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Complaint no. LA/An/668 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Helen Oswald of Angus Council

1. Complaint number LA/An/668 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Helen Oswald (“the respondent”).

2. It was alleged that the respondent had contravened section 7 of the Code, in particular, paragraphs 7.2 and 7.3 (Dealing with Planning Applications), namely not discharging her duty to ensure that development decisions were properly taken and that parties involved in the development process were dealt with fairly, impropriety was avoided, as was any appearance of improper conduct.

3. The person complaining - a planning applicant - (“the complainant”) objected to public comments about him and attributed to the respondent, as reported in the local press, during a meeting of the Development Standards Committee of Angus Council held on 23 October 2007. The complainant considered that the respondent’s actions resulted in his application before the Committee being unfairly prejudiced as a result. The complainant considered that this action on the part of the respondent amounted to a breach of paragraphs 7.2 and 7.3 of the Code.

4. Section 7 of the Code deals in some detail with the conduct required of councillors when taking decisions on Individual Applications, (such as in the planning and licensing spheres).  Such work by councillors in committee is categorised in the special category of acting in a quasi-judicial capacity to reach decisions which can be challenged by appeal to the judiciary on the basis that they were wrongly determined.  The courts can overturn such decisions on a number of grounds as specified in the relevant statutes.  Such decisions must be taken fairly according to the legal principles of natural justice and it is the case, generally, that any immaterial consideration cannot be used as a basis for the decision reached or that any bias on the part of the decision-maker be shown.

5. The background to this case was that the complainant had an item of business before the Committee relating to a decision on whether or not planning enforcement action should be taken by the Council in respect of his private residence.  He had built the house but had not provided a vehicle turning head which had been a condition of the original planning consent for the house to be erected.  The complainant had previously sought permission to have this requirement deleted but the Council had refused such a request and that decision had been upheld on appeal to the Scottish Executive Inquiry Reporters Unit.

6. The press article complained of narrated two interventions by the respondent in the deliberations about the complainant’s house.  Firstly, she objected to remarks made by another councillor mentioning the family relationship between the complainant and the Provost of the Council.  I had no hesitation in assessing that aspect of her reported remarks was a wholly reasonable and legitimate point of view to make.  Secondly, she made comments about the non-attendance of the complainant before the Committee that day which suggested that he was holding the Committee in contempt and that he was ignoring the seriousness of the matter. It should be noted that there was no legal requirement for such attendance.  In interview, the complainant indicated that he had had only been provided with two working days notice of the meeting and could not attend at such short notice, (although he did arrange for his representative to attend).  Patently, the complainant was not “ignoring the seriousness of the situation” as alleged by the respondent.  On that basis, it was understandable that the complainant was dismayed that he was then subjected to such public criticism by the respondent.  At interview, the respondent was quite adamant that, irrespective of the legalities of attendance, she felt that anyone who was in the position of the complainant should have made all efforts to ensure attendance at Committee, having regard to the ultimate consequences to him/her of the powers available to the Committee. 

7. The basis of the complaint was that by making the remarks she did about the failure of the complainant to attend the Committee, the respondent swayed less experienced members of the Committee to agree to enforcement action being taken, which had the clear potential to lead to the ultimate sanction of demolition of the newly constructed house.  It was a fact that the composition of any council committee consisted of individual members who had had varying periods of membership.  I considered that length of membership, alone, could not ever be taken as indicative of decision making ability.  It was clear that specific training was arranged for the Committee membership after the election in May 2007 on the duties to be discharged and, as the Committee also sat frequently, I considered that members had a sound basis for being enabled to discharge their duties at the meeting on 23 October 2007.

8. The precise terms of the Code had to be considered in any assessment of the respondent’s alleged conduct.  Paragraph 7.2 sets out the obligation and provides “…..it is your duty to ensure that development decisions are properly taken and that parties involved in the development process are dealt with fairly.”  Paragraph 7.3 goes on to say “To reduce the risk of planning decisions being legally challenged, in your dealings with planning applications you must not only avoid impropriety, but must at all times avoid any occasion for suspicion and any appearance of improper conduct”. There was no evidence before me that the remarks about non-attendance were such as materially to affect the unanimous decision reached by the Committee.  I also paid note to the evidence of the Monitoring Officer that, in her professional opinion, the determination of the Committee was – in all the circumstances - within the range of decisions available to the Committee. In this connection, I considered that the remarks made by the respondent about the complainant’s failure personally to attend the meeting were inconsiderate, inaccurate and inappropriate (and implied a disrespect on the part of the complainant towards the Committee which was simply not the case) but that they were not so critical as to amount to apparent bias on her part or to undue influence on the other members of the Committee. I, however, strongly urged the respondent to be particularly careful about the legal rights and obligations of those affected by enforcement proceedings before making similar remarks in the future.

9. I also concluded that the giving of two working days notice of such an important meeting to any applicant could not readily be seen to be reasonable and I made a recommendation to the Council that it reviewed its notification arrangements for such situations and considered what adjustments were required.

10. Having considered the information that arose from my investigation, I concluded that Councillor Helen Oswald had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

14 May 2008