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Note Of Decision Web Version

Complaint no. LA/Fa/972 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor William Buchanan of Falkirk Council 

1. Complaint number LA/Fa/972 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor William Buchanan (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions of paragraphs 7.2 and 7.3 on Dealing with Planning Applications, and the key principles of Leadership and Respect set out in section 2.

3. The person complaining (“the complainant”) Councillor John Constable, alleged that on 9 February 2010 the respondent circulated a document which he described as a ‘statement of fact’ to other elected members, the Monitoring Officer, police, and applicants for planning permission which contained an untrue accusation that the complainant was biased against a pending planning application by Ecosse Homes Ltd, was disrespectful to the complainant, and could have misled and influenced other members of the Planning Committee in their consideration of the application.

4. The authorship and content of the ‘statement of fact’ were admitted by the respondent and the document was relied upon for its terms.  In opting to issue the document the respondent was motivated by being alerted to an assertion from Councillor Alexander, as relayed to him by Councillor Nicol, that cast doubt on the respondent’s impartiality as Convener of the Planning Committee. The respondent relied on the recollection of Councillor Nicol as to what Councillor Alexander had said, initially in a conversation overheard through a partition wall, and latterly in direct conversation with Councillor Nicol.  The content of the first page of the ‘statement of fact’ was therefore an accurate record by the respondent of the manner and content of the information relayed to him by a third party.  While Councillor Alexander dismissed the overheard conversation in its entirety, and disputed the precise wording he applied in his admitted dialogue with Councillors Nicol and Patrick, I was satisfied that the evidence was supportive of such a conversation having taken place.

5. The ‘statement’ proceeded to speculate as to how Councillor Alexander had arrived at a view that the respondent had acted improperly in applying his casting vote as Convener of the Planning Committee to grant the application by Manor Forrest Ltd.  In so doing the respondent conjectured that the complainant, Councillor Constable, had erroneously believed that the application was in fact one submitted for the nearby site by Ecosse Homes Ltd, a company whose directors were known to the respondent.  The respondent opined that Councillor Constable, who opposed the application, had formed a view that his vote in favour of granting permission was prompted by his acquaintance with the directors of the applicant company, Mr Meichan and Mr Cox.  The respondent did not explain how this was conveyed to Councillor Alexander but Councillor Buchanan had drawn the implication that Councillor Alexander had been in dialogue with the complainant.

6. This speculative element of the respondent’s ‘statement’ influenced the conclusion reached by Councillor Buchanan that Councillor Alexander had sought to exploit it as an opportunity to question his fitness to remain as Convener of the Planning Committee.

7. The complainant, a very experienced councillor with many years service as both a member and previous Convener of the Planning Committee, was quite clear that he was under no such false impression that the application considered on 27 January related to Ecosse Homes Ltd.  Given that he received the Manor Forrest planning report of 25 November 2009, attended the initial meeting on 2 December 2009, and received the supplementary planning report of 20 January 2010, it seemed on a balance of probabilities that he was fully aware of the location of the site and the identity of the applicant company.

8. Further weight was given to the complainant’s understanding of the application by the questions which he raised at the meeting of the full Council on 3 March 2010 when he sought to confirm that his amendment for refusal was in part based on a view that the development of the Manor Forrest site could potentially create a precedent for urban development in the countryside.  While this might not in fact have been the case, and different considerations might have applied to the consideration of the Ecosse Homes application, the issue of unacceptable intrusion into the countryside was highlighted in the planning reports and the complainant’s argument for refusal was fully in accord with the view of the planning officer.  The complainant was entitled to make this point in relation to the Manor Forrest application and there was no evidence whatsoever that he did so with the intention of prejudicing the subsequent consideration of the Ecosse Homes application.

9. Councillor Alexander stated that he learned of the respondent’s use of his casting vote in favour of granting the Manor Forrest application from a list of applications decided against planning officer recommendations provided to him by the Planning Department.  He could in any event have accessed it from the minute of the relevant meeting.  The respondent’s support for the application appeared to have been generally known in Council circles in the days following the decision and was still current when Councillor Alexander mentioned it in conversation with Councillors Nicol and Patrick.  It was by no means clear that in doing so Councillor Alexander had any serious intention to take the matter further and he had not done so since.  Given that the respondent was entitled to cast his vote as he did, and it was pertinent to note that five other members of the Committee voted in favour of the application, it was hard to see what action if any could have been contemplated, particularly as the respondent had already intimated his intention to declare an interest and withdraw from the consideration of the Ecosse Homes when it came forward in due course. 

10. Paragraph 7.2 places a duty on councillors dealing with planning applications to ensure that development decisions are properly taken and that parties involved in the process are dealt with fairly.  The complainant suggested that Councillor Buchanan’s ‘statement of fact’ could have misled other Planning Committee members and distracted them from proper material considerations.  The complainant did not specify a particular application but the proximity of the forthcoming Ecosse Homes application was the matter most immediately in contemplation.

11. Of the seven elected members to whom the ‘statement’ was copied by the respondent only three are members of the Planning Committee, one of whom was Councillor Nicol.  Given that the Committee is made up of 12 members, and the respondent’s obvious and somewhat tenuous speculation as to the link between the complainant’s opposition to the Manor Forrest application and Councillor Alexander’s subsequent remarks, I do not think that the ‘statement’ could realistically be regarded as a serious influence or distraction to the Committee and I find accordingly.

12. Paragraph 7.3 of the Code requires councillors to avoid impropriety, or give rise to any suspicion or appearance of improper conduct.  The complainant suggested that the respondent had ‘a certain involvement’ and ‘sympathy’ with the directors of Ecosse Homes and that this had motivated him to circulate the ’statement’.  I found no evidence to support that speculative contention.  Rather the respondent appeared to have been prompted to take this action to defend himself from unfounded gossip which threw doubt on his own integrity.  Had Councillor Nicol not alerted him to Councillor Alexander’s remarks, possibly made jocularly or mischievously, but nevertheless damaging to a fellow-member, the respondent would have had no cause to respond in this manner.  I noted in addition, and placed importance on the fact, that the respondent had acknowledged his link to the directors of Ecosse Homes prior to the involvement of Councillor Alexander on 8 February 2010, followed this up with written notification, and had every intention of withdrawing from the consideration of their application by the Committee.  I found that the respondent had not breached the terms of paragraph 7.3.

13. In regard to the key principles of Leadership and Respect I accepted that the respondent made an assumption as to the source of Councillor Alexander’s remarks and that elements of  his ‘statement of fact’ were in fact speculative.  While I did not endorse his actions I considered that the respondent had himself  been subjected to innuendo of impropriety and was entitled to set out his own position.  A more measured response might have been taken which would have avoided this complaint and its counterparts (LA/Fa/976, 977 and 978).  The respondent made an assumption on the basis of an overheard conversation relayed to him by a third party – but likewise the complainant attributed a speculative motivation for the respondent circulating his document.  Having regard to all the circumstances I did not consider that the respondent had shown a lapse of leadership or respect such as would breach the Code and I found accordingly.

14. It was of course unfortunate that both the Manor Forrest and Ecosse Homes applications, and potentially the third application submitted by Maghera Developments, became embroiled in this matter.  The application by Ecosse Homes and Maghera Developments were due to come before the Planning Committee on 24 March 2010 and had already been made known to those Committee members who attended the site meeting in respect of the Manor Forrest application on 2 December 2009.  Both applications were withdrawn prior to the 24 March meeting and it was hard to escape an inference that in the case of Ecosse Homes the respondent’s ‘statement of fact’ prompted this decision.  Likewise I did not consider that this was matter that justified referral to the police.  In summary the respondent’s action in so doing represented an escalation of what ultimately stemmed from a private and somewhat injudicious remark by a third party which, perhaps unintentionally, provoked a reaction by the respondent.

15. Having considered the information that arose from my investigation, I concluded that Councillor William Buchanan had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

31 August 2010