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Complaint no. LA/AC/396A & B concerning alleged contraventions of the Councillors' Code of Conduct by Councillor James Hunter and Councillor Ronald Clark of Aberdeen City Council

1. Complaint number LA/AC/396A & B alleged contraventions of the Councillors' Code of Conduct ("the Code") by Councillor James Hunter and Councillor Ronald Clark ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, the provisions in the Councillors' Code of Conduct set out in section 5 dealing with Declaration of Interests; section 6 in regard to Lobbying and Access to Councillors; and section 7 which deals with Taking Decisions on Planning Applications.

3. The person complaining ("the complainant") alleged that the respondents, as members of the Planning Committee and Licensing Board, dealt unfairly with applications submitted by him in respect of a proposed casino in Market Street, Aberdeen.

4. The complainant was a director of a company which operated a casino in Aberdeen. The company proposed to transfer its business to new premises which lay within the first respondent's ward. As necessary preliminaries to this move the company required to apply for planning permission and a gaming licence.

5. It is important to bear in mind that, within the overall context of the relevant statutory regime, the regulatory bodies responsible for the determination of planning and licensing issues, enjoy a degree of discretion in relation to such matters. Self evidently there are appeal processes available to applicants to challenge the merits of their decisions. My investigation was therefore restricted to determining whether the specific conduct of the respondents as individuals was in accordance with the standards of ethical conduct set out in the Councillors' Code. There were five aspects to the complaint as detailed below.

6. The complainant asserted firstly that both respondents should have declared an interest arising from their acquaintanceship with a contractor, who it was alleged would have been engaged to undertake work at a rival casino had the application for a gaming licence in relation to those premises been granted. No interests were declared by the respondents at the relevant meetings of the Board. The respondents voted to grant the application which was however refused.

7. Members are required by the Code to declare financial and non-financial interests where these might reasonably be thought that they could influence their role as a councillor. In this case there was no suggestion that either respondent had any financial interest in the outcome of the licensing application, but the question arose as to whether the alleged link to a building contractor who might himself have a financial interest in the outcome of the application, was such as to raise a reasonable belief that this could have given rise to an interest.

8. Paragraph 5.13 of the Code requires members to consider whether the interests of relatives and close friends should be declared. In this case, on the evidence available, I accepted that the relationship between the first respondent and the contractor was one of acquaintance only and that they had no social or business association.

9. In making a judgement as to whether a declaration should be made it is self-evident that a councillor must be aware of the interest of the third party prior to the application being considered. No evidence to that effect had been adduced by the complainant, and the respondents stated that they did not know the identity of any contractors who might have derived work from the grant of planning permission.

10. Knowledge of the identity of a potential contractor could in certain circumstances be reasonably regarded as a declarable interest, for instance if the individual concerned was a relative or close friend. Clearly if financial benefit was to be accrued by a member - as might arise were he to be a director, shareholder or sub-contractor of the person concerned - an interest would arise. However, in this case, the absence of evidence to establish such a link and the rebuttal of a close friendship led me to the conclusion that the link between the respondents and the contractor was of a tenuous nature and insufficient to constitute declarable interests as contemplated by the Code.

11. The second allegation related to the manner in which the respondents, as members of the Planning Committee, considered the planning applications for the relocated casino. Fairness and transparency are at the heart of decision-making in quasi-judicial matters, and members must not give grounds to doubt their impartiality by indicating or implying their support or opposition to a proposal prior to the meeting at which it is to be considered.

12. The complainant alleged that in this case the first respondent expressed concerns about the proposed relocation of the casino prior to the meeting of the Planning Committee on 30 September 2004. At interview however the complainant was unable to specify when or in what circumstances such alleged statements were made. A general statement of opinion, voiced before the application was submitted, would not necessarily breach the Code, although it would be a matter of judgement as to whether it indicated bias of such a degree as to indicate the member's position on the application. At interview the first respondent stated that he had been approached by residents and that he had agreed with their concerns that the casino would have an impact on parking.

13. At the meeting of the Planning Committee on 30 September 2004 the first respondent, who is the local member, is recorded in the Clerk's notes as expressing concerns about parking, servicing and residential amenity. I noted that similar concerns were in fact expressed in relation to the planning application for another casino by the local member, Councillor Delaney. I am also bound to note that the complainant, and a fellow director, submitted objections to that application based partly on concerns about traffic and disturbance.

14. The first respondent attended the meeting of the Planning Appeals Panel which considered the response of the Council towards the complainant's appeal to Scottish Ministers against the decision of the Planning Committee on 30 September 2004. The decision of the Panel as a whole was to resist the appeal and, in my view, that was an administrative decision that was entirely and properly open to that Panel.

15. The decision to hear the re-submitted planning application while subject to an appeal relating to the earlier application which was being resisted by the Council, was also one that was properly open to the Committee to take and it can be observed that their decision to refuse was indeed consistent with their earlier decision. Both respondents attended the meeting to deal with this application on 20 January 2005.

16. There was no substantive evidence that the first respondent - in advancing a case for refusal - did so on an improper or biased basis. There was also no substantive evidence of misconduct on the part of the second respondent. In the case of the planning applications, the decisions were taken by the Planning Committee as a whole. There is an appeal system for aggrieved applicants and in the case of the complainant's application the Reporter clearly felt that the decision to refuse was not warranted. Whilst the reasons for refusal may have lacked weight, it is quite another matter to attribute that to bias on the part of individual councillors. In the case of the planning applications there was no substantive evidence to justify an allegation of misconduct on the part of either of the respondents.

17. The third aspect of the complaint related to the manner in which the respondents considered the application for a gaming licence which came before them as members of the Licensing Board. In making decisions on individual gaming licensing applications members are required to take account of the information placed before them. This will be contained principally in the reports prepared by the relevant officers which will typically include legal and technical advice, together with a summary of representations submitted by consultees and competent objectors.

18. Members may bring local knowledge to bear on their considerations but the basis of such knowledge must be made evident at the meeting. General statements of concern over a particular aspect should be firmly founded on fact and conclusions reached by logical and objective reasoning.

19. There was, as in the case of the planning applications, no substantive evidence that the first respondent - in advancing a case for refusal - did so on an improper or biased basis. There was also no substantive evidence of misconduct on the part of the second respondent.

20. In the case of the gaming licensing application for the new premises the applicant was entitled to appeal to the Sheriff if dissatisfied with the Board's decision. In this case the complainant did indeed appeal and was successful in so doing. The Sheriff took the view that the Board's decision lacked merit, but it is going too far to say that this was due to misconduct on the part of any members of the Board and there was no substantive evidence to that effect.

21. The complainant also alleged inconsistencies in the treatment of his applications in relation to others. These were addressed as part of the planning and licensing appeals and were material factors in the decisions taken by the Reporter and the Sheriff. The original determinations were made corporately by the Planning Committee and the Licensing Board respectively but there was no evidence of individual misconduct, and no indication to that effect in the respective appeal decisions.

22. The fourth allegation related to an attempt by the complainant to interject at the meeting of the Licensing Board during its consideration of the gaming licence application for a rival casino to which the complainant objected. The complainant's intention was to advise the Board on the provision of gaming facilities which he felt had been misrepresented by the applicant. In this case the second respondent, as Chair, was entitled to use his discretion to prevent the complainant from speaking as he (the complainant) was doing so by way of interjection. I found, therefore, that the second respondent acted appropriately in relation to this aspect of the complaint against him.

23. The final allegation that the first respondent organised or influenced the voting of the members at the meeting of the Licensing Board on 8 November 2005 was based on the complainant's interpretation of the voting distribution.

24. In the absence of any firm evidence that the first respondent did indeed so act, the voting at the meeting of the Licensing Board on 8 November 2005 in relation to the complainant's gaming licence application, and also the meetings of the Planning Committee on 30 September 2004, and 30 January 2005 in relation to the complainant's planning applications was scrutinised. It was apparent that the voting did not divide in accordance with political allegiance at any of these meetings.

25. I therefore concluded that there was no evidence of voting in accordance with political allegiance in the determination of these matters and that these allegations were based on conjecture.

26. Having considered the information that arose from my investigation, I concluded that Councillor James Hunter and Councillor Ronald Clark had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
21 August 2006