Battery Point: legal action considered

Ken Hosking Battery Point Sullivans Cove Community Association

“Some aldermen don’t take kindly to having their plans thwarted, and if they can’t win by fair means, they’re prepared to flout due process to get rid of an Association which has proved it can challenge them and win.” Dr Hosking said.

Media Release 30th April 2007

Battery Point Advisory Committee Position

The Senior Vice President of the Battery Point and Sullivans Cove Community Association, Dr Ken Hosking said today that Hobart City Council’s decision to strip the Association of its right to participate in the Battery Point Advisory Committee (BPAC) was unlawful and invalid.

Dr Hosking said that the Association was legally entitled to a position on BPAC, and Council had no authority to remove that right without going through the proper processes through the Resource Planning and Development Commission. “Even if it had the power to remove the Association’s position, the way it went about this decision breaches all principles of procedural fairness and natural justice and renders the decision invalid.”

“Council didn’t advise the Association its rights were to be reviewed. It deliberated on the matter in secret in closed Council. Council decided the 2005 and 2006 AGMs were “unconstitutional” without ever seeking information or comment from the Association on the facts of those meetings. Council has apparently based its decision on alleged “defects” in the conduct of the 2006 AGM, but it has never advised the Association what those alleged defects were. In other words, the Association has never been advised in any way of the specific claims against it, or been given any opportunity to respond to them.”

“The above process is so far removed from any notion of procedural fairness that no court would uphold the decision as lawful.” Dr Hosking said it was the height of hypocrisy for Council to sit in judgement on the Community Association’s conduct, when Council was itself guilty of much more serious breaches of proper process.

“The Association has a legal entitlement to effective use of a position on BPAC and will seek immediate reinstatement of its nominee by Council.” Dr Hosking said.

“Failure of Council to do so could have very serious legal and financial consequences as it runs the risk that all relevant applications from 26th April onward are invalid if they are dealt with by an improperly constituted BPAC,” he said.

Council is required under S48 of the Land Use Planning and Approvals Act to properly observe and enforce the requirements of its planning schemes. The Battery Point Planning Scheme outlines that certain categories of applications must be referred to BPAC, and outlines that a properly constituted BPAC includes a representative of the Community Association. Consequently all decisions on applications not dealt with in accordance with the above requirements could be potentially void and subject to legal action.

On the matter of the Community Association’s status, Dr Hosking said the Community Association had received legal advice last year that any legal defects caused by a lack of a quorum in the 2005 AGM election had been rectified in the 2006 AGM election which was attended by over 50 members and was chaired by an independent Chairman, Dr Kevin Bonham.

He said that the legal advice received was that: “The 2006 AGM was held in compliance with all requirements of the Association’s constitution, in that the members were properly notified of the AGM, a quorum was present, the business of the AGM was conducted in accordance with the Constitution, and the Committee and office bearers were elected in accordance with the Constitution’s procedures.” It concluded that “the election of all office bearers and committee members was valid.”

Dr Hosking said the Association would be writing to the Attorney General and the Ombudsman about the Council’s actions, and would consider legal action.

Dr Hosking said the Association was being unfairly targeted because it had opposed some Council decisions and policies affecting Battery Point, the most recent major one being the Council’s attempt to hive off the area south of Quayle St from the Battery Point Planning Scheme. That move attracted the largest opposition of any scheme amendment ever put forward in the Hobart area with approximately 80 objections from residents. On behalf of the residents, the Community Association opposed Council in the RPDC hearings and won the case.

“Some aldermen don’t take kindly to having their plans thwarted, and if they can’t win by fair means, they’re prepared to flout due process to get rid of an Association which has proved it can challenge them and win.” Dr Hosking said.

Dr Hosking said Council had not reviewed the status of other Associations on the Battery Point Advisory Committee even though there were serious questions about the legitimacy of the Business Association that also holds a position.

“To the best of our knowledge the Battery Point Business Association has not held any Annual General Meeting since its inception at least two years ago, nor are we aware of it conducting any activities which could support its acceptance as a bona fide organisation carrying out regular activities on behalf of its members. It appears to have been established purely for the purpose of obtaining a seat on BPAC,” he said.

There is a specific requirement under the Battery Point Planning Scheme for Council to satisfy itself on the proper establishment of the Business Association (although no such right or obligation exists in the Scheme in relation to the Community Association). “We understand the failure of the Business Association to hold AGM’s was brought to Council’s attention during a Council meeting in October last year, yet they’ve done nothing about it,” Dr Hosking said.

“Since Council has not reviewed the status of the other organisations on BPAC, the community is entitled to know what good faith basis there could be for selectively pursuing only the Community Association, and why ratepayers money is being spent on it,” he said.

Dr Hosking said the Community Association had a long history of working for the Battery Point community in planning matters and would continue to work to protect the residential amenity and historic character of Battery Point.

Ken Hosking