OLG reply to Creighton Report

Strengthening local government
5 O’Keefe Avenue NOWRA NSW 2541
Locked Bag 3015 NOWRA NSW 2541
Ms Fiona Ziff
North Wagga Wagga Residents' Association
By email: nwra76hampden@yahoo.com
Our Reference:
Your Reference:
Contact:
Phone:
A712124
Angus Broad
02 4428 4192
24 September 2020
Dear Ms Ziff
I refer to your emails of 21 July 2020, 5, 17 and 18 August 2020 and your concerns
about the flood risk mitigation process undertaken by Wagga Wagga City Council
and your concerns regarding Clr Kendall.
While I have noted your request that the Office of Local Government (OLG)
investigate the handling of the flood issues affecting North Wagga Wagga, having
considered the totality of the information provided by you, this is not a matter that
OLG proposes to investigate. However, I would encourage members of your
association to work with Council and the Department of Environment, Energy and
Science to resolve your concerns.
I note that your concerns regarding Clr Kendall are contained in a report dated
23 May 2020, by the Creighton Group (the Report).
The Report alleges that Clr Kendall failed to declare positions and interests in
seventeen instances, mischaracterised a company’s principal objects in sixteen
instances, incorrectly described his interests in a company in seven instances and
in one instance made an incorrect disclosure as a property developer.
I have carefully considered the allegations that Clr Kendall failed to properly disclose
his interests in his interest returns and that he failed to properly disclose his interests
at meetings.
The Code of Conduct (the Code) and formerly the Local Government Act 1993 (the
Act) provides that a pecuniary interest is an interest that a councillor has in a matter
because of a reasonable likelihood or expectation of appreciable financial gain or
loss to that person or certain related persons or bodies.
The Code requires disclosure of such interests at meetings. Most importantly a
pecuniary interest only arises where the matter before the council may give rise to
an appreciable financial gain or loss. Accordingly, a pecuniary interest at a particular
meeting will be dependent on the matter then being considered.
T 02 4428 4100 F 02 4428 4199 TTY 02 4428 4209
E olg@olg.nsw.gov.au W www.olg.nsw.gov.au ABN 20 770 707 468
*A720212*

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Separately, councillors must make and lodge a return in the appropriate form,
disclosing the councillor’s interests as specified. Again, the Code (and formerly the
Act) stipulates the information to be provided.
Clr Kendall’s returns over the period from 1 July 2009 onwards, as annexed to the
Report, have been reviewed. All were lodged within the time permitted. All contain
comprehensive disclosures, including many not required including property owned
by spouse and son. Discretionary disclosures include interests of trust and the
relinquishing of an interest his son had in an engineering business. The returns
ascribe the principal objects of relevant companies. I note that the return for 1 July
2017 – 30 June 2018 contains an error regarding the years covered by the return.
However, it was lodged on time on 11 September 2018 and was clearly intended to
be made for the period 2017/2018. I do not regard this as having any consequence.
The Report alleges that Clr Kendall has mischaracterised the descriptions of
Boorooma Estate Pty Lts (Boorooma) and Horedav Pty Ltd (Horedav).
Insofar as Boorooma is concerned, Clr Kendall was neither a director nor a
shareholder in this company and, accordingly, had no disclosable interest. Any
description in any of Clr Kendall’s returns could not give rise to a complaint regarding
its correctness or otherwise of the disclosure.
The Report suggests that the principal object of Horedav should be property
development, rather than property investment. This is based solely on its interest in
Boorooma, and because Boorooma is said to have a principal object of property
development. I do not accept that the basis for reaching this conclusion as outlined
in the Report is correct.
The Report also alleges that Clr Kendall failed to properly declare either a pecuniary
interest or a non-pecuniary conflict of interest when Council considered matters
relating to The Mill Development, a development application for a hangar at Wagga
Wagga Airport by Douglas Aerospace, a development application relating to
6-8 Barlow Street Wagga Wagga and a development application relating to
60 Crampton Street Wagga Wagga.
In relation to The Mill Development, I do not regard the mere proximity of a property
owned by a company that Clr Kendall was a director of, on its own, gave rise to a
pecuniary interest. It is acknowledged that in some cases proximity of property to a
rezoning or development may give rise to a pecuniary interest. However, in this case
the discrete nature of the development and the distance between the development
and the land in question is not regarded as giving rise to a reasonable expectation
or likelihood of an appreciable financial gain or loss. Nor do I regard a prior
declaration of a pecuniary interest (based on the likelihood of future work associated
with the development) in 2011 as indicative of a pecuniary interest.
Likewise, regarding the Douglas Aerospace matter, I do not regard the fact that the
registered office and principal place of business of a company that Clr Kendall was
a director of, gave rise to a pecuniary interest. Most importantly, there is no evidence
as to how Wagga Wagga Air Hangar could benefit or lose from the Douglas
Aerospace development.

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Insofar as the development application for 6-8 Barlow Street Wagga Wagga is
concerned, I note that, contrary to what is alleged in the Report, the minutes of the
meeting indicate that Clr Kendall provided an explanation why no pecuniary interest
arose.
In relation to the development application affecting 60 Crampton Street Wagga
Wagga, I note that it is alleged that a close business associate had a role in
preparing plans for the proposal. The alleged relationship is with the person who
prepared the plans, not in relation to the development proposer or applicant. I do
not regard this as giving rise to a pecuniary or non-pecuniary conflict of interest.
Having considered all of the allegations contained in the Report, I am satisfied that
no action is warranted by OLG.
Should you wish to discuss the matter, please contact Angus Broad on 4428 4192.
Yours sincerely
Chris Allen
Director, Sector Performance and Intervention