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Complaint no. LA/An/616 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Iain Gaul of Angus Council

1. Complaint number LA/An/616 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Iain Gaul ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular paragraphs 7.3, 7.8, 7.10 and 7.11 of the Code, relating to Taking Decisions on Individual Applications.

3. The person complaining ("the complainant") alleged that the respondent, having previously declared a non-financial interest (namely an association with an applicant for planning consent), contravened the Code by then participating in the consideration and determination by the Development Control Committee of Angus Council on 21 September 2006 of his planning application for the erection of a dwelling house on land behind 'Rockbreare', Cortachy Road, Northmuir, Kirriemuir.

The Association between the Respondent and the Applicant

4. The evidence indicated that the relationship between the respondent and the applicant was not close. They were neither related nor friends. It appeared that they had met as a consequence of official business infrequently over a period when the planning status of land behind 'Rockbeare' was a live issue. When approached specifically about the matter the respondent referred the applicant to officers.

5. The respondent had clearly given thought to the matter and drew a distinction between contact prompted through his activities as a councillor and relationships which arise from his personal life. His approach had been consistent when similar applications were previously under consideration by the Development Control Committee of the Council.

6. I have had occasion in the past to consider similar circumstances, for instance in case number LA/D/439. There I commented 'Councillors do not, however, inhabit a vacuum and in their everyday lives and particularly in the course of carrying out their duties, encounter many different people. As representatives of their communities they attract contact with others. These realities must temper their judgements when deciding whether a declaration of interest should be made'.

7. Although in this case a declaration was made, rightly in the interests of transparency, a realistic view needs to be taken to ensure the elected members can discharge their duties as councillors. Again as I observed in LA/D/439 councillors come into contact with a wide range of people and, if as a result their participation was unnecessarily constrained, the current system of local government decision would be rendered unworkable.

The Respondent's Participation in the Deliberations of the Development Control Committee

8. A review of the merits of the decision of the Development Control Committee in relation to the planning application 06/00735/FUL would not have been appropriate, except insofar as it assisted in the determination of the complaint. In that connection it appeared that the application was generally processed in accordance with the procedural requirements of Angus Council.

9. Those officers with a knowledge of the application, including the Head of Law and Administration who is also the Council's Monitoring Officer, the case planning officer (a qualified planner with more than 10 years experience) and the committee clerk (also an officer with substantial experience) whilst acknowledging that a decision contrary to the recommendation by officers was not the norm, did not regard the decision of the Development Control Committee in this case as sinister or perverse such as would in itself have raised doubts about the motivation of the respondent. Again on the evidence available to me, the respondent appeared to have, certainly in his view, reason to question the officer recommendation made and arguable grounds on which to base his amendment.

10. In the complaint comparison was drawn between the actions of the respondent and Councillor Leslie-Melville (another member of the Development Control Committee), inferring that the latter withdrew because of her similar association with the applicant and that the respondent should have followed her lead. As a matter of fact, however, the circumstances did not appear to support that argument. Councillor Leslie-Melville left the meeting for a short time and was consequently not present for the whole debate. It was for that reason, rather than any potential conflict of interest, that she did not further participate.

11. Ultimately in terms of paragraph 5.18 of the Code the conclusive test was whether, in the particular circumstances of this application, and knowing all the relevant facts, a member of the public acting reasonably would have considered that the respondent might have been influenced by the interest he declared in his role as a councillor and that it would therefore have been wrong to take part in the discussion or decision-making process.

12. In this case it seemed to me that the whole circumstances allowed the respondent, in conscience, to believe that, as he did, his continued presence would not fall foul of this objective test, and that his declaration of interest did not preclude his further involvement in discussion and voting. I should add that on a plain reading of the Code there is nothing which led me to the conclusion that there is a distinction to be drawn between 'discussion and voting' and formally making a motion or moving an amendment.

13. The complainant was clearly dissatisfied with the merits of the decision reached by the Development Control Committee, particularly given the planning history of the site which led her to anticipate a further refusal of consent. When she then sought to be reassured as to the procedural integrity of the decision-making process, it would have been more helpful if the planning department had referred her post-decision letters in April and May 2007 directly to the Council's Head of Law and Administration. As it was she was left unnecessarily to decide whether to rely on the Development Control Officer's view on procedural matters or to take up the invitation to separately contact the Head of Law and Administration herself.

14. I should say that I found no evidence that the respondent in any way organised support or lobbied a recommendation in relation to the application, or prejudged the issue contrary to sections 7.8 or 7.10 of the Code.

15. Having considered the information that arose from my investigation, I concluded that Councillor Iain Gaul had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer.

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

08 January 2008