No to halting Anzac High demolition: tribunal

By KIERAN FINNANE

 

UPDATE, 18 October 2019, 11.22am: In reasons published today, Mr Bruxner says the NTCAT review sought by Mr Nelson would have “at least an arguable prospect of success”. See at bottom. 

 

UPDATE 2, 18 October 2019, 2.18pm: Mr Nelson has relinquished his tenacious fight to save the school, in whose fate the public has been denied a say. It’s up to others now, he says in his letter to the editor

 

 

President Richard Bruxner of the NT Civil and Administrative Tribunal today declined to order a halt in demolition works at the old Anzac Hill High School.

 

He was considering the issue as a logical extension of the application by local historian Alex Nelson (left) for a review of the Heritage Council’s decision not to recommend listing of the school. There would be no point pursuing that review if the school had in the meantime been demolished.

 

Undeterred, Mr Nelson will now attempt to get an injunction in the NT Supreme Court. The clock is running down to Monday, when demolition proper is due to start, with heavy machinery procured by the contractor en route.

 

Work this week seems to have been limited to the removal of asbestos, furniture and fittings, with the structure still intact.

 

Mr Bruxner will publish reasons for his decision as soon as possible, but said in broad terms that the “balance of convenience” was not in favour of ordering a halt to the works.

 

This seems to refer to the detriment that would be suffered by the Territory Government and third parties (the contractor and subcontractors) as well as the lack of an undertaking by Mr Nelson to pay their damages and costs should his application fail.

 

The government’s legal counsel, Lachlan Peattie, cited authorities to the effect that it is “almost a matter of course” than injunctions will not be granted without such an undertaking by the applicant. He noted also Mr Nelson’s “absence of capacity” to enter into such an undertaking.

 

The damages and costs at this stage would be considerable, a consequence, he argued, of Mr Nelson’s decision to make his application so late.

 

Mr Bruxner questioned Mr Nelson closely on the chronology of events that led to this being the case.

 

The window for applying to the NTCAT is normally within 28 days of the relevant decision, in this case, the decision by the Heritage Council taken on 30 November last year and formally communicated to Mr Nelson on 14 December.

 

Why should he be granted an extension of time to allow his application to proceed?

 

Mr Nelson told the tribunal he was only given a copy of the assessment report in March. That was when he became aware of the deficiencies in the document. By the end of April he also became aware of the tender for demolition having been accepted and that was when he made his application to the Independent Commission Against Corruption (ICAC).

 

He was frank in conceding that he had waited for the conclusion to this “extremely serious course of action” before applying to NTCAT. However, Mr Peattie made the point that the two bodies focus on different matters, the ICAC on corruption, the NTCAT on merits reviews of decisions. The two processes could have run concurrently.

 

The ICAC investigation was only revealed to the parties in August and September. Once it became known, the demolition process was delayed, said Mr Peattie, which has exposed the government to liquidated damages. The contractor, McMahon’s, has notified the government that it will pursue those damages.

 

Mr Bruxner has not made a decision yet on an extension of time to allow the application.

 

His decision against ordering an injunction is not a reflection on the potential for the application to succeed.

 

Mr Peattie attempted to pour cold water on the case Mr Nelson had made for heritage listing of the school. He mentioned for instance the involvement at the school of “a pastor”, of whom he had never heard.

 

“That’s surely not the test,” suggested Mr Bruxner.

 

Mr Bruxner also said, more than once, that on the basis of his reading of the assessment report and of the evidence from the independent expert sought by the ICAC, that it seemed to him that the Heritage Council could have proceeded to recommend heritage listing.

 

Had it done so, the Minister would have been obliged to make a provisional declaration of the school as a heritage place while public consultation on the nomination was undertaken. During this period no demolition or alteration works could have taken place.

 

Mr Nelson remains passionately convinced that the demolition of the school represents an “enormous potential loss” to the town,  as he told Mr Bruxner, and the public should at least have the opportunity to participate in a decision about its fate.

 

Mr Nelson said that the ICAC’s report of its investigation of his complaint had only strengthened his case and his resolve to have resumed a process that would lead to public consultation on the matter.

 

RELATED READING:

 

ICAC boss criticises Anzac High advice from public service

 

 

UPDATE, 18 October 2019, 11.21am:

 

In the published reasons for his decisions yesterday, NTCAT President Richard Bruxner explains (in paragraphs 28-31) what Mr Nelson’s application requires of the NTCAT and offers his view of its prospects:-

 

The tribunal’s task in such a review would be to put itself in the shoes of the Heritage Council and to make a determination as to whether or not the school is a place of heritage significance. That question would be determined according to the heritage assessment criteria set out in section 11 of the Heritage Act 2011.

 

My present view – which has nothing to do with the procedural irregularities of which the applicant complains [which have been dealt with by ICAT] – is that a challenge to the merits of the 30 November 2018 decision, if allowed to proceed, would have at least an arguable prospect of success.

 

I first note in this respect that the assessment report considered by the Heritage Council on 30 November 2018 (notwithstanding that the applicant has complaints about the accuracy of some matters in the report) seemed to me to be favouring a finding of heritage significance.

 

Secondly, I note that the ICAC investigation appears to have involved the obtaining of an independent expert assessment (which, I stress, I have not seen) to the effect that the school does have heritage significance.

 

 

 

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One Comment (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.
  1. Mike Gillam
    Posted October 20, 2019 at 8:32 pm

    What the hell is going on here? The government appears to have received some dodgy advice from the Heritage Council (HC) and various public servants. That should be reason enough to send the heritage nomination for Anzac High back to the HC for urgent review. Instead the NT Government is ‘forging ahead’, rumoured to be acting on this flawed advice with reckless and arrogant haste. Why? Surely the government wants to obtain the best advice possible and wants to act in the best interests of our community. If so, let the process run its course without political hindrance and intimidation.

    “Saving face” is often quoted to me as the reason Territory politicians and senior bureaucrats are so reluctant to abandon their poorly considered thought bubbles. Really? Are our politicians and public servants so vulnerable and small that ‘saving face’ is all they care about? This rationale doesn’t seem logical to me because demolishing the building as quickly as possible will not save Government the embarrassment of forensic enquiries in the future. Alex Nelson is already well advanced in this regard. Perhaps we need to initiate Freedom of Information procedures if we are ever to fully understand what’s going on behind closed doors. What interests and agendas are at work here? As a starting point I would urge those officials who apparently have limited interest in a thorough and truthful process, who are prepared to squander public assets and care little for the public’s low confidence in the competence and accountability of government to carefully study the public service code of conduct. Yes, massively squander public money! 

    I do realise a damages claim might need to be settled with the contractor McMahons and hopefully such a claim can be settled favourably without too much gouging by a “Territory company” with a reputation to protect. I believe the contract for total demolition is $1.8M and the sooner the brakes are applied the smaller the damages claim. Heritage significance aside, I estimate that the two storey building envelope that is Anzac High would have a replacement value of about $10 M. (The opinion of a qualified quantity surveyor would be good). Regardless the site is entirely workable for a suite of community and tourism uses and there’s significant space for additional integrated development. I’m happy to provide a very long list detailing some of the options.

    So, I can’t imagine it’s true that heavy machinery is en route to commence demolition given the following facts:

    • I’m confident the proponent for heritage listing the Anzac High School, Alex Nelson, is the world expert on this site. He has a formidable reputation as a researcher. That his deeply considered nomination was rejected by the HC beggars belief!
    • It’s reported in this article that the Independent Commission Against Corruption (ICAC) have obtained independent expert advice confirming the site’s heritage significance!!
    • Placing a considered nomination on the public record and seeking responses may further expand the community’s understanding and appreciation of its heritage values!!! 
    • A hearing of NT Civil and Administrative Tribunal (NTCAT) is scheduled for 1 Nov. a couple of weeks away. This tribunal will be taking a hard look at the process that led to a decision by the Heritage Council NOT to place a nomination for the Anzac High on public exhibition. Bring it on.

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