Complaint number LA/As/220 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Mark Cullen of Aberdeenshire Council.

• 1.0 Introduction
• 2.0 Outline of the Complaint and the Response
• 3.0 The Investigation
• 4.0 Consideration of the Evidence
• 5.0 Findings and Conclusion

1.0 Introduction

1.1 Complaint number LA/As/220 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaint has been lodged by Mr Torquil Macleod ("the complainant") who alleges a contravention of the Code by Councillor Mark Cullen ("the respondent"). The respondent is an elected member of Aberdeenshire Council ("the Council").

1.3 The complaint is to the effect that the respondent has contravened the Councillors' Code of Conduct and, in particular, paragraphs 3.2 and 3.3 of section 3 relating to General Conduct, paragraph 7.7 of section 7 of the Code relating to Dealing with Planning Applications and the provisions of paragraph 20 of Annex C of the Code.

The relevant provisions are as follows:

Section 3 General Conduct

3.1 The principles of good conduct in this section must be observed in all situations where you act as a councillor, including representing the Council on official business.

Relationship with Council Employees

3.2 You must respect all Council employees and the role they play, and treat them with courtesy at all times. It is expected that employees will show the same consideration in return.

3.3 Whilst both you and Council employees are servants of the public, you have separate responsibilities: you are responsible to the electorate but the employee is responsible to the Council as his or her employer. You must also respect the different roles that you and an employee play. Your role is to determine policy and to participate in decisions on matters placed before you, not to engage in direct operational management of the Council's services; that is the responsibility of the Council's employees. It is also the responsibility of the Chief Executive and senior employees to help ensure that the policies of the Council are implemented.

Paragraph 3.4 of the section requires councillors to follow the Protocol for Relations between Councillors and Employees which is set out at Annex C. A breach of the Protocol is to be considered as a breach of the Code.

Dealing with Planning Applications

7.7 You must never seek to pressure planning officers to provide a particular recommendation on any planning application, planning agreement or taking enforcement action.

Annex C. Protocol for Relations between Councillors and Employees

1. This protocol sets out the way in which Councils and employees of Councils should behave towards one another. It does not cover all the variety of circumstances which can arise, but the approach which it adopts will serve as a guide to dealing with other issues as they come up.

2. Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position.

5. Legally, employees are employed by the Council and are accountable to it. Ultimately they serve the Council as a whole and not any particular political group, combination of groups or any individual member.

Public comment

20. Councillors should not raise matters relating to the conduct or capability of employees in public. Employees must accord to councillors the respect and courtesy due to them in their various roles. There are provisions in the Code of Conduct for Employees about speaking in public and employees should observe them.

1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct.

1.5 For the purpose of this investigation, I was assisted by Mrs Anne Mahoney, Investigating Officer.

1.6 This report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The report was submitted on 26 October 2005 in draft form to the respondent for any representations, with a reminder on 25 November 2005. No representations were received.

2.0 Outline of the Complaint and the Response

The Complaint

2.1 The complaint is set out in a letter and complaint form from the complainant Mr Macleod is employed as a planning inspector with Aberdeenshire Council. He alleges that Councillor Cullen sent him an email on 16 June 2005 the terms of which were bullying, intimidating and insulting. He says they constituted an attempt to defame and discredit him and were circulated to a member of the public. The councillor also sought to issue instructions and engage in the operational management of the Planning Service. The complainant considers that Councillor Cullen's conduct breached the provisions of the Code of Conduct.

The Response

2.2 The response is set out in a letter from the respondent. Councillor Cullen described the background to and circumstances in which the email of 16 June was written. He acknowledged it was intemperate and said with hindsight he might have acted differently. He stated that he had had concerns about a development taking place in his ward which he thought required planning consent. He only took umbrage after he had raised this with Mr Macleod and the planning service in an attempt to draw views on the most appropriate action. He did not consider that he had made the email of 16 June public as he had only sent it to persons who had raised concerns about the planning issues. He considered that Mr Macleod over-reacted to the email.

3.0 The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council.

3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainant, the respondent and relevant witnesses.

4.0 Consideration of the Evidence

4.1 The complainant, Mr Torquil Macleod, has been employed within the Council's department of Planning and Environmental Services since February 2002. He is a planning inspector and deals with planning enforcement matters, including the investigation of complaints and the preparation and issue of formal planning enforcement notices.

4.2 In May 2005 the planning service received a letter about the removal and replacement of equipment at a concrete batching plant operated by Ennstone Thistle Ltd at Enterprise Drive / Prospect Place, Westhill, Aberdeenshire. The letter was written by Mr Graham Mogford the owner of a nearby business, Aberdeen Building Design, acting on behalf of himself and two other adjacent businesses Mr E Bowen, Grampian Accounting and Mrs M Mogford, Bridges Pre-School Nursery. They were asking the Council to investigate the matter with a view to ensuring that proper planning procedures were being followed.

4.3 The concrete batching plant has been in operation since 1979 and is located in what is now Westhill Industrial Estate. The complainant carried out an inspection and was informed that the plant was being updated to modern standards and to improve dust control. The replacement plant would be on the same footprint as before and the highest point of the new equipment would be 11.5 metres. The information indicated that the work came under the category of permitted development in terms of planning regulations¹ and did not require planning consent. Essentially, the reasons for this were that the new concrete batching plant was on an existing industrial site which had authorised use and the height of the new plant would not exceed 15 metres. The complainant says that he took issue with the company's intention to build a large steel fence on part of the site and he advised them that this would require submission of a planning application for consideration by the authority. Following this, work on the fence ceased pending submission of the planning application.

4.4 Councillor Mark Cullen was elected at the local elections in May 2003. Westhill Industrial Estate is located in his ward and he, too, was approached by the owner of the business adjacent to the concrete batching plant about whether planning permission was required for the replacement plant being installed. Councillor Cullen works in the offshore oil industry and keeps in touch with Council business by email when he is away. On 30 May 2005 he emailed the Head of Planning and Building Standards saying the situation had been developing for the last couple of weeks and was giving serious cause for concern. A considerable amount of development work was being progressed with no planning permission. He said Mr Macleod had been informed from the start and had twice inspected the works. Councillor Cullen said he had the impression they were not covering themselves in glory, and he feared the work would be completed and then followed by a retrospective planning application. He asked for the matter to be investigated as a matter of urgency.

4.5 The complainant and his colleague, the Area Planning Officer, had a meeting with representatives of the concrete batching company, Ennstone Thistle, on 3 June. The complainant then went on annual leave and, in his absence, the Area Planning Officer emailed Councillor Cullen on 7 June to inform him of the results of their enquiries. She advised him that the replacement plant was permitted development for the reasons set out in paragraph 4.3 above. She said the previous plant had included two hoppers where now there was only one. Work was being carried out to erect a canopy over the new hopper and it would then be enclosed by sheeting which was normal for this type of plant, but the overall height would still be below 15 metres.

4.6 On his return from leave, the complainant carried out a site inspection of the concrete batching plant on 14 June. The canopy, similar to a large, three sided shed, had been constructed on top of the plant. It was much larger than Ennstone Thistle had previously led him to expect and, in Mr McLeod's view, it materially altered the appearance of the plant. Accordingly, he took the view that the canopy on its own required planning permission. The company were informed of this and agreed to submit a retrospective planning application. The complainant emailed the businessman who had initially raised the complaint, Mr Mogford, about the matter and copied it to Councillor Cullen, saying:

"...Events, as you say, have certainly moved on and the canopy, having the appearance of a substantial 3 sided shed is rather more than we were anticipating. We are all now agreed that the canopy alters the appearance of the site to a material extent and an approval will be required. As such (the company) are being invited to apply for alterations to the plant and other aspects of the development to regularise the current situation. I am obliged to you for the information you have kindly provided".

Mr Mogford replied to this saying, among other things, he was relieved that the planning process had not bowed to a multinational company. He hoped the company would now do the honourable thing and cease work to allow the Council's Planning Committee the courtesy of reviewing the planning application, and he asked whether a Stop Notice would not be in order.

4.7 Councillor Cullen also responded by email on 16 June, saying:

"I am truly disgusted. I've seen some cynical communications in my time but this one takes the biscuit. How dare you insult our intelligence by writing to us in these terms. Throughout the whole situation you (and your service) have been kept fully informed of the situation, at times on an almost daily basis. It is now almost five weeks since you were first made aware of the developments and three weeks since we were sufficiently concerned to ask you to consider imposing a stop notice. Instead you sat on your backside and did nothing. In the process you have put our authority in an almost impossible position and allowed ET (the company) to completely flout the planning laws. I will be requesting that when the planning application comes in I will require it to be brought before the Garioch Area Committee. Through the Chair I will request your presence at the meeting. Be prepared for some very awkward questions. In my view, on this occasion you have singularly failed in your duty as a Planning inspector and in this respect I am considering my options."

Councillor Cullen copied his email to Mr Mogford and Grampian Accounting, two of the business owners adjacent to the concrete batching plant. He followed it up the next day, 17 June, with an email to the complainant (again copied to Mr Mogford and Grampian Accounting) asking him to arrange for a Stop Notice² to be issued until such time as the approval was granted and the situation "regularised". He sent another email later on the same date addressed to both the complainant and the Area Planning Officer saying that the situation would feature prominently in his submissions to the forthcoming Peer Review process.

4.8 Since then, a retrospective planning application has been proceeding through the Council's planning system. Public comment and objections have been received and the application will be determined in accordance with the authority's normal procedures. A decision may be taken at the meeting of the Area Committee on 29 November 2005. Meanwhile, no enforcement action has been taken in relation to the replacement of the plant on the site.

4.9 The complainant was aggrieved at the contents of the emails from Councillor Cullen, which he saw as an attempt to defame and discredit him. They contained a threat to have him brought before the Area Planning Committee and be asked 'awkward questions'. They also asserted that he had failed in his duty as a Planning Inspector, implied he was lazy and incompetent and acting against the interests of the Council. The complainant himself was unsure of what was entailed in the Peer Review process. He knew nothing of it, but he seemed to be being threatened by disciplinary action. The complainant considered this to be bullying and intimidation and said he had not experienced such personal abuse in a career in law and local government stretching over 30 years. Although Councillor Cullen had been pressing for the service of a Stop Notice, the complainant's opinion was that a Stop Notice (which is served along with an Enforcement Notice³) was inappropriate. He referred to Planning Advice Note PAN 54 which was issued by government in March 1999 and provides advice to planning authorities on various enforcement powers available to them. PAN 54 advises, among other things, that while it is clearly unsatisfactory that anyone should carry out development requiring planning permission without submitting an application and paying a fee, serving an enforcement notice to regularise development is not necessarily the correct route. Where such development is acceptable, service of a planning contravention notice is intended to encourage submission of a planning application. Service of an enforcement notice would not only be considered unreasonable but might also lead to an award of expenses against the authority in the event of an appeal. The complainant said he took the contents of PAN 54 into account. In his view, a Stop Notice would only have been appropriate if the development had involved an issue of public safety. He felt his position was well founded; it had the backing of the Area Planning Officer following advice from a senior officer. They agreed that the service of a Stop Notice would effectively close the plant down and expose the Council to litigation. The complainant felt that if Councillor Cullen had had any reservations about his lack of competence or action, the proper course would have been to take up the matter with his Head of Service. He considered that the lack of respect shown and the behaviour of Councillor Cullen towards him were in breach of paragraph 3.2 of the Code and paragraph 20 of Annex C; also that the councillor's actions in seeking to issue instructions and influence the outcome of the matter were in breach of paragraph 3.3 of the Code which stipulates that councillors should not engage in operational management of services.

4.10 During interview, he confirmed that when he returned from leave and inspected the canopy structure which was now erected on top of the new concrete batching plant, it was considerably larger than they had been given to understand. It had been clad on three sides and although it was still under 15 metres high, the overall size of it materially altered the appearance of the site. He took photographs and showed them to the Area Planning Officer and they agreed planning permission was required. Councillor Cullen had taken issue with the conciliatory tone adopted by the planning service towards the company. On being asked about the tenor of meetings with the company representatives, the complainant confirmed that they were non-confrontational and co-operative. They were aware the planning service would only accept the replacement works without a planning application providing they were within Class 24 permitted development. The complainant confirmed that the authority would always seek co-operation and would only issue a Stop Notice where, for example, there were issues of road safety or significant public interest. It was considered this did not apply in this case. The complainant said that he could not understand Councillor Cullen's reaction to the information given to him and felt that he had adequately explained the planning position to the councillor.

4.11 The Head of Planning and Building Standards said that enforcement is a means of regulation, not punishment, and the planning service use measures in proportion to each situation. A Stop Notice is exceptional and may be issued where there is a threat to public safety or something detrimental like dust emissions. It is always followed by an Enforcement Notice stating what action must be taken to remedy the breach of planning control. The concrete batching plant has been operating since 1979; it was entirely open and the company were attempting to bring it up to modern standards by enclosing the new hopper, cladding the conveyor belt to reduce noise and dust emissions, and erecting a security fence. The replacement plant and machinery provided an overall height of less than 15 metres and did not alter the local amenity. He agreed with the action taken by the complainant and the Area Planning Officer. In this case, a Stop Notice could have led to loss of employment and a lengthy appeal process. He recognised that councillors and members of the public may feel frustration at what they perceive as lack of effective enforcement. Councillor Cullen had criticised the complainant for the obsequious tone he had adopted in saying he had 'invited' the company to submit a planning application. The Head of Planning and Building Standards said he expects his officers to be diplomatic and he supported the phraseology. He had been shocked by Councillor Cullen's comments in the email to Mr Macleod. He was also concerned at the threat to raise it at the forthcoming Peer Review and felt it would have been inappropriate for the councillor to have raised an individual case as part of that process.

4.12 The Director of Planning & Environmental Services is the overall head of the department which includes the planning service. She was advised of the matter by the Head of Planning and Building Standards and she, too, was supportive of the complainant's stance on the planning issues. She shared the view that the replacement of the concrete batching plant was permitted development, but when the canopy exceeded this it was appropriate for Mr Macleod to invite a planning application. She also shared the view that a Stop Notice would not have been appropriate in this case. She felt that the language in Councillor Cullen's email was inappropriate and she was taken aback by it. It seemed out of character for Councillor Cullen and with the tenor of relationships generally within the Council as a whole. She would have expected any councillor who was unhappy with the actions of a staff member to have taken it up with a senior officer.

4.13 The Head of Law & Administration (Central) had no contact with the complainant on the planning issues, however the Area Planning Officer had spoken to him informally about it. She described the work being done at the concrete batching plant and he agreed with her that it was permitted development. Subsequently, she informed him that the size of the canopy meant the replacement plant was not 'like for like' and in her view it no longer fell within permitted development. She had already examined the possibility of a Stop Notice but did not think it was appropriate. She asked for his view and he advised her that a retrospective planning application should be sought. He said that a Stop Notice requires an immediate halt to development which in this case would have been hugely disproportionate.

4.14 The Council operate an area structure which incorporates all services and the Area Manager is the senior officer in the Area office. In this case, the Area Manager had no involvement in the planning issues relating to the concrete batching plant. Asked about Councillor Cullen's threat to call the complainant before the Area Committee, he said it would not be normal procedure to call a specific officer before the Committee to answer questions about his actions. Generally, a report on any issue would be presented by a Team Leader and any questions on enforcement would go to that officer or to the Head of Law & Administration. The Area Manager said that relations with councillors are generally good and he believes that the Council's policy on the dignity of the individual at work has a bearing on this.

4.15 The Council's policy on dignity of the individual at work was adopted in 2001. It sets out provisions which protect officers from any form of harassment by elected members. The Council's Monitoring Officer said the complainant first raised the complaint with his line manager, the Head of Planning and Building Standards, who in turn brought it to the Monitoring Officer. After consideration, the complainant decided not to pursue an internal complaint under that policy but to make a complaint under the Councillors' Code of Conduct. The Monitoring Officer confirmed that, apart from this complaint, there were no general concerns within the Council about Councillor Cullen's conduct. Likewise, there were no concerns about the complainant. As a former solicitor, and as a planning inspector dealing with enforcement issues, he was competent in handling difficult situations and he was not prone to 'crying foul'. In this case, he had been upset both by the contents of the email and the fact that it had been copied to members of the public. Describing the Peer Review process which Councillor Cullen had referred to in his email to the complainant, the Monitoring Officer said that it was a review being conducted by external consultants in advance of a forthcoming Best Value Audit. It involved interviews with staff, committee members, and others. It was not intended as a forum for making individual complaints, although if councillors had concerns about general systemic failures in service, it would be appropriate to raise these. The Monitoring Officer also confirmed that councillors had been given training in the Code immediately after the May 2003 elections. A further three day induction course was held in July 2003 and later that year he went round all six Area Committees answering questions on the Code. Councillor Cullen attended on all three occasions.

4.16 Responding to the complaint, Councillor Cullen said that because of his offshore occupation he was a part-time councillor. Although he is able to communicate with constituents and Council officers by telephone and email, there is some frustration when he is away from his constituency and a situation develops that possibly should be addressed on a more personal basis. The situation with the concrete batching plant was perhaps just such a situation. He had done what he could to attempt an amicable solution before going offshore but nothing had happened. A great deal of work was proceeding which obviously would require planning permission, but none was in place. He had made strenuous efforts to alert the planning service of the situation only to be told successively that no planning consent was required.

4.17 On 16 June he had some time towards the end of his shift. A few hours earlier there had been an accident on board when one of the roustabouts whom he knew quite well had lost a finger during loading operations on deck. At around 06.00 hrs he took the opportunity to check his emails and was furious when he saw the copy of the email from Mr Macleod to the businessman, Mr Mogford, who had raised the question about the planning consent. It was not so much the fact that the planning service agreed planning consent was now required, more the obsequious way that it was put in the email. In particular, Councillor Cullen said he took exception to the sentence "... (they) are being invited to apply (his emphasis)... to regularise the current situation ...". As a cumulative result of the way the situation had developed together with his mental state at the time, Councillor Cullen freely admits that he lost his temper. He sent the email in the heat of the moment and without much thought for the consequences. With hindsight, at another time and place, it might have been different. Having said that, he believed that one of his roles is to challenge and question Council officers on their actions. In his experience, planning can be extremely contentious, and he suggested that it should not result in a complaint every time a councillor gets a little hot under the collar. The complainant had said he had never been subjected to such a tirade in his professional life. In response to this, Councillor Cullen said the complainant deals with planning enforcement which by its nature is a high profile position and potentially controversial. He found it hard to believe that the email was the worst the complainant had ever had to deal with. He does not consider it was bullying, intimidating and insulting; rather it could be considered part of the cut and thrust of public life.

4.18 On the planning matters, Councillor Cullen said that he disagreed with the statement that there were no immediate public or road safety issues given that the plant was next to a public road and at the start of the work a 20 tonne mobile crane had been used. With regard to the contention that the Council would be in court for stopping the operation, he said he was simply asking for the development work to stop until there was planning consent in place for the work being done. Now the planning consent will be retrospective and he will have been precluded from exercising his democratic and statutory role. He questioned the complainant's view that he had sent the email to "members of the public"; he had merely copied it to the two original correspondents who had been involved in the situation from the start.

4.19 During interview Councillor Cullen said he had visited the site of the concrete batching plant where there appeared to be a canopy being fabricated on-site, with a larger batching hopper awaiting installation. When he received the email from Mr Macleod saying that planning consent was now required and an application would be invited, he took exception to the terminology. Although this may be a normal planning expression, from his constituents' point of view he did not think it appropriate. He felt the concrete batching company had manipulated the system. With regard to the threat to call Mr Macleod before the Area Committee, he had never intended this to be a threat of disciplinary action. Nor did he pursue anything further in regard to the Peer Review process, which he realised would not have been appropriate. Councillor Cullen said that when he had written the email to Mr Macleod, he had been working for 13 hours on top of the distress caused by the accident which had occurred, and he had reacted. He recognised that the terms of his email went beyond normal language, and, had he been aware right at the start how upset Mr Macleod had been, he would have apologised to him man to man. Indeed he was prepared to offer an apology and would do so formally if this would help. On being so informed, the complainant indicated that he might have accepted an apology at the outset, but he did not wish to receive an apology at this stage.

5.0 Findings and Conclusion

5.1 The complaint is that Councillor Mark Cullen contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report.

5.2 The complainant alleges that Councillor Cullen sent him an email on 16 June 2005 about the complainant's handling of a planning and enforcement matter relating to a concrete batching plant at Westhill the terms of which were bullying, intimidating and insulting; they constituted an attempt to defame and discredit him and were circulated to members of the public. The councillor also sought to issue instructions and engage in the operational management of the Planning Service. The complaint is to the effect that Councillor Cullen's conduct breached paragraphs 3.2 and 3.3 of section 3, paragraph 7.7 of section 7 and the provisions of paragraph 20 of Annex C of the Code of Conduct.

5.3 As local member, it was entirely proper for Councillor Cullen to raise concerns about the work taking place at the concrete batching plant and seek a response on this from the planning service. He was unhappy with the reply, which was to the effect that the plant was long established and the works appeared to be permitted development. Subsequently, on being told that things had changed and that a planning application was required, he pressed the planners to serve a Stop Notice and secure the temporary closure of the plant. I found that he sent the emails referred to in paragraph 4.7 of this Report; in so doing he openly criticised planning officers for failure to act, indicated that he would be requesting the complainant be brought before the Area Committee to answer questions and sought to secure the service of a statutory notice – a Stop Notice – which he was not authorised as an individual councillor to instruct. I have also found that the judgements and conclusions reached and the action proposed to be taken by the complainant and other officers to invite Ennstone Thistle to submit a planning application rather than to recommend the service of a Stop Notice were, in all the circumstances, correct, appropriate and proportionate. While a councillor is entitled to express views and concerns on situations relating to his ward, the differences between the respective roles and responsibilities of councillors and officers must be observed. In this case, Councillor Cullen overstepped that mark and attempted to influence or direct the operation of the planning service. He should have taken his views and concerns about the planning issues to senior officers of the planning service whose role it is to determine whether or not an officer has acted correctly and what action, if any, is required. He would have learned that senior officers entirely agreed with the action taken by the complainant. I have therefore found that the action which Councillor Cullen took to engage in operational issues, including his proposal to call the complainant before the Area Committee and his instruction to serve a Stop Notice, amounted to a breach of paragraph 3.3, as read with paragraph 5 of Annex C (Protocol for Relations between Councillors and Employees in Scottish Councils), and of paragraph 7.7 of the Code of Conduct.

5.4 Paragraph 3.2 of the Code requires Councillors to respect Council employees and the role they play, and treat them with courtesy at all times. Under paragraph 3.4 they are also obliged to follow the Protocol contained in Annex C of the Code. This states that Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position. Paragraph 20 of Annex C provides that Councillors should not raise matters relating to the conduct or capability of employees in public.

5.5 It is evident from the terms of Councillor Cullen's email of 16 June 2005, reinforced by his further emails sent the following day, that his statements went beyond the bounds of courtesy and the normal tenor of correspondence which should be expected between members and officers. The complainant was entitled to be upset and to interpret the Councillor's intention to call him before the Area Committee as intimidating and a threat of disciplinary action. It is clear that both the complainant and the Area Planning Officer had investigated the planning issues and considered what action it was appropriate for the planning service to take at varying stages of the matter. As previously stated, the complainant's interpretation of the planning regulations and his decisions in regard to the planning situation were wholly appropriate and supported by all his senior officers. The terms of Councillor Cullen's emails to the complainant failed to show the level of respect and courtesy expected between a member and an officer of the authority and it was exacerbated by the fact that he copied the email of 16 June and the first email of 17 June to persons outwith the authority who could reasonably be regarded as members of the public notwithstanding that they had a specific and material interest as neighbours in the development in question. I have therefore found that in acting as he did and writing to the complainant in the terms set out in paragraph 4.7 of this Report, Councillor Cullen contravened paragraphs 3.2 and 3.4 and paragraph 20 of Annex C of the Code of Conduct.

5.6 It is possible that Councillor Cullen might have done things differently had he been able to come into the office and discuss the planning matters face to face with the complainant and other officers. He has described some of the difficulties of keeping up communication with Council work while he is offshore. He has also described the particularly difficult and affecting conditions he experienced on his shift on 16 June, the day he wrote the email. Councillor Cullen had not realised how upset the complainant had been by what he said and would have been prepared to apologise had he been aware of this at the start. He would also have been prepared to apologise fully and formally during the investigation. These are matters which may be taken into account in the disposal of this case.

5.7 In relation to complaint number LA/As/220, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.3 and 5.5 of this Report, Councillor Mark Cullen has contravened the Councillors' Code of Conduct.

¹ Class 24 of the Town & Country Planning (General Permitted Development) Order 1992 allows (among other things) for replacement of plant and machinery on industrial land. Development is not permitted by this class if it would materially affect the external appearance of the premises, or any plant or machinery would exceed a height of 15 metres above ground level or the height of anything replaced, whichever is the greater.

² Section 140 of the Town and Country Planning (Scotland) Act 1997 Act sets out the procedures regarding Stop Notices. Where planning authorities consider it expedient that any 'relevant activity' should cease before the expiry of the compliance period in an enforcement notice, they may serve a stop notice prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land. A 'relevant activity' is any activity required by the enforcement notice to cease, and any activity carried out as part of that activity or associated with it.

³  Sections 127 -129 of the 1997 Act empower planning authorities, at their discretion, to issue an Enforcement Notice where it appears to them that there has been a breach of planning control and it is expedient to issue a notice having regard to the development plan and other material considerations. An Enforcement Notice must state the matters which appear to the planning authority to constitute a breach of planning control and specify the action which requires to be taken to comply with the notice.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
14 December 2005