The shire is facing an urban expansion at every turn with more than 2000 new blocks preparing to come on to the market once development approvals are given.
The Sunshine Bay estate land clearing set in motion what was to be witnessed in Broulee with Dalmeny, Rosedale and Tuross Head soon to follow.
Developments are not vegetation friendly as we have recently discovered.
More alarmingly the community has also discovered that Council staff may well have contributed to the needless destruction of a section of habitat in Broulee based on incorrect information.
While Council claim what they did was "legal" the facts indicate otherwise.
It appears that Council staff may once again have crossed the line in their authority and may have, once again, failed to comply with directions, Acts, Policies and guidelines.
The following is a presentation to be made to Public Forum at next Tuesday's (July 13th 2021) Council meeting.
Good morning Councillors,
Last week I thanked you for being one of the reasons why The Beagle, Eurobodalla’s independent news outlet, was established.
The Beagle has followed you in your five year term as Councillors and often called you out for failing to represent your community.
For the past five years you have been openly condemned by the public for your failure to communicate or consult with your community. You have been criticised for your failures around openness and transparency and for keeping the community in the dark under the veils of secrecy you have used to ensure the community remained in the dark.
All too often you were condemned for the excessive use of “Commercial in Confidence”.
As a majority vote, you have done your best to alienate the community by undermining Public Access and Public Forum and your community engagement strategy of Information Kiosks rather than public hall meetings is nothing less than a tool to further control your narrative.
But you are not solely to blame.
In your five years it has been revealed all too often that you, like your community, were unaware of what Council staff, under your delegation, were doing.
The example I raise today is the recent needless and unlawful clearing of community land Broulee.
Councillors, you were not aware that Council staff had given authority for the unformed road reserve at Broulee to be cleared.
The staff most likely didn’t advise you because it was an “Operational Matter”.
The first time you became aware of the clearing was during the event when Councillor Mayne called an Urgent Matter seeking explanation only to be fobbed off to remove further discussion from the public eye.
But Councillors, your staff were fully aware of the bulldozers.
Council is very much like a Grandfather’s Axe. While the shaft has been replaced four times and the head twice, it still remains “Grandfather’s Axe”.
For the past forty years I have seen a high turnover of Councillors and staff come through these doors. But the processes of governance always remain, irrespective of the faces. Council is a Grandfathers Axe and you, and your delegated staff are transitionary.
In 2003 the Council staff of the day were told to proceed in closing an unformed public road and transferring a portion of it to a Plan of Management.
This was an absolute instruction by the Council of the day to staff of the day. But the staff did not do as they were told.
The Unformed Road Reserve adjacent to The Triangle was not closed and the section known as Block 3 was not extracted and made Community to be included in the Plan of Management for Broulee Reserves.
Irrespective of the time that has passed, this action, directed by Council in 2003, remains unfinished. Therefore the intention of the Council of 2003 remains unchanged.
In 2003 staff were also told that two parcels of land (The Triangle) in that Plan were to be clearly identified as Community. Oddly they were already classified as Community as per the Plan of Management for Natural Reserves 1997.
Note the following table – published on Council’s website and printed in 2001.
https://www.esc.nsw.gov.au/__data/assets/pdf_file/0018/137070/undeveloped-reserves.pdf
As the Council’s asset officer at the time I can advise that Lot 8 and 9 of DP 758168 were Community Land and that it was recorded in Council’s asset data base.
Those two parcels became one, known locally as The Triangle.
By 2012 the two parcels were consolidated into Lot 89 DP 1093710, 75 Clarke Street, Broulee. We know this date from the reference made in the ELEP 2012 Amendment No. 10
https://www.esc.nsw.gov.au/__data/assets/pdf_file/0004/148459/Attachment-Eurobodalla-Local-Environmental-Plan-2012-reduc.pdf
In that 2015 Amendment Council says “The subject land (Lot 89 DP 1093710 – aka The Triangle) is currently undeveloped and is subject to a Biocertification Agreement pursuant to the Threatened Species Conservation Act 1995.”
The 2015 document then makes mention of The Development Area saying “Within the development area there is no requirement to retain existing habitat features. However, in designing subdivision layouts and medium density developments, Council encourages, where possible and feasible, the retention of some habitat features, including hollow bearing trees.”
In regards to community outcry of the intent to clear the land referred to The Development Area, the 2015 document says “As the subject land is already zoned for residential development and the vegetation on the land has been approved for removal via a biodiversity certification process, the concerns regarding the loss of vegetation on the land are not directly relevant to the planning proposal.”
I remind Council that there is Zoning and there is Classification. Two totally different lables.
The Triangle might well be zoned R2 HOWEVER it is firstly Classified as Community. In the scale of things Classification always wins over Zoning.
Public land is managed under the Local Government Act 1993 (LG Act) based on its classification. All public land must be classified as either community land or operational land (LG Act ss.25, 26)
Because it is Classified Community this Council MUST consult with the community.
Why didn’t Council staff consult before they allowed the clear felling of an Unformed Road Reserve they knew to be Community?
Because they well and truly cocked up.
In September 2006 The Triangle was recorded on Council’s Reserves asset database as NRES (Natural Reserve) classified as Community. It was identified by Lot and DP number and a corresponding PIN that linked to Council’s GeniSYS system and MapInfo GIS.
I know because I was the one who first coded it in 1996 in my role as Council’s Asset Management Officer. The Community coded properties were registered in the Council’s Reserves database; a comprehensive database of every reserve and parcel of Community land in the Shire that I developed and nurtured.
But Council shelved that database when I retired in 2006 and decided instead to build a new one. It appears they failed to migrate the Reserve data. As a result The Triangle lost its Classification code and Council staff, primarily planners, from that point on, failed to do their due diligence, assuming the land was Operational.
It was at this point that the rot set in.
We then learn in 2012 that Council, in assuming the land was Operational, that Council planners began to include it in their visions of the Broulee Development area. They saw it on their new Geographical Information System coloured as zoned R2, and they saw it cross hatched in the biocertification exchange process that would justify it being cleared by way of an offset.
In 2012 the staff were already looking at The Triangle as playing a part in the urban expansion of Broulee. In more recent times, based on their assumption it was Operational, they approached the owner of the subdivision offering the land and unformed road reserve for sale.
There are no records of why the original two blocks (Lot 8 and 9) were consolidated into one (now known as Lot 89 DP1093710), however, we do know that Lot 8 was only 400m2 and Lot 9 was 600m2. With Council clearly intent on selling the lots in 2003 one can only surmise that between 2003 and 2012 Council consolidated the lots, assuming they were Operational, with an intent to sell, thinking a larger block would be more attractive.
Irrespective of the justification of consolidation, what we have is evidence that Council staff of the day actioned this consolidation, without Councillor direction, undertaking survey and registration, yet failed to action the 2003 direction of Council regarding the adjacent Unformed Road Reserve.
Councillors, you might not be aware of a meeting earlier this year between members of the Broulee Mossy Point Community Association and Council staff Dale, Usher and Sharpe.
The Association was advised that The Triangle was classified as Operational. The Association was advised it was going to be sold. The members of the Association advised the senior management (Dale, Usher and Sharpe) that they were mistaken and the land was Community. The senior management responded saying the Association was clearly mistaken.
Following evidence being provided to Council by the Association that proved Council wrong the Council wrote to the Association on May 18th, 2021 saying:
“Council had been considering the use of this land in the belief it was Operational”. Note that there is no apology. No “Sorry, we cocked up”. It appears that Council had considered “this land” Operational even before 2012 when they included it in the Biocertification Offset scheme that would have allowed “this land” to be cleared. The Council have long been of the opinion that “this land” is part of their Broulee Development Area. We see The Triangle in the 2015 ELEP amendment as being referred to as within “the Development area” with Council saying “Within the development area there is no requirement to retain existing habitat features.” It appears that Council also gave permission for the clearing of the unformed Road Reserve it now acknowledges as intended to be Classified as Community Land. believing that land to be Operational. Evidence of this assumption is made by their recent intentions to sell the land, that can only be done if Operational. The most disappointing aspect of all of this is the failure of Council staff throughout the entire process. This was not your failure Councillors. This failure rests solely on the shoulders of those delegated to act on behalf of the community and perform their duty. And all responsibility for the staff, their actions and inactions sit with the General Manager and her senior executive. Council staff failed to carry out an instruction in 2003. Council continued to fail to carry out a directive of Council for eighteen years. Council staff botched the migration of key property information from the EuroReserves database, and the GeneSyS data to TechnologyOne Council staff failed to apply due diligence to property research before adding The Triangle to the Biocerification Offset scheme. Council staff failed to apply due diligence to the Broulee Urban Development plan that subsequently identified Community land for development Council staff exacerbated their error of assumption by establishing an association between The Triangle and Unformed Road (yet to be closed and made Community) and the adjacent development that would see clearing carried out under a questionable APZ, and a new pop-up road re-design for Azure Avenue that had no public consultation, that is set to encroach the still incomplete Community land transfer process. Most disappointing of all though was the fact that Council were aware of the error of their assumption that the land was Operational on May 18th 2021. With senior management fully aware of their error of assumption they had five full weeks to advise the developer not to proceed in clearing the Community owned land. The senior staff had five full weeks to fathom that Council staff had not carried out the directions of a 2003 Council motion. But most alarmingly of all senior Council staff failed to advise the Broulee Mossy Point Community Association during their Executive in meeting with Eurobodalla Shire Council on 27 April 2021, that the APZ clearing that was to be carried out, under their authority, on the Unformed Road Reserve. I can only assume that the way senior Council staff have dealt with this stems from their stanch and unyielding belief that the land was Operational. Being made fully aware of their error for a full five weeks with an opportunity to have a full, open and transparent conversation with the community, this Council instead decided to do nothing. The degree of audacity of how this Council chooses to engage with the community can be seen in the recent words of the Director of Planning in regards to the Dalmeny subdivision on Council owned Operational Land determined for Urban expansion thirty years ago. There is no legal requirement to advise the community through public notice or to seek feedback through public exhibition of land dealings concerning operational land. The community has been consulted via past landuse planning and Local Environment Plan processes that have resulted in the land’s current zoning. It will be established that Council staff have cocked up and as a result a substantial section of endangered vegetation, formally identified in 2003 for its community importance, has been needlessly destroyed without explanation or apology. More than often we point the finger at Councillors for failing to act on behalf of the community, but in this case they too were as much in the dark, as we all were, but insidiously, five weeks before clearing commenced, Council staff knew well what was about to unfold and failed to act. And most importantly, they failed to advise you councillors, and they failed to warn the community. The very community they are meant to represent. Will there be any consequences? Not likely. There are most likely grounds to take Council to the Land and Environment Court however the cost in doing so will be met by the ratepayer and any fine will be paid for by the ratepayer. The best we can hope for is a genuine apology but somehow I doubt if that will be forthcoming based on the spin offered by Council under their media release of “Council confirms Broulee land clearing legal” issued on the 29th of June, 2021 that can only be described as ….. Councillors, I ask that there be an heartfelt apology be made to the Broulee community acknowledging that staff errors were made, and once again communication failed. I request that the General Manager, on behalf of staff, indicate a genuine regret in having failed to carry out the directions of 2003 that subsequently led to the needless land clearing in 2021, brought about primarily to an arrogance to intervene and stop the illegal (against legislation) clearing of known Community Land, though having five full weeks to do so. The trust that the community has for this Council is the lowest I have ever witnessed in 35 years. The blame sits on your shoulders under legislation but in this case, and the many other cases we are now seeing revealed, the primary blame for the distrust, the anger, the low regard the community has of Council stems from the actions of staff. It is widely considered that the current state of the community/Council relationship is toxic. The root cause has been your handing over of delegations. May the next term of new Councillors be more cautious of the distribution of delegations that you too easily gave away. Lei Parker
