Intro
Elected members may face many pressures when dealing with development applications. Pressure can come from public opinion and the media but may also take the form of offers of gifts, benefits and donations or other lobbying techniques. The various decision-making roles that elected members have is also a complicating factor.
To protect the openness and transparency and perceived probity of council's decision-making, elected members must understand the limitations on their decision-making role in relation to development applications. They should also avoid situations where they become too close to a development proposal, an applicant or objectors.
Local governments need to be proactive in developing ethical standards for elected members when dealing with development applications. The standards could also address the ground-rules for lobbying of elected members. Applicants and objectors should be informed of those standards.
The purpose of this guideline is to alert elected members to the risks associated with their role as a decision-maker on development applications and to provide guidance on those areas of risks. The guideline will assist local governments to develop and adopt procedures for elected members that will help to prevent unsubstantiated allegations and protect the integrity of the decision-making process.
This guideline is to be considered in conjunction with other publications relating to the governance practices of local government that need regular and detailed understanding by, and reinforcement with, elected members.
Decisions made in relation to development applications are made under the local government's town planning scheme and the discretions allowed under that scheme. Elected members must not lose sight of the fact that when making decisions on development applications they have to apply the rules and discretions, as they exist, not as they might want them to be. The local government will need to comply with the provisions of the legislation dealing with planning decisions.
The role of an elected member in the decision-making process is to determine the application on the information and recommendation provided by the professional staff. The role of the professional staff is to assess the application and provide an impartial, professional opinion and recommendation to the elected members. To avoid prejudicing the eventual decision, elected members must not make up their minds about a development application until they have read the officer's reports and heard all the debate.
Any involvement that an elected member has with a development application during its assessment has the potential to damage the integrity of the final determination. It is therefore important that elected members refrain from public comments that could be construed as support or opposition of an application. Similarly, during the public comment period of a development application, elected members should not be seen to be trying to influence the public by commenting on the application or signing petitions.
The opportunity for developers or applicants to outline their proposal to all elected members in a meeting setting such as a council or committee meeting or other forum, and for elected members to ask questions, should be encouraged. Developers or applicants need to be informed about the purpose of the meeting and the procedures that apply. Prior to a final decision being made, professional staff should be given the opportunity to comment or advise on any additional matters raised during the meeting.
Procedures adopted by local governments for dealing with a development application must ensure a clear distinction between the task of staff assessing an application and the task of council determining an application. The procedure should minimise the opportunity for the two roles to be confused and also ensure that those determining applications are not able to direct or unduly influence those carrying out the assessment and vice versa.
Lobbying is an acceptable and normal part of society. Opportunities for applicants to communicate with elected members should be encouraged as part and parcel of our democratic and accessible system of government.
Lobbying can take many forms. For example, an elected member who is approached in the local supermarket by a concerned resident may be lobbied to oppose a development on the promise of a vote in return. Lobbying may also simply involve an applicant emphasising the merits and the benefits the project will bring to the community or a section of the community. If an elected member believes there is a need to meet with a developer individually, to avoid the public perception of bias that can arise, the member should not agree to meet at a venue where it can be perceived that hospitality is being provided.
Lobbying on the merits and benefits of a proposal are all part of the healthy democratic process. However, problems arise when an elected member is lobbied to consider factors other than the relevant factors they should appropriately consider when determining the application as a decision-maker. Elected members need to understand the difference between appropriate and inappropriate lobbying and the risks associated if they fail to resist inappropriate lobbying.
Elected members must not, when lobbied, commit their vote on the proposal. Members may offer support or otherwise but as decision-makers they are obliged to consider all relevant facts, including the debate at the meeting, prior to making their decision. Elected members who commit their vote may be faced with claims of perceived bias.
The occasion may arise when two or more elected members are approached by a developer or applicant to meet in an informal manner to discuss the proposal and gauge their reaction to certain aspects of the development. Such meetings risk the independence of those elected members as impartial decision-makers and can lead to the developer or applicant adopting the view that what was agreed at the meeting had the approval of council. Modifications "agreed" to at such meetings can form part of the process for determining the application thus allowing for the impartiality of the elected members at the meeting to be questioned and hence the integrity of the final determination of council to be challenged.
Information gained by the elected members at such meetings should be made available to the professional staff and other members as soon as practicable. To use such information in a way designed to compromise the debate or contradict staff reports would be improper and could jeopardise the eventual decision.
The holding of informal meetings by councillors and staff with developers, especially where the developer or applicant provides hospitality, can also allow for elected members to be accused of receiving inappropriate gifts or benefits.
Elected members may wish to attend meetings between professional staff and developers. Attendance by members at such meetings could be considered highly inappropriate and entail an improper incursion by the elected members into the role of the Chief Executive Officer (CEO) and his or her professional staff. Approval of elected members attending such meetings needs to be at the discretion of the CEO as the CEO is best placed to determine whether their attendance compromises his or her legislative role of providing advice and information to council.
The role of the professional staff is to brief developers and investors on matters of detail, to discuss with them the particular application of council's adopted policies and procedures and planning instruments to their particular desired project, to assess development applications, and to consider all the various complex issues to be taken into account in strategic planning matters. The council is the decision-maker with the role of the professional staff to report on all those issues, and to provide recommendations and advice, in a full, free and frank manner. The council body needs to be assured that the decisions it makes are well informed, in accordance with all appropriate and relevant considerations and can stand later scrutiny, whether in the courts or by the public.
Elected members should refuse an invitation they receive from developers to attend meetings between professional staff and the developer. Although the developer may suggest that it is an opportunity for them to see what the issues are and they may say little or nothing, the mere presence of an elected member puts implied pressure on staff and otherwise inhibits a free and frank discussion with the developer. The presence of elected members at such meetings may raise expectations on the part of the developer for approval and result in unnecessary later conflicts.
The integrity of a local government will be improved where the role of the professional staff in assessing an application is clearly separated from the council's role of determining the application.
Legislation requires local governments to determine their own development applications. This requirement places a greater obligation on local governments to ensure that the assessment and determination of their own applications is an objective and transparent process. This obligation applies irrespective of whether an application is proposing a commercial development or a community facility. Local governments must be able to demonstrate to other developers that the same rules apply to all.
Local governments must take every reasonable step to ensure that conflicts of interest that exist when preparing, assessing and determining their own applications are separated to the greatest extent possible. The minimum requirements for achieving separation would be that the employee responsible for managing a project would not be the same employee assessing the application and making a recommendation to council. Having regard to the cost of the project and the public interest in the matter, separation may require the engagement of a suitable independent expert to undertake the assessment.
Elected members may at some time during their term of office be offered a gift or benefit. The gift or benefit may be offered innocently in good faith or it could be an attempt to influence. The offer may be a donation to an election campaign in return for support of a development application. Establishing why a gift is offered can be difficult. The giver may have any number of motives, ranging from friendship, hospitality and gratitude, to bribery or extortion.
In a business context, gifts, benefits or donations are rarely offered to an individual for purely charitable or hospitable reasons. It may be the case if the gift or benefit is of little or no commercial value, such as a corporate memento or marketing trinket. However, in cases where the gift, benefit or donation has more than a token or nominal value, it is possible that it is offered to create a sense of obligation and even an expectation that something will be given in return. "There's no such thing as a free lunch", as the saying goes.
Feelings of obligation can arise with the acceptance of a free meal, ticket to a sporting or cultural event or discounts on commercial purchases. Once such a gift is accepted, an elected member's integrity can be compromised. If the giver later requests favourable treatment, it can be difficult to refuse.
It is easy to rationalise accepting gifts or benefits. Reasons commonly used include:
These excuses ignore the concept of public duty. Elected members have a duty to ensure that government business is carried out with impartiality and integrity.
Examples of gifts and benefits that could be regarded as having a token or nominal value include cheap marketing trinkets or corporate mementos that are not targeted specifically at the business of a local government. Examples include:
It should not be up to elected members to decide if a gift is of a token or nominal value, rather, guidance should be provided by local governments.
The following gifts and benefits have more than a nominal value:
The Local Government (Rules of Conduct) Regulations 2007 (the Regulations) require the disclosure of gifts accepted between a certain value set out in the Regulations. Gifts offered above that value cannot be accepted. Refreshments and hospitality are defined as a gift and can only be accepted up to the maximum value set in the regulations.
Deciding where to draw the line between the proper and improper acceptance of gifts and benefits can be difficult. To maintain a high degree of integrity, elected members should consider a position of not accepting any personal gifts.
Gifts accepted on behalf of the local government could not be considered as personal.
It is vital that applicants, objectors, members of the community and other levels of government have trust in the ability of a local government to make a decision free of influence or the perception of influence. To achieve a high degree of trust, local governments need to establish guidance for elected members on how they should undertake their town planning and development decision-making role in an objective and impartial manner.
The development of transparent decision making processes will encourage accountability and reduce the opportunities for allegations of influence or, even worse, corruption. Part of that transparent process should be standards on how elected members deal with approaches from applicants and what gifts or benefits they may accept without prejudicing the trust a local government has achieved.