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Councillor withdraws from Yamba service station decision

At yesterday’ Clarence Valley Council (CVC) meeting (after the Independent went to press) two of the valley’s councillors, Peter Ellem and Debrah Novak, had different ideas about how to deal with non-pecuniary interest when considering a development application to construct a service station at the corner of Treelands Drive and Yamba Road, Yamba.
At an onsite meeting before last week’s Environment, Planning & Community Committee meeting on Tuesday July 11, director Des Schroder advised the 30 or so residents who attended, that Cr Ellem had declared a significant non-pecuniary interest and, as a result, would not be participating in any debate or voting on the matter.
Councillor Ellem subsequently provided a statement outlining why he would take that course of action.
He said he had declared a significant non-pecuniary interest because he had signed a “community and business petition against the service station DA on May 10, 2016”, before he stood for election.
“I absented myself from voting after researching case law on application of the bias rule for elected decision-makers, notably Winky Pop Pty Ltd v Hobsons Bay City Council [2007] Victorian Supreme Court 468,” Cr Ellem said.
“I also sought further guidance from acting general manager Ashley Lindsay and acting director corporate Kristian Enevoldson, who is council’s governance specialist.
“While I understand people may be disappointed, I take my responsibilities under council’s code of meeting practice most seriously and thought it best to err on the side of caution in this particular case.”
Councillor Novak also provided a statement to the Independent outlining her reasoning for engaging in the process after revealing that she, too, had signed the petition.
“After speaking with the mayor and acting GM, with regard to signing the petition about the service station in Yamba, I declared a non-pecuniary interest and stayed in the council chambers during the discussion [at the committee meeting] of the service station item.
“I have also read the Winky Pop court case and the Westlawn Finance applicant’s paperwork and the submissions about the Yamba service station and I believe I have an open mind on this matter.
“The Winky Pop court case involves a councillor who clearly went out of their way to influence a council decision by making a submission on that issue.
“At the time of me signing the service station petition I was not a councillor and had not decided to run, so I believe that is my big point of difference.”
Senior associate of Kott Gunning Lawyers, Philip Mavor, writes about the Winky Pop decision on the law firm’s website: “The High Court in IW v City of Perth [1997] 191 CLR 1 found that a council exercises a ‘quasi-judicial’ function when making a decision in the exercise of a statutory discretionary power which may affect the rights and interests of an individual or a corporation, including when deciding to approve or not to approve an application for planning or development approval.
“…Councillors must act in a ‘judge like’ manner when performing quasi-judicial functions. This means that councillors must show no bias, and make a decision on the merits of the case based on the facts and the law applying at the time.”
On applying the ‘test for bias’, which most likely concurs with the course of action Cr Novak has chosen, he writes: “The principle is that those who will determine a matter should not demonstrate in advance that they have already made up their mind about it, although a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question.
“What is important is that elected members should be able to reconsider their views in light of all the evidence and arguments presented at the time of making a decision that may directly affect the interests of an individual or business.”
On the court’s decision, Mr Mavor writes: “The Supreme Court found that the councillor’s involvement was sufficient to invalidate the council’s decision.
“By making an individual submission the councillor demonstrated that he had made up his mind in advance of the formal consideration processes and therefore had not been open to persuasion otherwise through formal consideration of the matter. He was found to have prejudged the matter.”
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