GM rules out rescission motion

By Tim Howard

A rescission motion aimed at overturning the Clarence Valley Council’s approval to demolish and rebuild a controversial community centre in Yamba will be declared unlawful and not presented to the council meeting.

Deputy mayor Cr Greg Clancy lodged the rescission motion, to overturn approval to demolish and rebuild the Treelands Drive Community Centre, ahead of the August 18 extraordinary meeting of council.

But general manager Laura Black has informed him the motion was unlawful and has cited section 3.20 of the council’s Code of Meeting Practice, which forbids the general manager from including any notice which for various reasons could be considered unlawful.

The section of the COMP reads:

• 3.20 The general manager must not include in the agenda for a meeting of the council any business of which due notice has been given if, in the opinion of the general manager, the business is, or the implementation of the business would be, unlawful. The general manager must report, without giving details of the item of business, any such exclusion to the next meeting of the council.

The upshot of the ruling will be a report to the meeting from the general manager recording she has not included Cr Clancy’s motion in the business paper.

Cr Clancy said it was “outrageous” the general manager could make a ruling that shut down debate among councillors.

“This is a rescission motion that more than meets the requirements to come to council,” he said. “it has been signed by four councillors. The minimum requirement is three.

“These are matters which should be decided by councillors, not the general manager.”

The council COMP 17.6 makes this the only stipulation for a notice of motion to rescind.

• A notice of motion to alter or rescind a resolution, and a notice of motion which has the same effect as a motion which has been lost, must be signed by three (3) councillors if less than three (3) months has elapsed since the resolution was passed, or the motion was lost.

The motion Cr Clancy sought to rescind was itself a controversial rescission motion, brought by the general manager and allowed in contentious fashion.

At the February 28 meeting Cr Clancy questioned if it was lawful, as it did not have signatures from any councillors.

Mayor Ian Tiley, reading advice from the Office of Local Government, allowed it on the basis it that new information had become available, that the council’s resolution to refurbish the centre and include a library was outside grant funding guidelines and put at risk the council’s $11.1 million Bushfire Local Economic Recovery grant.

Council voted to rescind the resolution and reinstate its plan to demolish and rebuild the centre, which had been the plan when the grant funds were made available.

The community has since learned there was no such risk to the BLER funding.

The Yamba Community Action Network made successful requests under GIPA legislation to see emails between the council and the Department of Regional NSW around this issue.

One email, in March, from a Department employee to council showed the department was aware of both Option A and B and was prepared to fund either option.

“With regard to point 2, I’m concerned that perhaps there’s been some confusion with the funding deed conditions, because for this project, we were aware Council were working on Option B and it would have been a permissible scope variation (i.e. to refurbish the existing centre, rather than knockdown/ rebuild, in order to deliver the project within the available funds). I thought it would be helpful to clarify that point,” a grant project officer wrote in email to council.

The GIPA documents also revealed the “new information” relied on to allow the rescission motion had been a ruling from the department informing the council it could not transfer funding from the Treelands Drive Centre to another, entirely different project, the proposed Grafton Aquatic Centre. This ruling had no bearing on choosing between plans to demolish or rebuild the centre.

Despite receiving information that appeared to contradict the reason for the council to allow and approve the February 28 rescission motion, this information has never come to a council meeting.

Ms Black has made no secret she was of the opinion the latest rescission motion was unlawful.

The council has issued a press release describing the motion as unlawful and made the same point in an interview on FM 103 Loving Life radio.

Her view was the council could not rescind resolutions where the action had been taken or commenced.

“There are a number of motions, that sorry a number of resolutions that the rescission motion sought to cease I suppose or stop or halt or, you know, reverse,” Ms Black said on radio. “However, they have in the main, they have all been commenced.

“So, one of them was the negotiations, another one was that tenders were called, there are a number of different resolutions there, but they have already occurred, so you can’t rescind something that has already occurred.”

Defamation threat must be formally withdrawn

By Tim Howard

A community group accused of defaming a senior Clarence Valley Council staff member says it remains under threat of litigation, despite council’s claims it has not commenced court action.

Last week the council issued a statement saying it had no plan to litigate against the Yamba Community Action Network or two of its office holders, Lynne Cairns or Col Shephard.

In July the council solicitor sent a letter to Yamba CAN claiming the group had defamed its general manager Laura Black and demanded it apologise and remove a Facebook post.

The group, acting on legal advice, took this to be a concerns notice which is an essential first step in defamation proceedings.

Mrs Cairns said while the mayor and council spokespeople have claimed there has been no litigation, the original letter has not been formally withdrawn.

Yamba CAN Inc’s solicitor has advised that the council’s solicitor’s concerns notice is a document necessary to begin court proceedings and that council has until July 2024 to take Yamba CAN Inc to court if they believe Yamba CAN Inc has not complied.

“If council is not proceeding and threatening litigation in court will council’s solicitor be writing to Yamba CAN Inc’s solicitor informing the alleged defamation proceedings are withdrawn?” Mrs Cairns said.

The group’s legal advice has queried other anomalies in the council’s solicitor’s two letters to Yamba CAN

The first, a concerns notice, was addressed to “Yamba Community Action Network (Yamba CAN) Inc.

She said the advice was the letter addressed Mr Shephard and Mrs Cairns as office bearers.

A second letter of further particulars, addressed to Yamba CAN Inc’s solicitor said:

“Our Client: Clarence Valley Council” and “Your client: Yamba Community Action Network (Yamba CAN) Inc.”

The council has claimed its p Yamba CAN Inc’s solicitor has replied to council’s solicitor denying the defamation allegations.

Yamba CAN wants an open and transparent council that welcomes community participation and upholds probity of council decision-making and good governance in accordance with council’s Strategic Internal Audit Plan 2022/2024.