Our town, our rail line

I have today submitted the following Notice of Motion to Newcastle Council...

NOTICE OF MOTION: REQUEST FOR A BRIEFING FROM THE STATE GOVERNMENT’S HUNTER DEVELOPMENT CORPORATION

COUNCILLOR: M OSBORNE

MOTION
That Newcastle City Council requests a briefing from the Hunter Development Corporation outlining the following:

a) the corporation's timeline for developing its submission for federal government funding under the Major Cities program

b) the process it will use for receiving and considering community input in preparing its submission

c) the criteria it will apply to projects included in the submission, particularly in relation to Newcastle 's public transport system (including the future of the Newcastle rail line).

BACKGROUND

In August 2008 the NSW Government announced the formation of a Newcastle CBD Taskforce to oversee the preparation of a strategy to stimulate private sector investment and economic growth in the Newcastle CBD.

The Taskforce conducted a public workshop in October 2008 and a public meeting in December 2008.

The Hunter Development Corporation has been given the task of investigating various projects and options with a view to preparing a report for the NSW Government that would be capable of forming the basis of a submission to the Commonwealth Government.

To date, the Hunter Development Corporation has not outlined how it will receive and consider community input into its report to the State Government or the criteria it will use to apply to the various projects and options.

My previous actions to support our rail line and our transport system can be found here:

• Sham process on Newcastle rail line
• Government declares “open season for developers”
• Major parties reject opportunity to debate Newcastle Rail cuts
• Truth and honesty from 'independents': Clr Scott Sharpe
• Council gags Greens motion
• Supporting our rail line
• Conservatives want more of our foreshore
• GPT credibility now on the line
• Council meeting
• Greens slam Liberal ploy
• Bring on rail election
• GPT rail ultimatum threatens Federal funding

SLAPP-er

How far behind is NSW?

Back in August last year, the ACT Parliament passed legislation to protect public participation. This is Australia's first "anti-SLAPP" legislation.

The purpose of this Act is to protect public participation, and discourage certain civil proceedings that a reasonable person would consider interfere with engagement in public participation.

The ACT law was voted for by all parties.

Where is the NSW Legislation?

This type of intimidatory legal action certainly could happen in Newcastle.

What is the Hon. Jodi Leyanne MCKAY, MP doing about it?

Send her an email and ask her: What is the NSW Government's timetable to introduce anti-SLAPP legislation like the ACT?

Take part in consultation with Council

A new initiative gives residents and ratepayers ready access to have their voice heard.

Newcastle Council has started an email/internet-based initiative to consult with the community.

This is not meant to replace the good ol' fashion face-to-face consultation, but for everyone reading this blog it's an approach that could work for you!

As Council says...

Become part of the group of residents from all ages and walks of life who take part in consultations with Council. Join Newcastle Voice and share your views.

Simply go to www.newcastle.nsw.gov.au/myvoice and join up.

Don't be SLAPPed after criticising Council Administration

Many in the community have criticisms of the Newcastle Council administration.

It is the role of your elected Councillor, as a member of the governing body

• to direct and control the affairs of the council in accordance with this Act
• to participate in the optimum allocation of the council’s resources for the benefit of the area
• to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the council’s regulatory functions
• to review the performance of the council and its delivery of services, and the management plans and revenue policies of the council.

and as your representative

• to represent the interests of the residents and ratepayers
• to provide leadership and guidance to the community
• to facilitate communication between the community and the council.

(Section 232 of the Local Government Act 1993)

So when residents and ratepayers have criticisms, it is our responsibility to follow them up. Whether they are about the optimum allocation of resources, the interests of residents or ratepayers or facilitating communication between the administration and the community.

Even if they are as unpalatable as nepotism. And we've all heard those comments around town!

Council's policies must be followed no matter who is related to whom.

So, at no time should the humble elected councillor, acting in accordance with their mandate under the NSW Local Government Act 1993, shirk from their responsibility to stand up for the interests of the residents and ratepayers.

Even in the face of a SLAPP suit.

Who would have thought this could happen in Newcastle?

SLAPP (Strategic Lawsuit Against Public Participation) is a lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. The most famous Australian example is the GUNNS 20 case. More information can be found on wiki)

Newcastle Council's structure

It is time for change in the structure of Newcastle Council administration.

At the beginning of each Council term, the new Council must determine an appropriate organisation structure, those positions within the organisation structure that are senior staff positions and the resources to be allocated towards the employment of staff. (Section 332 of the Local Government Act 1993) It can redetermine the structure at other times as well.

At the beginning of the last term of Council, I unsuccessfully tried to get a flatter, more customer-focussed organisation. Instead we got a further concentration of the Council silos from 5 down to 4.

We now have the opportunity to get a flatter, more customer-focussed organisation.

I urge my fellow councillors to support a flatter, more customer-focussed organisation.

Council meeting 17 February 2009

This is the Council meeting where I was caught in the natural disaster in Bellingen.

The Council meeting dealt with the late report from the GM on the waste services dispute, a report on legal expenses, the December 2008 quarterly review, a notice of motion on the museum and my notice of motion on cycling.

In addition to the words in my notice of motion, Council added the following:

B 1 Resolutions A ­ D of `NOM 3/2/09 ­ Alteration of dual purpose parking/cycle lanes to dedicated clearway/cycle lanes at designated times' be incorporated in Motion 1 of "NOM 17/2/09 ­ A Newcastle Cycling Strategy'.

2 Resolution E of 3/2/09 of `NOM 3/2/09 ­ Alteration of dual purpose parking/cycle lanes to dedicated clearway/cycle lanes at designated time' be superseded by Motion 2 of "NOM 17/2/09 ­ A Newcastle Cycling Strategy".

C The report identify possible business opportunities.

The Motion was carried unanimously.

Waste settlement

Here is a copy of the Late Report - Settlement of Waste Services Dispute that was presented to Council on 17 February 2009.






The following was Council's resolution:

RESOLVED: (COUNCILLORS M KING/S CONNELL)
Council hold in abeyance the motion of 18 November for a period of 3 months to allow for the following actions to occur with a report back to Council to consider the most appropriate way forward.

These actions are:
· A report to be prepared on what conditions are used in comparative Councils who have a waste collection service.
· A report be prepared on what conditions prevail in the private sector for waste services.
· Outcomes of an agreed process to consult with the community to determine required service levels for the community.
· A report be prepared on the outcomes of service reviews and the agreed replacement Local Area Workplace Agreement (LAWA).

The Lord Mayor declared the resolution was carried unanimously.

(I was trapped in Bellingen.)

A comprehensive Newcastle Cycling Strategy and Action Plan

Here is the motion that I have submitted to Council for consideration on 17 February 2009.

MOTION
That Newcastle City Council:

1 Develop, as a key strategic priority, a comprehensive Newcastle Cycling Strategy and Action Plan, with a five year Action Plan, aimed at improving cycle use, infrastructure, services, awareness and cycling safety in the Newcastle Local Government Area.

The Newcastle Cycling Strategy and Action Plan should include (but not necessarily be limited to) consideration of:

• Ambitious but achievable targets for increasing bicycle use in Newcastle, for both commuter and recreational cycling,

• A review of the 1996 Newcastle Lake Macquarie Bike Plan,

• A costed program of prioritised cycling projects and a staged implementation program (and associated funding strategy) for improving our public cycling infrastructure and facilities (e.g., the cycleway network, road crossings, bicycle storage and parking),

• A review of factors affecting bicycle safety, including

a. the provision of “green paint” at key intersections in accordance with the Australian Standards,

b. the adequacy of current painted road bike lanes (known colloquially as “car door death lanes”,

c. the placement of bollards and road grills,

d. the provision of signage and signals and relevant recommendations for improving safety,

• A program for incorporating in relevant council planning instruments requirements for appropriate facilities for cyclists in new developments in the Newcastle Local Government Area,

• Opportunities to give greater priority to cycling in the city's traffic management, including the provision of cycle-only road lanes in the CBD at identified times,

• Opportunities to work cooperatively with other councils, government departments and community organisations to achieve the strategy’s objectives,

• Opportunities to integrate cycling with other sustainable transport modes,

• A program for council to advocate on behalf of the Newcastle community for relevant changes in state and federal government support for cycling, including a submission from council to the current review of the NSW Bike Plan,

• A review of how decisions affecting cycling are handled within Council’s organisational structure, and relevant recommendations to improve these, and to increase the seniority of cycling within our organisational structure,

• A staff development program to improve the awareness and skills of relevant council staff in relation to cycling,

• Other ideas suggested by the community, Councillors and council officers to improve cycling in the city during the development of the strategy.

2 That, to help develop and implement this strategy, council establish a Newcastle Cycling Committee (including relevant senior council officers, local area health service representatives and community representatives), and that council initiate a comprehensive community consultation process for initiating and developing the strategy.

3 That the General Manager provide a report to council outlining an appropriate time frame for developing this strategy, and the associated implications for council’s current and forthcoming budgets.

BACKGROUND
There is concern in the community that Newcastle Council has not given cycling the appropriate priority.

Newcastle needs an overall strategy to outline the infrastructure needed to ensure a safer and more comfortable cycling environment and the social initiatives that will encourage more people to cycle.

Residents have lots of great ideas on how to improve our cycleways and make then safer.

The Federal Government has indicated that they would provide funding for cycleways.

But the great ideas from the community needs to part of a bigger strategic plan on how they are all connected. The community does not want ad hoc, isolated cycleways.

And the Federal Government is unlikely to fund isolated cycleways, they will need to be seen as part of a bigger picture.

The City of Sydney has already adopted targets, such as increasing the number of bicycle trips made in the City of Sydney, as a percentage of total trips, from less than 2% in 2006 to 5% by 2011, and to 10% by 2016.

The topography of Newcastle is more conducive for cycling – surely we can do better than Sydney.

With a Newcastle Cycling Strategy and Action Plan developed and agreed to by the community, and with joint funding from local, state and federal governments, Newcastle could have a great cycling network, an enhanced healthy lifestyle for our residents and be a national destination for cycling tourists.

See my earlier post about what is possible.

Happy birthday Winston

I had the pleasure in launching Katheryn Gilshenen’s new book ”Winston’s Birthday – It’s a beautiful day!” at the Newcastle Region Library Lovett Gallery.

It was great to see the Awabakal dance group, Milibah perform several pieces. Milibah is a dance group from the Hunter School of Performing Arts.

Katheryn and her friend Sue Ann read the book. The book sees the return of great characters like Toby, the lighthouse at Nobby's, and Merv from Merewether. (Everyone knows a Merv from Merewether!)

It was my pleasure to officially launch this lovely book which will give much enjoyment to many.

Developer donations still an issue at Newcastle Council

Council met on 27 January 2009 to consider a formal request to review its decision about a development application to build 52 dwellings on 10 dwelling lots at Wallsend by a company associated with Mr Hilton Grugeon.

The review related to the resolution of the Development Approvals Committee meeting held on 14 October 2008 which recommended that the application be approved on the basis of amended plans being submitted by the applicant, deleting dwellings 2 to 5 and their replacement with open space and carparking as well as an additional condition regarding noise attenuation. This still allowed 48 dwellings on 10 dwelling lots, way in excess of that allowed under Council's Development Control Plan.

On 14 October 2008, a motion was moved that:

The application be rejected on the following basis:

1. The site is considered Standard Residential Precinct under the Newcastle Urban Strategy (NUS)
• This density and height is not keeping with surrounding area

2. The District Centre Residential Density premise on the basis of the SAFE principal is flawed.
• It more than 600m to Stockland Jesmond
• S4.2.2 of the report states that it does not comply with the DCP urban housing element 5.2, Section 79C (1) (a) (iii)
• Due to dwellings 1-6 and 8 encroaching beyond the building envelope.
• Number of on-site car parking spaces does not comply with DCP 2005, and this combined with limited on street parking availability will create traffic amenity and safety problems.
• The proposed development requires 64 spaces, according to DCP guidelines - the site layout has provision for 55.

This motion was lost 3 votes to 8 votes (Councillor Buman was out of the room having admitted receiving donations from Mr Hilton Grugeon and Councillor Boyd was away).

For the motion Councillors M Jackson, N Nelmes and M Osborne.
Against the motion The Lord Mayor, Councillors S Claydon, S Connell, B Cook, T Crackanthorp, M King, B Luke, S Sharpe.

On 27 January 2009, the Lord Mayor (who had received donations from Mr Hilton Grugeon) moved, using a Lord Mayoral minute, that

The Development Applications Committee defer consideration of DA 06/0675 to the Council meeting scheduled for 3 February 2009 to allow a report of the Conduct Review Committee relation to DA 06/0675 to be received and considered by Council before consideration of DA 06/0675.

The motion was seconded by Councillor Luke, who had also received donations from Mr Hilton Grugeon.

On 3 February 2009, a report came to council from a sole reveiwer from the Code of Conduct Committee relating to allegations against 5 Newcastle City Councillors.

The report considered allegations in relation to

Councillor Tate’s failure to disclose and manage a conflict of interests regarding DA 06/0675; and
Further allegations in relation to the failure by Councillors Luke; Buman; Connell; and King, to disclose and/or manage conflict of interests regarding DA 06/0675.

Extracts from the report and its conclusions can be found here: Code of Conduct complaint

When Council considered the review of the development application decision, it made the following resolution:

MOTION: (COUNCILLORS B LUKE/A BUMAN)
The application to demolish the existing dwellings on the site and to erect a two-storey urban housing development comprising 52 dwellings be approved as recommended by the original report to the Development Applications Committee meeting held 14 October 2008 and consent granted, subject to compliance with the conditions set out in the Draft Schedule of Conditions as provided by that report.

The motion was put to the meeting and the Lord Mayor called for a division which resulted as follows:
For the motion The Lord Mayor, Councillors G Boyd, A Buman, B Cook, M King, B Luke and S Sharpe.
Against the motion Councillors S Claydon, T Crakanthorp, N Nelmes, M Osborne and M Jackson.

Waste!

Direct from Council's media release...

Solution for waste dispute

At talks today convened by Newcastle City Council’s General Manager Ms Lindy Hyam, with the United Services Union (USU) Organiser, Mr Peter Collins, Ms Hyam and Mr Collins jointly agreed on a solution to move the waste dispute forward.

The settlement’s major points are:

1. To place in abeyance the motion of 18th November for a period of three months;
2. To conduct a transparent review of conditions and services relating to waste services;
3. A change management agreement that will allow Council’s Sustainability Review to be conducted unimpeded;
4. A deferral of the dispute revolving around who is the employer; the General Manager or Councillors, for a period of three months;
5. Agreement by the USU to cooperatively work through the Sustainability Review process.

The settlement is underpinned by a commitment by Ms Hyam to approach Councillors to obtain a moratorium on the past motion to market test Waste Services by competitive tender. A motion is expected to be presented by Ms Hyam to Council at the first available Council meeting.

USU Organiser, Mr Peter Collins said that this path will allow a full, transparent and proper review. He has welcomed the chance for the waste services employees to demonstrate to Newcastle that they are amongst the most efficient providers of Waste Services in NSW.

Ms Hyam said she “is pleased with the outcome of today’s meeting with the union, and is committed to ensuring the community is provided with the most effective and efficient delivery of services, without the spectre of any further industrial action”.

Contact LINDY HYAM on 4974 2208 or PETER DEVINE on 4974 2321

The corrupting influence of developer donations

I have previously raised the issue of donations from developers and their perceived corrupting influence.

See some my earlier posts

• Where's the money coming from? and
• Who funded Buman in the 2007 Federal election? and
• Who funded Tate in the 2007 State election? and
• Who funded Tate and Buman in the last Council election?

Code of Conduct complaint against Lord Mayor Councillor Tate

Extracts from the report from a sole reveiwer from the Code of Conduct Committee, received by Council on 3 February 2009.

A written complaint was received by the Public Officer, Newcastle City Council (McMahon), on 14 October 2008 regarding an alleged breach of the Code of Conduct. Advice was provided to the complainant regarding the appropriate process to progress the concerns including details of how to formally lodge a complaint.

On 16 December 2008, the complainant provided sufficient information in the form of a complaint to the General Manager (Hyam) for assessment in accordance with the provisions of the Code of Conduct.

The complainant alleged breaches of the Code of Conduct by the Lord Mayor Councillor John Tate. The complainant stated that the Lord Mayor had received political donations from a person with an interest (political or campaign donor or related entity) in development application DA06/0675, 71-79 Abbott Street, 67 Douglas Street and 108114 Newcastle Road, Wallsend.

The allegations were that the Lord Mayor did not adequately disclose the conflict of interests created by these political donations and that he did not manage the conflict of interests appropriately as he continued to take part in the determination of the development application.

In summary, the complainant alleged that:

• Clr Tate has a conflict of interests due to the receipt of political donations from Hilton Grugeon and or related entities which would prohibit him from taking part in consideration of DA 06/0675.

• Clr Tate has received money from Hilton Grugeon in the form of political donations to his state election campaign.

• Hilton Grugeon either in his own right or through his interest in the applicant had a matter before Council on 14 October 2008 in DA 06/0675.

• Clr Tate has received money from Hunter Land Pty Ltd in the form of political donations to his state election campaign.

• Hilton Grugeon has an interest in Hunter Land Pty Ltd.

• Clr Tate has received political donations for his state election campaign from other entities which Hilton Grugeon may have an interest.

• Clr Tate may have received political donations from Hilton Grugeon or entities in which he has an interest in his Local Government election campaign however this cannot be determined until his return is lodged in April (Note: Lodgement is required by 25 February 2009 not April as indicated by complainant).

• Clr Tate has a conflict of interest as a reasonable and informed person would perceive that he could be influenced by these donations when determining his position on Development Application 06/0675.

• Clr Tate failed to disclose this interest to the meeting either in writing as required or if not required to be in writing then he failed to adequately disclose the matter in the Council meeting for proper minuting.

• Clr Tate did not disclose the nature of the interest adequately.

• Clr Tate did not manage the conflict of interest appropriately as he did not remove himself from the Council Chamber and abstain from voting on DA 06/0675.
• Clr Tate did not provide an adequate explanation as to why he considered the conflict did not require action other than continuing to stay in the chamber and vote on DA 06/0675.

Some of the findings from the report were that (my emphasis in bold):

1. The Lord Mayor, Councillor Tate, in relation to Development Application 06/0675, acted in accordance with the provisions of section 7.21 to 7.25 inclusive of the Newcastle City Council Code of Conduct in that he met his disclosure requirements pertaining to political donations to his local government election campaign.

2. The Lord Mayor, Councillor Tate identified and disclosed a conflict of interests to the Extraordinary Development Meeting on 14 October 2008 in relation to Development Application 06/0675.

3. Information provided by the Lord Mayor, Councillor Tate at that meeting and subsequently to the conduct reviewer, indicates that the nature of the conflict of interests is that of a perceived non-pecuniary, less than significant nature.

4. Management of a non-pecuniary, less than significant conflict of interests is required in accordance with provision 7.18 of the Newcastle City Council Code of Conduct. That provision states that “… you must provide an explanation of why you consider that the conflict does not require further action in the circumstances”.

5. Provision 7.16(b) of the Newcastle City Council Code of Conduct details that for a non-pecuniary conflict of interests to be significant it involves “…other relationships that are particularly close such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship”. The guidelines developed by the Department of Local Government relating to the code of conduct also emphasise that the ‘strength’ of the relationship should be considered.

6. The Lord Mayor, Councillor Tate stated that he had known Mr Grugeon for about 26 years and that he did not consider the relationship to be a particularly close one of either a business or friendship nature. He further stated that the contact with Mr Grugeon is limited to seeing him at charity or fundraiser events and that the frequency of contact is limited to these events.

7. A reasonable and informed person may perceive that the Lord Mayor, Councillor Tate has a conflict of interests such that he could be influenced when determining Development Application 06/0675 given that he received political donations during the State government election from Hilton Grugeon and his related companies to the value of $15,600. [Note figures quoted are from the Election Funding Authority website and are based solely on the names provided by the complainant.]

8. The Code of Conduct at 7.13 requires disclosure of any non-pecuniary conflict of interests fully and in writing even if the conflict is not significant and this must be done as soon as practicable. If the disclosure is made at a council or committee meeting, the provisions of 7.14 require that both the disclosure and the nature of the interest must be recorded in the minutes. Section 7.14 constitutes disclosure ‘in writing’ for the purposes of section 7.13.

9. The disclosure made by the Lord Mayor, Councillor Tate, does not contain sufficient information to provide adequate explanation of the perceived conflict of interest nor does it detail appropriate management strategies for the perceived conflict of interest.

10. As soon as this inadequacy was discussed in detail with the Lord Mayor, Councillor Tate, he undertook and provided a detailed letter to the General Manager, dated 22 January 2009, in relation to Development Application 06/0675.

11. The General Manager has advised that this letter from the Lord Mayor has been retained on the appropriate council file.

The Code of Conduct reviewer's conclusions were:

The sole reviewer is obligated to report to Council on the outcome of the investigation into the alleged breaches of the Code of Conduct. The following details those outcomes:
1. That Council receive and note the contents of this report.
2. That Council takes no action against the Lord Mayor Councillor Tate and Councillors Luke, Buman, Connell and King, the subjects of these complaints.
3. That when the Newcastle City Council Code of Conduct is reviewed in early 2009 that the General Manager ensures particular consideration is given to enhancing the provisions of the Code of Conduct pertaining to conflict of interests and political donations.

Political Donations Report

Here's the full report...

Sham process on Newcastle rail options should be scrapped

Newcastle Greens

MEDIA RELEASE
4 February 2009

The Hunter Development Corporation's decision on consultants to investigate Newcastle rail line options will reinforce community fears that the process is a sham Greens elected representatives said today.

Greens MP and transport spokesperson Lee Rhiannon said that the consultancy plans are not independent, as two of the key players have already called for cutting the Newcastle rail line.

HDC has engaged Parsons Brinckerhoff to examine the options for the future of the rail line, and an urban design reference group to advise them on city renewal work.

The General Manager of Parsons Brinckerhoff, Glenn Thornton, as the Chief Executive Officer of the Hunter Business Chamber, and Professor Steffen Lehmann, who will head up the urban design reference group, have both been strong public advocates for cutting the rail line.

"The consultancy process just treats the people of the Hunter with contempt. The NSW government can't expect the local community to take this seriously," Ms Rhiannon said.

Newcastle Greens councillor Michael Osborne said "After the Minister for the Hunter, Jodi McKay, handed over the future of the rail line to the Hunter Development Corporation in December last year, I and others in the local community called on the NSW government to ensure the independence and integrity of the assessment process.

"Our concerns are based on the composition of the HDC board, which is stacked with anti-rail advocates including Newcastle Lord Mayor John Tate. The track record of the HDC's predecessors - the Honeysuckle Development Corporation and the Hunter Economic Development Corporation - who were both strong opponents of the Newcastle rail line has reinforced our view that this process is not fair.

"These latest revelations show that our concerns were well founded," Cr Osborne said.

Ms Rhiannon said, "The process will not create an independent and rigorous evaluation of options for the rail line at all. It is a taxpayer-funded campaign with a pre-determined outcome, designed to give developers what they have wanted throughout their twenty year campaign to grab prime inner-city public land in the heart of Newcastle.

"If the Minister for the Hunter is even half serious about the credibility of the assessment process, she should immediately intervene to stop this farce, before it blows up in her face.

"Ms McKay suffered the largest swing recorded against any state Labor candidate when she was elected to the seat of Newcastle in 2007. This was a clear message to the NSW government not to take the Newcastle community for granted. Today's news shows they are still not listening to this message," Mr Rhiannon said.

Council Meeting 3 February 2009

The 3rd February 2009 Council meeting was a mixed bag of issues.

Apart from the Code of Conduct complaints against the Lord Mayor and other Councillors about political donations referred to here and here, the meeting dealt with road closures, the meeting cycle, expenses and investments, an urgent report tabled at the meeting about the waste services and two notices of motion about cycling.

Waste

On the night, the General Manager distributed a late report to Councillors entitled Industrial Action - Waste Collection Service and she requested that the report be considered on the basis of urgency and importance. Councillor Claydon also had an Urgency Motion with regards the dispute.

MOTION: (The Lord Mayor/Councillor M Osborne)

The late report regarding the matter of the Industrial Action - Waste Collection Service and Councillor Claydon's Urgency Motion be heard as a matter of urgency in accordance with the Code of Meeting Practice, Clause 10 which states,

10.7 Council may consider items not listed for consideration on the business paper subject to the following:
· the item is of sufficient urgency and importance to merit consideration;
· it was not possible to provide information on the item in accordance with the notice of meetings and preparation of business papers background image

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

For the procedural motion 7
Against the procedural motion 5

The Lord Mayor declared the procedural motion carried on the result of seven votes to five votes.

Following discussion of the report, the conservative Councillors Luke and Sharpe moved that the report be received. Councillor Claydon was then asked to move her Urgency Motion.

MOTION: (COUNCILLORS S CLAYDON/M OSBORNE)

Council receive the report and move that this Council rescinds part B of the motion passed in Item 24 - CITYS - Supply and Delivery of Three Side Loading Waste Compactor Trucks - Tender for Contract NO. 2009/011T - of the Ordinary Council Meeting held on Tuesday 18 November 2008 and requests the Council Administration to work in close consultation with Newcastle City Council's workforce and their union representatives to ensure continuous improvement of services and agreed benchmarking standards.

With the view to combining the motions, the Lord Mayor was uncertain of the legality of Councillor Claydon's motion as it appeared contrary to the motion moved by Councillors Luke and Sharpe.

Councillors Luke and Sharpe then withdrew the motion before the Chair and Councillor Claydon was requested to move her Urgency Motion.

MOTION: (COUNCILLORS S CLAYDON/M OSBORNE)

Council receive the report and move that this Council rescinds part B of the motion passed in Item 24 - CITYS - Supply and Delivery of Three Side Loading WasteCompactor Trucks - Tender for Contract NO. 2009/011T - of the Ordinary Council Meeting held on Tuesday 18 November 2008 and requests the Council Administration to work in close consultation with Newcastle City Council's workforce and their union representatives to ensure continuous improvement of services and agreed benchmarking standards.

Following further discussion Councillor Luke gave notice of a foreshadowed motion that being his original motion that the report of the Industrial Relations Manager be received.

Following lengthy discussion the motion was put to the meeting and the Lord Mayor called for a division which resulted as follows:

For the motion Councillors S Claydon, T Crakanthorp, M Jackson, N Nelmes and M Osborne.
Against the motion The Lord Mayor, Councillors G Boyd, A Buman, B Cook, M King, B Luke and S Sharpe.

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

Cycling

Following brief discussion the two notices of motion were combined and added to and put to the meeting and declared carried unanimously.

RESOLVED: (COUNCILLORS M KING/M OSBORNE)

A. Council complete a feasibility analysis on converting a portion of existing council owned and operated Parking station(s) to a bicycle storage and showering facility. The items to be explored are
1) Scale, scope, and associated costs of construction
2) On going costs for running such a facility
3) Potential usage and what charge for this service the market will bear
4) Whether leasing such a facility out for operation by a third party is viable.

B. Council includes as part of the specifications for future parking stations facilities of this type for bike commuters.

C. Council to receive a report regarding amending the current dual purpose parking/cycle lanes to exclusive cycle lanes during designated peak periods.

The initial lanes suggested are
a) King St inbound between Stewart Ave and Darby St from 7.00am to 9.00am weekdays
b) King St outbound between Darby St and Stewart Ave from 4pm till 6pm weekdays.

The scope of the report should not be limited to the above lanes if additional viable options are identified in the review process, and should be extended past the nominated intersections if viable.

D. Council to receive a brief providing and update on all outstanding cycle ways projects, including the Fernleigh Track, the Wallsend to Glendale and the Stockton to Fern Bay cycle ways, detailing all outstanding actions of Council and strategies that Council should adopt to expedite the completion of these projects.

E. Council to form a working group consisting of relevant stakeholder groups (eg. NCM, Transition Towns Newcastle, Bicycle NSW) to review the Cycling Plan of 1996, upgrade same, and make recommendations for implementation by Council. The working party should complete the upgraded plan by 30th June 2009

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