Hold the front page: non-votes will be counted, they say

COUNCIL gobbledygook and double-speak looks set to muddy the waters in the lead up to a Council decision on whether the $35 million Surf Beach Sunderland Bay Special Charge Scheme goes ahead or not.

The sticking point is how non-votes will be counted, or not counted, in the final analysis.

Issue 5 (January 2023) of the Surf Beach Sunderland Bay Potential Road and Drainage Special Charge Scheme community newsletter issued by council, states: “The amount of property owners that do not respond to community consultation and do not support or oppose the proposed project and associated special charge scheme, if it is considered at a future Council, are not counted as yes or no votes".

And at the August 16, 2023 council meeting, the shire’s general manager place making, James Stirton, seemed to confirm that position when asked a question by Cr Ron Bauer.

But the council administration has moved to clarify this position by saying, in a nutshell, that while non-responses will not be officially counted, the scheme will only be automatically defeated if more than 50 per cent of the property owners come out against it.

Effectively, then, the non-votes do count as "yes".

And even if a majority of property owners say no, the council still has a loophole it can exploit, Under Section 163B of the Local Government Act, the objection provision doesn’t apply if the scheme includes a drainage project that “is required for reasons of public health”.

The relevant section of the Local Government Act 1989 - Sect 163b: A Council cannot make a declaration if the Council receives objections from persons who will be required to pay the special rate or special charge in respect of a majority of the rateable properties in respect of which the special rate or special charge would be imposed. (However, this can be waived if “a drainage scheme that the Council has declared is required for reasons of public health”).

What the shire says now

The Bass Coast Shire has asked that we clarify the story which appeared on the front page of the Sentinel-Times this week after council voted on Wednesday, August 16 to “commence the statutory process under section 163 of the Local Government Act 1989… to declare at the 13 December 2023 Council Meeting a Special Charge” to be levied on property owners in the affected estates.

“The FAQs on the website have been updated for further clarity as below:

“If I’m opposed to the potential scheme, what can I do?

“We encourage property owners to keep informed of the project. At this stage Council has only made a decision to proceed with the Planning Phase of the project, which is to develop concept plans, cost estimates and apportionment of the costs.

“The construction stage is another step that goes to a Council meeting for a decision, which is undertaken after the Planning Phase. Once the concept plans and costings have been developed with the community, a further report will be presented to Council outlining design options together with the cost implications for both Council and the community. Once the preferred project design is adopted, Council will initiate the legislative process and declare a special charge scheme.

“Property owners can make a written submission in support of or opposition to a Special Charge Scheme, following the Council notifying property owners of its intent to declare a special charge scheme. There will be further consultation with the community regarding this process in due course.

“Following a consideration of all submissions or objections, and the recommendation(s) of the project steering committee, Council will consider a detailed report on the Special Charge Scheme and may decide to:

* Abandon the proposed Special Charge Scheme

* Prepare a new Special Charge Scheme due to the need to significantly modify the original scheme (this would recommence the process)

* Proceed, with or without minor variation, to declare the proposed Special Charge.

“The scheme would be abandoned should there be greater than 50% of property owners that oppose the Special Charge Scheme. Should property owners not provide a submission they are not counted as yes or no votes, however if they don’t respond, then they are leaving the decision up to the Councillors that are representatives of the community.

“The 50% is based on the total number of properties being considered within the scheme, not the number of property owners that respond through a submission and/or objection process.

“From analysis of other schemes, the number of properties’ owners that would respond and object to the potential special charge scheme at Surf Beach and Sunderland Bay if it was declared in the future may be approximately 15%-20% of the overall estates, which is well below the greater than 50% objections (from property owners) which would then have the scheme abandoned.

“Any non-respondents are not counted as yes or no votes, however if they don’t respond then they are leaving the decision up to the Councillors that are representatives of the community.”

In other words, if it can’t be demonstrated that 521 of the 1041 property owners in Surf Beach Sunderland Bay are opposed to the scheme, even if half of those who do make a submission, for or against, are opposed, it will be up to the council to decide.

And given that all nine councillors voted last week for the scheme to proceed to the next stage, they are hardly likely to stick their necks out then, and abandon the scheme, after the council has already spent $1 million getting it to this stage.

Clear? The number to achieve is 521 if effected residents want to defeat the scheme and even then there's no guarantee.