Greens councillor Kerry Brown has appealed to the local government minister, Gabrielle Upton, to hold an inquiry into Blue Mountains council, rather than suspending it.
The Court of Appeal yesterday threw out an injunction granted in February which had effectively prevented Ms Upton suspending council for three months.
The court granted a stay of seven days before the minister can act to suspend, which is designed to allow council to consider its position.
Council has indicated it might try to negotiate with the minister, rather than continue any legal action.
Cr Brown said she was concerned that the court’s decision opened the way for the minister to suspend council.
She said the court has also established that submissions from individual councillors, in addition to those from council, will have to be considered by the Minister before she makes a decision.
“I will therefore be writing to the minister this week asking that she does not suspend the council but instead conducts an inquiry into the management of the council with regard to asbestos and also whether the councillors are being fully informed to enable us to act as a governing body,” Cr Brown said.
“For example, I have been shocked to find that Michael Tooma of Clyde and Co, who council’s lawyers commissioned on our behalf to conduct the investigation into council's handling of asbestos, is described in the judgement as having co-owned a race horse with our former safety consultant and acting director, Mark Mulligan.
“Councillors were not informed of this by council officers despite the judgement making clear that council was informed of that matter on February 13 this year.”
Mark Mulligan was engaged as a consultant to review and improve council's safety management systems in 2016, and then in 2017 as an acting director of council’s service delivery.
It was allegations of a connection between Mr Tooma and Mr Mulligan, raised by Ray Hadley on his 2GB radio show, that led the minister to issue her February notice to suspend.
Cr Brown said “councillors should have been informed of the nature and extent of relationship which existed between Mr Tooma and Mr Mulligan. However, we weren't. This is the first time I have heard about the race horse.”
But Blue Mountains mayor Mark Greenhill described Cr Brown’s comments on Mr Tooma and Mr Mulligan as inappropriate.
“The investigation was into asbestos management by BMCC, the organisation. We have demonstrated that the independent investigation into council’s management of asbestos was conducted appropriately. We have established that there was no conflict of interest. Mr Mulligan was never under investigation. Her comments are an unfair reflection on these individuals.”
The mayor did welcome Cr Brown’s enthusiasm for the elected body not to be suspended.
“I would not think it passed her by, but she should recall that the council initiated an independent investigation into asbestos management in November 2017,” he said.
“This investigation is now complete. It cleared the elected council of any wrongdoing. We are implementing all of the recommendations of the independent investigator. We have completed, or substantially progressed, all actions required of in the minister’s Performance Improvement Order.
“The past operational failures of the organisation to manage asbestos have been recognised repeatedly, by me and others. We have done everything possible to address the issue and our efforts continue in the right direction. Our reports to the minister set out our actions in great detail,” he said.
The minister’s office issued a brief statement late yesterday: “The NSW Government welcomes the Court of Appeal’s decision and is taking further advice on its options, noting the matter remains before the Land and Environment Court.”