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Complaint no. LA/AB/123 concerning potential contraventions of the Councillors' Code of Conduct by Argyll and Bute Council

1. Complaint number LA/AB/123 did not allege a contravention of the Councillors' Code of Conduct ("the Code") by any particular Councillor(s). Instead the complainant raised concerns about a strategic concordat with Scottish Power PLC which had been entered into by Argyll and Bute Council.

2. The person complaining ("the complainant") 'A' alleged that by entering to this concordat the Council had "irretrievably compromised the position of Councillors if or when they come to consider any application for planning permission for energy generation projects by Scottish Power PLC or any of it's subsidiaries". The complainant went on to submit "that the conclusion of this concordat even when it is expressed without prejudice to planning powers, amounts to an irretrievable compromise of independence for members of the Council and particularly those charged with making determinations on applications under the Planning Act. Put shortly, it would be quite impossible in the face of this concordat for a Council to take an objective and independent stance on, for example; an application for a Windfarm made by Scottish Power or any organisation connected with it. It would equally be impossible to deal objectively with a Windfarm application made, for example; by a commercial competitor of Scottish Power since there would be knowledge among the members that the Council as a body had already concluded a preferential agreement with Scottish Power". The complainant also expressed the view that it can be seen from the terms of the concordat, that Scottish Power has agreed to bestow certain financial and other benefits on Argyll and Bute Council and the communities within its area.

3. A helpful response was provided by the Monitoring Officer of Argyll and Bute Council, in this response he explained in entering into the strategic concordat the Council had very careful regard to its obligations and responsibilities as a planning authority, on the one hand against the legitimate aspiration to secure community benefits in respect of economic development and it's power to advance the wellbeing of it's area and persons within that area. Thus, the Council's intention and desire in entering into the concordat was to separate the securing of community benefit from the planning process and indeed following on from the concordat the Strategic Policy Committee of the Council agreed a policy in regard to the creation of the community trust funds for the benefit of the communities, and a voluntary scheme of payment from developers to the trust fund and to ALIenergy. Any financial support to communities given by a power utility is entirely voluntary and intended to be secured for a community trust and ALIenergy. Neither the concordat nor the Council stated policy provided for any payment to Argyll and Bute Council. ALIenergy is a company limited by guarantee with charitable status which was set up some three years ago and which works under a board of directors from all areas and backgrounds within Argyll. Two Councillors serve on the board. The Monitoring Officer added that it is the Council's intention that further concordats will be established with other utility companies and renewable energy companies not simply Scottish Power.

4. It is clear that the subject of this complaint fell outwith the remit of the Office of Investigations in that there was no averment that any Councillor or Councillors had individually or collectively contravened the Code of Conduct. Essentially the complainant was anticipating that - given the terms that the concordat - there will be a breach of the Code when the Council comes to consider applications for the developments in the future. That however is a different matter from the basis of the complaint.

5. The terms of the Councillors' Code of Conduct will however, require to be carefully considered by Councillors where there are monies falling to be dispersed to any community trust and to ALIenergy as a result of the Council policy and any concordat entered into between the Council and the utility company where that company is a applicant for planning permission and where financial support to a community may arise thereby. In such a situation a Councillor would require to form a view as to whether he or she has an interest to declare. Where it is clear that financial support may be directed to a community trust or to ALIenergy in terms of the Council's policy and any concordat and the Councillor is a trustee of either organisation then he or she may well require to consider whether to declare an interest and withdraw from any participation in the determination of the planning application. This situation has been acknowledged by the Monitoring Officer who has given members of Argyll and Bute Council advice to this effect.

6. Having considered all this information, I concluded that the complaint had not competently averred a breach of the Councillors' Code of Conduct by any Councillor and accordingly, that there had been no contravention of the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
16 February 2005