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Complaint no. LA/PK/136 concerning an alleged contravention of the Councillors- Code of Conduct by Councillor Robert Ellis of Perth & Kinross Council

1.0 Introduction

1.1 Complaint number LA/PK/136 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 Councillor Colin Young ("the complainant") who alleges a contravention of the Code by Councillor Robert Ellis ("the respondent"). The complainant and the respondent are elected members of Perth & Kinross Council ("the Council").

1.3 It is alleged that the respondent has contravened the Councillors- Code of Conduct by participating in a meeting of the Development Control Committee despite having previously discussed the merits of a planning application with objectors and voiced objections to the application before it was considered by the Committee.

1.4 It is alleged that the respondent has contravened the Councillors- Code of Conduct, and, in particular, section 7 which deals with "Taking Decisions on individual applications" and in paragraphs 7.8 to 7.10 which are headed "Dealing with planning applications".

With regard to paragraph 7.8 the Code states:
"You should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular recommendation on a planning application, on a planning agreement or on taking enforcement action."

With regard to paragraph 7.9 the Code states:
"It is possible that you may receive representations from interested parties in relation to planning applications. If you are a member of the committee which deals with planning applications, or if you are to attend a meeting of the Council to consider planning applications, and you wish to respond to lobbying by constituents or others by openly advocating a particular course of action prior to the meeting, you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded."

With regard to paragraph 7.10 the Code states:
"If you propose to take part in the consideration of planning applications at a meeting of a committee or of the Council, you must not give grounds to doubt your impartiality. You must not make public statements about a pending application, to ensure that you are not seen to be prejudging a decision which will be made at the meeting where all the information required to take a decision will be available. You must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular proposal until all available information is to hand and has been duly considered at the relevant meeting."

1.5 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.

1.6 For the purpose of this investigation, I was assisted by Mrs Anne Mahoney and Mr Douglas Winchester, Investigating Officers.

1.7 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 in draft form to the respondent for any representations. The respondent confirmed that he did not have any further representations to make (Annexes A and B) and the report, therefore, was not amended.

2.0 Outline of the Complaint and the Response

The Complaint

2.1 The complaint is set out in a complaint form received from the complainant which is attached as Appendix A.

2.2 The complainant alleged that at a meeting of Blairgowrie & Rattray Community Council, Councillor Ellis voiced his opposition to planning application Ref 04/01730/OUT which was for a residential development on land at Burnhead Road, Blairgowrie. He also alleged that Councillor Ellis met with a number of objectors on 21 October 2004 and explained the issues on which he would object to the planning application. Subsequently, at the Development Control Committee meeting on 27 October, Councillor Ellis voiced these objections; but instead of leaving the meeting, he remained and took part in consideration of the application. The complaint is examined in further detail in section 4 of this report.

The Response

2.3 The response is set out in a letter from the Councillor Ellis which is attached at Appendix B.

2.4 In his letter, the respondent agreed that on this occasion he broke the rules contained in the Councillors- Code of Conduct and he explained the circumstances in which this occurred. Further details of Councillor Ellis's response are contained in section 4 of this report.

3.0 The Investigation

3.1 To establish the background to the complaint, I sought and received information from the Council's Monitoring Officer. I also obtained the response referred to in paragraphs 2.3 and 2.4 above.

3.2 During the investigation, information was also obtained during telephone discussions with the complainant and the respondent in regard to the complaint.

4.0 Consideration of the Evidence

4.1 The complainant, Councillor Colin Young, said that planning application 04/01730/OUT was for outline planning consent for a residential development in Blairgowrie. There was strong local opposition to the application, which was discussed at a meeting of Blairgowrie & Rattray Community Council on 14 September 2004. The minute of the Community Council meeting (Appendix C) recorded, among other things, that concerns had been expressed about the proposed development and that Councillor Ellis advised that he had had meetings and dealings with a number of people who wished to oppose the application. Councillor Ellis does not dispute the terms of the Community Council minutes.

4.2 On 21 October 2004 Councillor Ellis attended a meeting held by a number of residents who were opposed to the development. The complainant said that, during this meeting, Councillor Ellis explained the issues which he was going to use to object to the planning application and assured them of his support.

4.3 The application came before the Development Control Committee on 27 October 2004 for a decision. No declarations of interest were made by any councillor in respect of the item. Councillor Ellis attended the meeting as a substitute for another Committee member. When the application came up on the Agenda, he remained in the meeting and participated in the determination of the application.

4.4 In his report on the application, the Head of Development Control recommended approval of the application, subject to conditions. The minute of the Development Control Committee meeting (Appendix D) shows that Councillor Ellis spoke on the application and moved formally that it be refused on grounds of potential drainage problems and risk of flooding, road safety and contravention of the local plan. A formal amendment to approve the application (subject to further consideration of a hydrological assessment) was moved by Councillor Young. When a vote was taken, the amendment succeeded by 9 votes to 3.

4.5 Councillor Ellis has been a Councillor for nine years and represents Ward 7 Blairgowrie. He is a member of the Enterprise and Infrastructure Committee, the Blairgowrie Common Good Fund and is Vice Convener of the Standards & Scrutiny Committee. Councillor Ellis is not an appointed member of the Development Control Committee.

4.6 In his response to the complaint, he has confirmed that he did attend the Community Council meeting on 12 October and the meeting of objectors on 21 October 2004. Councillor Ellis said that the meetings concerned a housing development that nobody in his ward wanted. At these meetings, he stated that he would speak from the public gallery as the local member against the application. No one had spoken in favour of the application; had they done so, he would have sat on the fence.

4.7 Two days before the Development Control Committee meeting, he was asked if he would substitute for a member of the Committee who was unable to attend. Without stopping and thinking, he agreed. He spoke against the application at the Committee meeting and his motion was seconded. However, when the matter went to a vote, the end result was that the application was approved with a strong majority.

4.8 A week later an anonymous complaint was received by the Council that Councillor Ellis had broken the Code of Conduct. He had a meeting with relevant Council officers at which he admitted that he had unknowingly broken the rules. He apologised to the officers and stated that he would attend the next available course on the Code of Conduct. Subsequently, Councillor Ellis received notice of the complaint made by Councillor Young. In his response, he has indicated that this was the first time in nine years as a Councillor that he had broken the rules. He accepts this and apologises for doing so and has given an assurance that it will not happen again.

4.9 The Monitoring Officer has confirmed that a Guidance Note, which was issued by the Standards Commission in July 2004, was distributed to councillors; the note included additional guidelines on handling planning applications. The Monitoring Officer also confirmed that training has been given to councillors on the Code of Conduct. On 6 May 2003 a general training session was held before the statutory meeting of the Council. There was a follow up session on 8 May 2003 before councillors signed the declaration of acceptance of office. Another session on registration of interests was held on 14 May 2003. Councillor Ellis attended all three sessions. There was no record of attendance for a training session on planning held on 23 July 2003. Another session specifically relating to Development Control matters was held on 14 April 2004 and a seminar on the Code of Conduct took place on 10 November 2004. Councillor Ellis did not attend these two training sessions.

4.10 The Monitoring Officer has said that consideration is being given to introducing a structured training programme. Councillor Ellis has stated that he will attend the next available training course on the Code of Conduct.

5.0 Findings and Conclusion

5.1 The complainant has alleged that Councillor Ellis contravened Section 7 of the Councillors- Code of Conduct, as outlined in paragraphs 1.3, 1.4 and 2.2 of this Report.

5.2 The introductory paragraphs of Section 7 of the Code recognise that councillors may have to take account of different views on individual applications. The Code emphasises the key importance of ensuring that all applications are dealt with fairly and, equally importantly, are seen to be dealt with fairly.

5.3 If a Councillor who does not have a responsibility for dealing with planning applications wishes to support, oppose, or promote a particular recommendation on an individual application, he or she should do so in an open and transparent manner consistent with proper planning procedures.

5.4 It is also entirely appropriate for Councillors on the planning committee to make known what representations they have received on a pending planning application, to attend public meetings and to assist constituents in making their views known to the relevant planning officer, provided that at no time does the Councillor express a "for" or "against" view by advocating a position in advance of the planning committee meeting. Where a Councillor has a responsibility for dealing with a planning application, then he or she must not have - or be seen to have - prejudged any application before the meeting that is when all the relevant material considerations will be available. If a Councillor wishes to support or oppose an application, or act as an advocate to promote a particular recommendation, he or she should declare an interest and not take part in the debate.

5.5 I have found that in October 2004 Councillor Ellis - and he himself accepts this - met with objectors who voiced opposition to the planning application for residential development at Burnhead Road. He supported the objections, having heard no-one speaking in support of the application. In these circumstances, not being a member of the Development Control Committee, it would have been appropriate for him as local member to have made known his views at the Committee meeting on 27 October 2004, which was what he intended to do.

5.6 I have also found that the position changed when, only a few days before the meeting, he was asked and agreed to sit as a substitute for another member of the Committee. At that stage, he had already been involved in discussions with the objectors and his views on the planning application were known. He should have seriously considered whether it was right for him to sit on the Committee as a substitute. Having agreed to do so, he should have certainly have declared an interest, made known his views and previous involvement, and withdrawn from participation in the decision on the application. Instead, he remained in the meeting and not only took part in consideration of the application, but also moved formally for refusal.

5.7 These actions amounted to a breach of sections 7.8 and 7.9 of the Code in that Councillor Ellis acted as an advocate to promote a particular recommendation on the application, but failed to declare an interest and continued to participate in the Development Control meeting on 27 October 2004.

5.8 I do not consider there was a breach of section 7.10 of the Code which prohibits a councillor from publicly supporting or opposing an application where the councillor intends to take part in consideration of the application. This would have required a premeditated intention by Councillor Ellis to participate as a member of the Committee. At the time Councillor Ellis was meeting with objectors and discussing his views and intentions, he did not propose to take part, nor did he foresee that he would be asked to substitute as, a member of the Committee. However, as stated above, he should have exercised care to deal properly with the matter when it came before the Committee.

5.9 I have noted that Councillor Ellis accepts that he contravened the Code of Conduct. The voting on the planning application was 9 in favour and 3 against, therefore Councillor Ellis's actions had - at the end of the day - no material effect on the outcome of the application itself; Councillor Ellis-s actions could, however, in other circumstances have persuaded the Committee to refuse the application which would have been serious indeed. I have also taken into account his statement that this is the first time in nine years as a councillor that he has broken the rules. I have also noted the apology which he has offered to officers and his intention to participate in future training sessions in regard to the Code of Conduct. These are relevant material considerations to be taken into account in the final disposal of this case.

5.10 In relation to complaint number LA/PK/136, I have come to the conclusion that, having regard to the findings in section 5 and in particular paragraphs 5.5 to 5.7 of this Report, Councillor Robert Ellis has contravened sections 7.8 and 7.9 of the Councillors- Code of Conduct.

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

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