Item 9.14 of council agenda was membership of the Caulfield Racecourse Precinct committee. This committee was set up in late 2009 and comprised 4 councillors. The recommendation was to appoint another councillor to replace Magee who resigned following his appointment as trustee to the MRC.
Tang vacated the chair since as a trustee he declared a conflict of interest. Magee did likewise. Hence, there were only 6 councillors in chamber – Pilling is on leave.
Cr. Penhalluriack moved a motion to DISBAND THIS COMMITTEE. His argument was that he now has to hang his head in shame; he had voted last year in favour of this committee believing that some good may come out of it, but he was mistaken. The whole process is undemocratic and anticommunity. Only 4 councillors will be able to vote on vital issues such as the C60 amendment and the centre of the racecourse because they are trustees, or have been winky popped as he and Forge have been. This is antidemocratic and anticommunity. All this because of a ‘convoluted law and a convoluted interpretation of the law’. When we discuss C60 ‘I’m not allowed to vote… (this is) a nonsense’. ‘This is my park, my land and I’m being excluded…Why should we leave it to 4 people when 9 people have been elected’? ‘Council is not beholden to the MRC’. ‘Council needs to take a stand’…’time council stood up… I want to have a say in C60…”
Cheryl Forge seconded this motion stating that this issue was the most undemocratic thing that had yet faced this council.
Lipshutz opposed the motion stating that whilst terrible, the MRC will go to court and ‘our decision goes down the gurgler’ if processes are incorrect. Therefore conflict of interest is important and must be taken into account. He didn’t want to ‘take the risk’.
Lobo began by stating that it is a ‘shame that we have laws where lawyers play around and earn their living’ Frank is in the history books for making things happen. He has been ‘gagged and he has my full support’.
Hyams agreed with Lipshutz and ‘empathised’ with Frank. He offered two reasons why council needs this committee – (1) potential litigation and (2) problem is the decision relates to perceptions of bias and when statements might be seen as perceptions of bias. ‘we make a decision and we’re exposed to litigation’. Again and again we heard it was ‘risk to council’.
Penhalluriack responded by stating that this was an atrocious situation. If Lipshutz and Hyams are correct then the only people who could challenge are the MRC and they ‘wouldn’t have the gall to stand up’ and go to court. Council must challenge them to do that. They have excluded us year after year and this committee should be abandoned
Esakoff who had taken the chair to replace Tang, then used her chairman’s position to cast the deciding vote. Penhalluriack, Lobo and Forge, voted for abolishing the committee; Lipshutz, Hyams, and Esakoff voted against. Esakoff then used her decisive casting vote – without giving any reasons for this vote. She did not utter a word, except state that she is voting against the motion. Penhalluriack called for a division.
Lipshutz/Hyams then moved the motion that Esakoff be appointed as councillor on the committee.
Penhalluriack then questioned Esakoff’s ‘bias’ in that she had previously voted against his motion to abandon the committee when she is now being nominated for the committee. The response was that councillors can vote themselves onto committees. Penhalluriack then ‘respectfully dissented’ from this decision, asking that this be put in the minutes. Penhalluriack also asked for a vote on his motion of dissent – it was declined after much confusion, consultation with Newton and Burke. Esakoff was voted onto the committee. Surprisingly Forge voted for her!!!!
OUTCOME:
- 4 councillors (a minority) will decide the fate of C60 – Lipshutz, Esakoff, Pilling and Hyams
- 4 councillors decide the fate of the Racecourse for 132,000 residents
- Council will not, as Penhalluriack states ‘stand up’ to the MRC
- Council has abrogated its responsibilities to residents and to all semblance of democratic process
Glen Eira Debates 
November 24, 2010 at 10:04 AM
Reading this account, one thing strikes me as particularly relevant – Penhalluriack’s claims about a convoluted law and convoluted interpretations of this law. In the first place, I think we need to clear up a couple of things. (1) Winky Pop is not a law. It is merely one judges interpretation of a specific set of circumstances. (2) Winky Pop has become the tool of convenience in silencing debate and in silencing opposition. It plays straight into the hands of bureaucrats and malleable councillors. When you have Lipshutz and Hyams playing the card of litigation and risk for all its worth the motives behind such a ploy need to be fully explored. Scare tactics are no substitute for proper and democratic decision making. Fearing litigation is no excuse for doing nothing. It is also highly questionable whether litigation is even a potential threat given the origin of Winky Pop. Lipshutz and Hyams may be lawyers, but their interpretation is certainly open to challenge. Their specious argument robs the community of its voice and in so doing they are failing to truly represent their constituents. This is where the failure and conflict of interest truly lies – not in Winky Pop but when this decision is distorted and abused to further certain agendas.
November 24, 2010 at 11:41 AM
Well done Penhalluriack, Lobo and Forge. At last residents concerns have been aired out in the open and we have been given a glimpse of the ‘gang of four’ and how they operate. Its not a pleasant picture and makes a mockery of the inspector’s findings.
November 24, 2010 at 12:28 PM
Here’s a question that I would love an answer to. If Winky Pop is about having an open mind as determined by a lay observer, then how would council – that is Hyamns, Lipshutz, Esakoff,Magee, Tang go, on this very same point? They have not exactly voiced strong opposition to the MRC, they have buckled under every demand of the MRC, they have repeatedly refused to accept community views and done nothing about anything. I’m a lay observer and I claim that their minds are made up – they will vote in the panel report holus bolus. So where does winky pop leave us now. It’s all a total nonsense. Reckon we could get 120,000 out of the 132,000 who would testify that their perception is that these councillors minds are closed and that their decisions are already made – not only on this issue, but nearly every decision that comes up at council. The secret society is in full swing and has always been operating in this fashion.
November 24, 2010 at 2:25 PM
Like many other Caulfield North residents, I look at the other side of Dandenong Road and see Councillors who stand up for their residents and represent them well and even challenge the State government where they need to, eg Clearways on High Street and the ludicrous Electricity Safety regulations which could lead to the beautiful plane trees of Malvern being removed. I am ashamed that I voted for Lipshutz and cannot wait for the next election to remove him from Camden ward and will personally get the angle grinder out and remove his name from every plaque, with the first to go at the inane GESAC!
November 24, 2010 at 3:14 PM
Dear anonymous,
the following comes from today’s Moorabbin leader. Kingston council knocked back this development. In contrast, last night’s meeting ‘approved’ the 9.1 Neerim Rd. item. Instead of 4 storeys the conditions imposed were 3 stories and 37 units!!! Esakoff was congratulated profusely for all her ‘hard work’ on this ‘compromise’. Funny isn’t it, how some councils refuse to ‘compromise’ and Glen Eira to all intents and purposes has a middle name of ‘compromise’ on planning?
Here’s the leader article:
Joy at ‘landmark’ veto
Residents welcome VCAT decision to reject 32-home Cheltenham project
RESIDENTS of a Cheltenham road are rejoicing at VCAT’s ‘‘landmark decision’’ to reject a bulky 32-home development. The proposal, at 36-40 Jean St, would have included 32 dwellings on three blocks over three levels, with underground car parking. Almost 50 objections to the proposal were received by Kingston Council, with concerns the site would be overdeveloped.
When councillors voted down the proposal in June, the developer Beyprop Pty Ltd appealed to VCAT.
However after inspecting the site, VCAT member Geoff Rundell ruled the proposed development was not ‘‘a comfortable fit with the area’’ because of its excessive bulk.
Mr Rundell found it would adversely impact on current and future residents.
The rejection was a ‘‘landmark decision’’ for Jean St, resident Peter Burr said.
‘‘It’s fantastic, it’s a real win for residents.
‘‘It sends a strong message to developers that they can’t do whatever they like with a property without any considerations for the people who live there,’’ Mr Burr said. Kingston Mayor Steve Staikos said the council was pleased its decision not to support the proposal was upheld at VCAT. ‘‘We would be happy to consider a more appropriate application if the developer was willing to negotiate,’’ Cr Staikos said. Best Hooper S o l i c i t o r s ’ Dominic Scally, acting for Beyprop, said the developer may resubmit another design.
November 24, 2010 at 4:23 PM
let’s not forget recent events and how Magee chaired the racecourse planning conference. No, there was no ‘conflict of interest’ there – like hell!
November 24, 2010 at 11:18 PM
I do not understand Cr Lipshutz and Cr Hyams argument about the conflict of interest and in particular Winky Pop issue in regards to MRC C60 plans. This is NOT a Winky Pop situation since as far as I know NO ONE is campaigning against development of the MRC site. The residents, and Cr Penhalliurack and Cr Forge are talking about appropriate plans of MRC land including the Racecourse. My understanding of Winky Pop was a campaign by the particular Councillor against a particular development of the proposed land.
I feel that Cr Lipshutz, Cr Hyams and Cr Tang are legally wrong in their interpretation of Winky Pop in relation to Council Trustees and Crs Penhalliurack and Forge. Read the explanations of Julian Burnside QC on Winky Pop “Julian spoke of the two councillor roles – democratic and administrative. As a democratically elected representative, councillors can and should express strong individual views and opinions. However, as administrative decision makers with a responsibility for implementing (already formed) policy which impacts on individual rights, councillors must remain impartial, have an open mind and not allow their personal view of a policy to affect how they apply it.”
The whole question revolves around the issue of “already formed policy”. When the MRC CEO and Monash University Vice Chancellor have just recently signed a head of agreement to progress the issue of Phoenix Precinct Land plans, it clearly means that a Council policy of that land does NOT exist any longer if it ever did exist under the Winky Pop legal decision interpretation! Clearly the lawyers on the Council are lousy lawyers and err on the cautious side to an extent that they have totally abrogated their duty to Represent Community Views and Advocate for them.
I can also see that the Administrative approach of planning adopted by Glen Eira CEO for 10 years is unraveling now in a big way. I think the Council should take legal advise on the whole administrative process in regards to Planning issues, but in particular in regards to Amendment C60. Get Julian Burnside QC to investigate and Report on the legal aspects of this most important for Glen Eira issue.
November 24, 2010 at 11:45 PM
winky Pop aside, both Hyams and Lipshutz’s arguments don’t answer the motion that Penhalluriack put ie. abandon the committee. Even if there was the remotest chance of perceptions of bias, this doesn’t answer why the committee shouldn’t go. This committee is council appointed, a lame duck if there ever was one, so winky pop has no relevance as to whether it exists or fades into oblivion. The post was 100% correct. Use scare tactics whenever you can. Frighten the shit out of councillors and they won’t say boo. Newton’s tactics for the past decade. Winky Pop is an absolute godsend to him and the likes of Lipshutz.
November 25, 2010 at 12:47 PM
The point that seems to be missed in all of this is that a motion of dissent is serious business. What it really implies is a lack of confidence in the chair. By dissenting Penhalluriack is in fact saying that he has no confidence in Esakoff, her judgement, and to extrapolate, possibly Newton and Burke who allegedly consulted with Esakoff on whether or not his motion should be put to the vote. It most certainly should have according to Parliamentary Standing Orders. Read the rule book councillors, especially the bits about points of order.
I join with other commentators who have congratulated Penhalluriack for at last making his stand public and not allowing himself to be silenced. Just a crying shame that most of the other councillors still believe that silence is golden.