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Complaint no. LA/AB/571 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Bruce Marshall of Argyll and Bute Council

1. Complaint number LA/AB/571 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Bruce Marshall ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Accountability and Stewardship, Openness and Honesty in section 2, paragraph 5.13 (The Interests of Other Persons), paragraphs 5.17 and 5.18 (Effect of Declaration) and paragraphs 7.2, 7.7 and 7.11 (Dealing with Planning Applications).

3. The person complaining ("the complainant"), alleged that the respondent had not acted openly or honestly regarding the date on which he had passed his financial interest in Stronchullin Farm to his son and that this had relevance to his support for a planning application for an extension to Hunter's Quay Holiday Village. The complaint pointed out that the respondent had gone against the advice of the HoPS that the proposed development was contrary to many policies contained at National, Structure and Local Plan levels and against expert opinion that it would have an adverse effect on the Pipistrelle bat and red squirrel populations. The complaint questioned why it was necessary for the respondent to have a "private" consultation with the Planning Officer, outside the meeting room, during the course of the Area Committee meeting. It alleged that the respondent put forward his own views at the meeting instead of those of the public whom he is supposed to represent. The final allegation was that views expressed by the respondent towards certain businesses in the area, in his election leaflet for the local government elections held on 3 May 2007, gave rise to questions regarding his impartiality and allegiances when dealing with requests and applications from these quarters and brought into doubt his impartiality and stewardship.

4. The planning application from Cowal Leisure for an extension to Hunter's Quay Holiday Village was considered at a meeting of the Area Committee on 5 September 2006. At that meeting the respondent proposed an (unsuccessful) amendment in support of the application (subject to certain conditions advocating its modification) despite the fact that the HoPS had recommended refusal of the original application. The complainants were of the view that the respondent should have declared his interest in Stronchullin Farm when the planning application came before the meeting. They considered that, even though the respondent had passed his interest in Stronchullin Farm to his eldest son, the farm still remained in the family and no one would expect him (the respondent) to act against the interests of direct family. The allegation was that the respondent supported the application because the Holiday Village purchases produce from the farm and the farm places advertisments at the Holiday Village for outdoor activities. The complainants produced a copy extract from the Register of Sasines which showed that the formal transfer of the farm from the respondent to his son was recorded on 8 December 2005 and, therefore, that the respondent's financial interest in the farm had not ceased in 2003, as claimed by him.

5. The respondent stated that he signed the papers handing the business to his son in 2005 but that he ceased to take any profit from the business on 4 May 2003. (A copy of the full extract from the Register of Sasines showed that the entry date for the transfer of the farm from the respondent to his son was 8 December 2005.) The respondent acknowledged that Hunter's Quay Holiday Village is one of about 150 customers to which the farm supplies eggs and that he delivers eggs, on a very small scale, to help his son when he is busy. He also stated that his son advertises not just at the Holiday Village but widely throughout the area.

6. From the information available I was satisfied that the respondent did not have a financial interest in Stronchullin Farm when he voted in support of the planning application from Cowal Leisure. Whether that interest terminated in 2003 (as claimed by the respondent) or in 2005, as indicated by the entry in the Register of Sasines, was not material. The key point was that the respondent's financial interest in the farm had terminated before the planning application came before the Bute and Cowal Area Committee on 5 September 2006.

7. The further issues to consider were whether the fact that the respondent, on occasions, delivers eggs from his son's farm to Hunter's Quay Holiday Village and that the farm advertises outdoor activities at the Holiday Village, gave rise to a non-financial interest on his part. In considering this aspect I had regard to the fact that Hunter's Quay is only one of 150 customers to which the farm supplies eggs, to the occasional nature of the assistance given to his son by the respondent and to the fact that the farm advertises widely throughout the local area and not simply at the Holiday Village. I was satisfied that none of these factors was sufficiently material to create a non-financial interest and that no member of the public acting reasonably would regard these as matters impacting on the respondent's responsibilities as a councillor.

8. Having regard to the information in paragraphs 5 to 7 above I found that the respondent did not have a financial, a non-financial or a personal interest which he required to declare when the planning application from Cowal Leisure came before the Bute and Cowal Area Committee on 5 September 2006 and that he had not contravened paragraphs 5.13 or 7.11 of the Code. I also found that he had not breached the key principles of Openness and Honesty in section 2 of the Code.

9. It was relevant to point out that, even if the respondent had declared a non-financial interest this would not necessarily have excluded him from taking part in the consideration of the planning application as paragraph 5.18 of the Code permits councillors to participate in the discussion and voting if they, in conscience, believe that a member of the public acting reasonably would not consider that they would be influenced by the interest in their role as a councillor; the provisions of paragraph 7.11 of the Code are tempered by the terms of paragraph 5.18.

10. In relation to the environmental and wildlife aspects of the complaint the respondent's amendment in support of the application was accompanied by proposals for the re-design of the layout and for improved screening. He was satisfied that, with these changes, the development would not be visible from most vantage points and that there would be no detrimental impact on the environment. Having gone to some length to obtain advice from knowledgeable sources, he was also satisfied in his mind that the Pipistrelle bat and red squirrel populations would not be adversely affected by the proposed development.

11. Notwithstanding the conditions proposed by the respondent in his amendment, the Area Team Leader's continuing advice to the Area Committee was that approval of the modified application could leave the Council open to the risk of a legal challenge. I considered that, in the light of this advice and of the HoPS' recommendation of refusal, it might be considered that it was imprudent for the respondent to have advocated support for the application. However, I was satisfied that he had formulated his amendment after careful appraisal of the position. I was also satisfied that his decision to support the application had been taken in the wider interest of the Cowal area and in the genuine belief that the modifications which he had proposed would overcome the reservations which had led the HoPS to recommend refusal of the application. I found that the respondent's action in supporting the application had been properly considered and could not reasonably be taken to constitute a breach of the Code.

12. The Monitoring Officer and the Area Team Leader (Development Control) both confirmed that the meeting on 5 September 2006 was adjourned briefly to allow the respondent to consult with the latter, to ensure that his proposed amendment was competent. The Area Team Leader stated that the respondent had not put him under any pressure regarding his opposition to the application. His (the Area Team Leader's) main concern was that even with the respondent's proposed modifications the Council might still be open to challenge under an EC Directive on Protected Species. The Area Team Leader stated that when the meeting re-convened after the adjournment he advised the Committee of this risk. Both the Monitoring Officer and the Area Team Leader confirmed that it is part of the Council's normal practice to grant an adjournment where it is necessary for a Councillor to obtain advice regarding the competence of a motion which he or she wishes to propose. Based on the information provided I found that, in consulting with the Area Team Leader during the course of the Area Committee meeting on 5 September 2006, the respondent acted in accordance with the Council's approved practice. Based on the specific evidence provided by the Area Team Leader, I found that the respondent did not put pressure on that officer to provide a particular recommendation on the planning application and, therefore, that he did not breach paragraph 7.7 of the Code.

13. I recommended that, when a meeting is adjourned to enable a Councillor to discuss a motion relating to a planning application with a Planning Officer, the Chair of the Committee makes clear the purpose of the adjournment and the fact that it is in accordance with the Council's approved practice, so that the purpose of the discussion is not open to misinterpretation by the public.

14. The report by the HoPS indicated that there were 272 letters of objection and 47 letters of support relating to the planning application. Many of the concerns related to the ecological and visual impact of the proposed development on the woodland. The respondent acknowledged that it was an oversight on his part not to have highlighted the views of the objectors but said that he did mention that there were a large number of objections to the application. He said that he took the views expressed into consideration and considered that he had dealt fairly with the many opinions expressed to him over the two year period from when the application was first lodged.

15. A diligent Councillor will wish to acquaint himself or herself with the views expressed across the local community on a major planning application. Having done so, the Councillor is not under an obligation to represent or support the views of a particular individual or group when voting on the application. I considered that, having heard the views expressed by the local community and the facts presented at the Area Committee meeting, the respondent was entitled to form a personal view on the application based on proper planning considerations. The fact that the respondent adopted a different point of view to that of the objectors to the application did not, of itself, constitute misconduct. I found that the respondent's action in supporting the application could not reasonably be taken to amount to a breach of paragraph 7.2 or the key principles of Accountability and Stewardship in section 2 of the Code.

16. The final allegation was that views expressed by the respondent in an election leaflet regarding certain local businesses gave rise to questions about his impartiality and allegiances when dealing with requests and applications from these businesses and brought into doubt his accountability and stewardship. I took this allegation to refer to the following quotation in the leaflet and, in particular to the reference to Hunter's Quay Holiday Park:

"In Sandbank, after many stagnant years during and after the presence of the US Navy, there are real signs of strong business activity in and around Holy Loch Marina, Sandbank Business Park and Hunter's Quay Holiday Park. These businesses will ensure work for local people and future generations of our children."

17. I regarded the quotation by the respondent as a perfectly legitimate expression of his views on business activity in the Holy Loch area. I did not consider that, on any reasonable construction, it could be regarded as rendering him incapable of dealing in an impartial manner with any matter involving these businesses, in his role as a Councillor. I found that the views expressed by the respondent in his election leaflet did not constitute a breach of the key principles of Accountability and Stewardship in section 2 of the Code. In this context it was relevant to point out that the respondent had subjected himself to the ultimate test of accountability by offering himself for re-election at the May 2007 elections when he was elected as one of three members to represent the Cowal ward.

18. Having considered the information that arose from my investigation, I concluded that Councillor Bruce Marshall had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
17 July 2007