Enough is enough – it’s time to cut councillors out of development assessment

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Published: Wednesday, 26 July 2017 12:29

We dare you, give us three good reasons why councillors should have anything to do with considering a DA.

The twenty new merged councils have demonstrated how planning and DA assessment should operate. No councillors getting in the way, or failing to declare an interest, or denying they’re a developer, or trying to compromise the professional advice of staff on whether an application does, or doesn’t, comply with the planning instrument.

No Administrator has rejected advice from their assessment staff, Council meetings are short, vested interests don’t get in the way and those twenty councils have been able to restore the integrity of the process where it was needed - like Georges River (with ex Hurstville), Cumberland (with ex Auburn) and Canterbury-Bankstown (with ex Canterbury).

If Administrators can do it, why can’t councillors?

We know why. There have been far too many examples of councils exercising a power, corruptly or otherwise, to reject the advice of the planning staff and in doing so provide massive capital gains and bonuses to developers through improved floor space ratio, or a couple of additional floors. In this article we make no allegations of corruption, but it’s abundantly clear that councillors fiddling in areas they shouldn’t be involved invariably provides bad planning decisions- too big, too bulky, too tall.

We get the idea of local democracy. Councillors are elected to be involved in a consultative way with their communities to develop planning instruments but, given what we know now, that has to be the end of their involvement. It’s the role of staff to ensure that applications processed are consistent with the instruments, or they don’t get approved.

Isn’t it time for the integrity of the planning system to come to grips with the difficult questions - why do councillors have any role at all in planning assessment? Why not keep councillors out of planning assessment? What sense does it make to have a planning instrument developed in consultation with the community and then allow a council to override it?

And the Land and Environment Court has been reluctant to intervene in decisions taken by councils where, even if there is an element of corruption established, some lucky developer has started the job and there is no going back. It’s not good enough.

The public enquiry into Auburn, toothless and without a capacity to require witnesses to answer questions as it was, nevertheless revealed the contemptuous attitude of councillors to the advice of their professional staff. Even those under the thumb and coerced into doing things that shouldn’t be done. Ex-councillor Ned Attie (and former Mayor) made numerous damning and contemptuous admissions about planning reports which, he acknowledged he may not have always read, or he may have “skimmed through” or, famously, “I don’t normally ask for any staff views”.

When there is a planning instrument established, whether it’s resolved by the Council or whether it’s resolved by the State, councillors should never, ever have the power to reject recommendations of staff or to override them. It should all be done by delegation. Imagine that, keeping the elected representatives focused on policy and letting the professional staff get on with ensuring it’s managed properly.

We know that there are merged councils concerned that after the elections on 9 September, one of the first things some councils may do is to look at pulling those delegations back. Remember, many of the scumbags will be back and looking for business as usual.

It must be one of the State’s worst kept secrets that the ICAC has been investigating decisions of the former Canterbury Council which have massively overdeveloped parts of the municipality - decisions which always involved the rejection of staff recommendations in favour of the developer, and never, ever in favour of the community or the neighbours. And certainly not in favour of better planning, amenity or aesthetics.

Towards the end of 2016 it was expected that a public enquiry would be announced in February or March but while we know that ICAC investigations continued, it was not until the Sydney Morning Herald on 15-16 July published on the front page “ICAC takes on Sydney’s biggest Council”, that we saw some real detail of what had been happening.

And what a story. The highly regarded investigative journalist Kate McClymont wrote of a number of decisions of the Council affecting Canterbury Road and Charles Street which saw an unusual alliance of some Liberal and Labor councillors to approve developments which the Council’s planning staff had rejected.

Canterbury-Bankstown Administrator Richard Colley (a former GM of Bankstown) confirmed that ICAC came knocking on his door in June last year. “When I first took up this role it became apparent that there were a number of properties on Canterbury Road and close by that had compromised policies of the previous Canterbury Council.” The Herald quotes Mr Colley as confirming there were a number of developments in “that very important corridor” which had breached Council’s policies “fairly dramatically in terms of bulk, scale and height.”

What is this other than free kicks to developers and a flagrant disregard for planning instruments?

But it doesn’t end there. An ex-councillor, Con Vasiliades watched on (as he often does having declared a big interest in eleven properties) as, after a brief advertising campaign the Council sold some public space they owned in Kingsgrove Road, Belmore, to his father George (a real estate agent) and George (who would have guessed!), now has development approval to build a four story block of flats which exceeds the Council’s height limits. The Herald claimed that both Con and his brother Will are likely Liberal candidates 9 September.

The Herald claimed that another property believed to be investigated by the ICAC is an old hardware store site at 548 Canterbury Road, Campsie. This was bought by a developer in November 2014 for $14 million and sold on to a Queensland developer last month for $52.8 million after the Council approved an extra two floors on top of an existing approval for a six floor, 254-unit complex in another approval that exceeded the Council’s height restrictions.

Enough, is enough.

depa will now prepare a Discussion Paper on the concept of removing any capacity for an elected Council to make any decision about a DA. Unrestrained by current legislative provisions, this will be a real greenfield/blue sky exercise (for want of better clichés) or, in the words of Garry Payne, when he was Director-General of the DLG, “if you came down from Mars and looked at this, you’d wonder how it ever happened”.

The time might be right. The Liberals and Labor are both anxious about any public investigation of the former Canterbury and what may be revealed, but we know neither are really capable of fixing the planning system because they’re all beholden, one way or another, to the development industry.

Maybe this is the time to fix the development assessment process once and for all.

We will look at options after decisions have been made which look suspect and which involve rejecting staff recommendations but ideally, a total prohibition against elected councils considering DA’s, or spot zonings or, maybe other things, is the way to go. Something has to be done to stop the decisions being made.

We want to hear from you. What would you prevent a Council from considering?

And as a motivator, here are six good reasons why something has to be done.

I’ve got a Deed of Release - lessons to be learned from Amber Harrison

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Published: Wednesday, 26 July 2017 12:29

It’s a regular experience in our office to negotiate people out of councils, for a variety of reasons including redundancies, where the settlement reached is wrapped up in a Deed of Release. It’s a standard provision in a Deed of Release that both the employee and the Council acknowledge the confidentiality of the settlement, waive any other industrial or common law rights of redress (other than workers compensation) and accept a mutual no disparagement clause. A Deed protects the confidentiality of the settlement and prevents the parties bagging each other.

Sometimes our members ask how binding these provisions are but if those provisions are breached, then the Council can take legal action to seek redress. Fortunately this hasn’t happened. If the Council breaches the provisions of the Deed, then the employee can take legal action. It’s an agreed mutual obligation.

But if we needed a reminder about the importance of complying with confidentiality and non-disparagement provisions, it was delivered in the sordid battleground following an affair between Channel Seven CEO Tim Worner and a staff member Amber Harrison in the last weeks. The Supreme Court found that Ms Harrison had breached confidentiality provisions and done a whole range of things which Ms Harrison had agreed in a Deed of Release not to do - in return for some hundreds of thousands of dollars.

What can only be described as astonishing levels of legal costs incurred by Channel 7 in defending the obligations contained within the Deed have now been ordered by the Court to be paid by Ms Harrison. Ms Harrison says it will bankrupt her.

While there are some critics of this prurient exercise as it played out like some tacky Hollywood reality show that the “Boys Club wins”, the underlying lesson to be learned by everyone is that if you sign a Deed of Release requiring you to keep things confidential and not disparage anyone, you had bloody well better do so.

We accept LGNSW offer for a new State Award

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Published: Monday, 19 June 2017 11:54

On 2 June, the LGNSW Board endorsed an offer to be made to the three unions for the new 2017 Local Government State Award. This was formally provided to the unions late that afternoon.

The offer was individually emailed to members at 9:20am on Monday 5 June (not a bad turnaround, early in the morning of the next business day) with an explanatory email and three links. The first, a nine page attachment identifying the changes and particularly those that would provide benefits to our members, the second a copy of what the Award would look like with the proposed changes marked up and the third, the recommended Guidelines on Workplace Investigations.

We acknowledge the contribution of Lake Macquarie Council - in conducting such a heinous, prejudicial and clumsy investigation last year - that we felt obliged to pursue twelve fundamental requirements of procedural fairness which was supported by the other unions and ultimately also by LGNSW and they found their way both into the Award and by reference into the Guidelines. No more hanging prosecutors/judges when Lake Macquarie complies with these guidelines next time they conduct a workplace investigation and, if they do train people who revealed shortcomings in the exercise, no more nominations for the Golden Turd either.

Members had the opportunity of responding to the documents up until the close of business on Wednesday 14 June and the recommendation was made to the Committee, providing each of the individual responses from members so that the Committee would be aware of the feedback, to accept the offer.

The Committee of Management has now unanimously accepted the offer in an email and a letter with our characteristic clarity.

It’s no secret that we were disappointed at the way LGNSW conducted the negotiations. While we look forward to the Award being made now by Commissioner Murphy in the IRC on 30 June, and there is little point complaining about the change of historic attitude evidenced by the behaviour of the LGNSW, we hope next time that we can resort to the cooperation historically provided by LGNSW rather than the unhelpful attitude displayed this time.

Uh oh, …

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Published: Monday, 19 June 2017 11:54

Only a couple of months for local government elections in September 2017 which will see elections for the first time in the twenty merged councils.

The mergers, which involved the sacking of Auburn, Hurstville and Parramatta, to nominate just three at random, meant that councillors who were making life hard for nearly everyone as they looked after their own interests were sacked - to be replaced by administrators to act as the Council to merge the previously existing local governments into larger, more vibrant and better financed organisations.

But there is significant speculation some of those councillors mercifully removed by the proclamation may be back. We have been critical of the soft provisions of the Local Government Act which led to an inability to remove councillors behaving badly. Short periods of suspension which are voided by councils being sacked mean that, unlike the rugby league season when you are penalised and the suspension and the games missed carries over to the next season, these people just get away with it.

And the courts, whether it be NCAT on appeal or the Supreme Court, show a reluctance to support the standing down of democratically elected people, regardless of their behaviour, simply because they are democratically elected. The fact that idiots, shonks, dodgy closet developers, bullies, Code of Conduct breachers, those who fail to declare financial interests, self-seekers and crooks are elected democratically doesn’t provide them with a halo, or a mantel of respectability.

Something has to be done.

Next month, we’ll run through a few of the suspensions and also our proud history of implementing bans and supporting members as they stand up for themselves against unacceptable Councillor behaviour. We’ve been doing it for more than a decade, we shouldn’t have to do, but more next month.

It’s also time to remind members that the best thing you can do for your workmates, because you never really know how councils will be constituted in a couple of months’ time, is to encourage them to join depa and get with the strength. Do your friends a favour and you can do yourself a favour as well.

Do yourself a favour

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Published: Monday, 19 June 2017 11:54

We provide members with a reward if they encourage new members to join by providing a bottle of wine for every two members nominated. In the lead up to seeing what sort of councillors we end up with in September, and the need for employees in the difficult areas where our members work to be protected, it gets even better.

We will provide a bottle of good wine for every member nominated. So get recruiting, and we’ll send you something nice for dinner. Or dinners, if you go hard for it.

Molly would be thrilled.

Nine days to go …

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Published: Wednesday, 24 May 2017 13:03

On Friday 2 June the Board of Local Government New South Wales will consider recommendations from their industrial relations staff to make a formal offer to the three unions for the 2017 Local Government State Award.

Only nine days to go...

In March we reported that the historic cooperation from LGNSW had disappeared. Something’s happened to the negotiators to restrain the cooperative approach to fixing those parts of the Award that we know need to be fixed and to keep the Award modern and relevant. Since that time we’ve continued to meet and had a succession of days of conciliation before Commissioner Murphy in the IRC to bring us together on those issues where we remained apart.

The Committee of Management considered a report at the last meeting on 15 May about Award clauses where “in principle” agreement had been reached between the negotiators which, with potential changes to the Workplace Change and Redundancy clause and a consensus on pay increases over the next three years, would form the basis of an offer subject to endorsement by the LGNSW Board.

At this stage, there is no offer and there is no agreement. There are more than 20 areas of the Award where the negotiators have reached a common view but there is nothing formal until the Board meets to formally resolve a position and then convey that as an offer to the unions.

We are hoping for the best.

Mind you, it doesn’t help when you sit down to negotiate pay increases to know that the CPI is running at 2.1%, that wages growth over the last 12 months is around 1.9% generally or 2.3% in the public sector. Still ...

There is still work being done to bring together agreed wording on clause 39 Workplace Change and redundancy and some other minor matters.

If the Board endorses the package of changes we are hoping for, a formal offer will be made late the following week to allow the unions time to consider it - or will have further conciliation if there are issues where we remain in dispute.

If agreement can be reached, the Commission has listed a hearing for the Award to be made on 30 June.

We don’t like being gagged and we pull the pin on the EMRG

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Published: Wednesday, 24 May 2017 13:03

In depaNews in October last year we advised members of the facade that had been established by OLG and DPC under the guise of drawing on the expertise of the three unions and the employers in the industry giving advice to the Government on employment issues as the mergers rolled out.

It was, at that stage, facadism at its worst - masquerading as a transparent consultative mechanism when the reality was that we were getting more confidential information sent to us by people who shouldn’t do so and then we would distribute it to the Reference Group, wondering why we didn’t have it. That opened up access to more information than the Government had, up until that stage, been prepared to provide.

And our strategy of threatening the merged councils with industrial disputes for failing to disclose significant changes in their workforce because the Government wouldn’t allow them to provide details of cost-cutting measures they were being forced to make and to keep confidential unlocked more critical information.

So we made the Employment Matters Reference Group a more useful, transparent and consultative body than the government originally intended.

But the Reference Group require that the deliberations of the group be not disclosed and sometimes being gagged, in the context of industrial disputes when that information would be critical, is an unacceptable restriction. Particularly in an unpleasant and drawn out battle with Georges River and their belligerent position on section 354D.

So, it’s our history now that OLG has reminded councils that the protection under section 354 D of the Local Government Act is indefinite and not restricted to the three years as the boofheads at Georges River, in particular, were insisting.

But how the matter was raised by us in the IRC in the dispute has become a problem. So, having made them construct a more transparent and open consultative group, we’ve pulled the pin.

Courts nail clumsy and secretive handling of Council mergers

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Published: Wednesday, 24 May 2017 13:03

First it was the Court of Appeal finding for Ku-ring-gai in their challenge to the Government’s attempt to merge that Council with most of Hornsby. When we say “most of Hornsby”, that was something the smart people in government missed because the fundamental reason why the Court of Appeal found for Ku-ring-gai was the section of the Local Government Act under which they had acted to merge all of Ku-ring-gai and most of Hornsby, relied upon merging “two local government areas”. And the Court found they didn’t have two local government areas, they had one local government area and another local government area with part of it “excised”. Do’h! A dumb mistake.

And persuasive as well was the Government’s insistence that the KPMG report, containing what the Government and their delegates claimed was compelling financial evidence of efficiencies and cost savings, be a confidential document. What is this Government and its obsession with confidentiality? If you’ve got nothing to hide, you don’t need confidentiality.

And then the High Court has decided to provide leave to appeal to Woollahra to contest the Government’s proposal to force the amalgamation of Woollahra with Randwick and Waverley. Again, based significantly on the government’s obsession to keep the KPMG report confidential. And Randwick now looks like joining in - despite Randwick and Waverley for years having happily embraced each other with a view to voluntary merger if they needed to.

LGS restores uranium nuclear screening

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Published: Wednesday, 26 April 2017 08:45

26 April marks 31 years since the largest nuclear energy disaster in history at the Chernobyl nuclear power plant in the Ukraine. The disaster contaminated a huge area of the Ukraine, now known as the Chernobyl exclusion zone covering around 2600 km². The public are excluded from the area, both flora and fauna are contaminated forever and there has been significant animal, fish and human birth abnormalities and deformities. And the area is contaminated forever.

The disaster highlighted the significant risk associated with nuclear energy - as if it needed to be highlighted.

LGS has always taken the concept of responsible and sustainable investment more seriously than the rest of Australia’s superannuation funds - since 2000 when the fund decided not to own tobacco and to develop screening arrangements to reduce investment in nuclear/uranium, businesses with poor forestry practices (like Gunns), gambling etc. etc.

These screening practices have won LGS many accolades from responsible investment organisations, including being ranked number one in the world in the prestigious and authoritative Asset Owners Disclosure Project, twice.

But, despite my reluctance to personalise these issues, pretty much as soon as I had resigned as a director on the LGS Board after 16 years of primary responsibility for the introduction of these responsible investment commitments, a couple of pro-nuclear zealots on the Board thought it made sense to dismantle the Board’s historic screening against uranium and nuclear industries because of the stupid and misconceived understanding that nuclear energy did not produce carbon emissions. Stupid bastards.

We never let go of this, placing a clock on our homepage so that the world could see how many days it had been since that stupid decision was made back in September 2014. It would be a timely reminder of the decision and a constant nagging of the stupid bastards to recognise that the advice they had at the time was right - that there would be no investment advantage and that there would only be reputational damage.

LGS has now announced that the uranium/nuclear screening will be restored. Here is their media release. You will note that it doesn’t say that they should have taken advice from their own investment people at the time, they shouldn’t have behaved like a group of single-issue Montgomery Burns, that seeing nuclear technology as a solution for a low carbon future was one-dimensional thinking at its worst - like thinking that a mass murderer might be okay if they were good-looking and had nice manners. A little bit simplistic and wrong-headed. Stupid bastards.

But, good for them for acknowledging their folly and repairing the damage.

A wasted 965 days, more than two and a half years where people scratched their heads and wondered what kind of loonies had taken over the Board.

Our representative on the Board after the decision had been made, Sam Byrne, pursued this but the decision to restore the screening was a unanimous vote, so clearly everyone had come around to recognise that it was a mistake to remove it. Nice work. There may be a few stupid bastards still involved, but at least they’ve done this.

And we’ve decided to announce this on the anniversary of the Chernobyl disaster. Just to remind us that nuclear technology is not a viable energy source for a low carbon future when there are so many other renewable energy sources without the disadvantages or risks.

As the Chernobyl disaster happened at 1:24am in the Ukraine (seven hours behind Sydney time) on 26 April, the clock was removed from our homepage at that time.

And in a bit of a scoop and brilliant news for the historic and now reinstated commitment to responsible and sustainable investment, LGS was today announced as the top rated International fund (from a field of 600 institutional investors) in the prestigious and authoritative Asset Owners Disclosure Project.

This means that LGS is, without any doubt, the leading responsible and sustainable investment fund in Australia and it's a fabulous result for the commitment of the recently resigned CEO Peter Lambert who has ensured over more than a decade that the resolve of the Board to do precisely that, has been delivered.

The Hills Shire embraces commitment to health and wellbeing in 2017 Enterprise Agreement

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Published: Thursday, 20 April 2017 11:46

The Hills Shire GM Dave Walker

This really is the best of times, the age of wisdom, the epoch of belief, the season of light, the spring of hope.

The Hills Shire will have a commitment to health and wellbeing for their staff light years in advance of anything else operating in local government. An unrestrained arrangement allowing access to two days sick leave for health and wellbeing activities based solely on what the employee believes will assist and improve their health and wellbeing and renouncing the constraints and rigidity of restricting this entitlement to preventative medical appointments. The agreement contains the following words:

Reasons for health and wellbeing days would fit generally within concepts of health, fitness, exercise, improved health benefits, as well as mental health in times of stress.

One of our claims in the 2014 Award negotiations was a response to the evidence at the time about the increasing levels of obesity in Australia. Statistically, we’re all getting fatter, it’s not doing us any good and it’s not helping us aesthetically either. At the time there was a general acknowledgement between the unions and LGNSW that found its way into the Award in clause 24 Health and Wellbeing where subclause (i) records:

The parties of the Award recognise that workplace health and wellbeing programs can lead to positive outcomes such as improved employee work performances and productivity, improved employee recruitment and retention, reduced absenteeism, and other benefits.

But while the parties to the Award recognised this, a restrictive template developed by LGNSW’s HR inhibitors and an agreement that councils were simply “encouraged to develop workplace health and/or wellbeing programs”, rather than being forced to do so, meant that in the intervening three years little progress was made.

Until a courageous general manager, somewhat surprisingly to some in the form of The Hills Shire GM Dave Walker, decided to embrace the concept in enterprise agreement negotiations that had been going on since the end of last year. Let’s face it, if everyone agrees with subclause (i), then someone had to do something about it, didn’t they. And Dave did.

Clause 28 of the EA, now endorsed by the Industrial Relations Commission to operate from 1 July 2017 is provided as a link below but the significance of the clause is that it has no preconceptions about what employees need for their health and wellbeing.

It is a bold and courageous step - embracing the evidence that improved levels of health and wellbeing will provide productivity improvements, not just in reducing sick leave but better productivity while employees are at work as well, and a significant trust in employees that, at this stage, no other Council has been prepared to match.

At The Hills, you make a written request for one or two days from your sick leave for a particular purpose and explain how this will benefit your health and wellbeing, and your Manager can approve it. No restrictions, a reliance upon employees not abusing the process and the encouragement for a relationship between employees and their supervisors of disclosure, awareness of what will make people feel better and a real focus on employees thinking about what will improve their wellbeing and provide benefits for them and for the Council.

Dave Walker is now retiring, shortly to leave The Hills after running a Council with progressive policies, bonus arrangements and, more importantly, openness, transparency and honesty in dealing with staff.

We will miss Dave and we wish him well.

While we are continuing discussions with LGNSW aiming for a requirement that each Council must develop a policy of health and wellbeing, Dave did something about it. Who will be next?

If you’d like to take this challenge up at your Council, here is the email to Dave with nine critical points that Dave embraced and found its way into the clause, and here is the clause.

And just to show that we think everyone is capable of development and moving out of the age of foolishness, incredulity, Darkness and despair, we’ve claimed that the City of Sydney embrace what The Hills has done in the current award negotiations there. How do you reckon that will go?