Maladministration and Darebin Council - the continuing story of Clements Reserve - 2018-2021
Updated: May 26, 2021
Avoidable delays and poor implementation
Incorrect valuation instructions
The current state of negotiations
The question which I have set out to answer is why, since 2015, has Darebin Council been unable to secure land at Clements Reserve, Reservoir, despite a substantial amount of effort directed to that end? I will show that there have been a series of avoidable delays, failure to properly grasp the State Government's land disposal process, and lack of tracking and implementation of decisions that, taken together, rise to the level of maladministration. I trust that the findings in this case study will lead to reflection within Darebin Council followed by change in its work practices.
In 2015 Clements Reserve was one of several parcels of land that were offered for sale to Darebin Council (2012-2016) by the Victorian Government. It was not acquired at the time because the then majority on Council pursued a failed strategy to get such land gifted by the State Government, and because the McMahon Road portion of the land within Clements Reserve was described in a Council report as being of 'no strategic value' despite its location next to Darebin Creek. Some of this history has been documented in my article titled, Decisive action is needed by Darebin Council to protect Clements Reserve (January 2019) which drew on the minutes of Council meetings between 2015-2018.
I have now been able to dig deeper into the story through an analysis of many dozens of documents obtained under a Freedom of Information (FOI) request. The next instalment picks up the narrative from the end of 2018. A summary of the correspondence, with additional commentary, is set out in a longer chronology at the end.
Avoidable delays and poor implementation
For three years, there was no further discussion about Clements Reserve in Darebin Council until an officer from the Department of Transport initiated contact in July 2018. This eventually prompted internal discussion.
On 17 September 2018, a Council officer explained in an email to a colleague why McMahon Road had come to be regarded as strategically important. In 2015 land had been ranked for acquisition to fill gaps in the open space network and McMahon Road was not located where there was such a gap. This strategic assessment changed under the stewardship of the 2016-2020 Darebin Council because it had an, "...increased focus on biodiversity and increasing open space not just for recreational use but also for habitat preservation/recreation."
Thus, on 15 October 2018, it was resolved to seek the transfer of 1-11 McMahon Road from the State Government at a cost of up to $140,000.
Ministerial approval was sought by the Department of Transport and granted for a diminished (i.e. discounted) sale in early 2019. At this point it looked like the matter would be resolved and that the settlement would also include two landlocked parcels of land at the rear of Clements Grove. A joint valuation was sought from the Valuer General for the purpose of negotiations.
Unfortunately, the rest of 2019 was lost to entirely avoidable delays that appear to be due to lack of oversight of a single officer within Darebin Council. This staff member states in emails that they had no cover while they were on several periods of leave or when they were acting in another role. There is no evidence on file that they tried to initiate a handover of the project to anyone else, or that any supervisor sought a report on their progress with negotiations. If such a discussion took place in staff meetings it is not evident in any of the FOI documents. However, this is not just the responsibility of a single individual; it is the collective responsibility of their department.
The State Government follows a strict protocol when dealing with land transfers that requires an up-to-date Valuer General valuation prior to formal negotiations on price. The FOI file shows repeated pleas from an officer within the Department of Transport to progress the matter otherwise the valuation would lapse. The officer followed up diligently by email and telephone but perhaps should have tried to escalate the matter to a Departmental Head when the Council officer was unresponsive. The Department of Transport officer continued to follow up with the Council officer even after the valuation lapsed on 25 December 2019.
I don't know how much it costs to get such a valuation done but based upon the extent of the documentation that had to be prepared it is probably not cheap. The cost would have been shared by the Department of Transport and Darebin Council.
The matter came to the attention of a team leader on 23 July 2020, triggered by my questions to Council a few days earlier. Clearly disturbed by the lack of follow up on the acquisition of Clements Reserve, the team leader sought to institute a new requirement for tracking the progress of all matters that come before Darebin Council. I am not convinced that the system has been implemented by staff given continued evidence of lack of follow up. An officer tasked with trying to reconstruct what had happen aptly described their efforts in an email on 23 July 2020 as trying to reconstruct a 'jigsaw'.
Even with my constant reminders it took over 6 weeks to get an answer to my questions about lack of action to acquire the land dating back to 2018, failure to receive a report about the matter in the first quarter of 2020 as expected, and the significant valuation discrepancies which came to light during the budget process.
Incorrect valuation instructions
Before Darebin Council can make an offer on a purchase of land it must also obtain its own valuation so that it has a starting point for negotiations with the State Government. It does this through the services of an external consultancy. There are several points at which this valuation was botched.
Back in 2015 an Associate from the consultancy was asked to give what amounts to a ball-park estimate of the value of the land. The valuation came in at around $95,000 for all three parcels based upon its use as parkland. I used this valuation from a report in the 5 October 2015 Council meeting as a basis for my submission to the 2020 Council Budget process requesting that the land be bought.
In June 2020, the Associate appears angry in correspondence with Council that they were not provided with adequate instructions about the purpose of their 2015 valuation. Had they been properly instructed they would have split the valuation into three parts and undertaken a full market valuation rather than an open space valuation. The two parcels of land at Clements Grove are landlocked within the park whereas the McMahon Road portion has street frontage and would thus be significantly more valuable on the open market.
I expect that the McMahon Road portion should have been valued using a General Residential zoning. Why? Because the State Government land disposal process requires valuations that are based upon the 'highest and best use'. It is only after the market value of the land is determined that any discount is applied. In exchange for such a discount, Council would then agree to public-use restrictions upon the land. This eliminates the possibility of Council selling the land at a profit down the track and pocketing the difference at the State Government's expense. There is evidence on file that officers within Council were not familiar with this process which may explain why the Associate was incorrectly instructed.
The current state of negotiations
So how much is Clements Reserve really worth? According to a report provided to Councillors for the 7 September 2020 meeting the new valuation undertaken by Council's valuers came in at $1.18 million whereas the Department of Transport said it would consider an offer of $1.97 million (plus GST). (It is not clear from the report whether the Department of Transport offer is inclusive of any discount.)
In other words, the original 2015 valuation of $95,000 of the three parcels of land is wildly wrong for its purpose; the true value is between 10-20 times higher! No wonder the Associate was not happy about being incorrectly briefed. The discrepancy in value is embarrassing and the chronology below shows in grim detail just how confused at least one Council officer was in relation to the valuation process the second time round. By 7 July 2020, the Associate had provided Council with a new valuation that they were comfortable reflected the correct value of the land for the purpose of negotiations.
The matter came back to Council on 7 September 2020 and councillors voted unanimously to empower the CEO to commence negotiations to acquire the land. This resolution was intended to be actioned before the Council went into its caretaker period. It was not. Neither of two letters drafted on behalf of the Mayor, Cr Susan Rennie were sent to Planning Minister, Richard Wynne.
A letter seeking the Planning Minister's assistance to secure the land was instead sent by current Mayor, Cr Messina, on 14 December 2020. It does not appear that other politicians, whose assistance was supposed to be sought to help with negotiations, received any correspondence. After I queried the matter on 21 March 2021 with questions to Council a letter was hastily despatched to the Member for Preston, Hon. Robin Scott, MP on 31 March 2021 - over six months after it was due! Why our elected councillors thought that six politicians needed to be involved in negotiations on the sale is baffling. One or two would surely be enough to get help with movement on the price.
Anyway, there should be ample funds in the Public Open Space Reserve to purchase the land (around $18million dollars when I inquired in mid 2020), the Department of Transport was eager to sell, and the Planning Minister had already agreed to a diminished sale. The fact is that all the delays and obstruction have been on Darebin Council's side not on the side of the State Government. As one Council officer aptly noted on 2 July 2020, "It seems like it may simply be a case of purchase it, or lose it."
You would think that we would now be at a point, in April 2021, where the parties can negotiate around the true market value of the land, followed by the application of the public open space discount. Yet there is a further, strange hold up in the acquisition. According to a response to my 21 March 2021 questions, Council is now seeking 'town planning' advice from VicRoads relating to the site and thus has not yet sought another joint Valuer General valuation. I will be asking further questions at the next meeting about why town planning advice would unexpectedly be required. To me it looks like a further unnecessary delay.
Had the land been acquired in 2020 it may have been worth less due to the initial impact of the pandemic. Now, with skyrocketing prices for real estate across the country, its value will again be inflated. On McMahon Road, directly across from the park, a free-standing single story brick veneer home on a 701 m2 block sold for $1.278 million dollars on 17 April 2021. The amount of State Government land for sale in Clements Reserve is 3,962 m2 fronting McMahon Road, and 5,747 m2 in the two landlocked parcels behind Clements Grove. This puts the Government's offer on price into some context.
It's genuinely difficult to understand how such a cascade of mishaps could happen in respect of the acquisition of three small parcels of land that sit within an existing Darebin Council park.
The debacle has dragged on for 6 years and, so far, three elected Councils have failed to secure the land for the community. We elect councillors to oversight such matters yet, overall, they have been reactive to community concerns rather than proactively ensuring that their own resolutions have been implemented.
Within the Council bureaucracy, this case study shows confused lines of accountability, lack of understanding of the State Government land disposal process, and failure to adequately track and implement the decisions of elected councillors.
Clements Reserve is just one in a series of State Government land offers dating back to a single Council meeting on 5 October 2015 where, in the face of similar mistakes, parcels of land with environmental and/or community significance were only acquired due to sustained lobbying by the community, (e.g. the former Ruthven Primary School, the former Lakeside Primary School) or lost despite such lobbying (e.g. the Dumbarton Grasslands).
How many other costs have been incurred by Darebin Council due to instances of maladministration that have not been subjected to this kind of scrutiny? How much time, energy and effort is being wasted in failing to deliver upon Council's objectives?
It's well past time for an internal review of Council's processes.
Darebin Council seeks to acquire Clements for a second time - August 2018
VicRoads writes to Council offering to facilitate the land transaction - January 2019
Valuation Request and Ministerial approval for a diminished sale - April 2019
Offer of sale met with repeated delays by Darebin Council - October 2019
Valuation discrepancies and the allegedly poor instructions to Council's valuer - June 2020
Budget submission - Serena O'Meley - and internal investigation - June 2020
Another attempt to secure Clements Reserve - September 2020
Still no progress on the purchase of Clements Reserve - March 2021
The following is a long read of the sources which I have relied upon to develop my narrative.
Council seeks to acquire Clements for a second time
On 21 August 2018, Mayor Kim Le Cerf, wrote to Minister for Planning Hon. Richard Wynne to advise that the Council had an 'in principle interest' in the land at 1-11 McMahon Road, Reservoir as open space. She noted that strategic investigations were underway and that the matter would come before Council at its ordinary meeting on 15 October 2018. The purpose of the letter was to request that a decision regarding any planning pathway be deferred until then. The extension would be granted by the Minister in a letter dated 13 September 2018.
On 17 September 2018, a Council officer explained the strategic importance of the land to a colleague as follows:
"The major change is the current increased focus on biodiversity and increasing open space not just for recreational use but for habitat preservation/creation. In 2015, Council's directive and commitment towards increasing biodiversity values was not as strongly pronounced as it currently is with the current Council Plan, establishment of the Darebin Nature Trust and establishment of Climate Emergency Darebin. This commitment comes with access to increased funds associated with the Darebin Nature Trust and the directive of the Nature Trust to acquire land for conservation and biodiversity.
In 2015, one of the key considerations in ranking parcels of land for acquisition was to fill gaps in the open space network - in this case a proximity based assessment of residents having access to open space within 500m of their homes. The parcel of land at 1-11 McMahon Rd Reservoir was not a high priority strategically in 2015 as it was not located in an area where there as a gap in the provision of open space.
While this remains true, the focus on biodiversity increases the strategic importance of this parcel as it is within 100m of the Darebin Creek making it an important part of an integrated corridor of land along the Darebin Creek. Darebin's creek corridors are key hubs for habitat, biodiversity and passive recreation and securing land in a continuous corridor along the creeks becomes more important."
On 2 October 2018, an officer within Strategic Asset Management requested a standalone valuation for 1-11 McMahon Street (sic), Reservoir because they were going on annual leave the next day and it was needed for a Council report.
A Certificate of Valuation Estimate for 11 McMahon Avenue was received from the Associate on 3 October 2018. This valuation was not provided with the FOI documents as it is confidential. However, it is likely to be $140,000 or less as reflected in the negotiating cap set out in this resolution from 15 October 2018 Darebin Council meeting:
The Mayor, Cr Kim Le Cerf, wrote to the Minister on 16 October 2018 outlining the key points of the resolution and requesting first right of refusal for any future negotiations in relation to the land.
VicRoads writes to Council offering to facilitate the land transaction
VicRoads wrote to Council's CEO on 25 January 2019 (received 31 January 2019) in response to the Mayor's letter of 16 October 2018:
"VicRoads have advised DELWP of our intention to progress with the rezoning of the Property, however, should Council wish to acquire the Property to preserve it as open space, VicRoads is willing to work with your team to facilitate this transaction. If this was to be pursued further I would suggest we jointly engage to the Valuer-General Victoria to determine the value."
The same letter also drew attention to the land at the rear of Clements Grove and sought to include it in the valuation with a view to providing a "permanent resolution." The correspondence asked for a response by 28th February 2019 to "ensure that the matter would not be delayed further."
Valuation Request and Ministerial Approval for a Diminished Sale
On 29 April 2019, an officer in the Commercial Enterprises Department of VicRoads wrote to DEWLP for a formal valuation of the all three parcels of land. The signed request was dated 26 April 2019. This email was subsequently forwarded twice to unknown parties on 27 November 2019 and 5 December 2019.
The valuation request notes that all three parcels of land are covered by an Environmental Significance Overlay, and this is an area of Aboriginal "cultural heritage sensitivity." The documentation states that none of the areas are subject to inundation though one corner of 1-11 McMahon Road is shown as falling on an Urban Floodway Zone. There is also a Melbourne and Metropolitan Board of Works six-foot wide draining and sewage easement running along what appears to be the back part of the fence line of the McMahon Road parcel of land.
An officer from the Department of Transport (DoT) wrote back to Darebin Council on 25 July 2019 to confirm that they had received Ministerial approval for a diminished (discounted) sale for 1-11 McMahon Road, and also the rear of 22 & 32-34 Clements Grove, Reservoir. They were seeking Victorian Government Land Monitor (VGLM) approval and would get back to Council once advice had been received. An officer in Darebin's Governance & Performance (G&P) department replied on the same day and said that once confirmation was received they would provide a report to Darebin Council.
Offer of sale met with repeated delays by Darebin Council
On 11 October 2019, an officer from the Department of Transport sent formal correspondence to Darebin Council offering to sell it the land (the proposed value is redacted from the FOI'd documents). In line with the government's land disposal policy, a condition of the sale would be that the land would be zoned Public Park and Recreation Use in perpetuity. They sought a response to the correspondence by 11 November 2019.
They did not receive an acknowledgment of the correspondence and made two further follow up requests for a response on 22 October 2019, and again on 15 November 2019.
A Council officer (G&P) responded on 15 November 2019, apologising for the delayed response and stating that they had been on leave and acting in another role. They were now going to prepare a report for Council and noted the matter would likely be delayed into the next year. Their email was acknowledged by the Department of Transport officer on 18 November 2019.
On 27 November 2019, the Council officer (G&P) wrote back to say that they had a private family matter interstate to deal with and that they had been unable to hand over to anyone. They sought an extension so that the matter could be considered at the first meeting of 2019.
The DT officer wrote back on 28 November 2019, as follows:
"The current valuation is valid until 25th December 2019. In-line with the Victorian Government Land Transaction Policy once the valuation has expired we are required to consult with the Valuer General to confirm if the offer is still current. Would you consider providing your report to Council noting the offer expires 25 December 2019, Darebin Council and Department of Transport will seek joint advice from the Valuer General to confirm if the offer is still current?"
There was no response to the correspondence from the Department of Transport officer.
On 15 January 2020, the Department of Transport officer wrote back again asking when the matter would be considered at Council, noting that the valuation had expired, and that they had received both Ministerial, and Land Monitor approval to sell the land at a diminished value.
There was still no reply to the Department of Transport officer's correspondence.
The Department of Transport officer wrote again on 29 January 2020 as follows:
"I have left a message for you. Can you please respond to the email/voicemail. [sic] DoT needs to progress this matter."
On 11 February 2020, the Department of Transport officer thanked the Council officer (G&P) for their time on the phone the previous week and reconfirmed that they were seeking "the timeframes which Council will be able to assess the acquisition of the sites."
On 20 February 2020, the Department of Transport officer again requested the timelines.
The Council officer responded on the same day as follows:
"As discussed I am in the process of preparing a briefing report but due to the required lead time it has been scheduled for Council briefing on 14 April 202 (sic) and then will go to the next corresponding council meeting on 18 May 2020.
Whilst I understand the current valuation has expired and a new one will need to be obtained, it will form part of the report."
The Department of Transport officer acknowledged the correspondence the following day.
On 29 April 2020, the Council officer told the Department of Transport officer that due to "unprecedented times" the matter would be deferred on the agenda until 29 June 2020.
On 30 April 2020, the Council officer unexpectedly responded to the Department of Transport officer's correspondence of 15 January 2020 as follows:
"Just wanted to confirm that this relates to the valuation undertaken on 8 May 2019, and there has been no subsequent valuation report."
Valuation discrepancies and the allegedly poor instructions to Council's valuer
The Valuer General valuation was originally sent by a Senior Valuer to Council on 23 May 2019. Redaction of documents makes it unclear who it was subsequently discussed with in an email dated 11 June 2019.
The Associate states,
"No proper instructions were issued on the job and as I understood the valuation was only meant to be an indicative estimation of what the site is worth as parkland for internal purposes only. If you wanted a full market valuation of the land, you'd need to instruct that in future.
There were very limited details furnished to me of the site and no clarification of what can or can't be done on the site."
The Associate goes on to dispute the Valuer General valuation with reference to various local land sales of unencumbered properties [all financial details are redacted]. The person expresses disbelief that the property could be worth so much more in 2019 than it was in 2015.
The Associate says:
"In hindsight, I should probably look at it as three separate titles capable of being sold separately, but I incorrectly looked at it as an overall parcel and potentially landlocked with a land area close to that of [redacted] Radford Road Reservoir. As such the figure is probably understated and should be returned to us for review if required."
The Associate goes on to say that if Council wants a full valuation in future that it must disclose all relevant details.
In a follow up email on, 1 June 2020 an officer within G&P wrote to the Associate to ask whether they were ever asked to review the valuation. The response received on the same day was as follows:
She did ask me to explain why the discrepancy between VGV andours (sic) which I tried [to explain] in an email to her.
In future, we really need proper instructions for any jobs that Council require, because I've been asked to do these "quick feasibility ones" only to find out later that Council intends to use that assessment to negotiate with the State Government.
The purposes of valuations are not made clear from the beginning that is why the valuations can be so drastically different."
On 4 June 2020, the officer within G&P asked the Associate to arrange for a valuation on a similar basis to the VGV in order to progress negotiations.
On 15 June 2020, the Associate requested the Title plan details for the properties and also their covenants. Those documents were forwarded the next day.
On 6 July 2020, the officer from G&P asked for a progress report from the Associate, noting that a Notice of Motion regarding the land had been received from a Councillor and that they would need to provide them with a valuation. The officer also did not know whether the government's valuation was still viable (of course, as previous correspondence shows, it was not.)
The Associate responded the same day to say that the matter was in the hands of their director for QA (which I assume to mean Quality Assurance) who had been away. The Associate writes,
"I suggest Council request the state review their valuation as well. The key issues (sic) is that we are miles apart from one another hence the intensity of the QA from my Director because there is a strong possibility this will escalate further to a valuer conference and more."
On 6 July 2020, the officer from G&P realises that it won't be possible to get the valuation done prior to the Council meeting. She confirms that VicRoads is open to a new joint valuation. She goes on to say that,
"...[redacted] has discussed that we probably should base the value of the land on comparable PPRZ land sales and not residential.
Is there a way to argue why we can use residential sales?"
This appears to betray an internal misunderstanding of the government's land sales process. The valuation is always based upon "the highest and best value", a discount is then applied in exchange for the agreement to use the area for a public purpose, such as parkland, in perpetuity. In the case of the three parcels of land in Clements Reserve one would assume that the two landlocked portions would be valued using a Public Park and Recreation Zoning, while McMahon Road which has street frontage would be valued using a General Residential Zoning.
On 7 July 2020, it was confirmed by an officer within City Futures that valuations from the VG expire after "1 month within the current climate."
The officer then stated that the purchase might have to wait until after the elections as "Council cannot make a decision to purchase during pre-election period or caretakers (starting late August)."
The fact is that the purported date of the caretaker period was incorrectly stated. The caretaker period for the 2020 Council elections commenced on 22 September 2020. There was more than sufficient time to seek the joint VGV valuation and take the matter to a meeting of Council for a decision.
The officer went on to say that,
"...it would be great to get clarification on the valuation methodology and some directions on whether it should include or exclude residential sales from the comparative analysis."
The Associate wrote back the same day (7 July 2020) as follows:
"My Director has given me the go ahead to send you the value but commented that the degree to which the 100m buffer will impact the land and Covid may not have been fully recognized in our number ie. He reckons I could possibly go lower. That being said. He does feel that my figure is supportable and Council should be able to rely on it as being a fair base to start their deliberations on."
The Associate also strongly recommends that Council request an updated valuation from VGV allowing for those factors; as well as providing Council (us) to provide any other 'inputs' we consider appropriate. We hope this will suffice."
Budget submission - Serena O'Meley - and Council investigation
On 16 June 2020, I made a budget submission in relation to Clements Reserve seeking for it to be purchased and referring officers to my previously written note about the importance of the land: Decisive action is needed by Darebin Council to protect Clements Reserve (January 2019). I made a presentation in relation to the budget submission to a Council meeting on 30 June 2020.
On 1 July 2020, an officer in City Futures was asked to investigate the matter:
"It was proposed that we purchase some pieces of creek-adjacent land that is currently owned by State Gov, using the open space reserve. We are trying to understand if there is any urgency around this. Apparently they offered them to us previously, and there was talk of them being rezoned.
Can you please give the Dept a ring to understand:
Do the State Gov have any imminent plans for these pieces of land?
Do they have any intention to rezone this land? If yes, to what?
What is the likelihood of them moving to dispose of them in this financial year?
Would they be looking to offer them to us to purchase in future if they become available?"
On 2 July 2020, the officer wrote back to say that they had to "delve into years of files to paint the picture on this one" and set out a series of dot points, of which the following is the most salient:
"I've spoken to the contact for VicRoads today - they are keen for us to buy the property and are waiting for a decision:
o They are happy to see a new joint valuation (with agreed terms), and then negotiate on price based on land remaining PPRZ with diminished value. They would potentially use our valuation if the valuer is on the State panel.
o They are seeking our intent to buy
o If we don't purchase they will seek rezoning based on policy re highest and best use
In terms of land acquisition strategy - the parcel already meets strategic needs in terms of location, environmental sensitivity and current usage so I don't think we need to wait for that work to be done. It seems like it may simply be a case of purchase it, or lose it."
The officer notes that the alternative strategy of doing nothing and advocating against rezoning is risky and that the best strategy would be to secure the future of the land and negotiate down the price.
The budget submissions were considered at a Special Council Meeting on 15 July 2020. Although officers acknowledged the "sites have strategic merit for acquisition" they did not recommend funding support for the 2020-21 budget.
My reason for making the submission was to ensure that the matter was returned to Council's priorities. I was aware that the purchase could be made at any time from the Public Open Space Reserve and did not require a specific budget line item. This goal was achieved given that two Councillors put up separate motions to secure the land.
Cr Tim Laurence proposed an amendment to the budget seeking the purchase of Clements Reserve at an initial allocation of funds of $1.5 million. The amendment was lost, presumably based upon the officers' recommendation and because there was another motion pending that was supported by the then majority on Council.
Councillor McCarthy's Notice of Motion - 6 July 2020
Cr Trent McCarthy had already proposed a notice of motion on 6 July 2020 seeking purchase of the three parcels of land within Clements Reserve citing a total value (redacted). This led to a flurry of concerned internal correspondence involving staff from City Sustainability & Strategy, City Futures and G&P, noting that a new valuation was required.
Cr McCarthy was advised that he needed to change the NoM because of the Governance Local Law which prevents an NoM from committing Council to expenditure greater than $5,000 that is not included in the budget. The NoM was substantially amended as requested and adopted unanimously at the Council meeting of 20 July 2020:
Thus, there was a further six-week delay while the report was being prepared. One question I have is whether Darebin Council could have relied upon its 2018 resolution on the matter rather than calling for another report? However, it does appear that a report is a necessary precursor for a motion that has large cost implications. It's a frustratingly slow process.
Questions to Council - Serena O'Meley
At the same 20 July 2020 Council meeting I asked the following questions demanding to know why the land hadn't been purchased in 2018 and seeking to understand the blow out in the value of the land that had been revealed during the budget process:
Clements Reserve - 1-11 McMahon Road
1. Why was a 2018 Council Resolution to seek the transfer of land in Clements Reserve at 1-11 McMahon Road, to a value of $140,000, not actioned (see Minute No. 18-289 on 15 October 2018)?
2. Why did Council not receive a report about the future of land at 1-11 McMahon Road as expected in the first quarter of 2020 (see the response to my question to Council, Item 5 on 9 November 2019)?
Three parcels of land in Clements Reserve
3. Why has the combined valuation of the three parcels of VicRoads land in Clements Reserve (1-11 McMahon Road, and the rear of 32-34 Clements Grove) massively increased from $95,000 in 2015 (see Item 903 Appendices A to C Council Meeting 5 October 2015) to $1-2million in 2020 (see Item 401 - Appendix C - 2020-21 Budget Community Submissions 15 July 2020), and did this latest estimate take into consideration the position of the land on a flood plain, its environmental sensitivity, and any open space discount which is available via the State Government?
My questions were disallowed on 'governance' grounds; it remains my view that the Mayor could have exercised her discretion to answer the questions but chose not to based on officers' advice. I rang the Mayor, Cr Susan Rennie, on 22 July 2020 to complain and followed up with an email seeking to have the failure to answer my questions remedied on the public record. I wrote as follows:
"The questions were about prior actions and decisions related to Clements Reserve, whereas the motion proposed by Cr McCarthy at the meeting related to prospective actions. On that basis the questions should have been answered. In addition, it is within the discretion of the chair to answer questions related to a Notice of Motion even if they did have crossover content.
It seems to me that the officers didn’t want to answer these questions because they are embarrassing."
The Mayor responded the same day with an acknowledgment and said that she and the CEO would follow the matter up.
On 23 July 2020, under the heading "Help!", someone in G&P requested assistance to answer my questions. They were sent my question to Council on 6 November 2019 and Mayor Rennie's response as background:
• Serena O’Meley, Reservoir
"At the Darebin Council meeting of 5 October 2018, Council resolved (MINUTE NO. 18-289) to oppose rezoning of Public Parkland at 1-11 McMahon Road and to negotiate for its retention within the municipality. This land is of strategic importance for biodiversity, habitat and recreation purposes because it is located in Clements Reserve which borders Darebin Creek. Can Council confirm whether this land has been secured from DEWLP? If not, can a progress report be provided on the current state of negotiations to retain the land?
Response from Chairperson, Mayor Rennie
Thank you for your question.
I can confirm that Council wrote to the Minister for Planning following the resolution of 15 October 2018. In this letter, Council stated that it doesn’t support the proposal to rezone the Land from Public Park and Recreation Zone and that we’re calling for the Land to be either surrendered to the Department of Environment, Land, Water and Planning, or transferred to Council.
Discussions between Council and the State Government about the future of the land are ongoing; however, we understand that the State Government is not proposing to rezone it while the discussions are underway.
One of the avenues being explored by Council is the possible purchase of the land. A report to Council with a recommendation about the future of the land is expected to be presented in the first quarter of next year."
On 4 August 2020 I sent a reminder that my questions from July had still not been answered
On the 5 of August 2020, the CEO (I must presume due to redaction) asked an officer within G&P to draft a response for discussion with the Mayor.
On 26 August 2020, an officer within the CEO's office sent an email to their team checking whether the matter had been closed. Someone in the team wrote back to say that they would follow up.
Then follows a series of emails showing that there is confusion within the team about whether a response was sent to me. This lack of organisation is concerning.
I finally received a response to my questions from 20 July 2020 in an email dated 3 September 2020. By this time, the discussion had degenerated into an unedifying contest between a governance officer and me regarding the operation of the governance rules and whether the Mayor could/should have exercised her discretion to answer my questions back in July. For the purposes of this narrative, this part of their response is of most significance:
"Following the impacts of COVID-19 and other factors out of our control the further report to Council that was expected in the first quarter of 2020 was delayed. In order to progress this matter moving forward, Council is required to once again request a joint valuation with VicRoads from the Valuer-General for the land parcels. In saying this, Council officers have in the meantime requested a valuation from Councils (sic) contracted valuer in readiness for discussions once the Valuer-Generals valuation is obtained."
In relation to my question about the blow out in the estimated cost of the land compared with an internal valuation from 2015, the governance officer responded as follows:
"The $95,000 estimation was prepared by Council’s City Valuer at a Public Open Space market value in 2015. This estimation, was not an offer from VicRoads for Council to secure the land. In order for Council to proceed with negotiations to purchase the land from VicRoads, the estimation would need to have been provided by VicRoads for Councils (sic) consideration. In 2015, this did not occur."
The response to my questions were not put on the public record as requested.
Internal call for a review of close out of actions
My agitation around Clements Reserve had obviously stirred up concerns within Council about lack of follow up.
A team leader, in an email dated 22 July 2020, with a new subject line 'council resolutions and close out of actions' noted that my questions to Council were about "resolutions of council that have not been actioned." Clearly unhappy with this state of affairs they attempt to put in place a process for review as follows:
- can you please review the current process that the team use so that they check in after every Council meeting (regardless of whether we are submitting a council report or not) and also after every Council briefing session (regardless of whether we are submitting a council report or not) so that we track what action the team need to undertake and by when.
- Can you also confirm how you use the monthly council resolution report that Council Business prepare that tracks outstanding council resolutions for action (refer [redated] in need).
- Can you please advise what the new process is, document it, and when will it be implemented."
Also on 22 July 2020, a Council officer in G&P wrote as follows:
"As you are probably aware, this one has been ongoing for some time.
I'm in the process of trying to understand the actions taken to date (like a jigsaw) and where appropriate have undertaken some very small actions (contact with VicRoads and the request for a review of the recent valuation by the appointed Council valuer) to ensure this keeps moving with a view of working more closely with VicRoads to get traction on the proposed sale in the nearest future.
In saying this, following the most recent budget submission made by Ms O'Meley, it is my understanding from emails following my leave that this would be further investigated following the elections at which point Council would re-engage with VicRoads to obtain a joint valuation and recommence negotiations. I will need to seek further clarification on this from Strategic Planning, however, this was the proposed submission response they provided:
Council is committed to retaining this important Creekside land as public open space in perpetuity. Council was recently made an offer by the State Government to purchase 3 parcels of land in this location. There is still some work to do on land valuation and negotiation process with the State Government to understand what this would cost, however the information in the submission is out of date and the land will cost considerably more than what is proposed. To ensure this land remains as open space, council is in the process of exploring its options regarding the purchase and will bring the matter to a future meeting of Council for consideration. Depending on the outcomes of the final sale price, this could be wholly funded through Council's open space reserves so no budget allocation is recommended."
The lack of urgency to deal with the matter is shown by the expectation that the matter would be followed up after the elections which were still two months away.
Email from an officer on 24 July 2020 reviews correspondence between Darebin Council and VicRoads between 16 October 2018 and 26 February 2019, and makes the following claim,
"It appears that Council has been working with VicRoads since this time in order to have VicRoads formally offer Council these parcels."
The officer goes on to say that,
"Following the impacts of COVID-19 and other factors out of our control the further report to Council that was expected in the first quarter of 2020 was delayed and the Valuer-General's valuation expired. In order to progress this matter moving forward, Council is required to once again request a joint valuation with VicRoads from the Valuer-General for the land parcels. It should be noted here that the valuation will only be valid for 1 month and this will need to be considered when planning for future reporting to Council. In saying this, Council officers have in the meantime requested a valuation from Councils contracted valuation in readiness for discussions once the Valuer-Generals valuation is obtained."
Another attempt to secure Clements Reserve
The following resolution empowering the CEO to negotiate the acquisition of the land was carried unanimously on 7 September 2020:
Several weeks later, two alternative letters dated 18 September 2020, were drafted for Mayor Cr Rennie's signature in response to the resolution. Neither of these letters were sent to the Planning Minister, Hon. Richard Wynne. There were no letters on file for any of the other recipients named in the resolution.
The file shows that officers suddenly realised in November that the correspondence to Minister Wynne had not been sent. In the course of an email exchange one officer wrote to another on 14 November 2020, "No need to apologise we are all swamped and the emails are so hard to keep on top of!" Again, this demonstrates a lack of organisation in Council.
Still no progress on the purchase of Clements Reserve
On 21 March 2021, I sent further questions to Council about Clements Reserve. They were not read out and answered on the night of the Council meeting the following day due to an 'administrative error'. At my request, the questions were recorded in the minutes after I raised the matter with the CEO.
On 1 April 2021, I received a letter from a senior governance officer which is reproduced below. The answers should have been placed on the public record at the following Darebin Council meeting but this did not happen. The answers reveal that Council has delayed the valuation process yet again while it waits for town planning advice. The answers also confirm that the correspondence that was supposed be sent to the six politicians was not sent prior to the 2016-2020 Darebin Council entering caretaker mode even though there was time to do so. Correspondence to the Planning Minister was sent on 14 December 2020 and to the Member for Preston was very belatedly sent on 31 March 2021.
1 April 2021
[Address redacted by me]
Dear Ms O’Meley,
I refer to your email dated 21 March 2021.
These questions relate to the unanimous resolution of the 7 September 2020 Darebin Council Meeting (Minute no. 20-109) relating to three strategically important parcels of land located within Clements Reserve (1-11 McMahon Road, 22 and 32-34 Clements Grove, Reservoir).
Your questions with Council’s answers are as follows:
(a) It was resolved that the CEO be asked to commence negotiations for the acquisition of the three parcels of land within Clements Reserve. Ministerial approval for a diminished sale (i.e. discount price sale) to Council was granted in July 2019, but a subsequent formal valuation was allowed to lapse. Has Council sought a new valuation from the Valuer General, and if so, when was this done?
Answer: A new valuation has not yet been commissioned as we await receipt of town planning advice from VicRoads. Preliminary instructions have been given to Council Valuers (not the Valuer General’s Valuer) with a quote which has been provided and approved to undertake the work when instructed.
(b) The resolution included a requirement that letters be sent to numerous politicians seeking their support, including the Planning Minister and the Member for Preston. Was the Clements Reserve correspondence ever sent to the named recipients in the resolution and if not, why not?
Answer: A letter was sent to the Minister for Planning on the 14th of December which requested that they assist Council in a fair negotiation between Council and Department of Transport. Upon review it has been identified that a letter to the Member for Preston was not sent as directed and this oversight has now been addressed with a letter prepared that it will be sent to the Member for Preston by 31 March 2021.
(c) Based upon FOI'd correspondence, I can confirm that the Department of Transport is willing, and even eager, to sell the land to Darebin Council. What steps have/will be taken by Council since September 2020 to swiftly conclude the purchase of this valued creek side land?
Answer: There have been ongoing discussions and negotiations between Council and VicRoads. Council has been awaiting town planning advice from VicRoads to progress this. Council have maintained contact with VicRoads regularly and an update from VicRoads is expected imminently.
We trust this update has responded to all your queries.
[Signature and job title redacted by me] Governance and Engagement
*** FINIS ***
Summary of Surplus Victorian Government Land (Appendix A)
Decision Logic Map (Appendix B)
Individual site assessments - 1-11 McMahon Road, Reservoir (Site 2) (Appendix D)