Current Policy Deficiency (Page 230, Section 9.1)

“Councillors will not be involved in the negotiation of the Planning Agreement”

Problem: Too vague about what “involvement” means and lacks enforceable consequences

Legislative Basis:

• Local Government Act 1993 s232(1) – Councillors must not direct or improperly influence Council staff
• Model Code of Conduct cl 3.17 – Councillors must not use position to influence staff
• ICAC guidance – Clear separation between policy and operational matters required

RECOMMENDED MOTION

“That Council amends Section 9.1 to include explicit prohibitions aligned with the Local Government Act 1993 and Model Code of Conduct:

9.1.1 Prohibited Councillor Conduct

In accordance with section 232 of the Local Government Act 1993, Councillors must not:

a) Attend meetings with developers regarding Planning Agreements unless:

• Formally convened by the CEO with written notice
• Attended by minimum two (2) senior Council officers
• Full minutes taken and published in Planning Agreement file
• Meeting purpose limited to policy clarification only

b) Receive or respond to correspondence from developers or their representatives regarding:

• Specific Planning Agreement terms or contributions
• Infrastructure scope, timing or delivery
• Valuation methodologies or amounts
• Security arrangements

c) Advocate to Council staff for:

• Acceptance of specific Planning Agreement offers
• Particular contribution types or amounts
• Expedited assessment or approval processes
• Variations to standard policy requirements

d) Accept any hospitality, gifts or benefits from:

• Parties to a Planning Agreement
• Their representatives, consultants or contractors
• Related entities or associated persons

e) Make public statements about Planning Agreement negotiations:

• While negotiations are underway
• That could prejudice Council’s negotiating position
• That reveal confidential commercial information

9.1.2 Mandatory Reporting

Any breach of these prohibitions must be:

• Reported to the CEO within 48 hours
• Investigated in accordance with Code of Conduct procedures
• Referred to the Office of Local Government if substantiated
• Published in Council’s Annual Report

9.1.3 Councillor Role Limited to:

• Determining whether to endorse draft Planning Agreements for exhibition
• Determining whether to execute Planning Agreements following exhibition
• Receiving quarterly reports on Planning Agreement implementation
• Setting strategic policy direction through this Policy”

Rationale:

• Addresses specific risks identified in Liverpool public inquiry
• Provides clear, enforceable standards
• Protects both Councillors and staff from improper influence allegations
• Aligns with legislative requirements and best practice

Current Policy Weakness (Page 230, Section 9.3)

“Council may appoint an independent probity advisor… subject CEO’s direction”

Problem:

• “May appoint” is discretionary
• No definition of “complex or high-value”
• CEO has sole discretion

RECOMMENDED MOTION

“That Council amends Section 9.3 to establish mandatory probity advisor requirements:

9.3.1 Mandatory Probity Advisor Appointment

Council must appoint an independent probity advisor for any Planning Agreement where:

• a) Total contribution value exceeds $10 million
• b) Land dedication exceeds: 2 hectares in area, OR $5 million in pre-uplift value
• c) Works-in-kind value exceeds $5 million
• d) The developer or related party has:
  • Made political donations to any NSW political party or candidate within 4 years
  • Employed any current or former Councillor within 4 years
  • Employed any current or former senior Council staff member within 2 years
  • Any commercial relationship with Council exceeding $100,000 annually
• e) Council has received:
  • Any complaint alleging improper conduct in relation to the Planning Agreement
  • Any allegation of conflict of interest
  • Any GIPA or media enquiry suggesting irregularity
• f) The Planning Agreement involves:
  • Substitution of more than 50% of s7.11 or s7.12 contributions
  • Infrastructure delivery more than 5 years after development commencement
  • Pooling of contributions across multiple Planning Agreements
  • Novel or untested contribution types

9.3.2 Probity Advisor Qualifications

The probity advisor must:

• Be independent with no relationship to Council, developer or consultants
• Have minimum 10 years experience in local government probity
• Be a member of recognised professional body (e.g. Institute of Public Administration Australia)
• Have professional indemnity insurance of minimum $10 million

9.3.3 Probity Advisor Scope

The probity advisor must:

• Attend all negotiation meetings
• Review all valuation and cost estimates
• Assess compliance with this Policy and legislation
• Review conflict of interest declarations
• Audit documentation and record-keeping
• Provide quarterly reports to Council (not just CEO)
• Provide final probity certificate before Council endorsement

9.3.4 Cost Recovery

All probity advisor costs must be:

• Paid by the developer
• Invoiced directly to developer by Council
• Paid before Planning Agreement execution
• Not offset against Planning Agreement contributions”

Rationale:

• Removes discretion for high-risk agreements
• Provides clear, objective thresholds
• Ensures independent oversight
• Protects Council from corruption allegations

RECOMMENDED MOTION

“That Council strengthens Section 7.6 to prevent artificial inflation of land dedication values:

7.6.1 Pre-Uplift Valuation Baseline

Where land is to be dedicated and has been rezoned, the valuation baseline must be the EARLIEST of:

• a) Zoning applying immediately before any rezoning initiated by the developer or related entity
• b) Zoning applying as at the date the developer acquired the land
• c) Zoning applying 12 months before any Planning Proposal was lodged
• d) For land subject to multiple rezonings: The base zoning before the first developer-initiated rezoning

7.6.2 Value Exclusions

The valuation must exclude any value uplift attributable to:

• Infrastructure to be delivered under the Planning Agreement itself
• Anticipated future rezonings or planning changes
• Speculative development potential beyond current controls
• Improvements or works proposed as separate Planning Agreement contributions
• Any infrastructure funded by Council, State Government or other developers

7.6.3 Dual Valuation Requirement

For land dedications where pre-uplift value exceeds $5 million OR land area exceeds 2 hectares:

• Two independent valuations from different registered valuers required
• Both valuers to be appointed by Council
• Both valuations to use identical assumptions and methodology
• Developer to pay costs of both valuations
• Council to adopt the lower valuation for Planning Agreement purposes”

Rationale:

• Prevents value inflation through strategic timing
• Ensures community receives genuine public benefit
• Closes loopholes identified in other councils
• Protects ratepayer interests

RECOMMENDED MOTION – Add New Section 8.5: Enforcement and Penalties

“That Council adds new Section 8.5 – Enforcement and Penalties:

8.5.1 Prohibited Delivery Trigger Arrangements

Council will not accept Planning Agreements with infrastructure delivery triggers that:

• Tie infrastructure to Occupation Certificate for final development stage
• Allow more than 50% of total infrastructure value to be triggered at or after 75% development completion
• Permit more than 100 dwellings to be occupied before essential infrastructure is delivered
• Can be avoided through DA modifications, subdivision changes, or strategic delay

8.5.2 Liquidated Damages for Late Delivery

All Planning Agreements must include liquidated damages provisions:

• Infrastructure valued under $1 million: $10,000 per week for late delivery
• Infrastructure valued $1M to $5M: $50,000 per week for late delivery
• Infrastructure valued over $5M: $100,000 per week for late delivery
• Commencing 7 days after trigger date
• Deducted automatically from security held
• Not capped or limited
• Additional to any other remedies available to Council

8.5.3 Developer Blacklisting

Council will not enter into new Planning Agreements with developers who:

• Have breached previous Planning Agreements
• Have failed to deliver infrastructure on time
• Have had security called
• Have been subject to enforcement action
• For a period of 5 years from breach date”

RECOMMENDED MOTION

“That Council:

1. Notes with concern that:

• Capital expenditure has been reduced by $40.4M (16%) from original budget
• Only 48% of revised budget has been spent by 31 March (75% through financial year)
• This represents systematic delivery failure, not just budget variance

2. Rejects the characterisation of this position as “satisfactory”

3. Directs the CEO to provide within 30 days a comprehensive Capital Delivery Failure Report including:

• Project-by-project breakdown showing original budget, revised budget, actual spend, and reasons for variance
• Analysis of systemic delivery issues (procurement delays, resourcing constraints, etc.)
• Community impact assessment of delayed projects
• Remediation plan with specific actions and accountability measures

4. Establishes enhanced oversight requiring:

• Monthly capital delivery reports to Council
• Quarterly presentations to Governance Committee
• Capital delivery performance included in CEO performance assessment”

RECOMMENDED MOTION

“That Council:

1. Adopts all recommendations in CORP 03 to unrestrict $10M (minus Moorebank Intermodal)

2. Establishes Reserve Fund Governance Framework requiring:

• Annual review of all internally restricted reserves
• Prohibition on new internal restrictions without Council resolution
• Quarterly reporting on reserve movements
• Three-year forward projections

3. Establishes minimum unrestricted reserve target of $25M by 30 June 2027″

RECOMMENDED MOTION

“That Council:

1. Directs the CEO to provide within 14 days:

• Complete staffing report for Operations Directorate
• Service delivery impact assessment
• Recruitment plan with timelines

2. Establishes maximum acceptable vacancy rate of 5% for operational positions

3. Withdraws the Grass and City Presentation Policy from public exhibition because:

• It is operational in nature and within CEO’s authority
• It was not developed in consultation with affected staff or unions
• It sets unrealistic expectations without adequate resourcing”

RECOMMENDED MOTION

“That Council:

1. Directs the CEO to:

• Commission independent review of the Jewell Technical Solutions survey
• Prepare comparative analysis with Council’s Micromex survey
• Develop action plans to address concerns raised in both surveys

2. Establishes Community Feedback Framework requiring:

• Council to consider all sources of community feedback
• Annual Community Sentiment Report to Council
• Prohibition on dismissing independent research without proper analysis”

RECOMMENDED MOTION

“That Council:

1. Directs the CEO to:

• Conduct statistically valid community survey on name preference (minimum 400 residents)
• Prepare cost analysis of name reversion
• Develop implementation plan if community supports reversion

2. Adopts Community Asset Naming Policy requiring:

• Demonstrated community support through formal consultation
• Minimum 60% community support required for any renaming
• Council resolution following public exhibition

3. Requires implementation of community decision within 12 months”

RECOMMENDED COMPREHENSIVE MOTION FOR COUNCIL

“That Council:

A. PLANNING AGREEMENTS POLICY (PD 01)

1. Notes the significant improvements in the Updated Planning Agreements Policy

2. Endorses the Updated Planning Agreements Policy for public exhibition SUBJECT TO the following critical amendments:

• a) Section 9.1 – Councillor Conduct:
  • Explicit prohibitions on Councillor involvement in negotiations
  • Mandatory reporting of breaches to OLG
  • Clear role limitation to policy decisions only
• b) Section 9.3 – Mandatory Probity:
  • Probity advisors mandatory for agreements >$10M
  • Mandatory for land dedications >2ha or >$5M
  • Mandatory where political donations or relationships exist
  • Quarterly reporting to Council
• c) Section 7.6 – Pre-Uplift Valuation:
  • Valuation based on earliest of: pre-rezoning, acquisition, or 12 months before Planning Proposal
  • Dual valuations required for dedications >$5M
  • Exclusion of Planning Agreement infrastructure value
• d) Section 8.5 – Enforcement:
  • Liquidated damages for late delivery ($10k-$100k per week)
  • Automatic security call for defaults
  • Public disclosure of non-compliance
  • Developer blacklisting for 5 years
• e) Section 11.3.1f – Maintenance:
  • 10-year maintenance period for significant landscaping
  • Maintenance funding at 150% of Council costs
  • Quarterly condition reporting
• f) Section 8.2 – Delivery Triggers:
  • Prohibition on final-stage OC triggers
  • Maximum 50% value after 75% completion
  • Maximum 100 dwellings before essential infrastructure
• g) Section 6 – Transparency:
  • Full text of agreements in public register
  • Quarterly progress reports
  • Community dashboard with traffic light status

3. Extends exhibition period to 42 days

4. Directs the CEO to:

• Incorporate all amendments before public exhibition
• Provide Councillors with detailed briefing on amended policy
• Clearly identify all amendments in exhibition materials

5. Requires comprehensive Post-Exhibition Report including:

• Analysis of all submissions
• Independent legal review of final policy
• Probity advisor sign-off on governance provisions
• Benchmarking against other metropolitan councils

B. BUDGET REVIEW Q3 (CORP 02)

6. Rejects the characterisation of capital delivery performance as “satisfactory” and requires:

• Comprehensive Capital Delivery Failure Report within 30 days
• Project-by-project breakdown of $40.4M variance
• Community impact assessment of delayed projects
• Remediation plan with accountability measures
• Monthly capital delivery reports to Council
• CEO performance assessment to include delivery metrics

C. RESERVE FUNDS (CORP 03)

7. Adopts all recommendations to unrestrict $10M in reserves and establishes:

• Reserve Fund Governance Framework
• Annual review of all internal restrictions
• Prohibition on new reserves without Council resolution
• Quarterly reporting on reserve movements
• $25M minimum unrestricted reserve target by June 2027

D. OUTDOOR STAFF VACANCIES (NOM 01)

8. Directs CEO to provide within 14 days:

• Complete staffing report for Operations Directorate
• Service delivery impact assessment
• Recruitment plan with timelines
• Maximum 5% acceptable vacancy rate

9. Withdraws Grass and City Presentation Policy from exhibition

E. COMMUNITY FEEDBACK (NOM 03)

10. Directs CEO to:

• Commission independent review of Jewell Technical Solutions survey
• Prepare comparative analysis with Micromex survey
• Develop action plans to address concerns from both surveys
• Establish Community Feedback Framework

F. CASULA POWERHOUSE NAME (NOM 05)

11. Directs CEO to:

• Conduct statistically valid community survey on name preference
• Prepare cost analysis of name reversion
• Adopt Community Asset Naming Policy requiring 60% support
• Implement community decision within 12 months”