April 2007 Issue 34
PLANNING & ENVIRONMENT BRIEFLY
If you are having trouble viewing this briefly click here
Code of Conduct
In November 2006, the Development Act 1993 (“the Act”) was amended to include Section 21A ‘Codes of Conduct’. Section 21A(1) of the Act provides the Minister with the authority to adopt a code of conduct to be observed by Members of the Development Assessment Commission, Regional Development Assessment Panels, Council Development Assessment Panels and other delegates. In accordance with this power, the Minister gazetted a Code of Conduct (“the Code”) on 26 February 2007. Some of the more notable provisions of the Code are outlined below.
The Code
The preamble of the Code states that;
“In order to foster the respect of applicants, representors and the community, panel members and delegates must uphold the highest standards of behaviour and ensure that they act in accordance with the provisions of the Act at all times”.
Panel member behaviour is provided for in Part 2. Clause 2.1 prohibits panel members from deriving undue benefit from their position. Panel members should pay close attention to the conflict of interest requirements of Clauses 2.3-2.7, which extend the conflict obligations under the Act. According to Section 56(A)(7) of the Act, panel members are required to disclose personal or pecuniary interests, and take no further part in deliberations regarding the matter. In addition to Section 56(A)(7), the Code requires the disclosure of “any other interest which may affect your ability to fulfil your duties on a panel,” and the disclosure of what “might reasonably be perceived” as an interest. These requirements place an added responsibility on panel members to cautiously assess whether their interests conflict with panel matters.
Part 2 also deals with relations between panel members and State government employees, local government employees, applicants and representors. Under Clause 2.8(e), panel members are prohibited from entering “a development site, even if invited by the land owner or a neighbouring property owner or any other person,” unless there is a formal panel viewing of a development site. On 21 March 2007, the Eastern Messenger reported that panel members may only drive past development sites, and will be “breaking the law” if they stop to observe. The Code does not prevent panel members making observations from any position external to the relevant site provided they do not enter (unless in the process of a formal viewing). This position should be considered in the context of the obligation not to engage in discussions with applicants or representors.
Clauses 2.9 to 2.11 deal with development assessment conduct. Clause 2.10(a) has broad application, preventing panel members from consulting with any parties to a proposed development application which is “likely” to be heard by the panel. Consequently, panel members should be wary of their dealings with even potential applicants and representors.
Clause 2.12 deals with public comment. According to this provision, only the presiding member or another person determined by the panel is entitled to speak publicly or address the media regarding a panel matter.
Part 3 of the Code deals with breaches, complaints and sanctions. The Code specifies that the Council may remove, suspend or take any other reasonable action where in relation to a panel member “an allegation of misconduct is made out.” Furthermore, Clause 3.1 provides that panel members should report any instances of a suspected breach of the Act, the Code or any other misconduct to the public officer in writing and refrain from discussing those matters at future panel meetings.
Part 4 of the Code deals with the delegate behaviour. Clause 4.1 provides that delegates must “uphold the highest standards of behaviour and ensure that they act in accordance with provisions of the Act at all times.” Councils should ensure that all delegates are aware of the Code, and its focus on the maintenance of impartiality in regards to development assessment.
Privacy Act 2000
Pursuant to Clause 2.1(e), panel members are required to recognise that panel information may be subject to the requirements of the Privacy Act 2000 and abide by the principles of that Act. Norman Waterhouse is able to assist councils in their understanding of that Act, and its application to panels. However, we note that, generally speaking, councils are not bound by the requirements of that Act, unless they have agreed to be so bound.
Terms of Reference & Meeting Procedures
Several councils will have adopted Terms of Reference prior to the Minister’s Code of Conduct coming into operation. Many panels will also have adopted Meeting Procedures prior to commencement of the Code. We recommend these documents be reviewed to ensure consistency with the Code. Councils should however note that in the event of a conflict with the Code, the Code will prevail.
For further information about issues covered in this article, please contact Pierina Reina on 8210 1200 or preina@normans.com.au.
Which Brieflys would you like to receive?
If you wish to:
- subscribe to additional Brieflys,
- unsubscribe to any you are currently receiving
please visit the Norman
Waterhouse Subscriptions Page
Brieflys are produced in the following categories:
Employment and Industrial Relations
Firm Wide Briefly
Local Government Advisory
Environment and Planning
We respect your right to privacy. You can view our Privacy Information
Notice on our website and our Privacy Policy is available on
request from our Privacy Officer at privacy@normans.com.au The
contents of this newsletter are for information only and should
not be taken as advice on the law.
© Norman Waterhouse 2007. All Rights Reserved. You may not
reproduce all or any part of this newsletter without our prior
consent. Requests should be directed to the Editor of this newsletter
Pierina Reina.
Norman Waterhouse
Lawyers
Adelaide
Level 15
45 Pirie Street Adelaide
GPO Box 639 Adelaide
South Australia 5001
Telephone +61 8 8210 1200
Facsimile + 61 8 8210 1234
Sydney
Level 10
135 King Street Sydney
New South Wales 2000
Telephone +61 2 9023 0100
Facsimile + 61 2 9023 0199
click
here to unsubscribe from this publication
|
