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Complaint nos. LA/DG/538 and 539 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Patsy Gilroy of Dumfries and Galloway Council

1. Complaint numbers LA/DG/538 and 539 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Patsy Gilroy ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, section 5 of the Code which dealt with Declarations of Interest. Section 5.13 of the Code confirmed that "The interests known to you, both financial and non-financial, of relatives and close friends may have to be declared." The Code did not define "relatives" or "close friends", but did set out that the key principle was the need for transparency in regard to any interest which might (regardless of the precise description of relationship) be objectively regarded by a member of the public, acting reasonably, as personally affecting the responsibilities of the councillor.

3. The persons complaining, ("the complainants"), alleged that the respondent's conduct in respect of two planning applications amounted to a breach of the Code. Firstly, at a meeting of the Stewartry Area Committee of Dumfries and Galloway Council on 27 September 2006, the respondent declared an interest in a planning application for the erection of a 60 metre anemometer at Darngarroch on farmland owned by a relative. (The application at Darngarroch Hill was for a temporary Meteorology Mast for 18 months. This was described in the committee report as being required to measure wind conditions and for assessment of the potential for a future wind farm scheme.) Secondly, the respondent subsequently participated, as Chair, in the deliberations of the Area Committee in relation to the Blackcraig Wind Farm proposal which was being considered. The complainants advised that Blackcraig was some 8 miles from Darngarroch. The complainants considered that such contrasting courses of conduct were not competent. Particular reference was made to the casting vote used by the respondent in the Area Committee to express opposition to the Blackcraig Wind Farm proposal and to her subsequent vote against the proposal at the Council's Planning and Environment Committee.

4. The respondent provided a comprehensive account of her actions. She confirmed that prior to the meeting to consider the Blackcraig Wind Farm application, a briefing had been given by the Planning Officer on the issues of the "cumulative effect" of wind-farms in terms of the planning process. In that connection the Scottish Executive advice was that, in assessing cumulative effect, the Council was only permitted to take account of wind-farms which were already in existence, or which had been approved or those which were the subject of a current consultation. Any possible future application could not be taken into account by members and, specifically, account could not be taken of rumours to the effect that there were to be applications for other wind-farms eg Darngarroch Hill.

5. I received confirmation from the Council that:

a. When the respondent became aware that an application site was in the ownership of a relative, she sought advice on her position;

b. The Area Planning Manager did give advice to Area Committee members on "cumulative impact" of a number of wind-farms on the amenity of an area. The advice was that the Council could only take account of those which had been built, those which had formal approval and those which were the subject of a current application. Members of the Committee were advised to disregard from their consideration any potential applications for other wind-farms in the area. In so doing, he made specific reference to Darngarroch Hill.

6. Having regard to the terms of the Code, I found it was the responsibility of the respondent to exercise her judgment on whether or not to declare an interest in the circumstances. The evidence before me in this case was that as soon as the respondent realised that the application for the anemometer was in respect of land farmed by her relative, she sought advice from the proper officer of the Council and determined to declare an interest. She did so at the meeting on 27 September 2006 and left whilst the item of business was decided. She took no part on the decision reached. It was my view, in relation to this planning application, that the respondent complied, to the fullest extent, with the obligations envisaged by the Code on steps to be taken in dealing with the financial interests of relatives.

7. As regards the actions of the respondent in relation to the Blackcraig Wind Farm, it was clear that she did not declare any interest and fully participated in the decisions taken by the Area Committee. The application was a controversial one, involving a hearing which lasted almost a day. The six voting members of the Committee were evenly split on the decision to be taken and the respondent exercised her casting vote, as she was entitled to do as Chairman. The matter then proceeded to the Planning and Environment committee where the respondent's stance on the application gained majority support by 12 votes to 7. She did not however take part in the further full Council deliberation on the application, as she was on holiday.

8. The complainants' position in relation to this second application seemed to be that as the respondent had declared an interest in the first application, she should not have participated in considering the second application. They considered that the applications were somehow connected such that there was a matching obligation on the part of the respondent not to participate. There was no evidence before me of such a contemporaneous connection. The applications were for different facilities. Indeed, the officer advice to Councillors considering the second application was that there was no "cumulative effect" link which could, or should, be made with potential wind farm sites and Councillor Gilroy's response made clear she took account of that particular advice. It was my view that the circumstances of the second application were such that there was no material connection to the first one and that Councillor Gilroy, in participating (partially) in the Council's decision making processes, had not engaged in conduct which was prohibited by the Code.

9. Having considered the information that arose from my investigation, I concluded that, Councillor Patsy Gilroy had not contravened the Councillors' Code of Conduct.

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