Cr Rich in conflict over $200,000 claim
WHEN is a conflict of interest not a conflict of interest?
Apparently when Cr Jeremey Rich is making a statement to the South Gippsland Shire Council, as a director of his family company, Ansevata Nominees Pty Ltd, despite the fact that firm is into the shire for a debt of almost $200,000.
It is understood that Cr Rich’s father, Jacques Rich, was to have made the statement at the council’s public briefing session last Wednesday on behalf of Ansevata but was a late apology.
Cr Rich stood in.
He left his place at the council table, took a seat at the public presentation table and made the statement (below), prior to last week’s council meeting, at which councillors were being asked, and ultimately voted to reject the financial claim by Cr Rich’s company.
It’s all to do with issues arising out of a 1990 water taking agreement, entered into by the former Shire of Woorayl, relating to a council-owned retarding basin that serves the Promontory Views Estate and whether or not the water in the dam is fit for stock and irrigation purposes.
The shire has independent reports to say it is, Ansevata and Cr Rich argue the council has not fulfilled its end of the 80-year agreement.
The council accepted a report which detailed why “the alleged Council debt of $198,892.06 for an alternative water supply has no merit” and councillors voted accordingly; six for and Crs Hill and McEwen against.
Cr McEwen argued that it was all about risk management, pay $200,000 now or risk claims of $1 million to $1.2 million later.
But Cr McEwen failed to attend a briefing on exactly that subject, the likely risks of council rejecting Ansevata’s claim, by an expert from the shire’s advisors, Maddocks of Collins Street, just prior to Wednesday’s council meeting.
Cr Rich explains
Speaking to the ‘Sentinel-Times’ after his address but before the vote, Cr Rich defended his right to make a statement at the council briefing session.
“It’s a public place and I’m quite entitled to make a comment about my own business in a public place so why not the council chamber,” Cr Rich said.
“I took my name tag and badge off and came back in on purpose so that I was coming back in as a private citizen.
“You’re allowed to do that under the Local Government Act. Of course you are but there seems to be some confusion about that.”
Cr Rich declared a conflict of interest with the Walkerville Retarding Basin at the start of the council meeting later in the day and absented himself from the meeting and the debate when the issue was discussed and voted on.
Section 79 (6) of the Local Government Act 1989 says in part: “While the matter is being considered or any vote is taken in relation to the matter, the Councillor or member of a special committee must (a) leave the room and notify the Mayor or the Chairperson of the special committee that he or she is doing so…”
Here’s the statement Cr Rich made on behalf of Ansevata Nominees. For the most part he read a prepared statement from a computer screen but added some additional advice for councillors at the end.
Was he arguing the case as a councillor or private citizen? You be the judge.
From Ansevata Nominees
“We have a number of questions that have been on-going for a number of years. It seems to me, to us, that there are a number of unresolved issues which could be carefully and usefully clarified by council,” he said.
“In the scheme approved by Council, and mentioned in recital B of the Agreement (May 8, 1990 – ‘…construction of an underground storm water drainage scheme and retarding basin to receive storm water and treated septic tank effluent from the area known as the Promontory Views Estate…’). Two, the agreement requires samples to be taken at least six times a year, what samples have been taken since 2016? At what precise points and when? The agreement requires that the council make the results of the test available to Ansevata. Has it done so? When? Is there any samples that have not been provided to Ansevata? Has there been samples undertaken each year since, say 2013, during the period from May to August, if so what? What sampling methods have council adopted to comply with the EPA recommendations, covered by Clause 8 in the agreement:
The shire shall at least six times a year at no less an interval than one calendar month and at such other times when the Licensee has reasonable grounds to believe that waters in the dam may be polluted , take samples of such waters and have them tested for biological and chemical pollution in accordance with methods recommended by the Environment Protection Authority and make the results of such tests available to the Licensee…’).
“Clause 8 of the agreement provides that council take all necessary action to prevent untreated septic effluent being discharged into the dam. In accordance with council’s obligations what collaborative steps has the council taken to prevent untreated septic effluent from being discharged into the dam? What maintenance works has council undertaken since the dam was first constructed? When? Under the Walkerville Retarding Basin report, which is (inaudible) the RCMG (sic) report indicates that the estate has sandy soils which are helpful for waste treatment however there is no bore logs against soil types. What information was RCMG given by council as to the types of soil in the estate?
“There was a report from Southern Rural Water of the dam condition which listed a number of items which required urgent attention, including lowering the water level to make repairs. The officer’s report didn’t mention these items. What action has been taken to remedy the concerns expressed by Southern Rural Water and what is the cost estimate for the works suggested by Southern Rural Water? The Southern Rural Water report which was dated August 2017 also identified that urgent investigation was required about a riser outlet acting as a side entry pit. What investigation has been undertaken in the six months since the shire council received this Southern Rural Water report?
“The executive summary states that council view is that there has only ever been two issues relating to the basin, one historical and one that is in the process of being resolved. The historical issue is said to be council’s right to take water. The other issue is said to be the capacity of the basin. Has council ever regarded the issues of the quality of the water in the basin or the sampling method or its obligation to give samples to Ansevata? The executive summary states council has continued to respond to Ansevata’s complaints and questions, provided water quality monitoring results and otherwise complied with its obligations to make the water available to Ansevata.
“The agreement provides that samples are to be taken by council at least six times a year, at least one month apart and the tests given to Ansevata. Since 2015, have samples been taken six times a year, at least one month apart, and the results given to Ansevata? Will the (inaudible) works suggested by GHD restore the capacity of dam and ensure that the dam structure remains suitable, substantially as it was set out in the schedule 3 of the agreement?
“The council officer report states that Ansevata’s debt is fabricated in part because it was Ansevata’s decision not to take the water. Council directed Ansevata that the water could not be taken when there was a high E. coli reading in March 2016. That was after readings of 220 in November, 490 in December, 4400 in early 2016. The officer’s report says that Ansevata has been told by council many times since then that the water is suitable for use and can be taken. Is that in writing? If so when and can we have a copy please?
“When was the survey of the dam done? Is it the survey from Macie’s survey dated 27th of January 2016? If so was there any lineal data provided with the survey? And is there a licensed surveyor’s report?
“Paragraph 3B of the recommendation asks council to accept the recommendation that council will continue to provide details of monitoring. How will the monitoring be undertaken? At what points on the dam and how regularly? How will they be provided to Ansevata and how long after the monitoring is the data to be provided?
“Part 3.3 of the RCMG report states that industry guidelines have been used to develop the sampling and testing programs as part of the water and sedimentary quality policy assessment. How did RCMG know about the process used by council to develop the sampling and testing program? Were RCMG instructed in writing by Russell Kennedy? Is that letter of instruction available? The RCMG report states that in 2016 greater than 20 per cent of the results exceeded 400 organisms per 100ml of E. coli in sampling at point one. The rolling average medium of sampling point one also exceeded the guideline limit of 100 organisms per 100ml of E. coli in May 2016 until early 2017 when regular monitoring at this point ceased. Why did regular monitoring at sampling point one in 2017 cease? I have a lot of these questions and I have great concerns at the moment that the particular methodology which shire has taken towards ratepayers and businesses. I find it particularly adversarial and it doesn’t follow the collaborative nature with which the majority of this council I believe set out to achieve. And I ask every single one of my (started to say “fellow councillors”) people in this room to consider quite carefully and quite closely what are you agreeing to? Are you carte blanche agreeing to what an officer tells you? Or are you actually taking on board the information for yourself and making a decision? Because it is the role of a councillor to not just take instruction from a public servant but to actually give direction. Thank you very much.
Note: RMCG (RM Consulting Group Pty Ltd) provided council with an independent expert view of the suitability of the water in the Walkerville Retarding Basin.