Northern Beaches Council’s secret recording to fight $74m Whistler St Carpark lawsuit
An explosive audio recording of the night when former Manly Council was believed to have signed off on development deeds for the Whistler St and Manly Oval carpark plans appears to prove that an official meeting never took place.
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An audio recording of the night when former Manly Council was believed to have signed off on development deeds for the Whistler St and Manly Oval carpark plans appears to prove that an official meeting never took place.
The recording - taken by a person inside the council chambers on April 12, 2016 - will form part of the new evidence submitted by Northern Beaches Council in defence of a $74 million lawsuit lodged against it by dumped Whistler St developers Built Development and Athas Holdings.
The council’s CEO Ray Brownlee launched an investigation into the lawsuit and events that surrounded the Whistler St and Manly Oval carpark plans after taking the reins last October.
“Northern Beaches Council has become aware that there was no meeting of Manly Council, at which decisions could be made, on April 12, 2016,” he told the Manly Daily in response to questions about the recording.
“Rather, only a committee meeting was held. Consequently, council has given notice of its intention to amend its defence, as the revelation is of significance.
“The Surveillance Devices Act permits the lawful recording of communications, such as meetings, in certain circumstances.
“Council is vigorously defending the proceedings however as the matter is before the courts, we are unable to comment further at this stage on any matters of evidence.”
The recording, sent anonymously to the Manly Daily, has about two hours of debate, with staff telling councillors they were in “committee of the whole”.
A committee of the whole allows councillors to enter into debate in a confidential manner to discuss an issue. However, the council is supposed to then re-open the meeting and vote to accept the resolution made behind closed doors.
The minutes from that night state: “The Extraordinary Meeting of Council was held... on Tuesday April 12, 2016.
“The meeting commenced at 8.55pm following a meeting of a closed committee of the whole.”
But in the recording former councillor Cathy Griffin can be heard asking if the council should move to a proper meeting to ratify the decision made in committee.
That would have required the council to open its doors to the public – where hundreds of protesters were lined up infuriated that they had been locked out of a meeting.
Former councillor Hugh Burns can be heard demanding the mayor take a count of the vote to record that he and three others had been against the decision in the committee meeting. The motion was carried, five votes to four and then councillors can be heard shuffling out of the chambers.
“We are supposed to go into an open meeting now. It has to be approved by an open meeting,” Ms Griffin can be heard saying.
“We have got to have another council meeting so we can approve it, it has only been a committee meeting.”
Mr Burns can be heard saying “you’re right”, before more councillors and staff can be heard walking out. The council will argue the recording clearly shows there was never a council meeting to sign off on the project, and therefore it was not an official decision of Manly council.
Manly council merged with Warringah and Pittwater on May 12, and by August administrator Dick Persson had scrapped the proposal due to “significant contract and financial risk”.
A review into then-Manly Council’s controversial project revealed the Office of Local Government raised concerns about the April 12 meeting.
In July, 2016 letters from The Local Government Department’s acting chief executive, Tim Hurst, were released by Northern Beaches Council’s new general manager Mark Ferguson.
The office alleged Manly Council committed at least four breaches of the Local Government Act that night and suggested the merged council get legal advice to see if these alleged breaches invalidated the decision to go ahead with the carpark.
The letter alleged no public notice was given of the meeting; no agenda was made available to the public; the council failed to hold a public meeting before going into private session; and it did not disclose why a meeting went into private session.
The council and would-be Whistler St developers are due in court next month.
A spokeswoman for developers, Built-Athas said: “Built-Athas is surprised that Council is now seeking to contend that no meeting of council took place on April 12, 2016 given council’s prior written statements, including the publication of minutes of such a meeting.
“Ultimately however, it is for the court to determine whether Council is to be permitted to amend its defence and so further comment would not be appropriate.”
THE WHISTLER ST CARPARK STORY SO FAR
November 2010: Council gives its first indication of plans, calling it Manly 2015. It included a carpark under Manly Oval funded by Whistler St redevelopments.
April 2013: Concerns over the future of Manly’s Whistler St carpark site prompted some councillors to try and stop it being demolished.
June 2013: Candy Bingham hosts the first public meetings against changes to Manly Oval.
February 2015: After five years of debate Manly Council decided to go forward with the plan in a closed-door meeting. In April 2016, residents were shut-out of another meeting where tenders were awarded. In May a DA was completed and sent to the statutory body.
August 2016: Manly Oval carpark and Whistler St redevelopment cancelled after reviews.
November, 2017: Dumped developers lodge lawsuit against council for $37m, this is later revised to $74 m.
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