Ordinary Council Meeting - 28 January 2016
LATE AGENDA Page
6 Notices of Rescission
L General Manager's Summary of Items to be Discussed in Closed Meeting
L.1 Business Investment Enquiry
It is recommended that the Council resolve into closed session with the press and public excluded to allow consideration of this item, as provided for under Section 10A(2) (d) of the Local Government Act, 1993, on the grounds that the report contains commercial information of a confidential nature that would, if disclosed (i) prejudice the commercial position of the person who supplied it; or (ii) confer a commercial advantage on a competitor of the Council; or (iii) reveal a trade secret.
AUTHOR/ENQUIRIES: Bob Morrison, Councillor
Additional information supporting Report 6.1
That the resolved motion item 9.15 in the minutes dated 15 December 2015, "That Council does not support the sale of the land but supports a lease, license or easement of the said land for a period sufficient to allow the Leckie's to undertake remedial work on their land and that there be no cost (rent) to the Leckie's", be rescinded.
The rescission motion was endorsed by Councillors Morrison, Ainsworth and Finlayson on 21 January 2016.
If the rescission motion is successful, the following motion is foreshadowed:
1 "That Council in accordance with Crown Lands recommendation, resolve to sell 290 m˛ area of land (as previously defined) to the Leckie's in accordance with Crown Lands recommended procedure as laid down in Crown Land letter dated 14th of January 2014 and for Council to document its reasons for selling the land."
2 That the valuation of the portion of land to be sold be determined by an accredited valuer agreed to by both Council and the Leckies.
That Council receive the information from Councillor Morrison in support of his recommendation in Report 6.1.
REASONS FOR THE RESCISSION MOTION
What I am trying to achieve, is to rescind a motion that breaks our Code of Meeting Procedure, that is not connected to the agenda items and notice of business, that breaks common-law Meeting Procedure rules, goes against the Ombudsman direction, is ambiguous, and makes little sense, and comes from the floor without any notification which quite clearly renders the motion invalid and according to Horsley’’s Meeting Procedures and the Law "will be held to be invalid from the beginning and cannot be ratified in normal circumstances"
Reasons that the Motion is Invalid
1 Motion Inconsistent with a Previous Motion
Resolutions were passed previously referring the matter of the sale of 290 m˛ to the Leckie's to Crown Lands as the minister's delegate for decision. The Mayor wrote in her email dated 16 November 2015 "In fact the final decision rests with the Minister for Lands". The Minister's delegate had previously made his recommendation.
The basis of the motion by the GM was for the meeting on the 15/12/15 was to accept the Geotechnical Report from Coffey and Partners re 2 Nelson Street. The motion proposed from the floor and resolved ;
"That Council does not support the sale of land but supports, a lease, license or easement of the said land for a period sufficient to allow the Leckie's to undertake remedial work on their land and that there be no cost to the Leckie's." Has no correlation between the two motions or formal notice given in the agenda not to sell the land.
Then on 13 January 2016, a letter was received from the Parliamentary Secretary, the Hon Rick Colless MLC, who stated "DPI Lands will review and assess Mr and Mrs Leckie's application for acquisition and consider the most appropriate form of tenure required over the subject land to facilitate reconstruction of the current retaining wall."
Let me quote from Horsley's Meeting Procedures Law and Practice - A leading authority on meeting procedures. "Unacceptable Motions".... "A motion should not be inconsistent with a resolution passed at a previous meeting".
A motion should be complete and plain so that a resultant resolution, when read in the future identifies with certainty its objective and substance. Wording should be precise and definite in its intention and import should be clear. Wording should be explicit and lucid to guard against uncertainty or misapprehension. (Re Australian Worker Union (1983) 11 IR 283). "(Harvey-v-Adelaide & Hindmarsh Tramway Co (1981) 15 SALR 136)".
Lets analyse the meaning of the motion;
"That Council does not support the sale of land but supports, a lease, license or easement of the said land for a period sufficient to allow the Leckie's to undertake remedial work on their land and that there be no cost to the Leckie's."
a. As the Coffeys Report is based on the whole bank of land at 2 Nelson Street. It does not delineate between Council land, the Leckie's land and Crown Land. Then it must be concluded that the word land mentioned in the motion must refer to the whole bank of land, the majority of which is owned by the Leckies. Both the applicant and the seconder emphatically stated the motion is correct.
b. "That Council does not support the sale of land". How is that possible as the majority of the land is owned by the Leckies? Their land is not for sale. Council has no authority as regards the sale of the Leckie's land.
c "but supports, a lease, license or easement of the said land for a period sufficient to allow the Leckie's to undertake remedial work on their land and that there be no cost to the Leckie's." So Council is going to allow a lease, easement etc. for the whole bank, to allow the Leckies to do remedial work on their land which I presume is to fix up the damage to their house/place. They don't need a lease, the house is on their land. Then council is allowing them a period of time to do this. Are we for real to accept that there is clarity and no ambiguity? Both the applicant and the seconder in being given every opportunity to clarify the ambiguity, refused to do so and wanted the motion to stay exactly as resolved.
The same question was put to the GM. The answers to the questions were prefixed with a. Presumption, b. Assume, and c. "I don't know what remedial work the resolution is referring to. Again my presumption is". Which would certainly confirm that there was problems with clarity and meaning.
3. WITHHOLDING INFORMATION
Information sent to Councillors replying to the assertions in the applicant's email dated 16 November 2015 in which the applicant did not receive a copy.
From the Ombudsman - What are the rules of natural justice?
"Any person who decides any matter without hearing both sides, though that person may have rightly decided, has not done justice. Any person whose rights, interests or legitimate expectations will be affected by a decision or finding is entitled to an adequate opportunity of being heard to properly present their case, the person is entitled to know the grounds on which the decision or finding is to be taken"
Can you Imagine coming to Council and addressing Council on a Geotechnical Report (as per the agenda) and then finding out that the motion proposed from the floor, without warning was "not to support the sale of the land". The Leckie’s were simply not given an opportunity to provide a response/delegation of the proposed motion as they were not aware of its contents. How would you feel. Possibly quite angry in being denied procedural fairness.
The Ombudsman is a statutory body and according to Horsley Meetings "a motion must not be in conflict with the Constitution rules standing order or any statutory or other legally binding provisions that regulate the activity and conduct of the body". See (Clark-v- University of Melbourne ). 3
4. Notice of Motion
The late agenda item heading and report titled – "Geotechnical Investigation – 2 Nelson Street" - Late Report Delegation (containing 43 pages),was handed to us just before we sat down.
The GM's Recommendation – "That the information from Coffey Geotechnics concerning the geotechnical investigation and stability assessment of site NH44 (2 Nelson Street) be received."
The motion resolved – "that Council does not support the sale of land......"
The above process is in contradiction with our Code of Meeting Practice, namely "Sec. 18 (3) (Despite subclause (1) business may be transacted at a meeting of a Council even though due notice of the business has not been given to the councillors. However, this can happen only if (a) a motion is passed to have the business transacted at the meeting and….". No such motion was passed.
5. Due Process
I have checked my IPAD and Computer and I have seen no late Notices of Motions recorded for the ordinary Council meeting on the 15 Dec 2015. As I remember, the 43 page late Notice of Motion was on our respective desk positions as we sat down to attend the meeting. Considering that the motion presented from the floor had no relationship to the agenda heading, could someone please try and justify to me that Council has applied Due Notice / Procedural Fairness in the way the motion was presented, allowed and resolved.
6. ABROGATION OF OUR RIGHTS TO DETERMINE THE MATTER
Did we abrogate our rights when we put the matter into Crown Lands hands (the land owners) to make the decision on our behalf? Do we have the legal validity to ignore their recommendation as the land owners without any advice to them?
We certainly did abrogate our rights as seen in the latest letter from the Parliamentary Secretary for Natural Resources "DPI Lands will review and assess Mr and Mrs Leckie's application...."
You will probably notice, that I have submitted my comments with reference to our Code of Meeting Practice, Ombudsman's direction, the law and relevant judicial cases & findings, Horsley's Meetings, and Bluett's Local Government Handbook. I hope and trust that any opposing views and reasons are also based on the legality and other appropriate references.