Broulee: Question On Notice seeking answers

QON21/005 LAND CLEARING AT BROULEE – Lei Parker July 27th 2021


Councillors,


When I left Papua New Guinea to come to Australia my father offered what advice he could to a son leaving his home, and his country, to discover a new land and culture. One of the gems that he offered was “Don’t believe in all that is said or written. Look to what isn’t being said or written. That is where you need to look. Then work out what they aren’t telling you and why.”


In a response by Mr Lindsay Usher to questions raised by Councillor Mayne he states:


“It has previously been acknowledged that whilst Council, in November 2003, adopted the PoM and resolved to ‘reclassify the operational land at the corner of Broulee Road and Clarke St (Part Lot 9 Sec 19 DP 758168 and Part Lot 8 Sect 19 DP 758168) as community land’, such resolution was unfortunately not implemented by staff at the time.


“Staff are continuing to investigate the matter and will brief and bring back a report to Council at the earliest opportunity so that the appropriate recommendations containing the required decisions of Council can be correctly and formally endorsed.”


From the above response it is clear that there is more left unsaid than said.


Just what does “so that the appropriate recommendations containing the required decisions of Council can be correctly and formally endorsed” mean?


It is clear that Council is still of the opinion that Lots 8 and 9 of DP 758168 (now consolidated as Lot 89 DP 1093710, 75 Clarke Street, Broulee) are ‘Operational’ until further investigations are completed.


Council’s justification for clear felling of the unformed road reserve was “such resolution was unfortunately not implemented by staff at the time”. Now they have their sights on the two blocks remaining. Now Council have their sights on the two blocks remaining. Will staff use the same “Unfortunately Not Implemented” ploy?


A reminder to you:


On May 18th 2021 Council advised the Broulee Mossy Point Community Association:


"A search of Council records has revealed the Council resolution from 25 November 2003 for these parcels to be classified as Community Land. This classification was not reflected in Council's database of land classification.


“Council had been considering the use of this land in the belief it was operational land but its use is no longer under consideration given the above confirmation that it is community land. Council's database is being amended accordingly"

In Council’s Media statement 29 June 2021 it very clearly stated:


“A corner portion of the block nearest the Broulee Road and Clarke Street intersection, around 900 square metres, is community land and Mr Usher confirmed the trees and vegetation there remain untouched.”


“While the road reserve was identified in 2003 to be added to the community land parcel, this did not take place and came to Council’s attention only recently.

“Action to turn the road reserve into community land is now underway,” Mr Usher said.

Today Councillors, the response before you is advising that Council staff still believe that Part Lot 9 Sec 19 DP 758168 and Part Lot 8 Sect 19 DP 758168 is Operational.


Read it again for yourself and read every word:


“It has previously been acknowledged that whilst Council, in November 2003, adopted the PoM and resolved to ‘reclassify the operational land at the corner of Broulee Road and Clarke St (Part Lot 9 Sec 19 DP 758168 and Part Lot 8 Sect 19 DP 758168) as community land’, such resolution was unfortunately not implemented by staff at the time.


Why would Mr Usher be so clear in May and in June about the land having been proven Community to then suggest that it is Operational and that “Staff are continuing to investigate the matter”.


The reason? The intent is to sell the land and to find whatever legal loophole they can to do so.


In order for Council to sell the land Council will have to prove to the community that the land is Operational and show how it came to be so.


The vacillations of Mr Usher indicate that Council is having difficulty telling its backside from its elbow.


In order to assist:



Councillors,


On the 28th of January, 1997, the Eurobodalla Council adopted a PLAN OF MANAGEMENT Natural Areas and Undeveloped Reserves


NOTE that this 1997 Plan of Management is located on Council’s own website and available to both Mr Usher and his investigating staff.


https://www.esc.nsw.gov.au/__data/assets/pdf_file/0018/137070/undeveloped-reserves.pdf


Contained within that plan were two parcels of land being


Lot 9 of DP 758168 and Lot 8 of DP 758168


Note that PIN Number 4701.650 says it adjoins 4704.20. Note that 4704.20 gives a location of Grant Street. In 1997 the road construction segments for Grant Street started at George Bass Drive for the sake of the Eurobodalla Roads data base.




Please pay particular attention to the detail printed in the footer below:.




This extract of the adopted 1997 Plan of Management was printed in June 2001

https://www.esc.nsw.gov.au/__data/assets/pdf_file/0018/137070/undeveloped-reserves.pdf


Note the description of the ADOPTED 1997 Plan of Management and its reference to Community Land. This Plan of Management came into being as it was a new regulation that required Council’s to identify all Community and Operational Land.


The information in the extract was sourced directly from Council’s own Reserves database. The pdf on Council’s website listing Community reserves is derived from that data base. I should know as I was the one who extracted it.


Council’s database of Reserves was created by myself, and managed and updated as per the requirements of the Local Government Act and Australian Accounting Standard AAS27.


I retired from Eurobodalla Council in August 2007. On retiring I placed a backup copy of Council’s databases in Council’s safe should the next Asset Management Officer compromise the data set. These backup files should also be located on Council’s own backup archive.


You will find that, in the Reserve Database backup files of 2007, both lots are present and both are Classified as COMMUNITY.


The Category Descriptions applied to Lot 9 Sec 19 DP 758168 and Part Lot 8 Sect 19 DP 758168 in 1997 and 2001 show it as GUD - GENERAL COMMUNITY USE – UNDEVELOPED and NB - NATURAL BUSHLAND

These CATEGORY DESCRIPTIONs were created by me.


I was the Eurobodalla Council Asset Management Officer for Eurobodalla Council until 2007 and I can advise you, that the information I present to you in regards to Lot 9 DP 758168 and Lot 8 DP 758168, as recorded in Council’s own records, up to 2007, is correct.



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Prior to Council shelving the in Reserves Database and opting to purchase Technology One and migrate all the asset data across to a new platform and GIS the records clearly coded that Lot 9 DP 758168 and Lot 8 DP 758168 were classified Community.


Therefore the statement made in 2003 that the two lots were Operational is FALSE.



In order for the two blocks to be reclassified from Community to Operational the Council would have had to write a report, receive submissions, have a public meeting chaired by an independent and then vote to reclassify the land.


This never happened. In order for Council to proceed in selling the blocks it MUST prove that the blocks were reclassified to Operational between June 2001 and November 2003. Councillors, Mr Usher stated : "A search of Council records has revealed the Council resolution from 25 November 2003 for these parcels to be classified as Community Land. This classification was not reflected in Council's database of land classification. As I have clearly advised, as an expert on the matter and a custodian of the information at the time, that the classification of the land WAS reflected in Council's database of land classification in 1997, and remained so until August 2007 as can be verified by the document on Council's own website and by the archive of the Reserves database I placed in Council's safe and saw archived to Council's backup tapes. Knowing full well that the land was Community up until 2007 I now suggest that Council provide the community evidence of when Lot 9 DP 758168 and Lot 8 DP 758168 became Operational as they suggest this status remains "under investigation". Councillors, as the two blocks were already classified Community under the 1997 Plan there was no need in 2003, nor is there any need in 2021 to undertake the action instructed in that “The land at the corner of Broulee Road and Clarke Street be re-classified as Community Land and remain as bushland.” To add further to the evidence that Council KNEW the land was Classified Community they gave permission in June 2004 for the erection of Landcare signs to “Give Community awareness of Community Land”


Note that the instruction was for two signs to “Second sign facing roadway. First Sign at rear facing Private Land”


Neither Ms Lenson nor Mr Hutton would have signed the permission if the land was not classified Community.


By this evidence alone it is clear the land was Community in 1997, 2001 and in 2004. By this fact alone based on evidence in Council’s own records it is obvious that the Property Manager was in error in November 2003 when he advised Council that the two parcels were Operational.


Why would Council consolidate both parcels of land into a single block?


There are no records in Council’s archives as to who directed the consolidation of consolidated Lot 9 DP 758168 and Lot 8 DP 758168 into Lot 89 DP 1093710, 75 Clarke Street, Broulee.


Why was it done?

The possible reason behind the consolidation was that both lots 8 and 9 were below minimum lot size for sale. The first appearance of Lot 89 DP 1093710, 75 Clarke Street, Broulee in Council’s records was in 2015.


Consolidation would mean the new larger block could be sold as a house block. Council had already ensured this by zoning the land residential and including it in the biocertification boundary.


The Council might then have processed the consolidation as a new acquisition. Council’s files will clearly document exactly what was done, when it was done and why. All a Councillor need do is ask.


To initiate the investigation I ask:

“Can Council advise when they consolidated Lot 9 DP 758168 and Lot 8 DP 7581 into Lot 89 DP 1093710, 75 Clarke Street, Broulee and what file number is the reference for this action by Council?”.


I await your timely response unless you demand I lodge a GIPA request. Please advise.


I remind Councillors:


The LOCAL GOVERNMENT ACT 1993 - SECT 31

Classification of land acquired after 1 July 1993 clearly states that


Any land acquired by a council that is not classified under subsection (2) is, at the end of the period of 3 months referred to in that subsection, taken to have been classified under a local environmental plan as community land.


A council must not resolve under this section that land be classified as operational land if--


(a) the land is classified as community land immediately before its acquisition


Reading between the lines and listening carefully to what is not being said it is more than evident that Council intends to sell Lot 89 DP 1093710, 75 Clarke Street, Broulee and will do all it can to suggest it is Operational.


Before doing so Council MUST prove that the land is OPERATIONAL, and that requires evidence of a report and a Motion from Council that clearly identifies the land and clearly identifies the reclassification.


Fortunately the Act provides that only operational land can be sold, and if an area of community land is identified as being surplus, the land must first be reclassified to operational prior to that sale proceeding.


The process of reclassification must be undertaken in accordance with the Environmental Planning and Assessment Act 1979. www.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/


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