A resolution to wind up three trusts of the former Gosford Council has been deferred by Central Coast Council Administrator, Mr Ian Reynolds.
A report to the September 28 ordinary meeting of Central Coast Council had recommended the winding up of the Gosford City Council Protection of the Environment Trust, the Gosford Affordable Housing Trust and the Gosford Foundation Trust.
However, after listening to two speakers against the recommendation, Mr Reynolds resolved that he needed to seek further information, particularly in relation to facts illuminated by speakers regarding the Protection of the Environment Trust (POET).
He said taking into account the information provided by the two speakers, he had decided to defer the matter and request a further report. Ms Jane Smith, CEO of the Community Environment Network and a member of the POET management committee since 2010, said she urged Mr Reynolds not to pass the recommendation to wind up the trusts but, instead, look at how to embellish the long-term vision behind the establishment of the trusts in the fi rst place. Ms Smith said requests for meetings and advice on the consequences on POET of the council amalgamation had been ignored by Council since April. According to the report prepared by the unit of the Chief Executive Offi cer, Mr Rob Noble, the Gosford City Council Protection of the Environment Trust was established in 2006.
At the time, its stated purpose was to promote the protection and enhancement of the natural environment, or of a signifi cant aspect of the natural environment, and in particular the conservation of fl ora and fauna indigenous to the Local Government area of Gosford City; and provide information or education or the carrying on of research about the natural environment or a signifi cant aspect of the natural environment in particular relating to fl ora and fauna of that area for the benefi t of persons within the Local Government Area of the City of Gosford. On October 3, 2006, the former Gosford Council resolved in part to “transfer the sum of $1.5 million from funds generated from the bonus provisions of subdivision of 7(c2) lands, into a special interest bearing account to be administered by Council’s (then) newly established Gosford Sustainability Environmental Trust.
“The $1.5 million transferred to the relevant account remains Council’s funds, and the Trust has been administering the account for Council. “The intent was that income from the investment of the $1.5 million was to be used for the maintenance of Coastal Open Space System (COSS) land. “The annual interest from this investment (approximately $65,000), was allocated by the Trust annually to specific environmental projects, following an application process.” However, Ms Smith said the report from the CEO’s unit that formed part of the agenda for the September 28 Council meeting was “inadequate”.
Ms Smith said that the report to the meeting had failed to explain that the Trust was set up as an outcome of the Somersby Industrial Park plan of management which was coordinated by NSW Premier’s Department to address the conflict of interest between the site’s perceived value as an industrial site and the fact it included Indigenous sites of national significance and national endangered species. The money held by the trust, according to Ms Smith, was initially intended to compensate land owners who were unable to develop Somersby sites because of their cultural and/or ecological significance.
The trust was also established, Ms Smith said, to have Australian Taxation office status, which meant land owners could donate land to the trust and receive 100 per cent of the land’s value as a tax deduction over fi ve years. Ms Smith said she believed Council needed to consider whether a properly constituted trust, with its own trust deed, could, in fact, legally be wound up via a Council resolution. She said lands donated to the trust, under trust law, should remain the property of the trust and she did not believe it was a simple matter of stating in a report that the lands were held on behalf of council. She said the trust may have also, from time to time, held monies received from developers as offsets to compensate the community for developments that may have been approved at the expense of Ecologically Endangered Communities.
As for the trust’s property holdings, Ms Smith said she believed parcels of land had been donated to the trust “from all over the [former] Gosford Local Government Area as recently as 2014-15. She said the committee of management had specifi cally requested that land holdings since 2010 should have been classifi ed as community land, which means they could not be sold by Council in its role as trustee. Ms Smith said the Somersby Industrial Park Plan of Management had cost council $500,000 and taken three years to formulate and its stakeholders, including the NSW Premier, recommended the establishment of POET. The plan of management had been tested in the land and Environment Court and the Court of Arbitration, according to Ms Smith. Mr Noble’s report to the September 28 Council meeting did not mention the trust’s land holdings and said applications for funding of programs by the trust for 2016/17 had not been allocated, due to the timing of the amalgamation.
“This process will cease, and community organisations will be encouraged to apply for grants and sponsorships from the wide range of grant support programs offered by Council,” the report to Council said. Ms Smith said the abandonment of the grants recommendations for 2015- 16 “treats the community and staff who made those recommendations very poorly.” “The Protection of Environment Trust operates similar to the former Gosford City Council’s previous Advisory Groups and Committees, with minimal community representation (three community members). “The Advisory Groups and Committees of the former Councils ceased to operate from the date of the proclamation on May 12. “A new community participation process will be developed by Central Coast Council, to be far reaching, engaging and inclusive to replace the traditional committee and advisory group structure,” the report said, but these views were disputed by Ms Smith.
The trust deed also specified that the trust was to be wound up after 80 years and prescribed the process by which that winding up was to occur. The winding up provisions of the deed can only be altered by the creation of a new trust deed. Arguably, the fact the trust was founded as a condition of the Somersby Industrial Park plan of management may mean that the NSW Government may be interested in scrutinising any proposal to amend the trust deed. Another community representative from the POET management committee, Ms Joy Cooper, said she did not believe a decision about the future of the trust should be made until after the local government election on the Central Coast in September 2017. “With all due respect, the decision to wind up the trust shouldn’t be left to an appointed administrator,” Ms Cooper said. The report to the September 28 council meeting set out similar rationale to justify the winding up of the Affordable Housing Trust and the Gosford Foundation Trust.
Agenda item 3.5, 28 Sep 2016 Meeting notes, 28 Sep 2016 Central Coast Council ordinary meeting Reporter: Jackie Pearson