NOTES FROM UNDERGROUND

Trigger Warning: this article contains material that some councillors and ex-councillors may find hurtful or offensive.  In case of emergency, smelling salts and tissues are available from the first aid cupboard in the Shire’s front office.

A Tale of Three Sheds

It must be tough, being a shire councillor.

Just take a look at Section 2.10 of the Local Government Act 1995, which imposes on councillors a range of duties and responsibilities that would probably tax the capacities of a minor mythological deity or a Marvel Comics superhero—to borrow a trope from my opposite number on the other blog, David Taylor.

For starters, councillors not only have to represent the interests of electors, residents and ratepayers and provide leadership and guidance to the local community.  They must also ‘facilitate communication between the community and council’—which presumably means in practice making sure the community is kept fully informed of what councils are doing.

On top of that, they have to turn up to meetings and deliberate and vote on important local government issues, like repairing roads, rubbish removal and by what percentage to put up the rates.  

For everyone involved in local government in WA, the Act has the status of holy writ.  And like holy writ of a more transcendental nature, it’s open to argument and interpretation, and may give rise to competing sects and schools of thought. 

That’s no less true of Section 2.10 than it is of any other section of the Act or of legislation generally.  Arguing about the meaning of legislation is one of the things that help lawyers to wax fat at our expense, especially, as we saw during the Best-Simpson era, if their client is the Shire of York.

Whose interests?

Let’s just confine ourselves to the first of a councillor’s duties—representing the interests of electors, residents and ratepayers.  What exactly might that mean?

Does it mean representing the interests of individuals from those categories, even when those interests conflict with the interests of the community at large? 

Or does it mean giving precedence to the community’s interests, broadly considered, over the interests of private individuals?

This conundrum seems to have been resolved in part by the declaration councillors make on taking office.  The declaration is mandated by section 2.29 of the Local Government Act. 

The form of the declaration is prescribed by regulation 13 (1) (c) of the Local Government (Constitution) Regulations 1998.  It reads as follows (with directions in square brackets inserted by me):

I, [name] of [address], having been elected to the office of mayor/deputymayor/president/deputy president/councillor of the [local government district council], declare that I take the office upon myself and will duly, faithfully, honestly, and with integrity, fulfil the duties of the office for the people in the district according to the best of my judgment and ability, and will observe the code of conduct adopted by the district council under section 5.103 of the Local Government Act 1995.

Declared at [place] on [date]

By [signature of declarer]

Before me: [signature and qualification (e.g. Justice of the Peace) of the person authorised to witness the declaration].

‘Duly’ I take to mean ‘in accordance with the terms of this declaration, the code of conduct’—of which more shortly—'and other relevant legislation’.  ‘Faithfully’ and ‘honestly’ shouldn’t need explaining, not even in this God-forsaken postmodern era.

‘Integrity’ is more complicated.  It’s a quality every public figure boasts—rarely convincingly—of possessing.  The word derives from Latin integritas, meaning ‘wholeness’ (compare ‘integer’, a whole number) and has come to signify moral uprightness and consistency of principle, purpose and judgement.

So we would expect a person of integrity to approach tasks and duties—like those of a councillor—honestly, consistently and impartially, and guided by what is often described as ‘a moral compass’.

As everybody knows, councillors aren’t elected to serve their own, or their friends’, interests or to act as spokespeople for favoured individuals or sections of the community.  It’s the public interest—made up most directly of local community interests—that counts and should be uppermost in a councillor’s mind when deciding what to say and how to vote.

Code of Conduct

Those considerations are amply reflected in the Code of Conduct for councillors, which you can find on the Shire’s website.  The code has been formally adopted as policy by Council and has the force of law.

It requires councillors to act honestly and with integrity and be open and accountable to the public.  It states that councillors must make decisions ‘solely on the basis of public interest and merit and in accordance with statutory obligations’ (section 2 (b)), and that ‘councillors will perform their role impartially and in the public interest’ (section 3.3).  (Emphases added.)

Policy

Admittedly, what is meant by ‘the public interest’ is open to dispute.  To carry any weight in Council’s deliberations, it has to be clearly and scrupulously defined.

That’s why firm policies are needed to cover every aspect of a local government’s operations. 

Ideally, experts draft policy.  By experts, I mean people with a professional understanding not only of relevant law, but also of the practical implications of policy for the situations to which it applies or is likely to apply.

It’s then up to councillors to consider policies, if necessary revise and amend them, then to approve and adopt them and make sure they’re enforced impartially on their own account and by Shire employees. 

That’s their job as representatives of the community, elected and sworn in as guardians of the public interest. 

Policies, once adopted, define the public interest—that’s to say, the community’s best interests—in relation to the various functions of a local government. 

Council policies find expression in local legislation governing such matters as planning, building, public health, roads, rubbish, the natural environment, community groups and activities, recreation, the keeping of horses, dogs, cats and backyard fauna like sheep, goats, pigs and chickens, and the proceedings of council itself.  

The great thing about policies is that they provide certainty.  They tell us what we can and can’t do vis-à-vis the Shire’s functions—in other words, what Council will or won’t permit us to do.  They also define, in relation to its functions, the limits of Council’s power and authority.

Properly conceived and drafted, policies should admit of no exceptions.  Once approved, they are set in stone.  If they prove to be ambiguous, unworkable or unfair, or become irrelevant or out of date, Council may vote to revise them or replace them with something better.

But until then, policies should be regarded as inviolable and applied rigorously, transparently and above all impartially in every case.

Otherwise, the door gapes open to favouritism, patronage, bribery, and other forms of corruption.  It also gapes open to chaos by creating precedents that conflict with the law and each other.

Discretion

For councillors to exercise so-called ‘discretion’ by making exceptions in particular cases is unfair, unjust and fraught with peril.

Here’s an example.  Suppose somebody wants to install a swimming pool closer to his neighbour’s wall or fence than the relevant policy allows.  And suppose that person is a friend of a prominent councillor, say, a councillor who is also a former shire president. 

Should Council approve the application?  Of course not!  Such a thing could never have happened in York. 

Approving it would have meant creating a precedent enabling future applicants to claim the same degree of discretion, to the detriment of the relevant policy—and therefore to the interests of the wider community, that is, the public interest.

Sometimes applying policy strictly may seem hard on individual applicants, but making exceptions is by definition always contrary to the community interest, because the community interest is what policy defines and enshrines.

Here’s another example.   Suppose somebody wants to erect an oversized outbuilding or shed…

A tale of three sheds

Shed No. 1:  Early in 2011, a resident living in Eighth Road applied for planning permission to construct an oversize outbuilding, or shed, on his 1000m² property. The shed was to be used ‘for general storage purposes’.

His application was duly advertised, resulting in objections from neighbouring landowners. 

Most of the objections were briskly disposed of by the Shire’s then planning officer.

But there remained one consideration neither she nor Council could overlook. This was that the floor area of the proposed shed exceeded the prescribed limit of 60m². 

In fact, it exceeded the limit by 12m², which the mathematically minded among you will immediately have calculated as being 20% greater than what the regulations prescribed.

On 21 March 2011, the Council of the day decided unanimously to approve the application subject to various technical conditions. 

Council’s reasons for giving that approval were that rural residential zoning permitted an outbuilding, and the property was large enough to accommodate an outbuilding of the size proposed.

The minutes record no reason for allowing the applicant to build a shed with a floor area one-fifth greater than the prescribed limit, other than that his property was large enough to accommodate it.

I’m not suggesting for a moment that Council’s decision was influenced in any way by the sort of hanky-panky, chicanery or jiggery-pokery to which municipal bodies occasionally fall prey.  All the same, it was unwise. 

By waiving the policy, Council created a precedent that effectively rendered that policy useless in similar situations. 

Henceforward, any owner of a similarly zoned property measuring 1000m² or more, who applied to build an oversized shed of like dimensions would have been justifiably outraged if his application were turned down.

Shed No. 2:  Fast forward now to 20 October 2014, when an application came before Council for the construction of a shed on a property in Ensigndale Court.

The town planner of the day stated that the size of the shed exceeded zoning limits prescribed for the residential zone and was ‘more consistent’ with sheds built in the agricultural zone.   She recommended that if the applicant was unwilling to reduce the height and floor area, Council should refuse the application.

Despite the town planner’s recommendation, former shire president Cr Pat Hooper moved, with Cr Duperouzel seconding, that Council should support the construction of the shed. 

The motion was lost 4-2.  Cr Boyle, also a former shire president, voted against the motion, asking to be recorded as having done so.

It was noted in the minutes that ‘no single reason emerged for the vote against the Officer Recommendation’.  It was also noted that the applicant should be advised to submit an application ‘in terms of ‘—i.e. consistent with—‘the local planning policies’.

Something very odd seems to have been going on here.  Why were Crs Hooper and Duperouzel so keen on approving the application, while unable or unwilling to say why? 

Anyway, let’s move on to the following ordinary Council meeting, held on 17 November 2014, when the matter of this oversized shed popped up again.

This time, the application got short shrift from Council, including from Cr Hooper, who had clearly changed his mind about it. 

I say this because Cr Hooper seconded a motion, moved by Cr Denese Smythe, not to approve the application.  The motion listed four reasons for rejecting the application.  These included inconsistency with planning and outbuildings policies regarding floor area and height of the proposed shed.  The motion was carried 5-0.

It’s tempting to conclude from those proceedings that Cr Smythe, currently deputy shire president while keeping a wistful eye on the top job, is a stickler for the proper observance of planning and outbuilding policy.

But wait—there’s more.

Shed No. 3:  Fast forward yet again to the ordinary council meeting held on 23 May 2016, which I had the pleasure of attending.

On that occasion, Council had to consider an application from the residents of a rural residential property in Lewis Road, who wanted to construct a colourbond outbuilding covering 240m² with a wall height of 4.2m and a ridge height of 5.48m.

In her recommendation to Council, the Shire’s current senior planner pointed out that if the application were approved, the total area of outbuildings on the property would be 352m², exceeding the maximum permitted in the zone by 142m²—that’s a difference of more than 28%. Moreover, the wall height exceeded the maximum of 3.15m, and the ridge height the maximum of 4.41m.  (You can do the sums yourselves.)

Those weren’t the only issues, but they’ll do.

The planning officer concluded her recommendation by observing that the proposed outbuilding would appear ‘bulky’ and ‘out of scale’ and would ‘be likely to impact on the existing and anticipated visual amenity of the area’.  This, she continued, would be ‘inconsistent with Town Planning Scheme No. 2 and Local Planning Policy’.

Definitely not a go-er then, and that was the majority view of Council.  Cr Saint, seconded by Cr Ferro, moved to refuse the application on the grounds set out by the planning officer.  The motion also stated, wisely, that approving the application would ‘set an undesirable precedent’.  It was carried by five votes to two.

Eh?  What’s that? The decision wasn’t unanimous?

No, it wasn’t, because Crs Smythe and Randell spoke and voted against it.  What’s more, they both asked for their names to be recorded as having voted against the motion.

I can’t remember the reasons Cr Smythe gave for opposing the motion, but I seem to recall Cr Randell saying something to the effect that the property in question was more or less on the boundary of the agricultural zone, so it wouldn’t matter if the construction of the outbuilding were to go ahead.

Nothing Cr Randell says or does is likely to surprise me, but I’m still shaking my head over Cr Smythe.  Surely the Shire’s deputy president—she who had once led the charge against a considerably smaller outbuilding—she who is the Shire president’s heir apparent, the next in line, so to speak, to the throne—would have wanted to serve and uphold the public interest by voting to refuse the application?

What could possibly have inspired her to do otherwise?  And why was it important to her and Cr Randell to have their dissent recorded in the minutes?

Had the applicants approached both Cr Smythe and Cr Randell and extracted from them promises of support for their application?   If so—and I’m not saying it was so—we might reasonably ask on what basis such promises were extracted.

What I’m sure of is that whatever considerations were involved—those of friendship, maybe, or simply wanting to be nice to members of an old York family, which as we know is one of Cr Randell’s weaknesses—both councillors were obliged by the declaration of office and the Code of Conduct to put the public interest ahead of other claims on their support.

That they did otherwise was shameful—and uncomfortably reminiscent of the bad old days, now thankfully well behind us. 

Or so we should hope.

Deputy Shire President Denese Smythe

His Master’s Voice

When it comes to advocating for a friend’s interests in preference to those of the wider community, Cr Randell has form.

At the Council meeting of last October, he spoke with passionate eloquence in favour of Avon Waste’s application to establish a truck depot at Ashworth Road, in the agricultural zone.  A former councillor, the brains behind Avon Waste, is one of Cr Randell’s friends and staunch supporters.

Council approved the application, despite opposition from Cr Ferro who moved unsuccessfully to have the matter deferred to give local residents time to gather their forces, formulate their arguments and seek legal advice. 

I don’t know how much Cr Randell’s eloquence contributed to that approval.  Other factors—perhaps including the heavy presence of Avon Waste employees in the public gallery and fear of costly litigation for the Shire were the application to be disallowed—no doubt played their part.  Whatever may have been the case, this was not the newly elected Council’s finest hour.

In his speech, Cr Randell put forward as a reason for approving the application that Avon Waste’s proprietors were members of  ‘an old York family’.  Why he should have seen that as in any way relevant to the application is a mystery to me, but it certainly helped establish Cr Randell’s credentials as a spokesman for the interests of a particular section of the community rather than those of the community as a whole.

I’ve been wrongly accused of pursuing a vendetta against Cr Randell.  Not guilty, Your Honour.  I just wish he would comport himself as a councillor with a proper blend of dignity, integrity, impartiality and concern for the public interest, as the declaration of office and the Council’s Code of Conduct jointly require him to do. 

By doing that, he could become a role model for generations of councillors to come.

Cr Trevor Randell