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Complaint no. LA/As/654 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors Debra Storr and Isobel Davidson of Aberdeenshire Council

1. Complaint number LA/As/654 alleged a contravention of the Councillors' Code of Conduct (“the Code”) by Councillors Storr and Isobel Davidson (“the respondents”).

2. It was alleged that the respondents had contravened the Code, in particular, the provisions of section 7 on Dealing with Planning Applications.

3. The person complaining (“the complainant”) alleged that the respondents were involved with a website under the title Ellon Focus and purporting to represent the views of Gordon Liberal Democrats; that this website contained links to websites expressing opposition to a proposed development by Trump International Golf Links Scotland at Menie Estate, Aberdeenshire, which was to be determined by the Formartine Area Committee of which the respondents are members, and, if granted by that body, referred to and determined by the Infrastructure Services Committee of Aberdeenshire Council, of which the first respondent is a member; and that by providing such links and inviting comment on the proposed development the respondents gave grounds to doubt their impartiality, and indicated or implied their opposition to the proposal.

4. The determination of planning applications is a quasi-judicial function performed (in the case of larger developments) by councillors, and requires strict compliance with the terms of the Code to ensure that decisions are properly taken and the parties are dealt with fairly. Actively supporting or opposing an application or pre-determining an application by members who will be called upon to determine applications is prohibited. This should not however be interpreted as restricting public participation, and this is highlighted by paragraph 6.1 of the Code which urges Councils to encourage appropriate participation by the public and other interest groups in the decision-making process.

5. Paragraphs 7.2 to 7.11 of the Code deal with the consideration of planning applications, and while it was appropriate to consider the present complaint against the general context of these provisions, paragraph 7.10 had specific relevance, viz:

7.10 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.

6. In essence the question I was required to consider was whether the actions of the respondents, in linking their political website to websites operated by other interested parties which included content opposed to a pending planning application, was in itself sufficient to give grounds to doubt the impartiality of the respondents in determining the application.

7. The planning application was submitted on 27 November 2006 and was therefore pending when the respondents' ‘ellonfocus' website was established. At that stage both respondents, as members of the Formartine Area Committee, and the first respondent in her additional role as a member of the Infrastructure Services Committee, were bound by the terms of paragraph 7.10 of the Code.

8. Neither respondent appeared to have given consideration, or sought advice, as to the content of the ‘ellonfocus' website as it related to the planning application submitted by Trump International Golf Links Scotland. The first respondent accepted full responsibility for the content of the website, and although I considered that greater formality should have been applied to ensure her agreement, I accepted that the second respondent played no active part in the design or content of the ‘ellonfocus' website.

9. The decision to include links to the websites which expressed opposing views to the proposed development was taken by the first respondent on the basis of her own assessment of the value of these sites as a means of expressing views on the proposals. It was her view that when the links were added both websites were relatively neutral in their views on the development, although she accepted that they were later characterized by opposing views. A link was also provided to the planning application which was published in full on the Aberdeenshire Council website. The application set out in detail, and at considerable length, the developer's proposals and could reasonably be interpreted as representing the merits of the development from the perspective of the applicants.

10. The text referring to the applicant's proposals as originally inserted by the first respondent on the ‘ellonfocus' website expressed a view that the respondents would be interested to read comments on the linked websites, but pointed out that it would be necessary to submit formal representations to the Council to have them taken into consideration. The reference to comments, and interest in reading them, did not seek to influence their nature, and I did not consider that it would be safe to assume that the nature of the linked websites was such as only to countenance views opposed to the development. Certainly the supportive or opposing nature of such comments was not stated on the ‘ellonfocus' website and there was no overt indication as to either respondent's view.

11. The action taken by the first respondent, after being alerted to the possible interpretation of the website links as implying a bias against the development proposals, appeared appropriate, although an alternative view might have been taken that the links should have been removed altogether. The first respondent expressed a view that the character of the linked websites had evolved into one which was more overtly opposed to the development since she first established the links from the ‘ellonfocus' site. This highlighted a risk attached to such links which should be monitored regularly to ensure their continued relevance and suitability.

12. The first respondent's contribution to one of the linked websites apparently announced her interest as a local councillor and did not state her own view of the application. I noted that this website was in its early stage broadly neutral towards the development proposals, and that a more polarised opposing view did not become evident until a later stage. Once again however there was a risk that comments, however impartial they might appear, added to a website which subsequently became overtly opposed to a planning application, could be interpreted as implying a bias towards the views expressed. I did not consider that the first respondent had such intent in this case however.

13. In considering this case I also felt it appropriate to examine other related issues which might have a bearing on the allegation, including the first respondent's other website under the domain name www.debrastor.org.uk, and the actions of both respondents during the meetings of the Formartine Area Committee and Infrastructure Services Committee.

14. In the case of the first respondent's personal website I noted that the text relating to the development proposals was impartial in nature and quite clearly laid out her position of being unable to state her own view prior to the meetings at which the application would be determined. The initial entry dated 18 March 2006 – prior to the submission of the planning application – referred to the financial resources of the developer as against the Council's planning policies. As a general view I would urge caution in the making of such comments, particularly where they are made in the context of an impending application. In similar vein councillors involved in the decision-making process should be wary of making press comment during the course of the application process, and in particular ensure that their consideration of applications, which should be restricted to planning issues, does not stray inappropriately into comment on the character or resources of the applicant.

15. The first respondent participated in the meetings of the Formartine Area Committee and then the Infrastructure Services Committee at which the application was determined. She also attended the departure meeting when representations were made by supporters and opponents of the development. Her voting at the Formartine Area Committee and the Infrastructure Services Committee showed a consistent approach in favour of rejecting the application. Having studied the first respondent's contributions to these meetings I found no evidence of improper or prejudicial comment suggestive of bias against the application. The second respondent attended only the meetings of the Formartine Area Committee. She voted to grant the application.

16. Having examined the actions of the first respondent in regard to the ‘ellonfocus' and ‘debrastorr' websites, I found no evidence that she overtly indicated or implied her support or opposition to the proposal, or declared her voting intention prior to the meeting at which the application was determined. I consider therefore that the first respondent had not breached the terms of paragraph 7.10 of the Code, and I found accordingly.

17. In regard to the second respondent I noted that her role in the ‘ellonfocus' was limited to agreeing to its formation, and that she was not consulted about the insertion of links to other websites. I considered therefore that the second respondent had not breached the terms of paragraph 7.10 of the Code and I found accordingly.

18. Paragraph 7.8 of the Code prohibits councillors from organising support or opposition, or advocating to promote a particular recommendation on a planning application. The complainant suggested that the links to the opposing websites on the respondents' website amounted to actively lobbying for the refusal of the application. While I considered that it was inadvisable to link the ‘ellonfocus' website to either the applicant's or objectors' websites, I was unable to establish that the respondents intended to encourage a particular approach to the application. The second respondent certainly had no involvement in the content of the ‘ellenfocus' website, and in fact voted in favour of granting the application. The first respondent, while contributing actively to the debate at the Formartine Area Committee and the departure hearing, posed relevant and pertinent questions and I could see no evidence of her expressing bias or prejudice towards the application. While some of those who made formal representations to the Council may have noted the link to the objectors' websites on the respondents' website, others may also have been referred to the developer's website through the same medium. No evidence was adduced to suggest that either respondent lobbied their colleagues in respect of the application and scrutiny of the voting at Formartine Area Committee and the Infrastructure Services Committee provided no evidence of the meetings dividing on political lines.

19. Having considered the information that arose from my investigation, I concluded that Councillors Debra Storr and Isobel Davidson had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

28 March 2008