Toodyay Herald

The shire spent at least $5380 on legal fees in November 2018 when it prosecuted an English tourist who parked facing the wrong way in Stirling Terrace (legal in the UK) to obtain a $60 fine – but failed to recoup costs.

The shire lost a further $36,500 in legal fees last October when it prosecuted a Dumbarton resident for an alleged dog attack on sheep only to have a magistrate call the shire’s case “absolutely shocking” and “duplicitous” and warn she would order an acquittal if the shire didn’t withdraw its court action.

The day after last month’s Tuesday evening council meeting, The Herald sent President Rayner five written questions:

• Who authorised the expenditure of $699,481 over that period?
• Did the council approve the spending of the money before it was spent?
• How much of the $699,481 was recouped?
• Why did the shire use nine different law firms?
• Do you have any other comment about this expenditure?

A response was sought by 5pm on the Friday to meet September Herald production deadlines.

President Rayner responded at 3.23pm on the Saturday.

“In relation to legal expenses your question includes the legal expenses that you have reported on frequently over the last four years and you have substantial information available already on those expenses,” President Rayner said.

“So in relation to the balance of the legal expenses which approximate $45,000 per year this includes planning advice and SAT (State Administrative Tribunal) representation, advice on implications of the South West Native Title Settlement on shire lands, preparation of legal documents, and routine enforcement and prosecution matters.

“This can include matters like dog attacks and ignoring total fire bans.

“In another example the shire was obliged under the Local Government Act to take enforcement action in SAT for non-compliance by a councillor with Standards Panel Orders.

“Council does not become involved in engaging lawyers except when council is contemplating civil action or needs specific legal advice.

“Enforcement of State laws, local laws and planning instruments is an administrative matter, and enforcement and prosecution is not and should not be a political decision.

“The CEO (Stan Scott) has delegation to engage lawyers appropriate to the task at hand.

“For example there is a single law firm providing advice to several local governments on the same matter so it is much cheaper to share those legal expenses.”

President Rayner failed to respond to a repeated Herald request to reveal how much of the $699,481 spent on lawyers was recouped.

The shire also spent a further $11,900 this year on a private investigator to examine a Shire Code of Conduct complaint against President Rayner and Mr Scott.

This matter is now under internal Freedom of Information review and potential appeal.

Last month’s car-jack video failure followed an incident last October when a local schoolgirl went missing in Duidgee Park in an area monitored by a faulty shire camera.

The camera – which frequently jammed in one position for long periods or pointed at roofs and trees – only by accident flicked past a vehicle licence plate that enabled police to locate the unharmed girl in Perth.

The shire wrote in its March Toodyay Community Newsletter that it had obtained a $300,000 Federal Government grant to upgrade the town’s video security network.

The money was announced by local Federal MP and Liberal Attorney-General Christian Porter eight weeks before Prime Minister Scott Morrison’s government was re-elected in a tightly fought campaign.

“No one should have to fear for their safety,”Mr Porter said in his announcement.

The shire’s March newsletter said contracts had been signed and the project “would commence in the near future”.

All shire CCTV cameras – except those with licence plate recognition – would be replaced, and an additional three new cameras installed on new poles.

“The system will run on a new dedicated server with the police station receiving a new monitor,” the shire said.

However, when the shire was asked to provide video footage of last month’s car-jacking, it was revealed that none of the shire’s cameras were working and had all been out of action for “a few months”.

Further inquiries revealed that local police no longer had access to any street camera vision and had dismantled their equipment until a new shire monitor is installed.

It is understood that a computer server at the shire’s administration centre in Fiennes Street failed several weeks ago.

The shire decided not to spend money on replacing the faulty equipment and chose instead to wait until its new $300,000 system is installed.

It said the presence of street cameras deterred crime, regardless of whether they worked or not.

Shire President Brian Rayner was asked the following Herald questions last month:

• How long has this camera (at the car-jacking) been out of action?
• When will it be repaired?
• How many other shire video security cameras are not working?
• How long have they been out of action?
• When will they be repaired?
• How has this been allowed to happen?
• Who is responsible for this?
• What message do you have to allay local businesses and community concerns about public safety in our streets and parks when there is substantial evidence that shire video security cameras have not worked properly since at least 2014?

He responded:

“As you know the Shire of Toodyay was successful in obtaining a $300,000 grant to upgrade its CCTV infrastructure.

“This work is underway at present and we expect the work to be largely complete by the end of September.

“The project will upgrade CCTV infrastructure in public and community spaces throughout the Town Centre.

“The project will see the replacement of 17 old external CCTV cameras, installation of 22 new CCTV cameras for a total network of 41 cameras, more than double the old network.

“It will also include new five-metre‘break back’ poles in various key locations around the community.

“All old CCTV and wireless links will be decommissioned, with a newly designed ‘end-to-end’ wireless link being supplied and installed between each device and CCTV head end.

“This project is being delivered as a partnership between Toodyay Police, Safer Toodyay, the Shire of Toodyay and Telstra.

“During the course of the installation some CCTV infrastructure may not be working.

“I do not intend to comment on which cameras or when.

“CCTV performs a role in detecting and preventing crime.

“I have no intention of undermining the deterrence by commenting on which cameras may or may not be out of action and at what time during the implementation process.”

An agenda item titled “Sanction Orders” at last month’s council meeting said President Rayner had been found by the Local Government Standards Panel to have breached the Local Government (Rules of Conduct) Regulations 2007 in his reply to Mr Graham at the April 2018 council meeting.

The breach related to President Rayner attributing the comments to the Toodyay Progress Association.

The Standards Panel ordered President Rayner to attend the council meeting and make a public apology without any further comment or remarks.

The apology was ordered to be made immediately after public question time.

“The Panel found that I breached the shire’s Standing Orders Local law 2008 Regulation 4 of the said Conduct Rules in that such attribution was objectionable,” President Rayner said.

“I accept that I should not have attributed the relevant comments to the Toodyay Progress Association.

“I now apologise to the Toodyay Progress Association”.

The Toodyay Shire Council voted 7-1 in July (Cr Ben Bell opposed) to allow Mr Wakeman to keep two horses subject to 10 conditions and four ‘advice notes’.

These include an amended environment and horse management plan, a manure storage area with a waterproof cover and no run-off or leaching into groundwater, regular collection of unused feed, all remnant vegetation on the property to be fenced off from the horses and a recommendation that they be stabled for 12½ hours every day.

“There are other people with horses living all around me and none of them has to do any of this stuff,” Mr Wakeman said.

“How many others have had to submit horse management plans?”

Mr Wakeman said he bought his Laterite Way property in 2011 after being told by a staff member at the shire front counter that he could keep two horses on it.

“She looked up the address on the shire computer and told me two horses,” he said.

“I was living in Perth at the time and was looking around to buy a place for two horses so that my partner and I could ride together instead of one of us having to stay home.”

Mr Wakeman said he bought the property in Coondle’s Sanctuary Park rural residential subdivision but a neighbour objected when he installed white ‘sighter’ wiring inside his boundary to prevent his horses accidentally injuring themselves on an existing wire fence.

“The neighbour complained to the shire, and Planning Officer Hugo de Vos came out to take a look,” Mr Wakeman said.

“He said everything seemed OK and said all I had to do was put in a management plan for my two horses, which I did.”

Approval recommended

SHIRE records show that Mr de Vos recommended that Mr Wakeman’s application for retrospective planning approval at a March 2014 council meeting be granted.

Mr de Vos recommended that the council use its discretion to vary a ‘recommended stocking rate’ to allow two horses to be kept.

“The current process of determining stocking rates is flawed,” he reported to the council.

“The area in question (rural residential) is currently the subject of numerous stocking rate applications.

“There are also instances where horses are already present on properties and thus an issue with compliance.

“It is considered that there is sufficient justification to support this proposal.”

Former shire deputy president Bethan Lloyd, seconded by former Cr Sally Craddock, moved to defer a decision until the council received a horse management plan and an environmental report, and developed a stocking rate policy, but the motion was defeated 3-6.

Former Cr Chris Firns then moved to refuse Mr Wakeman’s application, which was carried 9-0 without discussion or any published reason for rejecting the shire officer’s recommendation.

Mr Wakeman applied to the State Administrative Tribunal (SAT) for a review but this was dismissed a year later.

$12,000 fine

He was fined $12,000 by the shire in November 2017 for keeping two horses on his property.

Mr Wakeman lodged a second SAT appeal in February this year but it was dismissed for being four years too late.

He tried again in March to gain shire approval to keep an additional horse but his application was rejected because it had “insufficient information”.

A further attempt in July succeeded – but with conditions that Mr Wakeman says he cannot accept.

“None of this would have happened if I had been given correct information at the shire front counter in 2011,” he said.

“My partner is now gone – partly due to this – and if I sell and look for another place to keep two horses, I will lose at least $100,000 on the sale.

“I’ve still got one horse, Tommy, and you can see how lonely he is by himself.

“I’ve had a gutful of what this shire has done to me and I’ve told them I want my money back or I won’t be paying my rates.”

Toodyay Shire President Brian Rayner said Mr Wakeman’s 2014 application was “properly refused” and he was prosecuted for ignoring a SAT ruling.

“If Mr Wakeman is unhappy with the conditions of (the latest) approval, he may of course seek to have them reviewed in SAT.

“I do not intend to revisit matters from almost five years ago that have been appropriately and thoroughly dealt with as part of a formal review.”

That situation is unlikely to repeat under a new council-approved system that no longer restricts candidates to wards and allows all Toodyay voters to vote for all candidates.

President Rayner’s current two-year term as shire leader ends in October when a new council will choose a president and deputy president for the next two years.

Toodyay’s shire president is paid $40,799 a year, the deputy president $18,445 and seven councillors get $13,364 each.

President Rayner, Deputy President Chitty and Cr Greenway told recent shire public meetings that they won’t resign.

Cr Bill Manning, who was also elected for two more years under the old ward system, has resigned from September 30.

He said all councillors with another two years to serve should also resign and seek re-election in October.

“This will mean that all councillors have been chosen by the entire electorate and ensure greater legitimacy in the eyes of the electorate,” he said.

Cr Manning said his home was for sale and he planned to move away from the shire.

“I expect this could take a considerable period of time and in the meantime I would like to continue to serve Toodyay residents on the council,’ he said.

Deputy President Chitty told a June shire public meeting that she considered resigning to stand for re-election but decided she was lawfully elected in 2017 to serve four years.

Former Cr Craig Brook’s departure last April means there will be at least one new face on the next nine-member council.

Six vacancies also gives voters greater opportunity to elect a new absolute majority of five members for important decisions such as electing a shire president and rates.

Cr Ben Bell, whose two-year term expires in October, says he will run again.

The three other councillors whose four-year terms expire in October – Rob Welburn, Eric Twine and Judy Dow – have not publicly stated their intentions.

None have previously faced a shire election involving all Toodyay voters, and only Crs Bell and Manning have faced a postal ballot which resulted in significantly higher voter turnout in 2017 than in previous years.

The council and shire are currently undergoing a formal State Government inquiry into their operations and affairs.

Investigators from Perth have spent all of this year interviewing and gathering evidence from local residents after WA Local Government Minister David Templeman ordered the formal inquiry last December following a year of official departmental monitoring of the shire.

The investigation’s focus shifted last month to the shire, and CEO Stan Scott told a July public meeting (pictured above) that staff had been busy producing documents and other material for official scrutiny.

It is understood the investigators face political pressure to report heir findings to the Minister before the October shire elections.

This year’s poll will be a postal ballot run by the State Government.

It follows a switch from shire-run ‘in person” voting in previous years and led to a record local voter turn-out of 51 per cent in 2017, compared with only 30.8 per cent in 2015 and 27 per cent six years ago.

The electoral roll for this year’s poll closes at 5pm on Friday August 30.

People who have changed address or don’t know if they are correctly enrolled to vote can check their status online at elections.wa.gov.au.

The State Government will run a two-hour information session for prospective candidates in the council chamber in Fiennes Street (opposite the tennis courts) at 6pm on Thursday August 29.

Topics include an overview of local government, councillors’ roles and responsibilities, and questions.

An eight-day nomination period for candidates opens on Thursday September 5 and closes at 4pm on Thursday September 12.

Australia Post will start mailing out election packages with candidates’ statements, ballot papers, voting instructions and reply-paid envelopes to all enrolled voters on Friday September 20.

The ballot closes at 6pm on Saturday October 19 and results will be declared by a State Government returning officer in the council chamber later that evening.

Unlike in Federal and State elections, voting in local government elections is not compulsory.