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Complaint no. LA/E/918 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Stephen Hawkins of City of Edinburgh Council

1. Complaint number LA/E/918 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Stephen Hawkins (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions in paragraphs 5.1, 5.3, 5.4, 5.10, 5.15, 5.18 (Declaration of Interests), 7.2, 7.3, 7.8 and 7.9 (Dealing with Planning Applications). It was also appropriate to consider the allegations in relation to paragraphs 5.7, 5.9, 5.11, 5.14, 5.16 and 5.17.

3. The person complaining (“the complainant”) alleged that the respondent failed to declare a financial or a non-financial interest when he exercised his right, as a local ward councillor, to appear at meetings of the Planning Sub-Committee on 12 August and 14 October 2009, when a planning application submitted by the Portobello Partnership (in which the complainant is a partner) was before the Planning Sub-Committee for determination. The complaint also alleged that the respondent failed to indicate that he was a personal objector to the application, claimed to be speaking on behalf of three different bodies, rallied support against the application and generally failed to be open about his involvement with a planning application on the same site in 2006. The complainant made similar allegations regarding the respondent’s conduct at meetings of Portobello Community Council. (The complainant’s application was approved by the Sub-Committee after design features of the original application had been modified.)

4. It was the complainant’s contention that the respondent should have declared that he acted as an agent for an (unsuccessful) planning application for the erection of a house on the same plot of land in September 2006. The complainant also questioned how it was fair that the respondent was allowed to appear before the Planning Sub-Committee and speak against his (the complainant’s) application without declaring that he was a personal objector to the application.

5. In assessing the complaint it was relevant to emphasise that the respondent was not a member of the Planning Committee or the Planning Sub-Committee. When he appeared before the Sub-Committee he was exercising a right which is afforded to all ward councillors under the Council’s standing orders to attend Committees of which they are not a member. In such instances members have a right to speak on an issue but not to vote thereon.

6. The complainant’s principal allegation was that the respondent should have declared a financial or non-financial interest as a consequence of having acted as an agent in 2006 for a friend who wished to erect a two-storey house on the same plot of land which a business partner of the complainant later acquired and sought to develop. This allegation could be considered in conjunction with the complainant’s further allegations that the respondent failed to declare that he had submitted personal objections to the complainant’s application.

7. The respondent’s position was that, prior to the Planning Sub-Committee meeting on 12 August 2009, he spoke to the then Council Secretary and was advised by him that, in his opinion, there was no interest to declare. While he did not declare an interest, as a preamble to his representations to the Planning Sub-Committee meeting, he explained his pro bono work for the previous owner and, having done so, he did not feel it was necessary to repeat this at the meeting on 14 October 2009. He also indicated, at both meetings, that he had made a personal objection to the application as well as representing objectors’ views.

8. While I had no reason to doubt the veracity of the respondent’s statements I did not need to place reliance thereon to determine this part of the complaint. The key issues were that the respondent’s appearance before the Planning Sub-Committee was in his capacity as a local ward member; he was not a member of the Sub-Committee, had no voting rights and, therefore, no power to determine the complainant’s application. In addition, the respondent’s involvement with the 2006 application had been in a purely personal capacity and took place at a time when he was not an elected member of the Council. Apart from the fact that the complainant’s application and the 2006 application related to the same plot of land, there was no other connection between the two applications.

9. Having regard to all of these factors, I considered that there was no connection between the actual applications that constituted a declarable interest on the part of the respondent; neither did I consider that the respondent was under any obligation to state overtly that he was a personal objector to the complainant’s application. For the avoidance of doubt I would indicate that, even if the respondent’s involvement with the 2006 application had constituted an interest, I do not consider that he would have been under any obligation to declare it for the reason that he was not a member of the Planning Sub-Committee and had no power to determine the complainant’s application.  Accordingly, I found that the respondent has not breached paragraphs 5.7, 5.9, 5.11, 5.14 to 5.18 or 7.9 of the Code. (Paragraphs 5.1 and 5.3 are by way of introductory guidance rather than specific rules of conduct. As such they were not relevant provisions under which to consider this aspect of the complaint.)

10. The complainant suggested that the respondent may have had a financial interest in the 2006 application because the respondent’s client could decide to seek recourse for the loss of income incurred in having to sell the land at a lower price as the respondent (acting as agent for the application) had been unable to secure planning permission. As it was the Planning Sub-Committee which refused planning approval I found it difficult to understand how the original applicant, even if she had been so minded, could have attributed the decrease in the value of the land to the respondent. I did not consider that the respondent had a financial interest on the basis of the reasoning put forward by the complainant.

11. The complainant also alleged that, at the Planning Sub-Committee meetings on 12 August 2009 and 14 October 2009 the respondent claimed to be speaking on behalf of three different bodies, including Portobello Community Council and that, at meetings of the Community Council in February, April and November 2009, the respondent made no mention or declaration in respect of his role in the 2006 application when the complainant’s application was being discussed. The complainant also considered that, when his (the complainant’s) application was being discussed at meetings of the Community Council, the respondent should have made it known that the Community Council had not objected to the 2006 application.

12. I regarded the respondent’s statement that he indicated to the Planning Sub-Committee that the issues which he was raising were those that also concerned individual residents, Portobello Community Council and Portobello Amenity Society, as a credible explanation of what he conveyed to the Sub-Committee and I found that the respondent had not claimed to be speaking on behalf of three different bodies. In addition, for the reasons already outlined in paragraph 8 above I did not consider that the respondent was under any obligation to refer to his role in relation to the 2006 application when the Community Council was considering the complainant’s application or to point out to the Community Council that it had not objected to the 2006 application. Accordingly, I found that the respondent had not breached paragraphs 5.4, 5.10, 7.2 or 7.3 of the Code.

13. Within the complaint there was a broad allegation that the respondent failed to act in an open and transparent manner and that, as a result, his conduct could have been open to the appearance of improper conduct. The respondent  provided a detailed account of his conduct at meetings of the Planning Sub-Committee and of Portobello Community Council. I regarded this as a credible explanation of how he dealt with the complainant’s application. In addition, for the reasons outlined in paragraph 8 above, I considered that the respondent was under no obligation to refer to his involvement with the 2006 application. Having regard to both of these matters, I found that the respondent did not fail to act in an open and transparent manner and that his conduct was not open to the appearance of improper conduct. Accordingly, I found that the respondent had not breached paragraphs 5.4, 5.10, 7.2 or 7.3 of the Code.

14. The penultimate allegation was that many of the objections to the complainant’s application came from close associates of the respondent who were remote from the site of the actual planning application.  The complainant considered that a member of the public might reasonably have concluded from this that the respondent had some role in organising opposition to his application and that he could, therefore, be in breach of the provisions in paragraph 7.8 of the Code which state that a councillor should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular application. The respondent stated that he had never encouraged others to object to a planning application other than at a public meeting, that he had not checked to see who had objected to the complainant’s applications and that, in any event, the people identified by the complainant were not the type of people to be told what to do.

15. It was relevant to point out that the constraints imposed by paragraph 7.8 of the Code apply principally to councillors who have power to determine planning applications, which responsibility did not vest in the respondent as he was not a member of the Sub-Committee. Quite apart from this, I regarded this allegation as being of a speculative nature and the evidence quoted in support of it as unconvincing. Accordingly, I found that the respondent had not breached paragraph 7.8 of the Code.

16. The complainant’s final allegation was that by not declaring his own personal objection to his application the respondent opened up the perception that his attendance to speak against the complainant’s application could have been motivated by his own personal objection to it rather than merely representing the views of the very small number of constituents who objected to it.

17. The respondent stated that he advised the Planning Sub-Committee that he was a personal objector. I had already indicated that I regarded his evidence as credible. The respondent was entitled, in any event, to express his personal objections to the complainant’s application so there was no need for him to conceal this fact. Having regard to these factors, I did not consider that the respondent’s conduct was improperly motivated and I found that he had not breached paragraph 7.9 of the Code.

18. Having considered the information that arose from my investigation, I concluded that Councillor Stephen Hawkins had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

03 March 2010