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Complaint no. LA/As/516 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor George Swapp of Aberdeenshire Council

1. Complaint number LA/As/516 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor George Swapp ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular the provisions relating to Taking Decisions on Planning Applications set out in section 7.

3. The person complaining ("the complainant") alleged in regard to a planning application to which she objected relating to a property adjacent to the house occupied by her, the respondent indicated or implied support for the application, and gave grounds for the complainant to doubt his impartiality.

4. The complainant owned and occupied a detached house in a rural location. This house was built on ground adjacent to an unoccupied traditional semi-detached cottage which was also owned by the complainant, and which she sought to retain as a dwelling. The adjoining semi-detached cottage was also unoccupied.

5. An application for outline planning permission was submitted to erect a detached dwelling house in the garden of the adjoining cottage. As the Council's policy on rural development restricted the building of additional housing in the countryside, the applicants sought permission on a replacement basis with the existing cottage being retained as a garage/workshop. The complainant wrote two letters of representation objecting to the proposal.

6. Section 7 of the Councillors' Code places a duty upon members to ensure that development decisions are properly taken and that parties involved in the process are dealt with fairly. Further to this general requirement councillors must avoid any occasion for suspicion, and any appearance of improper conduct, or grounds to doubt their impartiality. In particular councillors must not be seen to prejudge a decision by making public statements about pending applications, and must not indicate or imply support or opposition to a proposal, or declare their voting intention before the meeting. It is apparent that councillors must exercise caution in any contact with the parties to a pending application, and not only act impartially, but guard against giving any suspicion of unfairness.

7. In this case the initial meeting of the Area Committee resulted in a decision to grant the application, conditional upon advertisement as a departure from policy. Councillors were fully entitled at that meeting to indicate whether they supported or opposed planning permission (if for sound planning reasons) and the respondent chose to support the grant of permission. In this case, as approval would have meant a departure from the development plan, the application was continued until the expiry of the time allowed for further letters of representation. In the event additional letters were submitted by the complainant, and her agents, and these were judged sufficient to require further consideration by the Area Committee. The application therefore continued to be under consideration until its determination at a further meeting of the Area Committee. The meeting between the complainant and the respondent took place during this period.

8. In considering this complaint I noted that the respondent at the initial meeting indicated his support for the application in moving for its conditional grant. This was a matter of public record, being published on the Council's website, and the complainant was aware of the respondent's position when she sought her meeting with him. It was therefore evident at that stage that the respondent, on the basis of the information then available to the Area Committee, was minded - as he was entitled to be - to support the application.

9. The respondent - and all the other Councillors - would still have to consider any representations received after the development departure advertisement. In practice, the respondent, when meeting with the complainant, should have confined himself to listening and noting concerns, rather than unwisely and injudiciously discussing the merits of the application or commenting on their validity. The complainant's recollection at interview, assisted by notes taken immediately after the meeting with the respondent, was that he went beyond listening to her points, offered his personal opinions in support of the application, and gave the impression of dissuading her from making any further written objection. I did not doubt that this was the impression gained by the complainant. It was particularly unwise of the respondent to indicate to the complainant his support for the application at least without making clear he would be reserving his position regarding any final determination until after considering any further representations. This would have avoided giving the impression of predetermination rather than predisposition.

10. The respondent accepted that he made no notes at the time of the visit but stated that he did so on his return home, in particular recording the complainant's wish for a site visit and her concerns over the access from the public road. These points were covered by the subsequent letter from the complainant's solicitors, and the respondent himself seconded the motion for a site visit at the next meeting of the Area Committee.

11. The respondent and complainant were at variance as to the content and tenor of the former's contribution to their meeting, and I am reliant on the recollection of both parties, albeit aided by their notes. With the passage of time I was unable to determine the details with the necessary degree of accuracy, although the respondent himself confirmed that he did go so far as to seek to explain the reasons underlying the conditional decision of the Area Committee's initial consideration of the application. While accepting that there was no overt intention to breach the terms of the Code any expansion of the reasons detailed in the minute of that meeting could be open to interpretation as going beyond the constraints set out in section 7 of the Code.

12. I was bound to observe also that in agreeing to meet the complainant Councillor Swapp placed himself in a position that could be interpreted in differing ways by the applicants, the complainant, or disinterested third parties. Had he subsequently altered his support for the application it might well have been suggested that he had reacted to lobbying by the complainant. Irrespective of the nature of his discussion with the complainant, in failing to seek advice prior to agreeing to attend the meeting, or to make it clear he was still open to consider any further representations, the respondent acted without due regard towards the manner in which his meeting with the complainant might be perceived. However, the absence of an independent witness to the meeting, the publicly-known stance taken in support of the application by the respondent at the initial meeting (which he was entitled to adopt), and his approach throughout the subsequent consideration of the application, led me to conclude that the respondent had no improper or ulterior motive in seeking to explain the Area Committee's position. I found accordingly.

13. In regard to the complainant's view that the respondent attempted to dissuade her from making further written representation I was again unable to determine with the necessary degree of accuracy the precise terms of the conversation which led her to reach that conclusion. The respondent agreed that he suggested that the complainant should telephone the planning officer but denied that this was intended to dissuade her from making a formal representation. The complainant herself was clearly aware that a formal written submission was required and did in fact make such representation via Paull & Williamsons (very shortly after the meeting with the respondent), and personally in her own letter to the Area Committee. While it was true that the absence of such written representation in response to the departure advertisement would have led to the application being granted in accordance with the decision of the initial meeting at which the application was considered, I could attribute no intent on the part of the respondent to dissuade the complainant from lodging further objections, and I found accordingly.

14. In the absence of an independent account of the meeting between the complainant and respondent it was appropriate to consider the contributions of the respondent to the subsequent meetings of Area Committee.

15. At the meeting following advertisement of the application the respondent seconded the amendment in favour of a site visit, indicating that he had at least taken into consideration the proposal for such a visit made by the complainant's agent, and suggesting that he had reviewed his earlier straightforward support for the application and was in favour of the Committee as a whole gaining a better appreciation of the site. The complainant's agent was present at the site visit and the absence of any concerns from her was persuasive that the site visit proceeded in a proper manner without undue influence by any party. While the tenor of the respondent's comments at the meeting with the complainant were consistent with a predisposition to grant the application, his subsequent support for the site visit is at least indicative that he had not closed his mind to an alternative decision.

16. At the final meeting of the Area Committee the respondent proposed the successful motion to grant the application. In my view there was nothing inconsistent with this approach. The members now had first-hand knowledge of the site layout, the condition of the unoccupied cottage which the proposed house was intended to replace, the access from the public road, and its relationship to the complainant's property, and were thus in a much better position to apply their minds to the decision which was put to a vote and decided on a majority. I note that elements of the complainant's concerns were taken into consideration, the proposed house being restricted to 'modest' size, and that the new dwelling and the existing cottage were to be considered as a single unit for planning purposes. In addition the structural survey on the cottage had been undertaken and concluded in favour of demolition and rebuilding.

17. No evidence was adduced or disclosed during the investigation to establish that the respondent had any financial, non-financial or personal interest in the application. The complainant's suggestion that the respondent was acquainted with the applicants was refuted by the respondent, although he did in fact forward a pre-application enquiry from the applicants to the planning department, and later made a telephone enquiry on behalf of the applicant's architect to establish the reasons for delay in dealing with the application. The respondent therefore had knowledge of the proposal, but a close friendship with the applicants would be required to constitute an interest in terms of the Code. The respondent was therefore not required to declare an interest given these circumstances.

18. Having considered the information that arose from my investigation, I concluded that, Councillor George Swapp had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
18 January 2007