The texts that spared a Sydney council from scrutiny over a $24m synthetic oval

One of NSW’s top bureaucrats in charge of the local government watchdog and a council boss circumvented a process scrutinising how costs for a public synthetic oval project ballooned to more than $24 million.

Text messages seen by the Herald reveal Ku-ring-gai Council’s general manager, David Marshall, and Brett Whitworth, the long-serving deputy secretary responsible for the Office of Local Government (OLG), discussed a spending analysis for the beleaguered Norman Griffiths Oval synthetic upgrade.

Costs for the Norman Griffiths Oval’s synthetic upgrade have increased from $3 million to $24 million, and the opening date has been delayed from November 2023 to late 2027.Oscar ColmanThousands of residents have been locked out of the oval for more than four years over a litany of problems that have plagued the project, including cost blowouts up from $3 million to $24 million, scope creep, disputes with fired contractors, and probity concerns.

The oval upgrade has attracted blowback from synthetic turf sceptics, but has also sparked debate about whether councils, which deliver less than one-quarter of major infrastructure projects on time and within budget, can manage such costly projects.

“Hi Brett, just wondering if you’ve got a timeframe for a response about the project. Sorry to bother you but I’m under great pressure with the extraordinary meeting on Monday,” Marshall wrote to Whitworth on May 14, days before the May 18 council meeting.

Whitworth told Marshall in advance what his email would say, confirming the OLG would not ask the council to carry out a “capital expenditure review”, something the local government watchdog requires councils to undertake before embarking on major projects to ensure plans are financially sound: “Does that create issues for you?” Whitworth asked.

Marshall responded: “Should be ok as proposed. Perhaps you could also ask us to…” and asked Whitworth to write in the official email why conducting a capital expenditure review “would not be of practical utility … at this stage of the project”.

On three occasions, advice from OLG staff suggested the opposite. Internal emails released under freedom of information laws reveal staff told Whitworth that while the project was at first below the $10 million threshold that would trigger a capital expenditure review, successive cost blowouts meant the council was no longer exempt and needed to submit one within 60 days.

Three days after their text exchange, Whitworth formally emailed Marshall to say there was “no value in commencing a new capital expenditure review”. He instead asked the council to provide evidence showing how it had addressed the oval’s problems.

One staff member then wrote on the same day: “I have no words … Why have they been given an exemption … Who wrote the letter for Brett? It is so inconsistent.”

An artist’s impression of plans to build a synthetic oval.Greens MP and the party’s spokesperson for local government Amanda Cohn said a capital expenditure review was “not just an administrative tick-a-box exercise”.

“[Norman Griffiths Oval] actually needs this oversight to make sure that it’s in the best interests of the community,” Cohn said.

“I call on the minister to step in and require this oversight, which the OLG has been incapable of doing. I think it’s quite extraordinary to see the regulator choosing to turn a blind eye instead of doing their job.”

On May 27, law firm Johnson Legal, on behalf of community group Norman Griffiths For All, sent a letter to Whitworth alleging his actions were “unlawful”, and urged him to withdraw his advice to the council.

Office of Local Government deputy secretary Brett Whitworth (left) and Ku-ring-gai Council general manager David Marshall.Lawyers said the council’s failure to undertake the review “raise[d] serious and valid questions about good faith and informed decision-making by councillors over the use of public funds in connection with the project”.

Whitworth has denied the claim that his actions were unlawful. He conceded that while it would be considered best practice for the council to have completed a review, he maintained that the council did not breach any statutory obligations and said the OLG’s guidelines were not enforceable.

“I don’t accept that my actions were unlawful and that I was essentially undertaking an information exercise to see if council had met the intent of the guidelines before considering if regulatory action was needed or was redundant. We’ll need a strong letter back,” he wrote to staff members in an internal email.

Construction has stalled at Norman Griffiths Oval. Oscar ColmanA council spokesperson said the text messages between Marshall and Whitworth were “consistent with email exchanges on the public record as attachments to various council reports”, and said Marshall was making “practical and prudent suggestions to enable the OLG to be properly informed about the project.”

A spokesperson for the OLG said completing a capital expenditure review for an “already well advanced project” would have resulted in further delays, and defended the interactions between Marshall and Whitworth.

“The OLG therefore sought additional information from Ku-ring-gai Council to ensure there was appropriate oversight of the Norman Griffiths Oval project and that Council would have the funds to complete it. It is standard practice for the OLG to seek this information from councils and is part of the regulator’s role to protect the public interest,” the spokesperson said.

Hoenig has not responded to calls to intervene. He was asked about Norman Griffiths Oval during a budget estimates hearing in September, and said there has been “constant repetition” of councils mismanaging costly capital projects, pointing to North Sydney’s Olympic Pool and Ryde’s Civic Centre, which remains a hole in the ground.

“There is a real skills problem within the local government sector in their dealing with the private sector and their contractual arrangements,” he said, a dilemma he had discussed “at length” with Whitworth.

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