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Complaint no. LA/As/910 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Isobel Davidson, Sandy Duncan, Jim Gifford, Allan Hendry, John Loveday, Rob Merson, Alisan Norrie, Gillian Owen and Anne Robertson of Aberdeenshire Council

1. Complaint number LA/As/910/JM alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Isobel Davidson, Sandy Duncan, Jim Gifford, Allan Hendry, John Loveday, Rob Merson, Alisan Norrie, Gillian Owen and Anne Robertson (“the respondents”).

2. It was alleged that the respondents had contravened the Code, in particular, paragraphs 7.2 and 7.3 on Making Decisions on Planning Applications.

3. The person complaining (“the complainant”) alleged that on 1 September 2009, the respondents, while sitting as members of Formartine Area Committee, determined five planning applications without having access to letters of representation, and thus failed to ensure that parties involved in the development process were dealt with fairly and the decisions properly taken.

4. The complainant informed me that the letters of representation had not been published on the Council’s website or copied to the Councillors with the agenda for the meeting.  My attention was also drawn to the fact that two members of the Committee had requested that consideration of the applications be deferred but that their motion had been overruled.

5. The Councillors’ Code of Conduct contains provisions on the consideration of planning applications.  In particular, paragraph 7.2 places a duty on Councillors to ensure that development decisions are properly taken and that parties involved in the development process are dealt with fairly; and paragraph 7.3 requires members to avoid impropriety and any occasion for suspicion or appearance of improper conduct.

6. The Code does not specify the procedure to be adopted by decision-making Committees and this will have developed by custom and practice having regard to planning legislation, central government guidance, and the regulatory framework laid down in Council Standing Orders. 

7. The content of representations submitted in relation to planning applications should be made available to the Committee members, but there is no statutory requirement for the actual correspondence to be copied to all members individually or given wider publicity.   

8. I was informed by the Council that the letters of representation submitted in relation to the relevant applications were available for viewing by members at the Ellon Planning Office from the date of their receipt.  On the date of the Committee meeting all the letters were taken to the meeting venue where they were again available for scrutiny.  Although it is practice to include copies of representation letters with the planning reports circulated to members prior to their meetings this is departed from where a significant number are received.  In such cases the content of the letters is summarized within the report together with a note that the original letters may be viewed at the Planning Office or meeting venue. 

9. This practice is recommended to Councils in Scottish Executive Planning Advice Note 40 which states that copies of all representations should be provided for the planning committee and summaries included in the planning report.

10. The complaint referred to the consideration of five applications for outline planning consent relating to land and properties adjacent to a golf development which had already been granted full planning consent.  The applications were detailed in individual planning reports.  Respectively 71, 75, 67, 75 and 58 letters of representation had been received as at 10 August 2009 when the reports were finalised.  The main points raised in these letters were summarized within a specific section of each of the planning reports.  Scrutiny of the reports showed that they each contained a very full summation of the issues, excluding comments about the applicant and his business which were not material planning considerations.

11. I considered whether the summation of the issues raised in the letters of representation were sufficient to satisfy the requirement of fairness placed on the members of the Committee. I noted from the minute of the meeting that the accuracy of the planning report summaries was not questioned, but that two Councillors sought a deferral of consideration of the applications to allow members greater opportunity to read the letters.  Following an opposing amendment this was put to a vote which resulted in the decision to proceed with the consideration of the applications as the viewing procedure was not unusual and the members had been given enough notice to make themselves aware of the representations. 

12. It is for each Committee member as an individual to judge whether they feel that they have sufficient information to allow proper consideration of the applications before them.  In this case the content of the representations was summarised within the planning reports, and the Committee was addressed by the planning officer, a representative of the applicants, and at least two objectors.   The planning officer recommended that each application should be granted conditionally and I was satisfied that she fully articulated her justification for these recommendations on the basis of relevant policies and logical reasoning.  I noted in particular that members were informed that the grant of outline planning consent would not prejudice their position in any subsequent consideration of compulsory purchase.

13. The minute of the meeting recorded that Councillor Storr, seconded by Councillor Johnston, moved that consideration of the applications be deferred to allow time for members to read and consider the representations.  Councillor Robertson, seconded by Councillor Merson, moved that the applications should be considered as the members had been given enough notice to make themselves aware of the representations.  I noted that the planning reports, in which the letters were referred to, were dated 10 August, and would have been circulated to members within a few days of that date; the agenda itself being publicly available from 25 August.  I considered that sufficient notice was given to the Committee members to acquaint themselves with the relevant issues both by scrutiny of the original correspondence and the comprehensive summaries provided by the planning officer.    I noted also that the two members who had unsuccessfully proposed and supported the motion for deferral continued to take part in the consideration of the applications and the vote.  

14. I was not in a position to assess the extent to which the individual members took account of the letters of representation, either in their original format or as summarized in the planning reports.  I noted however that the decision in each case was to grant the application in accordance with the planning officer’s recommendation based on a detailed consideration of the relevant policies and reasoning which took into account the material planning issues raised within the letters of representation.  The Councillors who responded to me stated that they had sufficient information on which to base their decisions and as this was essentially a matter for them as individuals I was unable to refute their position.  I am of course required to support findings on the basis of sound evidence which in this case did not suffice to establish a breach of paragraphs 7.2 or 7.3 of the Code of Conduct. 

15. Having considered the information that arose from my investigation, I concluded that Councillors Isobel Davidson, Sandy Duncan, Jim Gifford, Allan Hendry, John Loveday, Rob Merson, Alisan Norrie, Gillian Owen and Anne Robertson, had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW