ABE Public Forum Presentation submitted to Council on 12th September 2022 Regarding NOM22/014Responses from Ministers to the Mayor, NOM22/015 Sale of Crown Road Reserve Adjacent Lot 6 DP 1171646 Turnbulls Lane Moruya and GMR22/089 Policy Review for Exhibition – September 2022

Good morning. Thank you for the opportunity to address Council this morning
regarding NOM22/014 Responses from Ministers to the Mayor, NOM22/015 Sale of
Crown Road Reserve Adjacent Lot 6 DP 1171646 Turnbulls Lane Moruya and GMR22/089 Policy Review for Exhibition – September 2022.

I am presenting today as the Co-convenor of A Better Eurobodalla (ABE), a
community forum working to achieve open, accountable and responsive government
in Eurobodalla.

ABE has applied our principles of good governance to today’s agenda, and offers the
following feedback on 3 items.

1) NOM22/014 Responses from Ministers to the Mayor

This Notice of Motion calls on Council to amend its current practices in order to allow
public release of responses received from Mayoral correspondence dealing with
Eurobodalla advocacy issues sent to State and Commonwealth Ministers. 

ABE supports the public release of Ministerial responses to such Mayoral
correspondence, as it will provide the Eurobodalla community with valuable feedback
which can help our community assess how other levels of government are
responding to important issues which affect the Eurobodalla region. This will facilitate
a better informed and more engaged community, who can more effectively acquit
their electoral responsibilities.

The release of Ministerial responses will assist greater transparency and
accountability in decision-making, so ABE supports NOM22/014.

2) Notice of Motion 22/015 Sale of Crown Road Reserve Adjacent Lot 6 DP 1171646 Turnbulls Lane Moruya

The Notice indicates that:

1. Council advise Crown Lands that it withdraws previously stated support for the
   sale of the Road Reserve W633092 into private ownership. 
2. Council staff prepare a report to Councillors exploring options for the land to be
   transferred to Council management for the use of open space and recreation, and as an active transport connection for South Moruya residents, including the future
   residents of the 96-lot residential development of Lot 6 DP 1171646.

ABE has presented to Council multiple times voicing concern over continuing
alienation of public assets (including the Batemans Bay Community Centre, Coopers
Island Road and Clarke Street Broulee), as well as regarding the Turnbulls Lane
Subdivision which adjoins the road reserve under consideration today (26th October
2021). It is encouraging to see a NoM which addresses these important issues. 

ABE considers that this Motion presents a valuable opportunity for Councillors to
take a proactive and constructive role in delivering improved planning outcomes
which will enhance a significant residential development project in the Moruya area.

The reasons put forward by the General Manager’s response for not supporting this
NoM do not stack up. Given that Council has received a “categoric” refusal from
Crown lands regarding disposal of Crown Road Reserve W633092 it is surprising
and possibly futile for Council to maintain its current position regarding the sell-off of
this land. It could be construed that the position put forward by the GM is more
supportive of a developer’s desired outcome rather than the community’s. Further, the very reasons put forward from the GM’s response indicate what additional work could reasonably be undertaken.
From the GM’s response:
However, the proposal to retain or purchase Road Reserve W633092 to be used as open space is not based on recreation planning considerations, and is not recommended, for the following reasons:
• It has not been assessed in relation to the wider open space and recreation network, the needs of the broader community and how open space at this particular location is a good ‘fit’

The use of the 4 years old Recreation & Open Space Strategy (ROSS) as a rationale
for not pursuing the actions outlined in this Notice of Motion is bizarre – just because
a parcel of land has not been assessed in the past does not imply it cannot not be
assessed in the future. In fact, that’s what should happen now in response to the
current situation and the Notice of Motion.
(GM’s reponse)
•the benefits and proposed uses of the land as open space have not been explored to support purchase or acquisition by Council

Again, that work should now be undertaken to inform Council’s decisions.

(GM’s response)
• the proposal does not take into account open space located in close proximity, or consider why this would be the most appropriate location for open space within the 96 lot residential subdivision (DA0632/20) housing development, approved in February 2022.

Well, yet again, do the work and provide Council with the information to make an
informed decision.

The ROSS should be used as an aid to decision-making, rather than a prescriptive
straitjacket which precludes new ideas or initiatives. It would also be worthwhile to
review the current utility of the ROSS in the light of the post-bushfire and pandemic
world in which the Eurobodalla Shire is now operating – business as usual is not a
viable option. 

The recreation, open space and active transport benefits of the actions put forward in
NOM22/015 for both the Turnbulls Lane community as well as the wider Moruya
community are obvious, and Councillors should support this community-enhancing
proposal.

The reasons put forward by the GM to not support this Notice of Motion are not
based on the work that should be undertaken to support such a position. ABE
therefore supports NoM22/015, and urges Council to withdraw its previous support
for selling off the public road reserve W633092 at Turnbull’s Lane Moruya. 

3) GMR22/089 Policy Review for Exhibition – September 2022

ABE notes that this agenda item from the General Manager exhibits a fundamental
disjunct between the policies listed in the “Recommendation” section and the
“Background” section – none of the policies listed in the Recommendation actually
appear in the Background analysis.

ABE trusts that this glaring disparity is not indicative of the level of attention which
has informed the overall policy review. 

ABE recommends that this agenda paper should be withdrawn until a coherent and
consistent account of the policies under review is presented for consideration by
Councillors.

Thank you for your attention. 

Bernie O’Neil
Co-Convenor
A Better Eurobodalla

Good morning. Thank you for the opportunity to address Council regarding MR22/012 Community Engagement Framework and Participation Plan – Amendment.

I am presenting today as the Co-convenor of A Better Eurobodalla (ABE), a community forum working to achieve open, accountable and responsive government in Eurobodalla.

ABE has applied our principles of good governance to today’s agenda item dealing with a proposed Amendment to the Community Engagement Framework and Participation Plan (hereafter the CEFPP). ABE considers an effective CEFPP is vital for good governance by Council and Council’s staff, and has referenced the document in previous presentations to Council in February 2021 and March 2022.

The amendment currently proposed would require Council to provide written notification to adjoining owners of land which is subject of a development application that does not apply the acceptable solution for setbacks in the relevant Development Control Plan (DCP), and provide a period of 14 days for a response to be made to Council. The amendment would apply to all DCPs within the Eurobodalla Shire, as listed in MR22/012.

ABE strongly supports the proposed amendment in Mayoral Report 22/012, as it bolsters the key principles already contained within the CEFPP, which was adopted by the previous Council on 26 November 2019. This Plan embodies good principles to guide Council’s approach to engaging the community. They are to:

• Be open and inclusive;
• Generate mutual trust and respect, and be accountable;
• Engage early and provide information that is clear;
• Be considerate and provide feedback; and
• Value and acknowledge skills and resources.

Importantly the Plan tells us that ‘Ineffective or tokenistic community engagement can be detrimental to the good faith of the community in the long term’ (P4).

Additionally, in providing direction to staff, the Plan speaks convincingly about engagement levels and methods describing five levels of participation as:

• Inform;
• Consult;
• Involve;
• Collaborate; and
• Empower.

Under the heading ‘Consult: What will we say’ and ‘What will we do’ the direction is: ‘We will keep you informed, listen to and acknowledge concerns and provide feedback on how public input influenced the decision.’

And under the heading ‘Involve’ the Plan states: “We will work with you to ensure that your concerns and aspirations are directly reflected in the alternatives developed and provide feedback on how’.

This approach is laudable and ABE recommends all interested community members should familiarise themselves with the commitments that Council has made in the Plan.

However, the recent planning approval at Surf Beach brought to Council’s attention at Public Access on both the 19^th July and 2^nd August has highlighted that the CEFPP requires greater clarity to ensure its key principles are realised in practice, and the amendment proposed in Mayoral Report 22/012 presents a sensible step to forestall reoccurrence of similar problems in the future. In the absence of the proposed amendment, the current interpretation of the CEFPP effectively removes even the most basic level of engagement (i.e. to inform an affected landholder), and has created a situation where Council staff can make significant long term decisions affecting adjoining landholders without them being made aware these critical processes are under way. This is not public engagement – it is public disengagement.

While the proposed amendment will have some downside effects in that it will increase workloads for some staff, and may slow down the rate of approval for some Development Applications, these will be offset by better informed and transparent planning outcomes in the longer term. The key determinants for effective planning need to be seen in terms of improved outcomes rather than easier or faster processes – the end result is what matters, not the ease or speed of how you achieved the goal.

The only part of the recommendation in MR22/012 for which ABE harbours concerns is part iii, which states that Council will “Reconsider this matter as part of a review by Council of the Community Engagement Framework and Participation Plan”. It is not clear to ABE why this sensible amendment should be singled out for particular attention during the upcoming review, as this could facilitate reoccurrence of the planning problems which this amendment aims to prevent. ABE therefore recommends that that Mayoral Report be amended to remove part iii of the Recommendation.  

In summary, Council should support today’s amendment in MR 22/012 in order to achieve better governance and improved long-term planning outcomes in the Eurobodalla.

Thank you for your attention

Dr Brett Stevenson

Co-Convenor

A Better Eurobodalla

Good morning. Thank you for the opportunity to address Council this morning regarding GMR22/073 Organization Structure – Senior Staff and PSR22/021 Draft Climate Action Plan.

I am presenting today as the Co-convenor of A Better Eurobodalla (ABE), a community forum working to achieve open, accountable and responsive government in Eurobodalla.

ABE has applied our principles of good governance to today’s agenda items GMR22/073 and PSR22/021.

GMR22/073 Organization Structure – Senior Staff

ABE notes that this agenda item recommends continuation of the current organizational arrangements for Council’s Senior Staff while the recruitment process for a new Council GM is under way, which is anticipated to be finalised by mid-October 2022. It is also relevant that section 333 of the Local Government Act requires Council’s organization and structure to be reviewed by the new Council before the first anniversary of last year’s local government elections (i.e. 4^th December 2022).

It is unfortunate that there has not been a better alignment in timing between the arrival of the new GM (who may recommend a revised structure following a review of Council’s priorities and strategies) and the post-election review of the Council’s organizational structure. ABE notes that acceptance of today’s agenda paper would maintain the omission of an Executive Level Director Corporate & Commercial Services within Council’s organizational structure, the position having been eliminated in 2019 following the resignation of the incumbent.

ABE proposes that a suitable mechanism to assist the incoming GM in her or his assessment of Council operations, activities and structural organization would be via an operational review as put in a proposal to the Mayoral Candidates Forum held at Kyla Hall on 15^th November 2021. The proposal to commission ‘an external local government consultant answering to Councillors to review Council’s strategic environment and its operational practices’ was endorsed by all the Mayoral candidates (except Councillor Harrison) on behalf of their tickets. Their responses were taken to represent the position of the other Councillor candidates on their group tickets including Councillors Diskon, Schutz, Dannock and Mayne.

ABE considers that any endorsement of the existing structure at today’s meeting should be understood in the context of an incoming GM working with Councillors to undertake a thorough and fully informed review of Council’s priorities and strategies following their appointment, and making any changes to senior staff necessary to reflect the outcomes of this review.

PSR22/021 Draft Climate Action Plan

ABE supports the endorsement and adoption of the draft Climate Action Plan (CAP) as outlined in the agenda. The draft Eurobodalla CAP provides a good overview of current climate change issues, as well as a sound background and compelling reasons why this is an urgent and important problem. This information is well laid out in sections 1-3, incorporating a useful set of principles. The CAP reflects the benefits arising from extensive public consultation in its preparation, and provides a good template for Council’s future public consultation processes.

ABE welcomes the expanded scope of the updated CAP, which now covers both Council activities as well as the broader Eurobodalla community. The plan identifies actions that Council can take to further reduce its own carbon footprint and make its operations and service delivery more resilient to the impacts of climate change. It also identifies how Council can support households and businesses across the Eurobodalla to reduce their greenhouse gas emissions and build climate resilience. There are significant economic benefits which can accrue from these outcomes.

The CAP is a necessarily ambitious program, which requires both adequate resourcing and a transparent implementation plan to ensure that it can achieve real progress on its significant work. It provides an ideal vehicle to deliver the proposal unanimously endorsed by all candidates at the Tuross Head Mayoral Candidates Forum held at Kyla Hall on 15^th November 2021, which stated :

Given community concerns about development in the shire, will you support Council developing a shire wide plan for sustainable development?

While advice and expertise via means of the foreshadowed Climate Advisory Group and external grant funding can provide significant resources towards implementing the CAP, the urgency and importance of climate change mitigation and adaptation needs to be reflected in the allocation of Council’s own recurrent internal funding. It would only take a very modest rebalancing of Council’s budget (in the order of 1%) to adequately resource the CAP. Council’s budget needs to reflect contemporary concerns and issues, and not be locked into a backward vision which views existing budget allocations as an optimal allocation of funds. Real progress in delivering the CAP should not be stymied by a lack of Council resourcing. In addition, Council should continue its positive engagement with the community in this area. In this way, Council can supplement its constrained resources by accessing the relevant expertise and experience held within the Eurobodalla community.

The CAP provides a useful vehicle to provide meaningful engagement with the Eurobodalla community, deliver an undertaking given by all candidates at the last election, as well as assist Council in evaluating and adjusting its own service delivery to reflect key issues of this century. Effective resourcing, delivery and reporting of the CAP will be an important element of informed and forward-looking governance which will benefit the wider Eurobodalla community and its businesses. Council resourcing should therefore be commensurate with this degree of significance.

Thank you for your attention

Dr Brett Stevenson

Co-Convenor

A Better Eurobodalla

AGENDA ITEM: GMR22/053 Draft Code of Meeting Practice – For Exhibition.

I am presenting today as the Co-convenor of A Better Eurobodalla, a community forum working to achieve open, accountable and responsive government in Eurobodalla

Today I want to address some decision points identified for Councillors in the agenda paper Draft Code of Meeting Practice – For Exhibition and request some clarity around what is published for community comment.

The recommendations in the General Manager’s paper include:

That Council determine:

Whether or not Public Forum sessions and Public Access sessions are live-streamed and

Whether or not a written copy of an approved speaker’s address for Public Forum and Public Access sessions is required to be provided by 12.00 noon to Council on the business day prior to the Council meeting.

 On the question of whether Public Forum and Public Access sessions are live streamed:

• on 15 November 2021, during the ESC election campaign, all the mayoral candidates attended a candidates’ forum hosted by the Tuross Head Progress Association. At that forum all mayoral candidates agreed to support live streaming of both Public Forum and Public Access sessions. That group included Mayor Hatcher, Deputy Mayor Worthington, returning councillor Pollock, new councillors Grace and Harrison and mayoral candidate Karyn Starmer. The answers were taken to represent the position of the other councillor candidates on their group tickets including councillors Diskon, Schutz, Dannock and Mayne

In this agenda paper, Council staff have provided briefing under a discussion of a survey that (again from the agenda paper) ‘was developed to ascertain from the community their views about participation in Council meetings and in particular, when meetings should be held, and if Public Forum and Public Access should be live-streamed’. During the survey period, 312 surveys were completed and 59 written responses were received.

It is difficult to have confidence in a survey with questionable methodology – we can see no control over the number of times an individual can respond, and low survey response numbers. Remarkably the staff advice states that ‘The results indicate that not livestreaming public forum is slightly favoured during the engagement process’ whereas

• on the forum question – 51.3% of respondents voted either Yes: (42.4%) or Optional for presenter: (8.9%) with a no vote of 48.7% and
• on the public access question – 51.2% of respondents voted either Yes: (40.3%) or Optional for presenter: (10.9%) with a no vote of No: 48.9%

Indicating that a majority of respondents did favour the possibility of live streaming.  

Again, under consideration of live streaming of public forum sessions, staff advice is that ‘It should be noted that webcasting of Public Forum not only increases Council’s potential liability, but could also cause significant (sic) or offence should a speaker reveal an issue of privacy or state derogatory comments about a person which is based on incorrect, malicious or misunderstood information. In addition, it is acknowledged that many people find public presentations to be stressful enough, without the additional pressure of being webcast, and this presentation being able to be accessed for seven years. Further, webcasting of public forum is not included in OLG best practice guidelines or recommended as an option’

Similar advice is provided by staff for potential live streaming of public access sessions.

In relation to the question of potential liability or causing offence, other councils that are clearly in exactly the same position manage such risks in a simple but professional manner. For example, Shoalhaven Council has directives which set out:

‘Is there anything I can’t say at the meeting?

• Comments must be relevant to the issue at hand
• You must refrain from making personal comments or criticisms or revealing any private, sensitive or privileged information
• You may not make insulting or defamatory statements
• You may not make personal allegations against Councillors and/or staff or be disrespectful. If/when such statements are made the deputation will cease and the individual will be asked to leave the meeting
• Speakers do not have absolute privilege
• A speaker who makes any offensive or defamatory remarks about another person may be personally liable for their actions’

and further

• Your attendance at the meeting is taken as consent to the possibility that your image and/or voice may be recorded and broadcast to the public.

https://webcast.shoalhaven.nsw.gov.au/video.php

A similar approach by Eurobodalla Shire Council should alleviate the staff, and any councillor, concerns.

The staff statement that ‘it is acknowledged that many people find public presentations to be stressful enough, without the additional pressure of being webcast’ is not supported by any survey results or analysis that might indicate that this is true.

A review of surrounding councils shows that the 3 councils adjoining our shire all provide webcasting for public presentations under various titles. So, Shoalhaven, Bega and Snowy Monaro councils are not overly concerned by the Office of Local Government best practice guidelines. In 2019, even before the pandemic, a majority of NSW councils provided webcasting of public presentations, similarly not overly deterred by the OLG best practice guidelines. 

Briefly, in response to some of the other issues under consideration:

• ABE does not support speakers being obliged to provide a copy of their address for Public Forum and Public Access sessions to Council by 12.00 noon the business day prior to the meeting. Instead, ABE believes that this should be optional. 

• Remarkably in item 3.27 there is a recommendation relating to public forum that states: ‘If a written copy of the presentation is not provided then this will be ruled a breach of this Code and (at the ruling of the Chairperson) the presenter may not be allowed to address Council at future meetings’.

This is an inappropriate and punitive response to what might be an innocent error or oversight. 

• There is what appears as a new provision at ‘3.28 When a person is speaking on behalf of a person or group, Councillors are not permitted to ask questions, unless that speaker is a formal representative of the group’.

Having been subject to confusing and inconsistent interpretations of this, or a similar ruling by Council, ABEs view is that it is an unnecessary provision. Rather, Councillors should be able to ask any relevant questions and simply ask the presenter to identify whether she or he is responding as an individual or on behalf of their group.

Finally, in the interests of clarity and transparency, the draft that goes for public exhibition should be accompanied by a statement that comment is invited on all provisions apart from those identified as mandatory under the OLG Model Meeting Code. The design of the current presentation is confusing as it speaks of ‘Council’s previously adopted provisions’ without identifying that those provisions were agreed to by the previous Councillors, not those elected in 2021.

Thank you.

Bernie O’Neil

Co-convenor

A Better Eurobodalla

22 March 2022

Good morning and thank you for the opportunity to address Council and the community this morning regarding GMR 22/026 Policy Review for Exhibition.

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.

In applying these principles to this motion, the ABE review has focussed primarily on the draft Creative Arts Services Policy which is recommended, along with the other draft policies, to be placed on public exhibition for the purposes of public consultation for a period of 28 days. It will then be presented to Council for consideration and adoption. along with a report to consider any submissions received during the exhibition period. I will also touch on GMR 22/026 the draft Yellow Bellied Glider policy.

For some context a simple general definition of policy from the Australian Government states that government policies contain the reasons things are to be done in a certain way and why. (www.pmc.gov.au> domestic policy). Good policy relies on robust contemporary information to inform what will be done and why.

The Creative Arts Services Policy falls under:

Delivery Program Link: 9.1.2 Implement effective governance, an area central to ABE’s purpose.

Council agenda paper, under General Manager’s reports, describes theCreative Arts Services Policy as being:

‘designed to position the role of creative arts as instrumental to engaging communities, cultivating new industries, celebrating, promoting and developing the Eurobodalla’s distinctive characteristics, economy and reputation as a strong and vibrant community.’

It further states that ‘The policy has been reviewed and no substantive changes are recommended at this time, apart from minor referencing updates.’.

Having read and reviewed the draft Policy our concerns are:

• There is very little for the community to understand or comment on in the document. It describes a set of policy aims which use terms such as increasing opportunities, cultivating partnerships, working effectively and providing leadership. Laudable in principle but essentially motherhood statements that are difficult to criticise but also hard to comment on in any useful way.
• There is no indication in the document that it reflects contemporary circumstances. We have had bushfires, floods and Covid since the last review. What does this mean for the creative arts and the Council services that support them?
• The draft Policy states that the policy will be implemented by following Council’s Creative Arts Strategy. This Strategy from 2019 (also pre-dating fires and Covid) is not up for discussion or consultation and it is here that any relevant actions are to be found.
• The draft Policy of 2022, and the performance indicators by which the success or otherwise of the Policy can be measured, do not directly link to any of the 46 priority actions from the 2019 Strategy.
• A draft policy that simply says, in effect, that we are going to do what we are already doing is not meaningful.
• So unfortunately, this is a poor document for the purposes of public consultation. It is an example of the ‘tick the box consultation’ that Council should avoid.
• If we want our community to be engaged with Council, to read, review and comment on Council products there must be content that justifies peoples’ time and energy.

The draft Yellow Bellied Glider policy (GMR 22/026) indicates there is no need for any substantial changes to the Yellow Bellied Glider policy, despite the massive impacts of the 2019/20 black summer bushfires to biodiversity and tree cover across the Eurobodalla.

Also significant is that the Commonwealth government has recently listed the Yellow-bellied glider as “Vulnerable” under the EPBC Act, identifying the black summer bushfires as a key factor that increased risks to this species. The draft policy does not acknowledge this, and is in urgent need of revising and updating to reflect contemporary circumstances, as well as correct anomalous dates and references circulated in GMR22/026.

We know that community members have long had concerns about the quality of consultation by Council. Among other things, the Community Engagement Framework and Participation Plan adopted by Council on 26 November 2019 tells us that ‘Ineffective or tokenistic community engagement can be detrimental to the good faith of the community in the long term’. (P4) ABE considers effective community engagement to be a key element of delivering good governance, where a ‘tick the box” approach is not desirable or effective.

The arts and culture community of Eurobodalla is a vital and substantial contributor to the well-being, social capital and economy of the Eurobodalla, as are our fragile natural resources. Consulting about these is important and should be done by providing meaningful content and the opportunity for the community to engage. 

Thank you.

Bernie O’Neil

Co-convenor

A Better Eurobodalla

Good morning. Thank you for the opportunity to address Council regarding three items on today’s agenda, these being :

QON21/010 & PSR21/057 – Both dealing with the Dalmeny Land Release; and

QON21/009 – 96 Lot Subdivision on Turnbulls Lane (DA0632/20)

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 both the Dalmeny Land Release and the Turnbulls Lane subdivision, which both have significant implications for the effective management of public assets and implementation of good governance in the Eurobodalla.  I will now outline ABE’s recommendations for each of these issues.

Dalmeny Land Release

This sale of 40 hectares of Council land adjoining an area of 60 hectares already slated for residential development is a significant step warranting detailed collection and consideration of current information together with extensive community consultation and input. The combined impact of this additional residential land will nearly double the current size of Dalmeny, yet no systemic analysis has been provided of how all this new housing can be adequately serviced. The primary driver seems to be maximising the number of development lots, with other important considerations either being ignored or given only lip service.

The Dalmeny Land Release area is not an issue which should just rubber-stamp decades-old arbitrary zoning decisions. We need to apply contemporary standards and knowledge to make an informed decision which refects contemporary knowledge and current standards, as well as supporting the local community.

The Dalmeny site is a forested area with high biodiversity values which is part of the catchment of Mummaga Lake. ABE notes that the 2016 South East & Tablelands Regional Plan indicates that estuaries such as Mummaga Lake and their catchments “are particularly susceptible to the effect of land use development and are not suitable for intense uses such as housing subdivision.” Council’s decision is inconsistent with this advice.

The land is also highly valued by the local community for its aesthetic, recreational and environmental values, which are under threat from over development. These values are even more important now in the wake of the catastrophic 2019-20 fire season. In spite of this importance to the community, there has only been one hastily convened public information session after the sale process was first announced. This one-off consultation was the result of Councillor McGinlay advocating on behalf of Dalmeny residents, and was not part of any systematic Council process.

In addition to these significant concerns over the biophysical and community impacts of the sale of this community asset, the fact that this process was initiated without Councillors being advised of the estimated value of the asset is also of concern. The fact that the community has still not been informed of the purchase price even after contracts have been exchanged is of further concern.

There has been no cogent explanation about why the land needed to be sold so hastily, particularly given that the transaction will not be completed until 2022. The reason given for not advising the community of the sale price for the land is that the title needs to be amended and registered. However, this task should have already been completed if a systematic and thorough approach had been adopted from the outset. Why the hurry for this sale to occur right now?

ABE also notes that PSR21/057 refers to a “Real Estate Development Fund” with a current balance of $4.2 million as the source for $100,000 to pay the cost of developing a Masterplan and DCP for the Dalmeny Land Release.  ABE has searched both Council’s website and Google, and has not been able to find any information regarding the Eurobodalla Council “Real Estate Development Fund”. We have written to the GM in order to find out how and where this fund fits into Council’s governance structure, and what functions it is supposed to perform. This is an issue that Councillors may also want to clarify before voting to withdraw $100,000 from this fund.

A decision of the magnitude and complexity of the Dalmeny Land Release should not have been taken in the dying days of a Council term extended twice because of the COVID pandemic. This was a process and decision which should have been undertaken by the next Council, which will have to deal with the longer term impacts of this sell-off.

96 Lot Subdivision on Turnbulls Lane

The Turnbull Lane Subdivision is another example of a significant development which needs to have the proactive engagement of Eurobodalla Council. The development block contains parcels of an Endangered Ecological Community (EEC), the Lowland Grassy Box woodland, which is even more valuable now in the wake of the impacts the Black Summer bushfires on the environment of the Eurobodalla.

ABE considers that the Council staff response to Councillor Mayne’s Question on Notice is unsatisfactory, in that it largely seeks to devolve responsibility for the future development and fate of the EEC to the BDAR (Biodiversity Development Assessment Report) process. However, Council has the authority and agency to actively engage with the developer to seek an improved outcome offering environmental and community benefits through informed and creative engagement with the development process based on contemporary knowledge and circumstances, which should be driven by more than just maximising the number of development lots.

The Turnbulls Lane subdivision is of sufficient importance for Councillors to be engaged with the process, instead of turning it into another routine staff decision.

Conclusion

The Dalmeny Land Release constitutes a large parcel of Council land being sold off hurriedly for an undisclosed amount without any contemporary evaluation of its environmental and community values, and without any genuine community consultation. No systemic analyses of the servicing requirements or associated impacts have been produced. This process reflects poor governance across all aspects of the ABE checklist of transparency, meaningful consultation and informed decision making based on current expert advice.

The Turnbull’s Lane subdivision provides an opportunity for Council to exercise informed and creative engagement reflecting contemporary knowledge and circumstances for a significant development project.

ABE considers that Council can and must do better in future planning and development decisions.

Thank you for your attention.

Brett Stevenson

Co-Convenor

A Better Eurobodalla

Good morning. Thank you for the opportunity to address Council this morning regarding two items on today’s agenda, these being :

GMR21/053 –  Application for a public gate permit on Coopers Island Road;

PSR21/049 – Land & Road Reserve Classification – Clarke Street 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 both Coopers Island Road and Clarke Street Broulee in our previous presentations to Council, as each have significant implications for the effective management of public assets and implementation of good governance in the Eurobodalla.

I will now outline ABE’s recommendations for each of these agenda items.

Public Gate on Cooper’s Island Road (GMR21/051)

ABE notes that this issue has been unnecessarily complicated by Council’s tardiness in addressing it, which dates back to mid-2019. 

ABE’s previous presentations to Council focussed on public safety and good governance aspects of this case, and these considerations should remain paramount in Council’s deliberations today. Of the 2 options presented to Councillors in the agenda papers, ABE recommends that Option 1 should be chosen, i.e. refuse the gate permit application and direct the adjoining owner to fence the road reserve, with $5,000 of financial support from Council. ABE considers that without fencing along the road reserve, the possibility of stock interactions with public road users cannot be avoided, raising significant public safety and liability concerns.

If Council chooses to go with Option 2 and approve the gate permit, ABE recommends that this approval be conditioned by requiring the adjoining owner to properly fence the boundary of the road reserve for the reasons already discussed. This could be accomplished by including this requirement in the conditions of approval for the gate permit, which need to be backed up by rigorous compliance and enforcement measures.

Council should make sure that any decision made today is fully compliant with requirements of the NSW Roads Act, and ensures that the adjoining landowner complies with the requirements for control of stock under relevant NSW legislation. This decision also needs to demonstrate that Council is properly discharging its “duty of care” obligations regarding public safety, which have significant implications for public liability and insurance considerations.

Land & Road Reserve Classification – Clarke Street Broulee (PSR21/049)

ABE welcomes the detailed chronology of the site included in the PSR21/049 agenda paper today, and considers that this compilation provides a good starting point from which to make a sound decision based on publicly available information.

ABE notes the original decision of Councillors in 2003 to classify this parcel of land as community land has never been rescinded, and so should now be finally implemented, bringing this 18 year oversight to a satisfactory conclusion. ABE also notes that Council’s Director of Planning issued a press statement on the 29^th June indicating that this block was Community Land, and that Council has recently received a substantial petition from the Broulee community urging that this parcel of land be classified as community land. This is included in today’s agenda papers under PET21/003.

After reviewing this information, ABE recommends that Councillors adopt Option 2, to close the road reserve and classify the lot and road reserve as community land. ABE considers that this would provide the greatest public benefit going forward, and create a significant community asset which could facilitate multiple uses for a variety of community sectors, including Landcare, tourism, Aboriginal and European heritage and public education. It would provide an ideal opportunity for Council to work constructively and in good faith with the Broulee community to achieve a fair outcome which maintains this important piece of community land for future use and enjoyment by everyone.

Conclusion

The decisions regarding Coopers Island Road and Clarke Street Broulee provide opportunities for elected Councillors to prove their commitment to both the community and good public administration via retention and effective management of these precious public assets. ABE therefore urges Councillors to make community well being, public safety and good governance the basis of their deliberations today.

Thank you for your attention.

Brett Stevenson

Co-Convenor

A Better Eurobodalla

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 29^th 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

Co-convenor

A Better Eurobodalla

Attachment : Screen Capture from Council’s DA Tracker

Improving Quality and Transparency of ESC Decision-making

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.

Today ABE is applying these principles to the issue of good decision-making by our
Council. This is the last opportunity we have to present at the ESC public access
session before the September election of Mayor and Councillors. ABE has presented
to this Council in public forum and public access sessions over many months. A
characteristic of all those presentations is the fundamental importance of good
decision-making in delivering good governance. ABE believes that the citizens of
Eurobodalla have a right to expect that our local government authority will make the
best decisions for us using the principles of transparency, accountability, genuine
consultation, and applying expert advice – all the things that ABE has been
presenting on and writing to Council about.

Eurobodalla is widely recognised for its natural beauty. However, in the last 18
months it has been subject to major bushfires; flooding; Covid19 effects on business
and the community; increased migration of people from other centres causing severe
housing shortages, and other social issues. In short, the strategic environment has
changed.

There are two ways Council decisions are made – those made by Councillors and
those made under delegation by the general manager who, in turn, delegates to
Council staff. Under the Local Government Act, Councillors are responsible for all
outcomes relating to decisions made at Council meetings and the operational ones
made by Council staff. Implementing the decisions made by Councillors is usually
delegated to the general manager. It should be noted, however, that Councillors
have the discretion at any stage to review, amend or reject aspects of the
implementation process as they see fit.

Councillors are also responsible for the Council’s assets and financial reserves; and
for all investment and expenditure outcomes. They have a duty to ensure decisions
are based on full, accurate and balanced evidence, are financially responsible and
take into consideration the views of ratepayers. 

The quality of Councillors’ decision-making is influenced and dependent on advice and support from the general manager and Council staff. Councillors need to actively engage in a process that results in good decision-making. This requires them to:

• be independent in their thinking,
• listen to their community, and
• be willing to interrogate staff and ask for additional information in briefing sessions and again in council meetings prior to making decisions.

A current operating practice that can inhibit Councillors’ ability to make good decisions is the onerous confidentiality requirements that prevent them from seeking community input or expert advice on material that they have been briefed on by staff. ABE believes that there is an overuse of confidentiality provisions that must be reviewed by our next Council.

To properly discharge their responsibilities, Councillors must ensure that appropriate processes are in place to enable them to be fully briefed about significant issues so that they are presented with impartial, evidence-based options including the key outcomes and costs before making decisions. In particular, where major financial, environmental, economic and public interest decisions are involved, they need:

• full consultation with Councillors and the shire community
• optimised community awareness through webcasting of public forum and other presentation processes at meetings, and
• the evidence relating to decisions made as publicly available as possible rather than the blanket use of ‘commercial in confidence’ and ‘legal privilege’ firewalls.  

A poor administrative practice witnessed recently is Councillors being given a revised motion without notice to vote on either in, or immediately prior to, Council meetings with assertions that it should or must be immediately endorsed. This has happened particularly on contentious issues where there has been strong community engagement. This practice does not allow the time Councillors need to fully consider the implications of decisions by seeking advice and consulting with each other and constituents.

An under-used facility is advice that can be gained from the Advisory Committees of
Council. These committees provide a mechanism for allowing expert and community
input to decision-making, provided they operate fairly and transparently. Many other
Councils also include and give responsibilities to advisory committees in the
delegation process such as for finance, audit, infrastructure, environment,
community services and sustainability. ABE seeks more open referrals to our
Eurobodalla committees combined with improved resourcing and transparency in the advice they offer.

Since the decision of Councillors at its meeting in August 2017, all of the
discretionary delegations are held by the general manager. She in turn has
delegated many of these to her directors (who also often sub-delegate), with all
reporting to Council being through her office. The use of delegations is appropriate –
Councillors cannot make all the day to day decisions required of Council. Whoever
makes decisions, there are characteristics of good decision making that should be
followed.

The ESC has a Delegations Register on its website but, unlike many Councils, there
is no further list of responsible officers at director or other levels or the related committees for the various items. The ESC delegation arrangements are also at
variance with many Councils who often retain and/or assert an active role in
reviewing operational reports and decision-making in relation to what they consider
are important projects of interest to the community.

All Councils in NSW are required to keep an up-to-date Register of Delegations to
provide information about to whom Councillors have entrusted the decision making.
ABE has reviewed NSW Council Delegation Registers including Bega Valley,
Queanbeyan-Palerang, Orange and Newcastle which indicate that better practice
should include:  
a) significant aspects of delegations being kept at either Councillors’ or Councillor
appointed committees’ level ;
b) Councillors’ delegations being reviewed and updated several times during the
term of a Council, preferably annually; and
c) Registers of Delegations available on the Councils’ websites should list all areas
delegated to the general manager and show how the GM sub-delegates these
delegations to other Council staff.  They should demonstrate transparency, be up to
date and be easily accessible, written in plain English so as to be understood by
the community.

A relevant model of good practice for future Councillors to consider is Bega Shire
Council’s Register of Delegations. This gives a brief plain English summary of the
areas delegated and provides a clear description of how the GM’s delegations are
then shared with staff. This makes it simple for the public to understand who is
responsible for making a decision on a particular matter, and the
line of command, should a decision need to be clarified.

Improving Council’s performance in relation to the above issues can best be
obtained by electing Councillors committed to improving current practice. ESC re-
joining the NSW Local Government Association would give Council access to a
range of professional analysis and advisory services to improve organisational
performance.

ABE recommends the incoming Council commission an external local government consultant, answering directly to the Councillors, to undertake a review of its strategic environment and a range of Council practices to, address such key issues as:

• the need to update Council’s planning with a comprehensive, shire-wide strategic plan to address sustainable development;
• providing ‘best practice’ advice to Councillors on how decisions should be made and what support they should expect from Council staff;
• applying a consistent definition and protocol around using ‘commercial in confidence’ and ‘legal privilege’ firewalls with a view to reducing this practice, including in relation to Code of Conduct complaints;
• how to encourage and resource public engagement in decision-making, using advisory committees and wide distribution of information on important decisions, with dedicated staff to facilitate processes recognising the needs of marginalised groups like the elderly, the isolated and socially disadvantaged;
• improving the delegations register, listing responsible officers;
• improved reporting to Councillors and the community on delegated decisions, to recognise the community’s right to know; and
• developing a more flexible approach to managing delegations and Councillors asserting their rights to information and decision making in areas that are most likely to improve Council’s performance and reputation.

Eurobodalla Shire is a great place, rich in people of talent and goodwill and blessed with natural assets. ABE wants to see a Council that recognises this and encourages a culture of best practice to plan for a sustainable future and build public confidence in and support for Council.

Bernie O’Neil
Co-convenor
A Better Eurobodalla
abettereurobodalla.org

This is a copy of the ABE paper submitted for presentation to the Eurobodalla Shire Council Public Forum Session on Tuesday 22nd June 2021

Good morning and thank you for the opportunity to address Council and the community regarding Notice of Motion 21/002, dealing with an application for a gate permit on Coopers Island Road.

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 gate permit for Coopers Island Road, which leads it to support Councillor Constable’s Notice of Motion, which calls on Council to:

1. Refuse to issue a public gate permit under s128 of the Roads Act 1993 (NSW) to the owner of the land adjoining Coopers Island Road;

2. Direct the adjoining landowner to remove the gate that is currently erected across Coopers Island Road at that location within 21 days of this resolution; 

3. Following removal of the gate, issue an order under s124 of the Local Government Act 1993 (NSW) requiring the adjoining landowner to fence their land along the length of Coopers Island Road to the Princes Highway road reserve, on the basis that it is satisfied that public safety renders it necessary that the land adjoining Coopers Island Road is fenced; and 

4. Contribute 50% of the cost of the fencing as a one-off contribution.

ABE presented to Council at Public Access session on the 4th May regarding alienation of public assets, citing examples of the premature closure and leasing of the Batemans Bay Community Centre, the closure of its Visitor Information Centres and the illegal gate on Coopers Island Road.

ABE has indicated that the extended delay in taking the regulatory action required under law regarding the illegal gate on Coopers Island Road was problematic. It had fuelled community unease and speculation that Council’s lack of action was the result of ongoing negotiations for the purchase of the public road by the adjoining landowner. 

This public unease proved to be well-founded, as at the 8 June meeting Council was presented with an option to sell Coopers Island Road to the adjoining landholder, or to retain the road in public ownership. ABE supported retention of the road as a public asset, indicating that the Coopers Island precedent could have significant implications for many other public roads and assets throughout the Eurobodalla Shire, as well as public liability implications for Council. It would also have had significant negative impacts across many in the community who have used the site for decades. In particular, Council should have recognised the long-term Aboriginal connection to Coopers Island, including local Aboriginal families who have cultural fishing links to the site going back for many generations. 

ABE noted that that the retention of the illegal gate on Coopers Island reflected poor administrative practice, lack of transparency and meaningful consultation, and was at odds with informed advice regarding effective post-disaster community recovery practices. 

While ABE endorses Council’s decision taken on 8 June to retain Coopers Island Road in public ownership, we note that the formal motion embodying this decision only emerged during the meeting process, and was not contained in the agenda papers circulated for public exhibition and consideration. This was poor administrative practice causing confusion among Councillors and the community about the implications of what was being proposed.

Where responsibilities are delegated from Councillors to officials and a matter is incorrectly or inappropriately handled, it is right that Council should rescind that delegation and make a decision. 

Today’s notice of motion reveals that, on reflection, an alternative approach to the fencing and gate issue has emerged that addresses the disquiet in the community about the retention of a gate.

ABE believes that Councillor Constable’s notice of motion represents an opportunity to clarify and consolidate the Council decision taken on 8 June to retain public ownership of Coopers Island Road. Further, it addresses potential public safety and public liability concerns that could arise from the formal decision endorsed by Council on 8 June.

ABE requests that it should be noted that a decision to support 50% of the cost of the fencing as a one-off contribution reflects that a Council official’s verbal advice to the landholder concerning the erection of the gate was incorrect.

This notice of motion is another opportunity for elected Councillors to prove their commitment both to the community and to good public administration. ABE therefore urges Councillors to support it.

Thank you for your attention.

Bernie O’Neil

Co-convenor

A Better Eurobodalla