Get your own ideas!

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Published: Monday, 28 August 2017 13:15

On 26 July the last depaNews was published proposing cutting councillors out of development assessment. We gave plenty of good reasons and dared you all to give us three good reasons why councillors should have anything to do with considering a DA.

We didn’t receive one good reason. And that included us broadcasting the issue to the board of LGNSW who, neither collectively nor individually, could come up with a good reason and convey it to us. They were speechless.

In the interests of disclosure though, one of our members provided two good reasons - first, “because it is so often immensely amusing” and second, because “they make planners feel smart”. Yes we know, that really goes without saying, doesn’t it.

But clearly we started something didn’t we. The following day the Government made two announcements about local government.

The first, and most relevant to what had been an unshakeable commitment by the NSW Government while Mike Baird was Premier, was to announce the abandonment of those amalgamations that were pending and the subject of a variety of litigation. Not for Gladys any conviction when it’s unpopular, if it’s unpopular then it’s time to abandon it.

And we would assume that because the legal challenges were primarily about the failure of the Government it was never going to end well. Who needs to get rolled in the High Court because the authoritarian bureaucrats in the Department of Premier and Cabinet insisted the financial analysis in the KPMG report had to be confidential, raising issues of procedural fairness. And potentially the same bureaucrats couldn’t find the right part of the Local Government Act to amalgamate one local government area and the remainder of another, once a section was “excised“ from Hornsby and given to Parramatta City. Not a lot of smart people involved in those decisions.

And the second, and most relevant to our proposed course of action, was the announcement that Cabinet that day was going to consider “stripping councils of DA approval powers”. While the Herald did claim that it would be “reconsideration” (because there had been rumours of this occurring back in May but the Government not having the appetite for it) that doesn’t really count.

The expose in the Sydney Morning Herald about the ongoing ICAC investigation into planning decisions at the former Canterbury Council was the catalyst. The Government had to think again about the issue but with a reasonable expectation of some kind of emotional support from the Opposition. As the Herald made clear, those planning decisions, rejecting the recommendations of staff, were made by an untraditional alliance of ALP and Liberal councillors - add a couple of floors here, blow out the floor space ratio there, on and on.

But, that will teach us, next time we’ll shred all of those brainstorming documents we have about building a better world now we know they go through our recycling.

The Herald was right, Cabinet did consider establishing IHAPs on 27 July but the decision was deferred - they say, to allow consultation with the developers (that is, the Property Council), the ICAC and local government. Whether they did, or whether they didn’t, the Minister for Planning and Minister for Housing Anthony Roberts and the Minister the Local Government Gabrielle Upton were able to jointly announce on 8 August that IHAPs would be introduced for Sydney councils.

The Government claimed that Wollongong and 15 Sydney Metropolitan councils were already voluntarily and successfully using IHAPs and the Bill to be introduced into parliament would make it mandatory for all councils in the Greater Sydney area and Wollongong, because Wollongong wanted to be part of it.

While a real independent IHAP would be a qualitative and significant improvement in the assessment and consideration of DAs, and where we are entitled to expect significant levels of acceptance of the recommendations of planning staff, just who the Government thinks will be “independent” enough is their next challenge.

Look out, the ******** and ********* might be back...

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Published: Monday, 28 August 2017 13:15

Oh no, it’s now less than two weeks until the local government elections. All manner of boofheads, corruption-allegers, one issue zealots, closet developers, lying developers, and the self-interested are lining up. What a pleasant respite it has been for those in the merged councils. Administrators taking notice of staff recommendations and adopting them, no councillor pressure, no councillors failing to declare their property interests, none of the things that give local government a bad reputation.

We understand the complications of being involved in the assessing of DAs. For every successful applicant there are invariably unsuccessful objectors and that creates a pool of people interested in getting even. And vice versa. Despite Codes of Conduct we know councillors pressure staff, threaten staff and try to have staff members sacked.

depa and its members have now for more than a decade taken action to support members against unreasonable treatment of councillors. We first placed a ban on a councillor in 2000 at Parramatta where the boofhead in a public meeting bagged a couple of our members. We extracted an apology. We’ve taken similar action at Mudgee and Nambucca against developers, at Eurobodalla against a councillor, bans were placed on certain work at Parramatta again in 2009 and last year against the recidivist councillor who may well be back after 9 September (but at Cumberland, so at Parramatta they can breathe easier) and we will continue to do so.

If you’re reading this but not a member, it’s time to get on board. Being a professional working in local government is far too unpredictable to be doing it without our protection.

Are you okay?

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Published: Monday, 28 August 2017 13:15

We’ve had members suffering from anxiety and depression about their work and personal lives and been involved in assisting those members at work on many, many occasions. We’ve now had one Council accept a workers compensation claim from one of our members based on harassment and bullying by management, and we know that many of you suffer - and often suffer alone.

Most people who know someone who has suicided are shocked and surprised. They wish they had asked the right questions.

RUOK? began in 1995 when a bloke called Barry Larkin, a much-loved father, took his own life, devastating his family and friends. The family, his son in particular, started the movement to get people to look after each other a bit better. It’s RUOK? Day on 10 September, so you should ask someone at work.

But there is a more personal option affecting our members.

Walk and Talk is an initiative by some members to get people together for a casual one-hour walk to talk about mental health and suicide, to encourage conversation and listening between people to avoid suicide and try to reduce mental health issues.

The event was triggered and organised by a group of building surveyors, EHOs and planners who lost a popular, well-liked and valued friend and colleague to suicide in the last year. depa is only more than happy to assist and publicise the initiative and the event. He was a member of ours as well and we only wish we could have helped.

Here is the full page invitation but in short, if you think you could do with the comfort of this kind of experience or you’d like to provide a comfort of your own to those who may need it, or you could do with a walk and some conversation on a Saturday morning, be at Parc Menai down in the Shire at 9am on Saturday 24 September. It’s not a fundraiser, it is a great mental health and wellbeing initiative.

And I will see you there.

“Like a dog returning to its vomit…”

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Published: Monday, 28 August 2017 11:37

Greens member of the Legislative Council David Shoebridge summarised the decades of messy planning law considerations by the NSW Government in the second reading speech for the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017, on 9 August:

This Parliament is like a dog returning to its vomit when it comes to planning laws; it just keeps going back and looking at the same ugly mess that previous governments have made.

Hard to argue with that. And for those of you who think it a little unseemly to be publishing a quote about dogs’ vomit, and because we take our responsibilities seriously to educate people in depaNews as well as entertain, inform and prepare you for Trivia nights, the full quote comes from the Christian Bible - Proverbs chapter 26 verse 11, to be precise. While older versions of the book regard the dog and the fool as male, the modern versions make it less gender specific:

As a dog returns to its vomit, so fools repeat their folly.

Here is a link to David Shoebridge’s speech. It’s a great speech.

While the Government’s legislation went through both Houses unamended, the critical issue is going to be how these IHAPS work and how the Minister for Planning, who will be responsible for managing the membership of the Panels, will do that in a way which provides true independence.

In the Media Release issued on 8 August the two Ministers reveal an anxiety about a conflict of interest for the “council or developer” driving this proposal but there seems little concern for managing “independent” members of IHAPs to ensure that they don’t have a conflict of interest either. It will be difficult for members of IHAPs, consultant planners, architects, heritage experts or whatever to not be keeping a wary eye out for future client needs as these DAs roll across their desks.

But we have a suggestion to make. depa is well placed, drawing upon the expertise of planning staff across councils in NSW, to be able to assist the Minister for Planning in making these decisions. We would happily participate in consultation with the Minister, feeding in any information we may have from our members about proposed members of Panels, their connections to developers, any slavish servitude to the Property Council, previous whiffy clients, or whatever. We should have a right of veto, just like members of the Security Council at the UN do.

We’ll put this proposal to the Minister and see what he thinks.

The community must be confident about the independence of these experts making decisions. While our proposal for council staff making the decisions is built on the assumption that Council employees don’t have a vested interest in whether development proceeds or not, just whether it complies with the planning instrument, we need the same assurance for these independent panels.

It’s a reasonable concern that on a four person panel, if there are to be three “independent expert members”, that they are really independent experts. A fourth member is intended to be a local representative within the LGA “to provide local perspective,” whatever that is. The reality is that the local perspective is provided by the planning instrument. At least councillors are prohibited from sitting, the Government clearly having a concluded view about the value of elected representatives providing a local perspective

The two ministers announced that IHAPs members “will have to be expert in one or more of the following fields: planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism, or government and public administration.” At least membership of the Property Council or the Urban Design Institute is not a pre-requisite, so it could be worse. They could probably scratch out economics and tourism from that list – a bit too close to the market and a step away from understanding planning instruments.

But Councils already have employees considering and assessing DAs with those skills, experience and background. The Government has the numbers, the rollout will proceed but we will be keeping an eye on who the Minister endorses as members of Panels and keeping a record of how they deal with staff recommendations. Let’s see if they’re any better.

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.