Bernie O'Neil - 2 March 2021

Bernie O'Neil presented to Council as the Co-Convenor of A Better Eurobodalla, at the Public Access Session on 2 March 2021.

A Better Eurobodalla (ABE) presentation to the Eurobodalla Shire Council Public Access session on Tuesday 2 March 2021

Good morning and thank you for the opportunity to address Council.

I am presenting as Co-Convenor of A Better Eurobodalla (ABE), a community forum dedicated to having open and inclusive government in our region.

ABE has already presented to Council on the need for sound community consultation. This presentation focuses on the related need to obtain and take account of relevant expert advice before making decisions.

Eurobodalla Shire Council expends considerable funds on obtaining expert advice and, in addition, receives expert advice from various other Government authorities as part of its normal business.

ABE has examined recent Council budget documentation for consultancy information. We found no primary evidence beyond a couple of summary items indicating, in the Council’s December 2020 report, that it spent nearly $1.5 million in the previous quarter on expert advice. Given its size and critical role in decision-making, ratepayers and residents need to see primary evidence to confirm that such advice:

meets recognised professional standards;
informs the making of evidence based, best practice decisions and is value for money; and
is disclosed to the community in an accessible and timely manner including how the advice influences a decision or action by Council.

For this presentation, ABE has researched three areas of Council business where there is independent evidence relating to expert advice and to Council’s performance and accountability.

Example 1. Obtaining expert advice regarding the construction tender for the Batemans Bay Regional Aquatic Arts and Leisure Centre (hereafter referred to as the Leisure Centre).

At its meeting of 28 July 2020, Councillors wanted to seek advice from Council’s Audit, Risk and Improvement Committee (ARIC) before voting to approve the construction tender and allocate the total budget for the Leisure Centre development.

As background, ARIC is constituted to provide specific expert advice to Council and must (among other things) keep under review the following aspects of the Council's operations:

Compliance
Risk management and
Financial management

Councillors were concerned that:

they were about to endorse expenditure of approximately $69 million to a project without any professional financial advice.
the community were unaware of the total cost, and
there was no updated business case to inform their decision

However, the General Manager informed Councillors that the Audit Committee could not have access to the tender document for construction of the facility or the total budget amount because it was ‘commercial in confidence’.

Contrary to this advice, the Model Code of Conduct, Council’s Code and ARIC’s terms of Reference, the Audit Committee can, ‘access confidential information that [they] have been authorised to access for the purpose of performing [their] official duties’ (page 5 of the Model Code of Conduct – Guide for Council Committee Members & Delegates).

To clarify this the NSW Office of Local Government was contacted and confirmed in a telephone conversation of 18 Dec 2020 that the Audit Committee can have access to confidential and ‘commercial in confidence’ information.

As a result of the General Manager’s advice to Council, the Audit Committee were denied access to vital information necessary to monitor and assess the level of risk and financial management of the project. As ARIC has at least one financially qualified member and is permitted to 'obtain legal or other professional advice considered necessary to meet its responsibilities’ it would have been the obvious source of expert advice. (ESC-ARIC Terms of Reference).

Without this, Councillors’ subsequent approval of the tender and budget for this multi-million dollar development was without the appropriate professional expert advice.

Example 2. ESC staff advice to Councillors re Capital Expenditure Review for BBRAALC (Leisure Centre)

Also, at the 28 July 2020 meeting, Councillors were asked to endorse the construction tender and total budget for the Leisure Centre, and a report was provided listing all matters that needed to be considered prior to making a decision.

Under the heading “Financial” the following advice to Councillors was provided:

‘The Office of Local Government (OLG) has assessed Eurobodalla Shire Council’s review for compliance with OLG Capital Expenditure Guidelines (Guidelines), issued under section23A of the Local Government Act 1993. The Guidelines seek to ensure that a council’s review of a proposed capital expenditure project is consistent and transparent, that the merits of capital projects can be compared, and that resource allocation can be made on an informed basis by the council. OLG’s assessment concluded that Council’s review meets the relevant criteria of the Guidelines.’

It was later revealed (in response to a Government Information Public Access (GIPA) request) that council staff were selective in what they disclosed to Councillors from the OLG’s correspondence,
as the OLG advice goes on to say:

‘OLG notes that, factoring in all costs, the built facility is projected to operate at a loss for the first 10 years of operation. Council must be satisfied of the community demand for the facility, as proposed, and the ability to subsidise the facility from the General Fund.

Council should also consider the potential adverse effect of the current COVID-19 pandemic on the projected revenue of both the built facility and Council.

While Council has generally satisfied the OLG’s capital Expenditure criteria, it is important to note that this response should not be construed as an endorsement or approval of Council’s proposal.’ (Attached)

By omitting the above, Councillors would have assumed that the OLG had endorsed the project - that all risk issues had been considered and financial management had been deemed appropriate and adequate.

Example 3. NSW Rural Fire Service (RFS) expert advice on bushfire risk management

This has important implications for public safety, public and private property, public liability as well as the safety of both agency and RFS volunteer fire fighters. Unfortunately, Council ignored key recommendations from the RFS throughout the development of the Rural Lands Planning Proposal. The critical importance of this issue has been graphically highlighted by the Eurobodalla’s disastrous experience in the 2019/20 fire season. RFS recommendations which were ignored include:

i) The RFS requested that Council carry out a Strategic Bushfire Assessment for the proposal, as per the requirements for Planning for Bushfire Protection but this was not carried out.

ii) The RFS identified concerns with the use of open land use tables in high-risk bushfire prone rural lands as adopted in the Planning Proposal, yet this was ignored. This was of particular concern to the RFS, as it opened the way for Special Fire Protection Place (SFPP) activities such as Health Services Facilities, Child Care Centres, and Seniors Housing, to be located in these hazardous areas. These uses require large scale Asset Protection Zones and road infrastructure, potentially impacting downstream water quality critical for oyster growing and commercial and recreational fishing.

iii) The RFS requested that the results from the draft Bush Fire Prone Land Mapping carried out by Council in 2016 be used to inform the Planning Proposal but this mapping was not finalised before the Planning proposal was formally adopted, and this important additional data was not incorporated into the planning process.

NSW government agencies collective experience of ESC’s refusal to heed expert technical advice is encapsulated in this quote from RFS correspondence with Council after three years of engagement on the proposal:

‘The NSW RFS provided detailed comments, attended meetings and joint site inspections with Council and other agencies in order to discuss the contents of the Planning Proposal and further explain our concerns. Notwithstanding, the Planning Proposal appears largely unchanged from the previous versions and has not addressed the specific concerns identified by the NSW RFS nor undertaken a strategic bush fire study’.

In summary, it is vital that Councillors are provided with accurate, detailed and timely expert advice in order to make better decisions; and for this advice to be made available to the community.

Bernie O’Neil

Co-convenor

A Better Eurobodalla