April 18, 2012

How Can We Believe Them?

Posted by gleneira under Councillor Performance, GE Governance
[17] Comments 

Full and honest responses to public questions are difficult to find in Glen Eira. Spin, dissembling, and verbal gymnastics are the hallmark of what repeatedly occurs. Our comments in this post relate to one specific question:

“At the Council meeting of February 28th, both Crs Esakoff and Lipshutz moved motions asking for ‘Requests for Reports’ on the Lord Reserve/E.E. Gunn Pavilions and removal of the Caulfield Park depot respectively. Did both of these councillors provide written notice to other councillors prior to calling for these reports as mandated by the ‘no surprises’ clause within the code of conduct and the council resolution passed on the 22nd November 2011?” 

The Mayor read Council’s response. He said: “You have misrepresented both the Code of Conduct and the resolution of 22nd ovember 2011. While Clause 2.4.3 of the Code of Conduct requires Councillors to demonstrate ‘commitment to consult with other Councillors, within the decision making framework and with no surprises’, there is no requirement for prior written notice. As both Councillors, prior to making their requests for reports, verbally foreshadowed their intention to do so if another motion was successful, there was no breach of the Code of Conduct.

The resolution of 22nd November “strongly encourages all councillors to submit all motions to the Mayor and councillors in writing prior to a Council meeting, except where the motion arises during the course of the meeting or in extraordinary circumstances.” The motions were not submitted in writing, but clearly arose during the course of the meeting, as they were requested in response to the resolution passed at item 9.7, which introduced a matter to Council’s budgetary discussions.

Therefore, Councillors Esakoff and Lipshutz did not act in contravention of the resolution of November 22nd in making their requests for reports, as your question implies, and nor did the remainder of the Councillors in unanimously supporting those requests.”

We do not accept this response as an accurate reflection of what occurred on the 28th February. The requests for reports by both Lipshutz and Esakoff were NOT a ‘natural’ outcome of the discussion on the Victory Park pavilion and nor was there any mention of other motions. Simply stating that a request for a report is ‘foreshadowed’ does not adhere to sufficient notice. Here is what happened –

LIPSHUTZ: spoke about priorities and how this would mean ‘dropping things off the budget and putting other things on the budget. Called the motion ‘aspirational’ and that there were plenty of other ‘aspirational’ projects he’d like to see done such as the removal of the depot from Caulfield Park. Said that he would foreshadow seeking a report on this later. ’If I was cynical and I’m not, I would say that this is an election year ….councillors coming along with their own pet projects.….we need to look at this overall’ Echoed Tang and Esakoff about the necessity for ‘consultation’ with the clubs. Ended up by arguing that ‘what this motion does is places the issue of Victory Park on the table’ but he also stated ‘I don’t think it binds us….it is aspirational’. Ended up by again referring to an election year and that councillors will have to work out their priorities.

ESAKOFF:  Stated that this solved some things but she still had ‘concerns’. Worried that it was being ‘rushed through’ (She’d) ‘like something to come back to us in writing not necessarily to a council meeting’ about the E.E Gunn and Hex Pavilion. She said that ‘I would like something by way of a report’ on female facilities at these ovals. Worried that this motions would cause ‘a great deal of angst’ (from clubs)’ because they are waiting, not lobbying, because they ’know there’s a strategy in place’. Couldn’t therefore vote for the motion because it wasn’t ‘right’.

Please note that in neither of these statements is there any indication that ‘prior notice’ was given to other councillors which is in accord with the ‘no surprises’ policy. Secondly there is nothing in these statements which logically tie in with the eventually passed resolution on the Victory Park pavilion.

Perhaps the most damning indictment of this council’s attempt to fudge the facts and to excuse the clear breach of their own rules is this email written by Cr Neil Pilling to other councillors following the meeting of 28th February. We cite this in its entirety –

From: neil pilling
Sent: Wednesday, 29 February 2012 12:14:41 AM (UTC+10:00) Canberra, Melbourne, Sydney
To: Cr. Jamie Hyams; Cr. Jim Magee; Cr. Oscar Lobo; Cr. Margaret Esakoff; Cr. Steven Tang; Cr. Cheryl Forge; Cr. Frank Penhalluriack; Cr. Michael Lipshutz; Cr. Neil Pilling
Subject: reports requested tonite and the ‘no surprises’ agreed CR guidelines

Hi All,

Looking back on tonights proceedings and the reports requested in hindsight both the Depot and Lords/Ee gunn reports should have been at least discouraged and not sought.

They both controvene our agreed policy of giving due notice in writing as articulated in a motion passed late last year- This was voted for unanimously from memory so as to prevent ‘reports on the run’ and also i feel to  prevent ‘tactical manouvers’ in a council meeting to undermine motions put.

Whilst the subject matters of both reports is reasonable , this lack of notice is something feel we should guard against in future,

regards Neil”

We leave readers to draw their own conclusions as to the honesty and governance that occurs in Glen Eira, and in particular the role of the Mayor in permitting such tactics to go unchallenged.

 

April 16, 2012

Hyams: The Man For All Seasons?

Posted by gleneira under Councillor Performance
[20] Comments 

Reprobate’s comment regarding the mad rush to finalise the Community/Council Plan by June has given us some food for thought. This is 4 months BEFORE the next election when there is the potential for an entire new crop of councillors to come into office. Hence, they will be ‘bound’ by the decisions of an outgoing council – especially since the option of rescinding motions does not exist in the current Local Law Meeting Procedures!

It’s therefore pertinent to recall the comment of Hyams in 2008 (prior to his re-election as a councillor) on the then proposed Community/Council Plan. We quote the opening paragraph of his submission dated 14th May, 2008 –

“….I don’t believe this Council should be finalising a Community Plan for the medium term at this time, given it will be finalised only a few months before the end of this Council term. Thus the effect will be that this Council is attempting to bind the following Council to a Community Plan that this Council has not had a chance to implement, but in all probability some members of the next Council will not have had an input in drafting, beyond, possibly, this community consultation process. I see no problem with the current Council carrying out the community consultation process, but I believe the next Council should finalise the Community Plan.”

Will the Mayor hold to these views now? Will principles stand firm, or will weasel words again be used to justify what we anticipate will be the gigantic recant on this position?

We’ve uploaded Hyams’ entire submission which we urge residents to read very carefully. His criticisms of the 2008 community plan will no doubt be applicable to the current draft plan. What he says and how he votes will reveal much about the man and the games of politics, principles and consistency.

 

April 14, 2012

Another Clayton’s Consultation?

Posted by gleneira under GE Consultation/Communication
[6] Comments 

Here are some observations on the upcoming Community Plan time frame.

  • Release of the draft community plan was promised for April. It is now scheduled for 8th May
  • The Community Plan is set down for council resolution on the 26th June
  • In 2011, the Budget was released on 10th May; in 2010 the date was May 11th and in 2009 it was May 12th. Each of these draft budgets were passed by resolution in June of the respective years.

Does all this mean that the budget will actually be passed BEFORE the Community Plan? To all intents and purposes, the budget will have already been drafted and for the most part, set in concrete. All that remains is official endorsement by councillors/council. Yet all along we’ve had the spin that the Community Plan should be the overarching document that plays a large part in determining council’s priorities and hence, strategic direction and spending. These timelines suggest a different story. One that again illustrates how this council’s commitment to genuine consultation and then actually listening and acting upon the views of residents is likely to amount to nothing more than another expensive exercise in spin and sham.

Many questions need answering:

  • Why wasn’t the Community Steering Committee created BEFORE the consultant’s report? Shouldn’t they have had input into this fundamental first step in the process?
  • Why is the feedback from the various Community forums via the officers’ reports again not published?
  • Are the community reps on this community basically sworn to secrecy?

The next 6 weeks should reveal a lot about this council and its councillors. Residents will have the opportunity to see exactly how much notice has been paid to their views and their priorities. Spin may be able to camouflage the process, but not the outcomes. That is what councillors will be judged on. Unless a huge emphases is placed on addressing issues such as planning, transport, flooding, and consultation in both the community plan and the budget, then the only feasible conclusion will be that this has been nothing more than another expensive public relations exercise where the community has been ignored.

 

April 13, 2012

VCAT: FOI Decision

Posted by gleneira under GE Governance, GE Service Performance
[11] Comments 

Below are extracts from the VCAT decision on Penhalluriack’s application for FOI access to council documents. The full decision is available at: http://www.austlii.edu.au/au/cases/vic/VCAT/2012/370.html

The report indicated sampling and testing of the mulch itself had not been carried out. Rather, NAA’s report referred to the results of air testing conducted around the mulch storage facility (including at the adjacent playground) and compared with a neutral reference location. This was on the basis that it was NAA’s view that air testing was the most effective way to assess any threats to the health of the public, or Council employees working at the facility.

The report concluded that it was likely that workers and mulch users would potentially be exposed to bacteria (eg legionella) and fungi as a result of handling mulch. It stated however that air testing of the levels of bacteria and fungi at various locations around the mulch facility indicated that these were not elevated when compared with general environmental exposure. Nevertheless, it recommended a series of simple steps be taken to minimise the risks associated with the levels of bacteria and fungi which Council workers and the public would be exposed to. These included preventing buildup of large quantities of mulch, providing training and personal protection equipment for workers, installing a fine mist spray system and providing warning information to members of the public, by way of signs and flyers, about the risks of handling the material, equivalent to those provided on commercially available products.

Cr Penhalluriack was also concerned that the NAA report may have been compromised as a result of consultations between Council staff and NAA. This concern arose in circumstances where Cr Penhalluriack became aware that the report had been through a number of drafts, in consultation with Council officers, and also in the light of his concerns that Council officers had not taken the issue seriously when he had raised it prior to November 2010.

Cr Penhalluriack made an FOI request to the Council on 21 March 2011 (ie before to the 5 April 2011 resolution to remove the facility) in the following terms: I would like copies of all records relating to the Mulch storage facility from the time it was installed in Glen Huntly Park in or about August 2009 until now. These records should include documents arising from, or relating to, an enquiry to the Audit Committee on the 19th November 2010, and include diary, telephone, email and discussion notes, including a list which outlines the nature of any “complaints” or “comments/feedback” that have been received by Council and which were submitted by residents, contractors, or employees in relation to the Mulch storage facility

Cr Penhalluriack was also denied access to twenty-six documents. These were said to constitute internal working documents, and to be exempt under section 30 of the Act.

By the commencement of the hearing, consultations between the parties resulted in only six documents remaining in dispute.

This case is a little unusual in that the respondent is a Municipal Council, and the applicant is a Councillor of that Council. One would expect councillors to be provided with a deal of information by councils, on occasion including documents which would be exempt under FOI. However, there is nothing preventing councillors pursuing documents under FOI from their own council

30 Internal working documents

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act—

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer or Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

(b) would be contrary to the public interest.

the key requirements of section 30(1)(a) are that the matter in the documents in question must be in the nature of opinion, advice or recommendation. Alternatively, they must comprise consultation or deliberation between officers, councillors or between an officer and a councillor.

It is well accepted that the term “officer” includes independent consultants retained by agencies to assist in carrying out their functions

This is perhaps the most significant document in terms of the controversy between the parties. It is described in the schedule of documents in dispute as “Email and Draft Report” dated 10 February 2011. The author is NAA. This document comprises first, a short covering email and second, the enclosed draft report. This was an earlier draft of the report which was provided to the Audit Committee at its meeting on 25 February 2011. This version is marked “V2”. The version produced to the Audit Committee which was publicly released is marked “V3”.

Although it has the same basic structure, the 10 February version of the Report (V2) differs from V3 in a number of ways.

In my view, it is a typical example of the type of document the Tribunal has frequently determined is a pre-completion draft, which should not be released. The final version represents the considered view of its authors, on the matters which the Council had asked it to advise about. To release the draft version would confuse readers, and could cause mischief or unnecessary concern, especially in the light of the fact that the report is dealing with an issue of public health (including investigating the prevalence of legionella, which has the potential to cause alarm in the community). What should and what should not be included in the final version of such a document are important in terms of the message which is conveyed to the public. As was discussed in Brog, it is in the nature of preliminary drafts that they are reviewed and polished- corrected by alteration, substitution and addition.

It was also submitted on behalf of the applicant that the desire to obtain an independent view by experts outside the Council was of significance here. It was argued in effect that it was in the public interest to be able to examine communications with the consultants, to shed light on whether their independence was compromised – whether they were unduly influenced by Council officers. However, this runs contrary to the concession which the applicant made, rightly, that NAA is to be regarded as an “officer” of the Council for the purposes of section 30.

Further, the facility was closed about 12 months ago. It might be said that this suggests any confusion or mischief is lessened with the passage of time. On the other hand, this could also be said to militate in favour of not releasing a draft version of the report, because it could be said to be stirring up something in the past which in itself creates mischief and confusion now. On balance, I do not believe the passage of time is a strong factor in favour of release in this case.

The applicant contended that only the first sentence of the second last paragraph could properly be described as an opinion expressed by a Council officer. I disagree. In my view, a fair reading of this document as a whole is that it is discussing the appropriate content of the report to be put to Council, and then, presumably, released publicly. It is part of the process of determining what the appropriate content of the report is, in order to fulfil its purpose, which is, broadly, to advise Council on any risks associated with the facility, and to recommend steps to deal with such risks.

The applicant invoked the high public interest in ensuring the protection of public health. His counsel, Ms Currie, submitted that the public are entitled to know what tests are being carried out to be able to scrutinise them and form a view as to their effectiveness and as to the quality of the report by NAA. She also referred to authority in relation to the need to be able to test expert evidence in legal proceedings, saying that the public interest here is akin to the rationale for scrutiny of expert material in litigation between parties where expert evidence is being relied on. Thirdly, she relied on the public interest in the integrity of independent advice publicly proffered to Council in relation to a matter of public health and safety. It was contended “that interest is of particular prominence in circumstances where the independence of the risk assessment and the reporting from the Council’s own processes was an essential reason for commissioning the independent risk assessment and report”.

I do not accept that any of these aspects of public interest are of sufficient magnitude to satisfy the threshold required for section 50(4). I do not accept the suggested analogy with the need for scrutiny of expert evidence in litigation. In relation to public health, of course this is important, but there is nothing in the content of the documents which suggests that an issue arose in the conduct of this matter by the Council, which gives rise to an overriding concern, or a need to expose the Council’s internal processes beyond what would normally occur in applying section 30. Whilst the spectre of “legionella” was raised, I do not accept there was a potential threat to public health of sufficient magnitude to outweigh the public interest against release, let alone require release of the document. Also, of course, the facility was closed down 12 months ago and so such public health concerns are no longer current.

 

April 12, 2012

Double Standards

Posted by gleneira under Councillor Performance, GE Governance
[21] Comments 

At the Special Council Meeting of 3rd April, Lipshutz moved a motion which stated in part that officers provide:

‘all necessary and all relevant documents related to the mulch facility including, but not limited to, the report conducted by Noel Arnold and Associates’.  

Of course this represents an entire watering down of the original Forge motion which asked for ‘all test results’ and lapsed for want of a seconder. Lipshutz’s motion also included the wonderful weasel words ‘necessary’ and ‘relevant’. Who is to decide what is ‘necessary’ and/or ‘relevant’ remains a moot point. However, the word ALL would imply that at least ostensibly, Lipshutz is asking for documents that either (1) have not previously been made public, and (2) will clear up the question of the mulch facility and its ‘safety’. That should include ‘test results’.

If we are correct in our interpretation, then this same councillor’s statements at the last Council Meeting – only a week following the Special Council Meeting – are quite extraordinary. Lipshutz claimed that Penhalluriacks’ questions were ‘improper’, that he was seeking the same information that his FOI application was geared towards, and that the questions were critical of officers. Hyams joined in later by applying the word ‘bullying’.

Thus we have a council that has double standards and what’s good for the goose is obviously not that good for the gander. When Lipshutz can move a motion requesting ALL documents that are ‘necessary’ to clear up the mulch farce and then turn around and accuse Penhalluriack for basically asking the very same questions, then we’re in major trouble over governance.

It’s also interesting that Lipshutz makes the claim that Penhalluriack is after identical information to his FOI request. Given that the content of these documents were never made public, then how does Lipshutz know that what Penhalluriack was asking for is contained within those documents? Or could it possibly be that being one of the ‘chosen’, he has access to ‘confidential’ information that is not distributed equally to all councillors and thus represents another breach of the Local Law?

The continual abuse of meeting procedures, Local Laws and councillor conduct is mounting up. It is also time that councillors with a shred of decency put a stop to this continual abuse by speaking up in public. Silence is consent and when, as the saying goes, good men do nothing then this allows tyranny to flourish.

 

April 10, 2012

Councillor Questions

Posted by gleneira under Councillor Performance, GE Council Meeting(s), GE Governance
[12] Comments 

Penhalluriack started asking a series of questions –

(1) Asked if the Noel Arnold (consultant’s report) actually tested the mulch itself and if it was done,  ‘to provide details’ of results and costs

(2) When was this done?

(3) Whether this work ‘was included in Noel Arnold Associate’s final report’. If it wasn’t included in their report then Penhalluriack wanted officers to explain why it wasn’t included.

(4) Quoted Newton as saying that the cost was $5000 and Penhalluriack asked whether this was the cost at the 5th April or whether there was additional work done ‘prior to the 5th April’ which wasn’t in the Newton report to council.

(5) Said that the original quote was ‘$2,000-$3000’ but wanted to know what the total ‘amount paid’ was.

At this point Lipshutz raised a ‘Point of Order’

LIPSHUTZ: ‘I suggest the question is improper’ (in breach of the Local Government Act and the ombudsman’s report about Penhalluriack and the mulch facility. Stated that Penhalluriack had tried to get this information via his FOI application which failed) ‘and is now seeking the same information’. Also didn’t like the ‘way the question is framed’ and its criticism of officers ‘that there is wrong doing on the part of officers’….’that once again is inappropriate conduct’.

HYAMS: ‘I am going to uphold that point of order’. Agreed that because of the ombudsman’s report and ‘our duty to uphold the provisions’ of LGA and Code of conduct….’we should be doing what we can to stop breaches of those’.

PENHALLURIACK: Stated that he wasn’t contradicting the officers, ‘what I am concerned about is that there has been additional testing done’ and if this testing shows that the mulch is infected ‘any councillor in this room’ wouldn’t vote to reinstate the mulch facility. ‘That’s why I’m asking these questions’. Started quoting an email from Noel Arnold & Associates which said they’d got samples from Bunnings and there would be ‘analysis’ and that the cost for this is ‘additional’ to original statement.

HYAMS: interrupted at this point. Said that the ombudsman’s report stated that Penhalluriack had a conflict of interest in mulch.

PENHALLURIACK: corrected Hyams by saying that the ombudsman said that he ‘may’ have a conflict of interest. Stated that he had legal advice on these questions and that he doesn’t believe he has a conflict of interest and it’s ‘for me to judge’ about asking these questions.

HYAMS: Claimed that the point of order was that the questions were ‘improper’. ‘In my opinion’ (given the ombdusman’s report and that Penhalluriack declared a conflict of interest at the last meeting)

PENHALLURIACK: claimed that he had left the room but did not declare a conflict of interest

HYAMS: Again said the ombudsman stated he had a conflict of interest

PENHALLURIACK: again corrected Hyams by repeating the ombudsman saying he ‘may have a conflict of interest’. Referred to the Municipal Inspector’s report which said that he doesn’t have a conflict of interest. ‘This is a very difficult area and I don’t believe it’s right that you sit in judgement of me…..taking the responsibility for the health and safety’ of residents and workers.

HYAMS: said that he ‘understands’ Penhalluriack’s ‘motivation’ but ‘integrity agency’ asks ‘why did you allow these continuous breaches’. Said that Penhalluriack’s beliefs about conflict of interest are matters ‘for your conscience’  but Hyams conscience is ‘how I react to what I see as breaches of the law’

PENHALLURIACK: offered Hyams to report him to a Councillor Conduct Panel ‘if you like to’ but that isn’t the issue. Claimed that the issue was ‘health and safety of the public’….’there has been testing of the mulch within that mulch facility’. Stated that his mother caught pneumonia which can be ‘parallel’ to the symptoms of legionella and that he doesn’t want it on ‘my conscience’ that the report has ‘cleared the mulch’ without us knowing. Tried to finish his questions.

HYAMS: ‘I have ruled that your question is improper’ and asked him to stop.

PENHALLURIACK dissented from the ruling and said that he moves a motion and that he would like Hyams to ‘call a vote of councillors’

HYAMS: ‘could you point to me in the Local Law where it says you can dissent’?

PENHALLURIACK: ‘I ask that you put it to a democratic vote’

HYAMS: said he would if he could find that section which would allow him to do this.

PENHALLURIACK: said that it should be council and councillors that make decisions and not the mayor that the mayor is simply ‘first among equals’

HYAMS then read out the section from the Local Law which says that the chairperson is the ultimate arbiter on points of order.

PENHALLURIACK: stated that this isn’t a point of order. ‘I’m asking for dissent from the ruling’.

HYAMS: said that Lipshutz made a point of order and he’s ruled on that point of order.

PENHALLURIACK: Asked Hyams if he was ‘frightened’ of the report and voting on this

HYAMS: Said that Penhalluriack was now debating something else. ‘I’ve made a ruling on a point of order’.

TANG: “Point of clarification’ Said he was trying to figure out the point of order ‘what basis were you saying you were ruling the question out of order?’

HYAMS: ‘that it was improper…breach of Local Government Act (conflict of interest) …may be breach….misuse of position (trying to get information through his position as a councillor that he couldn’t get through VCAT)….and continuation of behaviour (that O’Neill and Ombudsman saw as) ‘bullying’. Said that if a councillors action breaches the Local Government act and Code of Conduct then it’s ‘improper’

 

April 10, 2012

The Leader: Leading Or Lead?

Posted by gleneira under Caulfield Racecourse/C60, GE Planning
[30] Comments 

Caulfield woman’s concrete objection

10 Apr 12 @  05:00am by Andrea Kellett

A SINGLE objection has put a $1.8 million upgrade to Caulfield Racecourse Reserve on hold. A Caulfield North woman has lodged an appeal with the Victorian Civil and Administrative Tribunal (VCAT) against the project.

Glen Eira Mayor Jamie Hyams said the appeal could delay the project up to a year.

Mary Healy is opposed to a planned concrete path in Glen Eira’s “precious open space”, and will put her case to the tribunal on May 31. She said she would propose an “alternate” gravel path. “There’s too much concrete,” Ms Healy said.

The appeal is a massive blow to the Melbourne Racing Club, which has hoped to create a public park in the racecourse infield before the Spring Carnival.

It is also a blow to Glen Eira Council, which has for years wanted to increase recreational use at the reserve. The council voted unanimously to grant Melbourne Racing Club a permit in August last year.

The plan includes a lakeside picnic and barbecue area, a large off-leash dog area, walking and jogging paths, a junior soccer pitch, a playground and fitness equipment. The racing club will pay for the design, construction and maintenance of the facilities.

Cr Hyams said the VCAT appeal had “stymied” a much-needed community facility. “It’s disappointing because this was going to be a really good park for the whole of Glen Eira,” Cr Hyams said.

Melbourne Racing Club development and strategic planning manager Brian Discombe said the appeal had delayed the project. “Any delay is not a good outcome for the club or the community,” Mr Discombe said.

PS: The most expensive piece real estate used as a car park. Photo 20th March!

 

April 9, 2012

April? We Don’t Think So!

Posted by gleneira under GE Service Performance
[3] Comments 

Photos are dated 20th March

 

 

April 7, 2012

The Truth Shall Set You Free!

Posted by gleneira under Councillor Performance, GE Council Meeting(s), GE Governance, GE Service Performance
[16] Comments 

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.  

 

April 5, 2012

Mulch, Truth, & The 4 Ring Circus!

Posted by gleneira under Councillor Performance, GE Governance, GE Service Performance
[21] Comments 

ITEM 4.3: Reopening the mulch facility

Penhalluriack declared a conflict of interest as a result of the ombudsman’s report but maintained that he hasn’t a conflict of interest.

Lipshutz moved the motion to reopen and Magee seconded.

LIPSHUTZ: Said that when council first made its decision to close the facility that this was based on ‘mainly’ on Penhalluriack providing councillors ‘with some reports…..mainly Google (based) I understand….(and what council has got is a report made by a government department and professionals, so) ‘appropriate course would be…..reinstate the mulch shed’ (and put into place the recommendations from the consultant. Will provide) ‘safety and certainty for the community’.

MAGEE: Magee said that he’d asked many customers from the sawmill industry about how they ‘confine’ their green and dry waste. The answer that he was told to overcome all problems is a ‘mist spray’….’keeps the dust at bay’ (so stops the inhaling of dust). Was pleased to see that the consultants recommended this and admitted he didn’t notice this when he first read the report ‘so good to see that’s an industry standard’. Stated that the mulch would now be ‘confined within the confines’ of the shed and not allowed to spill out. Said that all the recommendations such as gloves, masks, spray etc. would be installed and that if in 6 months times ‘we’re still having issues’ and the mulch is seeping out, then the shed could be regularly emptied. ‘I’m more than happy with the conditions that are put on it’ and that now with the industry standards applied that ‘they are more than sufficient’.

FORGE: announced that she had an ‘alternative motion’ that stated the item is ‘outside the scope of the notice’ of the agenda and that all councillors be given before the May council meeting ‘all necessary documents relating to the mulch facility’ and that these consist of ‘all test reports conducted by Noel Arnold’ followed by a report from officers on relocating the facility.

PILLING: stated that in May last year there had been a request for a report on alternate sites ‘that hasn’t come to council….I have concerns about the site….next to a chiildren’s playground and a school….I support the request for a report…. I think it’s fair enough that the report comes to council before we vote on it’. Spoke about the arguments put up when there was discussion about Notice of Motion and that councillors should have information and that applies here – ie councillors get the information first and then vote…..’we should follow process’….”I’ll be voting against 4.3″.

TANG: Said it’s important to explain his position. On the original motion back last year he ‘was in opposition’ to the motion to close the facility. Said that he didn’t have concerns about the faility until Penhalluriack raised them. Said he thought that Penhalluriack’s position was ‘unreasonable’ in light of ‘the advice council had received’. These people had ‘put their professional qualifications on the line’ and he felt that with their recommendations the facility should have remained open. ‘My position in that regard hasn’t changed’….(and when councillors resolved to close it that’s why he moved the request for report on other suitable locations) ‘because I felt there was community support for the facility’….’the appropriate safeguards being those recommended to Council’. ‘We didn’t see the results of that report…..(because) of the various priorities Council has had…..I would want to see the outcome of that report…..(facility was good)’ but location was wrong….they should have the opportunity to see alternate sites….this facility can be provided from Glen Huntly Park with appropriate safeguards’. Happy to make a decision after seeing the Officers’ report.

MAGEE then asked Burke that since council has been looking for a site ‘for so long, has council found an alternative site?’

BURKE: ‘No we haven’t….original motion which was to close a free service not a service that was anything else’

MAGEE asked what difference this makes.

BURKE: ‘There is a good deal of confusion. Some people believe there were health issues. The motion was never about health issues. The motion was about closing a free facility’.

MOTION DEFEATED – voting for LIPSHUTZ, LOBO, MAGEE.

AGAINST: TANG, PILLING, FORGE, HYAMS

FORGE: repeated what she said earlier – item be adjourned; 2 weeks before 1st May meeting councillors receive ‘all necessary documents’ about test results and a report on feasability on relocating the facility ‘as previously requested by Council’. THERE WAS NO SECONDER!

LIPSHUTZ came up with another motion that councillors be ‘provided 14 days prior to the Council Meeting’ documents ‘including but not limited to all test results’ from consultants and a report from officers also be provided.

PILLING sought clarification on the reports. Burke answered that there is ‘only one report’ and that he is ‘not assuming that this is an attempt to gain access to documents that would be in confidence’.

LIPSHUTZ then rephrased  his motion AND  removed the word ALL from ‘test results’. Forge seconded.

LIPSHUTZ: Acknowledged that ‘process is important’. Forge’s original motion was ‘inappropriate because it is within the scope of this Council Meeting’

That’s why he couldn’t support the first part of Forge’s motion. Also said that for the Noel Arnold reports that ‘that’s not in the purview of Council and Council can’t ask for that….(they can look at the report and the) ‘process would be that council would consider the report’ (if there’s another place to relocate then) ‘council would consider that’.

TANG: Said that this is ‘difficult’ because not everyone agrees as to why they ‘knocked back the motion as printed’ (Didn’t support Forge’s motion because he didn’t think) ‘it was outside the scope….it does relate to the finding of the Ombudsman’. Went on to say that it ‘doesn’t matter’ if the driving force was Penhalluriack because ‘at the time we all had to make a decision based on the advice we received’. On test reports ‘I just don’t know what councillors are going to do with it….(councillors aren’t going to put an interpretation on them – that’s the job of Noel Arnold) ‘they need to interpret their test reports and come to a conclusion’….(Councillors can disagree with their report but not to) ‘rewrite the report based on the source material…..that’s outside the scope of the decision making process’. ‘I’m not in favour of reinterpreting the test results’. Said that councillors really want a report on ultimate sites. What’s wrong with Forge’s motion was ‘that there is no guarantee that that will go to the community’ so the resolution needs to ask that it goes to a council meeting. Suggested that this be added to the motion.

FORGE then asked Newton about the notice for the meeting that appeared in The Age. She read out the ‘purpose of the meeting’. ‘It seems to me we’re taking a lot of time to discuss the mulch’ and why this wasn’t included in the notice so that the gallery would know what they were going ‘to listen to’.

NEWTON: Said that the ‘meeting was called by the Mayor, not by me’ and that the ‘business of the meeting was specified by the Mayor’. The CEO ‘does not have the power to determine’ the agenda for Special Council Meetings.

FORGE then asked Hyams the question.

HYAMS: Read out the title of the Ombudsman’s report and said that the report ‘had a number of paragraphs….about the mulch facility. So in discussing this issue we are discussing that report’. Also stated that the agenda item was made available on the Friday so ‘the public would have seen’ what was to be discussed.

HYAMS: Agreed with Lipshutz and Tang that it’s important to get the officers’ report and ‘that’s the way we should be proceeding’. Said he would be voting against the motion because it doesn’t do ‘what councillors intend it to do’.

LIPSHUTZ: Said that the consultant’s report doesn’t mean that ‘councillors can start reinterpreting’. That before councillors make a decision it’s ‘appropriate’ that the officers’ report ‘is in front of us’. Supported Tang that the report comes back to an ordinary council meeting and would accept the amendment.

MOTION PUT – MOTION IS LOST

FAVOUR – FORGE, LIPSHUTZ, LOB0

AGAINST – HYAMS, MAGEE, TANG, PILLING

TANG then moved the motion that a report be provided to ordinary council meeting ‘detailing all findings to the…..feasibility….of alternate mulch facility….within the City of Glen Eira’ and that paragraphs 28-73 of the Ombudsman’s report as well. Lipshutz seconded.

MOTION PUT – carried unanimously.

 

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