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Complaint no. LA/ER/606 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Mary Montague of East Renfrewshire Council

1. Complaint number LA/ER/606 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Mary Montague ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Integrity and Leadership in section 2, paragraphs 6.1 to 6.3 (Lobbying and Access to Councillors) and paragraphs 7.3 and 7.8 (Dealing with Planning Applications).

3. The person complaining ("the complainant") alleged that the respondent breached the Code by conversing with and generally giving support to a constituent who was an objector at an appeal by applicants (neighbours of the objector) to the Scottish Executive Directorate for Planning and Environmental Appeals ("the DPEA") against the imposition of an enforcement notice by East Renfrewshire Council. The complainant also alleged that, for the purpose of assisting the constituent the respondent engaged in conversation with the Council's Solicitor and Planning Officer and that she passed information obtained from these conversations to the constituent who was an objector. He also alleged that she made derogatory comments about the appellants to one of the appellants' witnesses.

4. In respect of an unrelated matter, the complainant alleged that the respondent assisted a member of a local Residents' Association to remove notices from a community notice board.

First Complaint

5. The substance of the first complaint was that the respondent assisted and supported the constituent in the presentation of her objection to an appeal by neighbours against an enforcement notice issued by the Council for the removal of gates and a fence, by accompanying her and providing her with information and advice at a public inquiry by the DPEA on 22 May 2007.

6. The constituent's concern was that, as a result of the appellants having erected a fence and (locked) gates between their properties' (in an attempt to prevent access to vandals) she was unable to gain access to the rear of her property. The respondent had written a letter back in October 2005 supporting the appellants' original planning application to the Council for the erection of the fence and gates in which she stated that she had been given an assurance that the appellants had given a key to the constituent to enable her to access the rear of her property. Her support for the constituent when she was making her objection at the public inquiry had been for the purpose of ensuring that this assurance was honoured, not to support the Council's enforcement notice for the removal of the fence and the gates.

7. The public inquiry to hear the appellants appeal against the Council's enforcement notice was a separate external process from the Council's internal regulatory processes for dealing with planning applications and enforcement notices. The provisions of section 7 of the Code apply to conduct relating to the Council's internal regulatory processes but do not apply to conduct relating to the public inquiry. The respondent was not, in any event, present at the public inquiry in her formal capacity as a councillor to give evidence. She was merely present to accompany and support the constituent which she was fully entitled to do. She was not obliged to adopt a neutral stance but, in fact, her overall position was one of support for the erection of the gates and fence provided other residents had access to the rear of their properties. I considered that, in dealing with this matter generally, the respondent acted in an even-handed and fair manner. I did not consider that the respondent's support for the constituent in any way impugned her integrity or raised any issue regarding her leadership and I found that the respondent had not breached the Code in relation to these key principles.

8. The respondent stated that she did not malign the character of the appellants when speaking to one of the appellants' witnesses, as alleged by the complainant, but simply said to him that the constituent had been upset by hurtful comments that had been made about her on a website and by her neighbours generally. Having regard to the equitable manner in which the respondent dealt with this matter from its inception I had no difficulty in accepting the veracity of her explanation in respect of this particular incident.

9. The complainant considered that the respondent's conduct represented a breach of paragraphs 6.1 to 6.3 of the Code. Paragraph 6.1 is a declaratory provision which requires the Council to encourage participation in the decision making process. Paragraphs 6.2 and 6.3 set out broad guidance on how councillors should conduct themselves in relation to approaches from individuals and organisations, rather than specific rules of conduct. I did not consider that the provisions of any of these particular paragraphs applied or were relevant to the type of conduct alleged by the complainant.

10. The complainant also considered that that the respondent had breached paragraphs 7.3 and 7.8 of the Code. These paragraphs fall within that section of the Code headed "Dealing with Planning Applications." The provisions of paragraphs 7.2 to 7.11 of the Code apply to, and are restricted to, conduct by councillors in relation to the Council's regulatory processes for dealing with planning applications, planning agreements or taking enforcement action. The rules laid down in these paragraphs apply to councillors when these matters are being dealt with and determined under the Council's regulatory powers. They do not extend to conduct which relates to matters or events which are outwith or beyond the Council's regulatory powers such as, in this case, a public inquiry by the DPEA. Accordingly, I found that paragraphs 7.2 and 7.8 were not relevant to the conduct complained of and that the respondent's conduct did not fall to be assessed thereunder. I added, in the interests of clarity, that the provisions in section 7 of the Code are to ensure that decisions on, amongst other matters, planning applications and enforcement notices are taken properly and fairly during - and only during - that decision process.

Second Complaint

11. The second part of the complaint alleged that the respondent assisted a member of a local Residents' Association ("Mr X") to remove notices from a community notice board. The complainant considered that this conduct represented a breach of the key principles of Integrity and Leadership in section 2 of the Code and of paragraphs 6.1 to 6.3.

12. The respondent acknowledged that in order to place a notice on the notice board regarding summer activities for young people she needed to create space and that to do so Mr X on her behalf, removed the two items in question. I considered that the respondent's action was consistent with the custom and practice which the Monitoring Officer confirmed had been in place for some time under which the local councillor and community groups had been able, freely, to place notices on the notice board. I found that the respondent's action did not constitute a breach of the Code and I did not, in any event, consider that this particular matter constituted a material complaint.

13. Having considered the information that arose from my investigation, I concluded that, Councillor Mary Montague had not contravened the Councillors' Code of Conduct.

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