Posted 21/12/15

Dr. Max Winchester's letter of complaint

regarding Councillor conflicts of interest

at the Macedon Ranges Council Meeting, 16 December, 2015

Dear Mr Millard,

Last night (16th December) the Macedon Ranges Shire Council (MRSC) held a Council meeting at the Norma Richardson Hall In Woodend at 19:00 hours.  During this meeting, I became aware that all three members of the West Ward of Macedon Ranges Shire Council (Cllr Jennifer Anderson, Cllr Roger Jukes and Cllr John Connor) were accused of having a conflict of interest by an anonymous party on decision PE3 (adoption of amendments to a local town structure plan), to which the Local Government Inspectorate endorsed.  Further to this, I was advised that the CEO of MRSC and a representative of the local Inspectorate office (also unnamed) advised all members that they would be charged if they did not excuse themselves from this meeting and voted on Amendments C98, C99, C100, C103 and C105. The 3 Councillors stated they did not have any conflict of interest other than living in the towns of Woodend and Kyneton but based on the threats of being charged by your office excused themselves from the meeting. Cllr Connor was in particular advised in writing and directly by the local Inspectorate office that he would be charged if he proceeded to vote.

The result was they could not vote for or against the C 98 Amendment (Woodend Town Structure Plan Amendment) nor the other amendments. The local Inspectorate based their accusation of the 3 having a direct and or indirect conflict of interest based on the fact that they resided in Woodend, one had a rental property in Woodend and one ran a business in Kyneton which prohibited them from voting on Amendments but all 3 stated to myself and others that they did not have an indirect or direct conflict of interest nor would they gain in any material manner from the amendments.

It is clear to anyone familiar with section 77A(5) of the Local Government Act 2009 that simply by living in and running businesses in a town, a Councillor while having an interest would not have a conflict of interest as outlined by the Act given the following wording:

(4) A relevant person does not have a conflict of interest in a matter if the direct interest or indirect interest of the relevant person is so remote or insignificant that the direct interest or indirect interest could not reasonably be regarded as capable of influencing any actions or decisions of the relevant person in relation to the matter

(5) A relevant person does not have a conflict of interest in a matter if the direct interest or indirect interest the relevant person holds—

(a) is held as a resident, ratepayer or voter and does not exceed the interests generally held by other residents, ratepayers or voters;

It is clear that under the Local Government Act there is no direct or indirect conflict of interest as none of these Councillors would gain any more than any other ratepayer by voting on a town structure plan. I believe the allegation to be vexatious and suggest the person who filed the complaint may actually be the one with a conflict of interest.  I request that the person who filed the vexatious complaint be investigated for potential conflict of interest.  Excluding all three Councillors from exercising their right to vote has resulted in a failure to exercise their duty to represent their constituents.

When I challenged The Mayor on a point of order that the Councillors did not have a conflict of interest, that I believed the Council was acting in breach of Sections 76 and 77 of the Local Government Act (2009) and that I wanted it noted in the minutes, the Mayor refused to note my objection and I was asked to leave the meeting.

Of more concern than this is that the amended motion that was passed regarding Amendment C98 made particular reference to land north of golf course hill ,which happens to be the land which has been proposed for development by the same developer that has been given access to private meetings with senior council staff and councillors. Many of us in the community are very concerned that this amendment has been influenced by these closed door meetings that other developers have not had the benefit of being offered. On this basis, I believe the remaining Councillors and CEO have not respected Section 76BA (d) & (g) by holding meetings in secret with one particular large scale developer and then voting an amended town structure plan that specifically refers to and favours further exploration of development potential with this one developer to the exclusion of others. Their actions last night have seriously eroded public confidence in the role of Councillor.

Section 76BA

(d) exercise reasonable care and diligence and submit himself or herself to the lawful scrutiny that is appropriate to his or her office;

(g) support and promote these principles by leadership and example and act in a way that secures and preserves public confidence in the office of Councillor.

Ironically, in this same meeting, when hearing a planning application PE1 for an equestrian facility, Cllr Ellis was happy to announce to the meeting publicly that he had sat with the applicant and helped the applicant with the planning application, yet still voted on the matter. This is clearly a conflict of interest as defined under Section 77A of the Local Government Act (2009) and Cllr Ellis has misused his position and is in breach of section 76D-2(f) of the Local Government Act (2009) which states:

(f) failing to disclose a conflict of interest as required under this Division.

Given the seriousness of the above events I would expect that the conduct of the CEO of the Macedon Ranges Shire Council, and relevant Councillors who did not object to the 3 leaving the room, and voted for the amendments be also investigated with the exception of Sally Piper who voted against the motions.

I look forward to hearing your response to my concerns.

Yours Sincerely

Dr Maxwell Winchester

17/12/15