Councillor roles in development matters

The conduct of councillors in development matters and their dealings with developers and submitters is often controversial and can pose corruption and misconduct risks. To assist councillors and others manage this engagement, the Office of the Independent Assessor (OIA) has released guidance.

The OIA is an independent statutory body responsible for assessing, investigating and prosecuting complaints about councillor conduct in Queensland with the Independent Assessor reporting to the Minister for Local Government.

Purpose

The purpose of the guidance is to provide a framework for councillors to lawfully and transparently engage with developers and submitters, while helping councillors avoid misconduct and corruption risks.

Public interest in councillor engagement

The OIA acknowledges there is a public interest in councillor’s engagement with developers and submitters. However, this is tempered with the need to ensure transparency and accountability in engagement to avoid misconduct or corruption.

Ethical and legal obligations of councillors

The OIA has identified a range of obligations on councillors:

• Councillors should avoid close personal relationships with property developers or submitters.
• Councillors are prohibited from receiving gifts, benefits, or loans from property developers (including through third parties).
• Councillors must record relevant interests on their register of interests.
• Prescribed or declarable conflicts of interests must be declared to the council CEO.
• Where a prescribed conflict of interest exists, the councillor must not be involved in any discussion or decision.
• When a declarable conflict of interest exists, the councillor must either leave the meeting or ask non-conflicted councillors to decide how the conflict must be managed.

Conduct

Importantly, the influence provision only applies where there is a matter before council (e.g. an application has been lodged). Under the guidance, there is no impropriety in lobbying or seeking to influence a councillor before an application is made.

However, once a matter is before council, influencing is given a broad meaning and encompasses directing, attempting to influence or discussing a matter with a person who is participating in a decision (including a council officer acting under delegation).

Other issues

The OIA has issued an ‘example’ council policy as to what a council policy may include. The OIA has indicated a policy may not be necessary for councils with few or limited development matters or for councils where development applications are predominantly decided by delegation by council officers. However, for large councils, such policies will likely be essential.

Under the example policy:

• Developers or lobbyists should refer requests for meetings to the office of the CEO or nominated council office.
• Councillors should conduct meetings in the presence of an appropriate third party.
• All meetings with a developer or submitter, including public meetings, must be either electronically recorded or a contemporaneous written record prepared.

Conclusion

The OIA example policy is not mandatory and has no regulatory effect. However, councillors and others who act contrary to the example policy will be at risk of engaging in conduct that may be deemed inappropriate and councillors may face action by the OIA.

Councillors, developers and their advisors, and other stakeholders should therefore ensure that they are familiar with the OIA guidance and any relevant local government specific guidance.

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Authored by:

Stafford Hopewell, Special Counsel