Lynches Prawns site on the foreshore

There's a few things that can be learnt from the Lynches Prawns site saga.

The proposal to demolish the one storey Lynches Prawns building and build a restaurant of two storeys above a basement and having a deck fronting the promenade and a take-away servery facing the road behind was recommended by the Council officers.

The majority of the elected Councillors backed the local residents and rejected the proposal.

The Land and Environment Court upheld the rejection.

The residents have raised some legitimate questions in their letter of 17 January 2009.

These questions need to be answered.

The history can be seen through the minutes of the council meetings

• development application meeting held on 10 June 2008
  
• development application meeting held on 17 June 2008
  
• development application meeting held on 1 July 2008
  

and the Land and Environment Court decision of 31 December 2008.

Lynches Prawns site on the foreshore

For the record...

Here is an extract from the council development application meeting held on 1 July 2008.

Development Applications Committee Meeting held on Tuesday, 1 July 2008

ITEM-28 DA 06/1966 - 292 WHARF ROAD NEWCASTLE, DEMOLITION OF EXISTING BUILDINGS AND ERECTION OF A TWO-STOREY CAFÉ RESTAURANT

The Development Applications Committee reconvened at 7.52pm.

The Lord Mayor called for items of interest. Items 28, 30, 31 and 33 were indicated

PROCEEDINGS IN BRIEF

The Lord Mayor indicated that there could be a perceived conflict of interest on the basis of donations towards the State Government election campaign in 2007. He advised a person purchased seats at tables in fund raising events on behalf of the applicant and also monies were received from persons who were clearly associated with the objectors. He stated that on that basis there could be a perceived conflict of interest and as he had done in the past he would withdraw from the meeting and he asked Councillor Scobie to Chair the meeting in this matter.

The Lord Mayor vacated the Chair and retired from the Council Chamber. Councillor Scobie took the Chair to facilitate the proceedings.

The Manager Development and Building Services advised that the matter of how the car parking was calculated. He indicated that a response had been received and circulated from the Independent Consultant which set out "3.11 car parking". He advised that the calculation for the car parking was outlined on the correspondence. He advised that a re-calculation had occurred due to the review of the latest plans which gave a more accurate number.

Note: Councillors discussed the proceedings of the meeting held 10 and 17 June 2008 and determined that the Motion moved by Councillor Hornery and seconded by Councillor Scobie on the night was still open for discussion and inclusion in the current proceedings.

The Motion which was discussed and moved on 10 and 17 June 2008 was as follows:

MOTION: (COUNCILLORS S HORNERY/P SCOBIE)

The application to demolish existing structures and to construct a new 2-storey building for use as a café/restaurant (with ancillary take away food outlet) be approved and consent granted subject to compliance with the conditions set out in the Draft Schedule of Conditions at Appendix B.

The Seconder of the above Motion agreed to the proposed Condition 4 however as the Mover of the Motion was not present Councillor McKenzie determined to move it as an Amendment.

AMENDMENT: (COUNCILLORS I MCKENZIE/C ARNOLD)

The recommendation as printed with the inclusion of an amended Condition 4 as follows:

4 The design of the proposed bin storage area show in the DA plans being to provide for internal access from the restaurant to the storage area and to serve external access to the storage area so that it can be opened from the inside only or from the outside with a key.

Reason: To protect the amenity of the adjoining apartments, to enhance the streetscape quality of the proposed building, and to ensure adequate garbage storage and arrangements in the interest of public health safety and sanitation.

FORESHADOWED AMENDMENT: (COUNCILLOR B GAUDRY)

Condition 27

The hours of operation of the takeaway be:
Monday to Sunday ­ 9.00am to a maximum of 9.00pm.

FORESHADOWED MOTION: (COUNCILLOR M OSBORNE)

Council review the car parking requirements in the Newcastle DCP to better reflect the differences in the car parking needs for different businesses.

The Amendment was put to the meeting and a show of hands was requested which resulted as follows:

For the Motion: 4
Against the Motion: 6

The Chair, Councillor Scobie declared the Amendment defeated on the result of four votes to six votes.

The Foreshadowed Amendment was put to the meeting.

FORESHADOWED AMENDMENT: (COUNCILLOR B GAUDRY/M EADE)

Condition 27 be amended as follows:

The hours of operation of the takeaway food counter be:
Monday to Sunday ­ 9.00am to a maximum of 9.00pm.

A show of hands was requested which resulted as follows:

For the Amendment: 6
Against the Amendment: 4

The Chair declared the Foreshadowed Amendment carried on the result of six votes to four votes.

Prior to the Motion being put, Councillor Osborne clarified with the Chair if the Motion included the recommendation. Councillor Scobie confirmed that the Motion was inclusive of the recommendation and the amended Condition 27. background image

The Amendment then became the Motion and as such was put to the meeting and declared carried.

Councillor Parsons called for a division which resulted as follows:

For the Motion: Councillors G Jackson, I McKenzie and P Scobie.
Against the Motion: The Lord Mayor, Councillors C Arnold, A Buman, M Eade, B Gaudry, H O'Neill, M Osborne, K Parsons and B Scully.

The Chair, Councillor Scobie, declared the Motion lost on the result of three votes to nine votes.

Councillor McKenzie advised the Chair that the matter was neither approved or refused therefore a rescission motion would be in order for the Chair to receive.

The Manager Development and Building Services advised that the Councillors had voted to not adopt a motion to refuse the application and Council had similarly voted to not adopt a subsequent motion to approve the application. He advised that the application was undetermined as it had neither been approved nor refused. He stated that the applicant was entitled to approach the Land and Environment Court on the basis of a `deemed refusal' as there had been no decision of Council to refuse the application but there has been no decision to approve it so it could be assumed to be refused. He stated there had not been any reasons enunciated for refusal therefore if Council was to fight an appeal against the refusal, Council would be at a disadvantage as there were no reasons for refusal. He advised there were a number of ways to resolve the matter which included Councillor McKenzie's suggestion for a rescission motion to not refuse the application.

Councillor McKenzie believed a rescission motion was the way forward as outlined in the Code of Meeting Practice.

PROCEDURAL MOTION: (Councillor B Gaudry)

The Committee recess for five minutes.

A show of hands was requested which resulted as follows:

For the Motion: 9
Against the Motion: 3

The Motion was declared carried on the result of nine votes to three votes.

RESOLVED: (COUNCILLORS B GAUDRY)

The Committee recess for five minutes.

The Committee reconvened at 9.48pm. background image

Councillor Scobie advised that he had received a rescission motion signed by Councillors H O'Neill, M Osborne and K Parsons.

RESOLVED: (COUNCILLORS M OSBORNE/H O'NEILL)

The Committee rescind the decision made to refuse the application.

The resolution was declared carried unanimously.

MOTION: (COUNCILLORS M OSBORNE/H O'NEILL)

A The application be refused in its present form on the basis that it is inappropriate for the site being too big and bulky, inappropriate adverse impacts on the neighbours and there was inadequate parking provided or adequate contribution made to parking.

B Council advise the applicant that it would be prepared to consider a proposal of a more appropriate scale in recognition of the constraints of the site.

The Motion was put to the meeting and Councillor Arnold called for a division which resulted as follows:

For the Motion: Councillors C Arnold, A Buman, M Eade, B Gaudry, H O'Neill, M Osborne, K Parsons and B Scully.
Against the Motion: Councillors G Jackson, I McKenzie and P Scobie.

Councillor Scobie declared the Motion carried on the result of eight votes to three votes.

RESOLVED: (COUNCILLORS M OSBORNE/H O'NEILL)

A The application be refused in its present form on the basis that it is inappropriate for the site as it is too big and bulky, inappropriate adverse impacts on the neighbours and there was inadequate parking provided or adequate contribution made to parking.

B Council advise the applicant that it would be prepared to consider a proposal of a more appropriate scale in recognition of the constraints of the site.

Councillor Scobie vacated the Chair and the Lord Mayor returned to Chair for the balance of the meeting proceedings.

FORESHADOWED MOTION: (COUNCILLORS M OSBORNE/C ARNOLD)

Council review the car parking requirements in the Newcastle DCP to better reflect the differences in the car parking needs of different businesses.

Councillor Eade advised that a draft report would be presented to Council shortly on the issue of car parking requirements in the Newcastle DCP.

The Manager Development and Building Services advised that the Council would be receiving a report shortly a review of the current DCP in relation to car parking. He stated that all issues relating to car parking would be available for discussion and consideration.

The Motion was put to the meeting and a show of hands was requested which resulted as follows:

For the Motion: 8
Against the Motion: 4

The Lord Mayor declared the Motion carried on the result of eight votes to four votes.

RESOLVED: (COUNCILLORS M OSBORNE/C ARNOLD)

Council review the car parking requirements in the Newcastle DCP to better reflect the differences in the car parking needs of different businesses.

Lynches Prawns site on the foreshore

For the record...

Here is an extract from the council development application meeting held on 17 June 2008.

Development Applications Committee Meeting held on Tuesday, 17 June 2008

ITEM-26 DA 06/1966 - 292 WHARF ROAD NEWCASTLE, DEMOLITION OF EXISTING BUILDINGS AND ERECTION OF A TWO-STOREY CAFÉ RESTAURANT

The Lord Mayor requested the Deputy Lord Mayor to assume the Chair having regard to a perceived conflict of interest in this matter. background image

The Lord Mayor stated that persons associated with the applicant and objectors had made contributions to the 2007 State Election campaign of which he was a candidate. On this basis, the Lord Mayor indicated that he was required by the Code of Conduct to note a perceived conflict of interest and provide an explanation as required.

The Lord Mayor retired from the Chamber at 9.24pm.

Councillor Scobie then assumed the Chair.

At the time of adjournment Councillor Scobie reported that a motion moved by Councillor Hornery was before the Chair. He noted that Councillor Hornery was absent from the meeting and asked for Comment by the Acting General Manager.

MOTION: (COUNCILLORS S HORNERY/P SCOBIE)

The application to demolish existing structures and to construct a new 2-storey building for use as a café/restaurant (with ancillary take away food outlet) be approved and consent granted subject to compliance with the conditions set out in the Draft Schedule of Conditions at Appendix B.

The Acting General Manager advised that the motion was before the meeting and it was competent for the Committee to debate the motion in Councillor Hornery's absence. The only issue being that Councillor Hornery was not present therefore there would be no right of reply.

Councillor Osborne proposed procedurally that the entire item be recommitted.

It was put to Councillor Osborne that a decision was yet to made therefore the Committee could not move for recommittal.

Councillor Scully pointed out that at the time of adjournment Councillor McKenzie had indicated that he had several amendments to make to the Conditions of Consent.

Councillor Osborne foreshadowed that the development application be rejected as it was considered an inappropriate development on a sensitive site and it had an undue adverse impact on the neighbours.

Councillor Osborne was advised that such motion would be out of order as was essentially the same as the motion previously rejected.

Councillor Scobie then asked Councillor McKenzie to address the meeting.

As he had done at the meeting of 10 June 2006, Councillor McKenzie indicated a perceived conflict of interest in Item No. 26 - DA 08/1966 - 292 Wharf Road Newcastle as a Councillor on Newcastle City Council. He advised that as the property was owned by Newcastle City Council he recognised the dual role and believed he could be objective in his function as part of the consent authority. background image

Councillor McKenzie proposed Condition 4 be amended to read as follows (change in bold print) :

4 The design of the proposed bin storage area shown in the DA plans being to provide for internal access from the restaurant to the storage area and to serve external access to the storage area so that it can be opened from the inside only.

Reason: To protect the amenity of the adjoining apartments, to enhance the streetscape quality of the proposed building, and to ensure adequate garbage storage and arrangements in the interest of public health safety and sanitation.

Councillor McKenzie foreshadowed the above condition.

Councillor McKenzie then indicated that the report stated under Section 4.2.2 - Relevant Development Control Plans - Newcastle Development Control Plan 2005 - a) Element 4.14 Car Parking, the following:

Should Council determine that the waiving of car parking requirements in this instance is not warranted, then it has the option of refusing to grant development consent on car parking grounds, in which case, it would be open to the applicants to include, as part of the proposal, an offer to pay a monetary contribution towards to provision of public carparking and to request reconsideration of the application on this basis.

Councillor McKenzie advised that he intended to move this way in the form of an additional Condition of Consent and sought advice from the Manager Development and Building Services as to its legality.

The Group Manager Development and Building Services indicated that the reason the consultant planner had indicated that if Council was of a mind that car parking shortfall was an issue that needed to be addressed was because there was no Section 94 Plan that would empower the Council to require the payment of a parking contribution.

He indicated that Council did not have the power under the Environmental Planning and Assessment Act to levy a contribution where there was no Section 94 Contribution that provided for such contribution.

The Manager Development and Building Services further reported that if Council was of a mind to require car parking or consider that the absence of car parking provision was fatal to the application it would have to refuse the application. In this event, he advised that the applicant would have the option of coming back and asking for a revision of Council's decision on the basis that a car parking contribution was offered. The Manager Development and Building Services indicated that this was referred to a Section 79C Contribution and a contribution that became part of the application and would be proposed as part of the application and approved on that basis. background image

PROCEDURAL MOTION

MOTION: (Councillor I McKenzie)

The item be deferred and Council invite the applicant to amend the application to provide for a monetary contribution towards the provision of public car parking.

The procedural motion was to the meeting and a show of hands was requested.

For the procedural motion 7
Against the procedural motion 3

The procedural motion was declared carried on the result of seven votes to three votes.

RESOLVED: (COUNCILLOR I MCKENZIE)

The item be deferred and Council invite the applicant to amend the application to provide for a monetary contribution towards the provision of public car parking.

The Lord Mayor assumed the Chair at 9.43pm.

Lynches Prawns site on the foreshore

For the record...

Here is an extract from the council development application meeting held on 10 June 2008.

Development Applications Committee Meeting held on Tuesday, 10 June 2008

ITEM-26 DA 06/1966 - 292 WHARF ROAD NEWCASTLE, DEMOLITION OF EXISTING BUILDINGS AND ERECTION OF A TWO-STOREY CAFÉ RESTAURANT

The Lord Mayor requested the Deputy Lord Mayor to assume the Chair having regard to his perceived conflict of interest in this matter.

The Lord Mayor stated that persons associated with the applicant and objectors had made contributions to the 2007 State Election campaign of which he was a candidate. On this basis, the Lord Mayor indicated that he was required by the Code of Conduct to note a perceived conflict of interest and provide an explanation as required.

The Lord Mayor retired from the Chamber at 10.08pm.

Councillor Scobie then assumed the Chair.

Councillor Gaudry then made the following statement and requested it be included in the minutes.

I would just like to place on record in the minutes and I'd like it recorded in the minutes that it would have been really sensible if the Lord Mayor instead of resisting actually gave his reasons at the time as to why he was saying there could be a perception of a conflict of interest. It put Councillors in a very difficult position because we weren't sure if it impacted on us as well and it really was not following our Code of Conduct and a sensible way to proceed.

It would have been a simple thing to do. In an atmosphere of where due process by Council is being questioned it just added to the problem.

MOTION: (COUNCILLORS H O'NEILL/M OSBORNE)
The application be rejected and consideration be given by the developer for a proposal for a one-storey development.

The Group Manager Strategic Planning and Development indicated reasons for refusal were required.

During discussion Councillor Hornery gave notice of a foreshadowed motion that being the recommendation.

Councillor Gaudry outlined the following reasons for refusal:
• Size adversely impacts on residents in Boardwalk Apartments - restaurant too close (capacity)
• Too large to be located near residential development
• Noise generation on amenity
• Does not compliment residential amenity

Councillor Osborne asked the mover of the motion whether she would accept the reasons for refusal outline by Councillor Gaudry.

He also suggested consideration be given to:
• The proposal is too big for the particular site (site is narrow) - two storey development is not in keeping with the Foreshore Park (premier location)
• Public benefit of the development is not great enough to justify the parking deficit that comes with this development

Councillor O'Neill advised that she would accept the reasons outlined by Councillors Gaudry and Osborne for refusal.

Councillor Gaudry indicated that the motion proposed support for a one-storey development, however, she questioned whether it was possible to retain a two-storey development but one which addressed concerns relating to parking, noise, closeness to the apartments and the lack of compliment to an adjoining site.

The Group Manager Strategic Planning and Development informed the Committee that the consequences of its decision would likely lead to the Land and Environment Court for appeal or the Applicant taking on board Council's proposal to come back with an alternate plan.

Councillor Gaudry enquired whether it was relevant to ask the developer to consider a modified design that may address the problems Councillors had raised. She asked Councillor O'Neill whether she particularly sought a one-storey development.

Councillor O'Neill indicated that Councillors would probably favour a design of a more moderate size and design and advised that she would amend the motion in this regard.

Councillor Hornery enquired regarding the cost to ratepayers should the matter proceed to the Land and Environment Court.

The Group Manager Strategic Planning and Development indicated that an appeal of this nature would be in the order of $40,000 to $50,000 (base rate) and dependent on the issues and specialist evidence to be compiled.

Following further discussion the motion was put to the meeting and Councillor Osborne called for a division which resulted as follows:

For the motion Councillors M Eade, B Gaudry, H O'Neill, M Osborne and K Parsons.
Against the motion Councillors C Arnold, S Hornery, G Jackson, I McKenzie, P Scobie and B Scully.

The Deputy Lord Mayor declared the motion defeated on the division of five votes to six votes.

Councillor Hornery was then asked to move the foreshadowed motion.

MOTION: (COUNCILLORS S HORNERY/P SCOBIE)
The application to demolish existing structures and to construct a new 2-storey building for use as a café/restaurant (with ancillary take away food outlet) be approved and consent granted subject to compliance with the conditions set out in the Draft Schedule of Conditions at Appendix B.

Councillor McKenzie indicated that he had several amendments to make to the Conditions of Consent.

As the time was now passing 10.30pm, the Deputy Lord Mayor declared the meeting adjourned to 8.00pm on Tuesday 17 July 2008.

Note: The Committee had previously passed a resolution that if business was not completed by 10.30pm that the meeting be adjourned to the abovementioned date and time.

Lynches Prawns site on the foreshore

Land and Environment Court Decision

The full decision of the Land and Environment Court about the Lynches Prawns site came out late last year is now available on the web here.

It is worth reading and some of the conclusions are extracted below.

What A Waste...

The conservatives chooks come home to roost

I refer to my earlier posts about moves to privatise the city’s waste collection services and the council meeting that dealt with Cr Buman's motion that was well outside the notified item (which concerned a tender for three trucks), and should have been ruled out of order by the chair.

Well, in late breaking news...

Statement – Lindy Hyam, General Manager Newcastle City Council
29 January 2008

Industrial action by waste services staff.

The decision to test our waste services by conducting a competitive tendering process was a resolution of Council on 18 November 2008.

I have an obligation under the Act to carry out a resolution of Council and a commitment to ensure the most effective and efficient service is provided to the Newcastle community.

Council has exceeded its requirements in regard to the Council’s award and the Local Government Competitive Tendering Guidelines.

Since the Council’s decision we began a consultative process to ensure staff were in the best position to respond to that process and have offered them three months to do that before the tender process itself begins.

I’ve discussed this directly with the staff and union in meetings in December and January and reiterated our commitment to an open and consultative process which included support for staff including help from an external advisor and a dedicated management resource.

The union has not followed the dispute settling procedures of Council’s award. I have specifically requested the union to provide further details to support their claim.

We have notified the Industrial Relations Commission of the threat made by the union but I reiterate my commitment to reviewing the service in a fair, transparent and open manner.

National Breast Cancer Foundation

On behalf of the City of Newcastle, I welcomed Deborah De Williams to the City.

Deborah De Williams is an ultra marathon World and Australian record holder who is running around Australia to raise awareness and money for the National Breast Cancer Foundation.

Running Pink - Running for a cure: Deborah's epic journey began on the 25th October 2008 in Hobart. She arrived in Newcastle on 28th January 2009.

Deborah is supported by her parents and Maggie, Deborah’s six-year-old Border collie.

Deborah plans to finish the run on 24th October 2009 back in Hobart. Well done Deborah (and Maggie).

Lynches Prawns site on the foreshore

A letter from Honeysuckle Residents Association to the Newcastle Council General Manager (with only the names of individual officers excluded)...

Ms Lindy Hyam
General Manager
Newcastle City Council
PO Box 489
NEWCASTLE 2300


Dear Ms Hyam,

DA 06/1966 LYNCHS PRAWNS SITE
INCOMPETENCE AND MISMANAGEMENT COST RATEPAYERS OVER $200,000

Lynchs Prawn site is Council owned land and therefore as both the owner of the land and the consent authority, the probity of the EoI/DA process and planning regulations should have been adhered to explicitly.

The Expressions of Interest (EoI) for the Lynchs site called for a single storey, 150m2 family orientated café with a small open deck above part of it. The DA ended up being a two storey fine dining restaurant and bar, with an alfresco area and basement, with a gross floor area of 575m2 able to accommodate over 350 patrons, operating 9am to 12 midnight on a small, sensitive and strategic location. This was apparently done without any reference to the Councillors and without consultation with the adjacent residents. It would have been one of the largest restaurants in Newcastle!

Newcastle City Council staff pushed for this DA to be approved. The applicant made approximately fifteen revisions during the course of the Land & Environment Court (LEC) process in attempts to meet proper planning requirements. The Land and Environment Court Commissioner, acting on Council’s own evidence, stated more than fifty further grounds for refusal in his rejection of the DA appeal.

Why did Council’s planning department choose to overlook the glaring contradictions to specified planning regulations and to Council’s City Strategy Group Report (CSG) of March 2003 (copy attached)? The report and the requirements in the Expressions of Interest (copy of EoI attached) were derived from the application of sound planning analysis. It was glaringly obvious that if the site was to be developed, the requirements of the CSG report and the EoI should have been mandatory, together with subsequent issues raised by the LEC Commissioner.

A. BRIEF BACKGROUND
The site is part of land given to the people of Newcastle by the NSW Government for public use. Newcastle Council incorrectly and illegally rezoned part of it.

Council’s City Strategy Group recommended a development of a small family café and Expressions of Interest were called (based on the CSG report, providing a detailed pathway plan, building concept plan and specifications).

All four Tenders subsequently received were non compliant and should have been rejected by Council. Two were discarded outright. One of the remaining tenders (JLC Projects P/L) was recommended by the CSG. They derided the other tender from Elefteria (then known as Page & Presland P/L) stating: “concern about the bulky appearance of the building in this location”…”The building maximizes use of the site and represents a relatively hard edge to the promenade and Wharf Road”…. “concern over the bulk of the building and visual impact it will have”…” the scale of the development is excessive and the proposal therefore does not represent the best outcome for the site”.

Following a motion by the Lord Mayor John Tate, all tenders were rejected. The weighting criteria was then changed and new tenders invited from the previous tenderers. It did not go to open tender. The same tender plans from JLC Projects and Elefteria were resubmitted and Elefteria then outscored the JLC Project’s tender in all criteria and was recommended for approval by the CSG and approved by Council.

The subsequent DA plans added an extra 220 square metres of floor space without renegotiation of the lease agreement and apparently without Councillor’s knowledge or approval.

Council staff withheld information and supplied misleading information to Councillors and residents.

They pushed strongly for the DA that had no resemblance to the Expressions of Interest (EoI) and was 270% larger than the EoI concept plan. The Lord Mayor John Tate declared he had a perceived conflict of interest (having received electoral donations from a party associated with the developer).

Councillors rejected the DA (8 to 3) on grounds that it was an overdevelopment of the site with adverse impacts on the residential amenity. Elefteria took Newcastle City Council to the Land and Environment Court.

The LEC overwhelmingly rejected the appeal as a gross overdevelopment of the site with adverse impacts on residents and public amenity. The LEC judgment would indicate that only a small development with appropriate setbacks would be suitable on this small but strategic site (ie similar to the EoI concept plan).

B. QUESTIONS TO GENERAL MANAGER
The attached chronology raises many questions and we ask your timely response to the following:
1. Why was the original winning Tenderer for the adjacent Breakwater site repeatedly told by Council officers that Lynchs was going to be parkland and not available for the development?

2. Who was on the CSG that recommended acceptance of the JLC Projects tender?

3. Who was on the CSG that recommended acceptance of the Page & Presland’s tender (now Elefteria)?

4. Who was on Council’s Asset Advisory Board (AAB) that changed the weightings criteria (after the initial tenders were received) and reduced the western setback from 6m to 1.5m, eliminating the intended public access between the developments?

5. Why were Elefteria’s unchanged tender plans accepted when they were originally derided and rejected?

6. Why did NCC accept a tender that was 67% larger than the EoI concept plan and encroached onto the Joy Cummings Promenade?

7. Why did NCC accept a DA that was 62% larger than the Tender and 270% larger than the EoI Concept Plan? The gross floor area of the DA was 575square metres. Who approved the increase? Why were Councillors not briefed?

8. Had the EoI been for a two storey licenced restaurant with a basement, and a gross area of around 575 square metres operating 9am to midnight, it is likely that there would have been substantially more interest generated and the commercial return to Council may have been potentially higher than offered by Elefteria. Why was the Lease Agreement between NCC and the applicant not renegotiated due to this increase in size?

9. What was the brief to Planning Workshop Australia, (the independent planner)?

10. Why did NCC refuse to supply information to HSRA and its legal representatives when requested, including information under FOI?

11. Why did NCC withhold the DA from residents when requested?

12. Our application to the LEC to be heard as objectors forced Council to communicate with us. Will this communication now cease?

13. Now that the DA process is finalised will you provide us with an uncensored copy of the Deed of Agreement to Lease (or at least one with only the financial and personal references censored)?

14. Why were Councillors not consulted or briefed on allowing considerable changes from the EoI concept plans to the Tender and from the Tender to the DA plans? Why were not Councillors briefed on the potential ramifications of these changes?

15. When will Council respond to our unanswered requests for information (including FOI requests)?

16. What action has been taken by Council in respect to the apparent breach of Council’s Code of Ethics by the Lord Mayor John Tate not stating that he had a perceived conflict of interest at the Public Voice meeting and for refusing to provide details of his perceived conflict of interest during the subsequent Council meetings?

17. Which Council officer had overall responsibility for the planning issues of this DA?

C. QUESTIONS TO COUNCIL OFFICERS AND CONSULTANTS
We also request that you ask the following questions of the Council officers and Consultants listed. We ask to be supplied with their responses

LORD MAYOR JOHN TATE:
1. Which Tenderers contacted you during the EoI process?

2. Which Tenderers contacted Councillors Scobie and McKenzie?

3. Why was this Tenderer(s) not disqualified in accordance with the EoI requirement that tenderers not contact Councillors?

4. Why did you pass the motion to reject the original Tenders and then not go out to open tender?

5. Why were the criteria weightings changed?

6. Why were Elefteria’s unchanged tender plans accepted when they were originally derided and rejected?

7. What has been your involvement in this DA’s process (including the Asset Advisory Board and the Council Strategy Group) since you received electoral donations from associates of the developer? Which meetings did you attend?

8. As a member of the Honeysuckle Development Corporation Board (HDC), why did you allow a Tender & DA that was in major conflict with the HDC plans for the site? (These plans were contained in the EoI document and showed the required setbacks, site footprint and 6.0m public access areas).

9. Why did you refuse to explain your perceived conflict of interest to Council five times from 20-5-2008 to 10-6-2008 (as is required under Council’s Code of Ethics) when demanded by Councillors?

10. Why did you not state your perceived conflict of interest at Public Voice?

11. At the Public Voice you advised that you would investigate why the DA was withheld from residents and you would respond to HSRA. Did you investigate this? Why did you not respond?

12. Given that you declared your perceived conflict of interest, how could it not be improper when:

1. You told Councillors at a Council meeting on 10-6-08 considering this DA to the effect that there was nothing non compliant with the DA and that there was absolutely nothing out of order with it?
2. You were reported in the Newcastle Herald (27-1-2008) warning Councillors not to reject DA’s as they were based on officers’ reports that are based on sound planning knowledge?
3. You were reported in the Newcastle Herald (2-1-2009) as saying that Council needs to consider its obligations to the party that won the Expressions of Interest?

13. Given that the LEC overwhelmingly rejected the Appeal and listed over fifty grounds for refusal, do you still believe:

1. that there was nothing non compliant with the DA?
2. Council staff progressed the DA based on sound planning knowledge?

14. Please explain what obligations you believe the ratepayers of Newcastle have to Elefteria P/L?

COUNCIL OFFICER:
1. In your article to the Herald (24-4-2008) you discussed good planning controls for the Honeysuckle area, such as substantive setbacks. Why did you allow your department to promote this DA that had no setbacks to the south, only a 1.5m separation to the west and none to the north, where it was actually intended to build over the Joy Cummings Promenade?

2. Why did you accept a non complying tender that encroached onto the Joy Cummings Promenade and was not in accordance with the EoI or planning regulations?

3. You provided a detailed report to Council (12-9- 2000) on the inadequacies of the adjacent Becton DA and would have been aware of the planning regulations relating to this site. How did you miss the fifty plus planning requirements that the LEC used as grounds for refusal?

4. Why did you refuse to discuss the DA with residents at the Council meeting of 10-6-2008?

5. In the Newcastle Herald (8/9/2000) it was reported: “Brent Knowles said the promenade would be six meters wide in most areas and 8.5 m wide in front of the Honeysuckle Hotel” The foreshore promenade was a key feature of the foreshore extending between Nobby’s and Tighes Hill. Why did you endorse such overdevelopment onto the promenade to narrow this feature in front of Lynchs to the detriment of public interest, amenity and safety as noted by the LEC?

6. The adjacent Becton (Crowne Plaza & Breakwater Apartments) development required substantial and costly remediation works for hydrocarbon contaminated soils prior to construction. If the Lynch’s development proceeded with excavation for a basement who would pay for the site remediation if it was required?

7. Did you, your staff or consultants have any pecuniary or non pecuniary interest in this development?

COUNCIL OFFICER:
1. Why did you allow the developer to interrupt the Council meeting (17-6-2008), enter a restricted area and hold discussions with you?

2. How did the Urban Design Consultative Committee miss over fifty planning inadequacies?

3. Why did you advise Councillors (1-7-08) that the proposal calls for 1 car space per 60 square metres when the DCP clearly states 1 space per 6 square metres or 1space per 3 patrons? One space per 3 patrons was agreed between the expert planners at the LEC and accepted by the Commissioner.

COUNCIL OFFICER:
1. Why did you incorrectly tell Councillors (27-5-2008) at the meeting discussing the probity of the DA process that the DA was basically the same as the concept plan when it was 270% larger? (You were the co contact for the CSG report of March 2003 and would have been aware of any differences).

2. Why did you incorrectly tell Councillors (27-5-2008) that the DA plans had not changed from the Tender Plans when they actually increased the gross floor area by 62%, including a basement and the removal of the upper floor void area?

COUNCIL OFFICER:
1. Why did you not advise Lord Mayor John Tate he was in breach of Council’s Code of Ethics by failing to disclose details of his perceived conflict of interest at the Public Voice and subsequent Council meetings (which were attended by you), even when Councillors demanded disclosure?

2. Why was no disciplinary action taken against him?

COUNCIL OFFICER:
1. Why was your response to Residents’ Consultants sufficiently hostile to have them withdraw their services for fear of losing work with NCC?

COUNCIL OFFICER:
1. Your letter of the 19 December 2005 advised Tenderers that the 6m public domain/access at the western end of the site could be reduced to 1.5m and landscaped to prevent public access. It also advised changes to the criteria weightings which were to be applied in assessing the Tenders. Who in Council recommended the changes to the public domain/access and criteria weighting and on what basis?

PLANNING WORKSHOP AUSTRALIA
1. How did you miss over fifty planning inadequacies that the LEC used as grounds for refusal?

2. Why did you consider it satisfactory to build onto the Joy Cummings Promenade?

3. As the Council’s former Director of Planning and Development, why weren’t you aware of the development controls applying to the Promenade?

4. Why did you try and give a further presentation on the DA to Councillors when none was requested and it was considered by Councillor Helene O’Neil and other Councillors as pushing Council’s agenda without giving residents an opportunity to respond? Who asked you to make this presentation to Council?

D. LYNCHS WITHIN FORESHORE PARK
The Harbour Foreshore Master Plan shows Lynchs Prawn site within the Foreshore Park gifted to the people of Newcastle by the NSW State Government. It was obviously meant to be retained as part of the park and definitely not meant to be changed to its present B4(Mixed Use) zoning. The reclassification of this site as operational land and its excision from the Foreshore Park was done both incorrectly and illegally. Brent Knowles indicated (DAC Item No162 of 12-9-2000) that Lynchs site is in the Foreshore Park when he stated that a matter relating to it should be addressed in the Management Plan for the Foreshore Park

E. CONCLUSIONS
The mismanagement of this matter is a damning indictment on Newcastle Council’s lack of competence, efficiency, integrity, transparency, accountability and good governance. It shows that Council itself has caused the fiasco and the cost to ratepayers. The planning credibility of Newcastle Council is on the line and an embarrassment. Council’s handling of this DA (Council’s own land) shows total ineptitude.

As General Manager, you and the newly elected Council have not only a duty and legal responsibility, but also an opportunity to restore integrity and confidence into the planning processes of Newcastle City Council.
Newcastle Council should act on the following:

1. A thorough, independent investigation must be held by a statutory body. Parties involved must be made to justify their actions.

2. Council owes no obligation to Elefteria P/L and the Lease Agreement is now null and void and should not be renegotiated.

3. Council should rectify this inappropriate rezoning and land classification.

4. Council should demolish the existing building that has been derelict since 2003 (in line with its commitment to remove derelict buildings from the inner city area) turn the site into parkland and incorporate this site into the Foreshore Park.

Yours faithfully,

Allen Fairhall (For and behalf of Honeysuckle Residents Association)
Cc NCC Councillors