Glen Eira Debates

Whilst hundreds of thousands of dollars are expended on current legal battles over GESAC, we have to ask how professional, how vigilant, how qualified, and how effective the Pools Steering Committee was in actually overseeing the whole project.

The committee was supposed to meet on a monthly basis. Not until the change in the Local Government Act when ‘assemblies’ had to be reported upon were any minutes tabled at council meetings. The first such set of minutes were dated the 29^th September 2010. Since then, only 13 sets of minutes have been made public and several of these monthly meetings appear to have disappeared or simply did not take place. Hardly satisfactory when you are dealing with a $50 to $60 million dollar project. 13 meetings in 2 years on the biggest project ever undertaken is simply astounding. Yet, Lipshutz kept assuring residents how ‘on top’ of things Council was. With the current ongoing legal wrangles we can only raise an eyebrow and ask if being ‘on top’ of things should have involved heaps of more meetings and good management.

Even worse is that the Council designated Senior Project Engineer (Raj Gopalakrishnan) has never been listed as an attendee at these meetings. The supposedly regular attendees should have been – councillors (Lipshutz, Esakoff, Magee); Mark Judge (General Manager, Major Projects); Martin Snell (Major Projects Manager) and council directors such as Peter Waite and Andrew Newton.

Below is the attendance record for all of these published minutes. Hardly a convincing performance we would say, especially from Magee. Of the 13 meetings Magee was absent for 6 and didn’t make it to one site inspection. Snell also covered himself in glory by missing 5, and Judge was a no show on 3 occasions. Hardly surprising we say that Council is now in court and haggling over what went wrong with GESAC.

9^th February 2012 – Magee absent

1^st December 2011 – all present

3^rd November 2011 – Snell absent

5^th October 2011 – Snell absent

8^th September 2011 – all present

8^th August 2011 – Magee absent

7^th July 2011 – Magee, Newton, Waite all absent

2^nd June 2011 – Waite absent

24^th March 2011 – “Magee did not attend site inspection”

25^th January 2011 – Magee, Judge, Snell absent

20^th December 2010 – Magee, Judge absent

27^th October 2010 – Newton, Judge, Snell absent

29^th September 2010 – Magee, Snell absent

A long, but important post on the Tree Register saga, so apologies. The following should be borne in mind:

• At least ten years in the making and still no satisfactory resolution
• Residents and councillors are totally excluded from the processes that are about to be implemented. Thus full control and decision making power resides exclusively with unnamed and unaccountable officers.
• The suggested Tree Register has slowly morphed into only applying to private property when its original intention was to include both public and private land as enunciated in the Community Plan. Of course, no public consultation has occurred to validate this surreptitious ‘transition’.
• Glen Eira has a Street Tree Policy, which is primarily concerned with what to plant and where.
• Glen Eira does not have a Tree Maintenance Policy – only a Tree Removal Policy
• Glen Eira does not have any policy whatsoever that can assure residents that trees are not the victims of greedy developers or poor maintenance.

All of the above coalesce in the again UNNAMED OFFICER’S REPORT for Tuesday. The report is largely a verbatim repetition of the document that appeared in February 2013. This time however, pretending to be ‘seeking guidance’ by proffering 4 totally skewed and misleading ‘arguments’. All are heavily weighted to achieve only one outcome – that which has already been pre-determined. We will go through each one of these spurious arguments by quoting directly from the officer’s report and then commenting.

Given around 1,200 planning applications per year, many being for residential development, it is estimated that over 200 valued existing trees are protected each year. Removal of a tree contrary to a planning permit is a breach of the Planning and Environment Act which can attract court penalties far in excess of any breach of a local law. Penalties of between $5,000 to $20,000 are relatively common.

COMMENT

Here’s some terrific bluff and bluster but what this doesn’t tell us is:

• What protection is there against any owner who decides to CUT DOWN a tree on his property not at a subsequent planning application stage, but at the perhaps initial SUBDIVISION stage?
• What happens if the property is landbanked for years and years, no application goes in, and then suddenly a tree is gone? Or what if one year and one day after an application has gone in, the tree is removed?
• How many prosecutions has council actually followed through on?
• How many fines have been issued (and paid) in the last ten years?
• How many ‘valued’ trees  on public or private land have been added in the past ten years?
• How many trees have been removed from public parks and streets WITHOUT a full arborist’s report?
• How many healthy trees have been planted on streets and then removed within months in order to aid and abet the installation of a carriageway in a new development?
• What if any notice is provided to residents about the intended removal of park and street trees – especially when this is done en masse?

The ResCode mechanism is that any tree removed within 12 months of a town planning application being lodged must be assessed as though the “removed” tree is still in place. This has proven to be somewhat of a defacto tree retention control because it has effectively removed any advantage a developer could gain from moonscaping. This means that any town planning application for medium density dwellings needs to consider existing trees/vegetation.

COMMENT

We love the first sentence for its sheer inanity! The TREE IS GONE – end of story! For a developer the risk of being prosecuted by a pro development council is minimal. Secondly, even if there was some action taken, the advantage of being able to squeeze another unit, worth maybe $400000 – $500000 onto a property compared with a paltry fine of even $20,000 is a total no brainer!

We repeat our message from an earlier post that included photograph after photograph of moonscaped properties – bereft of any vegetation including trees. Only one property still retained a palm tree in the corner of the site. All other developments resembled the Sahara Desert. And yet council has the gall to claim that it is successful in preventing rampant moonscaping!

The problem is that the Planning Scheme is designed to regulate matters which are unlikely to change over the short to medium term (eg buildings) whereas trees grow, become senescent, may become hazardous and die. Over time, the Planning Scheme will include trees which need, for safety reasons, to be removed. To reflect that in the Scheme would require a full Planning Scheme Amendment process in each case which would be cumbersome.

COMMENT

Never, but never put anything into a Planning Scheme because that becomes far too binding and gives residents the legal potential to object to council decisions. Via a Local Law, which provides no leeway for resident objections, this little obstacle is overcome!

So, after much manoeuvring we’re left with the obvious solution – proposal D which reads –

A Local Law but only over Classified Trees

This option also uses a Local Law which covers only those trees which the Council has included on a Classified Tree Register. The Register would include those trees which the Council had assessed and considered were important to protect. The owner would have the opportunity to challenge whether the tree would be included in the Register or not. Once included, a permit would be required to lop or remove the tree.

COMMENT

This represents the heart of the issue. It is officers only who will decide on what is ‘valuable’. No outside interference from residents or councillors permitted. No ‘suggestions’ for trees on public land. No objection rights for resident neighbours – only developers. Residents won’t even know when a tree will be gone. The chain saws will come out one morning and poof – gone with the wind! No notice, no explanation, no objection rights, and only profit for the developer.

Given this current state of affairs it is worth pointing out the radically different approach taken by countless other councils. Some have vegetation overlays in their planning schemes; some have opted to  include the requirement for a permit within these planning schemes. Those that have the need for permits only as part of a Local Law at least request residents to nominate trees on both public and private land and residents are given full notification and objection rights if a decision is made to cut down a tree. Many make their policies and laws applicable not only to a tree register which might consist of only 100 to 200 trees, but to any tree earmarked for removal. Here are some examples:

http://www.portphillip.vic.gov.au/tree_protection.htm

http://www.boroondara.vic.gov.au/our-city/trees/significant-treeshttp://www.kingston.vic.gov.au/Planning-and-Building/Significant-Tree-Register

http://www.bayside.vic.gov.au/environment_trees.htm

http://www.frankston.vic.gov.au/Environment/Trees/Register_of_Significant_Trees_on_Public_Land/index.aspx

http://www.yarracity.vic.gov.au/environment/trees/significant-tree-register/http://www.darebin.vic.gov.au/Files/Item_8.4_Appendix_A_-_Report_to_Council_on_17_September_2012.pdf

http://www.banyule.vic.gov.au/Council/Environment-and-Sustainabilty/Trees-and-Plants/Significant-Tree-Register

http://www.greaterdandenong.com/document/23514/trees

http://www.melbourne.vic.gov.au/Sustainability/UrbanForest/ExceptionalTrees/Pages/AssessmentInfo.aspx

http://www.mvcc.vic.gov.au/planning-and-building/long-term-planning-in-moonee-valley/significant-trees.aspx)

THE PROPOSED LOCAL LAW

We make the following observations on the draft Local Law:

• The appeal process consists of officers and ‘independent’ arborists. No councillors of course and no need for a council resolution or public documentation to support any decision making. All is to be left in the ‘capable’ hands of administrators. There is not even the requirement that results of such appeals be placed in the public domain, or that any documentation sees the light of day. Again in stark contrast to what happens at other councils such as Bayside.

Last but definitely not least, we remind readers of the previously stated opinions of Lipshutz, and Esakoff. Okotel also voted against having a Tree Register in February. We will now see whether consistency is their strong point, since the circumstances have not changed and the anti arguments certainly have not changed. Maybe they will cut their losses and think that a minimalist Tree Register of only 50 or so trees, or even 100 trees is better than letting the public in on anything. So the question is: Will they become turncoats and vote for a register, or will they introduce some nice little pre-orchestrated amendment? Here’s what they said way back in February (from our post of the time) –

ESAKOFF: didn’t support ‘tree protection’ and that people in general ‘do appreciate the value of trees’ and that people don’t remove trees ‘without good reason’ ( such as property damage, or dangerous). Thought that people ‘should have the right of choice’ over their own property and shouldn’t have to pay to get a permit to prune, or ‘being forced’ to hire an arborist to ‘report on whether they should be allowed to prune’. Accepted that there are a ‘range of views’ and that some people would feel that ‘they are over-governed’ and to introduce a tree register ‘will only cement that view’. Existing mechanisms include town planning, so that if there is a significant tree then town planning conditions are ‘put in place to protect them’. There are also ‘large penalties’ for ‘breach of those conditions’. Other safeguards are landscape plans, 4 metre setbacks and open space requirements which means that more trees can be planted. ‘There are enough hoops to jump through’ without adding to them.

LIPSHUTZ: said this has been up to council a ‘number of times’ and council has changed its mind a few times. Doesn’t support a tree register for the reasons basically outlined by Esakoff. Said that his worry is that ‘I don’t trust the arborist’…’I don’t trust the people who make the heritage decisions’. He sees heritage advisors saying it’s heritage but ‘I see nothing heritage about it’….’it’s in the eyes of the beholder’ since there’s ‘no scientific way of saying this is heritage or this is a significant tree’. Said that laws exist. Reflected on his personal trees but ‘over the last 20 years’ they’ve gone because they were ‘ordinary specimens and they’ve been replaced’, Now he’s got ‘nicer’ and ‘better trees’….It was my choice to do that’. Doesn’t want people telling him ‘this is the way to do it’. Local laws committee has ‘investigated’ this and ‘gone a fair way down the track’. In the end it’s about ‘making a decision on your tree’. Didn’t believe it’s ‘our’ role to ‘implement this law which infringes on our rights’.

OKOTEL: talked about the expense of this and trees on private property that can’t be removed. There will be ‘ongoing costs…..increased red tape’ and ‘continuous discussion’ about what is or is not a significant tree. She thought that residents ‘are more than sensible enough to know’ what’s a good tree and ‘what’s appropriate to maintain’ and ‘to make those decisions for themselves’.

The Local Government Act requires that if a council intends to advertise its CEO position then that must be done 6 months prior to the termination of the current CEO’s contract. Newton’s contract expires in early April 2014. As far as we know, council has not placed another miniscule advertisement in The Age, nor have they made any public announcement on their website. We can only conclude, since the 6 month deadline has passed, that once again this group of councillors have decided to renew Newton’s contract without advertising his position. What we don’t know is whether they have handed Newton another 2, 3, or the maximum 5 year contract.

That will make it contract after contract that has never been advertised; contract after contract where we, the salary paying public, have no idea of Key Performance Indicators, no idea of the voting figures, and no idea of how Newton measures up against any standards. All we ever get is the party line that he is doing a good job so why look elsewhere. The simple answer to this is: how do you know that someone else might not do a better job if you don’t even bother to look and test the waters? In our view, no position anywhere should be for life. More importantly, best practice dictates that there is a ‘time limit’ for CEO’s in any major organisation. Newton has been there since 199/2000. During this time his rule has been mired with controversy after controversy; legal threats; and let’s not forget the sacking of council. We know of no other council that has had to endure 3 formal Municipal Inspector Investigations, and heaven knows, how many ombudsman official and ‘unofficial’ investigations. Coincidence? Perhaps, but possibly also a reflection on the one constant throughout this entire time – Newton.

More importantly from residents’ points of view, under his stewardship, every vestige of real transparency and accountability has been eroded and reduced to nothing – secrecy and a culture of ‘we are right’ over-rides every facet of good governance. Oh, we acknowledge the puerile argument that officers do not vote and that it is councillors who make resolutions. However, what pressures are brought to bear? What tainted information is provided upon which to base such decisions? And why on why are certain councillors continually voting en bloc for the vast majority of Newton’s anti community recommendations?

Several years ago, 586 residents signed a petition requesting that councillors advertise the CEO position in order simply to ‘test the waters’ and see who else is available. We remind readers that Esakoff, Hyams and Lipshutz voted against the acceptance of such a petition – a first, we believe in Glen Eira – and hence emblematic of the undemocratic culture that now rules Glen Eira Council.