Tag Archives: Lewisham

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.

Lewisham rally-TheGlebe

Local residents rally against the Lewisham Towers proposal

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 [2014] 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.

Max Phillips after the Tribunal hearing on March 26

Max Phillips after the Tribunal hearing on March 26

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

 

 

 

Secret deals and censure motions

Labor and Liberal councillors will likely vote for a politically motivated censure motion against Greens Councillor Max Phillips at Tuesday night’s Marrickville Council meeting.  The censure motion is being moved because Cr Phillips informed the public of a proposal for a ‘voluntary planning agreement’ (VPA) from developer Meriton that offer Council $5 million for going from 10 to 20 storeys at the Lewisham Towers development.

max

At the March Council meeting, Mayor Macri and Labor and Liberal Councillors demanded that Cr Phillips apologise to Council and Meriton for making the information public.  Councillor Phillips refused, saying he had acted ethically at all times and it was Council who erred in trying to keep the VPA secret.

“You should never apologise for being honest.  I acted ethically and will wear the censure from Labor and Liberal as a badge of honour!” said Cr Phillips.

“Major planning decisions should be conducted in an open, public and transparent manner.  It’s an absolute disgrace that Labor, Liberal and Mayor Macri want to keep the public in the dark about major planning decisions being contemplated by their Council,” he said.

Late last year developer of the Lewisham Towers site, Meriton, approached Marrickville Council with an offer of $5 million in return for increasing density and heights for the Lewisham Towers development as part of a VPA.

Meriton boss Harry Triguboff initially met with the Mayor of Marrickville, Victor Macri in the mayoral office.  On the 27 November, a briefing was held with all councillors where Meriton outlined a proposed VPA.  The essence of the offer was significantly increased densities, and the height of one of the buildings to change from 10 to 20 storeys.  In return Council would receive $5 million.

The Lewisham Towers development has been controversial for the last 4 years.  Initially proposed was 14 storey towers and a supermarket mall.  A community group ‘No Lewisham Towers’ was formed to oppose this overdevelopment and the Greens Councillors moved for Council to commission a master plan for the precinct to ensure orderly and appropriate development.

lewishamcolour02

The master plan recommended much smaller heights and only a small amount of retail space for the site.  Since the master plan was produced, the developers of the site had gradually reduced the scale of their plans, until Meriton came along with their proposed VPA.

On the evening of Friday 7 December, Councillors were given a supplementary business paper for the Council meeting on Tuesday 11 December.  The item was relating to a decision on whether or not to enter into negotiations on the Meriton VPA.

Surprisingly the item was deemed confidential.  When questioned why it had been marked confidential, council staff said it was because Meriton had asked for it to be commercial in-confidence.

The Greens Councillors questioned the basis of the commercial in-confidence and why such a confidence would trump the importance of conducting planning decisions in open session?  An adequate answer was not provided.

Cr Phillips decided to inform local residents and the media about the proposed VPA, basing his information on the oral briefing held on the 27 November, on the basis that this briefing had not been deemed confidential.

The Sydney Morning Herald published an article entitled: Size does matter: council offered $5m to approve towers at double the height

That night at the council meeting, the public gallery was ejected, the doors closed and the Labor and Liberal Councillors proceeded to shout at Cr Phillips for informing the public about the general nature of the VPA being considered.

Some of the Councillors claimed by publicising the issue, Cr Phillips had “forced their hand”.  Mayor Macri yelled that Cr Phillips “was not the dictator, not God”.  These are strange comments and seem to indicate that some Councillors may have made a different decision if the issue was not public.

“Councillors should be prepared to stand by and defend their vote regardless of whether it is public knowledge or not.  Indeed the Local Government Act explicitly states that public embarrassment is not a valid reason to make something confidential,” said Cr Phillips.

After the shouting behind closed doors had subsided, Council voted unanimously to reject entering into negotiations with Meriton over the proposed VPA.

Five Councillors, who have decided to remain anonymous, then decided to lodge a code of conduct complaint against Cr Phillips.

An independent reviewer reviewed the issue and found that although the oral briefing on the 27th was not clearly deemed confidential, Cr Phillips had breached the code of conduct by speaking publicly about the issue.  You can read the entire report here (PDF).

At the March 2013 Council meeting, conservative independent Mayor Victor Macri moved to censure Cr Phillips, demand he apologise, and to escalate the issue by referring it to the Department of Local Government.  Of the ten Councillors present at the meeting, five – including the four Greens and Independent Morris Hanna, voted against, while the Labor and Liberal Councillors voted for the motion.  The Mayor was forced to use his casting vote to pass the motion.

On 16 April 2013, the formal censure motion will be debated at the Marrickville Council meeting.

Meanwhile, Cr Phillips brought a notice of motion for Council to draft a policy in how to deal with VPA proposals.  The proposal was for Council to adopt a position of dealing with VPA proposals in an open and transparent way, and to provide a public justification for any information deemed confidential.  Unfortunately Labor and Liberal Councillors present rejected this notice of motion.

“There have been three different VPA approaches to Marrickville Council in the past few months, yet residents are being kept in the dark.  There is a new arrogance of power at Marrickville Council that is of great concern,” said Cr Phillips.

Read Councillor Phillips’ letter to Lewisham residents on the matter (PDF).

EVENT: Public Meeting on Lewisham Master Plan – 19 November

The No Lewisham Towers residents action group has called a public meeting to discuss Marrickville Council’s master plan for the McGill Street precinct.  This master plan effectively provides an alternative vision for the area to the fourteen storey towers and supermarket mall that has been proposed by developer, Demian Constructions.Pages-from-McGillSt-heights-300x210

Time: 8pm, Thursday 19 November 2009

Venue: Summer Hill Community Centre, 131 Smith Street Summer Hill

What: see the master plan and express your opinion.

nolewishamtowers.org for more information.

 

Draft MLewisham Precinct Master Plan now public

The McGill Street master plan project has progressed to a point where the draft is ready for public comment.Pages from McGillSt-heights

If adopted by Marrickville Council, this plan will regulate building heights, densities, open space and other aspects of planning.

The Department of Planning has instructed the developer proposing the Lewisham Towers, Demian Developments, to take into account Council’s planning documents for the precinct.  So this master plan will provide an alternative vision to the plans for the Lewisham Towers.

Marrickville Council has a webpage on the master plan.  The draft master plan document is online as a PDF.

Plans for the future shape of Marrickville now public

Is the future of Marrickville four and five storey flat buildings dominating our shopping strips?

flat-alley

The future of Marrickville?

You can now judge for yourself as the draft Local Environment Plan (LEP) for Marrickville Council is now public as it will go to next Tuesday’s Council meeting for debate and decision.

The Local Environment Plan controls zoning, height limits and floor space ratio.

Under pressure from the state government to squeeze more 4,100 more dwellings into the Marrickville area, the draft LEP has some considerable increases in height and density in a number of centres, including Lewisham, Dulwich Hill, Petersham and Marrickville.

The draft LEP is now a public document and you can see the maps here.

The new streetscape?

The new streetscape?

Marrickville Council will debate, amend and vote on the LEP at this Tuesday’s meeting.  It will then be sent to the Department of Planning for approval to exhibit.  After that a formal public consultation period will begin.

The Greens have some serious concerns about the draft LEP.  We believe it is allowing too much height and too much density in our shopping strips in the form of flat buildings.  Heritage protection is also stripped back from the current draft heritage areas.  It has the potential to change the character of our neighbourhood centres to resemble Kogarah or Rockdale.

High density street scape

High density street scape

Illawarra Road may end up a tunnel between five top seven storey flat buildings all the way from the Woollies on Renwick Street Marrickville to Marrickville Road.  The precinct around Petersham station could present block after block of flat buildings, while Dulwich Hill shops and Dulwich Hill station undergo an extreme make over that makes them higher and denser.

The Greens will move a series of amendments to the draft LEP to ensure the integrity of the Inner West is not compromised by overdevelopment.

The Greens urge local residents to have a look at the plans and to let councillors know what they think either by email, or by coming to the meeting.

You can apply to speak at a meeting here.  The meeting starts at 6.30pm Tuesday 1 September at the Marrickville Council chambers, 2 Fisher Street Petersham.

Councillor’s emails can be found here.

by Councillor Max Phillips

Which density is best for the Marrickville area?

Have your say on the draft LEP: which density is best for the Marrickville area?


Marrickville Council to master plan McGill Street precinct at Lewisham

On Tuesday night two Green motions were put before Marrickville Council.lewishamcolour02

The first motion was to have Marrickville Council commission a master plan for the entire precinct between Old Canterbury Road and the Goods Line in Lewisham.  A master plan will provide an alternative vision for the urban renewal of the area, with appropriate height and density limits to complement the surrounding community, as well as provision for open space and traffic management.

The second motion confirmed Marrickville Councils official opposition to the Lewisham Towers development, called for it to be assessed by Council rather than by the Minister for Planning under Part 3A, and wrote to local MPs requesting their support for this position.  A similar motion had been voted down by a combination of Labor and Independent Councillors in March.

Unfortunately, it was a busy council meeting and the motions were not debated untilChambers 10.30pm. Despite the hour, residents of Lewisham were present in the gallery and two residents spoke to the motions.

The motion for a master plan was supported unanimously. This is excellent news and council staff have already started to put it into action.  The Greens will be working to ensure community participation is incorporated into the master plan project.

The second motion became the subject of heated debate as Labor Councillors opposed it and supported the use of Part 3A to assess this development.  Independent Councillors Hanna and Macri (who have all but signed up to the ALP) also opposed the motion saying it was ‘political’.

Labor Councillors seemed more intent on defending the local state member and the NSW state government than they are on genuinely representing the local community (not just on this issue).  So they blew hard on their defence of the state government’s pro-developer planning regime and the use of Part 3A for the Lewisham Towers.  They, along with their allied Independents Hanna and Macri, attacked The Greens for leading the community campaign.

Councillor Iskandar (ALP)

Councillor Iskandar (ALP)

Perhaps the lowest moment came when the Mayor Sam Iskandar (who also happens to represent Central Ward which includes Lewisham) began banging on the table and raising his voice in an angry defence of Part 3A.  To me, it seemed his angry speech was directed as much at the residents in the gallery as at other councillors!

It is a pity the Mayoral anger and bluster was undermined by his poor understanding of how Part 3A works, including the ability of the Minister to refer developments back to the local council, and the effect that Part 3A has in bypassing the community and removing democracy from the planning system.

The final vote was tied again with the 5 Greens and Independent Councillor Dimitrios Thanos for the motion, and four Labor and Councillors Macri and Hanna against.  The Labor Mayor then used his casting vote to defeat the motion.  Clearly loyalty to the Labor Party is more important than representing constituents in Lewisham and elsewhere.

The community campaign will go on regardless of the politicking, and the master plan that will now be developed can serve as a focus for the community to communicate their vision for Lewisham to the Department of Planning, the Council and to all prospective developers.

You can read my press release on the two motions here.

Councillor Max Phillips

The McGill Street precinct Lewisham

Master Plan for Lewisham to challenge Towers development

18 June 2009 – Media Release

Strathfield flats (12) webMarrickville Council will commission a master plan for McGill Street precinct in Lewisham to provide an alternative vision for the area that challenges the proposal for multiple towers and a supermarket mall.  The Greens motion for a master plan was supported unanimously by all councillors on Marrickville Council.

“The master plan for the McGill Street precinct at Lewisham will provide a clear and comprehensive vision for the area that complements the existing community,” said Greens Councillors Max Phillips.

“The Greens are confident that a Council master plan will more genuinely reflect the community’s vision for the area and challenge the developer’s greedy plans to build towers and a supermarket mall.

“The land along the old goods line is a good place for urban renewal, but it must be in scale with, and complement the existing community, and not overwhelm local roads or hurt local shopping strips.”

The second motion stating Marrickville Council’s opposition to the Lewisham Towers development and requesting that it be decided by Marrickville Council, not by the Planning Minister under Part 3A was tied 6 – 6  (5 Greens + Thanos for vs 4 Labor + Macri & Hanna against).  Labor Mayor, and Central Ward Councillor Sam Iskandar then used his casting vote to oppose the motion.

“I’m surprised and disappointed that the Labor Councillors, and Councillors Hanna and Macri voted against this motion,” said Greens Councillor Max Phillips.

“Given the depth of community concern about this development and the obvious use of Part 3A to bypass council and the community, I would have thought Labor and Independents councillors would side with the local residents.

“The Marrickville Labor Councillors seem so intent on protecting the local state member and her government, that they fail to recognise the genuine depth of community concern on this issue.

“The No Lewisham Towers campaign will continue regardless, and I hope all local councillors will be supportive and constructive.”

Contact: Councillor Max Phillips 0419 444 916

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