The Dalmeny Land Controversy, The NSW Planning Minister And Unlawful Resolutions

The Beagle Editor,

It will be very interesting to see how Council will react, if at all, to Planning Minister Rob Stokes’ view on the proposed sale of more than 40 ha of public land at Dalmeny. According to The Sun-Herald Mr Stokes has said that “the Eurobodalla [Dalmeny] land sale was one project that should not go ahead … At a time when this government is giving out millions for councils to invest in public spaces, it seems tone deaf for a council to be selling pristine coastal bushland that’s already in public ownership.” Our council, “tone deaf”! Really?!

In two words, Minister Stokes has summed up how our Council responds to the views of the community it is meant to be serving: Tone Deaf.

The postponement of council elections until 4 December is a cruel blow indeed. First the fires, then the floods and then, and still, Covid, then the year-long postponement of the council elections and now a further 3 months to wait for the chance to get rid of this mob (not including the Black Sheep of course). But, I feel sure that for the first time in a very long time, real, positive change will come to the Eurobodalla, never mind that we have to wait that little bit longer.

Now, to the question of the lawfulness of the Dalmeny Land Sale Motion carried by a majority of councillors on 13 July.

The point has been made previously but is repeated as a reminder: given that by section 377 (1) (h) of the Local Government Act 1993 (the LGA), the sale of public land can only be effected by the Governing Body (being the councillors), it is not possible to delegate the authority to approve such a sale, to the GM or to any staff member.

However, at parts 2 and 3 of the 13 July Motion, a majority of the Governing Body gave approval to staff to do all that is necessary to “enact the sale” and to “affix the Common Seal of Council”. That is to say, they gave approval to sell the land IN ADVANCE OF ANY KNOWLEDGE OF THE SALE PRICE. In fact, it is almost certain that they gave that approval without knowing what the valuation figure was, or knowing any other information contained in the commissioned valuation report. On being asked by Councillor McGinlay for the valuation information, at a briefing session on 15 June, the GM refused to provide councillors with it – in clear breach of s335 (f) of the LGA. Councillor McGinlay then followed up with a written request and was then ‘allowed’ to look at the valuation document in the GM’s office, a week later, with the GM present! I think it’s fair to assume that other councillors did not go through that process.

So, six compliant councillors simply gave their authority to sell the land, to the GM, having absolutely no idea of what the proposed sale might mean for Council, as far as securing the best possible value from the sale of public assets is concerned.

Imagine if anyone of us gave approval to another person to sell our own land, without knowing what it was worth or how much would be received from the sale, with there being no need for that person to come back and say, “We have been offered $X, do I have your approval to go ahead?”. But that is exactly what has happened here. And it’s more than an irresponsible madness to do this, it is actually unlawful for councillors to make such decisions.

S 232 (1) (b) of the LGA requires each councillor to:

“make considered and well informed decisions as a member of the governing body”

This requirement is just that. It is not a suggestion or a guideline. It is a legislated, mandatory requirement placed on each councillor. But the majority of this council have for the past 5 years remained wilfully ignorant of their obligations under the LGA, including their oath, being not worth a cent. And nothing has ever been done about these constant, flagrant breaches of the law. Ignorance and apathy abound.

And there are the Guiding Principles set out at s 8A of the LGA. But who, of the mob, would even know about them, let alone comply with them: “Councils should carry out functions in a way that provides the best possible value for residents and ratepayers.” Etc.

In the absence of critically important and highly relevant information, in making their decision on 13 July, councillors failed utterly in complying with the very specific requirement of the LGA to make “considered and well informed decisions” and given this breach of the LGA, the decision is in my view, unlawful. Unfortunately, the next council term is now much further off and there remains the real likelihood that staff will push this sale through. Let’s hope Minister Stokes steps in. Peter Cormick

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