ABE Presentation to Council 27th July

ABE Public Forum Presentation Regarding QON21/005 Land Clearing at Broulee

Good morning. Thank you for the opportunity to address Council and the community regarding QON 21/005, dealing with clearing of community land at Broulee.

I am presenting as Co-Convenor of A Better Eurobodalla (ABE), a community forum dedicated to having open and inclusive government in our region. ABE expects that before governments, at any level, make decisions that will impact their communities, they will undertake broad and meaningful consultation, listen to and share expert advice, and proceed using a transparent decision-making process so that the community understands who makes decisions, when and why.

ABE has applied these principles to the issue of the clearing of community land at Broulee and concludes that the response provided by Council staff does not satisfactorily address the issues raised by Councillor Mayne’s questions, and raises serious concerns that Council’s actions are based on inaccurate information which leave the process under a legal cloud. The advice submitted includes unsubstantiated assertions, for which no supporting documentation has been provided. Key concerns are briefly outlined below, organised under the 2 different parcels of land which make up the site under consideration

1. Unformed Road Parcel

Consideration of this portion of land constitutes the bulk of the response to Councillor Mayne’s Question on Notice, yet the material presented fails to address key questions included in QON21/005, especially regarding how the land was cleared for Asset Protection Zone (APZ) requirements for the adjoining subdivision. The Rural Fire Service APZ guidelines clearly state that “The APZ should be located wholly within your land. You cannot undertake any clearing of vegetation on a neighbour’s property, including National Park estate, Crown land or land under the management of your local council, unless you have written approval.” So, the only possible way that the unformed road could have been legally cleared is if Council gave its written permission.  

Council’s response has not included documentation regarding any such written permission associated with this APZ, and it has also failed to address Councillor Mayne’s question regarding the “in perpetuity” legal requirements associated with creation of an APZ on a neighbouring property. Council staff have not provided any documentation that the RFS is satisfied with these APZ arrangements. These are important legal considerations relevant to public safety and emergency response. They need to be responded to and not ignored.

Furthermore there is also a legal question as to whether Council even has the delegated authority to enter into such APZ arrangements, particularly if they have not been approved by a meeting of Council. This is because section 377h of the LGA indicates that the “purchase, sale or exchange or surrender of any land or property” cannot be delegated to Council staff, so any decision in this regard must be authorised by a resolution of Councillors. No mention of any such resolution or relevant documentation has been provided in the advice tendered for the Broulee APZ, meaning that these arrangements remain under a legal cloud. This important aspect needs to be fully investigated and resolved before any further actions are taken in regard to this land.

In addition, there is also the critical fact that Council was directed by Eurobodalla Council Resolution 478 in 2003 to classify this parcel of land (along with the adjoining parcel of lot 89) as “community land”, but failed to do so. The Council advice coyly describes this unambiguous directive as being “unfortunately not implemented”, when in fact this is a major error of omission which is inconsistent with provisions of the LGA specifying that only Councillors, and not Council staff, have the non-delegatable authority in dealing with matters affecting  Council land (as reflected in section 377h of the LGA). Simply because a serious oversight has occurred in the past does not excuse or validate current day actions arising from this error, particularly after the error has been brought to Council’s attention.

2. Lot 89/DP1093710 (formerly Lots 8 & 9 in DP758168)    

This lot adjoins the unformed road parcel discussed above, and was also subject of Council Resolution 478 in 2003 directing that it be classified as Community Land. However, this action was in fact redundant, as the constituent blocks 8 & 9 in DP 758168 were already classified as Community Land, as indicated in Council’s own 1997 Plan of Management for Natural Areas & Undeveloped Land on Pages 4 and 5 of Schedule A.  

At some stage after 2007, these two blocks were consolidated to create Lot 89/DP1093710, which Council is now claiming to be Operational Land, despite the fact that the antecedent blocks were both classified as Community Land. Council has not provided any evidence that the status of this parcel of land has been altered by means of public notification and passage of a resolution of Council, as required by the LGA 1993. To confuse matters even further, Council’s Director of Planning issued a press statement on the 29th June indicating that this block was indeed Community Land, but Council has subsequently told the Broulee community that it now considers this land is Operational Land, and intends to sell it. This about-face is inexplicable. It reflects extremely poor practice of governance and communication, and has further eroded public confidence in Council. It should be reversed.

It is also notable that the documentation cited in Council’s advice contains additional problematic information. The briefing contains reference to DA00035/21, and when this item is looked up on Council’s online application tracker the summary information page indicates that the estimated cost of this 48 lot residential subdivision is zero dollars, without any explanation being provided (see attached screenshot). This anomalous result flags further potential issues with Council’s own information system, further eroding public confidence in this critical decision-support system which needs to be urgently addressed.

This presentation has made it clear that there are significant unanswered questions regarding the legality of Council’s actions and the reliability of the information it has used to determine its actions regarding this parcel of land in Broulee. For Councillors to meekly accept this advice offered by Council staff regarding public land at Broulee would make them complicit in potentially unlawful activities at odds with requirements of the Local Government Act, as well as being inconsistent with fundamental public administration principles of good governance and transparency, not to mention common decency.

ABE notes that this QoN provides another opportunity for elected Councillors to prove their commitment both to the community and to good public administration. ABE therefore urges Councillors not to accept the advice tendered today. Instead, they should take appropriate steps to work constructively and in good faith with the Broulee community to achieve an equitable outcome which maintains this important piece of community land for future use and enjoyment by everyone.

Thank you for your attention.

Brett Stevenson


A Better Eurobodalla

Attachment : Screen Capture from Council’s DA Tracker