Legal costs blow out

Legal costs blow out

The estimated cost to the East Gippsland Shire Council for legal and other costs associated with representing the community regarding the proposed Mineral Sand Mine at Glenaladale has ballooned to $630,000.
Last week the shire provided an estimate of $250,000 as the expected spend on legal representation at the forthcoming hearing of the Fingerboards Mineral Sands Project Inquiry and Advisory Committee (IAC), which was scheduled to begin on Monday, but has now been postponed.
However, following further questioning by the Advertiser new figures were provided this week which reveal that council’s legal costs for its involvement in the hearings are now estimated at $490,000.
Council has already spent “in the order of $160,000” in costs preparing for the hearings, which are scheduled to take place over 31 days.
The Advertiser has been told by the shire that the $160,000 is included in the projected $490,000 spend.
Those costs are in addition to $140,000 spent by council on a technical review of the project, prepared last year by consultancy firm, SLR Consulting, and submitted as part of the Environmental Effects Statement (EES) process.
Mayor, Cr Mendy Urie, last week told the Advertiser that she acknowledged the cost to council for representation associated with the proposed mine “is significant”.
“I’m disappointed that council must spend this amount of money to protect our beautiful shire,” she said.
A former East Gippsland Shire councillor has told the Advertiser that he expected the figure for representation would likely push closer to $1 million.
“I’m not sure why they require a barrister to represent them at the hearings when they already have a consultant’s report,” the former councillor said.
However, East Gippsland Shire chief executive officer, Anthony Basford, has defended the expenditure on legal representation.
“East Gippsland Shire Council has serious concerns about the mine as currently proposed,” Mr Basford said.
“In particular, council is concerned about the threat it poses to endangered species and ecological communities, the potential for ground and surface contamination, dust and radiation pollution, impacts on the surrounding road networks and the potential diversion of water from East Gippsland’s most productive agricultural land.”
Mr Basford said the hearing, which will be held over eight weeks and involve 27 expert witnesses, required council to have “a robust and rigorous interrogation of a large volume of highly complex technical information and expert evidence, as well as strategic advice on legal and procedural matters”.
He said a hearing of such size and complexity requires specialised legal representation.
Melbourne based boutique town planning law firm, Planology, has been chosen to represent council at the hearings, which Mr Basford is also likely to attend at various times.
URGENT MEETING CALLED
At the regular council meeting last week, a motion to hold an unscheduled meeting under urgent business of the East Gippsland Shire Council to discuss the expenditure required for legal representation at the hearings was defeated.
The motion, moved by Cr Sonia Buckley, and seconded by Cr Arthur Allen, would have compelled the council to examine in more detail the funds needed to bankroll council’s legal representation at the hearings.
In moving the motion, Cr Buckley told the council chamber that council’s expected spend on legal representation pertained to “a fiscal burden that the council will incur”.
“We need to have some robust discussion about how we proceed further and it needs to be done prior to the panel hearing,” she said.
Cr Buckley said while she accepted council had made a decision “based on the knowledge we had at the time, I think we need to revisit the decision process that we made”.
“I really think out of respect to each other that we have this meeting so we can discuss what options are available in regards to the representation of the council in an important matter that the community is divided upon,” Cr Buckley said.
The Benambra-based councillor said she felt it was “important to represent all of our constituents and we need to make sure we’re taking care of our fiscal obligations to the ratepayers who pay us tax”.
Cr Allen, speaking to the proposal, said “as a council we need to get a reign on what costs are likely to be incurred as a result of the motion we passed on December 1”.
That motion, carried unanimously, saw the council oppose the mineral sands mine going ahead.
“I think this is escalating a little bit out of control cost wise,” Cr Allen said.
“If we leave it until the next council meeting it’s after the fact, it must be addressed as a matter of urgency now.”
Addressing the chamber, Cr Tom Crook said while he appreciated “that the fiscal, financial implications of our decision (made December 1) are substantial, I don’t believe there are any conceivable alternatives at this stage in the process”.
“We are 10 days out from the start of the hearings process and I can’t conceive of a way we can minimise the cost,” Cr Crook said.
“I don’t believe this is an item of urgent business because I don’t believe any discussions will lead to any kind of resolution.”
Cr Crook, who formally opposed the motion, said while he understood the concern was a financial one, “I don’t believe that any discussions we can have at this late stage in the proceedings will actually have any significant material bearing on the process unless we curtail our representation at the IAC hearing”.
Cr Crook said to do so “could, I think, substantially change the outcome and our capacity to represent our communities, which in my case, I was elected to do.”
Cr Reeves, who also spoke against the motion, said: “The only thing that is urgent at the moment is to support the process (that’s being undertaken) and this is a dangerous and threatening thing to do, to stop the process that we’ve been charged with.”
“It’s not about finances, it’s how we spend the money to represent the community’s views,” he said.
“There’s two ways this could go - the Minister could approve it or refuse it. Our input at that table is absolutely critical.
“If you come to this meeting next week and put a gag on the support of the council to have representation at that IAC, it will be disastrous for council, irrespective of the outcome of (Planning) Minister Wynne’s decision.
“If the Minister approves the mine, which could happen, then we want to be at the table to make sure we have the best representation to get the best social environmental and economic outcomes for our community.”
Cr Reeves described the work on preparing the Environmental Effects Statement as “extraordinary”.
“It’s a 10,000 page EES, you can’t have half-baked representation there, we need to have the right representation,” he said.
In response, Cr Buckley said council had “a duty of care and there has been some discussion about options that needs further looking at that we should take into account”.
“I don’t believe that we are suggesting stopping the proceedings at all, that is not what the motion is in regards to, so I think let’s be fair and be honest about what is being put on the table and at least have a chance to do that and then a decision can be made when more information is available,” she said.
Council’s General Manager Assets and Environment, Fiona Weigall, politely interjected the debate to advise there may be a “perception of a conflict of interest” in regards to her partner (Martin Richardson), formerly working as “a consultant to the proponent” and excused herself from the council chamber.
Following Ms Weigall’s departure, Cr Buckley said she wanted to make clear that the motion related to “more of a budget matter, even though it is in regards to legal costs, so we need to make that distinction”.
Cr Buckley said it had been pointed out to her that council had to “find $1.5 million dollars to make up for our budget from the rate cap from the previous council”.
“We are already trying to find money and now we’re spending a great deal more,” she said.
COST RECOVERY
Cr Kirsten van Diggele said “a substantial amount of the budget will have to come from somewhere and to me it sits a bit uncomfortably in my soul knowing how much money is going to be spent with potentially representing a portion of the community and not all”.
Four councillors voted in favor of the motion, while four voted against with Cr Van Diggele abstaining, which was recorded as a vote against the motion, which meant the motion was subsequently lost.
Cr Urie last week told the Advertiser that moves were afoot to raise the legal costs with the State Government.
Mr Basford this week confirmed that the shire was “currently in a process of drafting a letter to the Planning Minister seeking support on the costs of this process and raising our concerns that local government and communities are required to be party to such expensive processes in ensuring the best outcomes for our communities and residents”.
While the hearing into the proposed mine was set down to begin next Monday (February 15), council has been advised, through its legal representation, that the IAC chair, Nick Wimbush, had made a decision to adjourn the commencement.
The adjournment was reportedly at the request of Mine Free Glenaladale and the proponent advising of their intention to submit supplementary information for each of its expert witness statements and to call additional witnesses.
Mr Basford said Mr Wimbush, sought council’s view on the adjournment.
“We confirmed our readiness to present to the panel, but did not oppose it,” he said.
However, Mr Basford said he did raise concerns about “new information being submitted at this late stage”.
The decision on whether the mine goes ahead rests with the State Government.
Based on the information currently available, council does not want to see the mine proceed. Should it proceed, council wants stringent and enforceable conditions imposed by the current
Labor Government on any approval.

 

IMAGE:
The new East Gippsland Shire Council faced its first test with councillors divided when faced with a motion, presented by Cr Sonia Buckley, to hold an unscheduled meeting under urgent business to discuss the expenditure required for legal representation regarding the shire’s position against the Glenaladale Mineral Sands Mine.


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