FIG a memoir

Hospital Road, Sydney, 2004

Timothy J Entwisle 2014

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This is the story of how removing ten trees in Sydney turned into the Fig Tree Massacre. It is as much about Sydney and its politics and people in 2004 as it is about managing (not massacring) heritage landscapes. Australia’s richest man at the time, Kerry Packer, dumped a truck-load of mulch in protest. Sydney’s Lord Mayor demanded I be sacked. And broadcaster Alan Jones described me as a fat, lazy bureaucrat. I wasn’t too fussed by the mulch (which I put to good use) or for that matter the opinion of the Lord Mayor at that time, but I was mildly offended by being called a bureaucrat.

In the end I was responsible for killing and removing the trees from Sydney’s Domain while Director of that city’s Royal Botanic Gardens. I’d only been Director for a few months and the tussle to remove the trees became a test of my resolve and resilience as much as anything else. More importantly though it was a test of how we, as a (mostly) relatively recent immigrant community in Australia, cope with our first large-scale replacement of elderly of trees in towns and cities.

When I rang Kerry Packer to thank him for the delivery of mulch, he told me of magnificent old fig trees in Buenos Aires which I have now seen and admired myself. We prop and fence a few old favourites in Australia, as they do there, but that’s only part of the solution. Mr Packer said if he was in my position he’d reconsider the decision to remove the Moreton Bay figs in the Domain. It was a cordial and mutually respectful conversation, perhaps best captured by his signing-off remark that I should remember his horticultural advice was worth what I was paying for it.

Alan Jones and I didn’t speak at the time, although I was keen to go on air to explain why I thought it was the right thing to remove and replace these particular trees at this particular time. I would have explained how the trees were in poor shape, suffering from some historical neglect and regular insect attack and that they were considered unsafe or soon to be so. Fencing them off wasn’t possible due to their proximity to roads, their place in the landscape (as shade trees and part of the public parkland) and the unattractiveness of a Domain criss-crossed with fencing.

Apart from all that there was the ethical matter of the trees having to be removed at some point and it being the responsible and generous thing to do now. Oh, and the need to remove an avenue in its entirety so that you can replace with even-aged trees (experience

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elsewhere in Sydney showed that you can’t plant new figs near old and expect them to grow successfully, even where there is room for a second row).

The Lord Mayor of Sydney had her own tree problems soon after, with a report to Council showing that much of the canopy of Hyde Park would need replacing over the next decade or two. Like Melbourne, Sydney has lots of parks and streetscapes made beautiful by old trees. Some of the most beautiful and beguiling are now a century or more old. Old trees can become unsafe, they can become unattractive in the landscape – not, I rush to add, unattractive themselves in old age (as with people they can become expressive and if the age well, more attractive in maturity) – and in a city they have a finite life.

All is explained here.

Dedicated

To my wife Lynda, who shared it all. Thank you.

To Bob Debus, who didn’t waiver.

And to all my supportive friends and colleagues …

© Timothy John Entwisle, published (on-line, open-access) 9 October 2014. As the band name said, ten years after.

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Contents

Dedication ......................................................................................... iii

Introduction ........................................................................................ 1

1. Figs are doomed to death ............................................................... 5

A good friday ................................................................................... 5

Lord Mayor furious ....................................................................... 10

Media releases at ten paces ............................................................ 14

Chainsaws started .......................................................................... 17

Greens out on a limb ......................................................................18

I condemn ...................................................................................... 21

End of week one ............................................................................ 22

2. Clover my dead body .................................................................... 25

Enter Clover, to ringing applause ................................................. 25

Moore acts to end chainsaw massacre .......................................... 30

3. Domain’s living dead await chop ................................................. 35

Botanical parkland ........................................................................ 35

Acceptances only ........................................................................... 36

Safe useful life ............................................................................... 39

1000 flyers and 200 letters ............................................................ 41

The plan ........................................................................................ 44

A new job ....................................................................................... 50

My fact sheet ................................................................................. 53

4. Fat Lazy Bureaucrat ..................................................................... 56

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Fig expert uses bogus credentials ................................................. 56

Andrew Woodhouse ...................................................................... 58

Influential friends ......................................................................... 58

The brain dead people at the Trust ................................................ 61

Moreton Bay (Trad.) ..................................................................... 64

The message .................................................................................. 65

5. Not manifestly unreasonable ....................................................... 69

Our days in court ........................................................................... 69

In our own words .......................................................................... 72

Judicial view...................................................................................75

The way I told it ............................................................................ 82

7. Fig will be spared the chop ........................................................... 84

Figs face the chop .......................................................................... 84

Council’s extraordinary oversight ................................................. 86

City gives a fig – at a cost .............................................................. 87

8. Reprieve for fig............................................................................. 92

A picturesque landscape ............................................................... 92

Fit fig will be spared the chop ....................................................... 95

Modelling provisions .................................................................... 97

Monday 28 June 2004 ................................................................. 101

Moore gives up ............................................................................ 103

You know nothing ....................................................................... 104

9. Postscript ................................................................................... 108

Axe fell too early .......................................................................... 108

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New trees for Domain ................................................................. 109

The Victimisation of the Moreton Bay fig .................................... 110

Go figure ....................................................................................... 114

Epitaph ......................................................................................... 119

ENDNOTES .................................................................................... 121

Introduction

Infestations by the Fig Psyllid (Mycopsylla fici) had become a big problem in Sydney. These small insects live in colonies under a sticky cover they produce called a lerp. The lerps can block the breathing pores (stomata) in the leaves or at the very least reduce the area available for photosynthesis, which is the process plants used to generate sugars from sunlight, carbon-dioxide and water. A heavy load of lerps will kill leaves and there is a regular periodic defoliation of the Moreton Bay figs around the city. In time trees become less resilient to other stresses such as drought and age.

In 2004 the Sydney City Council and Sydney’s Botanic Gardens ended up in the Land and Environment Court fighting over a few figs. Not dried fruits and gastronomy, but whether the Trust had the right, and the right rationale, to remove aging Moreton Bay figs from the Domain in Sydney. While only a small blip in the public psyche now, this confrontation was the beginning of a maturity in Sydney’s approach to trees and tree replacement. The judgment of the court was damning for the Council, with an ironic sting in the tail that meant for a few days anyone could chop down trees in the Sydney city area.

Along the way there were threats of a spell to be cast on the Minister for the Environment, learned advice from a Knight of the Hutt River Province, and a pile of wood chip courtesy of Australia’s richest family. All part of a political pantomime in the Domain. The real matter of substance was how we value trees in our cities, and how we deal with their inevitable decline and replacement. That, and the fluctuating fortunes of the Moreton Bay fig, just one of the many different kinds of fig tree we grow and admire in twenty first century Australia.

Figs have been part of our lives for thousands of years, and it’s only relatively recently we found out just how long. About thirty years ago, a handful of dried figs were found in a house in the Lower Jordan Valley, just north of Jericho. This wasn’t an ordinary house and these weren’t ordinary figs. The fruits were found by

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archaeologists excavating the Neolithic village of Gilgal, last occupied 11,400 years ago. Following the death of the head archaeologist, the figs were in effect reburied in the Israel Museum in Jerusalem until an invited scientist looked through all the Gilgal treasures and rediscovered the dried fruits. Close examination revealed they were sterile, and once soft and edible – not the kind of fruit produced by wild relatives of the edible fig1 that grow naturally in this region.2

The tasty fruits of the domestic fig are the result of a genetic change that allows embryos to develop without fertilisation. Such virgin fruits3 are not uncommon, and this mutation has occurred naturally in pineapple, bananas and grapes. Of course this kind of mutant will usually only persist with some help from humans. The fig was an ideal candidate for early domestication. The fruit was tasty and could be dry-preserved, and the plant is relatively easy to propagate from cuttings.

It’s not surprising then that the inhabitants of Gilgal stored domesticated fig fruits alongside their wild collected barley, oats and acorns. Cereals were domesticated a thousand years later, and it was another five centuries before grapes, olives and dates were propagated. It was the fig that started it all, as it was in Sydney in 2004 AD.

The domestic fig was bred from just one of nearly 800 species of fig on earth today,4 and most probably in the 10th century BCE. In Sydney, as in many great cities of the world, we most often think of the fig as an imposing and venerable park tree. There are 500 or so of them in the Royal Botanic Gardens and Domain, 151 of them Moreton Bay figs,5 a native to the hills outside of Sydney and up the coast to Queensland. There are a similar number of the locally native Port Jackson Fig,6 and fewer representatives of another six of the 18 species native to Australia. All in all, a total of 40 of the world’s species grow in our city.

For Sydneysiders, the Moreton Bay fig, although not native to the local area, attracts passion. Protests and community action accompany nearly any removal of an established Moreton Bay fig today. This wasn’t always the case and at the end of the Great War, the Director of the Australian Museum took a swipe at what he called ‘Mr Moore’s predilection for that scourge of gardens, the Moreton Bay fig...7’. The Australian Museum had just removed the

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last its fig trees from the front garden of the museum – sixty-year-old trees that had been recommended and planted under the guidance of Charles Moore. Charles Moore had been the Director of the Botanic Gardens between 1848 and 1896, a long time to indulge his predilections and the reason we have so many figs in our parks and gardens. Two decades later the then Director of the Botanic Gardens, Dr George Darnell-Smith, included the Moreton Bay fig along with the Peppertree, Camphor Laurel and Canary Island Palm as ‘epidemics of tree planting’ in Sydney parks and gardens.

Although Darnell-Smith regarded the Moreton Bay fig as ‘handsome’ – favouring the planting of Australian plants in Australian gardens generally – he would recommend it (seemingly a little reluctantly) for spacious parklands only.8 He did, however, have more time for other figs such as ‘the Port Jackson fig and the now popular Ficus Hillii’. The ‘splendid Ficus cunninghamii’ he claimed to be ‘as beautiful as an oak’ and worthy of planting next to that species. Figs in general, though, suffered from their abundance. A letter to the Editor of the Sydney Morning Herald in 19129 supported remarks by Alderman Barlow about the ‘excessive plantation of fig trees [in Hyde Park]’, which Charles Robinson regarded as ‘a reproach to the good taste of those who may have been responsible for such a deplorably monotonous result’. ‘...unfortunately for us’ Robinson continues ‘the late Mr Charles Moore had an eye for the beauty of only one tree – the Moreton Bay fig – his multitudinous plantations of which infest and overshadow all our public places of recreation’. It wasn’t just the size and extent of the figs. Robinson complains that: ‘The fruit of the figs makes the paths sticky and dirty; their leathery leaves have to be constantly swept off, and the burning of them is a bad-smelling nuisance for weeks together. Every few years the swelling roots of the fig will necessitate their being cut away, and the asphalted paths to be remade.’

Robinson wasn’t alone. Comments like ‘the advisability of uprooting many of the objectionable Moreton Bay fig trees’10 and ‘Charles Moore...planting Moreton Bay fig trees in streets, parks and gardens to the exclusion of nearly all other shade trees...should never have been planted’11 seem to be more common than ‘the old fig trees, some of the finest in Sydney, are condemned to destruction – a pity, as not only were they picturesque, but they afforded one of the coolest spots in the city on a hot day’.12

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Fashions change and now the stately old Moreton Bay figs are a secure part of the Sydney landscape. Locals and visitors alike love their sense of permanence and stature – and want these trees to remain for ever. In 2004, another Moore championed the cause of the Moreton Bay fig in Sydney, fighting that at least a few may live longer. Clover Moore was Lord Mayor of Sydney and at the time I was Executive Director of the Botanic Gardens Trust.13 I had some trees to remove and replace, the Lord Mayor had some principles to uphold. And so the story begins.

“...the hysteria of today concerning these trees is going to be matched in 20 years’ time by the elegance of a wonderful boulevard that will be growing behind the Parliament14”

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1. Figs are doomed to death15

Like any horticultural crop, plenty of varieties of the domestic fig have been bred to improve flavour, colour, texture, growth habit and so on. The 800 or so names of these cultivars often reflect the colour of the fruit, inside or out, with a nod to their geographical origin, e.g. ‘Brown Turkey’, ‘Rouge de Bordeaux’, ‘Black San Pedro’ or ‘‘White Marseilles’, although the last of these better known as the possibly 500 year-old fig growing at Lambeth Palace in the United Kingdom..16

A good friday

It was the 9th of April 2004, a Good Friday. As I did every morning I read the Sydney Morning Herald (old style, printed, then as now) over breakfast scanning for headlines of interest or intrigue. The Iraq war was entering its second year, with seven years to go before the United States withdrawal and the end of the official war. The University of New South Wales announced the resignation of its Vice Chancellor, Rory Hume, linked to apparent lenient response to the allegations of misconduct against researcher Bruce Hall who was later exonerated. The captain of the Essendon Australian Football League team, James Hird, faced and later escaped deregistration after verballing an umpire.

I may have noticed these lead stories, but I was looking for something else. For the first time I was to be the subject of a newspaper article that I hadn’t written myself (some years ago I’d had published a couple of articles about my own research during a period of freelance science writing for The Age). I also knew that somewhere in this article there would be mention of my plans to remove and replace some trees in Sydney’s Domain. Chopping down trees in a public place is never easy and this was my first big decision as Executive Director of Sydney’s Royal Botanic Gardens and Domain Trust.

Over toast and coffee no doubt, I first read in the news section the headline ‘Domain sadly awaits its root and branch removal’.17 This wasn’t the big feature article on my ascension to high office but a linked article about the tree replacement, explaining quite clearly

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that the trees were being removed for public safety and to allow for the replacement of an avenue. The trees were aging and in poor condition, and it was argued that now was the best time to replace them. I was taking a long-term approach, it was said, and the article ended with the following paragraph: He [me] knows Sydney people, especially politicians, will be watching every move he makes. “After all”, he says, glancing across Hospital Road to Parliament House, “it’s their view, their backyard”.

I thought journalist John Huxley had presented my views well although I prickled at the word ‘admits’ used in the context of the trees being able to stay longer (as I argued, it was in the best interest of the landscape and good management). This qualifier made it sound like I was pushed into this statement rather than, as was the case, pointing it out myself. The mention of Charles Moore’s vision, renewing the Domain, avoiding a dog’s breakfast of old and new trees, and having to plant for 50 to 100 years ahead as a botanic gardens’ director all provided the right context and explanation for my decision.

The article also mentioned that opponents had asked us to rethink after we announced the program ‘several months ago’, and that we had rethought: the plan now was to remove 11 rather than 13 trees. This was true, in the sense that we listened and acted on feedback. The eleven trees were five Moreton Bay figs, one Port Jackson Fig, one Camphor Laurel, one African Olive, one Plane Tree, one Tallowwood and one Swamp Mahogany (of varying importance and value, to which I’ll return later). The article also noted that we had postponed the replacement for a week after the plant pathogen phytophthora was found in a pot of one of the replacement trees. A grand opening celebrating the newly planted trees will follow, it was reported, probably next month.

I then turned to an illustrated biographical piece in the News Review section of The Age, and soaked up Huxley’s take on The Tallest Poppy in the Garden.18 I had just been appointed Executive Director, a position I’d been acting in since September 2003. A week or so earlier John Huxley visited me in my grand office to interview me about my background and my vision for the Gardens. John was very pleasant company and from that visit he wrote a thoughtful and generally upbeat piece. I was the ‘youthful Entwisle’- who writes zappy articles on the sex lives of plants, talks trees with Angela

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Catterns on ABC Radio and listens to bands such as Cat Power, Queens of the Stone Age and Eighties Matchbox B-line Disaster. I was quoted as saying that although my appointment was for five years initially, I wanted to focus on the longer-term and especially the bicentenary of the botanic garden in 2016 (I left in 2011 to take up a position at Royal Botanic Gardens Kew, in London, with planning for the 200-year bash well advanced). I mentioned that we had plenty of concerns, including senescent trees (a segue for Huxley’s second, shorter, but more impactful article earlier in the paper), bats, heritage buildings in need of repair, the need to get recycled water, ‘and so on’ (as Huxley ended the paragraph). I also wanted to encourage informed debate – well I got half my wish, as you’ll read in this book. I was bracing the organisation for hard times, it seemed to Huxley.

Apparently I stuttered on the word ‘challenging’, making reference to Don Watson’s book Death Sentence; Huxley adds mention of Martin Amis’s The War against Cliché which I had near to my desk. A typical Entwisle touch apparently. ‘A young-looking 43, married, with two children, he brings to this new post – which like many in the business of public exhibition, is potentially both high profile and political – a keen sense of humour, boyish enthusiasm, scientific flair, solid research achievements and, he believes, the necessary administrative ability’. The last comment leads into my saying ‘This may sound presumptuous but I hope I combine the skills sets of [Frank Howarth and Mike Archer, my predecessor and the Director of the Australian Museum respectively]’. Then into the now well-told story about being born in Nhill, moving around Victoria with my teacher parents, heading to university to study maths and physics but converting to botany, then algae. The article ends with me rambling about my radio and writing, my desire to tell people stories about plants and to get to a broader audience, and on a diversion about algae saying we need to look to the long term. So with my head big enough to fill the mighty office of the Executive, I turned back to the news article about my very first long term action, replacement of a few Moreton Bay figs in the Domain.

Despite the two articles, Easter weekend was fairly quiet for me media-wise. On Sunday (11 April) I did two radio interviews in the morning to talk about the trees – one with Simon Marnie on 702AM, the other with Jennifer Stackhouse on 2UE. Both were positive stories, Jennifer’s ending with the recommendation that listeners

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take their kids down to the Domain so they can see the trees when young and watch them grow. That evening I dictated (this was the word I used in my diary so presumably I read it out over the phone to a journalist) 160 words for The Debate in The Daily Telegraph. My take was lined up against that of the Opposition’s Environment Spokesman, Michael Richardson MP. I said it was sad to lose the trees but a necessary and grand thing to do for the next generation. I pointed out the best thing in this case was to remove the trees as a block rather than one at a time. I noted in my diary, however, that the response might be more hostile when we start removing trees on Wednesday, or perhaps when we put up fencing on Tuesday. I was realistic about public perception.

In my six years in Sydney as Director of Plant Sciences I’d built up my media profile as much as a could. ‘As much’ being not a household name or face, but certainly well known in gardening and radio circles. I liked, and like, radio a lot. I was doing a fortnightly interview with Angela Catterns on her ABC radio breakfast show, on 702AM. Way back I’d done some community radio with Plenty Valley FM - a science show called Brainwaves and a music show called the Pablo Picasso Show (with Jonathan Richmond and the Modern Lovers’ ditto about Pablo as my themes song, just stopping before the swear word...). Between the two radio stints I wrote the occasional feature article for Graeme O’Neill while he was Science Editor at The Age. Given the chance I’d face up on television (although always found doing two things at once - looking and sounding good - harder), chat on radio or be interviewed about pretty much anything for the newspapers or magazines. I was happy to be called a media slut by my friends.

All that prepares you nicely for good news. I hadn’t had to do any bad news stories so far. I knew I would, some day, and it didn’t phase me. Although in a media training session I did soon after starting moving to Sydney from Melbourne, in 1998, I found myself cornered into saying something like I couldn’t deny or confirm the Minister was a crook. This was a high powered training session, from an ex-current-affairs journalist who went for the kill, to help us. Like the first time I listened to myself reading in a short training session for RPH (Radio for the Print Handicapped) some years earlier, I was able to learn and change. That said, I hadn’t had to test the training.

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Until now.

On Monday (12 April), The Daily Telegraph announced that ‘Axe falls on all but one tree – that’s the truth’.19 At the very least the story sowed a seed of a misunderstanding, and sometime deliberate miscommunication, that the Botanic Gardens was planning to remove ‘all but one of the [Domain’s] 150-year old Moreton Bay figs’. Critics, said The Daily Telegraph, have branded it the Moreton Bay Massacre. The story draws a few of its more accurate quotes from an interview with me day before, noting that the so-called Tree of Truth would be spared due to it being less at risk, and being of individual significance (the others are of significance as part of the landscape and needed to be replaced as a group in this case), than the other four Moreton Bay figs. Michael Richardson called for all the trees to be saved, saying documents he obtained through Freedom of Information laws showed they had 20 years to live (more on that furphy elsewhere).

I was also able to read the other side of The Debate20 in that morning’s Telegraph. Michael Richardson cited arborist Rob Glabraith giving the Trust advice about how concerts were impacting trees (i.e. it was our fault) and suggesting there were redemptive measures we should put in place rather than remove the trees: ‘Bob Carr must silence the chainsaws on Tuesday and put a management strategy in place that preserves these trees for the future and provides for rejuvenation without destroying our heritage’. I’m still not quite sure how you managed and replace trees in a heritage landscape without having to ‘destroy’ trees at some point. In this and the main article in the paper I am referred to as ‘Dr Tim Entwhistle’. Later on this not unreasonable spelling of my surname helps me to at least know which newspaper protesters are reading when they erect their signs in the Domain. I discover that Channel 9 television news ran a rather negative news item about the tree replacement the night before.

Richardson and I play out the debate that day, in typical media fashion, without ever talking to each other. Richardson talks to radio and television calling for trees to be saved and I provide the rationale for the replacement program to a similar suite of media outlets. Ashley Hay (702AM), reporting directly from the Domain, provides a fair record of what we are doing and concludes with a vox-pop of someone saying they are sad but supportive of the program.

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Channel 7 and 10 run news stories that night including quotes from me. If this followed the usual media pattern of that time, the newspaper would feed the radio and television for that day and then apart from a few flourishes in the letter pages over the next day or two the story would stutter to a stop by week end. I was comfortable I was doing the right thing for the right reasons so resigned myself to spend a week taking a light battering.

Lord Mayor furious

I wasn’t the only person in Sydney settling into a new job of interest to the media. Two weeks earlier, on 27 March, Ms Clover Moore MP (also Independent Member for the State Government seat of Bligh) had won a ‘landslide victory’ to be the Mayor of Sydney after the previous council had been sacked and the cities of Sydney and South Sydney re-amalgamated. To the pleasure of the tabloids, Clover Moore’s spent the first week or so after being elected holidaying on Patonga Beach just north of Sydney. It was there Moore heard, apparently for the first time, about our plans to remove and replace trees in the Domain. Back in Sydney the new councillors in her faction were telling anyone who would listen of the atrocities planned for Sydney’s Domain.

Easter Tuesday (13 April, ‘Bright Tuesday’ as it is called in some Christian traditions) starts for me, again, with the Sydney Morning Herald. Nothing about the Domain and its trees until I get to the Letters pages, where councillor Shayne Mallard (a Liberal allied with Moore in Council) expresses his concerns21 about the ‘total clear-fell of healthy old trees’. By notifying the public of our intentions during the Easter holidays (and more later about our months of notification leading up to the story on Good Friday), Mallard accuses us of being as manipulative as the Road and Traffic Authority when they cut down 24 figs in Cahill Expressway. He says the case for removal hasn’t been made and that if there were any safety concerns they should be fenced off already (an odd view from a Councilor in a city with far more trees to manage, not appreciating how we assess trees and make risk-based decisions).

Later in the day I catch up with the Daily Telegraph letter page,22 where three contributions condemn me and the Gardens with lines such as ‘ridiculous claims by Tim Entwhistle’ (you’ll note the admirable consistency with which the letter writers follow the

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Telegraph’s lead on spelling my name), ‘does he seriously suggest these trees are killers?’, comparisons with what is done overseas where old knarled trees are kept going for hundreds of years and, from Andrew Woodhouse of the Potts Point and Kings Cross Heritage Conservation Society, ‘the tree “doctor” Dr Entwhistle, still has not grasped the simple point that the trees are not just green things with leaves’. I still smile when I read that last line from Woodhouse, bringing to mind Bertie Wooster of Blandings Castle (taking the same liberties as the Telegraph with my spelling and jumping from ‘A’ to ‘P.G.’). Mr Woodhouse asks would we demolish the Mint buildings in Macquarie St if they needed work and why if trees could be saved in St Kilda Botanic Gardens why we couldn’t to the same here. It’s hard to know where to start with that kind of poor argument by analogy, but by the end of this book I hope it will be clear to most readers why we decided to remove these particular trees.

On Ray Hadley show on 2GB,23 Michael Richardson says ‘the team replacing the removed fig trees are not planting Moreton Bay fig trees which actually pose little threat to public safety and have a long enough life expectancy to have the new saplings grow to size over the next twenty years before needing to be removed’. That is, we should be interplanting now and removing the trees later. This was a point I returned to regularly in subsequent weeks, explaining that this wasn’t the best solution in horticultural or landscape terms. Richardson wasn’t getting particularly good advice.

Meanwhile we prepared for the tree removals due to start tomorrow. The signs in the Domain were updated with an artist’s impression of the new landscape, showing what would come after the trees were removed. Safety fences were erected around the trees to be removed. A media release was issued with the simple header: Restoration work begins in the Domain. Sometime during the day, I got a message from the Sydney City Council requesting a meeting to discuss concerns they had with the Hospital Road tree replacement work. We agreed to meet that day at 5 pm, in the Domain, near the trees slated for removal.

We met in gathering gloom (as I recall), next to the ugly air vents from the harbour tunnel vents (which I was never able to shift or beautify in any way). I took with me Alistair Hay (Director Botanic Gardens and Public Programs), Ian Innes (Curator Manager Royal

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Botanic Gardens) and Stevie King (Acting Public Relations Manager). The Sydney City Council was represented by Councillors Shayne Mallard and John McInerney, Karen Sweeney (Arborist), Larry Galbraith (Press Officer) and James Zanotto (Chief of Staff, Lord Mayor’s Office). The Lord Mayor, Clover Moore, was on holidays but with us in spirit and eventually by phone. My notes suggest we started at 5 pm and ended a little after 7 pm which seems rather longer than I remember. There was really only one matter of dispute – whether we should proceed or not. The Councillors and Council staff asked if we could stop work until at least the first meeting of the new Council, on next Monday (19 April), six days away. The Lord Mayor would be back in town by then.

We explained, patiently at first, that we had consulted extensively with the Council already about both the Domain Master Plan and our approach to renewing this landscape. We noted that representatives of the Council had been invited to, but did not attend, a briefing session about the Hospital Road work (which included identification of the trees to be removed and the replacement plan). We said all MPs, including as it happened the new Lord Mayor, were sent a letter on 5 December 2003 notifying them of the tree removals. We noted also that work had now commencing so their request was manifestly unreasonable (I term I grew to like as you’ll read later). Furthermore, we pointed out that the Council does not have any jurisdiction over horticultural activities, such as tree removal and replacement, on the Trust lands.

The Council representatives remained obstinate but suggested a compromise, asking us to delay work for at least a few days so they could further consider our approach. Once again we pointed out that we had consulted already with the Council and that this was too late in the process to be making such a request. Manifestly unreasonable I felt. We did however offer to provide a full briefing to representatives of the Council at the earliest opportunity, tomorrow if that suited, to explain our reasoning and correct any misunderstandings or misinformation. In a further spirit of collaboration, we said we could alter the work program so that the Moreton Bay figs (the trees of most concern to the Council representatives) were not removed in the first day of work (tomorrow, 15 April). Then if any fine-tuning was required as a result of the briefing we could include that in the removal work the day after (16 April). There seemed to be some tentative support for

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this proposal but those present from the Council were not able to agree without consulting the Lord Mayor.

And so I had my first conversation with Clover Moore. I think I was handed a mobile phone with the Lord Mayor already on the line. In any case I was interrupting her holiday and she didn’t seemed thrilled by the call. It had already been relayed to the meeting that the Lord Mayor did not support us going ahead with the tree removal work, even with the revised tree order, and that her intent was to raise it formally at the next Council meeting. That wasn’t our intent, as she knew, so I wasn’t expecting a warm reception.

I spoke with the Lord Mayor for about 20 minutes, pacing up and down the path beside the air vents. (Even in my office I tend to walk around as I talk on my mobile, but I’d have to say in this case I needed the exercise to keep warm and to keep calm.) It was now well past sunset. The call began with the Lord Mayor stating she was unhappy with what we were doing and wanted it to stop. I explained (patiently) our reasons for removing the trees, including safety and landscape reasons, and she in return explained her own approach to the management of ageing tree landscapes, which seemed to centre around replacing each tree one at a time and only when some kind of community consensus deemed it necessary. It soon became clear that the Lord Mayor would remain opposed to removal of any clump of old trees to allow the planting of an even-aged new boulevard. It was only later that I found a copy of the Council’s Draft Street Tree Master Plan (dated 7 February 2003, so before Moore became Mayor but an interesting intersection with her views), where it explains the difference between block removal and inter-planting new amid old. In that document the Council says block removal can ‘be a public relations disaster unless the community has been properly informed’. It argues in favour of phased removal by implication not necessarily in the best interest of the landscape but to avoid ‘public relations disasters’.

I asked the Lord Mayor explicitly whether there would be any change to the Council’s view if we delayed tree removal until after the Monday meeting. She stated clearly and unequivocally that she would always be opposed to removing declining trees and that she would always demand inter-planting. Given that, I said there would be no point delaying work that we had planned for so long, and said we would continue with the work program. I said that no matter her

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view, I would honour my previous undertaking to remove trees other than the Moreton Bay figs tomorrow and to provide a full briefing to Councilors and staff the same day. The call ended with the Lord Mayor saying she was unhappy (‘disgusted’, I think) with the Trust’s decision, and me saying I was extremely disappointed with the approach of the Council.

I explained my decision to the gathered group, realising then that I was about to unleash a robust and public conflict but to do otherwise would have been pandering to what was clearly an intransigent and unreasonable view by a single person.

Media releases at ten paces

By the end of the next day the battle lines are set. In a letter in the Sydney Morning Herald24 Councillor Mallard’s expresses the Council’s concerns of the day before, also reminding readers there is ‘another natural menace affecting our botanical heritage which needs decisive correction action’, and that menace is the flying foxes roosting in the Gardens’ Palm Grove. While I’m not sure that I like the implication that I might too be a menace the letter flags the next battle I was to fight, and perhaps the next book I should write. That out of the way, it very quickly becomes a day of the media releases.

‘The Environment Minister, The Hon. Bob Debus MP, said today he accepts the advice of the Royal Botanic Gardens Trust and supports the removal of 11 trees suffering from poor health in the Domain’. So begins the media release issued by Minister Debus on Easter Wednesday (14 April). It was headed ‘Tree Removal to Benefit Future Parkgoers’ and outlined the case for removing several Moreton Bay figs and other trees, and replacing them with White Figs, Cotton Palms and Hoop Pines. ‘It’s time to bite the bullet and make some tough decisions’ he says ‘No one, particularly Royal Botanic Gardens staff, enjoy cutting down trees but all the expert advice points to their removal form a visual and safety perspective’. He goes on to describe some of the reasons for their ill health and poor quality, concluding that ‘there are more than 3000 heritage trees in the Domain and Royal Botanic Gardens, including more than 400 figs’ and ‘I don’t think it’s unreasonable to suggest a very small number suffering from poor health be removed to allow for creative replantings’. No, not manifestly or in any way unreasonable. Minister Debus took the opportunity to remind some of those

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opposing the removal (e.g. other MPs, including the Lord Mayor) that they were informed at the very least in December 2003 and none of them took up the invitation for a private briefing. He names Lee Rhiannon, Clover Moore and Michael Richardson.

On the same morning, Ian Cohen MLC, not on Debus’ list but a member of parliament (an Independent Greens member in the Legislative Council), puts out media release asking the Gardens to re-examine public support, to look at planting native species, and to find ways to plant around existing trees. The Media Release25 was headed ‘Protect Sydney’s Heritage! Protesters list demands’. Cohen says the Trust has misread the public mood and that the figs can be managed better so they can live for many years without posing a public safety risk. He said he had contacted my office to seek an urgent meeting and was awaiting a reply. I replied once I got the message, agreeing to meet that evening.

The Potts Point and Kings Cross Heritage Conservation Society Inc., under the name of Andrew Woodhouse, put out a media release26 saying there is no need to mulch these heritage trees, and that they should be retained. ‘We do not trust the [Royal Botanic Gardens and Domain] Trust’ says Woodhouse. He says the master plan on our website does not recommend their removal and moreover, ‘these heritage trees are: part of the back-yard of inner city residents; need maintenance, not removal; can be saved; are not required to be removed; and are not part of any master plan for the Domain’. Woodhouse calls for an independent review of the Trust’s policies.

Throughout the day there is plenty of radio and television coverage,27 most of it clearly fed by the Councilors I met last night. Just after the 9 am news, 702AM radio reporter Ashley Hall reports to Sally Loane from the Domain. Councilors Chris Harris and Michelle McKenzie are up in a tree and Ashley gets quotes from those nearby saying ‘don’t see why they need to be removed’, ‘feels it is a shame’, ‘believes they look healthy’, and ‘concerned as they are living heritage’. A caller to 2SM says the removal of the trees is a real blot on Clover Moore’s copy book, which must have pleased the Lord Mayor. The show’s presenter, Grant Goldman, adds that going on holiday just after being sworn in as Lord Mayor is also a blot on that copy book. News reports quote Minister Debus, Michael Richardson, Lee Rhiannon and Andrew Woodhouse. Lee Rhiannon links tree removals to a financial crisis at the Gardens. Judy Fakes, a member

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of our Trust committee, is interviewed by John Stanley on radio 2UE. She explains that the removal plan is ‘really mature and responsible’. On a regional station a caller wonders why Sydney is obsessed with Moreton Bay figs being cut down in a botanic garden when old growth forests are being cleared on the South Coast.

Earlier in the morning, Bob Debus, interviewed by Sarah McDonald (replacing Angela Catterns) on 702AM radio, explained that all members of the NSW Parliament received a letter months ago about the tree replacement plan and that ‘Tim Entwisle as head of the Royal Botanic Gardens Trust is dedicated to the nature and preservation of the gardens’. He praised the plans for the Domain and the keeping of the Tree of Truth after it passed a safety check. A caller to the show says Moreton Bay figs in her local park in Alexandria can be dangerous and she has a picture of a large limb that might have injured someone. A caller to Alan Jones on 3GB says he is in the Domain and what he sees is ‘an absolute disgrace’; another caller thinks the figs are ‘quite ugly’ and not even native trees. Green MP Lee Rhiannon says the removal of the trees is unnecessary, and she and Jones call it ‘arrogance’. Back on 702ABC, Clover Moore had said she ‘understands the trees are fine’ and ‘calls for the sacking of the new director of the Trust’. I’d obviously made an impression on her during our call the night before.

In the afternoon I speak to Richard Glover on 702 ABC, as does Councilor McKenzie (from the Domain presumably) and Ian Cohen. A caller to the program says a fig branch fell on his child in Centennial Park. There is a question to me about using the wood from the cut trees and I say it isn’t much good for anything other than composting. Meanwhile Councilor Harris (from the Domain) tells Steve Price on 2UE that the public should protest to stop this tree removal. Price wonders why Premier Carr and Opposition Leader John Brogden are not making comment. Later he says that the sound ‘of a tree being chopped down makes you weep’.

In television reports arborist Rob Galbraith says the trees are ‘well and truly on the way out’ and Minister Debus labels the protest as ‘a stunt’, reminding viewers that 30 new trees will be planted. Clover Moore contributes with ‘urban vandalism’ and in a nice touch, a child is interviewed who says it takes more than 100 years to grow these trees. Councilor John McInerney from the City of Sydney does add that they, the Council, have no legal right to stop the action.

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Premier Carr comments, briefly saying he took the advice of experts. Minister Debus says that trees ‘like humans, live and die’.

Chainsaws started

Meanwhile we began to remove the 11 trees, leaving the Moreton Bay figs until last. Under the heading ‘Figs are doomed to death’,28 the Daily Telegraph lead-line reported this as: ‘The controversial “moreton bay massacre” will begin today despite a last-ditch effort last night to save the Domain’s historic trees’. Eleven trees will be felled, bulldozers moved in, steel fences erected and so on. The article refers to the twilight meeting I had with Councillors in the Domain last night. The decision was made in the interests of public safety, I’m quoted as saying. Critics have accused us of exaggerating the dangers, says the Telegraph’s political reporter, Lillian Saleh. Some of them are quoted: Lee Rhiannon says there is no need for them to be felled simultaneously, if at all; Michael Richardson says the massacre was due to mismanagement – you can fence them off he says; and Shayne Mallard said he would look at reviewing responsibility for the Domain – the Trust should preserve and enhance, and chopping down trees doesn’t do that. Some interestingly absurd and abject views there.

The Sydney Morning Herald only had a short piece:29 ‘The removal of The Domain’s Moreton Bay figs will start today after a late bid to halt their felling failed. Sydney City councillors Shayne Mallard and John McInerney met with director of the Botanic Gardens Trust in the Domain last night. Lord Mayor Clover Moore joined the talks by mobile phone. But no agreement was reached and the removal will start at 7am today. The Trust said the trees were unsafe. Cr Mallard said Cr Moore was “absolutely furious’’.’ No one was quoted as saying she was manifestly unreasonable.

At 10.20 AM the Sydney Morning Herald on-line reported that two Greens councillors – Melbourne Councillor Chris Harris and Leichardt Councillor Michel McKenzie –– had ‘clambered up’ one of the tree earmarked for removal. Bulldozers, chainsaws and woodchip machines whirred in the background, apparently. We started work on the least controversial trees, the Camphor Laurel and Swamp Mahogany, to make sure could make any adjustments if they became necessary from our further discussions with the Council. Chris Harris was in one of the trees to highlight, he said,

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how ridiculous the decision to remove it was. He had an independent report, he said, that gave the trees another 20 to 50 years life – a report, if I remember rightly, that referred to different trees. Lee Rhiannon’s is quoted as saying she is concerned there is a government agenda to commercialise the Domain ‘by opening it up to pack more people in’. Alongside the story are pictures of a mulching machine and Councillor Harris striking various poses.

Late in the day I met with Greens MP Ian Cohen to listen to his point of view and, from his perspective, to seek a compromise he could take back to his constituents. Afterwards, following my reiteration that we could give no further ground, he appealed to the Minister directly. Our talks were civil and useful in establishing some kind of rapport with Ian, even though it was clear he had his own agenda. Comments attributed to Ian Cohen the next morning30 were relatively conciliatory saying the Minister should be open to change, that it was fantastic people cared about the trees and suggesting that that if the Trust pruned and controlled them they ‘could last quite a while yet’.

So much for scene setting, from all sides, and we were still only half way through Easter week.

Greens out on a limb

Easter Thursday (15 April), and the Domain is quiet again. Well, the chainsaws had stopped. The day before the camphor laurel, swamp mahogany and Port Jackson fig had been felled. Now, with Councillors Harris and McKenzie nestled into the Moreton Bay figs earmarked for removal next we called a temporary halt to the tree removals. The tallowwood, for some operational reason, is also left standing.

According to an ‘angry’ onlooker cited in The Sydney Morning Herald31 one of the eucalypts had new flower buds on it (as I write many years later, a river red gum in Melbourne Gardens of Royal Botanic Gardens Victoria called the Separation Tree flowered profusely after it was ring-barked by a vandal some months previous, then died a few months later). The Lord Mayor of Sydney, Clover Moore, the Herald reported, said ‘the new gardens director, Tim Entwisle, should be sacked for clearing the trees rather than replacing them over time’. She added that although the boulevard

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might be very nice in 50 years it was important we provide for today. At least one passer-by quoted by the Herald was supportive of our work, saying the trees and old and rotten and this had to be done at some time. The article ended with Minister Debus denying any financial motive to the tree removal, saying that ‘I’m sure that the hysteria of today concerning these trees is going to be matched in 20 years’ time by the elegance of a wonderful boulevard that will be growing behind the Parliament’. The Daily Telegraph32 focused on the Opposition Environment Spokesman, Michael Richardson’s, thesis that the trees were being removed to allow the Trust to get ‘commercial companies to sponsor these new trees’. He had noted some early documents that we might use the new tree plantings as a chance to get sponsorship. Quite true and we were forever looking for ways to fund projects through philanthropy and corporate support. However it would be a little perverse to chop trees down primarily so we could raise money to plant new trees. As Minister Debus said publicly, we did consider sponsorship as a way to fund something we knew had to be done (as we should have) but rejected it. Greens MP Lee Rhiannon said we were commercialising the Domain to fill a $1.2 million black hole and this tree removal was part of this cunning plan.

Apparently, according to the Telegraph, the tree removal contractors downed tools for at least a brief time after the protesters climbed up the tallowwood, but otherwise all but the Moreton Bay figs were removed without much fuss. Further back in the Telegraph, in its Six Pack column,33 the Telegraph suggested six solutions to what it called the ‘Moreton Bay fig crisis’: 1. Create a diversion with old-fashioned Canadian seal-clubbing in The Domain and chop them down while no one is looking; 2. Move the trees into the parliamentary chamber and make one of them transport minister; 3. Go bonsai; 4. Hold the remaining two days of the Easter Show on Hospital Rd and let Tasmanian woodchopper David Foster go his hardest; 5. Place personal injury lawyers under them in readiness for their collapse and subsequent orgy of litigation; and 6. Finish them off quickly by putting them in the care of the NSW health system.

That afternoon (15 April) I met briefly with Opposition Environment Spokesperson, Mark Richardson. He arrived unannounced at reception and although public service protocols tend to discourage this kind of congregation, I felt in the circumstances worth at least putting a face to the name. I was curious. We spoke in the reception

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area for about 15 minutes. He was amiable and asked for some background on why we had made our decision. I went through the various arguments, involving safety and heritage landscape. He asked whether we could leave the old trees and interplant the new. I explained that our best advice (external and internal) suggested that removing the old trees at one time and replanting with new even-aged trees was the best way to recreate the grand boulevard envisaged by Charles Moore. We talked further about heritage trees and landscapes, and the expertise and goals of the Botanic Gardens more generally. Richardson also asked what we were doing today as it looked like we had stopped. I said we had stopped work because we were concerned about the safety of people on site. There are a small number of protesters in the trees and around them. I said we would resume work as soon as we could and our intention was to continue with the tree removal and replacement program. Mr Richardson didn’t indicate why he had visited me or what he intended to do next.

Amy Fallon from Australian Associated Press rang our media office to get our response to six statements in two media releases from the Greens. The statements and my initial responses (in italics) were:

1. Minister Debus is stubborn and refusing to compromise. Incorrect. It doesn’t make sense to ‘compromise’ on decisions based on the best scientific evidence and advice, and already based on public and expert feedback.

2. Protestors are calling on the Trust to re-examine public support for the Tree Replacement. Tree replacement and management decisions shouldn’t be based on some kind of democratic vote.

3. Trust to support replacement of non native trees with native trees. Why? Some trees removed are Australian natives and some trees being replanted are Australian natives, consistent with rest of Domain plantings.

4. Trees to be fenced during large public events. If necessary they are.

5. New trees to be planted around the existing trees. Not a successful approach, as I’ve argued elsewhere.

6. The Trust has misread the public mood on this issue. The Trust

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has misread the political opportunism available in doing something responsible in this very public place.

Robert Domm, General Manager of City of Sydney, writes34 to the Minister for the Environment demanding an immediate apology for misrepresenting his role and that of City of Sydney in the consultation process associated with the tree replacement plan. The Minister had said in an interview with Alan Jones that morning that ‘for a lot of years the General Manager of the City of Sydney Council has actually been on a consultancy group that knows all about this (the culling of the trees)...’. Domm says, in his letter, that he has never been involved in any consultancy group and has never been consulted. A month later in the Land and Environment Court we outline the consultation we had had, and attempted to have, with representatives of the City of Sydney. But that is all still to come. For now it’s tools downed, protesters up the trees.

I condemn

The next day, Easter Friday (16 April), a few more protesters joined the two councillors in the trees, including Elinor Wrobel (age 70) and her grandson Fred Abrams (age 9). Ms Wrobel said35 ‘it is not good enough that we disrespect our heritage buildings, we do it to living trees as well’. Eight of the earmarked trees still remained to be protested in. Contractors were forced to stop after protesters scaled fences and climbed trees. The police were reluctant to remove them. Or more accurately, they would only do so at our risk.

Clover Moore’s fan(e)mail of that day leads with ‘Domain Tree Destruction Condemned’. In this missive the ‘wholesale destruction of 13 mature and historic trees in the Domain’ was condemned. Contrary to the best arboricultural advice we could amass, Moore states ‘it is outrageous to remove mature fig trees before planting new trees’. One tree, she said, a eucalypt, was being removed because ‘it does not fit with the Trust’s landscape plan’. This, I can confirm, was absolutely true. That particular specimen was a relatively recent planting, and a gratuitous and poorly considered one (it was in the wrong spot). It was of no heritage, conservation or scientific importance. As for the figs... Moore goes on to chastise us for having not consulted with the community. She says that councillors met with me (‘‘Dr Tim Entwhistle’) to try and prevent the tree removals, and that she had argued with me about the need to

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plant new trees first. She reports further that I rejected her offer to share the cost of an independent arborist to reassess the condition of the trees, and that she was ‘disturbed by the Trust’s rejection of this reasonable proposal’. She ends with a lament: ‘It is unfortunate that the City of Sydney currently lacks the legal power to prevent the trees from being removed and I have requested that Council obtain legal advice about reversing this’.

According to the ‘Rehame [media] clips’,36 Sir [sic] Mark Hartley says there ‘is no evidence the trees are dying’ and that trees should only be cut down ‘when they are actually dying or dead’. He says we are getting rid of them because we don’t want to look after them anymore. Mark Richardson, taking nothing from our reception chat it seems, says ‘the trees do not need to die’ saying they will last 50 to 100 years more if managed well. Talkback includes comments about how healthy the trees are and that the government wants to widen Hospital Road. I’m quoted as saying the trees are dangerous to the public and that safety is important. Chris Harris adds helpfully that Richardson had wheeled out an expert who confirmed that our decision to remove the trees was ‘made up’.

End of week one

The weekend brings a softening in the media stories, a lull in the storm as it happened. There is a letter to the editor37 of The Daily Telegraph (Tele p. 20) pleading to not let these trees die in vain. Can wood be used by a craftsman rather than chipped, the writer asks. Earlier in the paper,38 under a picture of the newly installed Lord Mayor in a beach chair on the Central Coast, the Telegraph says that ‘despite a political storm over the Moreton Bay figs’ and other matters, Clover Moore is strolling along the Patonga Beach.

We even get a supportive letter,39 from Elsa Atkin, Executive Director of the National Trust of NSW, pointing out that trees are different to buildings and that periodic renewal is essential. The letters concludes that the National Trust supports the botanic gardens and that the decision came after many months of public and expert consultation. Geraldine O’Brien in her summary of the week’s correspondence (Postscript) reports that ‘the demise of the Domain’s fig trees irked a former Botanic Gardens arborist Jerry Coleby-Williams who wrote that ‘One day I will die. But if, in my final years, I went around threatening to kill and injure people, I suspect that

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someone might try to prevent this’. He goes on, according to O’Brien, to take give premiers from Fahey to Carr a serve for underfunding the Gardens, and tells the protesters to give the overworked botanic staff a break. Instead, he says, they should go and fight to end old-growth logging and land clearing.

The Sunday Telegraph reports40 that a near tragedy is behind the Trust decision to remove trees in the Domain. A woman was injured after a branch from one of the figs fell on her during a concert on 13 January this year. The incident occurred despite the tree having been assessed and dead wood removed. I noted that there had been 29 emergency call-outs to clear fallen branches since 2000. I’m quoted as saying they are becoming increasingly dangerous – ‘quite frankly, it’s a miracle someone hadn’t been seriously injured’ – which the Telegraph stretches to the ‘near miss’ being the prime driver.

Morning Show presenter on Radio 2GB, Luke Bona, says41 the station ‘has been absolutely inundated with people voicing their despair or their support about these trees coming down’. He said he spoke to me on Friday when he was filling in for Chris Smith and I’d explained the reasoning behind the tree removals. Bona said that was all well and correct but he’d heard Graham Ross make an ‘editorial’ this morning in his Garden Clinic Show on 2GB ‘that was quite revealing and he was very, very passionate about this’. So he interviewed Graham Ross (by phone from the airport on the way to the Logies as it happened) because he felt there was more to this story than meets the eye. Graham Ross began by saying the community’s anger should have been directed towards the removal of the trees in the Cahill Expressway traffic island some months earlier. Bona interrupts to say that Ross had implied in his comments earlier in the morning that the Botanic Gardens were not ‘in as healthy a state as it could be’. Ross replies that ‘the director’s been given a poison chalice by the previous director, quite frankly. Ross says he knows the previous director well but ‘I don’t know the current director all that well’ (we later become very good friends and Graham Ross was a great supporter of the Botanic Gardens and of me as a Director there). ‘I do know that the current director is new, he’s come up within the system, he’s a plant guy if you like, he’s a botanist, he’s qualified and experienced in these matters. I think he’s young...’. He goes on to say that the plan to remove the trees was made years ago and that when Ross was a Trustee they got more out

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of those trees but they beyond their time back then: ‘...the time has come, they’ve got to come out’. The two seem to be a cross purposes a little with Bona pushing on whether this is development by stealth and Ross continuing to argue it is necessary for managing the Domain landscape. He says that if I (me) had learnt anything by this process it would be that I have to communicate with the public and with others in the media who can spread that message. The information came too late and wasn’t explained well, according to Ross. Bona pushes for a yes or no in regard to the tree removals. Ross says yes, they should come down but then turns to funding for the Botanic Gardens. He mentions cuts by government and the need to be vigilant.

It took a week but our message was seeping out, in a slightly garbled way. As I’ll explain later, we had communicated extensively if not (by these public assessments) as effectively as we might. I was still Director of the Royal Botanic Gardens and Domain Trust. I had the full support of the Minister, of my Board and I think all of the staff. The problem was, I couldn’t cut down the remaining trees while protesters were in them. Oh, and the Lord Mayor was still unhappy.

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2. Clover my dead body42

Although the structure of the leaves doesn’t tell us much about the evolution or relationships between species, it is a convenient way to identify species – if you have fine sectioning equipment and a high powered microscope. It turns out that the number of rows of cells immediately under the surface, in the epidermal layer, is useful, as are features of the internal tissue of the leaf. But faced with a fig tree and no precision scientific equipment, you’ll need to find some fruit.

Enter Clover, to ringing applause

Monday (19 April) is quieter in the Domain. Protesters are still in the trees but the chainsaws inactive. My instinct is to do what I can to remove the trees quickly, reducing opportunities for grandstanding by protesters and politicians. The reality is that with protesters in the Moreton Bay figs we can’t start work on them. As I mentioned earlier, the police have made it clear that if they physically remove people from the trees they do so at our risk. I’m also reluctant to give the protesters any additional media attention. On top of that I’m generally benevolent in nature, and I don’t set out each morning to irritate or harm people. That said, I’m mightily pissed off with the ill-informed and mischievous campaign against our tree replacement and if I could get the trees out easily I would do so.

Around this time (I can’t remember exactly when, but it may have been the weekend just past) I was walking along the beach at Dee Why, on the phone to an adviser in the Minister’s Office, discussing whether to remove the trees quickly or wait to see if we could sway public opinion (i.e. counter the negative campaign of the Opposition and Council). I was keen to go ahead with the removals and then continue to make the case as the new trees took root. The adviser was reluctant to make such a bold move. Odd really because normally I would have much preferred to have the whole community behind me and I’m certainly not by nature reckless. My fear was that we may get ground into some kind of stalemate and perhaps never get to remove the trees. In the end I was advised to not remove the trees at that time, advice which I accepted, and we proceeded towards a stalemate.

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The first tactical move from the City of Sydney was the issuing on Monday night of a Council Minute recommending that Tree Preservation Order be extended to cover land managed by the Royal Botanic Gardens and Domain Trust and demanding that work stop immediately. The background paper to the motion mentions the en plein air meeting with me and says Council offered to get independent arborist advice, with Council sharing costs, and that I rejected this offer. Which I did: we already had independent advice. The Sydney Morning Herald43 under the headline ‘Enter Clover, to ringing applause’, reported on what it described as the two outstanding features of the Clover Moore’s first Council meeting. The first was the minority of ALP members re-elected (three out of 10). The second, this introduction of an emergency motion to apply the Council’s Tree Preservation Order to Botanic Gardens Trust lands as well as a call to the Minister for the Environment to halt the tree removal and that a register of significant trees be established.

The next morning (Tuesday, 20 April), under the heading of ‘Clover my dead body’44 the Telegraph reports that as part of ‘staking out her territory’’ at her first Council meeting, the new Lord Mayor of Sydney, Councillor Clover Moore, wanted to make it clear that ‘any vision for change would have to be put to her first’. The Council Minute we received had been distributed before the meeting and was tabled by the Lord Mayor, seconded by Greens Councillor Chris Harris. ‘Ms Moore said the attempted destruction of fig trees in The Domain should not have been allowed without public consultation and council approval’. A small item at the end of the story provides an update on work in the Domain saying work had ceased after a show down between contracted tree loppers and protesters. Three of the trees had been removed before work stopped. A letter to editor of the Daily Telegraph on the same day suggests that there is a ‘whisper that is gaining momentum’ (i.e. unsubstantiated rumour) that the tree removals are to allow widening of Hospital Road and to construct another building for politicians. The letter writer asks Bob Carr to comment.

Radio coverage45 that day included quotes by Clover Moore saying the actions of the Botanic Gardens were shameful and that the Minister for the Environment should respond to the ‘community outrage’ and stop the work immediately. In an interview with Alan Jones on 2GB, Clover Moore calls for the Premier to back up his statement that he wanted to work with her by supporting Moore’s

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opposition to the tree removal. She describes the tree removal plan as a massacre. Ashley Hall from Angela Catterns’ Breakfast Show on 702ABC reports from out in the Domain saying that the Lord Mayor and Councillor Harris want to protect the trees. The Lord Mayor appears variously across the media on that and the following day.46 On 2UE, Clover Moore tells John Stanley the Botanic Gardens should be ‘protectors of trees’ and that this is an emotional issue. On Channel 9 News that evening there are quotes from Clover Moore saying the Botanic Gardens ‘has dismally failed’ and me saying the ‘Trust had done the right thing’.

The Sydney Morning Herald47 runs a comparison of views between Judy Fakes, horticultural expert and teacher as well as member of our Trust Committee, and Sir Mark Hartley, tree consultant. By now the arguments are well rehearsed, and you can read elsewhere in this book my perception of Sir Mark. In a Daily Telegraph mini-debate48 Clover Moore is set against the Acting Minister for the Environment, Carmel Tebutt. Moore talks about community opposition, conflicting expert advice and lack of consultation. For the Lord Mayor, it is a subdued contribution. In contrast Minister Tebutt is feisty, saying that the hysteria was drummed up in the Mayor’s absence by radical green activists and that the Lord Mayor is acting with complete disregard for facts and expert opinion. It ends with ‘To put The Domain’s future in the hands of a politician who has already ignored the offer of a briefing and not yet taken the time to read the existing file would be gambling with not only the five sick figs – but every tree in the area’. An opinion piece on the same page49 about another issues – ‘destruction of the ADI site in western Sydney’- takes a shot of inner city conservationists maintaining a ‘vigil atop the clapped-out figs in The Domain’.

Meanwhile, back in the bunker, the Executive Director’s Office, we discuss how to continue work if the protesters remain on site. We get advice from Work Cover which confirms that our approach so far has been good and they confirm our view that work should not proceed while protesters are inside the compounds. The representative we speak to says that normally Police would remove protesters but I note again, we have been told by the police on duty in the Domain they will only do it at our risk. So we have to either clear the site of non-authorised people or erect zones within the compounds where protesters can’t enter, warn them and then decide later how we might get them to leave if they said no. An odd

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situation but I presumed not unprecedented and we plan to give it a try.

Meanwhile, Carmel Tebbutt MP, as Acting Minister for the Environment while Bob Debus is away, writes to the Lord Mayor countering ‘recent claims about trees in the Domain’. She says a meeting with Debus can be arranged when he returns if that is desired. The basic points in that letter50 are that the Council cannot unilaterally apply its Tree Preservation Order to cover Trust lands, that the Council was definitely included in the consultation phase and that the Trust put up signs to explain the plan to the public. On the matter of consultation, the acting Minister says the former Director (Frank Howarth) made several calls to the Council’s General Manager (Greg Maddock) and then sent a formal letter requesting he agree to a representative on the Domain Master Plan Reference Committee. The attendance by the Council is then outlined, in addition to the other attendees. A letter by the Council Area Manager Heritage, Anne Warr, sent on 11 April 2001 is cited, including commendation of the cultural landscape study. The specific tree replacement, says the Acting Minister, was raised in the third Reference Committee meeting and prior to that a consultant’s report recommending tree replacement more generally was circulated. An invitation was sent to the Council (one to Robert Domm the then General Manager and one to Brad Harris, the Director of City Development) to send a representative to a formal briefing on 17 November 2003 about the tree replacement program. None attended and no apologies were received. The Council provided no formal response to the Master Plan prior to its adoption in June 2003. The Acting Minister concludes that ‘Quite frankly, I doubt the Council has a better record on public consultation...and it is really quite silly to suggest that Council was not both a full part of the process and given the opportunity to make inputs at all relevant points’. Just in case the Lord Mayor took the that’s-all-very-well-but-I’m-new line, Acting Minister Tebbutt adds ‘I would also observe that you were personally consulted about the matter last December when a letter to all Members of the House of Assembly was distributed by the Trust through the Office of the Speaker’.

Interesting how quick correspondence can be when you are outraged. On Wednesday, 21 April, the day after Tebbut’s letter was faxed through (this was the preferred method of speedy correspondence at that time), the Lord Mayor responds,51 rebutting

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rebuttals. She says the Council will publish its resolution to amend the existing Tree Preservation Order (to include the Trust) and will look into whether an Environmental Impact Statement should have been prepared for the tree replacement work. In regard to consultation, the Lord Mayor says that many of the briefings and meetings did not address the proposed removal of trees and she can find no record of the Council being invited to such meetings. Consultation about the Domain Masterplan was with ‘carefully selected government representatives’ and ‘in a controlled environment’ which the Lord Mayor felt prevented an opportunity for alternative views. Our public exhibition of the draft Masterplan was, in her eyes, inadequate. The Lord Mayor’s office could find no evidence of any Council staff being invited to, or attending, briefings on the actual tree replacement plan and she provides a transcript of a letter General Manager Robert Domm wrote to the Minister for the Environment saying he had never been involved in any consultancy group associated with the Trust and can find no record that he was consulted in regard to the tree replacement program. The Lord Mayor outlines the meeting that Councillors John McInerney and Shayne Mallard had with me on 13 April saying that ‘we revealed’ during that meeting that some trees were being removed because they did not fit with the Trust’s overall plan (i.e. we explained that the replacement plan was to remove declining trees and to restore the landscape). She says we would have fenced off the trees under question if they were really at risk of causing damage to visitors and it was clear we had other motives. The letter finishes with a request that the Trust complies with the Tree Preservation Order amended on 19 April and that no further action be taken in regard to these trees. The Lord Mayor sought an undertaking by close of business that day or ‘Council [will] seek urgent interlocutory orders restraining any action causing removal of the subject trees’.

There is no tree removal taking place in the Domain so nothing to stop that day and no need, in my view, to respond to the Council elaborating on this. Clinton Maynard, a reporter from 2UE, speaks to Steve Price just before the 4 pm news saying that the Lord Mayor is prepared to take legal action ‘to keep the Moreton Bay figs in the Domain’. According to Maynard, the Lord Mayor has given Carmel Tebbutt until five o’clock that day to ‘give the trees a stay of execution or face legal action’. It’s reported that protesters are still in the Domain. This story runs in 4 pm news broadcasts on various radio stations, with 2GB including a grab from the Lord Mayor

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saying that ‘if the Trust wishes to proceed they have to submit a proposal to Sydney City Council’. The Government response, on our behalf, running in the next hourly bulletin, is that we won’t cave in to threats of legal action. The Office of Bob Debus says the Lord Mayor will fail in her legal action and there are no plans to stop removal of the trees. In the 6 pm radio bulletins the Council says it will wait until tomorrow before taking action. On Channel 10 television news that night Clover Moore is reported as demanding ‘the NSW Government leave the endangered [sic.] Moreton Bay figs in the Domain alone’.

Moore acts to end chainsaw massacre

Wednesday (21 April) morning starts52 with Alan Jones announcing from the new Bunnings Warehouse in Bankstown, where his morning show is doing an outdoors broadcast, that the Lord Mayor ‘will launch...action against the Botanic Gardens Trust to prevent the “massacre” of Moreton Bay figs in the Domain’. Jones adds helpfully that the Lord Mayor is a ‘tough nut’. Mike Carlton on 2UE weighs in saying the ‘NSW Government has handled the removal of the trees in the Domain very badly and it is unacceptable that the public has been largely left in the dark about the issue’. Sally Loane, on 702ABC radio provides my views and those of Bob Debus on the matter and then interviews the Lord Mayor, pushing her on the cost of such legal action. The Lord Mayor says she doesn’t know how much it will cost but refers to a battle she led to stop a McDonalds restaurant being built in Centennial Park. The 10 am news on 702AM reports that lawyers representing the Council have sought an injunction to ‘prevent the felling of five historic trees’. They did and the advice of our departmental lawyers is to halt work in the Domain until this matter is resolved. The midday news on 702AM includes a report that the Council has lodged an appeal with the NSW Land and Environment Court, and accordingly the NSW Government has backed down from cutting down the five Moreton Bay figs until the Court makes its decision. What wasn’t as well publicised at the time was that the Court hearing would be about whether the decision to remove the trees was legal, not the merit of the decision. Personally I would have been happy to defend both positions.

I drafted up a Media Release saying that I will start planting some of the new trees in the place where the trees had been removed, but on further advice (see below) I don’t go ahead with the release, or the

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action. Instead my public comment is that while it is right that anyone can have the opportunity to be heard in Court this is a frustrating development and the delays will not be in the best interests of the people of Sydney now, or in the future. We will have to delay planting the new avenue I say. I do add that I personally favoured planting some of the new trees, but in the end we decided against this. I kept calm and reasonable, while inside I was fuming and frustrated. I still had no doubt I was doing the right thing and that it would eventually happen, but further delays meant more wasted time, money and potential problems. It wasn’t ideal, to say the least.

There were four main adversaries: the State Opposition (led by Mark Richardson), the Greens (led by Ian Cohen but with local council voices from the Domain), Alan Jones running his own personal campaign, and the City of Sydney Council (Clover Moore with varying levels of support from her fellow councillors). On this day when the Council ‘took us to Court’, the Opposition decided to take the tack that our tree evaluation system was outdated and the life of trees couldn’t be predicted with any accuracy – they might live for another hundred years, they said. Well they may. The Safe Useful Life Expectancy (SULE) method is a predictive tool, and a way to measure risk. It was widely used and accepted around Sydney so I wasn’t concerned that we were somehow out of step. Our decisions were also reviewed by our expert committee and endorsed – in fact some experts told me our assessments were too conservative and we should remove more trees sooner.

I share Thursday (22 April) morning’s breakfast with confirmation of the news53 that Clover Moore will seek legal action to stop us removing the trees in the Domain and will make it a requirement that the Gardens submit all proposals to the Council as a development application. The State Government, as I knew, disputed the advice that the Council had received suggesting it had any jurisdiction at all over the Botanic Gardens and Domain. Still there was some good news. It was also during this week that some of our more conservative supporters realised they needed to make their voices heard and there were letters in the Sydney Morning Herald54 telling the Lord Mayor to stay out of the Botanic Gardens, pointing out we were the experts in tree care and planning and that we ‘have a long-term plan for these trees instead of a shot-term play-to-the-gallery objective’’. On 702AM that day (Wednesday) James

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Valentine talks to ‘Danny’ from International Council of Consulting Arboriculturalists who supports our tree replacement plan. Meanwhile Clover Moore pens and item headed ‘Domain Tree Destruction Condemned’ in her e-newsletter to residents.

Two weeks after John Huxley’s article in the Sydney Morning Herald announced the start of the tree removals, newspapers and radio stations pronounced the program prematurely ended. The Council, said some, had had a minor victory.55 Alan Jones on 2GB says the massacre will stop thanks to the Council action and ‘good on’ the Lord Mayor. A journalist ‘Pearson’, on the Gran Goldman show on 2SM radio, says the decision to cut down the trees was ‘fraught with inane logic’ (I’ll detail this allegedly inane logic later in the book). The Daily Telegraph reported the action56 as a victory for people power, adding that ‘the Domain’s historic Moreton Bay figs have won a month-long “stay of execution””, borrowing this phrase from a Lord Mayoral statement who added for good measure that ‘In the past the Trust could be entrusted to look after the public domain. Trusts cannot now be trusted, it seems’. In an another edition of the paper we have Elinor Wrobel (age 71) thanking Ms Moore for her intervention – a week earlier Ms Wrobel was angry that Moore was nowhere to be seen but after the Lord Mayor ‘went on a tour of The Domain’ apparently all was forgiven. I am quoted as saying I am frustrated by the court action, maintaining that I had been open about the tree plan: ‘This late development is frustrating given the years of research, planning and public consultation that proceeded Trust’s approval of The Domain master plan’. I said 12 new trees would be planted next week where the three trees had been removed already. In a measured short paragraph,57 the Sydney Morning Herald says the figs earmarked for removal have been given ‘a last minute reprieve’.

That day (Friday, 23 April) I receive a letter58 from the Lord Mayor asking me for various undertakings prior to the Court case, including a question about whether I would ‘facilitate care being provided by concerned members of the public’ if we are unable or unwilling to deal with the damaged and exposed roots of the trees earmarked for removal. The Lord Mayor also asks for barricades to be erected and warns me against ‘savagely lop[ping] the trees, resulting in “death by stealth”’. Departmental lawyer, Sue Mahony, and newly appointed QC John Griffiths draft a letter to the Lord Mayor’s legal team, setting up arrangements to avoid the Council micro-managing the

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Gardens in the lead up to the hearing. The letter is sent later on 23 April. Sue also advises me that there are certain undertakings we were obliged to make to the Court, including no doing anything that would further the removal of the remaining earmarked trees. The penalty for breaking this undertaking, Sue advised me, included imprisonment as well as extreme embarrassment for the Minister. We could go back to the Court within 24 hours if we were unsure about what we could and couldn’t do. It appears we could start tree planting within the compound, if desired, as well as installing irrigation pipes. However the strong advice from our Counsel, Sue’s advice notwithstanding, was to not start planting new trees, so we don’t. Emergency pruning is allowed and supported by all, but only to avert any imminent danger from falling branches. The Council gives an undertaking to pay any losses we might incur as a result of stopping the work if they lose the case – potentially covering us, at least financially, if a branch fell during this time. Donna Campbell, head of legal in the Department, headed off for 10 weeks holiday at this point but left us in the capable hands of Sue Mahony, reporting to Steve Garret (Director of Litigation). Donna’s parting line in her farewell email was ‘I hope by the time I get back that the Council is paying our legal costs...’

Bernard Chapman, National President of the Australian Institute of Horticulture, sends a letter to the Sydney Morning Herald starting with the line ‘Although the subject of euthanasia for humans is still fraught with controversy...’ Leading to the argument that the trees in the Domain should be allowed to die with dignity. I’m not sure if the letter was published but Bernard, wrote to us saying he apologised for sending it through now after Tim Jackson, President of the Friends, has advised him this wasn’t the time to stir up the argument (i.e. while in Court). In fact our Counsel advised strongly against generating more media interest ‘since judges watch the media as well and it may antagonise them’. John Griffith did acknowledge there may be cases where we have to make comment and in these circumstances he recommended restraint. Comfortingly, he told Sue Mahony he had heard me on Angela Catterns’ Breakfast Show on 702AM ABC radio the day before and described my performance as ‘perfect’.

The weekend (24 and 25 April), along with the court case, provide some respite. Taking stock on the second Saturday morning after Easter, there are five trees removed and six (including five Moreton

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Bay figs) remaining. I calculate I’ve done about half a dozen television news grabs, about the same number of radio interviews, lots more newspaper updates and a steady stream of media statements. In hindsight this doesn’t seem that many given the flurry of activity over a relatively long media cycle. In the Sydney Morning Herald’s Sauce column there is an item headed ‘tree-hugging Packer’59 which says the protesters in the Domain ‘may have been few in number but they had some powerful friends’. Firstly Clover Moore and her ‘unanimous councillors’ winning a reprieve while they take us to Court, followed by Ros Packer thanking Moore yesterday at a Sydney Festival meeting for saving the figs and noting that she and Kerry had thought about going down and sitting under the trees themselves. The Packer family re-enter the story later, with a truckload of compost.

The next week we begin preparing for the Court Case. After receipt on Tuesday (27 April) of the Council’s Notice to Produce, we have 17 items to track down. We also have statements to prepare and a chronicle of everything that has happened in regard to the tree replacement program, to demonstrate that we acted legally and reasonably. Just after 6.30 am on the same day, Alan Jones uses one of his breakfast editorials60 to present a slightly softer case on the Domain trees. He began by saying that he had never found Bob Debus to be untruthful. Jones says he has spoken to a ‘very senior figure in the world of landscape architecture’ who he says he won’t name. He says the problem started with a ‘crony from the RTA’ was appointed head of the Royal Botanic Gardens. This would be my predecessor and friend, Frank Howarth, who worked with the RTA before he became director. This appointment, said Jones citing again the very senior figure in the world of landscape architecture, broke the long tradition of appointing an eminent botanist. It was this director who put in place ‘hopeless plans’ such as the one to replace the Hospital Road trees. Jones was told that the ‘the new Botanic Gardens bloke, this poor coot that’s got to carry the can – Tom Entwisle – is a good bloke but he’s been left to carry all this rubbish’. Jones ends by saying he’s told it’s about getting extra event space in the Domain.

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3. Domain’s living dead await chop61 Many figs begin life in the nook between branches, an often nutrient-rich cranny for a germinating seed. They then send roots down the tree trunk to become self-supporting and in time effectively displace the host plant. The ‘strangler habit’’ is something found almost exclusively in the figs. It’s a clever way to get established in difficult surroundings, particularly in a crowded rainforest.

Botanical parkland

Even before I was appointed Executive Director of Sydney’s Royal Botanic Gardens and Domain Trust, I liked to call the Domain a botanical parkland. This summed it up for me. Here was the place intimately connected to the Royal Botanic Garden but not quite the same. It wasn’t a park in the usual council sense, and it wasn’t a full on botanic garden. The trees growing in the Domain were part of the State’s botanical collection –– with records kept of their nomenclature and source – but the plantings were more for amenity and shade, than science and conservation. While much of the turf consisted of carefully selected grass species some areas were recarpeted with rolls of more pedestrian species after the Sydney Festival. And although the landscape was quite rightly protected as a part of a site of great heritage significance it was also managed as a picnicking area, an events space and a place for debate and protest (opposite the Art Gallery is Sydney’s Speaker’s Corner). Much of its charm and function derive from the avenues of Moreton Bay figs.

They weren’t always there though, even after the land had been comprehensively cleared of its natural harbourside forest. In the 1850s, a row of oaks was planted on either side of what is now Hospital Road, consistent I understand with Governor Macquarie’s original design62 for the Domain. ‘Oak Tree Road’ was still flanked by a mature avenue of Quercus robur around 1871 although Charles Moore’s passion for Morton Bay figs was transforming the Domain and Ficus macrophylla would soon be planted to replace the oaks. It’s worth remembering that an oak tree avenue would be just as authentic should we want to recreate some period reconstruction in the Domain. In 2004, though, oaks were few and far between.

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There were 536 fig trees (Ficus) in the Royal Botanic Gardens and Domain, including 352 in the Domain alone of which 151 were Moreton Bay figs (Ficus macrophylla). There were another nine Moreton Bay figs inside the botanic garden proper bringing the total number of this species on Trust lands to 160. The removal and replacement of ageing Moreton Bay figs, and other trees, seemed a necessary part of managing this botanical parkland so I was pleased as the new Director in April 2004 to be doing the right thing. The planning went back way before my time, and as Alan Jones had broadcast, my predecessor Frank Howarth had done all the ground work. He’d done this well. I was happy we had thought through the options, consulted with the right people and made decisions based on all the available evidence. This was no spur of the moment decision. It was the culmination of years of planning, and preparing affidavits in the first few weeks of May gave us all a chance to review that process and to remind ourselves why we were on the side of the good and virtuous.

The starting point for the tree replacement program, and my own personal affidavit being prepared for the Court hearing, was May 1999. That was when the Royal Botanic Gardens and Domain Trust decided it needed a Domain Site Master Plan to help weigh up competing uses and aspirations for a botanical parkland. A Reference Committee63 was established with representatives of the Trust as well as experts from outside the organisation.

Acceptances only

During the preparation of the Domain Site Master Plan, an ‘external stakeholders focus group consultation meeting’ was held on 9 February 2000. Attendees included Alan Cadogan, Kathleen Ng and Stephen Nicholls of City of Sydney, as well as representatives from St Marys Cathedral College, Library of NSW, NSW Parliament (Stafford Bennet), Land Titles Office, Friends of RBG, Pavilion on the Park, Historic Houses Trust, Hyde Park Barracks, Sydney Hospital, Sydney Foreshore Federation Trust, Bicycle Institute of NSW, Bus and Coach Association, Corporate Cup, Sporting Spectrum, Sydney Ferries, NSW Heritage Office (Stuart Read) and National Trust of Australia (Stephen Davies). Greg Maddocks from City of Sydney was invited and did not attend, as were representatives of various other stakeholder groups.

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A smaller group met a year later, on 19 May 2000, but this time Lucy Richards and Kathleen Ng attended from the City of Sydney and Anne Flanagan from the Art Gallery NSW. The others were Richard Clough, the same three Gardens staff and Bruce Robinson instead of Ros Andrews as the Trustee representative. On 26 February 2001 the Board approved the Draft Master Plan for circulation to the Reference Committee, after a presentation by consultant Ingrid Mather and Gardens’ staff member Ian Innes. At the third and final meeting of the Reference Committee, on 21 March 2001, the attendees were Ian Kelly, Peter Mould (Assistant NSW Government Architect), Richard Clough, David Churches, Anne Flanagan, Anne Warr (City of Sydney), Ingrid Mather (consultant) and from the Gardens, Frank Howarth, Mark Savio, Bruce Rann, Ian Innes and Ros Andrews. Apologies were received from Lucy Richards and Peter Watts. During the review process comments were received by the City of Sydney Council, the New South Wales Heritage Officer, Sydney Festival and the Australian Club. All detail, I know, but detail required by the Court and required to correct the misinformation presented by the City of Sydney. A point we made clear in our affidavit for the hearing was that not only were the City of Sydney invited to be involved in this process, they were involved. So they were aware of our overall plans for the Domain and as part of that, the need to remove and replace ageing trees.

While the Domain Master Plan was in preparation, in January 2001, a woman was hit by a fig tree branch during a Sydney Festival concert in the Domain. She claimed an amount of around $19,000 compensation from the Gardens as a result of this incident. From that spring onwards the Gardens barricaded trees in the Domain at various times for public safety.

The Board of the Royal Botanic Gardens and Domain Trust met on 27 August 2001 to consider a discussion paper for the public exhibition of the Domain Master Plan. I was Director of Plant Sciences, not Executive Director, at the time but I attended this meeting. The big issue, as I recall, was the whether to include mention of ‘burying’ the Cahill Expressway. I think every Director of the Gardens since Robert Anderson (presiding from 1945 to 1964, when the Expressway was built) has wanted to reconnect the Domain with the Royal Botanic Gardens. It has been mooted from time to time and I was certainly an advocate for it – whether through removing the expressway, lowering it further, or covering it over. In

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the end, this concept was removed from the public document. It’s time hadn’t come.

In January 2002, arborist Robert Galbraith (of Galbraith and Associates) spent a week in the Royal Botanic Garden and Domain while staff pruned trees to reduce the chance of the summer branch drop, particularly common in Moreton Bay figs. Watching while limbs were being removed gave Galbraith greater insight into the health of these particular trees. Galbraith was engaged to provide an independent assessment of tree health and safety, which he provided in April of that year. Before then though, on 25 February, the Board was presented with a paper from management recommending the establishment of a Gardens and Horticultural Committee, to include Trustees, specialist and management staff and external experts. At the same meeting the Board considered a paper on the management of aging trees in the Domain. The new committee was approved at the Board’s August meeting.

Preparation of the Domain Master Plan continued, with the consultants sending a draft to the Gardens in July, and approval sought from the Minister in August for it to be exhibited publicly. The plan64 included three volumes: The Basis for Management (1), The Cultural Landscape Study (2) and Support Reports and Physical Inventory (3). Volume 1 establishes the rationale and process for replacing trees in the Domain. There is a clear intent articulated to ‘implement an extensive tree planting program...as over-mature and senescent trees die or are removed’. One of the key issues identified was ‘incremental loss and decline of critical components of the heritage landscape’ and a tree replacement program is one of the actions proposed to maintain the landscape character of the Domain, addressing particularly the fragmentation of the important design elements and the maintenance and replacement of ‘ageing tree stock’’.

Specific recommendations are included in volume 2, including ‘conserve and maintain...Hospital Road along with its remnant Fig Tree avenue and individual plantings’, and ‘improve the legibility of the edges and entrances to The Domain through bold boundary plantings’. A basic assumption in the report, and in retrospect one not clearly enough articulated, is that in general trees come and go but the landscape is of utmost importance. There are some mentions of replacing mature trees with similar species so as ‘to maintain the

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basic landscape character’ but also mention of the fig psillid problem with Moreton Bay figs (one of the reasons for not planting as many of this species in future). There is a very useful reminder that older plantings associated with significant landscape elements are highly significant and should be conserved but no discussion of how the natural life cycle, safety and landscape contribution of an individual tree should be taken into consideration.

Safe useful life

In September most of the trees in the Royal Botanic Gardens and Domain were assessed to determine their Safe and Useful Life Expectancy (SULE), to help predict the state of the tree collection in 5,10, 20 and 40 years. The trees were ranked by the number of years estimated until they would have to be removed. The categories were long (40+ years), medium (15-40 years), short (5-15 years) and remove (requiring removal within 5 years). A list of the trees that were ranked “short” and “remove” included those about to become the subject of the Land and Environment Court hearing.

Late September, Bruce Rann, David Bidwell and Ian Innes made a presentation to a meeting of the Board regarding proposals for tree management in the Domain. The Board requested the proposals be sent to the approved, but yet to be constituted, ‘Botanic Gardens Committee’ for review and recommendations. The new Committee received the relevant document65 in December 2002.

On 12 December 2002, the Botanic Gardens Committee held its inaugural meeting with Trustee Ros Andrews as the chair. Other ‘in-house’ members were Michael Samaras (another Trustee), Frank Howarth (as Director and Chief Executive), Alistair Hay (as Director Botanic Gardens and Public Programs). The externals were: Richard Clough, retired Professor of Landscape Architecture at the University of New South Wales; Jeremy Winer, Director of Marsupial Landscapes; Judy Fakes, Senior Lecturer at Ryde TAFE; Simon Leake, Director of Environmental and Soil Laboratory Pty Ltd; Robin Powell, horticultural journalist; and Wayne Tunnicliffe, Curator of Contemporary Art at the Art Gallery of New South Wales. By the time of the hearing in 2004, Robin Powell had been replaced by Peter Martin, Professor at University of Sydney Plant Breeding Institute, and Janelle Hatherly, head of Public Programs, had joined the committee.

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The first matter to be put before the newly formed Botanic Gardens Committee was the document now called ‘Tree Replacement Plan for the Domain’. Bruce Rann and Ian Innes spoke to the paper and the committee supported the proposal to remove and replant as a single block the trees along Hospital Road. A critical, and sensible, decision. It was agreed a media strategy should be developed, to make sure the decision and reasons for the decision were well understood, and appreciated. The committee also recommended the time between tree removal and replacement be minimal to avoid leaving the area barren for too long, and to get the next arboreal generation going. After that meeting (noted in an Addendum to the minutes)66 the staff from the Trust met with the NSW Roads and Traffic Authority about the removal of Moreton Bay figs in the centre of the Cahill Expressway. The conditions for that work include provision for the RTA to fund some of the tree replacement work as well as the proposed noise walls and landscaping near them. The Trust agreed to work with the RTA on suitable replacement trees in the centre of the Cahill Expressway.

The Botanic Gardens Committee did exactly what it was formed to do, to consider on behalf of the Board (and to then advise the Board on) proposals relating to major strategic matters in the running of the Botanic Gardens and the Domain, including new thematic plans for the gardens (i.e. new directions for the development and interpretation of garden displays at the whole garden level.) The individuals who were invited to become members were selected for their particular expertise in relation to soil, arboriculture, sustainability, horticultural media, exhibitions and interpretation and heritage landscape.

The committee is advisory to the Board so the decisions from that meeting were submitted to the next (24 February 2003) Board meeting for noting, which they were. There being no dissent or concerns raised at that meeting, the committee decisions were deemed approved. In the meantime, the Domain Master Plan was put out for public exhibition on 12 February 2003, with comments welcomed until 25 April 2003. The exhibition included: two sets of nine A0 size full colour display boards located in the Phillip Precinct; hard copies of the three-volume Master Plan at the Gardens’ Reception for perusal; full text of the Master Plan and illustrations available on the Gardens’ website.

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1000 flyers and 200 letters

On 5 March 2003, the Trust posted letters and flyers advising interesting parties of the public exhibition of the draft Master Plan. A thousand flyers were distributed at an outdoor display site near the crossing of the Central Avenue pathway and the connecting path to the Art Gallery of NSW (this location is one of the major pedestrian routes through the Domain). Two hundred letters with questionnaires (including a general question about felling trees) were sent to local residents, including of course the City of Sydney Council. As of 25 April 2003, feedback from the public exhibition of the draft Master Plan consisted of 52 completed questionnaires, five written submissions, and four submissions made by telephone. We would have preferred more community contributions but that’s often the way with these processes.

At its meeting in April 2003, the Board viewed the consent condition for the Cross City Tunnel, including the noise wall, support for tree replacement and advice on new plantings in the Eastern Distributor median strip. They saw the actions proposed for the Hospital Tree replacement plan – the trees to be removed and the clumped-avenue replacement. They also received and approved the Terms of Reference for the Botanic Gardens Committee. At their June meeting the Board considered feedback from publicly exhibiting the Domain Master Plan, not requiring any major changes to that document which was summarily posted to the Gardens website in July.

On Sunday night, 13 July 2003,67 the NSW Roads and Traffic Authority chopped down 24 Moreton Bay figs from the middle of the Cahill Expressway where it severs the Domain from the Royal Botanic Gardens. Eleven of the trees were relatively young, and possibly suitable for transplanting if you were that way inclined (but there are plenty of Moreton Bay figs around that these were not spectacular examples by any means), and thirteen were more mature, from 80 to 150 years old. My predecessor as Director of the Botanic Gardens, Frank Howarth, said he deeply regretted their removal but made it clear we had been consulted. I don’t know if he knew the precise timing of the tree removal but to most of Sydney it came as surprise – the timing and the fact. The Roads and Traffic Authority said publicly that the Royal Botanic Gardens had advised them many of the trees were in poor health or reaching the end of their lives. They also said than new trees were to be planted in the

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median strip, as well as elsewhere in the Domain and as a further part of the expressway works the Botanic Gardens was to have a noise wall constructed along both sides of the expressway. Growing in the middle of an expressway would not have been particularly inductive to longevity or good health although I don’t think that is quite what Leigh Martin from the Total Environment Centre meant when he remarked dryly that the greatest threat to the health of the trees was their location. There was criticism of the apparent stealth in the way the trees were removed, in the middle of the night and with no community consultation68 (the RTA argued night was the safest time to remove trees in the middle of an expressway) and the fact that relocation was not considered for the younger trees, something that was done in 1996 for thirteen older fig trees at Homebush Bay. While the Botanic Gardens agreed that ‘some of the trees were ailing’, it said in a statement at the time that they would not have been removed were it not for the tunnel project. There were angry letters and phone calls to the paper for a few days but public interest faded quickly: the trees were gone.

Our planning to remove and replace trees beside Hospital Road, as part of a larger ‘renewal’ program for the Domain, continued. In July Bruce Rann and David Bidwell presented a paper on the Domain Tree Replacement Program to the Parks & Leisure Australia Conference in Sydney titled ‘Urban Trees – our Urban Urgency’. This paper outlined the need to renew heritage landscapes and specifically mentioned the Domain and Hospital Road as areas that needed urgent attention. In the context of what came later I should point out that employees of the City of Sydney attended this conference.

You may be picking up a thread here amid the detail. A point I made repeatedly in 2004 was that not only was there plenty of public consultation and information, but the City of Sydney were quite aware of our plans.

The minutes of the July Board meeting note the removal of the trees in the Cahill expressway but there was no further discussion of the Domain tree replacement program. At the August meeting an ‘interim report’ on the tree replacement program was presented, which the Board noted. Trustee Ros Andrews (Chair of the Botanic Gardens Committee) noted Bruce Rann and David Bidwell’s conference presentation. I didn’t attend these Board meetings but as

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I reported later to the Court, based on my knowledge of the procedures at the Board meetings, and my subsequent conversations with Alistair Hay (who did), I could state with some confidence the proposal put before the Board was adopted. If the proposal had not been adopted then the minutes would have reflected that position and the proposal would not have proceeded. Soon after (16 September 2003) a memorandum concerning the Hospital Road Tree Replacement Communication Strategy was sent by the Trust to the Minister’s Office. Clearly it was full steam ahead.

On 23 September 2003, the Department of Environment and Conservation was formed, Frank Howarth became Executive Director of Science in that Department, the staff of the Royal Botanic Gardens and Domain Trust became employees of the Department (the governance of the Trust and its programs remained with the Board but with shared responsibility by the new Director General Lisa Corbyn) and I became the Acting Executive Director of the Botanic Gardens. I was now responsible for the tree replacement program, with the support of the Board and the Director General. It wasn’t going to be stroll in the park clearly but I felt it to be an important and necessary duty. In October I sent a letter to each member of the Friends of the Gardens explaining what was going to happen in the Domain and why the trees had to be replaced. I also sent 34 to key stakeholders, including the Press Secretary of the Lord Mayor of the City of Sydney, advising that the tree replacement program would begin in Autumn 2004, and 48 letters inviting a broader group of stakeholders, including the General Manager and the Director of City Development and Projects for the City of Sydney, to a briefing on the program. The stakeholder briefing was held on 17 November 2003, in the Maiden Theatre at the Royal Botanic Gardens. It outlined in great detail the tree replacement program for Hospital Road. The City of Sydney did not sent a representative.

At their November meeting, the Board endorsed the Hospital Road Tree Replacement Communication Strategy, so in December large signs were erected on three monoliths in the Domain. Under the heading of ‘Renewing the Domain’s Great Treescapes’[or ‘Renewing the Domain’s Tree Landscape’ in the version I have on file] are plans of the Hospital Road area showing trees to be retained and removed, and the proposed plantings. The same images were available on the Trust website. Speaking notes were provided for the Minister for the Environment, should the matter come up in parliament. It began

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‘Iconic plantings of grand trees in the Domain were made in the mid-nineteenth century. Many of these old trees, especially the figs, have reached the end of their safe, useful lives and will soon become a hazard to visitors and event patrons. It goes on to talk about the Master Plan setting guiding principles, the Tree Replacement Program that needs to begin in 2004 and continue for ‘a number of years’. It explains that the Trust will start with the avenue along Hospital Road and that it is best to do this as a block rather than ‘patch up, casually, one tree at a time’.

The plan

And so I outlined the plan.69 Of the more than 3,000 heritage trees in the Domain and Royal Botanic Gardens, including more than 400 figs, some are more than 100 years old and becoming a safety hazard for the 7 million or so people who visit annually. The Domain Master Plan sets out the broad parameters to maintain and renew the parkland over the next ten years, including the need for a tree replacement plan. Based on arborist assessment by our staff and independent arborist Rob Galbraith, some of the trees in the poorest health are remnants of the old Moreton Bay fig avenue along Hospital Road. The first stage of the Tree Replacement Program, commencing in April 2004, will be to replace trees in this area in sections rather than patching up on an ad hoc basis. This approach will result in a more attractive and botanical safer parkland. If I didn’t do this, I stressed, I would be shirking my responsibilities and leaving a mess for others to deal with later if not during my own watch. The plan.

The 14 trees slated for removal were one Port Jackson Fig (Ficus rubiginosa), one African Olive (Olea europaea), one Tallowwood (Eucalyptus microcorys), one Swamp Mahogany (Eucalyptus robusta), one Camphor Laurel (Cinnamomum camphora), one small plum pine (Podocarpus elatus), one small plane tree (Platanus orientalis ‘Digitata’), one Norfolk Island Pine (Araucaria heterophylla) and six Moreton Bay figs (Ficus macrophylla forma macrophylla; including the Tree of Truth). There would be 41 trees planted in their place, in small groups of three rather than a single avenue: Norfolk Island Pines (Araucaria cunninghamia) native to Queensland and northern New South Wales, Cotton Palms (Washingtonia robusta) native to southern USA and Mexico, and White Figs (Ficus virens) native to northern Australia and

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northward to India. The White Fig is briefly deciduous making it less susceptible to psillid attack which cases loss of vigour in Moreton Bay figs.

Early December in 2003 I sent a letter to the Speaker of Legislative Assembly, President of the Legislative Council, the Manager of Building Services, and all members of NSW State Parliament concerning the tree replacement program. As I reminded the Councillors and media in 2004, the soon-to-be Lord Mayor of the City of Sydney was sent a letter as a Member of State Parliament. The letter70 states clearly that we have a long-term plan for the Domain and that certain trees need to be removed and replaced. In the same letter I mention walls that will be built along the Cahill Expressway to reduced traffic noise and visual impact into the Domain.

Around this time we receive constructive feedback from Sydney Festival, and our own events staff, about the removal and replacement of particular trees and some fine tuning they think would be helpful to running events. We make some small concessions in precise placement of new trees but none to the overall plan. The Sydney Festival Guide released in early January includes an advertisement for our tree replacement program, as did the Opera in the Domain Guide later in the month. We were proud as well as keen to make sure it didn’t come as a surprise to the people who enjoyed the Domain.

We decide it is time to hit the mainstream media and on Friday 9 January, we issue a Media Release with the title “Ageing Trees a Safety Concern”. The story gets picked up by television news on channels 7, 9 and 10 and radio stations 2UE and 702ABC. The following day there is a front page article in The Age and a page 9 large-picture item in the Daily Telegraph, with letters to the editor following in the Telegraph for the next few days. 2GB ran a story the following Saturday (17 January) and two weeks later (28 January), the Wentworth Courier.

John Huxley wrote The Age piece,71 leading with a comparison between the ‘birdsong’ and ‘bat squeak’ currently heard in the Domain, and the ‘high-pitched whine of chainsaws, the deep-throated rumble of excavators and, almost inevitably, wails of protest’ soon to come. Alistair Hay, acting Executive Director of the Botanic Gardens while I was on away on a holiday to Mount Buffalo

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(and contemplating my future at the Gardens as the directorship for the Australian Museum was decided in favour of Frank Howarth, leaving a permanent vacancy at the head of the Botanic Gardens), said it was going to be a painful and for a few weeks at least, ugly. Alistair described at least some of the trees to be removed as the ‘living dead’, and part of a ‘gap-toothed row of rotten trees’. He made the important point that we need to not be selfish and to make decisions for the long-term. The Opposition Spokesman on the Environment, apparently Michael Richardson, called the loss of trees a ‘massacre’, preempting his attack a few months later, calling for a more gradual and sensitive approach to their replacement. He put out a media release72 saying the trees were ‘as much a part of our heritage as the Harbour Bridge or the Opera House’, valuing them at $4 million. Not a single person had been injured by a limb falling from Moreton Bay fig in the Domain in the past 180 years says Richardson, going on to quote ‘textbooks’ and how much better they are than the so-called widowmakers, the Sydney Blue Gum. Looking back I can see the (mis)arguments being rehearsed. Alistair accepted that with intensive care, one or two of the trees could be kept for a few more years. However he said it was time to deal with the landscape as a whole and not take piecemeal action. While he was as saddened as anyone about losing the trees he said it was also an exciting time, a time for celebration, and plans were in place for a grand opening with federal and state politicians, popular gardening celebrities and lots of children (as it turned out we had one politician, a moderate number of children and lots of media at the eventual opening on 30 August, a little later than we had planned).

Despite including the shrill comment from the Opposition Spokesman, the Herald article set out the plan clearly and with all the arguments well expressed. It noted that we had written to ‘politicians and other interested parties’ and it was on page one of the paper. The Daily Telegraph story was embedded a little deeper within that paper and had less of the background to the plan – the only argument run was that the trees might drop branches so we had to remove them. This oversimplified the debate but even that doesn’t excuse the argument proffered again by Michael Richardson that because ‘there has been no one injured as a consequence of a limb falling from a Moreton Bay fig in the Domain in 180 years’ these trees should not be removed. Apart from not being true, it’s not the point. ‘I don’t think it [limb fall] is likely to start now’ he added sagely. What wasn’t canvassed in this article was a rational approach

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to risk management (i.e. we don’t wait for a death or injury before acting) and the long-term and landscape approach being taken in this plan. If the final vox pop quote at the end of the article – ‘If you chop them down, people aren’t going to come her to sit on the grass’ – doesn’t sum up the depth of the analysis then the call for correspondence ‘Should the Domain’s Moreton Bay figs be saved?’ put the cards clearly on the table.

In the next few days letter writers included Councillor Shayne Mallard from the City of Sydney council. Councillor Mallard was outraged and wanted us to ‘manage a program of replacement’, which interestingly is what we thought we were doing. Mallard also noted that ‘mid last year not a finger was lifted [by the Botanic Gardens] to stop the midnight axing of 24 historical figs in the traffic island between the Domain and Botanic Garden’. Another version of the same letter is published the next day in The Wentworth Courier, this time making mention of Labour’s candidate for Lord Mayor of Sydney (Shayne Mallard is a member of the Liberal party). Another letter writer to the Telegraph suggested (in humour I presume) that we may be pandering to the ‘dark greens’ who regard all non-native vegetation as weeds (of course the Moreton Bay fig is native to part of Australia not too far away but true, it’s not a local) or else removing an impediment from the view of Parliament House towards the harbour. Andrew Woodhouse (we’ll come back to him later) makes his first foray into the debate calling the impending tree loss replacement shameful and quoting somewhat obtusely a recent judgement of the Land and Environment Court that ‘if one cannot see a landmark, it ceases to be one’. Another letter from the Telegraph is worth quoting in full: ‘Instead of removing these perfectly healthy Moreton Bay figs form the Domain, let us remove the imbecile from the bureaucratic gravy train who made this moronic decision’. At this stage that imbecile was still acting Executive Director, albeit at that very moment on holiday so that his poor deputy was weathering the brewing storm. Alistair Hay writes a strong rebuttal letter to the Telegraph which is published on 15 January. He corrects those letter writers who have wrongly assumed we are removing part or all of what is called Central Avenue in the Domain. In fact we have succeeded in improving the health of trees in this avenue, as Alistair points out. He ends by reminding letter writers and readers of the Telegraph that ‘the Domain will go on forever but individual living trees will not’. A truism but one that apparently needs to be reiterated again and again.

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Speaking of Alistair Hay, he had rung me on Friday (while I was midway between between Gundagai and Holbrook) to say that the planned tree removals in the Domain were about the hit the press. The Opposition Spokesman on the Environment, who at that time I couldn’t name, was holding a press conference under the so-called Tree of Truth - the perhaps ironically named location for television interviews outside Parliament House – one of the trees slated for removal. Alistair said he had done some interviews, including John Huxley, and John Dengate from the Department’s media office did some talk back ‘intervention’ to put our views across. The basic message was that after extensive consultation we have a plan of management which calls for renewing the Domain, and we will remove some trees (13), plant some new ones (41, different species but consistent with original plantings and design of Domain), and this will all be done at once so recreate an avenue rather than a weird succession of different aged trees. I noted in my diary that evening that ‘apparently [the story] was cooling down as we heading into Albury (via an SMS from Alistair) but I expect there is still some life left in the story. Certainly it will rise again like a phoenix once we actually starting sawing the limbs’.

On the Monday, in Castlemaine with my parents, I was woken at 6.30 am by a call from 702AM. I passed it on to Alistair who was apparently unpleasantly awoken a few minutes later. He did a good interview according to Tim Jackson, one of our Board members. Bob Debus rang Alistair to say he was giving a statement, which he did, to the effect that a decision had been made and that was that. The verdict on the weekend story in the Herald was this is was largely positive except, as usual, for the headline and the first para (those pesky subeditors). I was frustrated to be so far away, itching to jump into the fray, but things seemed to be under control back in Sydney. I always like a good argument. I was reminded by my mother that from the age of about four or five I was ready to believe anyone in preference to my parents, or at least to argue the point. I insisted, she said, that one spelt ‘‘horse’ as ‘hors’ because that was the way my teacher had written it up on the board that day. In the case of the Domain trees I of course had the facts on my side, but I was always ready to argue a case. In this case I would get my chance a few months later. It should have been clear from this initial foray, though, who the key players were going to be (well, other than the Lord Mayor who hadn’t yet been voted in) and who we should have been spending more with in the lead up to the tree removals. That

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said, our experience with them all was that reason and reasoning didn’t achieve much.

I returned to work on 19 January, ready for a busy few weeks. The permanent Executive Director position was to be advertised during the week and I was definitely wanted to win that one. I was sure there would be some tidying up to do on the Domain tree mater and I needed to (according to my diary) ‘catch up on various issues like the future of the Domain Car Park and Oil Tanks, Busby’s Bore, Parking review, Sustainable Regions funding for Mount Annan and a string of other surreal and sublime things’.

After the concern raised during January 2004 around the proposed replacement program I asked the Director of Botanical Gardens and Public Programs, Alistair Hay to arrange for Safe Useful Life Expectancy assessments of all the trees slated for removal so that I could be sure of their health and safety status. I got an email from Alistair Hay on 4 February saying that it could be argued the so-called ‘Tree of Truth’ has individual cultural significance, and that it could be carefully managed to keep it safe (there was some concern that the necessary pruning might make it unstable over time). Alistair said that the Parliamentary representative at the Domain Plan consultation meeting (Stafford Mennet, General Manager of Parliament House) had not raised this matter but it had come to light recently that the tree was nicknamed and had a reasonably strong individual significance as the tree under which media briefings had been held for some time. We were never sure if the Tree of Truth was an ironic or symbolic name.

In the first week of February, the 14 trees being considered for removal were assessed in terms of their SULE by the Trust’s Senior Arborist David Bidwell. A life expectancy of 150+ years was attributed to fig trees because there are very few such trees in cultivation that are older than this. The category of ‘health’ took into count appearance, foliage cover, colour and size or the presence of pests. ‘Structure’ included an assessment of the soundness of the timber, safety of the trunk and branches, and the presence of fungal decay. Fungal decay causes structural weakness and can cause limb or tree failure. Epicormic growth on some trees was an indicator of stress and reflected problems with health or structure. As I noted earlier the Moreton Bay figs were either scored as remove now or in the next 15 years.

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On 4 February I get a phone call from the Minister’s Office to get a suggested response to a request from the (NSW) Penang Gardens for a Wollemi Pine and, more importantly at the moment, to ask if we could move the Domain tree removal/replacement back a month (from first week of March, to first week of April) so that both components fitted within the parliamentary break (i.e. they could being sitting when the new trees were being planted, and be not sitting when we took out the old trees a month earlier). Given the likely disruption around Parliament House and the potential for political grandstanding we agreed.

At around the same time I also had a conversation with Alistair Hay concerning the proposed design for replanting in the Hospital Road vicinity. Following the conversation I understood that the Trust’s Events section was concerned that the planned spacing of the new trees would be unsuitable for some events. Following the conversation I also understood that an Araucaria (Norfolk pine) which was to have been removed was now showing improved health and that on the basis of a new arrangement of plantings could be accommodated in the new avenue.

As a result of the conversation I approved a revision to the plan which reduced the trees to be removed by 2, from 13 to 11 (the Truth Tree and the Norfolk pine would remain) and the number of new plantings was reduced from 41 to 33. It was sound and everyday kind of operational decision and I verbally approved the changed arrangement, asking that the Minister be advised. The new design was posted on the Trust’s website around 23 February, along with a plan for the new design and an artist’s impression of the plantings in 50 years’ time. Our staff are now meeting more or less weekly now to prepare for the Domain Tree replacement program and the Cahill Expressway noise wall.

A new job

On 18 February the Chair of the Trust, Greg Martin, rang me at 8 am to say I had been offered the job as Executive Director of the Royal Botanic Gardens and Domain Trust. Lisa Corbyn rang soon after to congratulate me and I signed an acceptance letter later in the morning. A public announcement was made the following day:

DEPARTMENT OF ENVIRONMENT AND CONSERVATION (NSW)

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STAFF NOTICE

No: 17/04

Executive Director Botanic Gardens Trust

I am very pleased to let you know that the Chair of the Trust, Greg Martin and I have completed the selection process for the Executive Director of the Botanic Gardens Trust, and Dr Tim Entwisle has been offered and has accepted the role.

Tim will be known to many of you through his previous role as Director of Plant Sciences at the Botanic Gardens Trust, and most recently in acting as the Executive Director. He brings strong scientific credentials and we welcome his collaborative approach in working with the Trust and across the Department of Environment and Conservation.

I know you will join with me in welcoming Tim to the position.

LISA CORBYN Director General 19 February 2004

Amid the excitement of this decision I was preparing for my first trip to China, to a botanic garden meeting in Xishuangbanna, in the Yunnan Provence. The invitation had come to Frank Howarth just as he was leaving the Royal Botanic Gardens and Domain Trust and I was delighted to take his place on this trip funded by the Chinese Academy of Science. I was in China when two weeks later, on 4 March 2004, The Daily Telegraph reported73 that the ‘controversial plan’ to remove more than a dozen (i.e. 13) trees was put on hold following a public outcry. It said critics had dubbed it the ‘Moreton Bay Massacre’. Again rehearsing the lines and headlines. Our Public Relations Manager took the call from the Telegraph and said that people had been vocal in their opposition and that we ‘may be able to use some technology to preserve threes which are in poor health

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rather than just chop them down’. Not quite how I would have expressed it and not true - we had many people who supported the plan and understood our reasoning, we weren’t putting the plan on hold, and I’m not sure what technology was being referred to. Her statement also suggested we would adjust the plan based on what people wanted, rather than listen to their concerns and balance these against public safety and responsible park management and planning. In the article there was a quote about branches falling on people’s heads if we didn’t do something, and the message overall was confused. It was this newspaper article that reinforced to me that I needed to be taking a personal lead on this project and to be the spokesperson on as many occasions as possible. Not because a PR Manager couldn’t do it with a little more preparation (we hadn’t talked much about how we would deal with negative press) but because I needed to be out front and show that I personally was fully supportive of the action. I also felt I could respond to the needling and spurious claims more directly and even with humour if it came to that.

In China I met various heads of other botanic gardens, in the knowledge that I was now the Executive Director, not just acting, of the Botanic Gardens. I spent the plane trip there distilling the key historical milestones of the organisation from an historical account written by Lionel Gilbert. I felt confident and content with my first major decision as Executive Director, to remove and replace the trees on Hospital Road. I also felt that despite the messy start in the media we would find a way through. On my return I got involved in various other projects, including my role on the Australian Biological Resources Study Advisory Council which takes me to Canberra in late March. While there (26 March) I get a call from the PR Manager to say someone had hanged themselves at Mrs Macquaries Point and that Ian Cohen, a Greens MP, was likely to make a ‘verbal’ protest when we take out the trees in the domain. I wasn’t quite sure if or how these were related but the trees in the Domain were not quite the source of solace and joy they used to be.

On Saturday, 27 March 2004, Clover Moore was elected Lord Mayor of Sydney. On the Monday I sent a letter of congratulations. I noted in my diary that Ms Moore had been a vocal critic of various changes in the Royal Botanic Gardens, or so I understood, and that it would be good to meet with her early on to start a good working relationship. If she better understood our aspirations, and

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constraints, I hoped she would work with us to improve the Royal Botanic Gardens and Domain. Following the letter my Executive Assistant sought, unsuccessfully, a meeting with the Lord Mayor. We were to meet, but not quite under the circumstances I had anticipated or hoped.

That week I spent an hour with journalist John Huxley for an article in the Sydney Morning Herald. We were told it will run the Saturday after next, after the paper agreed to delay to tie in with the tree removal and planting in the Domain which we had delayed for a week due to various operational reasons. Because I mentioned Busby’s Bore as a possible source of recycled water for the Botanic Gardens, John Huxley followed up with Ian Kiernan and there was a small article in the Herald later in the week on that matter. I noted in my diary that I was unsure how Huxley would cover the Domain tree business and that he might pick up on my comment that the Botanic Gardens are going through some difficult times (in relation to tight budgets and some expensive maintenance liabilities).

On the Tuesday (6 April) before the article(s) ran John Huxley kindly sent through a draft of the Domain Trees article (to go with the one profiling me in my new job). I was a bit taken aback by the language in the first paragraph, with ‘chain saws ringing’ but overall I thought it was well balanced. However I did realise that a racy headline and prominent position would mean plenty of follow up media coverage. I had already arranged to talk with Simon Marnie on ABC Radio 702AM on Saturday morning to talk through the tree replacement program, and I asked the PR Manager to try to fix up some other interviews over the weekend. On Thursday 8 April 2004 we mailed what we called an Event Briefing Sheet to neighbours of the Domain, advising them of forthcoming parking restrictions and traffic delays on Hospital Road. We were ready to start.

My fact sheet74

There are over 400 mature trees in the Domain, most of them figs. The vast majority are in good condition but eleven are becoming a safety risk and detracting from the landscape. The Trust decided to remove them as a group and replace them with 33 new trees consistent with the palate of tree used historically but not the same species as those removed.

New trees can’t be grown next to the existing trees because they will

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be outcompeted and won’t establish well and when the old tree are removed this will disturb them.

There have been 29 incidents of Moreton Bay figs of a similar age to those we are removing dropping limbs in the Domain over the last four years. One in five of the Domain figs have lost major limbs, over 10 cm in diameter and up to 1000 kg.

The trees are in poor condition due to stress and damage to their roots over many years, primarily in this case due to the construction of sealed roads nearby and installation of infrastructure such as sewerage and utility conduits. Air pollution and soil compaction would also have contributed, as would have the slope beside the road depriving them of soaking water during rainfall. Some pruning and tree care in their early life didn’t help in some cases. They can’t be managed without heavy pruning that would detract substantially from their amenity value, fencing off large areas of the Domain (something we had done for a particularly important individual tree in the Royal Botanic Gardens) but not appropriate in this setting and for 11 of a collection of hundreds of trees of more or less equal value.

None of the species being removed are threatened species or individually of scientific or conservation value. Two – the Camphor Laurel and African Olive – are environmental weeds, three – the Plane, the Tallowwood and Swamp Mahogany – are common in cultivation and the six figs – five Moreton Bay figs and one Port Jackson Fig – are very common in cultivation. Only the Port Jackson Fig is native to the local region.

The replacements trees are Norfolk Island Pines native to Queensland and northern New South Wales, Cotton Palms native to southern USA and Mexico, and White Figs native to northern Australia and northward to India. The White Fig is briefly deciduous making it less susceptible to psilid attack which cases loss of vigour in Moreton Bay figs.

It is also useful to remember the Trust cares for about 3000 trees in the Royal Botanic Gardens and Domain and employs around 280 experts in botany, horticulture and public programs. The Trust has managed these site, removing and planting trees, since 1816. Trust decision of this nature are overseen by a Board of Trustees, with expert committees are required (including relevant to this decision,

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a horticultural committee). On average 44 trees are removed each year in response to tree death, public safety or amenity. On average there are 63 emergency call-outs relating to trees and of these an average of six result in immediate removal of the tree. The Trust provides advice to the Council on its tree management.

The Hospital Road tree replacement plan involved the removal of 11 of the 35 trees beside Hospital Road and replanting of 33 trees in their place. It was about making the Domain safe for its four million or so annual visitors and maintaining the landscape vision of 19th century director of the Gardens, Charles Moore. There is no single correct time to remove an aging or failing tree and out decisions are based on the best available evidence and advice.

The landscape is generally more significant than the individual trees in this setting. The so-called Tree of Truth has some individual significance and could maintained on that basis is it can be made safe and doesn’t interfere too much with the overall landscape amenity.

There are 40 or so species of fig in Australia , three of them recent arrivals that have become established and weedy. The exact number depends on you concept of a species and how important you take the one-to-one relationship between wasp and fig... Some of the tropical and sub-tropical evergreen figs of northern Australia have their closest relatives in India, according to George Seddon (p. 11).

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4. Fat Lazy Bureaucrat75

One of the better known ornamental figs, the Rubber Plant,76 is now extinct in the wild. Its popularity as an indoor pot-plant belies its true nature and form. Outdoors it is a massive tree curtained in aerial roots. The largest specimen77 grows in the town of Kuala Krai, in north-east Malaysia, and is 50 metres tall with a crown 70 metres across.

Fig expert uses bogus credentials78

At the Botanic Gardens we spent most of May amassing information for the Court hearing. In the Domain there were no protesters, no tree removal contractors and no police. The five Moreton Bay figs under dispute were protected (from harm to them and harm they might cause) by security fencing. Across the road, in Parliament House, things were also quiet. On May 4 Minister Bob Debus took speech notes with him to the NSW House of Representatives in case there were any questions about the Hospital Road Tree replacement program. I think he was disappointed he didn’t get a chance to use them, containing as they did well-crafted rhetoric such as ‘rarely has an issue been exploited in a more opportunistic and irrational way by a stranger coalition of inner-city yuppies and their usually sworn enemies – the environmentally rapacious Coalition’.79

One of the coalitionists was Sir Mark Hartley. These were the days when knighthoods were not handed out by Australian governments and Sir Mark’s honorific was bestowed80 by His Royal Highness Prince Leonard of the Principality of Hutt River Province, located on a wheat farm 500 kilometres north of Perth surrounded by the rather larger State of Western Australia. In 1970 the then Leonard George Casley declared the 75 square kilometre property an independent principality in response to ‘the government of Western Australia impos[ing] draconian wheat quotas on local farmers’.81 Prince Leonard has reigned continuously since 1970, to ‘protect himself and his supporters from prosecution, using arcane provisions of British Common Law’. The Prince is himself, apparently, ‘a scientist, mathematician and philosopher of note, having received many awards and honorary degrees’, but was not

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invited to join the coalition. Sir Mark explained to the Sunday Telegraph that he uses his title only occasionally, and that it was bestowed for services to caring for trees.

Sir Mark is a fascinating construct. In a tabulated debate between Sir Mark and Judy Fawkes in the Sydney Morning Herald82 he is said to be five-time winner of the international Grand Award of Excellence in Arboriculture. He was certainly the 2011 winner of an Award of Merit (which I have to concede is the highest award granted by the International Society of Arboriculture) for ‘outstanding service in advancing principles, ideas and practices in arboriculture, and particularly for his contributions to improving safety standards in Australia’. His company The Arborist Network has, according to its website, won six National Arborist Association of Australia Awards: a mix of Grand awards and Distinctions, for tree pruning and transplanting. Huntley was instrumental in establishing this predominantly New South Wales focused association which is now merged into Arboriculture Australia. I guess the two Grand Awards by this association could be part of the Herald’s ‘five time winner’ collection. But I shouldn’t quibble. Sir Mark Huntley may well be highly qualified and lauded. He was for a time a Principal, if that’s the correct term, in a company called The Tree Doctor, and it was in this role he weighed into the Hospital Road tree debate.

In some notes prepared for the NSW Parliament – notes I hoped dearly at the time had been recited but from my reading of Hansard gather not – Hartley was described as ‘a gentleman who obtained his knighthood by the equivalent of filling in a coupon on the back of a cereal packet. A knighthood bestowed by mail order by the … [word deleted by me] Western Australian secessionist, the self-proclaimed Prince Leonard of Hutt. Presumably the next expert opinion we see will be from Obi wan Kanobi or one of the second order characters from Star Trek’. The same notes made reference to the removal and replacement of the Hospital Road trees, noting we ‘will have to do something about the problem sooner or later – whatever the members of this opportunistic coalition do or say’.

Another in the disparate band of opposition was Romano Yehundi Solo. Mr Solo emerged only briefly. On 20 May, a small article83 in The Australian’s Strewth column helpfully drew our attention to a curse he had placed on the Minister for the Environment. Mr Solo was reportedly outraged by the plans to remove trees in the Domain

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(something, as I’ve said before, the Royal Botanic Gardens and Domain Trust did almost daily across its three botanic gardens and this botanical parkland). The journalist says he is so incensed he is prepared to put a curse on Environment Minister Bob Debus that would have ‘serious consequences’ for the whole State Government. The government survived, more or less, for another seven years and it is not for me to say if there was sufficient misfortune to warrant serious consideration of this potential cause. I should put on public record again though that Mr Solo was quoted as saying ‘If I go ahead with it, all of the people in the Premier’s office and Attorney-General’s department will start to fight among themselves. They will experience internal chaos immediately, a feeling that all is wrong, that a power beyond what they can imagine is working against them’. Mr Solo apparently has a special link to one of the trees in question, ‘a fig tree that his father slept in when he jumped ship in 1917’.

Andrew Woodhouse and his Potts Point and Kings Cross Heritage Conservation Society Inc. contributed to the debate through letters to the Sydney Morning Herald and particularly the Wentworth Times but Mr Woodhouse is capable of doing his self promotion. Similarly Liberal Opposition Environment Spokesperson Michael Richardson, Greens Legislative Council member Ian Cohen, and the Lord Mayor of Sydney and her councillor colleagues. I would say that of these Ian Cohen at least sought to find manifestly reasonable solutions. Councillors Chris Harris, John McInerney and Shayne Mallard (the latter now a member of the Legislative Council in NSW) expressed regret later and apologised to me personally but at the time were more in the manifestly unreasonable camp.

Influential friends

The Packer family became an interested party when they were linked to a truckload of mulch delivered to the Domain (around 8 am on Wednesday 12 May I think) as we waited for the Hearing. Some of the protesters had complained that we were leaving the roots of trees exposed and hastening their decline by leaving them free of mulch while we waited for the Court outcome. I explained (to anyone who would listen) that mulch was scraped away prior to the removal of the designated trees in mid-April and there had been so change to the arrangements. It was our view that it’s better to leave the areas exposed and to let them dry out so that healing of any wounds

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caused by the scraping is assisted. We did say we might remulch the trees in a few weeks to assist in their care if the decision dragged on. Anyway, a Sydney City Councillor (presumably Chris Harris) and others began to spread mulch around the six trees earmarked for removal. We didn’t interfere given it was unlikely to harm the trees. However having a truck drive into the Domain to dump the mulch, was more of a concern. The Botanic Gardens doesn’t encourage any unnecessary driving on our lawns and check and approve any vehicle heading off-road.

The source of the largess was made public on the following Saturday (May 15) when alongside a picture of Ros Packer the Sydney Morning Herald reported that the ‘Packers go back to their roots’’.84 Twenty cubic meters of mulch was delivered and spread around the roots of the Moreton Bay figs earmarked for removal, they said, and the invoice for the mulch revealed that Kerry Packer’s PA, Di Stone, had placed the order and that Consolidated Press Holdings paid $790 for the job. “When asked to comment, Stone said her boss declined to comment.”” The article goes on to say that they suspect the largess goes back to the tree-hugging comments Ros Packer made to the Lord Mayor a few weeks ago.

On the Wednesday, we already had our suspicions. About 10.30 am, our Development Officer Paul Clark rang Mr Packer’s office to ask if I could speak with him about the Domain Trees. He was unavailable but they took a message for Mr Packer to ring me when he had the chance. Mr Packer returned the call at 10.50 and we spoke for about half an hour. He said up front he was very unhappy with the removal of the Moreton Bay figs along Hospital Road. He said he loved figs, and particularly this species. The trees were very old, he said, and should stay for as long as possible. He suggested fencing and propping up branches.

I explained our reasons for removing the trees and that we wanted to rebuild the once great avenue along Hospital Road. I also explained that these trees would be very unattractive and in fact very difficult to fence off if we kept them much longer. We then had a more wide ranging discussion about the merits of keeping old trees and about the need to renew landscapes. He seemed to accept that we had taken a reasonable, but unpopular, decision. In this case, he said, we should try to get the public back on side by keeping the remaining trees and planting new trees where we could.

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At some point Mr Packer confirmed that yes he had provided the mulch but that he didn’t know anything about the protesters. Although he did add, not particularly helpfully, that if he was younger and fitter he would be out there sitting under the trees. This was because he loved these old trees, which I did understand. We also talked more generally about fig trees, and about how to care for old fig trees. He mentioned some fine old specimens Moreton Bay fig in Argentina with branches propped up by stakes. In the end he seemed to accept that it was a decision for the Botanic Gardens, and for me, and he said that he understood we had the best intentions and were doing what we thought was best for the Domain. He reiterated his personal view that leaving these remaining figs for a few more years and planting news trees at either end would be a better solution. Once people saw what we were doing, he said, they would be more supportive. That is, we should leave the trees because there was strong public emotion attached to them. Back down on this one, he said (which I found slightly amusing given his reputation for making and sticking with tough decisions). He did say that he wasn’t a horticultural expert and that this was purely an emotional argument, adding that his advice was worth what I was paying for it. He ended the call saying he was and remained a strong supporter of the Botanic Gardens and implied that this would remain so. It was a fairly frank and wide-ranging call and I felt we were able to communicate well, which wasn’t true with some of the characters in this story. Mr Packer didn’t change his view but I felt he better understood why I’d made the decision and respected that.

As the trees and I waited for our hearing in the Environment Court, there were spot fires to extinguish as our opposition sought to keep the issue alive. There were also a few thoughtful pieces trying to put the tree removals and replacement into context. A few. One was an article in the Sydney Morning Herald85 highlighting the difficulty councils have in removing ‘tortured trees’. Staff member Ian Innes is quoted about Australia not being used to life and death cycle of trees. Article mentions the protest over the Moreton Bay figs in the Domain as proving how much people love their trees. The Daily Telegraph featured a ‘damning report’86 by the Botanic Gardens Trust on significant health problems likely in City of Sydney trees in next 10 years. Moore denied the claims and there was no comment sought from us. The report (‘leaked’ to the paper) says that the City will experience significant tree health problems over the next 5-10 years and that numerous trees were in bad health due to lack of

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maintenance. The Sunday Telegraph ran an article87 on the need to remove up to 400,000 public trees in Canberra due to them reaching the end of their life span and a similar article ran in The Australian a few days earlier I think.

The brain dead people at the Trust

During this time (May 2004) we are not overwhelmed with public or even private support. Later, it transpires, industry colleagues and friends were all fuming on our behalf but little of this seeped into our bunker. When it did we appreciated it. On 11 May, Jonathan Garner, President of the NSW branch of the Australian Institute of Horticulture, emailed Alistair and me to say how much he supported our view and how frustrating it is to listen to the ill-informed debate. He says he has had lengthy discussions on this subject with the Australian Institute of Horticulture State Council and many of his professional peers and found them all to be of the same opinion. He finishes by saying he feels ‘very proud and secure that gentlemen such as yourselves are prepared to rebel against today’’s philosophy of avoiding issues such as this and leaving it for another generation to fix. You are both true gardeners in the sense that it is a duty to replant for future generations to enjoy.’ So that was nice. I’ve already mentioned the support of Elsa Atkin and Jerry Coleby-Williams (see Chapter 1).

On the other front, Alan Jones on 2GB88 mentions the Domain trees as part of story about two fig trees in Luna Park. The tree warrior Professor James Weirick is interviewed. When asked directly whether the Domain trees should remain and can be saved, Professor Weirick says ‘I believe they can, yes. It is a complex issue. It’s certainly a...there are many factors involved in the retention of mature trees, tree which in some cases are over a hundred years old. Of course they’re in ......they’re living things and will eventually decline, but certainly there is the requirement to protect and maintain these magnificent assets for the Sydney landscape.’ He was then asked if the Government wanted more event space and this was why the Botanic Gardens wanted to get rid of the trees. Weirick says the Domain is a whole different issue and that he has been asked by the City to help in their current case in the Land and Environment Court. He then says perhaps he won’t comment... And on to Luna Park. At start of interview Jones repeats his previously aired statement about Frank Howarth and Tom Entwisle, the latter of

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whom is ‘apparently a good bloke’.

The next day (12 May), Alan Jones interviews Chris Harris,89 who rings in to say that the Trust have not responded to a letter from the Mayor (which we did, via our lawyers, but not in the detail the Council had wanted, which was considered unwise given the legal situation) and that he and his colleagues are laying mulch around the trees because the Trust are not looking after the trees. Harris said the Lord Mayor had sent a letter to a ‘Mr Tim’. I faxed a letter to Alan Jones later in the same day saying we had responded to the Council and that he shouldn’t worry about the trees, that we were continuing to look after them. The next day in a brief statement on air he said the ‘brain dead’ people at the Botanic Gardens had not responded. A media adviser from the Minister’s Office contacted the producer to make sure the letter had got through. The following day, I gather there was no comment from Jones.

On 14 May Alan Jones faxes a letter to me.90 He says he hears good reports that I am trying to do right thing but I have to do better. He asks if there is a hidden agenda and suggests I should be down in the Domain trying to rehabilitate the trees. He wonders ‘whether people at the Trust aren’t wanting the trees to die’. He ends by saying all the correspondence to him was overwhelmingly in one direction (i.e. opposing the tree removals). It’s worth adding here that given I was never invited onto the show to give my side of the case, despite having offered via his producer on a number of occasions, and all of Jones’ commentary was negative. So I wasn’t surprised that any correspondence to him was of a particular kind.

I drove to Orange for the weekend (14-16 May), to give the opening presentation at a meeting of the NSW Regional Botanic Gardens. While there I was interviewed by a reporter form the Central Western Daily91 and the article appears under the intriguing headline of ‘Passion for preservation of trees’. Which is true, but still amusing under the current circumstances. In the article I congratulate communities on their passion for preserving trees but point out that there comes a time when any amenity tree has to be removed. I was aware that Orangians had had their own debate about the removal of unsafe and overmature trees recently, in relation to an avenue of 80 year-old elm trees in Cook Park. The article says I was ‘heavily involved in the debate over the removal of Moreton Bay figs in Sydney’.

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Around this time David Saul from Sustainable Vegetation Management emailed us to offer, free of charge, to take cuttings from the most significant specimens to grow on and maintain some kind of link with the original trees. The concept of taking seed or cuttings to create a link with an important plant is a good one but I explained that in this case there were plenty more Moreton Bay figs in the Domain and individually none of these trees had particular significance. Also, because we had decided to replace them with a mix of White Figs and other specimens there wouldn’t have been a direct connection in the new avenue. That all said, we were going to look into this as a gesture of continuity, albeit a little empty. Alistair Hay spoke with David later but I’m not sure whether we, or he, followed through. I assumed another headline that weekend, ‘Dirty rotten fungi menace a favourite park’, is a new twist in our saga (one I wasn’t aware of it seemed) but the Sydney Morning Herald article92 revealed the damage cased by Phytophthora and other plant diseases on trees in Hyde Park, under the Lord Mayor’s care, with only an introductory mention of the chainsaws hovering ‘around the limbs and trunks of a row of Moreton Bay figs in the Domain’. The story mentions that the Treewise Men tested the trees on our behalf, as part of a consultancy we provided to the Council. The conclusion was ‘four trees testing positive for Phytophthora, three for Armillaria and several for Phellinus’. No comment was sought from the Botanic Gardens.

But mostly we are preparing for the Court hearing. Our horticultural adviser and member of our Horticultural Committee, Judy Fakes, was engaged by the Department of Environment and Conservation to act on behalf of the Trust. Judy reviews the remaining six trees for ‘signs of health and vigour’’, providing an individual assessment of each tree using the Safe Useful Life Expectancy method (referenced to Jeremy Barrell93 in the UK). SULE, as you’ll recall, is a measure of the trees useful life in the context of developing a site, in this case the whole Phillip Precinct. Fakes concludes the visual amenity of the trees has been compromised and there are a range of other tree health and safety issues. On balance Judy decides four of the trees (Moreton Bay figs) should be removed on the basis of their SULE rating and that the decision to keep or remove the tallowwood and one of the figs (Tree 1) should involve factors other than SULE (which she accepts would be not unreasonable). In the context of the

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Domain, Fakes concludes the replacement of the 11 out of over 1000 trees with 33 new trees is ‘of great merit’ and a responsible way of managing this heritage landscape. She also cites Professor James Hitchmough from his book on the management of urban landscapes,94 where he points out that as a tree in a parkland setting senesces there comes a point where costs start to outweigh the benefits. Other things being equal (in this case there being many other mature and beautiful figs in the Domain landscape) that is usually the time to remove and replace. As I had pointed out, the 11 trees represent about 1% of the trees in the Domain and the loss of five Moreton Bay figs represents 2% of the number of this species with 16 mature trees of the same species remaining in the vicinity of Hospital Road. In her final report for the Court, Judy also evaluates and disputes some of the evidence provided by experts for the Council.

There were a few light-hearted diversions, but not many. We didn’t get much coverage in press cartoons as far as I’m aware. The only one I recall was a Warrant’’s World picture of a man with a fig-leaf covering his private parts and the hand of god pointing at this area with the caption ‘Adam is informed by the Royal Botanic Garden of Eden authority, the fig has to go...’. I have in my notes a poem that I think staff colleague and friend Bob Makinson wrote sometime in May as we waited for the Court’s decision...

Moreton Bay (Trad.)

As I was walking by Sydney Harbour Up to the Do-main I chanced to stray I heard a botanist his fate bewailing As he dodged joggers on that sunny day. “I am a native of gentle Melbourne, Where Councils mind their own affairs And Directors of Botanic Gardens Don’t have to deal with rogue Lord Mayors”. “For three long weeks I’ve been beastly treated And deep opprobrium I wore My voice is hoarse from media briefings And Ministerials I’ve had by the score. But while land-clearing goes unabated

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And threatened species, are threatened more We only want to cut down some sick trees And plant three dozen, and the park restore.

“For fifteen years we have nursed these fig trees Through storm and drought and lerp disease Now Sydney Council thinks arboriculture Can be performed by press release. Of all the issues of conservation And preservation in New South Wales This has to be the least important Excessive opportunism here prevails.”

“Like the Egyptians and ancient Hebrews We are oppressed under Clover’s yoke To say that fig trees can live forever Is nothing by an empty joke So fellow gardeners, come rally round us Even best-cared gardens some death will find And to the sad need to fell and compost We all must be occasionally resigned.” The parodied ballad tells of the hardships endured by convicts held at Moreton Bay, in the early nineteenth century, and is sung to the tune of the Irish ballad, Boolavogue. Any fig carries a certain mystic from its association with religious stories and images of strangler figs reclaiming the palaces of ancient civilisations. Moreton Bay adds an exotic sounding location despite it being adjacent to the Port of Brisbane and the site of a notorious penal settlement. Still it is also the source of unlikely marine creatures such as the Moreton Bay Bug and dugong, and the ancestral home of the brothers Gibb (better known as the Bee Gees).

The message

This is an appropriate time to take stock, as I did at the time, and think back on where we were, how we got there and whether we could have got somewhere else. I felt I had kept ‘on message’ as one should. An evidence-based decision had been made to remove these trees, first by my predecessor Frank Howarth and then confirmed by me, was based on safety (now and in coming years), amenity (what

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the trees look like and contribute to the landscape), landscape (what is the best decision for the current and future management of a declining heritage landscape), horticulture (if we remove one at a time and replant will this create an appropriate landscape now and in the future) and subsidiary issues such as reducing environmental weed species (not the Moreton Bay figs!) and the fact that putting undue importance on preserving an individual tree may be in conflict with restoring a landscape of exceptional significance. Expert opinion was sought from inside and outside the organisation, approval sought from our Board committee and the decisions released publicly. The Trust had done this routinely in the past.

We had some nice data to wheel out. While prevailing wisdom is to stick away from the facts, to appeal to the heart rather than the head, I think (in retrospect) we could have brought these numbers out earlier and more often. Things like the 298 incidents of Arborist call-outs for fallen or hanging limbs over 10 cm in diameter since January 2000 in the RBG and Domain combined, with 29 emergency callouts in the Domain since 2000. That is, large branches were falling off the trees, a threat to public safety. In fact 18% of our 161 Moreton Bay figs had dropped limbs over 10 cm in diameter since 2000, and of those 18%, 74% are in the Philip Precinct of the Domain (25% of our Moreton Bay figs are in the Philip Precinct). I suppose the downside of doing this might have been pressure to remove more trees – which could have just as easily been the public campaign!

Our own arborist report on the trees said they were in decline and have up to 10 years useful life. According to this report they are in need of heaving pruning and would eventually have to be removed entirely; it would be better horticulturally to remove these five trees before planting a new avenue (experience and expert advice is that mixing old and new figs does not work – the new plantings will be stunted and of poor form – you can find good examples around Sydney in some of its parks). All along I acknowledged and accepted the right of people to protest but I did draw the line at misinformation and deliberate politicisation of the decisions.

When asked by a journalist at this time if I would have preferred to remove them in the dead of night I said I personally would have liked to remove them back in autumn and to be watching the new trees take root rather than preparing for a court case. And for

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deciding along the way to keep particular trees as more evidence became available, I was fine with that. In some cases it wasn’t manifestly unreasonable to keep a tree, and not manifestly unreasonable to remove it. There is no one correct time to remove a tree. There was a lot of misinformation as well, including widening of Hospital Road, building an entertainment complex, removing a different set of trees (ones that we had reports saying were OK) and removing all (or most) of the hundred or so Moreton Bay figs in the Domain. It was difficult to predict or counter these extravagant claims but perhaps we should have expected them.

So did we do our communicating and media liaison well? Probably not, at least at the start. In all my early media conversations I stressed we were about ‘passing on a healthy and beautiful Domain to future generations’ but this soon evolved into ‘us having to make the tough decisions’. We were inexperienced as a media team and didn’t draw in enough external supporters, early enough. Basically the whole palaver surprised us, and it shouldn’t have. We should have at least prepared for the worst (particularly after the opening volleys in January when I was away) and then been grateful if that effort was wasted (an approach I’ve taken since). In an email to us on 23 April Bernard Chapman, National President of the Australian Institute of Horticulture, quite rightly suggested we get in contact with the Australian Institute of Landscape and Design Management and the Horticultural Media Association. He copied into his email Catherine Stewart who I now know quite well. Catherine was editor of Landscape Outlook, the journal of the AIH and AILDM at that time. Catherine had written to the Victorian President of AIH, Jonathan Gardner, and indicated she supported our position. I don’t think we drew on these connections strongly enough.

We did have a Communication Strategy of course, and it included enlisting media champions as well as opinion leaders. In the first camp we listed John Huxley (who was balanced and probably supportive but then his article started the whole thing off), Angela Catterns (neutral but good relationship with me), Graham Ross (I don’t think we informed him early enough), Jennifer Stackhouse (supportive I think but not asked to make this public), Simon Marnie (supportive as far as he could be, always fair and later becoming a good friend) and Alan Jones (a fail here – we didn’t brief him in time). In the latter camp Leo Schofield, Elsa Aitken, Ros Andrews, Peter Thornhill (President of the Friends) and Richard Clough. Elsa

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wrote a good strong letter and others were supportive as they could be. Alistair Hay was to brief our key people in early April and was to be the one spokesperson for consistency of message. Alistair did a great job but it became important for me to be personally accountable. It also became clear that we hadn’t done enough preparation. At least that’s how it felt in May 2004 and I’d agree today.

We fended off the attacks but most of the time it was more like being in a siege rather than on the battlefield, and in hindsight we should have attacked earlier and more often. Thankfully others did assist, apparently: e.g. the discrediting of Sir Mark Harley over his Hutt River Province knighthood and the leaking (in early May) of a report some of our staff did on city tree health. All negative politics and not something I was keen to do myself but, very satisfying when others do it.

As an organisation were not used to the precision of wording required for a controversial matter. Our public signage was succinct albeit with links to our website and how to contact us for further information. It wasn’t emotive and it wasn’t persuasive. Our early media statements and signage was, in retrospect, naively upbeat. We had no experience in crafting careful messages to ‘cover our backs’ and contrary to the views of the Lord Mayor had almost no sense of how to ‘spin’ an argument. By the end of the saga we had honed those skills, sadly. We would become more bureaucratic, more careful, more dull.

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5. Not manifestly unreasonable95

In his review of four species from Northern Australia in 2001,96 fig expert Dale Dixon found that the groups defined by different leaf hairs and features of the flowers and fruits, were each also defined by a different pollinating wasp. In fact Dale’s work revealed three new species of wasp that needed describing. It seems that most fig species are visited and pollinated by a particular species of wasp, and no other.97 In fact this is one way fig taxonomists – taxonomists are the scientists who define and diagnose new species – identify whether something is a new species or just a local variant. This may sounds a little circular, but much science works on the base of corroborating evidence, and taxonomy is no different. If two kinds of fig look very different but have the same pollinating wasp, it’s time to look more closely at the figs, or indeed the wasps. It still may be the case that the fig is a good species but contrary to the observed pattern it has the same wasp pollinator as another species. Having a dedicated wasp means a fig shares genes with only those figs visited by the same wasp, so it has integrity as a taxonomic group and will not hybridise with other ‘species’. There may be other ways to stop gene flow, such as the separation of populations (e.g. by a mountain or sea) so the wasps can’t get from one group to another. In general it would be expected the wasps would adapt and evolve to become a separate species in parallel with the fig, but there may be time delays in the changes or in our ability as taxonomists to pick up the differences. In any case, there are likely to be exceptions but it’s a reasonable starting point with a group of dependent animals and plants like this to expect them to have evolved into different species together.

Our days in court

On Thursday 27 May, the day of the Land and Environment Court hearing and six weeks since firing up of the first chainsaw, five trees had been removed from the Domain but none of the earmarked

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Morten Bay figs. The tree replacement plan for Sydney’s Domain seemed doomed. Yet again, it seemed, political opportunism and partisanship would defeat logic and reason, and the awkward decisions were to be left to the next generation, or the next Chief Executive. A common enough result, and a necessary learning for someone at my stage of his career. Perhaps Kerry Packer was right – back down on this one. The next few days would determine whether the Hospital Road Tree Replacement Program would be a valuable lesson, validation of evidence-based decision-making, or my career epitaph. Reportedly the Lord Mayor, bless her soul, wanted the latter.

The City of Sydney had Dr Geoffrey Flick as their Senior Council, with Maddocks acting as solicitors. We had Dr John Griffiths QC, with Jeremy Kirk as assisting barrister, and our Department’s Stephen Garrett as solicitor. Presiding over the hearing was the Honorable Justice David Lloyd.

Experts were called by both sides. According to The Daily Telegraph,98 Professor James Weirick ‘made a dash from overseas’ to deliver his evidence on behalf of the Council to the court. Weirick is Professor of Landscape Architecture at the University of New South Wales, a position he had held since 1991. He has been employed as an academic at RMIT, Canberra College of Advanced Education, University of Massachusetts (in the USA) and Boston Architectural Center in Boston (USA). He has earned a Master of Landscape Architecture and a degree from Harvard University. His major research area is the life and work of Walter Burley and Marion Mahony Griffin and much of his research at the time concerned the landscapes of Canberra. He has worked extensively as a consultant.

Based on the public statements attributed to Weirick over the last few weeks, and his employment as an expert witness for the Council we were not surprised that Weirick was highly critical of the Trust’s plans. He described our planning documents as ‘useless’. According to his statement,99 Professor James Weirick could not locate the Trust’s ‘Tree Replacement Plan’ and found that the documentation in the Domain Master Plan created the impression that the tree removal and replacement was a ‘minor part of the Plan’, a view he did not share. Further he considered that the failure to have the Conservation Management Plan endorsed and to obtain s.60 approval for the Hospital Road tree removal program meant that the

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NSW Heritage Council was unable to subject the landscape changes to rigorous, independent review.

In his statements and in court, Weirick catalogues the omissions in the Domain Master Plan, concluding that it does not clearly identify the need for the tree replacement. Section 4 of his evidence (The Subject Site: Investigation of History) includes a romp through the history of the Domain with some charming illustrations, culminating in a list of the principle phases of planting design. The Moreton Bay figs we had earmarked for removal corresponded with the second phase of his list, established by Director Charles Moore in the mid-nineteenth century. In his analysis of the condition of the trees Professor Weirick concludes the Moreton Bay figs could be expected to survive for more years, but remarks that Ian English will advise more expertly on this aspect. While he says that a heritage assessment of the trees is beyond the scope of his report, he offers helpfully that they are indeed significant in many ways. In a brief section on the ‘constraints of mass events and public risk’ he says ‘if the Trust cannot reconcile the issues of tree preservation, access and public risk in this instance – and the trees are removed – the entire fabric of the Domain (and the Royal Botanic Gardens) will be placed in jeopardy’. Block removal, he doesn’t like, or our proposed scheme of tree replacement. It’s all ‘conjectural reconstruction’ he writes. The existing row of Moreton Bay figs (not, interestingly, the Oak Tree Avenue you’ll remember me mentioning briefly in Chapter 3) is his reality and will remain ever so. In conclusion, Professor Weirick considers the tree replacement program to be poorly conceived and poorly supported by the Domain Master Plan. No consideration, he says, or no ‘proper and adequate consideration’, was given to the historical and cultural significance of the trees to be removed.

We engaged Dr Richard Lamb who provided the Court with his view100 on whether the project would have a significant impact on the environment as defined under the relevant Act and Regulation. Given we had engaged him to be an expert witness we also had a fairly good idea of his views. In his opinion, the short term visual effects have to be weighed up against the long term intentions of the project as outlined in the Domain Master Plan. He concluded the project was in the public interest and although unfamiliar with the detailed workings of our consultation process he didn’t consider an Environmental Impact Statement to be appropriate. The lack of an Environmental Impact Statement was of concern to the Council,

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apparently.

Judy Fakes provided a critique101 on our behalf of the aboricultural report by Council expert Ian English. Nothing in the report causes Fakes to change anything in her original report. She addresses the tree assessments one by one agreeing with the conclusions about what is called tree 1 (except a recommendation for general pruning), tree 2 (to be removed) but not tree 3 (she disagrees with English’s finding that its safe useful life expectancy is probably between 25 and 40 years), tree 4 (English’’s conclusion is simplistic) and the conclusions about soil compaction (it is best practice to remove the trees and remediate site soils for best establishment of new trees). All in all there was nothing in the report that would change Fakes’ already documented opinions.

In our own words

My statement102, prepared by committee as is the way with such things, began with me/us making it clear that I had been acting in the position of Executive Director since September 2003 until when I was formally appointed in February 2004, and that I had acted in the position during various absences of the former Executive Director Frank Howarth between 1998 and 2003. I then reminded the court that trees, more than 3000 of them and including 400 or so fig trees, form an important part of the living plant collections in the 67 hectares of Royal Botanic Gardens and Domain landscape. Up until the early 20th century, I advised, the content of the tree collection was driven very much be where they grow naturally (a compromise between trying to display plants from as wide a geographical range as possible and being able to meet their horticultural requirements in Sydney). There was a desire to have as many species on display as possible and to assess their botanical and horticultural potential. Since the early part of the 20th century the living plant collections, including trees, were developed more for their role in assisting in scientific classification and their horticultural value. Tree management, I said, involved the acquisition and placement of new plantings and the ongoing maintenance of this collection. Around 140 years after extensive planting took place in Domain and Botanic Gardens, a generation of trees is experiencing senescence. Indeed, more broadly, Australian horticulture is for the first time having to manage senescence in designed plantings on a significant scale.

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I then went on to explain who we employed and sought advice from to care for the trees, and the plans and documents we used to guide our planting and management. One of these was the Senior Arborist’s database which has individual information about each tree. This helps us provide the appropriate horticultural care for each individual specimen, including when and when not to mulch (a subject of some interest to those occupying the Domain in previous weeks). One of the fields in this database was the Safe Useful Life Expectancy (SULE), since 1998 the standard measured used to determine when a tree should be removed on the basis of its health and location. Not, it must be stressed, for landscape and collection reasons, which are at least as important in a botanic garden and botanical parkland. Trees are assessed formally on at least an annual basis in areas that are used for events, were there are large gatherings of visitors and the importation of infrastructure. Similarly, trees in high pedestrian- use areas such as entrances, main pathways, gathering areas and shelters get more regular assessment. Arboricultural staff make visual inspections of all trees following weather storm events, in particular those tree species that are known to be subject to damage by winds and rains.

Because the detail seems to be important I explain that if an assessment is made by Trust arboricultural staff that a tree in the Domain should be removed (on an ad hoc basis rather than as part of major relandscaping), a form is completed by the Senior Arborist and circulated for approval to the Supervisor of the Domain, then to the Managing Curator, Domain, thirdly to the Managing Curator of the Royal Botanic Gardens Sydney and finally to the Senior Arborist for action. On average over the last nine years, 44 trees have been removed on this basis, and 20 new trees planted, in the Royal Botanic Gardens and Domain. While I don’t recall mentioning this at the time, our older botanic gardens tend to become overcrowded with trees resulting in the intent of the landscape (particularly vistas and views) being lost. So for a botanic garden at a certain time of its life – and Sydney’s was definitely in it – it’s more about removing than planting trees. And then there are trees that remove themselves, or almost so. On average, I state, there are 63 call outs each year to deal with tree damage caused by storms and other incidents, and on about six of these occasions each year a tree (or the rest of a tree) is removed immediately.

I used my statement as an opportunity to talk about the scope of the

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project, and how a dozen or so trees might sound like a lot to most people it was a small part of this particular landscape. Of the 3000 mature trees in the Domain, 36 were in the vicinity of Hospital Road and of these we were proposing to remove 11. I spoke of the need for a Master Plan and the establishment of a Reference Committee in 1999, with subsequent invitations to welcome participants such as City of Sydney staff and councillors (see Domain’s Living Dead). I mentioned the injury to a visitor during the Sydney Festival in January 2001, the subsequent barricading of trees in the Domain later in the year, and all the details of our tree advice, decision-making and consultation. But you can read all about that in Chapter 3, taking note particularly where we informed and invited the City of Sydney to participate. I certainly did.

There were some legalistic niceties such as ‘I was not present at the Board meeting on 21 August 2003. However based on my knowledge of the procedures at the Board meetings, and my subsequent conversations with Alistair Hay, I can say that the proposal put before the Board by the Trust was adopted. If the proposal had not been adopted then the minutes would reflect that position and the proposal would not have proceeded’.

I made it clear I was open to new evidence, and to changing my decision if in the best interest of the Royal Botanic Gardens and Domain Trust. In that regard I noted that two trees were removed from the original list of 13 following a reassessment of their heritage signficance - in the case of the Truth Tree - and signs of new growth - the Norfolk Island Pine. The last point of course opened me up to requests to be cautious and conservative, and to leave all trees, just in case. Just in case they put on new, vigorous growth. But presumably just in case they became miraculously safe as well. No that wouldn’t be a good argument and I was comfortable anyway saying it like it was - I was an evidence-based decision kind of guy.

So this was my statement, submitted to the court. I can’t remember a lot about the time in court. It was a smaller room than I had expected, crowded, a little make-shift it seemed. I was sworn in, without any religious text. I had been advised already by our Counsel to tell the truth, take my time, answer all questions, to not be argumentative, to give ground if necessary and to only answer the questions asked. In my two hours of cross examination (much of the time was spent on the wording - adequate or not - of a sign in the

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Domain) I did all this. During a break (lunch?) I was asked to mark up a copy of the Domain Master Plan. I remember giving it to someone else to do and them disagreeing with me about what the Court wanted. It turned out I was correct which made me look a bit of a nong when I we got to reviewing my markings, but they seemed to forgive me (and me, my staff...). I then left the court and went back to work.

Judicial view

It was Friday night, 28 May 2004, at the end of the second day of the Land and Environment Court hearing that we received word that an ‘Ex Tempore Judgement’ had been made by Justice Lloyd.

The Royal Botanic Gardens and Domain Trust was vindicated on all counts. Our decision to remove trees was within our powers, duties and functions, and it had taken into account all relevant (and no irrelevant) considerations, was procedurally fair, did not breached the Heritage Act and, most satisfyingly to me, was deemed not manifestly unreasonable Oh, and the Council’s Tree Preservation Order was invalid, not only for trees on Trust lands but throughout the city.

Here is an edited version of the Judgement103 (which included reference to various pieces of legislation104 and relevant cases105):

On 14 April 2004 the Minister for the Environment issued a press release in which he said that he accepts the advice of the Royal Botanic Gardens and Domain Trust and supports the removal of eleven trees suffering from poor health in the Domain. The applicant, City of Sydney Council (“the council””), claims in these proceedings that the decision of the respondent, the Royal Botanic Gardens and Domain Trust (“the Trust”), to remove and any attempt to remove the trees is unlawful.

The council has raised a number of grounds in support of its claim [which I have paraphrased and enhanced (to make my own emphasis)] here:

● On 19 April 2004, the Tree Preservation Order of the City of Sydney was amended to include the Royal Botanic Gardens and Domain Trust”. The Trust is therefore now required to obtain the council’s consent to remove the trees.

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● If not, the removal of the trees is an ‘activity’ under the Environmental and Planning Assessment Act and the Trust has not considered its likely effect on the environment nor prepared an environmental impact statement.

● If that doesn’t work, it is considered illegal for the Trust under its own Act.

● Or perhaps the Trust failed to take into account relevant considerations and took into account irrelevant considerations in making its decisions

● On top of all this, the Trust didn’t extend ‘procedural fairness’ to the public and the City of Sydney

● And...the removal of the trees required consent by the Heritage Council, which wasn’t obtained.

● All up: the decision to remove the trees is manifestly unreasonable.

[Now, back to the Judge as he wrote] I should observe at this stage that these proceedings were expedited. In deference to the thorough and carefully formulated submissions of the parties I would have preferred to give a reserved judgment. In view of the facts that the proceedings were expedited, that the trees are presently fenced off in the Domain, that the part of the Domain which is fenced off is not available to the use of the public, and there is a suggestion that at least some of the trees may be unsafe, I should nevertheless deliver judgment now. [For which I was grateful]

The Trust decided to remove eleven trees and replace them with another thirty-three trees. At the time of commencement of these proceedings the Trust had already removed five of the eleven trees. Of the six trees remaining, it is agreed by the experts that one tree should be removed due to its health and age, two don’t need to be removed based on health and age, and no agreement about the other three. [The judge then emphasises that the removal of the trees is not solely on account for their age or condition. That is, it may still be reasonable to remove them all even if these expert agreements were accepted on face value.] The purposes of the Trust [continues the Judge] include replanting the area along Hospital Road with new trees so as to restore Hospital Road to an avenue-

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like appearance, as it apparently was historically. What is proposed relates to that overall aim as well.

Because of the relative urgency with which a decision is required in the present case I will not attempt to describe the evidence in as much detail as I otherwise would. I propose to deal with each of the grounds relied upon by the council in turn...

No Tree Preservation Order

On 25 March 1974 the council made a tree preservation order under the then City of Sydney Planning Scheme Ordinance. That Order expressly excluded the Royal Botanic Gardens and the Domain. On 19 April 2004, that is some three days before the commencement of these proceedings, the council passed a resolution that the Tree Preservation Order be amended so that it applies to all land owned by or under the care, control and management of the Royal Botanic Gardens and Domain Trust in the local government area of the City of Sydney. [However things were not quite as they seemed and the Judge pointed out that in 1996 a new Local Environmental Plan replaced other planning instruments, including this Tree Preservation Order. After some legal precedent arguments the Judge concluded that] In the light of the authorities to which I have referred I must accept the submission of the respondent that the council’s attempt to amend a non-existent piece of delegated legislation is ineffective. It follows that the 1974 TPO is no longer in effect. [So not only did the Order not apply to the Trust, it seems it didn’t apply to anyone, or any tree. So much for the first question.]

Not an activity under the Environmental Planning and Assessment Act?

The second question is whether the removal of the trees is an activity [a precise kind of thing] within the Environmental Planning and Assessment Act. That question is one of fact and degree. It depends on the particular circumstances. There have been many authorities on the meaning of what is and what is not an activity... For example, forestry operations have been held to be an activity. But what is proposed here cannot be compared to the kind of extensive clearing that occurs in forestry operations. In the present case, the proposal involves the removal of eleven trees of which six trees still remain to be removed. The question then is whether in the

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context of the Trust’s activities this is an activity. [More legal precedent ensues, but...] It is not particularly helpful to go to the various cases which decide whether a particular work is an activity within the meaning of the section because each case turns upon its own facts.

In the present case, having regard to the fact that the council has defined the relevant environment as including “the Domain, the Botanic Gardens and the adjoining locality”, it does not seem to me that the removal of eleven trees where there are over three thousand trees in that area amounts to the carrying out of a work and thus an...activity. [Moreover] Even if I were wrong in so holding, the evidence satisfies me that the requirements of Act have been met by the Trust [And] Moreover, in the context of the removal of eleven trees out of over three thousand trees, I am inclined to the view that the activity, if it is an activity, is one that is not likely to significantly affect the environment. [Enough said. Question two resolved in our favour.]

Lawfully removed the trees

Next it is said [I’m starting to like his turn of phrase] that there is no power to lawfully remove the trees having regard to the Trust’s duties and functions under its Act. [The Judge then describes, briefly, his examination of the relevant part of the At, where the principle objects and powers are listed. When listed, they are wide ranging and would seem to give the Trust the necessary powers. So the Judge concludes] Again the submissions of Dr Griffiths are to be preferred.... in this case the Trust was properly performing its powers, duties and functions in deciding to remove the trees in question and in deciding to replace them with thirty-three trees. [Again, decided in our favour.]

Relevant considerations considered

In relation to the fourth ground raised by the council, namely a failure to take into account relevant considerations and a taking into account of irrelevant considerations, the evidence is extensive and detailed. In view of the need to deliver a judgement immediately it is appropriate to refer to the principal matter upon which the council relies rather than detail the whole of the evidence that has been placed before the Court. I am satisfied, however, that the Trust did take into account all the considerations that had been

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advanced by the council and which the council says were not considered.

The principal consideration which the council says that the Trust failed to take into account is the historical and cultural significance of the trees in question. From the description of the proposal it is clear that the Trust intends to recreate a sense of the former historical avenue that existed in Hospital Road in the early 1800’s and in seeking to achieve that aim the Trust was clearly endeavouring to recreate the original historical context of this section of the Domain. It seems to me that the Trust was thereby taking into consideration the historical significance of the whole area of that section of the Domain in the vicinity of Hospital Road and not just the particular trees in question.

The council has not identified any particular irrelevant consideration which was said to have been taken into account.

Public afforded procedural fairness

As to the question of whether or not the Trust owed a duty to afford procedural fairness to the public [the Judge begins by quoting precedent raised by Dr Flick, after which he concludes] In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity...is bound to observe the requirements of natural justice or procedural fairness. I am thus not persuaded that the general public or the Council as a section of the general public, as distinct from a person in his or her individual capacity, were entitled to be afforded procedural fairness before the Trust made its decision to remove these trees. In any event, the evidence shows that there was clearly some notice to the general public of the Trust’’s intention to remove the trees and the public were invited both to inquire and to make their views known to the Trust.

Not infringing the Heritage Act

The Heritage Act...prohibits any person from damaging or destroying any tree or other vegetation, or to remove any tree or other vegetation from any heritage place, precinct, or land. However, the Minister has the power to grant an exemption. In the

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present case, by order published in the Gazette in 2000, the Minister granted an exemption from [the relevant part] of the Heritage Act for the Royal Botanic Gardens and Domain Trust...including...routine horticultural maintenance and management, tree management and arboricultural programs consistent with the Trust’s thematic and collections policy, and removal or pruning of trees which are a danger to the public and staff.

It seems clear to me that the removal of the trees that may, and in one case admittedly is, a danger to the public, clearly falls within the exemption of “removal or pruning trees which are a danger to the public or staff”. As to the removal of the remaining trees in question in the present case, it seems to me that the removal falls within the exemption of “tree management and arboricultural programs consistent with the Trust’s thematic and collections policy”. One of the Trust’s thematic and collections policies is its intention to recreate the historical sense of avenue along Hospital Road. The council has thus not satisfied me that the removal of the trees in the present case will infringe the Heritage Act. [One more to go, the reasonableness test]

Removal of trees reasonable

As to the final question of whether the removal of the trees is manifestly unreasonable, I simply refer to the expert evidence. Mr I English conceded that it was reasonably open to adopt the approach of the Trust in achieving the objective, that is the objective of achieving the recreation of the historical sense of avenue along Hospital Road by removing the eleven trees in a block and planting thirty-three trees in their place. Prof J Weirick also conceded that the option of removing eleven trees in a block and planting thirty-three trees was one which was available to the Trust. Under these circumstances it cannot be said that the decision of the trust to remove the eleven trees in question was manifestly unreasonable. [So it turns out it was helpful to us that Professor Weirick rushed back from overseas to participate in the hearing.]

[The Judge concludes] That, I think, deals with all of the points raised by the council, albeit in a somewhat cursory way; but as I have said the urgency of the mater requires that a judgment be delivered as soon as possible.

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[The Judge then asks “Is there anything else?” Dr Flick has a couple of questions, which are worth repeating here as they appeared in the transcript.]

DR FLICK SC: Your Honour two matters. One is just as a matter of courtesy to your Honour and with a view to cavil with your Honour’s reasoning. I don’t think your Honour dealt with the contention that even if the tree preservation order had been repealed and was no longer in existence whether the acts taken on 19 April constituted the making of a tree preservation order by reference to--

HIS HONOUR: I am of the firm view that, as expressed, it does not.

DR FLICK SC: Just as a matter of courtesy, so it is addressed. I thought that may have been your Honour’s view. The second matter your Honour is, as I understand it, the respondent Trust is to continue the undertaking that it has presently given for a period of time to allow instructions to be obtained as to what if further action will be taken. Then the only question is until when?

DR GRIFFITHS SC: I have instructions to extend that undertaking for what I believe to be the requested period, namely fourteen days from today.

HIS HONOUR: I note that undertaking.

DR GRIFFITHS SC: Your Honour we would also seek costs of the proceedings.

DR FLICK SC: Can I ask your Honour to do two things? One is to reserve the question of costs at least until such time as we see your Honour’s written reasons so that we can address them and secondly, I think it would be our preference the Court retain the exhibits at least for the short time.

HIS HONOUR: The exhibits may be returned after fourteen days unless otherwise directed.

DR FLICK SC: May we respectfully inquire of your Honour as to when it may be expected that we will get the written reasons?

HIS HONOUR: This is always a problem. It drives us around the bend I’m afraid. An urgent request will be put in for a transcript

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and we’ll just keep our fingers crossed. I formally reserve the question of costs. The formal orders are as follows:

The Court notes an undertaking given to the Court on behalf of the Royal Botanic Gardens and Domain Trust not to take any step of, or incidental to, the removal of the trees identified in the Minister for the Environment press release dated 14 April 2004 for a further period of fourteen days from the date of these orders.

The Court orders that:

(1) The application is dismissed.

(2) The question of costs is reserved.

(3) The exhibits may be retained with the Court file for fourteen days from the date of these orders.

The way I told it

As I told anyone willing to listen, the decisions of the Court were:

1. The Council’s Tree Preservation Order did not apply to any tree, let alone those managed by the Trust. The Order was not effective.

2. The removal of eleven of a few thousand trees was not an ‘activity’ for the purposes of the critical section of the Environmental Planning and Assessment Act, and even if it was, the Judge was satisfied we had fulfilled our requirements under that Act.

3. The Trust has the powers to do what it was doing.

4. The Trust took account of all relevant considerations.

5. The Trust didn’t, in fact, have a duty of procedural fairness. That said, it had given notice to the public and invited comment.

6. The Trust was not in breach of the Heritage Act.

7. The Trust’s decision was not ‘manifestly unreasonable’, and both Council experts had admitted this even though

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they disagreed with it.

Continuing my commitment to evidence-based decision-making (and on advice from our Counsel...) I committed to the Court to review any evidence raised during the trail and to use that to reassess our replacement plan. I also said I would provide the Council with the opportunity to comment on that revised plan but made it clear the decision would rest with the Trust.

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7. Fig will be spared the chop106

The Moreton Bay fig includes two forms, one without a main trunk and restricted to Lord Howe Island (and planted elsewhere, such as in the Royal Botanic Gardens in Sydney) called columnaris107 The more widespread form108 is a coast species found from Wide Bay in Queensland to the Central Coast of New South Wales. Both forms have large leaves (the species name macrophylla means exactly that) that are brown underneath, and share a common pollinating wasp109 – the latter being part of the argument for why they belong in the same species.

Figs face the chop110

The Court decision got reasonable coverage in the weekend papers, as well as on radio and television.111 The Sydney Morning Herald reported112 the City of Sydney lost its fight to stop the Trust removing the trees, ‘handing Clover Moore her first big defeat as Lord Mayor’. It was said, quite correctly, I would wait for at least 14 days before restarting work to take into account any new evidence raised during the hearing. Moore said she was very disappointed and called a special Council meeting for Tuesday (this being the usual response, along with a press conference or two, to disappointment by the Lord Mayor). One of the Labor councillors, Tony Pooley, said the council had been comprehensively beaten and would be left with the legal bill. Council’s Senior Counsel Dr Geoffrey Flick argued the case would may result in the saving of some trees, a good thing in his mind I gather, and he still felt the Trust was acting outside its legislative framework. Our Senior Counsel, John Griffiths, countered that these supposedly legal points were a thinly disguised attack on the merits of the decision and that we had gone out of our way to involve the public. Minister for the Environment, Bob Debus, welcomed the court’s decision (it was noted that the Government had been joined to the action but this had been dropped by consent after Mr Debus undertook to not exercise his ministerial powers in

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defiance of a court decision). The article ends with a quote from me (made during a celebratory drink at a pub afterwards if I remember rightly) that the decision meant the ‘Trust could be trusted’ and that we can now go and do what is right for the Domain, for the people of Sydney and the future of what we see as Sydney’s favourite parkland.

The Daily Telegraph ran a short item on page 2113 saying the Domain tree cull will proceed, quoting Justice David Lloyd as saying ‘ I suggest that in this case the Trust was properly performing its powers of duties’. It is reported that ‘the Trust is seeking costs and has undertaken not to remove any trees while the Council considers an appeal’. An editorial later in the paper states that sadly a number of trees in this stately avenue along Hospital Road are decrepit with age and ‘their limbs sag dangerously’. ‘If they were pets’, says the Editorial, ‘they would have been humanely put down years ago’. It may be sad and fitting to shed a tear but ‘we’ll get over it’. They note that sadder than the removal of these trees would be a giant limb injuring someone in the Domain. ‘So let’s waste no more money on protracted protests or court battles to prolong the lives of a group of trees which need to be put out of their misery. Let’s just get it over with, so the new specimens can be planted.’ Hmm.

On radio and television news the same points were made although Opposition Environment Spokesperson Michael Richardson continues to say the trees should be managed properly rather than chopped down and the fate of the trees is in the hands of government. ABC television news has quotes from Clover Moore saying information was withheld from the public, James Weirick saying the new trees could fit well into the original plans (a rather odd comment, at least in the way reported), Bob Debus saying it was a waste taxpayer’s money and me saying I want to implement the original design.

As an internal memo sent around the Department of Environment and Conservation two days later reminded us, ‘the decision was purely judicial review, not an assessment of the merits of the Trust’s decision. [But] it was a vindication of the Trust’s extensive consultation program in the Master Plan process and its right to make landscaping decisions in respect of the Trust lands’. Demonstrating that the Trust and I were not being manifestly unreasonable.

As willingly agreed in Court I reviewed the plan in light of all the

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evidence presented during the case.

Council’s extraordinary oversight

The City of Sydney Council were due to meet on Tuesday, 1 June, to decide what to do in response to the Court decision and to deal with the minor matter of ‘what appears to be an extraordinary oversight’, the fact that the City doesn’t have an active Tree Preservation Order.114 In their Monday edition, the Sydney Morning Herald says115 the Council will consider whether to lodge an appeal at their meeting and that the Trust will go ahead and remove trees.

Minister for Planning, Craig Knowles, and Minister for the Environment, Bob Debus co-sign a letter to Clover Moore as Lord Mayor of City of Sydney, urging that the Council excludes the Trust from the Tree Preservation Order it is about to create at an Extraordinary General Meeting that day. In the letter they note that I have made it clear I will work constructively with the Council under an Memorandum of Understanding (yet to be prepared) which would ‘involve both organisations in future decisions concerning tree management in Trust and Council lands’ and that I ‘have already indicated that it would be a condition of the MoU that the City not seek to bind the Trust lands under a new Tree Preservation Order’.

In the briefing papers116 prepared for the Extraordinary Council meeting held on the morning of 1 June 2004, mention is made under item 2 of the Land and Environment Court proceedings but the first item, the outcome of these legal proceedings, is held in confidence. The proposed Tree Preservation Order excludes trees managed on Royal Botanic Gardens and Domain Trust lands. So whether moved by the Ministers’ letter or otherwise, the Council agreed to exclude the Trust from their Tree Preservation Order and that ‘authority be delegated to the General Manager, in consultation with the Lord Mayor, to enter into a Memorandum of Understanding with Royal Botanic Gardens and Domain Trust regarding future tree management’. Ian Innes from the Trust attended the meeting and reported back to me on the tone and intent. The Lord Mayor the item on the Tree Preservation Order telling councillors that trees are worth hundreds of thousands of dollars and that ‘Entwisle’ didn’t tell the Minister some of the trees weren’t sick or dying. A long prepared

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statement was read out. In the discussion following Councillor McInerney said the issue had been personally very difficult for Moore and was a great test of her courage. Councillor Firth noted that the council’s own tree management issues were similar to those of the Trust and the council should acknowledge these are complex issues. Councillor Harris congratulated the Trust on entering into further discussions but said there was a ‘web of deception’ and we were disingenuous with our public statements and web information. He said were weren’t doing our job properly in regard to managing concerts and congratulated activists and Council. The cost of the court hearing was worth it, he said, because it represented the community’s values. Councillor Pooley said the decision was a debacle for Council in that it failed on all points, but that the MoU was a step forward. Moore finished with ‘thank god for the council’, that she was disgusted and angry, that the Trust was creating an entertainment precinct and that she doesn’t trust the Trust (or the Centennial Park Trust), the Trust should not be vandals and their actions were disgraceful. Ian described her words as as ‘a fairly vicious attack on us and not a good start for negotiations on the MoU’. The Tree Preservation Order, excluding the Trust, was passed unanimously.

On 2 June 2004 I meet with representatives of the Sydney City Council in my office. Their representatives are Sue Salmon, Karen Sweeney and Joel Johnson. I bring Ian Innes, Alistair Hay and Sue Mahoney.

City gives a fig – at a cost117

The Telegraph says we should expect Moore to use her numbers on Council to appeal against the judgement by Justice David Lloyd that the Trust had acted within its powers. They note the Trust gave an undertaking to not remove trees for 14 days while council considers whether to appeal and that a decision on costs has been withheld. The Council, it reports, says118 that estimates of its court costs being close to $100,000 are exaggerated. There was no hesitation in my mind that the Trust should seek full costs. That would be fair and reasonable.

The Telegraph’s regular ‘Six Pack’ item119 lists as the last of six possible careers Arna the elephant can pursue if banned from the circus as ‘Water and then knock down the Moreton Bay figs’. A letter in the same edition of the paper says figs are not endangered and

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grow like weeds along coast. ‘Not all old things are of historic value’ it continues, and ‘People urinate on these trees’. It was also suggested that people take cuttings to make into bonsai (a few years later, at the retirement of Bob Debus from State Parliament, I presented him with a beautifully bonsai-ed Moreton Bay fig as a reminder of these testing but ultimately honorable times).

On 2 June we learn the Council decided to shelve its plans for further legal action120. My response is conciliatory as ever: ‘a positive step for the Trust and Council to work together on this’. Still I do note gently that the dispute hadn’t helped the relationship between the Trust and the Council. I go on to say that relationships with individuals on Council has been maintained and we have to work together on common issues. You know the kind of thing. Councillor Tony Poole described the legal action as a complete debacle: ‘We lost on all 10 points of the city’s case and the city was made to look like a goose’. In rely the Lord Mayor says ‘I think you should hang your head in shame, Tony Pooley, and I think the Director [of the Trust - i.e. me] should hang his head in shame too. They are trying to create an entertainment bowl at the Domain, which is absolutely disgraceful. I’m proud of the Council...We have acted responsibly, and the money has been spent responsibly’. We estimated our total costs for the hearing would be about $140,000. The Telegraph121 decides to focus on the Lord Mayor’s absence at a Shire’s Meeting which they put down to her sitting State Parliament as well as attending to a meeting to save the Moreton Bay figs. Nestled within an article about her no-show it is reported that the Council decided not to appeal the decision and that the Lord Mayor has extended ‘and olive branch of sorts to the Botanic Gardens Trust, resolving to work with it to develop a “proper tree management plan”’ for the Domain and an Memorandum of Understanding. While this would be pursued in the ‘spirit of cooperation and good will’, the Lord Mayor said ‘Thank God for the new city council because if we weren’t here these trees would be gone’.

That afternoon we met with representatives of the Council in the Anderson Room at the Royal Botanic Gardens to start preparing an MoU. Karen Sweaney (Arborist), Joel Johnson (Asset Manager), Sue Salmon (Executive Officer), James Weirick (who you know from the previous chapter) and a lawyer attend from Council, with Alistair Hay, Ian Innes and myself from Trust, and our legal representative Sue Mahoney arriving later. I began by repeating my oft quoted

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commitment to review our plans in light of evidence raised in Court hearing. The Council reminded us their excision of Trust land from Tree Preservation Order was only temporary and contingent on successfully agreeing on an MoU. I said the Tree Preservation Order was irrelevant to our thinking and approach. That was Council business and I seriously doubted they would get away with any change to their Order.

The preliminaries out of the way we discussed how the Hospital Road review might proceed and how the Council could be involved. At the end I made it clear that while I’m open to consultation, it is the Trust that makes decisions about its estate. It was fairly clear at that meeting that an MoU agreeable to both parties was extremely unlikely, but we had agreed to give it a go.

Over the next week we fired drafts of an MoU back and forward, the major sticking point being a committee that the Council wished to create to advise it on public domain management across the city, including Trust lands. In the Council’s iterations this committee was to be dominated by members of the Council, setting up criteria for us to meet. There seemed little value to us in adding this extra layer to our decision making, particularly in light of the obstructive approach the Council had taken in recent months. While I was comfortable with some kind of extra advisory committee for the Trust, to bring in even more public views, this was something entirely different. Our versions of the MoU proposed a Council representative on our Botanic Gardens Committee and a Botanic Gardens representative on a similarly constructed committee for the Council. We both supported a conference to help prepare a Charter for ‘living designed landscapes’ comparable to the Burra Charter (see Chapter 7) for built landscapes which would inform future plans for the Council and the Trust.

Meanwhile I noted the Council’s new Tree Preservation Order was published in the 4 June 2013 issue of the NSW Government Gazette122 Included under exempt activities are emergency works, electricity supply, dead or dangerous tree, noxious weeds, street trees and (item k) ‘Domain, Royal Botanic Gardens, Centennial Park and Moore Park: pruning, maintenance, removal and replacement of trees, undertaken by each of the Royal Botanic Gardens and Domain Trust and Centennial Park and Moore Park Trust, on land vested in each of them respectively’. Negotiations continue with the City of

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Sydney, over the MoU as well as our revised plans for Hospital Road. Alistair Hay prepares a revised plan based on any evidence raised in the trial. This will see us retaining one of the figs, if we can plant the remainder of the avenue with it staying there (which seems likely).

While the Council and we move on, albeit with different agendas, some are still fighting our original decisions and our right to make them. On Monday 7 June the Inner Western Courier123 leads off its summary of the latest developments as ‘Kerry Packer donated the mulch, Edmund Capon signed the petition [me: he told me personally he didn’t!] and Alan Jones sent morning tea.’ It says the fight to save the Domain trees has included high profile personalities but it looks like the debate is coming to a close. According to the article, Leichardt councillor Michele McKenzie, however, is still hopeful of saving the trees and if all else fails imposing another tree preservation order. McKenzie says she has 10,000 signatures on a petition and ‘we are determined to protect the trees and occupy the Domain site if necessary’.

On the same day I meet with representatives of the City of Sydney and agree to ‘consider extending my undertaking to the court for another 14 days’, from 11 June to 25 June. During that time we would work on an MoU to assist with the two organisations working together constructively on tree management. On reflection and consideration afterwards, I offer up a seven-day extension. I’ve been conciliatory and accommodating to a fault and we need to call the Council’s bluff (they seem intent on delaying the process while they prepare for more legalistic response). I outline my decision in a fax to their solicitor Maddocks on 10 June. The Lord Mayor’s policy advisor, Sue Salmon, emails me on 11 June to advise me I was reneging on my commitment at that meeting and requested a written commitment to an extension to 28 June (17 days, presumably to include their next Council meeting) by the end of the day. Sue Salmon said if my commitment wasn’t forthcoming the Council ‘would be in a position where we have no alternative but to make a Tree Preservation Order that extends to the Gardens and Domain lands, and to do so prior to the expiry of your current undertaking notice of a Council meeting will need to be given today’. Salmon ends by saying their preference would be use the additional time to explore terms for an MoU.

In reply I noted that the day before, the Council’s solicitors

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Maddocks had faxed the Land and Environment Court noting that both parties had agreed to extend their undertakings for a further 7 days, to 18 June 2004. I also pointed out that my 14 days offer was subject to instructions from the Trust and the Department and that my considered decision was in the fax sent to Maddocks the day before. That all said, in the interests of cooperation I agreed to extend our commitment by the extra 7 days, to 25 June (ignoring the request for 28 June). I noted at the end of my email that threats to apply Tree Preservation Orders to Trust lands were not constructive or conducive to successfully negotiating an MoU. Again, conciliatory and accommodating. However it did help steel my metal, or whatever that phrase is, for pushing ahead with the tree replacement program if the Council, as we expected, started to lobby against any new plan that didn’t include keeping all the trees nominated for removal if this was in the best interest of the Domain and its landscape.

Meanwhile, of course, we looked at our options to deal with a Tree Preservation Order should the Council attempt to apply this to the Trust. The options provided by our Departmental lawyers were, in essence:

1. Pass special legislation to disallow the Council to apply a Tree Preservation Order to Trust land.

2. Ask the Minister for Planning to amend Model Provisions for Environment Planning and Assessment to exclude the Trust.

3. Seek withholding of approval from the Minister for Planning if the Council was to refuse consent, on the basis that develop consent is needed to cut down a tree where the application is made by the Crown (i.e. the Trust in this case).

Option 2 would have to be done prior to the Council amending its Order and it would be possible the Council could change its Local Environmental Plan so that management of trees would not be dealt with under the Model Provisions (although this would take some time). Option 3 was open to interpretation and would need to be tested. Minister willing, option 2 was favoured by most of my colleagues.

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8. Reprieve for fig124

In the Bible, the sycamore tree climbed by Zacchaeus, the dishonest tax collector, was more likely a ‘sycomore’, Ficus sycomorus. This species grows and thrives around the Mediterranean, unlike what we call the Sycamore today, which would not survive in the Palastinian climate. As Michael Pembroke remarks in his book Trees of History & Romance the many Sycamore groups set up around the world to support restorative justice would better be called fig societies.125

A picturesque landscape

Right from the gecko I meet regularly with staff in the Minister’s Office, and in particular Mark Aarons, to make sure the Government was aware and supportive of the approach the Trust was taking. On 9 June, with Director General Lisa Corbyn’s backing, I sought their support for changing the Model Provisions for Environmental Planning and Assessment (option 2) – this definitely seemed out best option despite some further caveats about it possibly taking some time to get drafted, go to Parliamentary Counsel and then to the relevant minister’s department. I got the support of the Minister’s Office.

The MoU negotiation continued with us sending the Council another draft on 10 June, including a severe reediting of their 7 June version. We both agreed on reviewing our tree management plans every two years, on holding a joint conference on the conservation and renewal of tree landscapes, and on adding a City of Sydney Council representative on our Botanic Gardens committee. We don’t agree with the Council’s proposal to establish a Public Domain Committee (with three councillors and one Trust representative) to review plans of management across the Sydney local government area (including Trust lands) and we certainly don’t agree with stopping work on Hospital Road and going back out for more expert opinion and assessment. Yes, seriously. The Council asked for that to be part of the MoU. Clearly good faith bargaining was being tested and we

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needed to prepare for life without an MoU.

With that in mind, and with a by now deeply lodged distrust of the Council’s attitude and intent (dating back to the day we met with them on Domain), I asked (11 June) the department’s legal team to provides options to the Minister for dealing with threat of Tree Preservation Order being applied to Trust.

Alistair Hay, Director of our Botanic Gardens and Public Programs Branch, reviewed the expert reports from the Court Case and on 11 June 2004 made a series of recommendations to me, which I accepted. The two independent arborists had considered one of the figs as being in better health than we had assessed and Alistair suggested we retain this tree and adjust the replanting design to work around it (removing one tree changed the aesthetics of the new plantings slightly). The Botanic Gardens Committee gave their strong support to this option. There was also some consideration of the term ‘avenue’ and whether it could be applied to a single row of tree. The experts involved in the court case disagreed on this point but Alistair recommended we accept that ‘while generally two-sided, may legitimately be so described when one-sided’. Fair enough.

A summary of the Report of Joint Conference of Expert Witnesses126 prepared as part of the judicial review gave some insight into the views of the Council’s chief expert James Weirick. In this conference our two experts, Richard Lamb and Michael Lehaney, shared their views with James and documented where they agreed, or not. Weirick disagreed on a number of points. He felt the public would consider the loss of trees as unacceptably changing the Domain and that our species replacement selection and design was wrong. He agreed that the the Moreton Bay figs under question would, at some time, need replacement but said this would not be in the ‘short term’ (agreed at the conference to mean 0 to 10/15 years). He suggested that fencing them off should be considered – despite the visual intrusion and practical difficulty in doing this. He also, interestingly, considers that ‘changes of species are appropriate for the Royal Botanic Gardens, but...not...justifiable in the Domain’. This is because, in Weirick’s eyes, the Domain is ‘more of a picturesque landscape based on large groupings of broad canopy trees’.

Our expert arborist, Judy Fakes, also held conference127 with the Council’s expert, Ian English, and agreed to disagree in a number of areas. They agreed that one tree (Tree 1) was in reasonable health

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and could be retained for up to 25 years with regular annual inspections and ‘removal of dead and damaged branches as they arise’, and that another (Tree 2) should be removed. A third tree (Tree 6) they agreed was in ‘average’ condition and should be subject to routine maintenance if it is retained. Tree 6 ‘is not a fig, but a eucalypt commonly called a tallowwood’. As Alistair Hay points out in his review of the evidence and opinions from the hearing (his background document to the recommendations he made to me),128 the tallowwood has relatively low heritage significance. He notes that James Weirick considers it represent a 1960s naturalistic planting but Alistair suggests this is drawing a very long bow with no evidence of design at hand and it being unclear how a single tree can represent any kind of planting design. He points out that it can be counter-argued (with equal impunity but high likelihood I would add) that the tree is an ad hoc planting and an intrusive element. On the other three trees, all figs, the experts disagreed on the appropriate course of action trees and on the strategy for establishing new trees. In his first discussions with me Alistair Hay canvassed leaving these three trees, rather than just the one he finally recommended. This option would mean one of those trees would need significant extra care and attention, out of proportion to other trees on the estate and its value (in any sense), and a major change to the replacement planting design. In our minds it would only be done to appease the Council and not for any sound horticultural, heritage or landscape reasons.

So we had reviewed the evidence and made a decision. Despite it being easier to stick with the original plan and give no concession - I was well aware that any change would be promoted by the Council as us having made a mistake in the first place - or to exclude all three trees under dispute from the removal plan, I preferred to do what was right and right for the long-term, based on the evidence. That meant keeping one tree.

Sunday 13 June I was back in hustings, doing media interviews with Minister Debus. We stood beside a trailer of Hoop Pines near the Eucalyptus grandis outside my office (my Tree of Truth!) and talked about the saving of one Moreton Bay fig and the decision to remove four more and one eucalypt. Channel 9 ran a longish story with grabs from Minister and myself (me saying people could sit picnic under the new trees in 10-20 years). ABC television ran a shorter story with a longer grab from me (about original plan being ideal but

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me being happy with reviewed plan and that we could still replant the avenue for the enjoyment of the next generation). Both included interviews with protesters who said (Channel 9) such figs are better respected overseas and (ABC) threatening a hunger strike. No word yet from the Lord Mayor but I we knew we wouldn’t die waiting. Similarly, from the Telegraph after I spoke with them; we discussed the expert evidence at length so I expected something like ‘Gardens tree experts get it wrong’.

I faxed and emailed the revised tree plan to the City of Sydney Council (to Sue Salmon) and asked for their comments within two weeks. We agreed to a further 2-week stay of any activity on site so we can continue MoU discussions (and the draft MoU includes a 2-week comment period from them) but they will undoubtedly be unhappy about us publicly announcing the new plan before seeking their comments. Our view was that we knew what they thought on these matters, at great length, and as stated in Court, the decision sits with the Trust. At this point it was difficult to conceive of an MoU ever being agreed to by both parties but I was willing to keep trying, at least for a few more weeks.

Fit fig will be spared the chop

On Monday 14 June The Telegraph ran a story129 with the byline ‘Domain tree stands tall as trust admits big mistake’. The ‘big mistake’, of course, was doing the right thing, reviewing the evidence and making any necessary changes based on that. We would keep one extra tree that was borderline in terms of health and negative impact on the landscape if we left it – mind you, it would almost certainly need to be removed in the next 10 or 20 years, so it was a postponement rather than full reprieve. I said I’d review our internal assessment process in light of this decision but from what I had seen so far the decision to keep or remove this particular tree was largely a subjective one. Anyway, our big mistake was being responsive and responsible. Our slightly smaller mistake was making available a map on which I’d scribbled some notes. This I offered naively to The Telegraph to show them where the trees would and wouldn’t remain. On that map I had helpfully, for me and, as it turns out, The Telegraph, added a few notes for my media conference.

The main offending note was ‘our health assessment incorrect’ pencilled next to one tree. This a reminder to myself about which

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tree was not staying. In retrospect I should have scribbled ‘assessment reviewed and revised’, not showed it to the media or better still, not written anything down. It wasn’t fair on my staff to say, or have reported, that the original assessment was ‘incorrect’. There is no absolute right or wrong in this kind of thing. But there you go. Lesson learned. The Sydney Morning Herald ran the same story in a single paragraph column item130 headed ‘Reprieve for Fig’, based on a statement from the Minister. And apparently Clover Moore was on the airwaves today saying she was annoyed at the Minister’s announcement and would spend the next two weeks trying to save more trees.

In preparing to answer questions by John Stanley on 2UE I made some notes for myself in answer to the obvious question: if you got this tree wrong, how can we trust you on the other decisions? Firstly, this was a question of high risk versus not immediate risk. That is, the tree does have structural problems and will need to be very carefully managed. Secondly, it would have been preferable to remove this particular tree now, while only a low to medium risk, before it became more severe. It would also have been the right thing to do in terms of the overall landscape succession and maintaining a healthy and attractive parkland. Thirdly, this set of trees are now some of the best diagnosed of any tree in Sydney in terms of health and safety, heritage and landscape. We have reviewed them publicly, in court and with various experts to come to this revised decision. Our expert committee supports this approach – that is, retaining one tree and not the others. As a scientist and responsible manager I’m open to new evidence, new perspectives and then happy to review decisions.

In response to the anticipated question about whether this vindicates the Council stepping in – i.e. to save at least one tree – I noted to myself that the original plan was still acceptable and to my mind the best taking into account the longer term perspective but there was a case to be made for keeping this tree and in the spirit of consultation it was perfectly reasonable to keep this tree, but not the others. If this tree had been removed it wasn’t my view that a ‘wrong’ decision would have been made, so the Council can relax on that front. As to why our experts assessed this particular tree differently, again I would reiterate that this was a matter of interpretation of the evidence and decision based on various time frames – medium or long-term.

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Thursday 17 June is my birthday and I celebrate with no media commitments or correspondence with the City of Sydney Council. The next day I am copied into a letter from the Lord Mayor to Minister Debus complaining about our public announcement and threatening to extend the new Tree Preservation Order to include the Trust. In single-paragraph item131 the Sydney Morning Herald reports that the Lord Mayor says the Council was not consulted over the new tree replacement plan and they had no alternative but to extend their Tree Preservation Order over Trust lands.

The letter explained to Minister Debus that the Trust had not been working in the spirit of conciliation and collaboration and requested an ‘urgent’ meeting with Ministers Debus and Knowles (the latter being responsible for Infrastructure and Planning legislation). Apparently Bob Debus cursed a little (at the prospect of this dragging on some more I imagine, and a little for Clover and even me perhaps) and put the letter aside for the weekend. I drafted some notes for our Department lawyer Maryanne McCarthy correcting a few misstatements in the letter – e.g. we gave the Council two weeks to comment (as per our draft MoU). By publicly announcing our revised plan (leaving one fig) we were of course implying that the plan was close to final. However it certainly seemed appropriate for us to put out some good news stories rather than follow the latest diatribe from City Hall (i.e. we too have to take the PR opportunities when they arise). Anyway, the letter was full of bluff and gruff.

Modelling provisions

Anyway, back in the Minister’s Office the paperwork is now ready to change the Tree Preservation Order ‘Model Provisions’ to exclude the Trust. This change has only to be gazetted in the Govt Gazette after signing by Minster Knowles. The best result, for us (and reality), would be that the order is signed by Knowles this weekend, ready to run in the regular Friday gazette. What we have to watch is the timing of any Council changed to the Tree Preservation Order to include the Trust. I understood that if they gazetted that prior to our gazetting the exclusion, it would be far more difficult to reverse. The Council had to give three day’s notice of an extraordinary meeting and we could, if necessary, get the order gazetted in a special issue of the Govt gazette at very short notice (i.e. less than three days I gather). So that’s where it stood on the weekend.

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On Monday, I think it was, I got an email from Mark Andrews at the Minister’s Office suggesting ‘we’ (I presumed the Ministers and me) agree to meet with Lord Mayor on Thursday. This would mean if the meeting went a little feral, the gazette would be due the day after and a council meeting couldn’t be held before it came out. So interesting times, still. And the remaining trees remained.

Wednesday 23 June, the day before our proposed meeting, the Lord Mayor writes again to Minister Debus with a full (seven page) response to our revised replacement plan. She notes that she wrote last on 17 June asking him to reconsider the Trust’s decision to remove the remaining trees identified for removal in our plan. Moore argues that the based on the expert evidence provided to the Court there are seven recommendations we should consider. Moore says she is willing to meet ‘as a matter of urgency if you consider there is an opportunity to reconsider the Trust’s decision’. We certainly welcoming a meeting as a matter of urgency, but not to reconsider arboricultural decisions.

The response starts with a recap of recent events, ending with ‘On Sunday 13 June, in the middle of the long weekend, the Trust sent the Lord Mayor’s Office a copy of the Trust’s revised Tree Management Plan and at the same time Minister Debus released the Trust’s revised Tree Replacement Plan and announced the Trust’s intention to cut down five of the six trees’. Their seven pages end with seven recommendations, starting with retaining all the trees destined for removal and include planting more trees in an ‘irregular picturesque’ arrangement. The Council is ‘adamant’ that we should retain the tallowwood (you can read elsewhere our view on this tree) and urges, slightly less strongly, we keep the other figs until new ones are established. ‘Tree 1’’ they agree with us, should be retained. Curiously they revive the argument that because the only instance of actual injury to the public was from a tree not part of this replacement strategy it is somehow OK to keep them – the implication seeming to be that we base our replacement strategy on reactive lopping after injury. The Tree of Truth they say we kept after protest from the NSW Parliament. Actually we decided once we knew about it’s additional significance that we would hang on to it a bit longer. We had always argued that these trees had more significance as part of the landscape than individually, and would have responded differently, as we now did for this tree, if there was a particular significance that might change our decision making. It

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wasn’t that this extra value made it ‘more safe’ or ‘more attractive’ but it did sway the balance and in effect support keeping an ugly tree and/or one that would require a lot of surgery to safe and functional. The letter goes on to suggest we implement other parts of the Domain Master Plan and make sure we subject the entire area to a full archaeological investigation. It reminds us that we did not enter into genuine negotiations because the Minister announced revised plan while the MoU remained unresolved. In brief, the Council will continue do what it can to stop the Trust removing the remaining trees.

Andrew Woodhouse writes again to the Wentworth Courier saying that while good that one of the Moreton Bay figs won’t be removed, ‘we will never know to what extent the other historic trees and avenues, including Australia’s first indigenous fig avenue, were unnecessarily sacrificed’. Our decisions are, according to Mr Woodhouse, ‘a money-motivated compost of subjective aesthetic improvements mixed with a rush to raise revenue’. It’s time, apparently, to appoint community representatives to the Trust’s Board. Presumably one community most in need of representation would be the Potts Point and Kings Cross Conservation Society Inc (Mr Woodhouse’s affiliation in this letter).

The Sydney City runs a letter from Clover Moore presenting her interpretation of recent events: the fight is not over, Council acted within a week of being elected, we chopped the trees down even though they asked us not to, technical interpretation of the Tree Preservation Order situation, and noting that she had written to Minister Debus to ask him to reconsider our decision.

On 25 June I sent a letter to Lord Mayor responding to the concerns they raised with the revised plans and reaffirming our commitment to a Memorandum of Understanding between the Trust and the Council. I pointed out that my offer to talk about the MoU hadn’t been taken up yet by the Council and that the extension I had agreed to –– to 25 June – seemed more than sufficient. Further, I said, I was acting in accordance with the latest version of the draft MOU by forwarding the Council our draft Tree Management Plan with two weeks to comment. The commitment I gave to the Court, I reminded the Lord Mayor, was not to reassess the trees or find some way to keep them standing, but to take into account new evidence that came to light in regard to public safety, declining tree health and the

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renewal of the Hospital Road avenue. I included a detailed response to the seven points they raised prepared by Alistair Hay and ended with ‘I remain hopeful that this matter can be resolved in a timely and cooperative manner’.

Of course I prepared myself some media notes highlighting the nonconstructive approach being taken by the Council, including their persistence with the erroneous argument that the trees are being removed for an entertainment complex, that they are trying to save the last Moreton Bay figs in the Domain (there are more than 100), their unwillingness to accept that alternative perspectives are possible in landscape design, no acknowledgement that we consulted extensively with the previous council, semantic quibbles and gross exaggeration. Worse still was the implication in their response that since no branch had fallen and injured anyone yet we should keep the tree until one does! Bit long for a media grab but I was ready to fire back should there be any further irritation from that quarter.

At the same time I helped Maryanne McCarthy in our Department Legal Service to prepare for a meeting between Ministers Debus and Knowles, and the Lord Mayor. Given the Lord Mayor threatened to amend their Tree Preservation Oder on 28 June, Maryanne advised the two Ministers that they should act swiftly. Any change would come into effect immediately and cutting down trees on Trust lands would require Council approval. It was pointed out that I had invited the Lord Mayor to meet and discuss the latest version of the MoU but the Council was fixated on stopping the tree replacement (the program whose reasonableness had been decided clearly in our favour by the court). Maryanne reiterated that three options had been proposed in her 10 June briefing paper and noted that one of them, modifying the Model Provisions, would need the Minister for Planning to make and gazette and amendment before 6 pm on 28 June (when the Council meeting was scheduled to begin).

In a letter published by the Sunday Telegraph on 27 June it is suggested we keep the remaining Moreton Bay figs and barricade off the area – ‘Have both parties thought of that idea yet?’’ Well yes but next to a road it wasn’t possible. This solution would also simply delay the tough decision to later, for another Director, for another Lord Mayor, unless we continued to fence off parts of the Domain as trees became unsafe.

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Monday 28 June 2004

At 8.30 am I met with Craig Knowles (Minister for Planning, and other things), Bob Debus (Minister for the Environment), Clover Moore (Lord Mayor and self proclaimed arch-enemy of the Royal Botanic Gardens and Domain Trust at the moment), her senior policy advisor Sue Salmon, Ian Innes, Jenny Mason and Mark Andrews from the Minister of the Environment’s office and a lady to my right who was from Craig Knowles’ office.

The meeting went over the same old ground with the Mayor trying to tell Debus that she was shocked at the Trust’s response to the Council’s response to our revised Tree Replacement Plan. Debus played bad cop and Knowles big cop (apparently Knowles told the Lord Mayor in his phone call with her later in the day she was lucky it was Debus and not Costa or Sartor!). Ian Innes presented some erudite explanations of what we were doing and why. I kept firm resolve and an hospitable exterior. We all acknowledged, more or less, that the Trust should have responsibility for what it did on its land and that the Council’s Tree Preservation Order should not apply to those lands. Two hours later Moore left saying she would talk to her fellow councillors and ring Knowles back after lunch on their decision as a Council.

As soon as the Lord Mayor left the room Minister Knowles signed an order that excluded the Trust from any Council Tree Preservation Order. It was to be sent out to be gazetted that afternoon, after Knowles had heard from Moore, and no matter her or her Council’s response.

That evening I spoke to journalist Tim Dick that evening and the Herald ran a story132 headed ‘Moore gives up Domain tree fight’. The on-line version began by saying ‘Five of the six surviving trees in the Domain’’s Hospital Road will be cut down, leaving just one Moreton Bay fig, after their most vocal supporter, the Sydney Lord Mayor, Clover Moore, gave up the fight yesterday to save them’ and went on to say that ‘She [Moore] saw the game was up after her bluff to extend the City of Sydney’s new tree preservation order to the Royal Botanic Gardens and Domain Trust’s land was called by the NSW Government, which said it could introduce legislation to undo any extension’. Green MP Lee Rhiannon was quoted as being ‘very disappointed’.

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I did a 702AM interview the next morning which went pretty well, despite having an irate caller who say she was still disgusted at us removing the trees. Late that day I got a call from Vince Sorrenti at the NSW Heritage Council saying some relics had been found in the soil disturbed during the early tree removal/replacement. Ah, Hospital Road, the place where everything can, and does happen! Ian Innes said he would talk to someone from their office tomorrow and run through what we have done as part the Domain Master Plan to cover such eventualities, and see what we have to do if the relics (pottery, bones and the like) turn out to be of importance. We may, for example, need to seek approval to continue work on any ground disturbing activities. This I understood to mean we could continue with tree removal but may strike difficulties when grinding stumps and roots.

Minister Knowles is true to his word and a special supplement of Government Gazette133 carries a simple paragraph headed Order under the Environmental Planning and Assessment Act 1979. It states that the Minister for Infrastructure and Planning amends the Environmental Planning and Assessment Act Model Provisions 1980 by inserting a clause that excludes Botanic Gardens Trust lands from any tree preservation order made by a local government. Another small step forward.

But just in case we thought we could return to managing their own business, in an article134 strapped alongside Clover Moore castigating developers for turning Sydney into Hong Kong, we have a new protest brewing. This time the Lord Mayor states her opposition to the erection of noise walls on both sides of the Cahill Expressway between the Royal Botanic Gardens and Domain. She describes it as ‘an appalling intrusion onto the heritage parklands that will shock park users’. The same article quotes Professor Weirick’s clearly deeply held fear that such a wall will sever forever the connection between the two areas. It is as if the eight lanes of traffic don’t already do this. Both he and I would welcome any real reconnection, but... Weirick then creatively links this wall to the avenue replacement calling it a backyard blitz, saying ‘citizens of Sydney will come and be unpleasantly surprised when they find out what’s been done’. No need to wait, I think everyone was aware of the avenue replacement, and I was proud of the wall. Still this is another sideways step and a new theme for talkback ire and oddly inaccurate and misleading comments from all. You can visit the wall now and

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decide if you’d prefer to see and hear cars from the Domain.

Moore gives up

‘Moore gives up Domain trees fight’ reports the Sydney Morning Herald135 on 29 June. The article reports that Clover Moore saw the game was up after her bluff to extend the City new tree preservation order to Trust was called by State Government. The article quotes me saying the agreement to set up some kind of more consultative process with the Council in the future was positive and that I was pleased to get on with the work in the Domain so it was ‘as wonderful for our kids as it is today’. A letter in the paper makes reference to the Hospital Road tree removals saying that now it was at a close attention should shift elsewhere (e.g. to Sydney Electricity lopping street trees in inner Sydney suburbs). The Telegraph runs a single column item136 saying the court case will cost taxpayers almost $50,000 for each tree, noting the Council spent $80,000 fighting the decision and the Government and Trust $140,000. Clover Moore said it was money spent on a good cause. I started to look into how we might set up a useful consultative committee, seeking advice from colleagues such as Peter Duncan who has just finished a five-year stint as Director of Centennial Parklands.

Sydney City reports137 that Clover Moore hopes the forthcoming MoU will result in the ‘saving of the trees’, confirming the Council will not proceed with an appeal. Minister Debus is reported in the same article as calling Moore and Richardson ‘Cappuccino environmentalists’ and he slams the Council for coming in late and joining a cynical protest against the Trust just doing its job. The City Weekly says138 the ‘City of Sydney Council has lost its battle’ after a final attempt to save the trees when Moore met with Ministers Debus and Knowles. They point out the Council’s tree preservation order now can not apply to Trust lands. The article also makes the odd statement that the Trust ‘recently acknowledged that it failed to adequately consult the community on the matter, but nevertheless intends to proceed with its plans’. Andrew Woodhouse is quoted as calling the Trust’s decision ‘arrogance only equalled by ignorance’ so perhaps he provided this incorrect observation about our consultation.

Moore may have given up, at least temporarily, but others drift in to fill the void. On 1 July Stephen Mori sends out a media release139

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addressed to the Minister of the Environment, stating that the removal of the figs is just the beginning of a 10-year plan. It mentions 15,000 people signing petition, and that the Trust is dishonest. The statement says the ‘plans of destruction’’ have affected 18 historic trees aged between 150 and 200 years old. Mori says that the Sydney Hospital has not been consulted about ‘the trees’ role in patient recovery and family support, even though the trees are situated right on Hospital Road’. Perhaps it doesn’t need to be said but rest assured gentle reader that we did include the hospital in the Domain consultation and it is because we are fully aware of the benefits of trees that we are removing and replacing the ones in question...

I recall a meeting around this time with representatives of the City of Sydney asking me to reconsider seeking costs for the Court hearing. I can’t remember the arguments but took it as ambit claim. In time, in response to our request, the Court awards us full cost. Donna Campbell, head of Legal in the Department returns from 10-weeks leave to fulfil the expectation in her farewell email to me (23 April 2004) that ‘I hope by the time I get back that the Council is paying our legal costs...’.

The brouhaha seems to have generated an interest by journalists, if not by media consumers, in tree related matters. A letter in the 2 July Sydney Morning Herald suggests that the recent spate of tree removals (Hospital Road, Crows Nest, Hurstville) in the city is related to an ‘overstatement of risk and an exaggerated fear of insurance liability’.

You know nothing

On the morning of 2 July we prepare to remove the last trees. We hold a media conference outside my office, near the beautiful Flooded Gum. Protesters gather behind us with placards and chants. Minister Debus, Judy Fakes and I say a few words. I remember Judy given a particularly long answer to the first question asked of her, ending about five minutes later and finishing off the media conference (a technique I must remember). The radio news headlines are that protesters have ambushed a media conference by Minister Bob Debus but that they were unable to prevent trees in the Domain being removed. At one stage one of the protesters attacks my motives and Debus responds saying ‘you know nothing’ and that

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the protesters behind him are not tree experts. The ‘you know nothing’ quote runs on three television news broadcasts that evening. Deputy Opposition Leader Barry O’Farrell makes the first and perhaps only interjection I remember during the saga, saying there is no evidence of the trees being dangerous (presumably on the basis of information fed to him by Michael Richardson). The Opposition Leader himself, John Brogden, says the removal today is disgusting and similar to bulldozing the Opera House. Premier Carr says it is part of the cycle of life and that experts say the trees are dead – perhaps over simplifying the situation but cutting through as always (despite Michael Richardson and others desperately correcting him later in the day, but which time the trees probably were in that condition). Radio talkback and host advice is to prune off any dangerous branches, and various callers suggest new roads and other developments are behind the tree removals.

The absence of the Lord Mayor doesn’t entirely stem the flow of propaganda. The day after the media conference, the head curator of Australian Art at the Art Gallery of New South Wales, Barry Pearce, says140 he protested against tree removal but these are his views, not Art Gallery’s. He denies he was ‘gagged’. Apparently it was Stephen Mori, local art gallery owner, who suggested Pearce had been told to shut up. Mori, reported the Herald, wasn’t ready to leave the Domain yet – he had spent the last two weeks there, camping overnight. The Herald also reported in a single column paragraph141 that ‘Government chainsaws came to Domain fig’s yesterday, but protesters delayed the felling of two trees by refusing to climb down’. According to the paper, police and security guards arrived at 4 am, ‘dragging away’ all but two remained protesters who ‘remained in trees and vowed to fight’. As the axe falls, according to The Daily Telegraph142 ‘campaigners camping under the historic figs tried to climb them to stop the “massacre”’. It is reported the Council spent $80,000 on a ‘futile legal challenge’, while the Trust spent $140,000 defending it. Premier Carr is quoted as saying the axing saddened him but it was needed, and the journalist reports that five people ambushed us at media conference where we were promoting the planting of the new 30 trees. According to the story, these protesters challenged Debus and Dr Tim Entwisle (my name now, curiously, spelled correctly).

At first light, the contractors started removing the five remaining trees designated for removal along Hospital Road. Police and

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security were called in advance of the work and got most people out of the compounds. One man climbed the tallowwood before police and contractors arrived and a lady climbed the most decrepit fig early in the morning. The police were not keen to physically remove the protesters from the trees but as it happened the contractors only had time to remove the three, uninhabited, trees anyway. The contractors weren’t keen to come in the next day and wait around (they had already been messed about considerably over the last few months) so we said we’ll call them. Removal of the final two trees would depend on their availability, and police being rostered on and with greater resolve to climb trees.

That weekend it was refreshing and amusing to be asked by a friend at dinner what my view was on the removal of the fig trees in the Domain. After explaining, calmly, that it was my decision and it was a good one, she said but what would all the bats do (the bats, Grey-headed Flying Foxes roosted in the Palm Grove, well away from Hospital Road).

At 4 am on Thursday 8 July security guards arrived on site and cordon off a Moreton Bay fig and the tarrowwood, the last two of the now ten trees being removed from Hospital Road. I arrive just after 6.30 am, before the contractors have set up and about an hour before the first chainsaw is started. Police were there early and no one was able to get into the trees. At 9.30 am half of the Moreton Bay fig has been removed and half of the Tallowwood. A crane arrives at 11.00 am to finish off the heavy work on both trees and at about 1 pm we had just one main trunk remaining of the ten trees (there were still remnants of the other three Moreton Bay figs to be removed). At 3.12 pm, I got an sms from Mark Savio, head of the Royal Botanic Gardens and Domain part of the organisation, to say it was all completed. I was at a lunch with Bob Debus, Jenny Mason, Mark Aarons, Chris Ward and Ted Plummer from the Minister’s Office, Philip Selth (head of Australian Barrister’s Association) and one of the MO’s Attorney General’s support staff. The lunch took about as long as my cross-examination in the Land and Environment Court, two and a half hours. I felt I’d earned it.

Just before 4 pm Bob Debus, Jenny Mason and I walked back via the Hospital Road area to see all the trees removed. Satisfying to have finally succeeded in removing these trees so we can replant the avenue. Not even a tear of sadness which would have been my initial

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reaction had we proceeded unencumbered a few months ago. I was only thinking about the satisfaction of planting the 12 Figs, ten Cotton Palms and eight 8 Hoop Pines.

The editor of The Daily Telegraph now143 refers to Clover Moore’s protest and court challenge as ‘a futile attempt to save a number of aged and dangerous Moreton Bay figs’. In an item about the Council providing free firewood to protestors in another part, the Telegraph notes that after spending in excess of $80,000 of ratepayer’s money on the Hospital Road hearing, the Lord Mayor seems to have ‘become something of a limb lopper’. The Sydney Morning Herald runs a similar line, attaching it to a story about an aboriginal embassy on Council land. The Lord Mayor, they say, has spent in excess of $80,000 of ratepayer’s money in a futile attempt to save a number of aged and dangerous Moreton Bay figs. On 9 July the Sydney Morning Herald144 publishes before and after pictures of the Domain, with the tallowwood disappearing between images. With no conflict, the story dies.

I take a holiday, perhaps a deserved one. The only work call I get during my two weeks away is from Gary Humpheries at the Roads and Traffic Authority wanting to know if I still want to go ahead with sound walls along Cahill Expressway (yes) given that Sydney City Council seemed to have objectives (isn’t that even a stronger yes!). In reality I’m happy to talk about objections to a certain extent but not to throw away a $2 million great idea because the Council don’t like it. They haven’t exactly earned my respect.

Almost a month later (1 August) I lunch with Gretel Packer and Alistair Hay. I spend some time explaining to Gretal why we removed the Hospital Road trees and she says her parents are still unhappy with the decision. Coincidently Bob Debus is also lunching at the Gardens restaurant and he comes over so say hello to us all. We have a brief conversation but don’t mention the trees. Jamie Durie leaves a copy of his book ‘The Outdoor Room’ for me with Alistair and Ian Innes, including a note thanking me for my intro comments in his next book ‘Patio: Source Book’. He also scribbled at the bottom ‘Congratulations on a great job during tough times’.

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9. Postscript

What we call the fruit of a fig is an inside-out bunch of female flowers, technically a ‘syconium’. The male flowers are elsewhere on the same plant, or in some fig species, on a different plant. The fig wasps lay their eggs on the flower ovules inside the syconium – it’s thought that the stimulus of the flower ovary triggers the release of eggs.145 These ovaries turn into galls containing the wasp larvae. As evolution would have it, some of the styles – the elongate receptive part of the flower ovary –– are longer than the egg laying portion of the wasp, and these still set seed.

Axe fell too early146

On 3 August, Simon Benson from The Daily Telegraph had one last hurrah,147 relying on the unreliable testament of the Opposition Spokesman on the Environment. In his article headed ‘Axe fell too early – Figs “had 20 years left”’ he includes apparently glowing quotes by Alistair Hay about the good health of the trees we had just removed. Turns out they were based on a paper given to conference in 2003 and referred to Central Ave figs, not Hospital Road figs. The article also mentions that the trees removed dropped fewer limbs than other trees in Domain (news to me but not necessarily relevant) and that the trees were removed so that ‘there would be more room for outdoor concerts’. Which was bullshit. Benson also mentioned a link to using funding from the RTA as part of a ‘deal’ over the removal of figs from the Cahill Expressway. That funding did come to the Botanic Gardens, as part of the arrangement with my predecessor, but we could have used it for any tree improvements or work in the Domain. The priorities around which trees to remove and place had been on the table before that RTA deal and it was irrelevant in my decision making.

I responded on ABC 702AM, on my regular early morning segment with Angela Catterns, without having seen article (and not knowing source of the 20 years quote). I followed up with Alistair soon after and was better prepared for the rest of the day. The producer of the

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2UE Breakfast Show, hosted by Mike Carlton, rang to ask if the story was true and based on new report. I explained the situation to them and to their credit (although I’m never quite sure when its better to put fires out or to avoid fuelling them) decided not to run with the story. I did to some news grabs for 2GB, setting the story straight but apparently too late for Alan Jones to run with a rant based on Daily Telegraph interpretation. And to Angela Catterns’ credit, she ran a correction the next morning about the same time we’d spoken the day before, based on information I phoned through to her producer Jenny Smith. Seeing as I’m doling out credit, under the slightly odd heading ‘Domain trees axe148’, the next day the Telegraph ran a short letter from me under a large picture (although provocatively of a tree being lopped, it was captioned ‘Lopped at the end of their life cycle’) highlighting the error in the previous day’s story, that the report was about different trees and had nothing to do with trees along Hospital Road.

The City Weekly149, bless them, run an item by editor repeating the (incorrect) Daily Telegraph story and with quote from Andrew Woodhouse calling for my resignation. Woodhouse says that after the Trust’s Alistair Hay made this ‘candid admission’ about the health of the trees the director ‘‘Dr Entwhistle’ should resign. Clearly enjoying the chance to chime again, Woodhouse adds that ‘if the Trust can’t manage a pruning programme for its trees how can we trust them to honour our heritage’, and ‘Mr Carr’s pretence in protecting children is asinine; there are more children killed in home driveways than would have ever been killed by a falling limb from those once-proud and ancient figs’. So at least we have a test now for whether something is dangerous or not – will it kill more or less than the number of children killed in driveways. There is also the small matter of Dr Hay’s candid admission being not so candid and not an admission. City Weekly ran a correction I sent to them the week after150, but I don’t recall hearing from Mr Woodhouse.

New trees for Domain

In the first week of spring, 2004, 30 new trees are planted near Hospital Road by Bob Debus, 20 school children form Cabramatta Public School Garden Club and myself. Bob plants a ceremonial fig, I planted a hoop pine. In Sydney City151 I was quoted as saying the trees would have a natural lifespan of 120 years and grow to their full height over the next 20 years. I went on to talk about trees

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combating global warming and producing oxygen every day for the next century. All from our media release and the brief statement I made at the time of the planting, geared towards an audience of school children.

As the new trees establish and Sydney moves on to other concerns, like the noise walls I plan to erect alongside the disruptive Cahill Expressway that excised the Domain from the Royal Botanic Gardens in 1958 (I was also working behind the scenes to support any scheme that might banish the expressway for good), there is some tentative solidarity emerging from the horticultural community. Arborist Danny Draper152 says ‘We need to remember that trees are in fact renewable and dynamic’ despite the very human response to tree removal which ‘stems from our attachment to trees as symbols of continuity’’. Our own head of Botanic Gardens and Public Programs, Alistair Hay, is quoted in the same article as saying the tree replacement in the Domain will mean ‘the people of Sydney will have a beautiful and safer treescape to enjoy into the 22nd century’. But then we would say that.

Less constructively, it turns out the City of Sydney wrote to the NSW Heritage Office in June 2004 about their concern about ‘archaeological issues’ (explaining the intervention by that Office a few weeks ago) that might arise during the tree replacement in the Domain. As it happened, the reply was delayed until 20 August (we received a copy on 1 September), after the old trees had been removed and as the new ones were being prepared for planting. On the basis of the advice we gave them back then the Office reassured the Council that these trees works were within the specific site exemption granted to the Royal Botanic Gardens and Domain Trust for works ‘necessary for the curation of the living collections’’ and within the scope of its various planning documents. That is, the Council could relax, the Domain is in good hands.

The Victimisation of the Moreton Bay fig

The trees are long gone but on 28 September 2004 the Lord Mayor opens an exhibition called The Victimisation of the Moreton Bay fig and Destruction of the Domain’s Great Landscapes. It runs in the Town Hall for two weeks, and includes paintings, videos, photography, documentation and performances ‘exploring and commemorating the life of the forgotten trees’. These trees being the

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18 [sic] removed from Hospital Road a few months earlier, destroyed for short term and long term corporate gain, violating the sanctity and integrity of our hallowed public institution, the Royal Botanic Gardens and Domain Trust. This was a public exhibition and protest to promote living heritage and human rights. Or so the brochure said – I didn’t make it.

In October 2004 the City of Sydney begins its own fig massacre with the ‘emergency’ removal of seven Hills Figs from Hyde Park. Ex Deputy Lord Mayor of the City of Melbourne, Dixie Coulton, writes in CityWeek153 about councillors being given only 24-hour’s notice of ‘the proposed removal of the fig trees in Hyde Park’ and asking how long the Lord Mayor knew about their demise (somebody knew in September 2003 at the latest – see Tree Wise Men report below). Coulton leads off with noting that the Lord Mayor had jumped ‘on the bandwagon of condemning the State Government over the purported lack of consultation about the removal of the fig trees from the Domain’. Elsewhere in the same paper Bob Debus points out that the State Opposition have remained ‘strangely silent on historic figs which are being cut down in Hyde Park’ given how similar it is to the recent removal of trees in the Domain. In a spirited repost he says to argue the two programs are different is ‘laughable’ with perhaps the only difference being the Botanic Gardens had ‘carefully planned their tree replacement program over several years with extensive consultation and the future in mind’. Debus asks ‘where are the Lord Mayor and the tree-sitting councillor’ and the ‘posse of so-called tree experts’? The article by Joy Dodds points out that the ‘highly controversial removal of 11 Moreton Bay figs in the Domain’ was remarkably similar: ‘In both cases, arborists had declared the ageing trees as posing a danger to the public’. And ‘while the Lord Mayor Clover Moore and her Independent team lead a very vociferous attack on Dr Tim Entwisle and his staff for felling the trees in the Domain, in the case of the Hyde Park trees, it was the City of Sydney that initiated the action, causing a barrage of criticism from both Labor and Liberal councillors’.

Small reminders, and small ‘victories’.

In May 2005, the Australian Institute of Landscape Architects hold a Tree Management Forum154 at the Australian Technology Park in Eveleigh. I only attend the first session, to hear James Weirick

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pontificate on his version of history and landscape integrity, and to sense the general mood of the meeting. The forum was promoted as a consensus meeting, bringing together a ‘wide range of perspectives’. There was a little sorting and dusting of the Hospital Road narrative by all sides, and an attempt made to somehow eradicate the issues that led to that matter. The articulated purpose of the forum155 was to develop a ‘Tree Charter’, or at least the framework of such a document. The Tree Charter was to ‘document the values we place on trees in the urban landscape, ideally with a set of criteria to help us all to know when and how the Charter should come into play’’ and to include ‘a set of principles by which we should approach tree management’. As far as I am aware, the Tree Charter or Urban Tree Charter as it was later called, never materialised.

There was furious agreement about how important trees were in the urban landscape and how important tree landscapes were in our cities. But also acknowledgement of how difficult it is to capture and measure that importance in a way that would actually help people who manage urban trees. In the first panel session, on the values of urban trees, there was consensus around measuring a range of different values for each tree, including its role in the landscape, but a feeling that there was often interaction between social, scientific, aesthetic and historical aspects, so a tick-box system is too simplistic. At the second panel session, on criteria for evaluating urban trees, the consensus seemed to be that a monetary value was regrettable but necessary, and that amenity value is often undervalued. It was argued by some on that panel that the often subjective historical values should be rolled up with other associated values such as scientific and social, with amenity perhaps weighted equally against this summation. In terms of existing evaluation systems, panel-member Greg Moore considered the Champion Tree Program used in North America too competitive, the STEM system of New Zealand too idiosyncratic, and the significant tree registers of Victoria and Northern Territory of limited use for general planning purposes. Stuart Reed in his presentation called ‘Dead stumps at Burra? Using heritage charters in urban tree management’, explained that the key elements of both the Burra Charter and its adaptation in the Australian Natural Heritage Charter were to identify, assess, manage and then monitor. He pointed out that most experts in the field did this already and it wasn’t difficult – although deciding on appropriate management after the assessment requires

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some careful thinking.

It’s worth giving some brief background to these documents. The Australia ICOMOS Burra Charter 2013156 (Australia ICOMOS being the local branch of the International Council on Monuments and Sites) refers to trees as one of the ‘places’ of cultural significance, and also gardens and other urban landscapes. Apart from brief mentions under the definitions, these living and changing items of heritage are presumed to be treated in the same way as a building or ‘‘hard’ landscape (included in the feedback during the 2013 review process was a call for ‘gardens’ to be mentioned more prominently as a particular place covered by the Burra Charter). Conservation of places with natural significance, it says, are explained in the Australian Natural Heritage Charter. That Charter brings in the values of biological diversity, natural integrity (i.e. how ‘natural’ it is), indigenous v. introduced species and various natural processes (e.g. ecological, evolutionary and longer-term geological). The conservation processes resulting from application of the Australian Natural Heritage Charter are things like regeneration, restoration, enhancement, reinstatement and preservation. It doesn’t apply easily to urban parklands managed for amenity.

The Florence Charter, adopted by (the international arm of) ICOMOS in 1981, outlines the steps necessary to preserve ‘historic gardens’. It starts well, with the second article helpfully reminding us that ‘the historic garden is an architectural composition whose constituents are primarily vegetal and therefore living, which means that they are perishable and renewable’. ‘Thus’, it continues, ‘its appearance reflects the perpetual balance between the cycle of the seasons, the growth and decay of nature and the desire of the artist and craftsman to keep it permanently unchanged’. Wise words. But while later articles include plans, topography, hard landscape and even ‘its water, running or still, reflecting the sky’ as defining a garden, there is no mention of living elements such as trees until we get to maintenance and conservation. The Charter talks about maintaining a garden in ‘an unchanged condition’ and to replacing species periodically after ‘determin[ing] the species initially grown and...preserv[ing] them’’. Not very helpful in managing an evolving landscape with layers of history and potential for innovation. It does state, helpfully, that ‘in principle, no one period should be given precedence over any other’. Less helpfully, and somewhat conservatively, it states that ‘by reason of its nature and purpose, a

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historic garden is a peaceful place conducive to human contacts, silence and awareness of nature’. It goes on to talk about ‘rare occasions when it accommodates a festivity’, as if there is only one way to view and experience a (historical) garden. It even states that ‘active and lively games and sports’ should be played elsewhere. While this may all be a reasonable generalisation it doesn’t seem to me to be a necessary corollary. Just in case you were in any doubt, the Charter ends with the statement ‘the above recommendations are applicable to all the historic gardens in the world’’, albeit followed by acceptance that additional clauses maybe added for specific types of gardens.

In a more recent issue of Australian Garden History157 Jane Lennon reviews the conservation of Australia’s garden heritage, concluding that the Burra Charter still provides a sound theoretic basis for garden conservation but without a deeper knowledge and appreciation of garden values (interesting horticultural specimens and species, landscape design, seasonal and successional change, and so on) we will fail to conserve what really matters. I have to say I’m attracted to the perspective of another article158 in the same 2014 issue, this time by Chelsea Fringe Festival founder Tim Richardson. It makes a brave call for highly personal gardens to be ‘restored’ by inviting an equally talented living designer to create an equally high quality garden. Not any old gardener or designer trying to recreate something that was highly personal, always subject to change and meaningful mostly in the context of the designer and their lifetime. In other cases we should repair rather than restore (a dubious concept at times anyway). Interesting and dangerously appealing ideas. He ends his essay with ‘there is a place for restoration, but we must be careful about the claims we make for it, and also when to leave well alone’. I would have loved to have brought this into the debate with Professor Weirick both inside and outside the Land and Environment Court, mostly for fun.

Go figure

In 2005, the trees were even longer gone but clearly not forgotten. Carved into the back of a female toilet cubicle in the Royal Botanic Gardens, and copied onto a noted posted on the back of a male cubicle door,159 was this inscription: ‘Endwhistle is a lowlife Bastard. We haven’t forgotten about the Trees that were cut down in the Domain you Tree Terrorist Bastard!’ Another who hadn’t forgotten

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was Opposition Environment Spokesperson, Michael Richardson. In June 2005160 he felt it necessary to warn Sydneysiders that seven trees in the Domain had ‘hazard ratings’ at least as high as the five Moreton Bay figs removed last year. Richardson went on to say that the trees removed in 2004 were done so to make space for Domain concerts and that each of the trees removed had an average value of $716,000. Minister Debus issued a sobering news release pointing out that hazard rating alone is not sufficient to make a decision on which trees stay and which go – it depends on their location and particular risk they pose, and what action can be taken to reduce the risk (e.g. in this case branches were removed and selective pruning used to reduce weight on pressure points). He also reminded Richardson that the Land and Environment Court had found the Botanic Gardens acted in good faith and for the benefit of future generations when it removed the five trees, and that the tree removals and replacements made ‘absolutely no difference to concerts in the Domain’. Richardson got some print-time with the story,161 although only three paragraphs in the Daily Telegraph and with a rejoinder from Minister Debus in the Sydney Morning Herald and a closing statement by me saying ‘[Mr Richardson] has got his facts wrong’. Still, the headline and lead paragraph in the Herald – the bit read by most people not as interested in this issue as you and me – yet again misled the public.

Early July 2006, our friend Mark Hartley pops up again for media oxygen.162 In a story led by the evocative (with obscure culinary/zoological referenced) line ‘A colony of bugs is attaching on of Sydney’s most famous Moreton Bay figs......’, Jonathan Pearlman relays Hartley’s concern over an attack of the Tree of Truth by sap-sucking insects called psyllids. Harley says the health of this and two other trees was ‘deteriorating because they had been neglected’’. ‘If you treated an animal the same way those trees have been treated you would go to jail’, he added helpfully. He recommended a dose of insecticide. Royal Botanic Gardens’ arborist David Bidwell recommended a little sanity. The trees were healthy, he said, but stressed by the drought. He confirmed they would be fine once they got over the current insect attack and pointed out there was little one could do to control psyllids other than keep the area around the tree mulched. Spraying a 70-hectare site with a few hundred Moreton Bay figs would require a helicopter he said. He didn’t go on to talk about the impact of this spraying on visitors, other insects and a host of rather practical matters. The Opposition Environmental

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Spokesman, Michael Richardson, joined the fray saying the State Government hadn’t irrigated the trees well enough. The Carr Government, he said, was ‘willing to spend money on killing trees, not preserving them’. I spoke on radio to explain that we were watering the tree regularly using a reticulated irrigation system. I’d prefer to not use insecticides, I said, with natural predators such as birds and wasps being a better alternative. The trees will come back with vigour, I assured the audience. According to our media reports,163 Alan Jones on 2GB reported on the story and ‘jokes about this’. The newspaper article ended on perhaps an appropriate note, saying that ‘During the court action to attempt to save the [Hospital Road] trees, some spectators were heard to say they would not fight to save the Tree of Truth because, if it was chopped correctly, it might land on the throng of politicians and journalists’. There are probably others some might add to that list.

Now two years after the Hospital Road trees were slain, in late July 2006, the urban affairs editor of the Sydney Morning Herald Sherrill Nixon described the avenues of Hill’s Figs in Hyde Park as ‘rotting from the inside’.164 Over the next 15 years, she said, all 102 trees would have to chopped down and replaced by 130 new trees. The Lord Mayor of Sydney, still Clover Moore, said she had no choice because fungal diseases and poor soil quality...etc. It’s tragic, she said. And so it was, and always is. I was supportive of the program, ‘applauding’ the Council’s approach, adding that a stage replacement would help the ‘longevity of the trees while maintaining the amenity of the parks’. I couldn’t resist pointing out, ever so gently, that the approach was remarkably similar to that of the Botanic Gardens where 11 trees were removed despite an $80,000 legal attempt by Cr Moore to stop it. But then back to philosophical understanding and comradeship: ‘It won’t be terrible, it will be a change and I think it’s something we have all got to get used to...it’s a short-term loss for a long-term gain’.

The announcement about Hyde Park came three years after the Council commissioned an assessment of its Hyde Park trees by the consultants The Tree Wise Men.165 That report, not publicised before or during the Council’s hostile attack on the Botanic Gardens’ tree replacement program, recommends a program be developed for the ‘removal and replacement of dying or senescent trees’ and that the planting of new trees should ‘consider factors that may hinder the establishment of those trees, such as suppression from existing

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trees, root competition and soil compaction’. Replacement of rows of trees one at a time is an option recommended in this report. The report makes it clear that many of the Hill’s Figs are in decline due to things like soil compaction and infection by deleterious fungi and other pathogens. So during the entire time the Council riled against our tree replacement program they were aware they had exactly the same problem in their own backyard.

During the day of the Hyde Park story I clearly warmed to the task and the summaries of my radio news grabs166 include ‘‘The head of Sydney’s Botanic Gardens Trust has criticised Sydney City Mayor Clover Moore over her stance on chopping down diseased fig trees’ through to ‘Sydney City Lord Mayor Clover Moore has been branded a hypocrite by Tim Entwisle...’ and ‘Tim Entwisle...takes a swipe at Sydney City Lord Mayor’’. In an interview with Adam Spencer on ABC702 I summarised that it was a hypocritical decision but the correct one. The Lord Mayor chimed in later in the day with ‘the two cases are different and the Domain trees were healthy’. The Daily Telegraph167 quoted the Lord Mayor as saying the situation was distressing and in an intriguing flip of allegiance, the Opposition Environment Spokesman Michael Richardson calling for ‘the Botanic Gardens Trust...[to]...be called in to advise the council before more trees get the chop’. The Government Minister for the Environment, Bob Debus, reminded168 people that Moore’s actions were ironic given the courts case she initiated over the removal of trees in the Domain, and given the money spent by Council on that legal action he doubts his government would provide funding.

In September the first batch of 34 Hyde Park figs were removed – three times as many as we replaced in Hospital Road. Daily Telegraph Urban Affairs Report Mark Scala169 quite correctly put the tree removal in the context of a dying urban forest across Sydney. Council arborist Karen Sweeney said the trees were being removed due to soil-borne diseases but Scala also mentioned the drought as exacerbating any stresses on the trees and reducing their lifespan. Our head of science Brett Summerell said that Sydney’s hot and drying climate was putting more stress on trees and that ‘the effects on Hyde Park’s trees were a good example of the combined toll disease, drought and stress can have’. Centennial Park, Scala said, expected to lose up to 15% of its trees ‘in some areas within five years’. I was quoted as saying many of our botanic garden trees are passing the 100-year mark and coming to the end of their lives, here

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in Sydney as well as in Melbourne and Adelaide. I noted that ‘everyone loves trees but they’re not used to them having a certain life span’. ‘This is something that people in American and Europe have already gone through’, I went on, ‘In Sydney a lot of avenues planted up to 150 years ago will need to be replanted’. This was a conversation Sydney needed to, and should have, had leading up the Hospital Road tree replacements.

Over coming years, and in the preceding of course, trees all over Sydney were removed and replaced. In Randwick, Mayor Murray Matson has to consider removing 2000 ‘aggressively rooted’ trees in Clovelly, Coogee and Maroubra. The debate over the fig tree removals in the Domain and Hyde Park led the story.170 Should the trees be removed over a 10 or 20 year period? The debate seems to have at least moved on to when and how rather than should. Or perhaps not. A resident is quoted as saying ‘‘I just think in this day and age, if they can’t find some alternative [to removal], it’s pathetic’. To be fair, these removals were reported as being about the cost of property damage rather than safety and long-term amenity. But then should we believe what is reported? In August 2013171 the City of Sydney had to remove 16 trees in Hyde Park ‘without delay’, noting that the entire avenue down the middle of the park will have to soon be cut and replaced. The Tree Wise Men consultants say 43 of the Hill’s Figs in Hyde Park have failed since 2004, deeming them all to be ‘mature to overmature’, recommending 16 be removed immediately.

So that’s the way to do it.

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Epitaph

Do people forget? More interesting is what they remember, selectively. This was a Facebook comment posted when some trees were vandalised at Royal Botanic Gardens Melbourne, nine years later:

22 June 2013, 8:59 am - In no way do I condone such action; it is tragic and depressing. However I can't help but remember when Tim Entwhistle ran the Sydney Botanic Gardens and destroyed some of colonial Australia's oldest planted trees - the old Moreton Bay fig trees in the Domain. No evidence was supplied at court that they were diseased. These trees were culturally very significant and were found to have decades of safe life left, but were removed so that there would be no future impediment to bringing in the money for events in the domain. It seems that the thought of cordoning off some figs in the future from an area of high money making potential was deemed not 'fiscally highest efficiency'. Another question both Melbourne and Sydney Botanic Gardens need to better consider is their roles in adhering to threatened species legislation. It would seem both gardens think it ok to shoot (Melbourne) and displace (Sydney) these threatened species because they are damaging planted trees (that will one day die anyway) but that it's ok in the process to have a significant impact on threatened species that are trying to eke out a tenuous and compromised existence. Let’s not forget that 'Threatened' means 'Threatened with Extinction'. Once a species is gone, there's no coming back. Let us also not forget that both Botanic Gardens are part of their respective State Governments - the governments who make and enforce threatened species legislation. So it seems it's ok for Botanic Gardens to destroy heritage listed trees when money is in the offing, but that heritage listed tees are more important than a threatens species future. I think Mr Entwhistle et al need to reconsider their priorities. Not that it's relevant, but I have spent over 20 years doing volunteer work in the Sydney Botanic Gardens and Herbarium. I have also been arrested trying to save Trees in the Sydney Botanic Gardens. Yes, this Facebook story is about human idiocy and vandalism, but I just thought I needed to put

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some other exasperating things in context. I hope the perpetrators are found and dealt with through proper legal processes rather than violently dealt with - let's remember this is a public forum here people... let's keep the aggression under control.

Yes, let’s.

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ENDNOTES 1 Ficus carica 2 [Find primary reference for this information – I think I got it from New Scientist, or

Nature] 3 Called ‘parthenocarpy’, from the Greek parthenos = virgin and karpos = fruit 4 The tropics are particularly rich in species. Interestingly, the island of Madagascar has

25 species, 16 of them not found elsewhere in the world and the other nine extending to

only Africa or neighbouring islands. 5 Ficus macrophylla forma macrophylla 6 Ficus rubiginosa 7 Robert Etheridge, The Australian Museum – fragments from its early history. Records

of the Australian Museum, Sydney 11(12): 361 (1919). 8 G.P. Darnell-Smith, Tree Week: Dr Darnell-Smith’s Address. Sydney Morning Herald

26 August 1931, p. 10, [also cited by Gilbert 1986, p. 145]. 9 Charles Robinson, Woodlands, Gosford, To the Editor of the Herald, Sydney Morning

Herald 15 June 1912, p. 12. 10 Fred Turner, To the Editor of the Herald, Sydney Morning Herald 19 February 1907,

p. 10. 11 Walter Froggatt, Fashions in Trees: the Poinsettia Boom, Sydney Morning Herald 10

eptember 1932, p. 9. Froggatt later (see story about Children’s Fig) talks admiringly of a

specimen in the botanic gardens so it was more the number and misplacement he was

unhappy about. Given the subject of this book, it’s worth noting his comment that ‘The

civic authorities have been cutting them out from such situations [where their

encroaching roots burst pavements] for this last twenty-five years, and often incurring

the enmity of misinformed tree-lovers.’ 12 G.H.P, Old Macquarie Street, Sydney Morning Herald 13 June 1914, p. 7. 13 The Royal Botanic Gardens and Domain Trust administers The Royal Botanic

Garden Sydney, The Domain, The Australian Botanic Garden Mount Annan and The

Blue Mountains Botanic Garden Mount Tomah. 14 Bob Debus, 25 April 2004 15 Daily Telegraph 14 April 2004 16 Read, S. (2008). Eden’’s first fruit. The Garden October 2008: 673-675. 17 Domain sadly awaits its root and branch renewal, Sydney Morning Herald 9-11 April

2004, p. 5. 18 Tallest poppy in the garden, The Sydney Morning Herald 9-11 April 2004, p. 21. 19 Axe falls on all but one tree –– that’s the truth, The Daily Telegraph, 12 April 2004,

p. 4 20 Should historic Moreton Bay fig trees in The Domain be chopped down?, The Daily

Telegraph, 12 April 2004, 20. 21 Letters, Sydney Morning Herald, 13 April 2004, p. 10 22 Letters, The Daily Telegraph, 13 April 2004, p. 16 23 Rehame Clips 14 & 15 April 2004 – Moreton Bay Figs, Domain; and 13 & 14 April

2004 –– Moreton Bay Figs, Domain.

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24 Send in the guns [letter], Sydney Morning Herald, 14 April 2004, p. 12. 25 Protect Sydney’s heritage! Protestors list demands, Media Release, The Greens New

South Wales, 14 April 2004. 26 Media Release: Loss of heritage fig trees, Potts Point and Kings Cross Heritage

Conservation Society Inc. 14 April 2004. 27 Rehame Clips 14 & 15 April 2004 – Moreton Bay Figs, Domain; and 13 & 14 April

2004 –– Moreton Bay Figs, Domain. 28 Figs are doomed to death, The Daily Telegraph, 14 April 2004, p. 15. 29 Mayor rebuffed: No reprieve for The Domain’’s figs. Sydney Morning Herald 14

April 2004, p. 7. 30 Appeals fail to save historic Domain figs, ABC News Online 15 April 2004, 6.46 am. 31 Greens out on a limb, but too late to save city figs, Sydney Morning Herald 15 April

2004, p. 5. 32 Chopped then chipped at Domain, The Daily Telegraph 15 April 2004, p. 2. 33 Six Pack: six solutions to the Moreton Bay crisis, The Daily Telegraph 15 April 2004,

p. 27. 34 Letter from General Manager of City of Sydney Robert Domm to Minister for the

Environment Bob Debus, 15 April 2004; headed ‘Tree culling in the Domain’; cc. Mr

Alan Jones, 2GB. 35 Temporary reprieve for trees, The Daily Telegraph 16 April 2004, p. 7. 36 Rehame Clips, 19 April 2004 ‘Moreton Bay Figs, Domain’. 37 Letters, The Daily Telegraph, 17 April 2004, p. 20. 38 Wish you were here, The Daily Telegraph, 17 April 2004, p. 3. 39 Domain trees, Sydney Morning Herald 16 April 2004; and Postscript, on same page. 40 Injury led to fig ruling, The Sunday Telegraph, 18 April 2004, p. 17. 41 Rehame Transcripts, 18 April 2004, 9.36 am, Sydney2GB, Luke Bona Program 42 Daily Telegraph, 20 April 2004. 43 Enter Clover, to ringing applause, Sydney Morning Herald 20 April 2004, p. ?, 44 Clover my dead body, The Daily Telegraph 20 April 2004, p. 6. 45 Rehame Clips 20 April 2004; Moreton Bay Figs, Domain 46 Rehame Clips 22 April 2004 – Moreton Bay Figs, Domain. 47 Botanic Gardens stymies council’s attempt to save doomed fig trees. Sydney Morning

Herald 21 April 2004, p. ? 48 The Debate: Should Lord Mayor Clover Moore have more control over the future of

the fig trees in The Domain?, The Daily Telegraph 21 April 2004, p. 26 49 Beautiful, but it’s so far west, The Daily Telegraph 21 April 2004, p. 26 50 Letter from Acting Minister for the Environment to the Lord Mayor Clover Moore,

20 April 2004. 51 Letter from Lord Mayor Clover Moore to Acting Minister for the Environment

Carmel Tebbutt, 21 April 2004. 52 Rehame Clips 22 April 2004 – Moreton Bay Figs, Domain. 53 Moore acts to end chainsaw massacre, Sydney Morning Herald 22 April 2004, p. 5 54 Opinions and letters, The Sydney Morning Herald 22 April 2004, p. 12 55 Reham Clips 23 April 2004, 27 April 2004 – Moreton Bay Figs, Domain. 56 Giving a fig for the trees, The Daily Telegraph 23 April 2004, p. 5; Giving a fig as

trees get a reprieve, The Daily Telegraph 23 April 2004, p. ? [?later edition] 57 Domain figs reprieved, Sydney Morning Herald, 23 April 2004, p. 7.

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58 Care of Domain trees between now and 27 May, letter from Lord Mayor Clover

Moore to me [Dr Entwhistle], 23 April 2004. 59 Tree-hugging Packer, Sydney Morning Herald 24 April 2007, p. ? 60 Presenter comments on the conservation of trees in The Domain, Sydney 2GB, Alan

Jones, Rehame Transcripts 27 April 2004. 61 Sydney Morning Herald, 10/11 January 2004, front page. Ramping up to ‘Domain’s

living dead await the autumn chainsaw massacre’ when the story continued on p. 8.

John Huxley story resulting from media release 9 January 2004: Aging Trees a Safety

Concern… 62 Royal Botanic Garden and Domain Trust, The Domain, volume 2: Cultural

Landscape Study.

https://www.rbgsyd.nsw.gov.au/__data/assets/pdf_file/0005/39938/Domain_Conservati

on_Reports.pdf 63 The first meeting, on 6 May 1999, was attended by Ian Kelly (NSW Heritage Office),

Peter Watts (Director, NSW Historic Houses Trust), Richard Clough (landscape

architect), David Churches (Senior Director, Olympic Coordination Authority) and from

the Trust, Frank Howarth, Steve Forbes, Ian Innes and Trustee Ros Andrews. Apologies

were received from Edmund Capon (Director, Art Gallery NSW), Chris Johnson (NSW

Government Architect), Ros Strong (Director, NSW Heritage Council) and Greg

Maddock (General Manager, City of Sydney). Following a tender process, in December

1999 the Gardens appointed a consultancy team comprising Mather and Associates

Landscape Architects (led by Ingrid Mather who you’ll note attended the final meeting

of the Reference Committee) and Geoffrey Britton, a Heritage Consultant. 64 The Domain Master Plan, prepared for Royal Botanic Gardens and Domain Trust by

Consultant Team comprising Ingrid Mather, Geoffrey Britton, Colleen Morris, Kerry

Morrison, Sandra Hoy, Alan Lalich, Denis Blackett, Arup Acoustics and Peter Salisbury

(2002). 65 Domain Master Plan Implementation: Tree management and replacement proposals,

Ian Innes, 3 December 2002. 66 Royal Botanic Gardens and Domain Trust, Botanic Gardens Committee, Minutes of

the meeting held 12 December 2002. 67 On the boulevard of broken trees…, Sydney Morning Herald 16 July 2013, p. 1;

Chainsaw massacre, The Daily Telegraph 16 July 2003, p. 7 68 Editorial: tree vandalism, The Daily Telegraph 17 July 2003. 69 From notes prepared on 11 March 2004 in response to an FOI request by John

Brogden MP. 70 Letters to Dr Meredith Burgmann President of the Legislative Council from me as

Acting Executive Director, 5 December 2003 (stamped as being received by Clerk on

12 December, and Legislative Council on 14 December 2003), and John Aquilina,

Speaker of the Legislative Assembly, 5 December 2003 (stamped as being received by

Clerk on 10 December 2003, and Legislative Assembly 15 December 2003, with note

added by Mr Russell Grove, Clerk of the Legislative Assembly that a copy had been

sent to all members on 10 December 2003). 71 Domain’s living dead await chop, Sydney Morning Herald 10/11 January 2004, p. 1

and p. 8. 72 13 more Domain figs to go in Moreton Bay Massacre, Media Release Michael

Richardson MP, 9 January 2004.

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73 Trees saved – for now, The Daily Telegraph 4 March 2004, p. 23. 74 Notes I prepared for the media interviews on the weekend of 10/11 April 2004. 75 ‘…fat lazy bureaucrat……’ [###get rest of quote] Alan Jones, 2GB, ?date 76 Ficus elastica 77 Corner, E.J.H. (1985). Ficus (Moraceae) and Hymenoptera (Chalcidoidea): Figs and

their pollinators. Biological Journal of the Linnean Society 25: 187-195. 78 Daily Telegraph, 2 May 2004. 79 In the same speech he described the Gardens’ staff and experts as ‘the best qualified

scientists in the country – people who love trees and have devoted their professional

lives to studying them’’. 80 Fig expert uses bogus credentials, Sunday Telegraph 2 May 2004, p. 29. 81 http://www.principality-hutt-river.com/PHR_USA/PHR_History.htm 82 Botanic Gardens stymies council’’s attempt to save doomed fig trees. Sydney

Morning Herald 21 April 2004, p. ?, 83 Solo curse is double trouble, The Australian, 20 May 2004, p. 9. 84 Packers go back to their roots, Sydney Morning Herald, 15 May 2004. 85 Delinquent trees run us ragged, but touch them and you’re mulch, Sydney Morning

Herald, 8 May 2004, p. 11. 86 Slow death stalks city trees, The Daily Telegraph 8 May 2004, p. 17. 87 Threat to ACT trees: branches dangerous, The Sunday Telegraph 9 May 2004, p. 19. 88 Discussion on the future of two Moreton Bay fig trees located on the site of a

proposed development near Luna Park; interview with Professor James Weirick. Sydney

2GB Alan Jones, 7.49 am, 11 May 2004, Rehame Transcripts. 89 Discussion regarding the mulching operation in the Domain for the Moreton Bay fig

trees. Sydney 2GB Alan Jones, 8.41 am, 12 May 2004. 90 Letter from Alan Jones at 2GB to me, 14 May 204. 91 Passion for preservation of trees, Central Western Daily, 15 May 2004, p. 2) 92 Dirty rotten fungi menace a favourite park, Sydney Morning Herald, 15-16 May

2004, p. 3. 93 Barrell, J. (2001) “SULE””: Its use and status into the new millennium” in

Management of Mature Trees, Proceedings of the 4th NAAA Tree Management

Seminar, NAAA,Sydney. 94 Hitchmough, J.D. (1994). Urban Landscape Management. Inkata, Melbourne. 95 ‘The Trust’s decision was not manifestly unreasonable. The Council’s experts had

both conceded that the Trust’s decision was one that was reasonably open for the Trust

to make (Dr English) and that it reflected an option that was available to the Trust to

make (Dr Weirik). From the Land and Environment Court judgement. 96 Dixon, D.J. (2001). A chequered history: the taxonomy of Ficus platypoda and F.

leucotricha (Moraceae: Urostigma sect. Malvanthera) unravelled. Australian Systematic

Botany 14: 535-563. 97 Dixon, D.J. (2001). Figs, wasps and species concepts: a re-evaluation of the

intraspecific taxa of Ficus macrophylla (Moraceae: Urostigma sect. Malvanthera).

Australian Systematic Botany 14: 125-132. 98 Expert fights to save figs, The Daily Telegraph, 28 May 2004, p. 5. 99 Weirick, J. 13 May 2004, Statement of Evidence in the Land and Environment Court

of New South Wales, filed for applicant City of Sydney, No. 40473 of 2004 100 Land and Environment Court of NSW No. 40473 of 2004: Proposed removal of

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existing trees and replanting program, Outer Domain, prepared for the Minister for the

Environment and the Royal Botanic Gardens and Domain Trust by Richard Lamb, May

2004. 101 Land and Environment Court of NSW No. 40473 or 2004: Affidavit from Judith

Anne Fakes, May 2004. 102 Entwisle, T.J. May 2004, Statement of Evidence in the Land and Environment Court

of New South Wales, filed for applicant Royal Botanic Gardens and Domain Trust. 103 Lloyd, J. 28 May 2004. Ex Tempore Judgement, Land and Environment Court of

New South Wales: City of Sydney Council v Royal Botanic Gardens and Domain Trust

[2004] NSWLEC 285. File no. 40473 of 2004. 104 Environmental Planning and Assessment Act 1979 s 110, s 111 and s 112

Heritage Act 1977 s 57(1) and s 57(2)

Royal Botanic Gardens and Domain Trust Act 1980 s 7 and s 8 105 Green v Kogarah Municipal Council (2001) 115 LGRA 231;

Haoucher v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 648;

ISPT Nominees Pty Limited v Chief Commissioner of State Revenue (2003) 53 ATR

527, [2003] NSWSC 697;

Kioa v West (1985) 159 CLR 550;

Parramatta City Council v Shell Company of Australia [1972] 1 NSWLR 483;

Rundle v Tweed Shire Council (1989) 68 LGRA 308;

Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 347 106 Daily Telegraph, 14 June 2004 107 Ficus macrophylla forma columnaris. 108 Ficus macrophylla forma macrophylla 109 Pleistodontes froggatti 110 Sydney Morning Herald, 1 July 2004. 111 Rehame Newslines – Domain fig trees, 31 May 2004. 112 Beaten on trees, Moore weighs appeal, Sydney Morning Herald 29-30 May 2004, p.

3. 113 Domain tree cull to proceed, The Daily Telegraph, 29 May 2004, p. 2; Editorial p.

18. 114 Council to meet, The Sunday Telegraph, 30 May 2004, p. 3. 115 City may appeal trees, Sydney Morning Herald 31 Mary 2004, p. 2. 116 City of Sydney Extraordinary Council Meeting, 1 June 2004, 11 am (with agenda of

two items: Outcome of legal proceedings (confidential) and Tree Preservation Order). 117 Daily Telegraph, 1 June 2004. 118 City gives a fig – at a cost, The Daily Telegraph, 1 June 2004, p. 8. 119 Six Pack, The Daily Telegraph, 1 June 2004, p. 19; Not worth a fig [letter], The

Daily Telegraph, 1 June 2004, p. 21 120 Domain fellings: Moore calls truce, Sydney Morning Herald, 2 June 2004, p. 10. 121 And another thing…, Editorial in The Daily Telegraph 2 June 2004, p. 26; Council

won’t appeal trees decision, The Daily Telegraph 2 June 2004, p. 17. 122 City of Sydney, Tree Preservation Order 2004. New South Wales Government

Gazette No. 94, pp. 3486-3488.. 123 Council uprooted, Inner Western Courier 7 June 2004, p. 7. 124 Fit fig will be spared the chop, The Daily Telegraph 14 June 2004, p. 9. 125 There are many other figs of signficance. J.H. Rashford, in a chapter called ‘Ficus

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Species that Serve as Candomble's Cosmic Tree’ (in Bob Voeks and John Rashford’s

2012 African Ethnobotany in the Americas), says “Candomblé identifies largely orally

transmitted religious traditions in Brazil tracing back to various parts of Africa. This

research identifies the species of Ficus that serve as Candomblé’s cosmic tree. Nineteen

religious centers (terreiros) were surveyed and 17 had fig trees. Contrary to the general

assumption of a single species, five native figs were identified, including Ficus

elliotiana, F. clusiifolia, F. gomelleira , F. cyclophylla, and F. tomentella. The most

common was F. elliotiana, followed by F. gomelleira and F. clusiifolia. These results

suggest that Candomblé has a complex relation with a variety of Ficus species, both

native and exotic, and a wider survey that includes more rural communities and other

urban areas will probably yield many surprises.” 126 Report of Joint Conference of Expert Witnesses in the matter of City of Sydney

Council v. Royal Botanic Gardens and Domain Trust & Minister for the Environment

over the proposed removal of existing trees and replanting program, Outer Domain.

Subject of a Judicial Review in the Land and Environment Court of New South Wales,

no. 40473 of 2004. 127 Joint Statement – Arboricultural Issues, Land and Environment Court of New South

Wales, Proceedings 40473 (as above) 128 Review of Evidence and opinions arising from Domain Trees Hearing, A. Hay, 9

June 2004. 129 Fit fig will be spared the chop, The Daily Telegraph 14 June 2004, p. 9. 130 Reprieve for fig, Sydney Morning Herald 14 June 2004, p. 2. 131 Moore’s new fig fight, Sydney Morning Herald [?17-20] June 2004, p. ? 132 Moore gives up Domain trees fight, Sydney Morning Herald smh.com.au, 29 June

2004. 133 NSW Government Gazette no. 107, 28 June 2004. 134 Domain plan met by wall of protest, Sydney Morning Herald 28 June 2004, p. 2. 135 Moore gives up Domain trees fight. Sydney Morning Herald 29 June 2004, p, 2. 136 High cost of fight for fig trees. The Daily Telegraph 28 June 2004, p. 12. 137 Figs saga continues. Sydney City June 2004, p. 8 138 Figs face the chop, City Weekly 1 July 2004, p. 11. 139 Five 150-year-old trees to be destroyed… and it’s just the beginning. Media Release

from Stephen Mori, owner of Mori Gallery, 1 July 2004. 140 Tree reason or treason?, Sydney Morning Herald 3-4 July 2004, p. 24. 141 Fracas over figs, Sydney Morning Herald 3-4 July 2004, p. 10. 142 Trust doesn’t give a fig as Domain trees go, The Daily Telegraph 3 July 2004, p. 7., 143 Tawdry eyesore, The Daily Telegraph, 8 July 2004, p. 22 144 How the mighty fall…protests fail to save trees, Sydney Morning Herald, 9 July

2004, p. 6. 145 Murray, M.G. (1985). Figs (Ficus spp.) and fig wasps (Chalcidoidea, Agaonidae):

hypotheses for an ancient symbiosis. 146 Daily Telegraph, 3 August 2004. 147 Axe fell too early, The Daily Telegraph, 3 August 2004, p. 15. 148 Daily Telegraph, 4 August 2004 (letter to Telegraph, p. 32, from me): under pictures

of trees being chain-sawed (caption: Lopped at the end of their life cycle). Letter points

out error in story from day before – saying report is about different trees and has

nothing to do with trees along Hospital Road.

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149 Axe Gardens’ head instead?, City Week, 5 August 2004. 150 A growing debate, City Week, 12 August 2004. 151 New trees for Domain, Sydney City, 8 September 2004, p. 6. 152 Experts justify tree replacement, Outdoor Design Source No. 2, August 2004. 153 Knives are out; Storm clouds gather as Town Hall staffers prepare for summer of

discontent. City Week 20 October 2004, p. 8; City trees given the chop, City Week 20

October 2004, p. 22. 154 Tree Management Forum: Relic, Object or Aging Organism, 19-20 May 2005 155 http://www.aila.org.au/treemanagementforum/ 156 The Burra Charter: The Australia ICOMOS Charter for Places of Cultural

Significance, 2013. 157 Lennon, J. 2014. Conservation of significant gardens. Australian Garden History

26(2): 5-7., 158 Richardson, T. 2014. Breathing new life into garden conservation. Australian

Garden History 26(2): 3-4. 159 Discovered and reported to me in November 2005. 160 High-risk trees left untouched in Domain: FOI, Media Release by Michael

Richardson MP, 16 June 2005; NSE opposition sprout creepy crawlers on Domain trees,

Media Release by Minister Bob Debus MP, 16 June 2005. 161 Go figure: axed Domain trees less risky than those left standing. Sydney Morning

Herald, 17 June 2005; Garden trees are ‘unsafe’. The Daily Telegraph 17 June 2005, p.

12. 162 Domain’s famous tree faces day of truth. Sydney Morning Herald, 5 July 2006, p. 3. 163 NSW Premier’s Department Mediaportal, 5 July 2006. 164 Green giants of Hyde Park to be replaced before diseases slay them. Sydney Morning

Herald, 26 July 2006, p. 5. 165 Significant Tree Assessment for Hyde Park (North and South) Sydney NSW. Ref.

1296. September 2003. 166 NSW Premier’s Department Mediaportal Report, 26 July 2006. 167 Plagued park to be uprooted. Daily Telegraph, 17 September 2013, p. 13 168 NSW Government Mediaportal, 19 September 2013 169 Time and a hard land take toll on settler’s plantings/Why Sydney’s ancient trees are

dying out. Daily Telegraph, 21 September 2005, p. 18 170 To chop or not to chop: Green mayor’s growing dilemma over problem trees, Sydney

Morning Herald 25 October 2004, p. 7. 171 Sydney City Council moves to remove danger of iconic Hyde Park fig trees. Daily

Telegraph, 19 August 2013.