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Complaint no. LA/As/150 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Paul Johnston of Aberdeenshire Council

1. Complaint number LA/As/150 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Paul Johnston ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, that the respondent had contravened the provisions of the Councillors' Code of Conduct on dealing with planning applications contained within section 7, and specifically paragraph 7.2 of the Code.

3. The person complaining ("the complainant"), alleged that at the meeting of Formartine Area Committee held on 23 March 2004, at which a planning application submitted by him in respect of land at Ythanbank, Ellon was under consideration, the respondent made representations which were unsubstantiated by evidence and thus unfairly influenced the Committee in its decision to refuse planning permission.

4. In 2002 the complainant identified a plot of land and concluded an arrangement to purchase the site subject to the grant of planning permission. The complainant and his wife submitted an outline application for the erection of a single dwelling house on the site which was then a disused field adjacent to a public picnic site. This application came before Formartine Area Committee in February 2003 and was granted subject to various conditions. Later that year he submitted an application for full planning permission in respect of two houses on the site. The planning report submitted to the Committee by the Council planners recommended approval.

5. On 23 March 2004 the complainant's application came before Formartine Area Committee. The Committee comprised 10 members, including the respondent, and the Chair, Councillor Loveday. Also in attendance were several officers who been involved in the preparation of the report on the application.

6. The respondent, as local ward representative, was invited to speak as the local member. His address raised concerns as to the size of the plot as identified within the local plan; the speculative division of a single plot contemplated by the application; the adverse impact on the adjacent picnic site; and the impact on road safety. He moved that the application be refused. This was countered by a motion to grant. On a vote being taken the application was refused by 7 votes to 3. The complainant successfully appealed to the Scottish Ministers under the Town and Country Planning (Scotland) Act 1997.

7. In his complaint to the Standards Commission the complainant took the view that the tenor of the comments made by the respondent were overly critical and unsupported by the factual material contained within the planner's report. He also expressed surprise that no questions were put to the professional officers present at the meeting who might have been able to clarify the points made by Councillor Johnston.

8. Paragraph 7.2 of the Code places a duty on members to ensure that the 'parties involved in the development process are dealt with fairly'. In the absence of any further definition the ordinary meaning of this requirement should be applied. In essence councillors are required to adopt a fair stance towards planning applications, having regard to the interests of the applicant, objectors, neighbouring proprietors, and the wider community who might reasonably be affected by a proposed development. This places a broad responsibility on councillors and requires them to use judgement as to the weight to be placed on both objective evidence and subjective opinion. At the end of the day, however, planning decisions are required to be made in accordance with the development plan unless material considerations indicate otherwise.

9. Members advancing views must be careful in their use of language to ensure that they do not give an impression of partiality and in that context should exercise caution in applying descriptive words which could be seen as exaggerating a case for or against the application. I noted for example that the respondent in this case used the term 'substantial' when referring to the potential impact on the picnic site. In fact the lower of the two houses was to be orientated in such a way as to face away from the picnic benches and it would have been open to the Committee to ensure that this was the case by imposing a condition either directly or by delegation. The term used, however, could not be regarded as substantively unreasonable.

10. I also noted that the respondent referred to having received representations in addition to those communicated formally to the Committee which he neither specified in terms of number, scale or content. However the respondent did not introduce any issues which had not already been drawn to the attention of the Committee within the letters of representation copied to the members with the planner's report. The only expression of personal opinion was his view that the zoning of the site was in itself too large, but this was not a deciding factor in the decision to refuse the application. In drawing attention to the other factors the respondent was entitled to reflect the views of those who had written letters of representation, and to express his personal observations based on local knowledge. He was mistaken in his statement regarding a condition having been applied to the earlier grant of outline permission but the point had been reiterated in the letters of representation.

11. The professional officers present at the meeting might have been able to offer advice on the points raised by Councillor Johnston. As it happens, they were not invited to do so, and the Area Manager saw no need to indicate to the Chair that this might have been appropriate.

12. While the respondent spoke forcefully on his position - which was a reasoned position - and preferred to advocate refusal rather than considering whether an acceptable option lay in granting the application subject to conditions, I did not consider that his actions were inherently unfair to the complainant such as to be in contravention of the Code.

13. Having considered the information arising from my investigation, I concluded that Councillor Paul Johnston had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
31 March 2005