Administrator defers trust wind-up proposal

A recommendation to wind up three trusts of the former Gosford Council has been deferred by Central Coast Council administrator Mr Ian Reynolds at the September 28 council meeting.

One of the trusts, the Protection of the Environment Trust, may hold monies related to at least one controversial Peninsula development and may hold other local assets including community land.

It was a condition of development consent in 2007 for a luxury retirement village to be built in Hillview St, Woy Woy, that $225,000 be paid into the trust.

It is understood the payment was to be made in three parts, the final one upon completion.

The retirement village project was started with clearing of endangered bushland and some groundworks, but has not proceeded beyond that.

Mr Reynolds resolved to seek further information after listening to two speakers against the recommendation to wind up the Gosford City Council Protection of the Environment Trust, the Gosford Affordable Housing Trust and the Gosford Foundation Trust,.

He said taking into account the information provided by the two speakers he had decided to defer the matter and request a further report.

According to the report prepared by the unit of the chief executive officer, Mr Rob Noble, the Gosford City Council Protection of the Environment Trust was established in 2006.

At the time, its stated purpose was to promote the protection and enhancement of the natural environment or of a significant aspect of the natural environment and in particular the conservation of flora and fauna indigenous to the Local Government area of Gosford City; and provide information or education or the carrying on of research about the natural environment or a significant aspect of the natural environment in particular relating to flora and fauna of that area for the benefit of persons within the Local Government Area of the City of Gosford.

On October 3, 2006, the former Gosford Council resolved in part to "transfer the sum of $1.5 million from funds generated from the bonus provisions of subdivision of 7(c2) lands, into a special interest bearing account to be administered by Council's newly established Gosford Sustainability Environmental Trust.

"The $1.5 million transferred to the relevant account remains Council's funds, and the Trust has been administering the account for Council.

"The intent was that income from the investment of the $1.5 million was to be used for the maintenance of Coastal Open Space System (COSS) land.

"The annual interest from this investment (approximately $65,000), was allocated by the Trust annually to specific environmental projects, following an application process."

However, Ms Jane Smith, manager of the Community Environment Network and a member of the trust's management committee since 2010 said the report from the CEO's unit that formed part of the agenda for the September 28 Council meeting was "inadequate".

Ms Smith said that the report to the meeting had failed to explain that the Trust was set up as an outcome of the Somersby Industrial Park plan of management which was coordinated by NSW Premier's Department to address the conflict of interest between the site's perceived value as an industrial site and the fact it included Indigenous sites of national significance and national endangered species.

The money held by the trust, according to Ms Smith, was initially intended to compensate land owners who were unable to develop Somersby sites because of their cultural and/or ecological significance.

The trust was also established, Ms Smith said, to have Australian Taxation office status which meant land owners could donate land to the trust and receive 100 per cent of the land's value as a tax deduction over five years.

Ms Smith said she believed Council needed to consider whether a properly constituted trust, which its own trust deed, could, in fact, legally be wound up via a Council resolution.

She said lands donated to the trust, under trust law, should remain the property of the trust and she did not believe it was a simple matter of stating in a report that the lands were held on behalf of council.

She said the trust may have also, from time to time, held monies received from developers as offsets to compensate the community for developments that may have been approved at the expense of Ecologically Endangered Communities.

One such development was the plan to build a luxury retirement village on land in Hillview St, Woy Woy, near the corner of Veron Rd.

As for the trust's property holdings, Ms Smith said she believed parcels of land had been donated to the trust "from all over the [former] Gosford Local Government Area".

She said the committee of management had specifically requested that land holdings since 2010 should have been classified as community land, which means they could not be sold by Council in its role as trustee.

Mr Noble's report to the September 28 Council meeting said applications for funding in 2016/17 have not been allocated, due to the timing of the amalgamation.

"This process will cease, and community organisations will be encouraged to apply for grants and sponsorships from the wide range of grant support programs offered by Council," the report to Council said.

"The Protection of Environment Trust operates similar to the former Gosford City Council's previous Advisory Groups and Committees, with minimal community representation (three community members).

"The Advisory Groups and Committees of the former Councils ceased to operate from the date of the proclamation on 12 May 2016.

"A new community participation process will be developed by Central Coast Council, to be far reaching, engaging and inclusive to replace the traditional committee and advisory group structure," the report said but these views were disputed by Ms Smith.

The trust deed also specifies that the trust is to be wound up after 80 years and prescribes the process by which that winding up is to occur.

The winding up provisions of the deed can only be altered by the creation of a new trust deed.

Arguably the fact the trust was founded as a condition of the Somersby Industrial Park plan of management may mean that the NSW Government may be interested in scrutinising any proposal to amend the trust deed.

The report to the September 28 council meeting set out a similar rationale to justify the winding up of the Affordable Housing Trust and the Gosford Foundation Trust.

Agenda item 3.5, 28 Sep 2016

Meeting notes, 28 Sep 2016

Central Coast Council ordinary meeting

Reporter: Jackie Pearson