Sent 29 June 2020 from Forum Committee to CEO and all Councillors.

 

To: The CEO and Councillors 

The Pulman Street HCA residents (Residents) have provided the Forum Committee with a copy of the Briefing Notes document (Briefing Document) obtained through a GIPA Application, that the owners of Mananga (Owners) sent to Council in January 2021.

Whilst the Owners sent it to Councillors “to assist in your assessment of our DA”, it was marked ‘CONFIDENTIAL’, which precluded public scrutiny and community comment to Council.

Questions and Concerns regarding ‘Confidentiality’ of the Briefing Document 

The Residents have provided evidence of factually inaccurate statements in the Briefing Document, which was withheld from public access for 5 months and only disclosed 2 days after the cut-off date for submissions, and just a few weeks before determination. 

As a result, over the last 5 months, the Owners’ Briefing Document has been withheld from public access and may have influenced Councillors’ perceptions by inferences and assertions as to factual matters relied on by them, which the Owners have since agreed were inaccurate and which have, in other contexts, been withdrawn by them. 

Consequently, Council should be aware that the integrity of its planning process has been put in doubt, and that the community is seeking clarification around the following questions so that trust can be restored.

1.     In early January when the Briefing Document was sent, shouldn’t the Owners have been advised by Council that ‘Confidential’ advice in support of a DA is not accepted?

2.     Given that the Briefing Document was sent to all Councillors, shouldn’t it have been either retrieved from them or made public on DA Tracking?

3.     When the GIPA request was made, what was the rationale for the statement (later retracted) that the Briefing Document had been requested by Council? 

 

Questions and Comments regarding the Contents of the Briefing Document 

On the first page of the Briefing Document the Owners provide Councillors with the following definitive assurance – 

we have taken great care to ensure all statements in the briefing notes are correct. We would be happy for Council’s officers to fact check and validate our statements

4.     Given the ramifications of the alleged commercial activities attributed to named parties in the paragraph that follows in the document, was any fact checking carried out? 

Alleged prior use as a wedding venue 

The Briefing Document (sent in early January) includes a factually inaccurate statement that had not been referred to in the formal DA documentation sent to Council – 

“It’s important for you to be aware that Mananga Homestead operated as a wedding venue for 18 years from 1995 to 2013, with weddings held on a weekly basis” 

After Mrs Norman (owner 2003 to 2018) had written to Council refuting the claim and requested a retraction by the Owners, they sent a formal submission to Council in which the claimed period for the weddings was changed to 1990 to 2003.  

Additional words “for between 50 and 140 guests” and using sound amplification” were attributed to the previous owner Mrs Logan, erroneously as we understand from her, and it was asserted, –

the previous use as a wedding venue… provides clear evidence that the use was appropriate and had no significant adverse effect on the local surrounds.” 

These contradictory assertions would have created a distinct impression that there was a precedent for use of the site for weddings and functions of the scale now contemplated, and that the neighbouring residents’ objections were unwarranted and disingenuous. 

The assertions are demonstrably inaccurate however, as identified in the Residents’ critique of the Briefing Document, of which the following is a pertinent extract 

FACTS:  The former owners Mrs Logan and her daughters (1994-2003) have denied to Council the Owners’ claims. Further, Mrs Norman (2003 to 2018) wrote to Council refuting the claim and requested a retraction by the Owners. 

In March, the Owners submitted a formal claim citing the same precedence of Mrs Logan hosting weddings, but with different dates.  Critically, within 3 days of Mrs Logan’s denial the Owners withdrew their claims, stating it was inappropriate to lodge and informed PSHCA “Yes, we made a grave error in making the statement to Council and we deeply regret it”. 

Purported precedent for Clause 5.10(10) approval 

To support a claim of precedence for Clause 5.10(10) approval, the Owners state that a DA for Terrara House had “almost identical characteristics” to Mananga. 

This statement is also challenged in the following extract from the Residents’ critique –

FACTS: Mananga is only 220m from the Pulman Street residential zone, whereas Terrara House is around 2kms from the nearest residential zoned properties and has a land area almost 4x the size of Mananga. In addition, Terrara House has an onsite parking area with 44 spaces, whereas Mananga has no onsite all-weather parking. The sites and applications are not comparable in terms of impact. 

In light of the above information –

5.     Does Council acknowledge that the alleged precedents were not based in fact and shouldn’t inform any decision in relation to the subject application, noting;

    • both previous owners denied the unverified claims and sought retractions and
    • the Owners requested their submission be removed from DA Tracking, and
    • the Terrara House comparison is of little or no relevance?

 

Community Concerns 

The Briefing Document seeks to minimise the importance and relevance of the community objections by repeating the discredited claim that “Mananga operated as a wedding venue from 1995 to 2013 without any complaints from the local community so if people were objecting now “Is it just more anti-progress vitriol without any foundation?” Council should consider all resident objections as relevant matters for consideration in determining a DA.

 

Alleging the Berry Forum “Doesn’t Truly Represent the Residents within the CCB Area” 

The Briefing Document makes unwarranted statements in respect of the Forum that Council and Councillors are requested to disregard.

The Owners claim the Forum has been “taken over by a specialist interest group”, when in fact the composition of the Committee has been stable for five years, and Committee members received overwhelming community support from the 220 residents who attended the October 2018 AGM to counter a previous attack on the Committee.

The Owners also claim the Forum is a “core anti-development group”, when in fact it has been involved in fewer than 4% of the 200 DAs lodged in the Berry area over the last 18 months, and then only at the request of resident community groups. Forum involvement only occurs where there is relevant community interest and perceived non-compliance with planning legislation.

In November 2019, the Owners’ lawyer sent the Forum Committee a series of intimidating letters, threatening legal action against the Forum Secretary, claiming that a statement made at the April 2019 Forum meeting that the Owners had been fined for unauthorised works was a “breach of his privacy’. A Council investigation found that the statement, in response to many community enquiries about unauthorised works at Mananga, was legitimate. 

 

Conclusion 

We request that Councillors in making their determination of the DA, disregard the inferences and assertions made by the Owners in the Briefing Document, much of which has now been acknowledged as factually inaccurate, and contain their assessment to the relevant provisions of LEP and planning controls

6.     Does Council appreciate that acceptance of a “Confidential” document, failing to verify the unfounded statements made, and allowing the denigration of one of its CCBs to go unchallenged, raises serious questions of probity in the minds of many in the community?

There may be a valid perception that the above state of affairs irretrievably undermines Council’s impartiality in its decision-making process for this particular matter. Arguably, the stakeholders cannot be certain that an undue influence has not occurred – however unintended, effectively tainting any decision Council reaches.

Combined with the legal technicalities identified in the various legal opinions submitted, it would be proper that Council defers its decision – by refusal of the otherwise prohibited development – to a more qualified and disinterested arbiter.

 

The Berry Forum Committee 

https://berryforum.org.au/