Office of Local Government v Petty

NCAT Occupational|2015-04-30

INTRODUCTION

The Respondent is a Councillor of the Wollongong City Council. On 29 July 2013, the Council held an Extraordinary Meeting to consider proposals of Council's staff for rezoning various land at Helensburgh and of Stanwell Tops. Item 8 on the Agenda related to property known as 159 to 169 Walker Street, Helensburgh, "the Blackwells", situated across the road and in close proximity to the home of the Respondent owned by him and his wife and known as 130 Walker Street Helensburgh. Item 8 was a recommendation of Council staff to rezone the Blackwells property (currently zoned E3 Environmental Management), so that about one quarter of the property, being the piece adjacent to the roadway, was to be rezoned to IN2 Light Industrial and the remainder of the property would be zoned "E2 Environmental Conservation". The Respondent was opposed to the zoning of Light Industrial.
The Respondent attended the Council meeting when Item 8 was considered and decided. He spoke and argued against the proposal. He voted against the proposal. It was carried.
Numerous complaints about Councillor Petty's conduct of participating in the debate and voting, were received by the Council and the General Manager referred those complaints to the Office of Local Government.
An investigation was undertaken at the request of the Director-General of the Office of Local Government. That was prepared by the Acting Chief Executive Officer of the Office of Local Government, Mr Steve Orr and was issued on 3 November 2014.
The report was provided to the Tribunal on 14 November 2014. The Tribunal determined that having considered the report the Tribunal would conduct proceedings into the complaint as particularised in the report. The matter was listed to make directions for the hearing of the matter.
The Directions Hearing was adjourned on 10 December as Mr Barley for the Office of Local Government was awaiting instructions. At the Directions Hearing on Tuesday 16 December, it was agreed that the matter would not require a hearing and could proceed as a hearing "on the papers". Directions were made for written submissions to be filed by the Office of Local Government by the 23rd of January, the Respondent to file any further evidence or submissions by the 13th of February, and the Office of Local Government to file any submissions in reply by the 27th of February and "each party has leave to re-list the matter on two working days' notice." There was a direction that the matter would be decided on the papers unless the Tribunal directed otherwise.

SOME OF THE RELEVANT STATUTORY PROVISIONS

Chapter 14 of the Local Government Act 1993 ("The Act") is headed "Honesty and Disclosure of Interest". Division 1 is headed "Conduct Generally". Subsection 439 (1) requires that every Councillor, member of Staff of a Council and delegate of a Council "must Act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act."
Section 440 provides for regulation to prescribe a Model Code of Conduct (the "Model Code") applicable to Councillors, members of Staff of Councils and delegates of Councils. It sets out some matters for which the Model Code may make provisions. There is also a requirement in subsection 440(3) for the Council to adopt a code of conduct incorporating the provisions of the Model Code.
Subsection 440(5) requires that Councillors, members of Staff and delegates of a Council must comply with the applicable provisions of the Model Code and the provisions of the Council's adopted code that are not inconsistent with the provisions of the Model Code in force. Subsection 440(6) provides that a provision of a Council's adopted code is not inconsistent with the Model Code, merely because the provision makes a requirement of the Model Code more onerous for persons required to observe the requirement.
Section 440AA provides for the regulations to prescribe a model procedure for administering the Model Code. Division 2 deals with serious corrupt conduct which is defined as "corrupt conduct" (within the meaning of the Independent Commission Against Corruption Act 1998), that may constitute a serious and indictable offence, being: 1. in case of the conduct of a holder of a Civic Office - conduct in connection with the exercise or before that exercise, of a functions of a civic office; or 2. in the case of conduct of a member of Staff of a Council - conduct in connection with the exercise or purported exercise of the duties of a member of Staff.
It provides for dismissal from civic office or temporary suspension from civic office for serious corrupt conduct. No issue of serious corrupt conduct is raised in these proceedings.
Division 3 of part 1 of chapter 14 deals with misconduct. Misconduct is defined in Subsection 440F(1) as any of the following: 1. A contravention by the Councillor of this Act or the Regulations, 2. A failure by the Councillor to comply with an applicable requirement of a code of conduct under section 440, 3. A failure by a Council to comply with an order issued by the Director - General under this Division, and 4. An Act of disorder committed by the Council at a meeting of the Council or committee of the Council.
Subsection 440F (2) however, provides that a contravention of the disclosure requirements of part 2 is not misconduct that is dealt with specifically in other provisions. There are provisions in section 440G which provide that a Council may by resolution at a meeting formally Censure a Councillor for misconduct.
Section 440H gives the Director General power to investigate conduct by a Councillor. The power includes the power to arrange for a departmental report to be prepared in relation to an investigation and that was the course of action that was followed in relation to this matter.
The Director General has power to take disciplinary action for misconduct (section 440I). Alternatives are provided for in section 440J including referring the matter to the Council concerned with recommendations as to how the Council might resolve the matter by alternative dispute resolution or otherwise, or referring the matter to the this Tribunal for consideration.
Section 440K provides that while a Councillor is suspended under division 3 of part 1 of chapter 14 for misconduct, the Councillor is not entitled to exercise any of the functions of civic office, he is not entitled to any fee or other remuneration or payment of any expenses and he is not entitled to the use of Council facilities to which the Councillor would otherwise be entitled as the holder of the civic office. It also in subsection 440K (2) provides that the period of suspension under an order made by the Director General commences on the date 7 days after service of the order on the Councillor, or the date specified in the order for commencement of the period of suspension, whichever is the later.

DID COUNCILLOR PETTY HAVE A PECUNIARY INTEREST IN AGENDA ITEM 8?

In section 442 of the Act "Pecuniary Interest" is defined for purposes of chapter 14. Provides that a Pecuniary Interest "is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person." It also provides that a person does not have a Pecuniary Interest in a matter if the interest is, "so remote or insignificant that it could not be reasonably regarded as likely to influence any decision the person might make in relation to the matter, of if the interest is of a kind specified in section 448."
There is no suggestion that the Councillor had an interest that did not have to be disclosed because it fell within section 448.
Section 443 is headed "Who has a Pecuniary Interest?" that section for purposes of chapter 14 extends the group that would be regarded as having a Pecuniary Interest. It provides: 443 Who has a pecuniary interest? 1. For the purposes of this chapter, a person has a pecuniary interest in a matter if the pecuniary interest is interest of: a) the person, or b) the person's spouse or de facto partner or a relative of the person, or a partner or employer of the person, or c) a company or other body of which the or a nominee, partner or employer of the person, is a member. Note: "De facto partner" is defined in 21C of the Interpretation Act 1987 3) However, a person is not taken to have a pecuniary interest in a matter as referred in subsection (1) (b) or (c): a) if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or b) just because the person is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or c) just the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company body.
Section 444 of the Act provides that a Councillor must: - 1. prepare and submit written returns of interest in accordance with section 449 and 2. disclose Pecuniary Interests in accordance with section 451.
At the commencement of the meeting on 29 July 2013 Councillor Petty read from a document prepared by his solicitors. He acknowledged in that statement that he owned land at 130 Walker Street Helensburgh within the area "affected by the draft planning proposal before Council today". He then said that he had a "non-significant, non-pecuniary interest in the matters covered by the report to the Council, because I live at Helensburgh and I am involved in the wider Helensburgh community."
Later in the statement he made he said: "However, my land at 130 Walker St, Helensburgh is within the area to be considered under Item 7 and is in the proximity of land to be considered under Item 8. Because Items 7 and 8 are part of a much larger overall rezoning proposal for a significant part of the Council's area, I have decided to make a special disclosure of my pecuniary interest under Section 451(4) of the Local Government Act. I elected to take part at the meeting to consider all of the Items in the report and, in particular Items 7 and 8 and debate on matters relating to all Items. I disclose that I may have an appreciable financial gain or an appreciable financial loss depending on which position Council takes on Items 7 and 8."
Councillor Petty's own land was not the subject to a rezoning in the matter which was before the Council, but was "adjoining, adjacent to or in close proximity" of the property that was re-zoned, so it was not an interest that was excluded from the requirement for disclosure under section 448(g) of the Act.
To establish whether there was a reasonable likelihood or expectation of appreciable financial gain or loss to Councillor Petty in relation to Agenda Item 8, the Office of Local Government obtained expert valuation evidence from Walsh and Monaghan Valuers about what effect, if any, the Council's decision on 29 July 2013 to rezone the Blackwells property had on Councillor Petty's property.
The report valued Councillor Petty's property at 130 Walker St Helensburgh at $1,750,000. It concluded that, because of the Council's decision on Agenda Item 8 was to rezone the section of the Blackwells property adjacent to the roadway to IN2 (Light Industrial), this would open up approximately 8 hectares for future industrial development. The permissible usages of the land would include freight, transport facilities, helipads, industrial retail outlets, service stations, transport depots and warehouses. The valuers concluded that these activities, "would have a detrimental impact on the amenity and value of number 130 Walker St.
The report also stated, "Putting any proposed building aside the stigma of living across the road from an industrial precinct would almost guarantee the minimum 10% reduction in value."
The conclusion of the valuers was that, in their opinion, the Council's decision on Agenda Item 8 would result in decreasing the value of 130 Walker St, from $1,750,000 to $1,575.000, a loss of $175,000.
Councillor Petty's pecuniary interest comprised not just his interest in the property but also, because of para 443(1)(b) of the Act, the interest of his wife.
The conclusion is that the Respondent, as a joint owner, with his wife, of the property at 130 Walker St and a Pecuniary Interest in the matter of Agenda Item 8, because of a reasonable likelihood or expectation that there would be appreciable financial loss of about $175,000 if the proposal in Agenda Item 8 was passed by the Council.

WHAT WERE THE REQUIREMENTS OF COUNCILLOR PETTY BECAUSE OF HIS PECUNIARY INTEREST?

Section 444 of the Act provides that a Councillor must: - 1. prepare and submit written returns of interest in accordance with section 449 and 2. disclose Pecuniary Interests in accordance with section 451.
For purposes of these proceedings, the evidence is that the Respondent complied with the requirements of section 449 to lodge a return in the prescribed form within 3 months after he became a Councillor on 3 September 2011, and then lodged a return as required within 3 months of 30 June 2012.
Councillor Petty's "Annual Return Disclosure of Interest" for the year ended 30 June 2013 disclosed his interest in the property at 130 Walker St. Helensburgh. The other provision that imposes requirements for Councillors with pecuniary interests section 451, which provides: - 451 Disclosure and presence in meetings 1) A councillor or a member of a council committee has a pecuniary in any matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable. 2) The councillor or member must not be present at, or in sight of, the meeting of the council or committee: a) at any time during which the matter is being considered or discussed by the council or committee, or at any time during which the council or committee, or b) at any time during which the council or committee is voting on any question in relation to the matter. 3) For the removal of doubt, a councillor or a member of a council committee is not prevented by this section from being present at and taking part in a meeting at which a matter is being considered, or from voting on the matter, merely because the councillor or member has an interest in the matter of a kind referred to in section 448. 4) Subsections (1) and (2) do not apply to a councillor who has a pecuniary interest in a matter that is being considered at a meeting, if: a) the matter is a proposal relating to: i. the making of a principal environmental planning instrument applying to the whole or a significant part of council's area, or ii. the amendment, alteration or repeal of an environmental planning instrument where the amendment, alteration or repeal applies to the whole or a significant part of the council's area, and b) the councillor made a special disclosure under this section in relation to the interest before the commencement of the meeting. 5) The special disclosure of the pecuniary interest must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and must: a ) be in the form prescribed by the regulations, and b ) contain the information required by the regulations. Note: The code of conduct by a adopted for the purpose of section 440 may also impose obligation on councillors, members of staff of council and delegates of councils.
The issue raised in Item 8, of the Agenda for the Extraordinary Meeting of Council, held on 29 July 2013 was whether to approve the proposed new zoning for the Blackwell's property.
Although at the meeting itself and in initial submissions on behalf of Mr Petty by his legal representative, it was claimed that subsection 451(2) did not apply to him on the occasion in question, because the matter being considered fell within subsection 451(4) of the Act. It was argued that the whole of the business of the meeting that night related to zoning applying to a significant part of the Council's area. It was argued that agenda Item 8 was only part of the overall "matter".
The Office of Local Government in its submissions argued that the proposal 8 in the Agenda that night was a separate "matter" relating to a proposal for alteration of the Environmental Planning Instrument and it related to Blackwells property only. It was a separate agenda item to be discussed and voted on separately and was in that sense a separate matter.
The investigation revealed that the total area subject of the Helensburgh planning proposals that came before the Council at the meeting and which included the Blackwells property only amounted to 2.33% of the total Council area. That, and other evidence establishes clearly that Agenda Item 8 did not relate to "the whole or a significant part of the Council's area".
For that reason, subsection 451(4) did not excuse the Respondent from complying with the requirement of subsection 451(2), that he not be present or in sight of the meeting at any time during which the matter is being considered, or the Council is voting on any question in relation to the matter.

THE RESPONDENT'S CASE

The Tribunal is satisfied on the evidence, that Councillor Petty failed to comply with subsection 451(2) of the Act, in that he remained in the Council Chamber during the time Agenda Item 8 was being considered and discussed by the Council, that he participated in the debate by arguing against the proposal, and that he participated in the vote by the Council by voting against the proposal.
The respondent's case is that he 1. Obtained written legal advice from solicitor, Mr P. V. Moggarch, who is an Accredited Specialist in Local Government and Planning Law, that he was entitled to rely on subsection 451(4) of the Act to exclude him from the requirements of subsections 451(1) and (2), subject to him making the special disclosure under paragraph 451(4)(b) as required; 2. He believed the advice; 3. The solicitor prepared for him a special disclosure in the form prescribed by the regulation; 4. Before the meeting commenced, he made an oral statement to those present in a form prepared by the solicitor; and 5. The special disclosure was provided to the Council and laid on the table at the meeting of the Council; and 6. He therefore believed when he remained in the meeting in breach of subsection 451(2) that he had complied with the requirements of subsection 451(4) and (5) and the requirements in subsection 451(1) and (2) did not apply to him.
The written advice he had obtained from the solicitor that day advised him that there was no doubt that he had, a "disclosable Pecuniary Interest" in Items 7 and 8 in the Agenda. In the advice there is the following consideration of whether the requirement that the, "matter" relates to the whole or a significant part of a Council's area: - 12. Overall there is to be an extraordinary meeting of Council to discuss and deal with the Rezoning Proposal. For convenience, and so that Council may make separate decisions on discrete issues arising out of the Rezoning Proposal, the overall proposal has been reported on by reference to a number of geographical precincts. 13. Item 7 is a report on Walker Street and Frew Avenue precinct 14. You have instructed me that you own land in Walker Street which is within the mapped area affected by the report and accompanying recommendation. 15. Item 8 is a report on land 159 - 169 Walker street described as "Blackwell's" This area is located opposite your Walker Street property 16. There is no doubt that you have a disclosable pecuniary interest in these two items in accordance with s442 and s448 (g) of LGA. The proposals mentioned in the items relate to an instrument that effects a change of permissible use of your property 130 Walker Street and land adjoining, adjacent to or in proximity to that property. 17. Before 2012, you were required to disclose the nature of this pecuniary interest to the Council meeting as soon as practicable and excuse yourself from any discussions or considerations of the parts of the Rezoning Proposal report dealing with items 7 & 8 and any voting on those items. 18. However, the amendment of s145 by addition of subsections (4) and (5) now provides an exception to the general rule. 19. The only question to be considered in determining whether the exception applies is whether the Rezoning Proposal is a proposal "relating to the making of a principal environmental planning instrument applying to the whole or a significant part of the council's area" 20.Because of the large area affected by the rezoning Proposal, there is little doubt that the overall proposal is within the exception under section 451(4). 21.The issue is whether the division of Rezoning Proposal report into precincts in the report changes this overall conclusion. 22. Items 7 & 8 deal with much smaller areas, which considered alone , would not be regarded as a "significant part of the council's area" 23. However, 451(4) only requires a proposal to relate to (my emphasis) a significant area. It doesn't the matter to be a proposal for (my emphasis) the making of an environmental planning for that area. 24. Accordingly, I am of the opinion that, within the overall Rezoning Proposal, items 7 & 8 still "relate to" a proposal for an environmental planning instrument for a significant part of the council's area. 25. Unfortunately s451(4) has not been the subject of any judicial consideration. However my approach is consistent with the circulars issued by the Department of Local Government before and after the 2012 amendments to the Local Government Act. 26. Circular number 12-12 noted that the change to the pecuniary interest provision was to provide: "an exception from compliance with the requirements of the pecuniary interest provisions at meetings in relation to the adoption of principal local environmental plans" 27. Circular 12-28 which considered the special disclosure of pecuniary interest forms noted as follows: "An amendment has been made to section 451 of the Local Government Act 1993. This amendment provides for a councillor who has a pecuniary interest in a principal environmental planning instrument (applying to the whole or a significant part of the council's area), to participate in the discussion of and vote on the instrument, providing that they make a special disclosure." 28. Effectively the 2012 amendments to section 451 allow a councillor to participate in a major rezoning proposal despite having a pecuniary interest; provided an appropriate disclosure is made to the council meeting. 29. In those circumstances there will be no need for you to excuse yourself from the meeting of Council on 29 July 2013 provided that you make a special disclosure under section 451(4) before the commencement of the meeting.
In that advice is advice that the proposal in Agenda Item 8, if not part of an overall matter, would not satisfy the provisions of s451(4). But it was a separate Agenda Item requiring separate consideration and to be voted upon separately. It did not come within subsection 451(4) because the matter in Agenda Item 8 was not a proposal that related to "the whole or a significant part of the Council's area." It related only to the zoning of the Blackwells property.
The special disclosure made was not framed as being in relation to the overall Agenda, but in relation to the specific Agenda Items 7 and 8.
Another difficulty for the Councillor is that his special disclosure, although the document provides for it to be signed by the Councillor and in their letter providing the document to him his solicitors requested him to sign it, the Councillor did not sign the document.
Subsection 451(5) provides not only that the special disclosure must be in the form prescribed by the regulations, but also requires that it must "contain the information required by the regulations." Regulation 195A of the Local Government (General) regulation 2005 requires a special disclosure under subsection 415(5) to be in the form set out in schedule 3A of the Act and also requires it "must contain the information required by that form". The form requires as part of the information, the signature of the Councillor. This was not provided by the Councillor. Accordingly, the document he provided to the Council did not comply with subsection 451(5) because a requirement of paragraph 451(5)(b) was not satisfied.
Apart from the legal advice received from the solicitor, the Councillor, if he had read the special disclosure form, would have observed that it related only to Agenda Items 7 and 8, but neither of those, nor both together, related the whole or a significant part of the Council's area.
From about October 2011, the Councillor Petty was active in relation to issues concerning the zoning of land in the Helensburgh area, including Blackwells property. He submitted a Notice of Motion on 10 October 2011 seeking in the interim to rezone the entire precinct to an EN2 an Environmental Conservation Zone. That is a more restrictive zone, in terms of development, than the E3 Environmental Management Zone. Subsequently, this motion was amended and the Council eventually resolved to defer the "Helensburgh Planning Proposal" to the Ordinary Meeting of Council on 28 November 2011. By then, the Council Staff had decided to separate the proposal into a number of small locality based proposals. One of the contentious issues was related to Blackwells property. The owners had been running various businesses on the land, including landscape and building supplies, earth moving and waste recovery. It appears that this was a breach of zoning and the owners had been subject of Enforcement Action by Council in relation to the approved use of the land.
At the commencement of that meeting, Councillor Petty with respect to that item, declare the Pecuniary Interest. Minutes recorded: "Councillor Petty declared a pecuniary interest in respect of Item 8. A pecuniary interest arises from ownership of land at 130 Walker Street, Helensburgh which is contained within the Walker Street Precinct and being an owner of property that adjoins the Frew Avenue Precinct."
Prior to Council's consideration of that Item in the Minutes record that Councillor Petty left the chamber and took no part in Council's consideration or vote. The Council amended the recommendation from Council's Staff, further dividing the area into smaller sections. The relevant part of the Council's resolution was part 5 and provided for part of the Blackwells site to be rezoned to IN2 Light Industrial and the remainder to be zoned E2 Environmental Conservation.
That then became part of the draft Helensburgh planning proposal and was subject to a period of community consultation before being returned to the Council for determination. It was then that the matter was included in the Agenda for the Council meeting on the 29 July 2013.
Councillor Petty wrote to the Chief Executive of the Office of Local Government in response to a letter of 7 April 2014, and in that letter said in relation to the written advice from the solicitors, "I asked them to provide advice so they would know whether I could play a role in determination of the issues before Council. I obtained that independent advice and acted accordingly."
The following is the statement read by Councillor Petty at the start of the meeting on 29 July 2013 - I own the land at130 Walker Street Helensburgh. That is in the area affected by the draft Planning Proposal before Council today. I disclose a non-significant non-pecuniary interest in the matters covered by the report to the Council because I live in the Helensburgh and I am involved in the wider Helensburgh community. I have relationship with a number of persons who own the land affected by the rezoning proposals. However, the report before Council is wide ranging and considers a general rezoning of the former 7(d) Hacking River Environmental Protection zoned land at Helensburgh, Otford and Stanwell Tops. I do not have particularly close relationship (as referred in the Model Council's Code of Conduct) which would ordinarily disqualify me from taking part in the consideration of the items in the report (except for items 7 & 8). In particular, my interest is the type which would not have to be disclosed under section 448 (g) of the Local Government Act. However, my land at 130 Walker Street, Helensburgh is within the area to be considered under item 7 and is in the proximity of land to be considered under item 8. Because items 7 & 8 are part of a much larger overall proposal for a significant part of the council's area, I have decided to make a special disclosure of my pecuniary interest under section 451(4) of the Local Government Act. I elect to take part at the meeting to consider all of the items in the report; in particular items 7 & 8 and to vote on matters relating to all items. I disclose that I may have an appreciable financial gain or an appreciable financial loss depending on which position council takes on items 7 & 8.
When the motion was put for approval of the proposal in Agenda Item 8 at the meeting on 29 July 2013, Councillor Currant spoke against the motion. When her allotted time had expired, Councillor Petty moved a procedural motion that she be granted an extension of 5 minutes. That was agreed to. During the Council's consideration of the matter, Council Petty asked a series of questions of the Staff relating to the Development Applications for the Blackwells property that were currently with Council for assessment. He then spoke against the motion. Once the debate was finished the vote was taken and the motion was resolved as put. Councillor Petty voted against the motion.
Immediately after the resolution was passed, Councillor petty raised "a point of order" and sought an explanation from the elected body in relation to the reasons for the rezoning of Blackwalls. It was decided then that this was not required.
It is important to take into account the recitals in the Solicitors advice such as the recital of meetings concerning the rezoning proposal.
It is also important to note that the advice was provided on the day of the meeting, apparently urgently, and that the solicitors stated, in the following, in the closing paragraphs of the report: - 39. You have instructed me that you want to be fully involved in the Extraordinary Meeting of Council dealing with the rezoning proposal. 40. As noted earlier, you do have a pecuniary interest in that part of the rezoning proposal dealt with under item 7 and 8 41. Further, you may have a non-significant, non-pecuniary interest in the entire rezoning proposal because of your involvement in the wider Helensburgh community and your relationship with a number of persons who own land affected by the proposal. 42. Based on your instructions that you wish to remain in the meeting, (and accordingly make a special disclosure) I recommend that you adopt the following course.
The recommendation was that he made a statement in a form similar to the attached document at the commencement of the meeting, and that as soon as possible after disclosure of pecuniary interests was made aurally, he should lay on the table at the meeting, a written copy of the disclosure in accordance with the prescribed form and that he should be careful to check that all the particulars in the form are correct, then sign and date the form at the bottom where indicated.

CONCLUSIONS

It is clear that at the meeting of 29 July 2013, Councillor Petty had a Pecuniary Interest in Agenda Item 8 regarding the Blackwells land. He had in the past acknowledged that, and absented himself from discussion and voting in relation to previous issues regarding zoning of the property. He had a strong interest in the matter, and then strongly wished to be involved in the debate by way of opposing the proposal in Agenda Item 8, and voting against the proposal. The advice of the solicitors was based on instructions that he wish to remain in the meeting and participate in the discussion and the decision.
Councillor Petty was not bound by the legal advice he obtained, but it was a matter for him whether he relied upon it or whether he decided that the exemption under section 451(4) did not, or might not apply. The application of the provision required that the particular proposal to be voted upon applied to the whole or a significant part of the Council's area and that proposition was either wrong or subject to doubt.
Councillor Petty was obliged by subsection 439(1)of the Act to "act honestly and exercise a reasonable degree of care and diligence in carrying out his functions under this or any other Act".
Regardless of the legal advice, it was open to him to give given careful consideration to the issue of whether the proposal in Agenda Item 8 was "a proposal relating to a whole or a significant part of the Council's area". And if there is some doubt about that, whether it would be prudent or more ethical for him refrain from participating in the decision on that Item. Exercising reasonable care and diligence would have resulted in Councillor Petty recognising that there was uncertainty as to whether the matter related to a substantial part of the Council's area.
Instead he appears to have adopted the legal advice as an unqualified shield.
It is also noted that similarly, although the solicitors have clearly advised that he needed to sign the disclosure document, he did not do so.
The Tribunal is satisfied that Councillor Petty did not exercise the level of diligence and care expected by subsection 439(1) and the need for diligence and care was overtaken by his wish to participate in the decision and hopefully defeat proposal. The breach of the requirements of the legislation I misconduct and involves some culpability and breach of public trust by Councillor Petty.
Section 482 of the Act provides that in Pecuniary Interest Matters the Tribunal may, if it finds that a complaint against a Councillor is proved: - 1. Counsel the Councillor, or 2. Reprimand the Councillor, or 3. Suspend the councillor from civic office for a period of not exceeding 6 months, or 4. Disqualify the Councillor from holding civic office for a period not exceeding 5 years, or 5. Suspend the Councillor's right to be paid any fee or any other remuneration to which the Councillor would be entitled as the holder of Civic Office, in respect of a period not exceeding 6 months without suspending the Councillor from civic office for that period.
Subsection 482 (5) of the Act finds that "in determining in which Action, if any, to take against a person under this section, the Tribunal may take into account any previous complaints proven against the person, any Action previously taken against the person and any other relevant matters."
The Tribunal takes into account that the decision of Councillor Petty to remain in the meeting for the discussion of Agenda Item 8, to participate in the debate, and to vote on the issue were motivated by his personal financial interest rather than his civic duties.
The investigation report in paragraphs 28 and 29 relate that the Office of Local Government had previously examined a complaint in relation to an alleged breach of the Pecuniary Interest provisions of the Act by Councillor Petty regarding effectively the same circumstances have been considered in Agenda Item 7 of the Helensburgh planning proposal. That related to Councillor Petty's home at 130 Walker Street. But, the previous examination of the complaint involved obtaining valuation evidence and that concluded that at, "as the development potential was exhausted on Councillor Petty's property, the rezoning had no appreciable impact upon the value of the property. The Office determined that the related complaint then warranted no further investigation."
The Supreme Court in Mehajar v The Chief Executive of the Office of Local Government [2014] NSWSC 1804 had occasion to reconsider use of different penalties available under Section 482 of the Act available to the Tribunal in such a situation. This is clearly not a situation serious enough to require disqualification from holding civic office for a period.
It is also of concern that suspension of Councillor Petty from Civic Office for a period will deprive his constituents of the services he is expected to provide as their elected representative.
The proper and proportionate penalty is that Councillor Petty be reprimanded and suspended and his right to be paid any other fee or remuneration to be suspended for a period of 3 months from 25 May 2015

THE ORDERS

The orders are of the Tribunal therefore are: - 1. Councillor Gregory Alan Petty is reprimanded. 2. Councillor Petty's right to be paid any fee or other remuneration to which the Councillor would otherwise be entitled as the holder of civic office is suspended for a period of 3 months from 25 May 2015. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2015

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (1)

Cited By (4)