Please see notes to your fellow two Councillors on the recent closed decision from your Council on 73 Cove Road. Below for completeness is a copy of my 18th DEC 2017 letter to the Mayor; his response did not address the matters raised.
I am concerned about the integrity of the Council's decision making process and belief there is a conflict of interest in the Council determining this case, given the likelihood of a substantial claim from Mr Fleetwood for given the initial approval in 2011 for 73 Cove Road. I would appreciate your position on this matter. Thank you. Bob McGivern
Mayor Hanna Bob McGivern Marion Council 11, Westcliff Court Marino 5049 18th DEC 2017
Soft copy to:
1. Councilor Crossland, Marion Council 2. CEO Adrian Skull, Marion Council 3. Adelaide Advertiser 4. Ombudsman SA 5. State Commission Assessment Panel 6. David Speirs MP for Bright
Dear Mayor Hanna,
Re: 73 Cove Road – Council Planning and Legal Compliance The purpose of this letter is to again request your leadership with respect to Marion Council’s planning department and seek their compliance with the Development Act 1993 (“the Act”) and Development Regulations 2008 (“the Regulations”). I am grateful (and I mean that) for you calling out the improper behaviour of the planning department including highlighting their lack of control and the self commissioning of legal support without recourse (>$250k direct costs on this case alone, with over $490k this last FY, excluding council costs and overheads). On a personal note, I do not agree with the criticism you have received in the press for this case. I wish the press would spend time to better understand how Mr. Fleetwood has manipulated and misled the system to arrive at this unfortunate point. I attach in Appendix A, a copy of a letter to the Adelaide Advertiser which went unanswered. This information may help your engagement with the press. I now learn that your planning department is supporting yet another planning application for 73 Cove Road from Mr. Fleetwood and I have little confidence in the planning department acting in compliance with the Act and Regulations. This lack of confidence is based on the following facts: 1. Compliance with the ERD Judgement: at the 6th Sept 2017 Development Assessment Panel your Council recommended approval of another planning application (100/408/2017) for 73 Cove Road from Mr. Fleetwood, which was at total odds with the previous ERD judgement – fortunately the DAP showed some independence and rejected this application 5 to 1, with only the Chair showing support (as he did in the 2015 assessment)
Despite the ERD’s judgement stating the “size and build” of the property is seriously at odds with the Development Plan with the revised plans not addressing the size or build, your Council did not reject Mr. Fleetwood’s plan outright and instead administered a biased process (see 2 below for substantiation) to assess the plan through another DAP process.
This Council action is at odds with the Act where:
“A relevant Authority may…. d) refuse an application that relates to a development of a kind that is described as a non-complying development under the relevant Development Plan without proceeding to make an assessment of the application”
Whilst there are technical arguments that the balance of complying and non-complying aspects must be considered as a whole, the ERD made it very clear that a “significant departure” exists, in particular:
“In our view, the proposed design results in a building of considerable height and bulk which, when combined with its inadequate setback from the rear boundary, will present as a dominant building in terms of its visual impact, particularly for the occupants of numbers 12 and 13.”
I suggest a reasonable third party would have assessed the application as non-compliant with the ERD judgement and not convened the DAP process. Moreover, it also appears the CEO also has little regard for the authority of planning law where in a recent letter he advises:
“… each Panel has deemed the proposal acceptable. We note the court has different opinion, which it entitled to do so.”
I note that precedent exists within your Council in rejecting plans outright without convening DAP, or its replacement. So clearly the Council is aware of this legal obligation and I assume the CEO is aware of the Rule of Law.
2. Bias Planning Team: as part of the Sept 2017 planning application your Council sponsored a purportedly independent planner to assess the application and using rate payers’ money, commissioned Helen Dyer.
Despite three residents’ outright rejection of the Sept 2017 planning application, with only one resident supporting (being the sponsor of the planning application, Mr. Fleetwood), the independent planner stated there was “general support” for the application.
I welcome any reasonable third party to provide an opinion on why and how this Council commissioned report could caste such a conclusion in light of the overwhelming rejection from the residents!
Further, this report stated the planning application was “partially compliant” and “generally compliant” across over 100 separate assessment criteria using your Development Plan, when no such compliance attributes exist: a matter is either compliant or it is not complaint, as highlighted by Charmaine Threadgold from the DAP (see below).
Only a minor number of criteria were assessed to be compliant with the Development Act in this Council commissioned planned report. Fortunately the DAP stated their displeasure with this report providing damming criticism in particular by Charmaine Threadgold – some quotes from the DAP meeting 6th SEPT 2017: Charmaine Threadgold “The proposal has a fundamentally flawed starting point” “I find this application unacceptable” “The visual impact is unacceptable” Cited the Authority of the ERD para 121,156,157 and 188 and others Challenged the planner’s report “of the 109 provisions of the DP mentioned in the planners report, the proposal satisfied all but 2”. Pointed out that if they only partially or generally complied, that did not meet the requirements
Nick Westwood “It is beyond rescue” “No happy future for it”
Janet Byram “The bulk and scale is a serious issue” “I am concerned with the amount of cut & fill without consideration for the repercussions” ” I am concerned with the level of amenity”
Nathan Sim “The amount of fill is a serious concern” “The visual impact is a major problem”
Luke Hutchinson “The bulk & scale is unacceptable” “I don’t see amenity of the building for the occupants”
Note: A set of minutes from the DAP meeting were forwarded to your planning department (8th SEPT 2017 to Robert Tokley) from the residents and the accuracy of these minutes can be attested by no less than five separate parties. Note also that I requested to record the DAP meeting and despite the obligation of transparency, this request was refused. In short, your planning department commissioned and supported this bias planner’s report. I urge you to review it please to form your own view. See Appendix B for some photographic examples of the impact. 3. Robert Tokley – Breach of Code of Conduct: The ERD has also ruled that your planning department has acted out of convenience for its own cause and singled out the actions of your planner Robert Tokley as being unacceptable:
“It was not for Mr. Tokley to consider whether there was, in his opinion, a “practical reason” to require a further development application. The question Mr. Tokley should have asked himself was what was required in the circumstances by the Act, not by his or the Fleetwood’s convenience.” Despite this legal opinion, Robert Tokley operated as the executive officer for the Sept 2017 planning application and all previous applications, and commissioned the biased works of Helen Dyer and made the Council recommendation to accept the application. Further, during the run-up to the 6th Sept 2017, Robert Tokley did not release Mr. Fleetwood’s response to the residents. I have studied your Code of Conduct and the requirements from the Act and Regulations and suggest this individual has breached the aforementioned and ask that he be removed from any part of the process going forward. Given these facts, I request you consider again the use SCAP in deciding any action on this case. Per our previous correspondence, I know of four willing planners who will provide information in Court detailing inconsistencies when dealing with Robert Tokley and his interpretation of the Development Plan. I also note your March 2017 report details a commercial organization who submitted a formal complaint of inconsistency. A complaint has been lodged through the Council portal on this matter though I have little confidence in this being properly addressed, similar to the multiple freedom of information requests previously submitted without provision of a satisfactory answer to most, e.g. the Council cannot provide these documents as they are stored off-site. Request I would appreciate your consideration of the above letter, in particular seeking the immediate discontinuation of the vexatious and frivolous applications from Mr. Fleetwood and a legally compliant application of the Act and Regulations to this case. I suggest there is a public interest factor in play for this case, and I ask your Elected Members to consider this also.
Appendix A – Letter to David Penberthy, Adelaide Advertiser, 15th Sept 2017 David, I have read your opinion note in the Advertiser today and write representing the "other side" of the coin from a resident's perspective. I am one of the residents who objected to the planning application and to date, the residents have kept quiet. Attached is a series of docs (publicly available) which give another view of the planning application from Mr. Fleetwood. There is no doubt the Council, in particular Robert Tokley, have a case to answer. The magnitude of the problems does not solely lie at their door. Some facts for consideration DAP approved Mr. Fleetwood's planning application on 21 DEC 2011 - this approval was given despite a number of non-compliant positions of the planning application to the regulations The residents were not consulted in the process - for example Mr. Thomas at 15a Westcliff engaged all the residents when developing his plans. The first sight the residents had for 73 Cove Road was a Council planner arriving to assess Mr. Fleetwood's application, shortly followed by construction vehicle arriving on scene Mr. Fleetwood constructed his application to categorise it in a way that removed the requirement for him to consult neighbours - that was a clear decision from Mr. Fleetwood Shortly after the 2011 Council approval, the decision was overturned in Court by the Paiors. The house was partially built at this stage Now - instead of stopping his build, Mr. Fleetwood accelerated his house build and submitted another planning application to revise his retaining walls - he was in direct breach of the law by continuing the build The retain walls application was approved - this was NOT the approval of the partially-built house but of the land - nonetheless Mt Fleetwood claims incorrectly this was approval for the property - a misrepresentation to the public and a failure by the Council to prevent his continued illegal build Further, from the 2011 approval, Mr. Fleetwood built in direct contravention to his (later to be illegal) approval. He injected hundreds of tonnes of fill to the land, artificially raising the ground. This is a breach of the planning regulations. Photographs are evidenced in the documents attached During the 2012 court case, the Judge stated that Robert Tokley and Mr. Fleetwood should not act out of their own convenience but out of respect for the law - I have a letter from the Council CEO (Adrian Skull) suggesting contempt for the Court's authority So now both Tokley and Mr. Fleetwood realise their errors and continue to pool together to continue the path and consume over $300k of ratepayers money defending their decision in court against the Paiors Then we arrive at present day and Tokley commissions an "independent report" for the July 2017 planning application. Attached. Despite three neighbours rejecting to the application and one neighbour supporting [Mr. Fleetwood's family] the report states "general support for the application" from the Council to the DAP - again this is Mr. Tokley seeking to act out of convenience for his previous error Fortunately the members of the DAP have paid attention to the Court's authority and rejected Mr. Fleetwood's application - the approval from the Chair was more to save face, given he approved the 2015 revised application, that was also again later overturned in Court. So as you can see from these facts [all publicly available] that the problems lie very squarely at Mr. Fleetwood's door also. The Council is culpable (Mr. Tokley) for approving the 2011 application and for continuing to spend rate payer’s money defending their decision against the Paiors, whilst Mr. Fleetwood stands on the side. The fortunate factor is the Mayor. He is the one who forced the CEO to require Mr. Tokley to seek approval for continued spend on legal resources and the one, who as far as I can see, has sought to ensure the planning department acts with integrity. He has sought a review of the planning processes. It may help your opinion to also investigate the wider history of Mr. Fleetwood. That may result in a more balanced view of this unfortunate story and help illustrate his behaviour over this case. I suggest the Council has a very strong case to refute any claims from Mr. Fleetwood. He continued to build when the approval was overturned, but more important, he built in direct contravention of the approval, that later overturned. All of this may not have happened if Mr. Fleetwood had consulted his neighbours. Hopefully this information helps you provide the other side of the coin from one of the residents who have an illegal property directly overlooking his property with views straight into my bedroom. That is a breach of statutory law. I am happy to take questions if you deem necessary. Bob McGivern
Appendix B – Examples of Non-Compliance
1 & 2: Extent of Illegal Fill – approx 1.7m 14: View from 11 Westcliff Court before the works
13 – View from 11 Westcliff Court after the works
View from swimming pool on 15A Westcliff Court after the works
From Bob McGivern to local councillor Ian Crossland