Home' The Bunyip : June 12th 2014 Contents "THE BUNYIP" GAWLER, Thursday, June 12, 2014 Page 19
Everyone respects what the
monument and the RSL
represent. I certainly do.
These things should unify us, the
Gawler community, in support of
our past and present servicemen
Astonishingly, the Gawler
Council has so far only been
capable of letting the course of
events divide us. It is time for a
change of approach.
Gawler Council, a local
government, must be a 'model' legal
citizen. Permitting the removal of
the monument may make council
in legal breach of trust.
When unveiled in 1921, could
council, say, a week, or a year,
afterwards, have moved it?
Or, were there some conditions
to the gifts or grants of land and
If there was such a condition in
1921, why, in 2014, does council
think it can do what it likes?
Was "in perpetuity" intended to
mean that the monument was to
stand, "in situ", forever?
If council, or anyone else, seeks
legal advice, I query in advance
the certainty of any alleged facts
provided to the legal advisor.
Only a court, after hearing
evidence, will decide the facts.
Good luck on guessing what they
The changing local government
law since 1921 will then be applied.
Good luck with that, too.
You can be certain that it will
cost ratepayers a fortune.
The Local Government Act
permits a council to accept a gift
with trust conditions.
The council must obey the
conditions unless, after public
notice of such application, the
Supreme Court permits a specific
Both Burnside and Penola
councils have experience of such
issues of trust conditions.
But even the Supreme Court may
only vary the terms of a trust if it
is satisfied that it is impracticable
for the council to give effect to the
trust in its existing form.
Was it intended that the council
could do whatever it liked with 'the
Or was there a trust that said
it stays where it is, so that now it
needs Supreme Court permission
before it is moved?
What if the Supreme Court
decides that a specific perpetual
constructive equitable trust has
bound successive councils and
survived intervening law changes
that otherwise permit council to do
general things on public land?
Council, as a model legal citizen,
has to be certain it is not breaching
a trust before it gives consent.
If the site was needed for some
municipal reason, such as road
construction, that might be
different. But all council wants to
do is consent to it being moved.
Could it convince the Supreme
Court that it is impracticable to
give effect to the trust in its existing
form, that it is impracticable to
leave the monument alone, in situ?
A possible next step is for
council to research a full and
detailed factual history of the terms
and conditions that it holds the
monument under and the land it
stands on and the local government
has developed since and to spend
thousands of dollars on legal advice.
Such expensive legal advice must
be uncertain and an application
for approval to the Supreme Court
may well be needed before council
can be sure it is not in breach of
Like most of us in Gawler I have
been approached by both sides. I
have studied their opinions. I value
them both. I have not 'signed up'
for either side.
community, waste a lot of money
and incite further community
division by litigation.
Had council considered the issues
properly in the first place, this may
never have occurred.
At this stage, movement of the
monument may not even be lawful
and council has a duty to find out
before it gives consent.
Before council wastes yet
more money on lawyers or takes
us further down the path of
community division, I would like
them, and both sides, to consider
It is used in many multimillion-
dollar, seemingly insoluble, arenas.
My purpose in buying into this
now is to motivate community
discussion towards the mediation
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IN THIS WEEK'S COLUMN, GAWLER MAYORAL HOPEFUL JOHN BOLTON SUGGESTS THAT
MEDIATION MAY BE THE BEST OPTION TO RESOLVE THE DEBATE OVER THE LOCATION OF
THE GAWLER SOUTH WORLD WAR ONE MEMORIAL.
In my opinion...
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