Item 4.4 of the Special Council Meeting involved the ‘conflict of interest & Laneway’ issue. In the accompanying Officers’ report (which again has no name attached to it!) there is the statement –
“As the substance of this matter was handled under delegation and has not previously been considered at a Council Meeting, documents relevant to the Ombudsman’s Report are attached.
1. Recommendation That Council note that Council’s in-house lawyer (Corporate Counsel) rejected the proposal in relation to the laneway on 22 October 2009.”
We could again quibble and ask why only a selective version of correspondence is suddenly made public. What’s more important however is the statement as to whether the question of the laneway has ever come up in any shape or form at a council meeting. Clever wordplay such as ‘substance’ cannot disguise the fact that the laneway issue has featured prominently in previous formal council decisions. We refer readers to the minutes of 25th September, 2007 and the 16th October, 2007 where the question of the laneway and adverse possession were constantly referred to. We quote from the minutes of 25th September –
“Proposed construction of buildings and works over the right of way
The applicant does not own the right of way. It is a road within the meaning of the Road Management Act 2004, which is available for public use.
The applicant has rights to use it to access his property. The two adjoining residential properties facing Hawthorn Road also have access rights over the right of way from their properties.
The structure will physically block access to part of the right of way for the two Hawthorn Road residential properties, and prevent public access..
As an aside, the applicant has lodged an adverse possession claim for the right of way through the Land Titles Office. This process has not concluded. Notwithstanding this, it has no bearing on the town planning decision before Council”.
Also in these minutes there is an ‘addendum’ from planner Effie Tangalakis which ‘corrects’ the earlier officers’ report in its comments on the laneway. It reads in part:
“At its meeting of 4th September 2007, Council deferred consideration of Item 8.5 until the next Council meeting. The decision to defer the matter was subject to clarification on the ownership of the right of way affected by the proposal.
The right of way consists of two parts; a northern and southern portion. The southern portion is owned by Katrine Isobel Penhalluriack subject to an easement of carriageway in favour of the abutting properties in Hawthorn Road.
The Certificates of Title to numbers 339 and 341 Hawthorn Road show the combined northern and southern portions as being a “road”. The ownership of the right of way, as with the ownership of the subject site or adjoining properties, does not affect the town planning consideration or the planning merits of the case. What is significant though are the carriageway rights to the abutting properties over the land on which the planning permit is sought for a building.
As indicated in the Council report, this outcome does not constitute proper and orderly Planning”.
Council meeting of September 25th 2007 contains emails sent by Penhalluriack to councillors. The emails focus on the inaccuracies in the officer’s report especially in relation to the laneway issue. It’s also clear from these emails that Penhalluriack as a citizen, not a councillor, had meetings with councillors regarding the issue – as is the right of any ratepayer.
Penhalluriack’s application was eventually passed 6 to 3. Those voting in favour WHO ARE CURRENTLY SERVING COUNCILLORS WERE : Tang, Lipshutz and Esakoff.
To therefore claim that the issue of the laneway has been exclusively handled under delegation and has never ‘in substance’ come up before council is both untrue and another example of selective corporate memory. Even the ombudsman reveals that current councillors had knowledge of such dealings when he states: “that the document that Cr Penhalluriack was seeking was created before Cr Penhalluriack became a Councillor and was created for the purposes of advising former Councillors of Mr Penhalluriack’s various disputes with the council.”
All councillors therefore knew about the disputed laneway. Several of them had even voted on the application that contained the contested ‘roadway’. To now plead ‘ignorance’ and the furphy that it was all handled under delegation does not coincide with the facts of the matter. None of these councillors are poor, innocent bystanders, ignorant of what has gone on. This is simply another example of misrepresentation and deliberate distortion of the facts. More than anything, Lipshutz, Tang and Esakoff have played a major part in this whole fiasco.
When Lipshutz, Tang and the others last Tuesday night voted to unanimously accept the recommendation they created a further black mark against themselves! Lobo’s pathetic attempt to disengage himself from the situation with his totally irrelevant argument is even more laughable, especially when he took the Ombudsman to task with the following comments:
LOBO: read the title of the ombudsman’s report and stated that he had to ‘wrestle’ with this since the meaning of ‘governance’ embraces all councillors and staff in providing ‘transparent and accountable local governance’. Went on to say that he thought he and others had done ‘all we could do to help’ Penhalluriack and as a result he rejected the title of the ombudsman’s report saying that it should have instead been called bullying etc. ‘by a councillor of the city of Glen Eira’. Lobo then claimed that the ombudsman has ‘painted all of us’ into the ‘category of poor governance’. He concluded by saying that ‘we have done what we had to do’.
PILLING: reiterated the blurb that this issue hadn’t been handled at a council meeting and that it was all done under delegation and he supported the recommendation.
Our conclusion is that the ombudsman on this one point at least got it right. All councillors are tainted by their failure to provide good governance in continually accepting without question or comment the nonsense that is put before them by administrators.
Glen Eira Debates 
April 7, 2012 at 3:13 PM
Looking for consistency in statements and actions by this council is a forlorn pursuit. The supposed rationale behind disclosing private correspondence is that no documents have previously been tabled because everything was under delegation. Since no documents have ever been published about the mulch facility, and since it was the direct subject of a council decision, the argument would carry even further weight in this instance, that all documents should have been tabled. Of course they were not.
I suggest that this council has reached the stage where very little of what is stated can be accepted at face value. The outcomes of secrecy, dissembling, and selective reporting from all quarters requires not just the ombudsman to investigate but I think a full parliamentary committee.
April 7, 2012 at 5:04 PM
Lobo is allowed to rave on when his comments don’t have anything to do with the recommendation or motion and Pilling just regurgitates without explanation like a trained parrot. If this is all that Lobo said then the laneway didn’t get mentioned and neither did conflict of interest. Another example where Penhalluriack is gagged and his right of reply doesn’t feature in the minutes because Esakoff and the gang claimed its “irrelevant” and these blokes can say what they like. They weren’t shut up like Penhalluriack was. More brownie points for them in doing others dirty work I’d say.
April 8, 2012 at 10:32 AM
Based on the ombudsman’s comments regarding conflicts of interest on a possible profit of $200 on mulch sales, what is his view on building applications which is where Penhalluriack really makes his money (nails, hardware,roofing products). Should he excuse himself? What about legal matters? Should Hyams, Tang and Lipshutz excuse themselves. This has all become ludicrous and it’s a real pity we can’t have more Penhalluriacks in council and less lawyers.
April 8, 2012 at 11:06 AM
There’s one potential conflict of interest that has never been addressed and relates to your point about lawyers John. Since Tang works for Maddocks did he at any stage declare a conflict of interest in any of the resolutions that have gone on about Penhalluriack? Did he take part in any of the discussions? If he did then I’d say that this is even more of a direct conflict of interest than anything Penhalluriack has supposedly done. People have already pointed out that he is quite capable of declaring a conflict of interest as one out of 40,000+ students at Monash University when it suits him, but with something as fundamental as working for the same firm that is helping prosecute Penhalluriack there is nothing in the records of assembly to indicate that a conflict of interest has ever been declared by Tang. I could also question whether any of the development applications that Lipshutz has voted on are also 100% kosher and whether he has ever been employed by any of these developers in the past. Why he didn’t declare a conflict of interest over the frisbee should be looked at very carefully.
April 8, 2012 at 2:21 PM
How it is not a Conflict of interest when Tang works for Maddocks, and then they are engaged by Glen Eira is really just amazing. Also Lipshut and this frisbee affair, didnt he write a letter about his own son. What do you have to do to have a conflict of interest these days.
April 8, 2012 at 7:52 PM
C60, Maddocks, GESAC, Frisbee, Heritage, the list goes on I’m sure. The Act says all decisions made should withstand the publics scrutiny, I have grave doubts about some of these topics. The elections are coming up so I expect all councillors to be very sympathetic to residents needs, then they will turn as usual. One word voters C60!
April 8, 2012 at 12:31 PM
We should be grateful for at least some records being maintained of Council decisions, activities and general governance. They are inadequate, but better than nothing. When the “corporate memory” of our representative local government fails them, they can research the records. Funny how the records don’t always match the rhetoric.
Cr Lobo raises a point about governance and expresses indignation at being “tarnished”. He should be grateful that Council has not been investigated for conflict of interest, breaches of Councillor Code of Conduct, Local Government Act, and poor governance. The Ombudsman has specifically investigated only Cr Penhalluriack–on this occasion.
Rather than egg his fellow councillors on to ever greater fits of pique, he has an opportunity to provide leadership (as they all do). A starting point might be around Transparency, since that is one of Council’s major weaknesses. For every piece of information that somebody attempts to keep Confidential, apply the relevant tests. Consider explicitly whether its release would cause detriment to Council or another person, and whether the wider public interest clearly demands the restriction of information. Secrecy should not be the default option. Public records are valuable resources for now and in the future.
Related but from a different angle, I would like to see the text of councillors’ statements in support of their vote being incorporated in the Minutes, along with a record of how each councillor voted. The Conduct principles require councillors to be accountable for both.
April 8, 2012 at 3:26 PM
Here we go again distracting from the issue at hand and quibbling about any minor matter that distracts from the real issue. This is about someone allegedly deliberately fencing off a Council Asset (read owned by all of us ) and then compounding this deliberate behavior by crying adverse possession. We own this asset and I for one demand that it be returned to the people of Glen Eira.This individual involved will do anything to achieve their aim.
April 8, 2012 at 3:50 PM
It’s a great pity that you do not do your necessary homework before you attempt to distract us all “from the real issue”. If you had bothered to go back and read the Tangalakis amendment to the original report you will not that the words “the public” have been significantly REMOVED from the recommendation. In other words, this is NOT a public road. What this again proves is that when this Council and/or planning department have been confronted with their errors they are reluctantly forced to amend their original applications. In a professional organisation such “errors” should not happen. But of course, there are obviously many, many hidden agendas going on here rather than a simple planning application.
April 8, 2012 at 7:14 PM
It has been a while since you could claim adverse possession over publicly owned land.
The claim will fail. Frank does himself no favours by having his mum make the claim.
April 8, 2012 at 5:54 PM
Even if Cr Tang does not work on Glen Eira matters at his legal company any business from GE Council goes towrds paying recurrent costs of receptionists , photocopy hire, Law Institute Registration and insurance, telehpone and motor car leasing and of course office rental… so we all help pay for these when Cr. Tang votes in favour of using the said company, Any cost accountant would tell you that htese costs are far in excess of the price of .2 % of sales of mukch (with health safety warnings).
April 8, 2012 at 7:47 PM
Tang who helped give us GESAC is not in any conflict for two basic reasons. A) He receives no direct benefit and B he has no input into the allocation of Legal work.If he were to vote on allocating work to his Firm ,he then, would be wise to declare a conflict. Again a side show. If you are that concerned ask the Ombudsman to investigate . Finally Glen Eira has been using the same Partner for ever. Anyway, even if Tang is as guilty as hell, what has that got to do with the issues of the other Councillor.One does not justify the other.
April 8, 2012 at 11:02 PM
Noel, you’re really a dead loss. The cases are connected. Only difference is that Tang is Newton’s buddy and Frank isn’t. Thus the anti-Frank crusade with all the dodgy allegations, selective documents and dubious “witnesses”. You don’t kill the golden goose that gets you 5 votes in council every time you want to ram something thru and that you can control.
April 8, 2012 at 9:53 PM
Please ,I beg everyone out there in blogger land to read sections 99 to 102 of the Ombudsman’s Report relating to the Laneway.The easiest way to get to it is via Council’s home page. The Conclusions are extremely harmful to the Councillor involved. I await the Member’s finding and associated punishment.This matter relates to the misuse of power and has nothing to do with the ownership of the lane which is a separate issue.
April 9, 2012 at 11:33 PM
The Blog Keeper and Annonymous 2 – get your facts right. Lobo was not in the council when Penhullariack had issues with his laneway. Why would he comment about something that was not during his time. Remember he is a banker by profession; for him 2+2 makes 4.
April 10, 2012 at 10:37 AM
Anon 9 are you kidding. The Laneway issue is very much alive and Lobo should be asking why it is still fenced off against the wishes of the Owners.If someone lives neat the Briggs St laneway take a photo and send it to Glen Eira.I am sure she will post it?