with something right out of Yes, Minister: “. . . I am struggling to understand the context that you are actually asking the questions in and therefore am not likely providing answers to your questions in a manner in which you believe you are getting the answers that you are actually after . . .”
Actually, Smith seemed not to be asking for “answers [that she was] actually after”; she was asking questions that simply needed factual answers.
Digression, so back to the jetty, or rather jetties: the unapproved jetty built earlier this year (now branded Petty Sessions Jetty); and the 80-metre “floating pontoon” (comprising five gangways and six pontoons) that Petty Sessions, through Ireneinc Planning, applied for (DA 16.050/14) at council’s August meeting.
At that meeting, an amendment slicing 24 metres (two pontoons) off the southern end of the proposal was approved after an incredibly comical bout of misunderstandings and misapprehensions among councillors and staff, apparently as a consequence of a dearth of facts to hand.
That decision left council, “when acting as a planning authority”, subject to potential challenges from the four representors who objected to the floating pontoon application in its entirety, as well as from the applicant of DA 16.050/14.
Grimsey, in response to Smith’s request for clarification of the “actual location of the lease and the proposed pontoon”, said that the location of the pontoon and gangway were as shown in attachments to council’s August agenda. The “actual location of the lease, a lease or any future lease is not a planning consideration,” he wrote. He advised Smith that council did not have a map showing whether previous leases might encroach on the “presence of another jetty/pontoon”.
Smith had questions about circumstances surrounding a statement in council’s November 2013 agenda to the effect that “Huon Valley Council occupies the Franklin foreshore pursuant to a Crown lease”. She asked: “What are the terms of the lease between the Crown and council?”
Grimsey responded: “The terms of the lease between the Crown and the council is not a relevant planning consideration in respect of the development application (DA 16.050/14).” Smith, asserting that the “terms of the lease agreement are relevant to the community, and, as community representatives, councillors should understand those terms”, requested a copy for all councillors.
Grimsey responded: “With respect, there is nothing before the council for decision that raises the need for providing a full copy of what is a 1994 standard Crown lease agreement and I do not consider that it is appropriate to do so in this matter. However, if you have anything specific that you would like to know . . . then I would be happy to review for clarification”.
Smith then asked: “. . . would you provide details of the lease of the 80mx20m area to the developer: when it was provided to the developer, and for how long; the annual rates and charges and rental; and the agreement between council and Crown Lands regarding the sub-leasing of the area?”
Grimsey’s reply: “The 80x20m lease area is a matter between the developer and the Crown and the council is not a party to these details. The lease or any future lease is not a relevant planning consideration.”
Smith, referring to “drawings provided”, said she believed there was an overlap of the existing ‘Petty Sessions Jetty’ and the proposed 80mx20m floating pontoon proposal. She asked: “Does the existing jetty/pontoon impinge on the lease area of proposed new jetty/pontoon?”
Grimsey’s reply: “Not known — council does not have any map that shows the relationship between the existing jetty or how these interact with lease/licence areas, proposed or existing.”
Smith asked: “If the existing jetty and pontoon are not on a leased or licensed area and the structure has not been approved by council by approval of a planning permit, what is its status?”
Grimsey’s reply: “The existing jetty and pontoon do not have approval.”
And then a truly intriguing statement from Grimsey: “Any need for a sub-lease with the council has not been determined however, given the conditions applied by the council for lodgement of the application and that assets will be constructed for the benefit of the public and the land will not be used for exclusive use it is considered unlikely that a sub-lease would be required. Again such a matter is separate to the DA and is not a relevant planning consideration.”
To that observation, Smith commented: “The application [DA 16.050/14] clearly states that the development is not [Smith’s emphasis] for the benefit of the public, but the exclusive use of customers of Petty Sessions.” She found it “surprising to me that council is not a party to the lease agreement between the developer and the Crown. Please would you explain the relationship between the three and why this relationship was not explained to council . . .?”
Grimsey responded by offering an explanation of the complexities of the relationship, and saying that “the next step in the process . . . is formalising the relevant instrument (whether licence/lease/sub-lease) to allow the developer to occupy the land and water . . .”
The exchange between Smith and Grimsey continued.
Smith asked whether the “existing pontoon” had a planning permit.
Grimsey: “Yes — DA-189/2009 approved by council 21 January 2009 . . .” [This DA, after a two-year extension, expired on January 21, 2013, and work on the existing jetty did not begin until this year.]
Grimsey: “It has been considered that the ‘Petty Sessions Jetty’ had use of the original land connection and gangway of the previously approved jetty . . . There has though been unapproved construction works that is the subject of current discussion . . .”
Smith then touched on the public/private circumstances surrounding DA 16.050/14. She noted that a condition in council’s granting of approval for lodgement of an application for development of the 80-metre floating pontoon was that “the developer must at its cost, construct a walkway adjacent to the pontoon for the length of the pontoon to enable pedestrian access from the pontoon to the balance of the foreshore”. This condition, she noted, was not in DA 16.050/14 and not in the Franklin Foreshore Master Plan.
Grimsey’s response: “This condition is a ‘landowner‘ permission associated with use over council lease land as approved by the council . . . It is not the subject of the development application.”
Smith made the point that if the proposed pontoon was “simply for the occasional yacht to moor alongside in order to have a meal at Petty Sessions, then a 10m pontoon would be sufficient. Are there additional plans that justify 80m of private pontoon?”
Grimsey: “The planning scheme does not require justification for the proposed size of the development . . . Judgements or views on alternatives are not relevant planning considerations unless and only if they can relate to necessary conditions or amendments to bring the development better into conformity with the scheme and do not substantially change the development being applied for.”
Phew! Quite a Q&A — and that was not the whole of it. Grimsey is to be congratulated for the fist he made of responding to Smith’s questions; Smith is to be congratulated on her terrier qualities in trying — on behalf of residents of, and visitors to, Franklin — to get to the bottom of what the Petty Sessions jetty/jetties issue is all about.
It is certainly an issue of great community significance, and many questions still need to be asked.
One that requires consideration is: What, in relation to the existing ‘Petty Sessions Jetty’, is council’s legal position as a result of “acting as a planning authority”?
It seems the jetty was constructed when no planning permit for it existed. It seems that, in council’s words, “it has been considered that the [existing, unapproved] ‘Petty Sessions Jetty’ had use of the original land connection and gangway of the previously approved jetty” — which might get people thinking that council either turned a blind eye to the building of the jetty or, worse, that it failed even to notice that it was being built without a planning permit. It seems incongruous that an unapproved jetty can be allowed to be used for either commercial or public purposes (especially when considering the insurance implications), which is what appears to be the case with the Petty Sessions Jetty.
All of these points could possibly come under the purview of Section 63A (Enforcing compliance with planning schemes and special planning orders) of the Land Use Planning and Approvals (LUPA) Act 1993, which reads:
(1) A planning authority that does not take all reasonable steps to ensure that a planning scheme or special planning order that has effect in respect of an area within its municipal district is complied with is guilty of an offence punishable on summary conviction.
(2) A planning authority convicted of an offence against subsection (1) is liable to a fine not exceeding 500 penalty units, and a planning authority who is so convicted in respect of a continuing contravention of this section –
(a) is liable, in addition to the penalty otherwise applicable to that offence, to a fine for each day during which the contravention continued of not more than 500 penalty units; and (b) if the contravention continues after the planning authority is convicted, is guilty of a further offence and is liable, in addition to the penalty otherwise applicable to that further offence, to a fine for each day during which the contravention continued after that conviction of not more than 50 penalty units.
Whichever way the situation surrounding the new structures along the Huon foreshore in the vicinity of the Petty Sessions restaurant is viewed, it is reasonable for members of the Franklin community to have concerns about developments that have been occurring in mysterious ways; and concerns about the activities of a council that all too often seems determined to ignore community views, and fails to stick to game plans. Seems to me HVC is like a council no longer in touch with its reason for being, or with the sensitivities and sensibilities of the people it is supposed to serve.
Perhaps Deputy Mayor Mike Wilson — now that long-time Mayor Robert Armstrong (also a member of the Legislative Council since May) is about to retire from his Huon Valley Council duties — can offer some enlightenment as to what really is going on down at the southern end of the Franklin foreshore.
When council, in August, “acting as a planning authority”, was dealing with the Petty Sessions development application for permission to build an 80m floating pontoon, Wilson declared that, although he had no conflict of interest in the matter, he would absent himself from the council chamber because “we have a vessel moored in that general area”. He did not enlarge on who “we” were. — Bob Hawkins
