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NOTE OF DECISION WEB VERSION

Complaint no. LA/AB/787 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors  Donald MacMillan, Rory Colville, Robin Currie, Alison Hay, Anne Horn, Donald Kelly, John McAlpine, Douglas Philand, and John Semple of Argyll and Bute Council

1. Complaint number LA/AB/787 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Donald MacMillan, Rory Colville, Robin Currie, Alison Hay, Anne Horn, Donald Kelly, John McAlpine, Douglas Philand, and John Semple (“the respondents”).

2. It was alleged that the respondents had contravened the Code, in particular, provisions in the Councillors’ Code of Conduct set out in section 7 on Dealing with Planning Applications, and the key principles of Duty, Accountability and Stewardship, Openness, and Leadership set out in section 2. 

3. The person complaining (“the complainant”) alleged that Councillors MacMillan, Colville, Currie, Hay and McAlpine, in their capacity as members of the Mid Argyll, Kintyre and the Islands Area Committee, sought to unlawfully decide a planning application in the knowledge that it had not been advertised in accordance with statutory requirements.  The complainant further alleges that the above Councillors, together with Councillors Horn, Philand and Semple, having been made aware of the flawed legal procedure, sought to evade their duty to ensure that the application was decided according to law.  A reference to bias contained in the letter of 18 October 2008 was subsequently withdrawn by the complainant.

4. In considering this complaint I sought to divide the role of the planning officers from that of the respondents as elected members charged with the responsibility of deciding the planning application in which the complainant had an interest.  The two were inter-related in so far as the respondents, in considering the application at the Area Committee meeting on 6 June 2007, were reliant on the information presented to them.  Their judgement on the matter might have been supplemented by local knowledge and experience in the decision-making role – the latter to varying degrees and influenced by their background and local authority service.  While this observation did not detract from the responsibility placed on elected members it was clear that the primary source of information on which they based their decision was the written report and verbal presentation made to them by the Development Manager, together with procedural guidance provided by their legal adviser. 

5. The failure to place the statutory advertisements of the application had been accepted by the Council.  Clearly there was an intention to do so, the necessary texts having been prepared, but the fact was that the advertisements were not given public exposure.  Irrespective of the recommendation for refusal on the basis of insufficient information, the application was presented to the Area Committee for consideration and the statutory procedure should have been observed to ensure that the Committee was apprised of all relevant information, including representations, before making its decision.

6. The failure to advertise the application as a proposed development within a conservation area was referred to in the appendix to the planning officer’s report, together with an explanation.  That explanation suggested that the planners had deferred the advertisement pending the submission of information from the applicant, sufficient to convert the outline application to detailed format.  I did not follow that line of argument as in any event it would have required to be advertised and the explanation in the report, while accurately stating the position, had the effect of justifying the omission.  Importantly it did not make it clear that this would have implications for the Committee in conflicting with section 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.  The error was compounded by the erroneous statement that the application had been advertised as a proposed development on vacant land. I acknowledged that this was a genuine error based on a belief that the vacant land advertisement had been placed, but it contributed to an impression that the advertising flaw was inconsequential. 

7. The structure of the report presented to respondents was relevant in regard to the relative prominence given to the requirements of the policy which now required the submission of a detailed application, as against the flaw in advertising procedure.  The report extended to seven pages, the first page summarising the application, the recommendation, and two paragraphs under the heading ‘Determining Issues and Material Considerations’.  These paragraphs made no reference to the absence of advertisement which, in my view, given the unequivocal statement in section 65(3) of the 1997 Act, should have been given due weight as fettering the Committee’s ability to determine the application.

8. The second page of the report detailed the reasons for refusal of the application based on the failure to provide an adequate level of detail and thus failing to comply with the emergent Council policy and Historic Scotland guidance on development in conservation areas.  The subsequent five pages were described as an ‘Appendix Relative to Application’ and provided a fully argued explanation of the relevant policies, the proposal itself, method of assessment, and a section headed ‘Other Material Considerations’ within which reference was made to the advertising of the application.  While members of the Committee were thus provided with a comprehensive account on which to base their decision I considered that in this case the advertising issue was an issue having a bearing on the Committee’s ability to determine the application and thus should have been included under the ‘Determining Issues and Material Considerations’ heading on the first page of the report. 

9. Given the absence of any reference in the planning report or verbal presentation by the Development Manager to section 65 of the 1997 Act, and the restraint this would have placed on the Committee in deciding the application, compliance with the law would be reliant on the knowledge of the respondents as individual members.  There is no evidence that any of them, or indeed the Clerk, recognised that the effect of section 65 would be to prevent the application being determined at that meeting, but this did not imply a deliberate act on their part.

10. Paragraph 7.2 of the Code places a duty on members to ensure that development decisions are properly taken and the parties involved in the process are dealt with fairly.  It was clear from the responses to the complaint that the primary consideration of the members present at the meeting on 6 June 2007 was the effect of the policy and guidance requiring the submission of a detailed application for development proposals in a conservation area.  I did not consider that the respondents could be criticized in this respect.  While the complainant suggested that the policy did not entirely exclude the possibility of an outline application being valid, the discretion to approve such an application lay entirely with the Area Committee. The prima facie breach of section 65 would have required to be tested in another forum and did not in itself create a breach of the Code of Conduct. I did not consider that the respondents Councillors MacMillan, Colville, Currie, Hay and McAlpine in their determination of the planning application on 6 June 2007 had breached paragraph 7.2 of the Code, and I found accordingly.

11. Paragraph 7.3 requires members to act properly in their dealings with planning applications, and thus reduce the risk of legal challenge. In this case there was no doubt that there was a failure to advertise the application, and that the law as expressed in section 65(3) of the 1997 Act appeared to have the effect of preventing its determination.  Although the flawed procedure, in so far as it related to the advertising of a development in a conservation area, was drawn to the attention of the Committee members, its legal implication was not highlighted.  I did not consider it reasonable to assume that members should have such detailed knowledge of planning law.  I found no evidence that the respondents acted with impropriety in relation to the application, and I therefore found that Councillors MacMillan, Colville, Currie, Hay, Kelly, McAlpine, Philand and Semple had not breached the terms of paragraph 7.3. 

12. I considered the second element of the complaint in which it was alleged that the members of the Area Committee, when informed of the apparent breach of the 1997 Act, sought to avoid their responsibility to ensure that the application was decided according to law.  The complainant founded this allegation on the absence of positive action or indeed acknowledgement (with the exception of Councillor Colville) that the effect of section 65(3) of the 1997 Act should have been taken into account.  He placed the onus on the members to remedy their earlier decision but I was bound to say that he was plainly aware of the legal flaw when he addressed the Area Committee on 6 September 2007 and at that time (the application having been determined on 6 June 2007) well within the period allowed for appeal.  It might well have been argued that the Council, prompted by the complainant alerting them to the issue, should have taken the initiative at this point but I did not consider that there was any evidence that the individual members acted improperly or indeed had a duty under the Code to initiate action. 

13. The complainant pointed to four of the key principles underlying the Code as having a bearing on his complaint.  I did consider that the overall impression of leadership and fairness in dealing with the application would have been enhanced had the Council, possibly prompted by the members of the Area Committee when alerted to the complainant’s concerns, shown greater initiative in acknowledging that a procedural flaw had occurred.  The applicant (via the complainant in his assisting role) would thus have been relieved of the need to invoke various avenues of complaint.  I balanced this however against the clear and repeated advice given to the applicant that an outline application would not suffice due to the introduction of the new policy on conservation area applications, and the failure of the applicant to respond to a requirement notice seeking detailed information.  There is a responsibility on applicants to provide sufficient information to meet the planning authority’s reasonable requirements; in this case the applicant failed to meet these requirements, and was, in my view, unrealistic in his expectation that the application would be considered to be of such a nature as to allow the new policy to be set aside.  I did not, therefore, consider that the actions or omissions of Councillors MacMillan, Colville, Currie, Hay, Horn, Kelly, McAlpine, Philand and Semple conflicted with the key principles to an extent that they breached the substantive terms of the Code, and I found accordingly.

14. Having considered the information that arose from my investigation, I concluded that Councillors MacMillan, Colville, Currie, Hay, Horn, Kelly, McAlpine, Philand and Semple had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

12 March 2009