A packed meeting in Sydney last night called for a full parliamentary inquiry into the management of Crown land in NSW.
The community 'Crown land summit' was called as a response to threats to publicly owned land across NSW. It was hosted by Greens Planning Spokesperson Greens MLC David Shoebridge and Shadow Minister for Lands and Water Labor MLC Mick Veitch at Sydney's parliament house.
It was organised by community action groups across NSW as well as NGOS such as the Nature Conservation Council and the Better Planning Network.
Call for Parliamentary Inquiry
The meeting passed a motion calling on all NSW Parliamentary parties to support,
a full Parliamentary Inquiry, to inquire into and report on the governance of crown land and the most appropriate measures to ensure crown land remains a public asset for the benefit of all the people, the environment, the culture and heritage of this state.
A second motion called for a moratorium on
the selling, leasing and private development of crown land until after the Parliamentary Inquiry reports and its recommendations are implemented.
The motions run counter to the NSW LNP government's approach set out in a White Paper last year which [recommended turning a large amount of land])http://www.smh.com.au/nsw/nsw-to-measure-opportunity-cost-of-crown-land-used-for-community-services-20140327-35lr5.html) over to Councils and commercial operators. After a community outcry, changes to the Crown Law act were put on hold.
Speakers addressed both general problems with Crown Land governance as well as case studies of community battles to preserve land for public access and use. These included:
North Parramatta Residents Action Group's battle against public space and heritage sites, including the famous Female Factory, being carved up by Urban Growth NSW into super lots for private sale and apartment development.
Friends of Quarry Street who have recently succeeded in saving public owned space from unlawful property development in Paddington.
Friends of King Edward park who recently won their NSW Land and Environment court case. Their successful legal action was an important part of their campaign to save the Headland Reserve in Newcastle that was dedicated for public recreation in 1863.
Willoughby residents who have been fighting to end years of unlawful exploitation of the publicly owned Talus Trust land by various businesses, including the Love ‘n Deuce private multi-sport business.
A recent attempt by several Wollongong Councillors including independent Vicki Curran to seek legal advice in relation to Council's handling of negotiations with a sky diving business on public reserve Stuart Park. The majority of Councillors voted to shut down debate on a notice of motion. The Council's actions are likely to be legally challenged.
Basic legal principles forgotten in rush to exploit public land
The summit could not have come at a better time.
This week, Department of Trade and Investment CEO Mark Paterson finally released a review into Crown land decisions in relation to the Paddington Bowling Club site. The report which was completed ten months ago found evidence of "systemic" mismanagement of NSW Crown Lands. The Department had sent the report to the Independent Commission against Corruption that decided not to carry out further inquiries.
The review makes it clear that key binding principles laid down in the 1959 High Court case of Rutledge had not been properly applied by Crown law officers in their decisions about the Paddington land.
The principles established in Rutledge have previously been outlined on this blog in relation to the Talus Trust. Willoughby resident and retired lawyer John Owens, who has been fighting to have the 'rule of law' applied by Willoughby Council and Crown Lands in relation to the Talus land, outlined the general principles of law and their history last night.
Owens explained that the High Court decision establishes that "Crown land held on trust for public recreation requires the land to remain open to the public generally as of right and not be a source of private profit. Public profits are allowed provided they are reinvested in the trust. This is the rule of law."
The principle "is simple and it is common sense. Who could object to it? It is the High Court’s way of stopping privatisation by stealth," Owens said.
The Rutledge principle was recently applied in the King Edward Park case in which the NSW Land and Environment Court found that Newcastle Council's decision to allow property developer Stronach Property to build a function centre, public kiosk and car park on the site of an old bowling club was invalid because it was inconsistent with the public purposes for which the land was reserved.
Owens claimed that the case studies presented to the Summit are the "tip of the iceberg".
"We should note the admission on Monday by Mark Paterson CEO of Trade & Investment - on releasing the Paddington Trust Report - of systemic mismanagement in his department. It is helpful to have this timely and damning admission, although Mr Paterson and his department need to immediately answer the obvious question: why having received the report on 11 August 2014 - have they allowed ongoing defiance of the rule of law in cases such as Talus?
"Do not be duped by those who argue Rutledge has no place in modern society: it is absurd to suggest only the private sector is able to manage our Crown reserves. It's not difficult to manage reserves... Most local councils conduct businesses far more involved."
Owens has made many representations to Willoughby Council, NSW Ministers and NSW ICAC about the handling of Talus Trust. So far, his submissions have been blocked.
The role of councils
Local Councils play a big role in managing public lands held in trust. As managers of reserved land, they are supposed to set up separate Trust Boards and develop management plans but some simply roll that task into ordinary Council business.
The Talus Trust story is a complex one in which senior Council managers have for decades protected arrangements with private multi-sport business Love 'n Deuce. But even in the Talus Trust case, several independent Councillors have supported Owens' argument that the principles laid down in Rutledge should not have been overridden in ways that allowed private interests to exploit the land (I will publish more on this case soon) at the expense of the broader public. Those more independently minded councillors have recently pointed out to Council’s General Manager Debra Just that Willoughby Council itself applied Rutledge to a more trivial Council case involving a private kiosk in Garigal Park in 1992: why have they not now applied Rutledge to the much greater commercial operations at Talus?
The case of Paddington Bowling Club provides an example in which Council's record has been mixed. In 2006, Labor Minister for Lands Tony Kelly agreed to sell the site to private developer CSKS Holdings. The sale was stopped after Woollahra Council's Open Space Manager David Sheils 'blew the whistle' on the planned site by sending a confidential report about close connections between the club, the developers who wanted to buy the site and a lobbyist to the Crown Lands department. Sheils' courageous intervention along with serious concerns raised by then Mayor Andrew Petrie and Independent MP Clover Moore caused Kelly to cancel the sale.
Negotiations with CSKS Holdings ( then operating under another name) should have stopped right there.
Instead, Crown Lands officials then changed tack and authorised a change of purpose on the land from 'public recreation' to ‘Community and Sporting Club Facilities and Tourist Facilities and Services’ without even consulting the community or the trust manager Woollahra Council. The Council is responsible for managing Trumper Park which lies adjacent to the Club land.
A year later, the 50 year lease was transferred from the Paddington Bowling Club to developer CSKS Holdings. By then Kelly had been replaced by the new LNP Minister and Deputy Premier Andrew Stoner, who retired from politics last year.
Friends of Quarry Street convenor Lesley Scott told the meeting, "This lease was described by Lands staff as a ‘contemporary’ lease. Again, no community consultation, no transparency and most definitely no tender process – this is direct dealing at its best."
Significantly, CSKS were also given a slice of roadway which added to the development potential of the site. But as Scott explained, "The lease document included a 1 year sunset clause, which gave Woollahra Council the opportunity to take the road back if they felt it necessary. Council failed to exercise this right, now the sunset clause has elapsed and the long slice of roadway remains in the possession of the bowling club."
As soon as CSKS Holdings was in possession of the land, it began preparing a development application for a large for-profit child care centre next to the Club which had become a licensed bare foot bowling and entertainment venue. Friends of Quarry Street repeatedly argued that the for-profit centre was "inconsistent with the public purpose" for which the land was reserved.
"It seemed the more we argued the more adamant council became, they assured us it is only their responsibility to judge the application before them, not second guess Crown Lands," said Scott.
"This tunnel vision is of great concern. At what point should local council staff take a stand against Trade and Investment’s directives when common sense would tell them that something isn’t right?"
Those directives are now being unravelled. Ministerial permission to develop the site has been withdrawn. CSKS Holdings has been asked to show cause why its lease should not be withdrawn. Woollahra Council may be given first option to take over the land.
After eleven years of turmoil, Paddington Bowling Club may yet become part of Trumper Park. Crown lands have now given the company 28 days to provide reasons why it should not be evicted from the site and Woollahra Council has indicated it wants first option on any future lease.
As Scott told the meeting last night, "I am pleased to announce here tonight that Friends of Quarry Street will now become Friends of Trumper Park, after so many enemies – Trumper Park truly needs friends."
Riding roughshod over the rule of law
Owens drew the threads of the cumulative effect of Crown Land and local council maladministration together at the end of his speech:
The case studies show how Crown Lands has for years allowed local councils to ride roughshod over community rights and the rule of law, to enter into dodgy deals with no fear of being held to account.
One cannot overstate the corrosive effect on society when those entrusted to protect the public interest and apply the law, choose to look the other way....
Once we accept the maladministration of Crown lands in NSW involves a conscious and deliberate decision by certain forces to deny the application of clear principles of law, we enter a far more serious realm. It goes beyond Crown Lands. It goes to the heart of the administration of justice in NSW.
Owens said after the meeting that an important issue to come out of the meeting "is that we need a law to allow private citizens to sue to protect public trusts when the Attorney General fails to act."
Need for more transparency
Mark Paterson who ordered the legal review of the Paddington Club decisions will leave his job as CEO of Trade and Investment next week.
Two days ago I sent him a list of questions including these:
Various systemic and procedural failures were identified in the Holding Redlich report - to what do you attribute these systemic failures?
What policies and procedures have been changed? Can I have access to a copy of any memos or statements that have been released to staff as a result of these changes?
What systems of training have been set up which did not exist before?
Has any action been taken to hold any individual responsible for failure to follow procedures or policies?
Has the Department carried out any interviews with staff who may have been unduly influenced by the ex CEO Warwick Watkins or for some other reason failed to follow procedures?
The Independent Commission Against Corruption has considered the actions that Trade and Investment has taken and has decided that it will not separately investigate the matters raised. The issues are complex and involve many parties. I do not propose to provide a running commentary, or respond to narrow elements of the report.
So a polite 'no'. But this raises the question of when and how the pubic will be reassured that the administration of Crown lands in NSW has been thoroughly reformed.
Would a confidential report from a future David Sheils be heeded in the future? Will residents' concerns about land be treated with respect?
Early in 2014, Friends of Quarry Street prepared a dossier which explained in detail their concerns about the way the Paddington Bowling Club site had been handled. They delivered it to various Ministers and senior executives in the NSW government. The politicians referred the concerns to the Deputy Director General of Lands Renata Brooks prepared a minimal response designed to allay their anxieties. She described the relationship between developer CSKS Holdings, which had taken over the Paddington Bowling Club lease, as those of a 'private equity financier.'
It would have taken a competent researcher of public and legal records half an hour to discover that the directors of developer CSKS Holdings, which Crown Lands had been dealing with for more than a decade, had been involved in a number of failed developments and had been criticised in various courts. In 2007, a costly Commission of Inquiry had also established unusual payments between members of the family and the club.
Instead of taking action, the Crown lands department allowed the company to lease, mortgage and plan to develop the site.
In February 2014 , after I had begun investigating the Paddington saga, I emailed 11 questions to the then Deputy Premier and the Minister responsible for Crown Lands Andrew Stoner. I copied the questions to Renata Brooks and requested an opportunity to discuss the matters on the phone.
The Department's Media Officer John McClymont's responded:
Trade and Investment Crown Lands would need to do a detailed review of files going back several years to respond to the specific questions you have raised.
He referred me to the letter Renata Brooks had written to the residents.
Dear John Are you saying that you are going to review the file so that you can answer the questions but you are not able to do that now.
What form will the review take? Who will conduct that?
Wendy We are not reviewing the file.
I disputed the misleading description of CSKS Holdings as a private equity financier.
In fact, all the answers to the questions and to the residents concerns could easily have been found in the file.
This suggests that as of 2014, Department staff were still actively fobbing off residents who were raising questions about its handling of the Paddington land. They continue to do that in relation to the Talus Trust.
This is not to say that the review of the Paddington Bowling Club decisions has not played a crucial role in establishing the unlawfulness of the decisions. But it is a desk review that necessarily adopts a legalistic approach.
Many questions still remain unexplored.
Who lobbied the Minister and Lands CEO Warwick Watkins in unrecorded, behind closed doors meetings.
What were the cultural factors that allowed a situation to develop where officers' own capacity for independent decision making was overborne by those above them?
In other words, how did a culture in which unlawfulness and corruption could flourish develop and how can the public be assured that it is not continuing and will not be repeated?
What would a similar examination of Willoughby Council and Crown Lands files on the Talus Trust case and other cases reveal?
None of the cases discussed at last night's 'Crown land summit' would have come to light if not for determined residents who were unwilling to have their concerns shoved aside.
A parliamentary inquiry is certainly needed. One hates to think what might have occurred if the LNP government planned sell off of public land had gone ahead last year.
As a journalist, I hope that questions about how Crown lands might improve the transparency of its decisions, its accountability to the public and its responsiveness to journalists' questions will be included in its terms of reference.
Note: Here's a report of the summit in the Newcastle Herald.
More stories in my Public Land is Our Land series can be found here. My Winning on Welfare Street series about the eviction of long term tenants in Homebush may also be of interest.