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Complaint no. LA/As/70

Concerning an alleged contravention of The Councillors' Code of Conduct by Councillor Alexander Buchan and Councillor Gerald Lumsden of Aberdeenshire Council

1. Complaint number LA/As/70 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Alexander Buchan ("the first respondent") and Councillor Gerald Lumsden ("the second respondent").

2. It was alleged that the respondents had contravened the Code, in particular, section 2 relating to Honesty, sections 5.14 and 5.18 relating to Declaration of Interests and section 7.3 relating to planning guidance.

3. The persons complaining ("the complainants") alleged that at the meeting of the Marr Area Committee of Aberdeenshire held in Braemar on 10 June 2003 at which an application for outline planning permission was under consideration, the respondents failed to declare their acquaintance with the applicant, took part in consideration of the issue, and conducted themselves in a manner which gave rise to suspicion of improper conduct.

4. The complainants reside at premises near Huntly which is bounded by agricultural land. The proprietor of this farm sought outline planning permission to erect a residential care home on land adjacent to the complainants' property. The complainants were opposed to the proposal as they felt it would adversely affect their own business plans, be detrimental to their amenity, and pose access difficulties. They lodged a formal objection and sought permission to address the Marr Area Committee.

5. On Tuesday, 10 June 2003 the planning application came before the Marr Area Committee at its meeting in Braemar. The respondents were both in attendance as members of the Committee. The complainants and applicant were also present and addressed the meeting.

6. Councillor Buchan spoke in support of the application, laying stress on the employment opportunities which the proposed development could provide in the rural community. He then proposed a motion that the decision on the application be deferred and advertised as a potential departure from policy. The effect of this would be that if no representations were received in response to the advertisement, authority would be devolved to the Head of Planning and Building Control to grant the application subject to appropriate conditions. The motion was seconded by Councillor Lumsden. An amendment was proposed and seconded that the application should be deferred pending a site visit.

7. On a vote being taken the motion was carried. Seven members, including the respondents, were in favour of the motion, and three supported the amendment. The application was duly advertised and as this resulted in further letters of objection it was resolved to hold a hearing before full Council. The application was subsequently refused at the meeting of the Marr Area Committee held on 9 September 2003.

8. The complainants have drawn attention to three areas of concern: a) the degree of acquaintance between the applicant and the respondents; b) the degree of support for the application by the respondents as indicated by Councillor Buchan's motion and its seconding by Councillor Lumsden; and c) their actions following the vote which indicated an element of congratulation or support for the applicant.

9. The respondents agree that they have known the applicant for many years, and in explanation point to the fact that they all reside in the same geographic area and have had involvement in the farming industry and shared membership of the National Farmers Union. The applicant's son had also worked within a firm of which Councillor Buchan had been a director, and Councillor Lumsden and the applicant are both members of the same church in Huntly. The applicant has no business or family relationship with the respondents, and they do not socialise together.

10. At the meeting on 10 June 2003 the first respondent spoke in favour of the application and states in explanation that he felt the application had merit and justified his support. The second respondent states that he was similarly minded and felt justified in seconding the motion. Five other members voted in favour.

11. It is alleged that immediately following the vote both respondents acted in a manner which gave rise to a suspicion of impropriety. Specifically it is alleged that the first respondent leaned forward in his seat, turned his face towards the applicant, nodded and winked at him. The second respondent is alleged to have made a gesture of success with his right hand and winked at the applicant. These actions were witnessed to varying degrees by the complainants and others, and the respondents themselves accept that they may have acknowledged the applicant.

12. The crux of this complaint is whether or not the relationship between the respondents and the applicants, and the alleged actions of the respondents following on the vote, were such as to raise a presumption or suspicion of an interest which might have influenced, or be thought to have influenced, their actions as councillors.

13. It is accepted that the respondents and the applicant are known to each other and that this acquaintance has subsisted for several years. Given that they are all long-term residents of the area and have shared membership of the farming community, the Church, and the National Farmers Union, it is inevitable that they will be known to each other. It falls to be considered whether the respondents had any non-financial interests (there are no relevant financial interests) to declare.

14. While it is probable that in a rural area councillors with farming interests will share an acquaintance with other members of the agricultural community, this does not dilute the responsibility on councillors to exercise sound judgement in applying the objective test as to declaration of interests. In this case there is an acknowledged acquaintanceship but there is no material evidence to suggest close friendship between the applicant and the respondents, and I have accordingly found that the respondents did not have interests to declare in terms of section 5 of the Code.

15. In regard to the alleged actions of the respondents immediately after the vote the evidence as to their precise actions and its motivation relies upon the observation and perception of the witnesses. Essentially it is to the effect that the respondents nodded or gestured acknowledgement of the applicant as he was about to leave the meeting. The respondents' actions were of a fleeting nature however and are capable of differing interpretations, particularly when seen from a distance of several metres. I note that Councillor Buchan's physical condition restricts his facial movements.

16. I have found that after the item of business had been concluded the respondents did turn towards the applicant, nod and gesture towards him, but that such conduct, inappropriate as it was, could not reasonably be taken to mean that the respondents had been biased in their consideration of the application.

17. Having said that, I consider that the respondents acted ill-advisedly and inappropriately in gesturing to the applicant during a public meeting which had been convened to deal with important business where all concerned were entitled to a fair and proper hearing, and that accordingly the respondents should reflect carefully on the terms of section 7 of the Code to ensure that their conduct at future Committee meetings is seen to be beyond reproach.

18. Having considered the information arising from my investigation, I concluded that, Councillor Alexander Buchan and Councillor Gerald Lumsden 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 October 2004