The agenda for Tuesday
As far as the volume of material is concerned, the agenda for Tuesday’s meeting is as big as they come. Along with the associated papers, it comprises some 490 pages – and that covers just those available to the public. There are a further, unknown number of pages included for councillors’ eyes only.
But most striking about the agenda is that the draft Delivery Program (for public exhibition), along with councillors’ response to the recommendations from the Citizens’ Jury is not there. Nor is the draft of the Community Strategic Plan – the ‘plan of plans’ - that overarches all that council does.
But given the volume of material that already exists, and the need for the DP and the CSP to be given close attention by all concerned, it is a good thing that they have not been included in Tuesday’s agenda. If only the 14 March meeting had been moved to another day and not cancelled!
Given that there has been an understanding since mid last year that councillors’ response to the Citizens’ Jury recommendations would be made in March this year, I would hope that some explanation for its absence from the agenda will be given by the Mayor – or General Manager.
The agenda items that catch my eye are:
Item MR17/002: General Manager’s Performance Review Committee (page 4)
Item NOM17/004 Licence Applications and Selective Tendering Process (page
Item PSR17/008 Environmental Planning and Assessment Act 1979 Proposed Amendments (pages 11-33)
Item PSR17/009 Tomakin, Mossy Point, Broulee and Mogo Flood Study (pages 34-41)
Items DR17/001-3 Delegates’ reports on conferences attended (pages 163-184)
On a scan of the balance of the agenda I am not struck by anything in particular and in any event I simply don’t have the time to read through it all!
But first - Matters arising
I will address the nominated agenda items shortly but before doing so, I would like to refer to a couple of matters arising from previous Council Matters: Council’s Noticeboard and the issue of a dog park at Batemans Bay.
As described in the 18 March Council Matters, Council had not been providing its Noticeboard on its website (for some time) but, instead, has been providing it only to the local papers (Baypost/Moruya Examiner and Narooma News), at a cost to the community – and leaving The Beagle out of the distribution. Hence, The Beagle produced a copy of the Noticeboard and provided it, free, under the name of the “Unofficial Noticeboard”. But, to our delight, council has very recently re-commenced providing the Noticeboard on its website. This is a sensible decision for which council should be commended.
The other matter concerns the issue of (the need for) a dog park in Batemans Bay. Both the 18 and 19 March Council Matters provide hard evidence of the effectiveness of The Beagle in bringing matters to the public’s attention. This has been enabled in no small part by the enormous energies and talents of our most prolific blogger, JdJ. If anyone can keep an issue alive – almost endlessly – it is him. His particular style, which can be described variously as informative, boots ‘n all, breathless, sarcastic, witty, acerbic and sometimes reducing to name-calling – is almost always entertaining, and in this matter in particular has significantly helped keep alive the cause for a dog park in Batemans Bay; and for that I thank him.
And now, to the agenda:
General manager’s Performance Review Committee
The first cab off the rank is the Mayoral Report, item MR17/002 GENERAL MANAGER'S PERFORMANCE REVIEW COMMITTEE (at page 4)
As described in the Mayoral report, this matter – of the General Manager’s Performance review panel – was first brought before councillors on 11 October last year, as part of a report by the General Manager. At that time, the GM recommended to councillors that they approve a review panel comprising the “Mayor, Deputy Mayor, 1 councillor. (optional 2nd councillor can be nominated by General Manager)”. And, of concern to me, at least, this significant recommendation was buried in amongst a very long list of committees, including external and advisory committees. It took a keen eye to spot this entry in the Trojan Horse report. In the event, the recommendation for the review panel was focused on and debated.
In response to the relevant requirements of the Local Government Act, my public forum presentation on this matter suggested several options, including that all nine councillors form the review panel or that the vote be deferred. We subsequently learnt during the meeting that the matter had actually been discussed prior to the meeting, when it was decided that it would indeed be deferred. And so now, more than 5 months later, the matter has been brought back into the chamber - this time by the mayor, as it ought to be.
We are now told that the deferral occurred in order for councillors to “consult with the General Manager” and that “Discussions have since occurred, with the General Manager, on the committee composition and it is considered appropriate to include all Councillors on the review panel”. It is now “considered appropriate” – by the General Manager?!
Five months is a long time to be consulting; and from this wording it would appear that councillors believed that the GM’s agreement was necessary. In fact the report goes on to recommend that the panel – of all nine councillors – include “an independent facilitator ... under mutual agreement of the Review Panel [the councillors] and the General Manager. That’s quite something, for an employee to have such a stake in his or her own performance review process. Does “independent” mean that the facilitator will be unknown to the GM? What does “independent” mean in this context?
Section 223(1)(i) of the LGA, which sets out the role of the governing body (ie the councillors, together), has this to say on the monitoring of the GM’s performance: “[the governing body is] to determine the process for appointment of the general manager by the council and to monitor the general manager’s performance”
And section 226(n) of the LGA, which sets out the role of the mayor states that: “in consultation with the councillors, [the mayor is] to lead performance appraisals of the general manager”.
So, the governing body (being all of the councillors), lead by the mayor, is to “monitor the general manager’s performance”. Never mind the terms of the GM’s contract, the LGA itself requires a review of the GM’s performance, as and when the governing body decides. There is absolutely no mention of the GM’s involvement in the process; but that is what this mayoral report is seeking approval of. Of course, if councillors are of the view that the GM ought to have a say in who the independent facilitator is to be, then they can of course do so. But there is no obligation to do so.
And finally on this item, the report states that “In the past, Council has established a Review Panel comprising the Mayor, Deputy Mayor and one other Councillor. This structure has proved effective as it provides a better forum for constructive comment and feedback”. I have no idea how the mayor could hold this view: that the previous arrangement provides a “better forum”. The new approach has not yet been tried. In any event, as I have argued previously, the relevant sections of the LGA, including section 232(2), require all nine councillors to take part.
Tendering process for use of council-controlled land
The next item to be considered is NOM17/004 LICENCE APPLICATIONS AND SELECTIVE TENDERING, being put forward by Councillor McGinlay.
I addressed this item in general terms, before the wording of the NOM became known, in the 26 February Council Matters, where I said that, in relation to council’s Expression of Interest (EOI) advertisement:
“This [tendering] process is one ‘created’ by a council resolution on 8 December 2015 (see pages 135 to 147 of the agenda for that meeting). That resolution has since been under constant and considerable scrutiny, to the point of its legitimacy being called into [serious] doubt. For a start, councillors did not in fact approve the schedule on which the current Code of Practice rests – as the minutes of that meeting will attest (see page 27) – even though council approval is required. As well, the Code itself was simply ‘noted’ by councillors, not approved. Staff have, incorrectly insisted that the creation of the Code was an ‘operational’ matter and nothing to do with policy formulation – [being] the province of councillors. And yet further, the tendering process that the Code relies on when there might be a contest for the use of the land is completely flawed and at direct odds with the relevant legislation. Refer to section 55 (3) of the LGA. This matter is far from resolved and it is therefore clearly not appropriate for council to proceed with this EOI process, until it is resolved. To make clear just how inappropriate a tendering process is, imagine hockey teams and football teams vying for the use of the same land at the same time, and finding themselves caught up in a tendering process!”
There is no question that the Code of Practice is not only not appropriate, it is just plain wrong. There needs to be an alternative method by which competing bids can be decided. Not only is the code in question at odds with the relevant legislation, it in no way provides for the transparency it is claimed to enable - since a tendering process is confidential and not available to the public.
If councillors really do understand just how flawed the Code of Practice in question is, they will be obliged to vote in favour of Councillor McGinlay’s Notice of Motion. The recommended alternative methodology would require staff to assist in refining it – so that councillors would be able to work to a ‘score card’ that would, presumably, enable a final score to be produced.
Proposed amendments to the Environmental Planning and Assessment Act 1979
The next item that has caught my eye is PSR17/008 ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 PROPOSED AMENDMENTS
This report to councillors seeks their “endorsement” of the draft submission to the NSW Department of Planning and Environment. I can’t help but wonder at this use of the word “endorsement”. Not quite as strong as “approval” – which, after all is what is required.
The DPE has placed the proposed changes to the EPA Act on exhibition (until 31 March) and staff have clearly put an enormous amount of work into both the report and the draft submission. It would take an almost equivalent amount of work to do justice to a critique of the report – and that is simply not possible at 11 pm on a Sunday night. Nonetheless, on flicking through the draft submission (pages 23 to 33 of the agenda) I can agree with much of what is said but, for example, find objection with staff’s opposition to the proposed mandatory 14 day public exhibition period for development applications and I am surprised to see that council suggests that the DPE focus on “matters of importance such as the use of environmental zones and overlays in Local Environmental Plans (LEP)” - rather than continuing to tinker with the EPA Act, which has already undergone about 150 amendments since its inception in 1979. The matter of overlays is surely not settled. I don’t know what status overlays might have if incorporated into an LEP but unless they are absolutely reliable then, as they relate to property boundaries, they really need to be kept separately and relied upon as being only indicative instruments rather than prescriptive.
The report on this item, PSR17/009 TOMAKIN, MOSSY POINT, BROULEE AND MOGO FLOOD STUDY, really is a most impressive one. It is extremely thorough and beautifully presented - and, in my view, everyone involved in its production ought to be commended by councillors
The report by WMA Water and the beautifully prepared and presented accompanying maps are worthy of close study for those who want to know just where flood waters might venture in the area in question – according the various Average Exceedance Probabilities (AEPs).
And for those of us who want to know just what councillors (and staff) achieve when attending the various conferences - that are sometimes unkindly referred to as junkets - we have a few delegates’ reports to read through.
As I have said before, it is my view that it is important for councillors to take every opportunity to attend relevant conferences, to increase their knowledge of local government matters and to develop networks, in order to further increase their knowledge and effectiveness as councillors.
It’s almost midnight and so I will look at the reports on another occasion!