At the Development and Environmental Services Committee meeting on Monday evening (20.2.12) a report was tabled which included the latest legal advice sought by Council on Conflict of Interest .
This follows the outcome of the Ancanthe Park development application, in which so many aldermen absented themselves from debate that the decision (to approve the development) was made by a Council officer. Residents who opposed that decision have since been involved in appealing it. The matter is presently in mediation.
The advice given by Estcourt includes a reference to Winky Pop Pty Ltd v Hobsons Bay City Council , and sums up by saying:
It foIlows from the foregoing that I am of the opinion that Aldermen are entitled to participate in discussions with developers and interested third parties after a development is lodged and to attend private and public meetings and briefings in relation to an application that will be determined by the Council as a planning authority under the Land Use Planning and Approvals Act 1993.
Even speaking in favour or against a proposal at a public meeting could easily be defended although in my view is not to be routinely recommended, but short of making egregiously strident or didactic comments or signing a representation or a petition in favour or against a proposal it would be very difficult to make a case of apprehended bias against an alderman involved in information gathering activities and the risk of a successful judicial review is negligible. I see no reason for Council to change its present practises and procedures.
The recommendation of officers was to accept this advice.
With Burnet in the chair debate started with Harvey expressing the view that aldermen will be relieved to have received this advice, when compared with that first received. Christie noted that the item should be headed Simmons Wolfhagen vs Mr Estcourt and flagged the possibility that there could be yet more divergent legal views.
“Do we take a risk?” he asked.
Briscoe’s view was that Mr Estcourt is highly regarded and that he showed depth of knowledge with reference to previous cases.
“The important thing is that we show no bias – but we don’t come with empty minds. We are elected on our political views.”
Briscoe went on to stress the importance of letting the public know what had happened – that the first advice taken had been very conservative and legalistic. It had been “over the top” to suggest aldermen couldn’t take an interest in community by attending public meetings, said Briscoe.
Foley wanted to know how things had come to this, given the amount of information publicly available. He referred particularly to a document attached to the report titled Ensuring Unbiased Democratic Council Decision Making published by the Victorian Department of Planning and Community Development.
Mr Noye’s answer, for the Council officers, was that while there was much information available; some of it showed other Council positions that agreed with the Simmons Wolfhagen advice and that the advice of the Planning Appeals Tribunal was even more strongly in support of it.
Miss Fletcher, giving legal opinion for Council, noted that the Victorian document was specific to Victorian legislation.
Foley spoke of concern for residents who have been affected by the initial decision and the question was asked whether Council could now help them in any way.
Mr Noye was not sure how to advise on that and Briscoe said it would be hard to give compensation to people who have suffered as a result of Council following a process in good faith.
Christie remained concerned that Estcourt’s view could not be regarded as definitive. He had clarified, early in debate, that when this goes to full Council aldermen will be voting as individuals, whatever DESC’s decision now.
DESC voted in favour of the Council officers’ recommendation to accept Mr Estcourt’s advice.
This will go to the full Council meeting next Monday 27th February 2012, at 5pm, upstairs at the Town Hall in Macquarie St.