Have you ever had a fence? Have you ever had a neighbour? When was the last time you were arrested and plonked in a police cell for annoying your local council? If you have tears, prepare to shed them now. Michael West reports on #fencegate.

Jonathan Bolton – Jono to his friends – is a lawyer. So it is perfectly reasonable that he subscribes to the philosophy that lawyers are human beings too. “If you prick us, do we not bleed,” he asks, in evidence of this proposition.

In light of the history of persecution of lawyers, it is with a heavy heart that we recount Jono’s travails, sufferings which have the Sydney solicitor before the courts this very week, accused of crimes against humanity, that is, breaching Section 474.17 of the Commonwealth Criminal Code Act, 1995. His offence? The heinous act of sending emails – and the odd voicemail.

Jono was minding his own business one chilly Sunday morning in June, at home preparing the veggies and pork shoulder for his son’s birthday lunch when four police officers arrived, arrested him and tossed him in a police cell at Newtown police station.

Michaelwest.com.au interviewed Jono for this story. “Five hours in a police cell on the day of my son’s birthday lunch? Not even a One Nation defamation lawyer deserves that,” he said.

Jonathan Bolton’s arrest came after another lawyer, Robert Tassell of Pikes and Verekers Lawyers, demanded, on behalf of recently-minted Inner West Council chief executive, Michael Deegan, that he pay money and make other concessions to Mr Deegan, an associate of Federal Opposition leader Anthony Albanese in whose seat of Grayndler the Boltons reside.

“I passed up the opportunity to pay Mr Deegan money,” said Jono. “According to the missive from Pikes and Verekers, I had defamed Mr Deegan by, inter alia, suggesting Mr Deegan had been perpetuating a cover-up of incompetence or dishonesty at Council.

Jonathan Bolton leaving court today. Photo care of Rene Nowytager

“Mr Deegan reckoned that this entitled him to a retraction and personal apology while providing an opportunity for him to deliver work for his defamation lawyers at Pikes and Verekers, rather than having his PA send me a quick email.”

While this might have only looked like a shakedown, says Jono, it soon assumed shades of a stitch-up when Mr Deegan claimed that dozens of Jono’s plaintiff emails, which Council was filing as ‘unread’, had caused distress to staff within the Council.

Those with even the barest experience of local councils – and this is a large demographic encompassing millions of people around Australia – might presume that getting complaints is what Councils do. Given therefore, that with the possible exception of doctors, local government operatives hear more complaints than anybody, it is peculiar that unread emails should cause such tribulation to the staff of Inner West Council.

“At the time of writing, Mr Deegan was claiming that up to ten past or present staff, eight of them senior, needed protection from my unseen emails and some robust voicemails, none of them offensive in the usual sense of the word”.

Mr Deegan and other representatives of Inner West Council declined to be interviewed for this story despite its gravity – a dispute about a fence – but the Council did respond to written questions and the answers are appended below.

Very high. The fence in question under construction.

In any case, unimpressed by Jono’s insouciance, Mr Deegan enlisted the local constabulary. Taking time out from his weekend activities, Mr Deegan popped into Glebe police station one wintry Saturday in June to sign paperwork that he hoped would be more effective than Pikes and Verekers at shutting down the pesky lawyer.

So it was that, at 9am the next day, the police arrived at the Boltons’ house en force – one Inspector Darren Laing, an acting Sergeant Jacqui Buchanan and two constables – to inform the oblivious Bolton and his dumbstruck wife that his email limit with Council had been reached and his liberty in the municipality, in which he had resided for 21 years, had expired.

“Having barely had time to prep the veggies and get the pork shoulder in the oven before the inspector called, I used my one phone call in captivity to instruct my wife to knock the oven down to 110 degrees so the pork shoulder would still be juicy and tender by the time the guests arrived at 2pm.

“I’d already taken riding instructions from (the barrister) Tom Hughes while the cops were huddled outside, and it was 3:30 in the afternoon before I joined the guests and rattled the pans in the kitchen. It was a little surreal … probably PTSD.”

From upstanding citizen to police cell

So how did an upstanding member of the community come to be judged such a threat to society as to warrant being escorted from his home to spend half his Sunday in a 2 x 1 metre holding cell?

It all started four years earlier when Jono’s new neighbour in the inner Sydney suburb of Annandale allegedly inquired of him, “Are you going to put up a privacy screen or is it going to get violent?”

Before too long, the Boltons had an AVO in place and the neighbours had retaliated with a DA in Leichhardt Council, as the Council then was before its amalgamation, for a large new dividing fence without checking with the Boltons first.

Despite the bad blood, and mostly 2.4m fence height which assessing officer Christian Hemsley described as “excessive” and needing to be “reduced”, Jono says he and his wife only objected to the 2.4m height along three metres of the fence-line’s 25-metre length.

Such an objection would appear to be reasonable – in view of the length and height of other fences such as the Berlin Wall, which was 3.6m high, and the perimeter of Guantanamo Bay, both of which – unlike the innocuous proposal from the Bolton neighbours – included watchtowers and barbed wire.

The Berlin Wall

Lest we digress, as Jono reported the unfolding of events to the National Fence Correspondent for michaelwest.com.au, while intending to only lower the 2.4m fence as he had foreshadowed in his report, the Council’s Mr Hemsley drafted a condition of consent that also increased the 1.8m fence to 2.2m.

This is where the raft of claims and counterclaims becomes tricky.

According to Jono’s version of events:
“Ordinarily, the first thing a public servant does when a mistake is drawn to their attention is admit it and ask what they can do to make up for it. To our very great surprise however, Council denied any mistake had been made and claimed that it intentionally bestowed upon both neighbours a fence taller than either neighbour requested or the architect deemed sufficient.

“That’s called ‘Inner Worst Council: setting aside planning policies and principles 101’.

“First under (former CEO) Rik Hart and now under Mr Deegan, they claimed the height increase was intentional despite the assessing officer having sworn black and blue, yet contradictorily, that the fence had only been lowered. That was 2017.

“In January 2018, two of Council’s senior officers, Rachel Josey and Ryan Cole, reluctantly met with my wife and me but refused to allow assessing officer Hemsley to attend.” A follow-up letter from Council was legally-vetted (for a fence?) but was “error-ridden” according to the Boltons.

For Inner West Council, two bans are better than one

Dusting off his keyboard, Jono sent a corrective eight-page reply which Council advised him would be ‘filed unread’, along with anything else he might send. In September 2018 when Jono did not relent, Rik Hart, Mr Deegan’s predecessor, turned the complaints handling setting to full-bore when, in a clear nod to Animal House, he imposed a second ban on Jono’s communications being read.

While Jono’s emails were, he claims, never more than forthright, using a carriage service to harass or menace and so forth is a Commonwealth offence which promises up to three-years in the striped pyjamas.

“By June, Council had filed over one hundred emails and, being unread, staff could only imagine how terrifying they must have been,” he says.

Now that Jono has been so charged, Mr Helsmley – whose efforts encouraged Jono’s neighbours to take Mrs Bolton to the Local Court and NSW Civil and Administrative Tribunal (NCAT) four times in 15 months in pursuit of the higher fence – claims in his police statement that the height of the fence had been increased intentionally.

“In fairness to the Council,” says Jono, “Some staff did act in good faith. Denise Benger nailed the problem straight away but was soon forbidden from discussing the matter. Eamon Egan a planner who is well-respected, signed off on Christian’s erroneous conditions of consent without noticing the error and also told me he was not allowed to discuss it with me.”

Yet the survival instinct is strong in Council employees and in fairness to assessing officer Christian Helmsley, he was merely locking step with the chief executive Mr Deegan.

“For an idealist, I make a good lawyer,” says Jono, “But Council admitting a mistake is about as likely as Malcolm Roberts marrying Senator Fraser Anning in a ceremony presided over by a climate-change-preaching mufti”.

Jono, as a lawyer, says he is disdainful of clock-watching; keeps his clients off the legal conveyor belt and negotiates settlements that give insurers nosebleeds. When he gets a bee in his bonnet about an injustice however, he’s like the proverbial dog. Council would concur with Jono’s evaluation of the latter qualities.

With a trial due before Christmas, which Jono expects the charges will be dismissed, there is indubitably more to come in this #fencegate epic.

We may jest at the imbroglio of a neighbour dispute over a dividing fence but there are deeper public interest concerns at stake here, not least the deprivation of liberty of a citizen for having a disagreement with his local council. Jono not only charged under the Commonwealth Criminal Code Act 1995, Section 474.17 which deals with harassment, menace and offence using a carriage service – and follows the sections which deal with genocide, torture, kidnapping and human slavery.

 

He is also charged under the Crimes (Personal and Domestic Violence) Act, 2007, Section 13 (1) for stalking. This is particularly bizarre as he has had no face-to-face contact with any Council staff since the meeting with Josey and Cole in January, 2018.

(Editor’s Note: if sending too many unread emails is a crime then this editor could bring charges against thousands of people, a class action perhaps, which would envelope the entire public relations community in Australia).

Besides going to deprivation of liberty resulting from a relatively minor dispute which originated over a fence, the case of Jonathan Bolton also goes to the questionable use of council and ratepayers’ resources. NSW taxpayers stump up the cost of the already over exercised court system and Inner West ratepayers incur the costs of unreasonable disputes which might have been averted by all parties sitting down over a cup of tea.

Michael Deegan meanwhile has a fire blazing on another front with the Inner West Council chief executive subject to a finding of misconduct in public office only last month by the South Australian Ombudsman. According to a report in the Sydney Morning Herald:

“That report (by the SA Ombudsman) found Mr Deegan, who had worked as the chief executive of SA’s Department of Planning, Transport and Infrastructure, had not made efforts to disclose his conflict of interest when he signed off on a freedom of information request into his own credit card spending”.

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Stayed tuned for the next Episode of #Fencegate, and thereafter the putative epic screenplay, Gone with the Fence.

Editor’s Note: michaelwest.com.au focuses on corporate investigations and national affairs and only undertakes to investigate one local government matter every two years. We encourage readers to provide feedback, not via email if you wouldn’t mind, but  via our Disqus comment section below; in particular, any commentary which relates to fences, fencing, local government activities and attitudes towards fences, the philosophy of fences, fences in history, fences and metaphysics and the future of fences.

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QUESTIONS FOR INNER WEST COUNCIL

The following questions relate to:

– the Inner West Local Government Area (IWLGA) only;

– development application D/2015/745 to Inner West Council (DA); and

– the complaint by Mr & Mrs Bolton that the assessment of the DA was in error.

Does Council agree that dividing fences, per se, are not mandatory between neighbouring private properties?

Does Council agree that the applicant proposed a brick & slat fence that, between Mrs Bolton’s building line and a proposed pergola (“Section B”), would stand 1.8m above Mrs Bolton’s existing ground level?

Does Council agree that in the Referral Panel Minutes (the “Minutes”), the assessing officer identified Mrs Bolton’s drying deck (“Section D”) as the “area of most concern” in terms of overlooking?

Does Council agree that the Development Assessment Report (“Assessment Report”) at page 8 declares that a fence with an effective height of 1.8m will “maintain a reasonable protection of privacy to both parties”?

Does Council agree that the Statement of Environmental Effects (SEE) states, at page 9, that the fences, including the Section B fence, were designed to prevent overlooking?

Does Council agree that, at page 9, the SEE states that the height of the Section B fence was “largely a matter for the applicant” because the Section B fence was of an exempt height which Council has no power to assess and determine under the ss 4.15 and 4.17 of the EPA Act?

Does Council accept that Mrs Bolton did not object to the proposed 1.8m height or brick & slat materials of the Section B fence?

Does Council agree that, where two neighbours agree on the height of a dividing fence that does not border a swimming pool, there is no development control that requires a height increase?

Does Council agree that Clause 2.34 of the State Environmental Planning Policy (Exempt & Complying Developments) Code 2008 (“Clause 2.34”) limits fences behind the building line to 1.8m on level land and 2.2m on sloping land?

Does Council agree that the Minutes:

Describe the land at the top of the retaining wall as being relatively level on both sides of the retaining wall?

Described the height of the proposed fence only as: i. “Excessive”;

“2.4m”; and

Needing to be “reduced”?

During the DA notification period, the public, including nearby property owners, were informed of a proposed ~1.8m fence in Section B. Why did Council draft a condition of consent that allowed the applicant to construct a 2.2m fence:

Despite no request being made by the applicant for a taller? and

Without notifying Mr & Mrs Bolton or the public for comment?

Why did Council impose inferior timber palings in lieu of the more durable brick & slats proposed without consulting Mr or Mrs Bolton or notifying any residents before its Assessment Report was published?

How does Council reconcile the multiple internally-generated Council emails in which the assessing officer advises Mr & Mrs Bolton that the Section B fence, as determined, is “lower than proposed” and “lower than the stamped plans”? with its increased height?

If the assessing officer believed that the height of the Section B fence needed to be increased to address a particular concern, why was the language in condition 3.a) permissive (“maximum of 2.2m”) rather than prescriptive (“2.2m”) to ensure any such concern would in fact be addressed if the condition were complied with?

Does Council accept that the Leichhardt Planning Panel was likely, if not bound, to adopt each condition of consent to which no objection had been received?

Does Council agree that neither the Assessment Report nor the Minutes properly refers to any need to increase the height of the fence at any point? [The writer notes that, at page 10, the Assessment Report refers erroneously to a height increase in Section D to 2.4m whereas 2.4m was in fact the proposed height.]

Does Council agree that neither the Referral Panel Minutes nor the Assessment Report makes any reference to the brick & slats materials proposed for Section B?

Does Council accept that, at page 10, the Assessment Report makes no reference to the brick & slats in Section B being replaced with timber palings?

Does Council agree that when the DA was determined by the Leichhardt Planning Panel, the assessment in the Assessment Report gave Mrs Bolton no reason to believe that the conditions of consent would allow a taller fence or change in materials of the Section B fence?

Does Council agree that Council officers met with Mr & Mrs Bolton on 24 January 2018 after Mr & Mrs Bolton complained that the Section B fence had been substantially changed without due notice or consultation?

Why did Council refuse to allow the assessing officer to attend the 24 January meeting with Mr & Mrs Bolton?

On 5 February 2018, did senior manager, Ryan Cole, email a legally-vetted letter to Mr & Mrs Bolton by way if follow-up to the 24 January meeting?

Does Council agree that Mr Cole’s letter provided the following reasons for the Section B fence being amended:

Timber palings were lower maintenance than fibre-cement sheets? and

A height of 2.2m was necessary to protect the French doors?

Does Council agree that:

The reason in 23.a. does not explain why the brick & slats proposed in Section B were replaced with timber palings?

The reason in 23.b refers to the French doors in the heavily-glazed Section D, some 15m east of Section B? and

Section B is windowless on Mrs Bolton’s side of the fence?

Does Council agree that when Mr Bolton sent a corrective letter in reply on 6 February 2018, Mr Cole advised him that the letter would be filed, unread, as would any further correspondence in relation to the DA?

Does Council routinely refuse to read correspondence in reply from residents?

How does Council explain its refusal to read Mr Bolton’s letter after Mr Bolton stated that it corrected material errors in Mr Cole’s letter?

Does Council agree that from March 2018, Council refused multiple written and oral requests from Mr Bolton to meet with the General Manger, Mr Rik Hart?

Does Council agree that when the matter was reported to the Internal Ombudsman, Mr Cole represented that the French doors in the “area of most concern” were in Section B when, in fact, they were some 15 metres further east in Section D?

Does Council agree that Planning staff have been gagged since 6 February 2018 from speaking to Mr Bolton but that staff have also refused to speak with Mrs Bolton?

Does Council agree that in November 2018, it quarantined emails from Mr Bolton making it impossible for Mr & Mrs Bolton to transact unrelated business with Council, including obtaining a refund of a security deposit, or correspond with one or more councillors?

Does Council have any explanation more plausible than that advanced by Mr & Mrs Bolton (that the assessing officer misread the plans) for Council increasing the height and downgrading the materials of the Section B fence without receiving any request to do so from either neighbour?

How does Council explain its assertion that the assessing officer intentionally increased the fence height from 1.8m to 2.2m in the windowless Section B when 1.8m was deemed a sufficient height to protect the privacy of both neighbours in the heavily-glazed Section D?

Is a more plausible explanation that the assessing officer believed that he was lowering a 2.4m fence in Section B to 2.2m rather than increasing a 1.8m fence to 2.2m?

How does Council explain the increase in height and downgrading of materials in Section B when neither the Assessment Report nor Minutes identifies any need for either a height increase or change from brick & slats to timber palings?

Has the CEO refused requests from 3-4 Councillors to meet with Mr & Mrs Bolton?

Has the CEO based his decision to not meet with Mr & Mrs Bolton on the advice of Council staff among whom are the staff who stand accused of covering up errors?

Has Mr Deegan instructed lawyers and threatened defamation proceedings against Mr Bolton?

With how many residents has Mr Deegan met with as CEO?

Has Mr Deegan threatened defamation proceedings against other residents in the three months since assuming the CEO role?

Do the threatened defamation proceedings relate to an email Mr Bolton sent suggesting that Mr Deegan’s refusal to meet with him and his wife (despite at least 3 requests from Councillors) was facilitating a continuation of a cover up of errors and/or dishonesty by Council staff?

How is Council’s refusal to read a resident’s correspondence in reply, or the CEO’s refusal to meet to discuss allegations of dishonesty, not discriminatory when the new CEO has a reputation for meeting residents, presumably on less serious matters?

Why would allegations of corruption not sufficiently pique the CEO’s interest?

Does Council agree that the effect of the conditions of consent led to the outcome illustrated in the attached GIF file?

Does Council agree that no planning officer acting reasonably would properly impose a 2.2m fence where neighbours had agreed upon a 1.8m fence and where no request for a taller fence had been made?

Does Council agree that no planning officer acting reasonably would properly impose timber palings where neighbours had agreed upon the brick & slat fence proposed?

How many requests from how many Councillors will it take before Mr Deegan agrees to meet with Mr & Mrs Bolton?

How does Mr Deegan reconcile his role as a public servant, answerable to elected representatives, and his refusing Councillor requests to meet Mr & Mrs Bolton?

Mr Deegan was made aware that Mrs Bolton was attacked by her neighbour with a fence paling. In what sense are the circumstances of this matter not sufficiently concerning for Mr Deegan to meet with Mr & Mrs Bolton?

RESPONSE FROM INNER WEST COUNCIL

Council has spent extensive resources investigating all aspects of the matters contained in your inquiry.

The issues raised have been investigated at the most senior level within Council, by Council’s Internal Ombudsman Shared Service and externally, by the NSW Ombudsman’s Office.

All investigations are complete and did not result in any support for Mr Bolton’s complaint and allegations.

A decision was taken by Council to adopt the procedures contained in Council’s Complaints handling policy to no longer engage with Mr Bolton given the disproportionate and unreasonable impost his repeated allegations were having on Council resources and the impact his behaviour was having on staff. The decision was taken with regard to the NSW Ombudsman’s guidelines on Managing Unreasonable Complainant Conduct.

Background:

The State Environmental Planning Policy Exempt and Complying Codes 2008 (Codes SEPP) provides a mechanism whereby property owners may carry out certain works without needing to obtain development consent from Council, provided the works meet certain exempt criteria. The Codes SEPP allows boundary fences of up to 2.2m on sloping sites (but usually not more than 1.8m on level sites) without the need to obtain a development consent (Development Application).

This does not, however, preclude property owners from seeking development consent for a fence which exceeds the exemption criteria; in this instance, height. Nor does it preclude Council from granting consent for such works subject to conditions. Development consents are issued under the provisions of the Environmental Planning and Assessment Act 1979, and are independent of the provisions of the Codes SEPP. The agreement of third parties, such as neighbours, is not required for development consents to be issued. There is, equally, no requirement under the Codes SEPP for neighbour’s agreement to be obtained, nor does the Dividing Fences Act 1991 require such agreement, if all works and costs are to be borne by the proponent.

The fence in question was part of development application D/2015/745, at No.10 Pritchard Street. The application was notified to the owners of No.12 Pritchard Street, who lodged an objection in response. The application was reported to the Leichhardt Planning Panel, who are an independent Panel of experts in planning, law and architecture. Mr Bolton had requested that the Panel determine the application. The Panel inspected the sites prior to making their determination.

Regards

Nicola Feltis | Acting Group Manager Communications, Engagement and Events
Inner West Council

Dreams of speed gone to the dogs

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