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