28 June 2013
The Ombudsman of SA
5th Floor
50 Grenfell Street
ADELAIDE, SA 5000
Dear Ombudsman,
Re: Questions on Notice April Council Meeting
Penneshaw Wastewater Management Scheme
I wish to lodge a complaint against Kangaroo Island Council for failing to answer ‘question 5’ of questions which I gave notice to the CEO under Section 10 of Local Government (Procedures at Meetings) Regulations 2000, at the April ordinary meeting of Council. The ‘questions on notice’ which I asked on behalf of a number of concerned community members were:
Question 1:
Given concerns of a dam break risk was raised at the May 2012 workshop, did the CEO seek additional information from Council’s consultant on:-
- Inundation mapping of affected areas below the lagoon;
- Population at risk (PAR) assessment;
- Cost of property damage; and
- Social, health and environmental analyses,
in the event of a disaster, to enable Elected Members to understand the public safety, potential liability, due diligence and duty of care issues associated with the dam, before making the decision at the June 2012 meeting to approve the preferred site for the lagoon which is a short distance from houses ? If so, please advise the additional information tabled at the meeting?
Question 2:
If the answer to (1) above is ‘No’, was the CEO satisfied with the amount of material provided to the Elected Members at the May 2012 workshop that was considered adequate for them to make an informed and responsible decision on the location of the treatment plant and storage lagoon in the interests of the community as required under Section 6(a) of the Local Government Act 1999?
Question 3:
Other than the Development Act 1993, are there any legislations or statutory requirements in the State of South Australia and recognised National guidelines and codes for the design, construction and management of large earth embankment dams within an earthquake zone, which Council must comply with in order to obtain a permit for the storage lagoon as proposed for the Penneshaw CWMS?
Question 4:
In light of your advice (March 2013 QoN), what was the estimated construction cost of the treatment plant and storage lagoon (detailed within sheets C08 &C11 supplied at the May workshop) submitted to the LGA for subsidy funding and was an extra cost factored into the estimate for the dam being located within an earthquake prone zone? If so, what was the amount allowed in the calculation?
Question 5:
Which properties below the storage lagoon are on the flood path when the dam is full, overflowing through the spillway rushing down the hill onto the residential area between Cheopis Street and Lashmar Street? To what extent is damage expected to occur along the flood path and will lives be at risk when this situation occurs?
My complaints are:
1) Question #5 was not placed on the agenda nor entered in the minutes of the meeting as required under Regulation 10(2).
Regulation 10(2): If notice of a question is given under subregulation (1) — (a) the chief executive officer must ensure that the question is placed on the agenda for the meeting at which the question is to be asked; and (b) the question and the reply must be entered in the minutes of the relevant meeting.
My understanding of Regulation 10(2) is that regardless of the reasons given by the presiding member for not answering my ‘question on notice’, the CEO is still required to place the question on the agenda for the meeting and recorded it in the minutes of the meeting.
2) The ruling not answering ‘question #5’ given by the presiding member (see below) under Regulation 10(6), in my view was completely misunderstood and unreasonable.
The presiding member advised, “I have ruled that question 5 will not be answered as it is improper and misleading ….To explain my ruling, your question implies that the Council would build something that will fail and put lives at risk. I have underlined the word, ‘when’ within your question, that gives the impression that it is certainty that this dam will fail and lives will be lost.”
Regulation 10(6): The presiding member may rule that a question with or without notice not be answered if the presiding member considers that the question is vague, irrelevant, insulting or improper.
In reply to the ruling, I explained that ‘question 5’ is about which properties will be on the flood path and what possible damage could result to these properties when water flows through the spillway from the dam. At no time have I implied or made a suggestion that the dam will fail as the Mayor made up. I also explained that a ‘spillway’ is an integral part of a dam designed for the release of water in the lagoon when it reaches its maximum storage capacity, to prevent water overtopping the earth embankment. Excess water discharging over the spillway at a high velocity will occur which is an inevitable event and that I see no reason as to why this information could not be made public, in the best interest of the community who may be exposed to this risk. Despite my clarification, the ruling remained and ‘question 5’ was not answered.
It is my view that by not answering the question, Council has denied the right of the property owners and residents who live below the spillway of the dam to have the information as to whether they will be affected by the construction of a storage dam above their properties.
As an Elected Member, I also have a duty to be informed (S6 of the LG Act) and to facilitate communication between the Council and its community (S59).
To further explain my concerns about the ‘ruling’, I enclose for your perusal a plan illustrating why the information on ‘question 5’ is imperative to the residents living below the dam. You will note that the spillway faces a north-easterly direction and when discharging, the wastewater will flow downhill on an undefined route (subject to obstructions) through the built-up area to the sea at a fast speed. Without knowing the flood path, it can only be assumed that the area between Lashmar & Cheopis Streets are at risk, which would cause fear and stress to the community below the dam as to what the damage this will have on their properties if the Sewerage Scheme goes ahead.
Following Council refusal to answer my ‘question 5’, I wrote to Minister for Local Government Relations about my concerns as outlined above and was replied (letter dated 14/5/2013) that the Office for State/Local Government Relations has informed Council’s CEO that all questions on notice are to appear on Council agenda and in the meeting minutes, as prescribed in Regulation 10(2) of the Regulations. Despite advice given to the Council by the OLGRO, to date ‘question 5’ has not been placed in the agenda and the minutes as directed by the Minister, on either or both the hard copy or the Internet
Given my complaints outlined above, I seek your assistance to have my ‘question #5’ answered, in order to provide the information to the community concerned.
Yours faithfully
Cr Ken Liu
Kangaroo Island Council