Appendix 2: Leading cases on pecuniary interest

Guidance for members of local authorities about the law on conflicts of interest.

The Act does not define the term “pecuniary interest”. Its meaning is a matter for legal interpretation according to the circumstances of the particular situation. However, there is a significant body of relevant case law which offers some guidance. The most significant cases are summarised in this appendix.

Brown and Others v Director of Public Prosecutions [1956] 2 All ER 189; [1956] 2 QB 369

This case involved members of an English local authority who were tenants in houses owned by the local authority. The councillors declared their interest in a matter concerning the level of rents for council houses where there were subtenants or lodgers, but nevertheless voted on the matter albeit apparently to their disadvantage.

The judgment declared that all councillors who were tenants of the council had a pecuniary interest in that matter. This included councillors who did not at that time have sub-tenants or lodgers, because the houses were potential incomeproducing assets and the possibility existed of sub-letting or taking in lodgers in the future. In explaining the basis of the statutory prohibition, this case also indicated that it does not matter whether the result of the vote would be to the pecuniary advantage or disadvantage of the person voting:

The object of s.76(1) is clearly to prevent councillors from voting on a matter which may affect their own pockets and, therefore, may affect their judgement, and a councillor’s judgement may be affected by a proposal to preserve his liability just as much as by a proposal to terminate it, particularly where other persons in a like situation are being relieved from the same liability. In those circumstances, no narrow construction ought to be put on the words “pecuniary interest” in their context in s.76(1); in particular they ought not to be construed and the contrary has not been suggested as meaning pecuniary advantage.

Rands v Oldroyd [1958] 3 All ER 344; [1959] 1 QB 204

This case concerned a member of an English borough council who spoke to a motion about the letting of contracts for building council housing. The councillor was managing director and majority shareholder of a building company which had a history of building for the council.

On his appointment as vice-chairman of the housing and town planning committee of the council, the member had decided that his company would not tender in future for any building contracts with the council. However, the Court noted that the company was at all times in a position to be invited to tender for building work for the council and to tender for such work in the future if it desired, and therefore held that the member had an indirect pecuniary interest in the matter under discussion.

Re Wanamaker and Patterson (1973) 37 DLR (3d) 575

This case involved the mayor of a town council in Alberta, Canada, who was owner and operator of a coin laundry business in premises located in the town’s shopping centre. In his capacity as a member of the council, he proposed and voted on resolutions designed to secure the approval of the Minister of Highways for a project whereby a cut would be made in the median strip of a provincial highway in order to provide access for traffic on the highway to the shopping centre.

Since the effect of the improvement of access to the shopping centre would be to increase the number of customers availing themselves of the services in the shopping centre, which would be reflected in increased use of the coin laundry, the mayor would financially benefit, and consequently the question was one in which he had an indirect pecuniary interest. It did not matter that he may have been acting in good faith and in the interests of the municipality.

Downward v Babington [1975] VR 872

This case concerned a councillor of a shire in Victoria, Australia, who owned and leased certain shops. At different times, the council or its committees had before them:

  • a project to allow the establishment of a supermarket in the immediate vicinity of the councillor’s shops;
  • a proposal to compulsorily acquire land adjoining those shops and the supermarket site for off-street parking;
  • a proposal to permit development of vacant land adjoining the councillor’s shops as a retail shop; and
  • a proposal to buy land in the immediate vicinity for off-street parking.

The case did not involve any finding of fact as to whether the member had a pecuniary interest in those matters, but did produce a useful definition of the term “pecuniary interest”:

… a councillor should be held to have a pecuniary interest in a matter before the council if the matter would, if dealt with in a particular way, give rise to an expectation which is not too remote of a gain or loss of money by him.

We have chosen to adopt this definition as appropriate in the New Zealand context, although acknowledging that our Act deals separately with the element of remoteness in section 6(3)(f).

Loveridge & Henry v Eltham County Council (1985) 5 NZAR 257

The council’s chairman and deputy chairman both owned land within an area where the council proposed to establish a rural water supply scheme. As with the Downward v Babington case, the nature of the proceedings was such that the Court was not required to make a finding as to whether the members had a pecuniary interest in the matter. The Court did, however, observe that:

The situation contemplated by the Local Authorities (Members’ Interests) Act is a particular formalised illustration of the rule that persons charged with an obligation to make decisions should not be affected by a personal motive.

The Court rejected an argument that the relevant “public” with which to compare the members’ interests was the group of landowners affected by the scheme.

With rather limited reference to prior cases, the judgment used the general rules of natural justice as the base on which to state a test for compliance with section 6(1):

…would an informed objective bystander form an opinion that there was a likelihood that bias existed?

Calvert & Co v Dunedin City Council [1993] 2 NZLR 460

This case centred on procedures adopted at meetings in 1990 for determining directors’ fees to be paid in respect of four local authority trading enterprises (LATEs), the directors of which had previously been appointed and included various members of the council. The council considered reports on the setting of directors’ fees generally and a motion which, if passed, would have required councillor directors to remit their directors’ fees to the council, receiving instead from the council sums based on the usual allowances paid in connection with local authority meetings.

That motion was dealt with by debating it separately in relation to each LATE. Councillor directors withdrew when that part of the motion which concerned the LATE of which they were directors was debated and voted upon, but took part in debate and voted on those parts of the motion which concerned LATEs of which they were not directors.

The Court held that section 6 was breached when councillor directors discussed and voted upon:

  • a report containing opinions in relation to and recommendations as to the range of directors’ fees which should be payable – a direct pecuniary interest; and
  • motions affecting directors’ fees in respect of LATEs to which they were not appointed – an indirect pecuniary interest.

The vote of a particular councillor in effect put his or her stamp of approval on the method by which the directors’ fees had been calculated. That stamp of approval called for a consistent approach and vote by other councillor director members. The length of some meetings, and the memoranda and resolutions, tended to confirm that the councillor directors were in effect acting in harmony in relation to the approach taken by the council towards directors’ fees. Certainly the interest of those councillor directors was greater than that of the public at large.

The judgment is notable for the expression of certain propositions based on a review of earlier judgments:

  • An indirect pecuniary interest under section 6 of the Local Authorities (Members’ Interests) Act 1968 may cover a wide variety of factual situations.
  • The indirect pecuniary interest may involve an interest arising from a relationship and not from any specific contract or monetary connection.
  • An indirect pecuniary interest may include a potential benefit or potential liability.
  • A decision as to whether a particular factual situation amounts to an indirect pecuniary benefit is assisted by considering whether an informed objective bystander would conclude that there was a likelihood or reasonable apprehension of bias.
  • The motives and good faith of councillors are irrelevant to whether or not they had an indirect pecuniary interest.

R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign [1996] 3 All ER 304

A rugby club wished to sell its main sports field and move to another location nearby. However, it could only realistically do so if it obtained a commercial site value for its existing site. Planning permission was therefore sought from the local urban development authority to allow the large-scale commercial development of the land.

At the same time, the club had also identified the desired location for its proposed new facilities. This happened to be a piece of open land adjacent to a large private property owned by the chairman of the urban development authority. The chairman’s land was “green belt” land, and it was well known that the chairman believed his land ought to be rezoned for housing development (but any rezoning decision would be the responsibility of another council).

The Court found that the chairman had an undisguised interest, worth a great deal of money to him and his family, in getting his private land rezoned. It also found that a powerful argument in favour of this would have been if the neighbouring site was developed into a rugby stadium. Because it was common knowledge that was unlikely to occur unless the club was able to secure a commercial sale price for its existing site, the Court held that this meant the chairman had – at that time – a pecuniary interest in the planning application about the club’s existing site. The Court implicitly rejected an argument that his interest was too remote or insignificant.

However, the club later abandoned its proposed new location near the chairman’s land. Furthermore, a fresh development proposal was submitted in respect of the club’s existing site. The Court held that the chairman did not have a pecuniary interest in the authority’s later decisions about the existing site. His former interest did not taint the authority’s subsequent decisions.

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