LEGAL DOUBT LINGERS OVER FREO TREE REGISTER

A LEGAL question over the existence of the City’s significant tree register saw elected members for the second time this year vote to remove the Moreton Bay fig at 195 High Street from its controversial ‘list’ of trees in Fremantle. The 135-year-old fig tree was first removed from the list of seven trees in February this year but after a two-week protest campaign by former mayor Brad Pettitt and DesignFreo it was put back on the register established in 2019.
A couple of councillors including the mayor who is away on the AUKUS junket also attended the protest outside the property owned by the Cattalinis who spoke at council on September 11.
At 4pm, Lavan Legal wrote to the City to say council never resolved to create a significant tree register, “so there is no significant tree register”.
If there is no list, there is no listing or protection except for those afforded by existing heritage laws. Legislation allows local governments to create registers, but it still has to resolve to create one. As one family member says, “Council can’t just say, ‘Here’s the register, put this on it, which is what it has done’.”
Planning director Russell Kingdom highlighted the difference in opinion when he responded to Coastal Cr Andrew Sullivan who referred to the Lavan letter and asked whether council had legally created the register.
He said, “presumably there would have been a motion at some stage to say we are going to establish a register. A lot of it will come down to interpretations. Certainly in the Lavan letter, whether there was a precise resolution or when council transferred trees from the Heritage list to the register, you would argue that was the establishment of a register”.
Central ward Cr Jenny Archibald asked Mr Kingdom whether council had a register under the local planning scheme: “We believe we do. That’s been challenged but we believe the list is there, it has been there since 2019 and it’s had trees on it.”
Asked whether proper consultation was followed with owners and occupiers whose trees were listed, Mr Kingdom said, knowing what was in the letters, “I would need some additional time to check … consultation was followed and the letters had everything in it that was required. The intent was very clear”.
He said the tree register was in response to, “doubt about the process used back in 2018 which was around the consultation under the local planning scheme. We could not find evidence that the occupiers were consulted, it’s not to say they weren’t, but we think there was sufficient doubt to run that process under the scheme. The letter that went out more recently to rerun that process we have had legal viewing over the correspondences that went out”. He does not say what that advice was.

Bollocks

The Cattalini family says owners and occupiers did not give consent to have their trees listed in 2018 or 2024: “They redid this process because they say they may not have contacted all the occupiers. But they actually can’t even produce any letters they say show they contacted the owners. They’re not saying they didn’t, they say they may not have.”
Pam Cattalini told council she was disappointed to be back after 19 months to insist she had never given permission for this tree to be put on the significant tree list: “This process has been long and unnecessarily stressful. I have only applied to have it taken off the register not removed from the ground.”
She said her family had spent a considerable amount of time and money over many years to maintain the property including repairs to all the buildings, roof and gutter replacements and ongoing costs of cleaning up the tree debris.
“This morning I carted four containers of leaves and sticks to the bin while you were all having breakfast,” she said.
East Ward Cr Fedele Camarda said the issue had gone on for too long, particularly for the family, adding the tree could be removed by a development application, “in this situation, I think we got it wrong”.
Central Ward Cr Geoff Graham said he was fundamentally opposed to council telling people to put their tree on a register when existing heritage laws already provided protection: “For some reason council come up with this significant tree register which is like fear mongering, ‘You’re going on to the register and can’t do anything about it’.”
Coastal Ward Cr Adin Lang seemed to think the register was set up because there were no other legal protections: “That’s why the register was set up, because there was serious doubt whether there was any heritage protection without that register. That’s why this council moved those trees across. Without the register we believe there is no protection for the trees under the scheme.”
Coastal Ward Cr Jemima Williamson-Wong also had a moment when she described the hardest decision she has ever made: “I will put my hand up and say I was one of the people who started us in this absurd saga, so I have to own that fact. But I do not think that we should continue down this route because it feels too precarious. The outcome will likely be the same when a development application comes. I don’t think this is the tree that we fight over and that is a very hard decision that I have had to come to and I think I have only come to in the last five to 10 minutes so I thank everyone for putting up with me.”
Closing the debate, Cr Lang said: “I can see where this is headed. I’m actually shocked to be honest. We’re getting caught up in the policy and to me the legal advice we have got says you can protect this tree. You can support significant trees or not.”
Cr Lang wants to rescind the decision, again, and East Ward Cr Ben Lawver asked whether a revote was possible given the mayor Hannah Fitzhardinge and East Ward Cr Frank Mofflin were overseas.
Crs Sullivan, Williamson-Wong, Archibald, Camarda, and Graham voted to remove the Moreton Bay from the list. Crs Lang, Lawver and Doug Thompson voted against.