Taking a stand against secrecy in planning
This is a story about what you can get dragged through when you challenge the system to stand up for what’s right.
It starts with a unsolicited proposal from the developer Meriton, who approached Marrickville Council with an offer to negotiate a Voluntary Planning Agreement (VPA). The proposal was for Council to receive $5 million in return for supporting Meriton going from 10 storeys to 20 storeys, with a corresponding increase in density, at their Lewisham Towers development.
When I tell most people the proposal there response is generally “That’s a bribe. That can’t be legal?”
However, it is legal. On 6 May 2005 the NSW Labor Government made these kinds of offers legal by legislating Voluntary Planning Agreements into the Environmental Planning and Assessment Act.
It’s no coincidence that this was at the height of developer donations flowing to the Labor Party. Between 2003 and 2007, the NSW Labor Party received $8,223,322 from the property sector. Meriton itself was one of the more generous donors, giving the Labor Party $226,050 during that period.
The proposal was presented to a Councillor briefing on 27 November 2012. We shared the information with a few people after the meeting, but thought the proposal so outlandish that it wouldn’t go any further.
I was wrong. On the evening of Friday 7 December Councillors received a ‘Supplementary Business Paper’. It was marked ‘confidential’ with a red cover and contained the Voluntary Planning Agreement proposal from Meriton with a decision as to whether Marrickville Council should enter into negotiations with Meriton.
Usually councillors receive the meeting papers on either Wednesday (or Tuesday night) leaving almost a week to read, consult and consider the agenda items before the Council meeting at 6.30pm the next Tuesday.
I was surprised that Council was seriously being asked to consider entering into a Voluntary Planning Agreement of this nature with such little notice and confused as to why the matter was deemed confidential by the staff preparing the report.
I emailed the Director of Planning, Ken Hawke at 12.23am 8 December 2012 asking:
“Can you provide more details on why the report on Meriton’s offer over the Lewisham Towers is confidential?”
I did not receive a response from Mr Hawke until 2.20pm 10 December 2012. The response stated:
“Meriton advised that they submitted their offer as commercially in confidence,We accepted this argument, hence the item being confidential”
I believed this respond to be inadequate. It is a central pillar of local government that planning matters are conducting in public. There is a high risk of corruption on planning assessment because developers can make very large profits through decisions such as re-zonings or increases in height and density.
VPAs have been identified by the Independent Commission Against Corruption as a particular risk because of the ‘wide discretion and flexibility available to planning authorities’. Indeed, the ICAC notes in its report “Anti-corruption safeguards in the NSW planning system 2012”: “The perception could arise that a developer bribed a council to facilitate a favourable decision. “
ICAC recommends transparency in planning assessment and decisions as a key to preventing corruption. It notes:
“Transparency is an important tool in combating corruption and providing public accountability for planning decisions. A transparent planning system ensures the public has meaningful information about decision-making processes as well as being informed about the basis for decisions.”
I had been fighting overdevelopment of the Lewisham Towers site since 2008 and helped start the No Lewisham Towers community group. Now I was faced with an outrageous planning proposal that was being dealt with in secret.
I was also conscious that certain Councillors tend to do one thing when the public is paying attention and another thing when they are not. This is particularly true about the Labor Party Councillors who have a record of approving overdevelopments, but are sensitive about needing to appear progressive to voters.
After discussion with my fellow Greens Councillors, I decided the public had a right to know what council was deciding on, that transparency was likely to result in a better decision, and that there was a high risk that if the matter remained secret, Council would enter into negotiations on a VPA that would be much harder to undo at a later stage.
The initial oral briefing had not been confidential, and some Councillors had already told members of the public about the proposal. So I decided to base public comments on what had been conveyed at the oral briefing rather than the written report. I informed the No Lewisham Towers residents group about the proposal and I informed the Sydney Morning Herald, which ran a story – Size does matter: council offered $5m to approve towers at double the height, and I did an interview on ABC 702 radio. I was also critical of the proposal being deemed confidential.
I knew that some Councillors would come after me, perhaps with a formal complaint, but I decided I wasn’t going to be complicit in keeping such an important matter secret.
There was public outrage towards the proposal, and also concern about the proposal being considered behind closed doors. A group of residents came to watch proceedings, but were ejected from the public gallery as the Council went into closed session.
In closed session the Council resolved to reject the VPA proposal. Mostly the debate involved other Councillors shouting at me and accusing me of “forcing their hand”. It was concerning that some Councillors clearly felt that they may have made a different decision if the item had stayed secret.
As I suspected, the Labor Party put in a formal complaint alleging that I breached the Code of Conduct for Councillors. Meanwhile the Greens put forward a policy to avoid VPA’s being dealt with in secret.
What followed was an investigation and report by an independent reviewer. A censure motion against me and a demand that I unreservedly apologise to Meriton and Council. I refused to apologise and I maintained I had acted ethically and in the public interest. You can read more about this here: Secret deals and censure motions.
The refusal to apologise was forwarded to the Division of Local Government for investigation. Almost a year later the Chief Executive decided to order my suspension from Council for two months for failing to apologise.
You can read more about this here: Councillor suspended for being honest.
I appealed by suspension at the Administrative Tribunal and won, beating the suspension and need to apologise because the Tribunal found that I had not breached the Code of Conduct at all!
The Tribunal’s decision is available here: Phillips v Director General, Department of Premier and Cabinet  NSWCATOD 48
It was only at the Tribunal, in front of a real judge, that I felt I had a fair hearing. Marrickville Council itself is too riven with politics and conflicts of interest, that the proposition that Councillors would judge the case on the facts is ridiculous.
Disappointingly the Division of Local Government turned out to be a very strange, rigid process. They seemed intent of rubber stamping the Council decision and enforcing obedience to the Code of Conduct rather than investigating the facts of the matter. Later at the Tribunal hearing they admitted they did not bother to look over the facts other than a cursory look to conclude things appeared “sound”. In their submission to the Tribunal they said actually reviewing the facts of a case:
“is a power that should be used sparingly, for to do otherwise would be infringing on the autonomy of councils and, from a practical point of view, overstretching the limited resources of the Office [of Local Government].”
The Division of Local Government was intent of forcing me to apologise. They did not care whether the apology was sincere or insincere. Indeed during the hearing Peter Barley, the lawyer for the Division of Local Government said: “you could have crossed your fingers behind your back and said sorry, and then you would not face this suspension.”
But I refused to lie to the electorate by making an insincere apology. Not only would it have undermined my own credibility, but it would have been unethical. Part of my reasons for appeal against the suspension was that s439(1) of the Local Government Act explicitly requires a Councillor to act honestly.
The Division of Local Government responded by bizarrely by redefining honesty as ‘obedience’. Responding to my argument that an insincere apology would breach the Act’s requirement to act honestly, they state that it is: “an attractive argument… but ultimately superficial.” The say that honesty “has shades of meaning” and that “acting honestly in certain circumstances involve adopting the standards of your peers”.
I found it bizarre that they wished to redefine honesty as obedience especially in a democratic system that by definition requires differences of opinion to be held and communicated. It was quickly becoming a Kaftkaesque situation.
The Tribunal Member, Judge Wayne Haylen, ultimately found that the way the Code of Conduct operates that my argument about honesty failed. (I won the appeal on other grounds). This makes me wonder what the point is of forcing Councillors to issue insincere apologies? It seems to me that an apology is rather pointless if it is not genuinely felt.
Judge Haylen put it to me during the hearing that what I had done was the equivalent to an act of civil disobedience and that the penalty for such an act was a suspension from Council. I have to admit that this threw me for a moment at the hearing. However, I do not believe that informing the public of an important planning matter was an act of civil disobedience. In fact I regard it as a core part of fulfilling my role as a councillor.
Ultimately Judge Haylen seems to agree with this view by finding that an apology was not necessary because I had not breached the Code of Conduct in the first place. For a variety of reasons he found that the information I put into the public domain was not confidential and therefore there was no breach of the Code of Conduct.
There is important points in the decision about the use of confidentiality. Judge Haylen notes:
“The report adopted by Council presumed that the material was commercially confidential in the way specified by the legislation because Meriton had stated that it wished the agenda item to be dealt with as confidential. That request accepted apparently by either the Planning Director or the General Manager did not descend into detail or identify the matters referred to in the Act. There was no evidence before the Tribunal as to the nature of the confidential material submitted by Meriton to the committee. Importantly, no one in the council independently turned their mind to the question of whether or not the material was confidential. An interested party clearly could not make that decision in their own interest but needed to present appropriate material to council to justify confidentiality of the material and in a way that reflected the legislative requirements for confidential status.”
This gets to the crux of the issue for an elected representative. We were confronted with what superficially looked like a technically correct process (red covered confidential papers), but below the surface was a dubious process with no real justification and with potentially serious consequences. At this point a representative can either go along with the system, or they have to pause and to think independently about what is in the public interest and to make a call on what to do.
Too many of elected representatives get absorbed into the system. They get captured by the rules and traditions and become another cog in the system. This is especially true on councils where Councillors are part-time and voluntary and can easily be led by experienced staff who control the information. Rather than a true representative, they become yet another administrator.
John Ralston Saul critiques the dominant role of the technocrat in modern society in his book Voltaire’s Bastards. His thesis is that technocratic systems get so caught up in their own systems of logic that they lose sight of common sense.
Challenging the status quo and shaking up the system are some of the important functions of the Greens in our political system. Ultimately the Tribunal vindicated my decision to go public with the information.
There will always be some need for certain information to be handled confidentially. However, too much information is deemed confidential in today’s society and it is too easy for bureaucrats or governments or others to default to confidentiality whenever there is some doubt. Confidentiality can also be misused, particularly in hiding difficult or unpopular decisions from public scrutiny. In my view, a decision to deem something confidential should always be accompanied by a detailed justification of exactly why it should be confidential – just giving it a red cover or printing the words ‘confidential’ is ultimately superficial and not good enough.
The decision in my case sends a strong message to Councillors across NSW that they should act in the public interest and not be intimidated by other Councillors or staff on issues of confidentiality.
The claim of confidentiality is often misused to keep decisions away from public scrutiny and I encourage people to always question whether there is a valid justification for something being deemed confidential.
Councillor Max Phillips