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Complaint no. LA/An/687 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Alex King of Angus Council

1. Complaint number La/An/687 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Alex King (“the respondent”).

2. It was alleged that the respondent had contravened section 7 of the Code (Dealing with Planning Applications), in particular paragraphs 7.2 and 7.3, namely not discharging his 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 made about his family connection to the Provost of the Council 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 by him of paragraphs 7.2 and 7.3 of the Code. The respondent considered his remarks to be justified.

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 in 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 area 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 an intervention by the respondent in the Committee’s deliberations about the complainant’s house.  The nature of this was to state publicly that the complainant was the son of the Council’s Provost and to allude to matters of alleged public perception about this matter and stating that the item had to deal with “in a firm manner”.

7. The basis of the complaint was that by making the remarks he did about the complainant being the Provost’s son, the respondent caused prejudice to the complainant in how the Committee determined the matter to the extent that he was treated more harshly and in specific contrast to another case before the Committee in which enforcement action was not taken despite a significant breach of planning conditions in the latter case. (The remarks were also stated to have had the alleged effect of tarnishing the good reputation of his mother the Provost. In that specific regard, in a related complaint, (ref.LA/An/660), relative to this matter I found that the Provost had complied to the fullest extent with the obligations incumbent on her in terms of the Councillors’ Code of Conduct to make suitable declarations of interest in this matter and to take no part in Committee deliberations thereon.)  It was alleged 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. 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. It had also to be borne in mind that the discharge of the planning duties and responsibilities of a local authority had always had a very high profile in any community. By its very nature it was a “public” process where much information on all applications was available and in the public domain during the entirety of the decision making process. Decisions made invariably had a significant impact on people’s lives. There was a critical need for decisions to be reached in an appropriate way that was clear, transparent and consistent. All applicants should receive equality of treatment and should not be dealt with more, or indeed less, favourably because of who they were. Public pronouncements by councillors participating in planning decisions needed at all times to be measured and consistent to assist in demonstrating such equality of treatment. 

9. While the respondent’s reported comments might have been seen by some as legitimate (what he said was true) and in the public interest, his highlighting of the complainant’s family link with the Provost was, at the least, questionable with his motives and impartiality being queried as his comments involved a political opponent. (The respondent’s decision to make public comment on the relationship between the Provost and the complainant had certainly been the subject of immediate criticism at the meeting by a fellow member of the Committee.) I found that the Council has no policy on naming, (or not naming), those involved in planning enforcement matters in reports to Committee and any assessment of the respondent’s remarks in dealing with planning decisions had to be done in that particular context. There was no specific policy or practice of the Committee against which the respondent’s remarks could be evaluated. There was also no evidence before me that the respondent’s remarks about the family link were such as to skew 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 relationship to the Provost were unnecessary, inappropriate and ill-advised but they were not so impliedly critical as to amount to apparent bias on his part or to undue influence on the other members of the Committee. I strongly urged the respondent to be particularly careful when considering making similar remarks in the future.

10. As indicated I found that the current planning practices of the Council were not entirely consistent in the presentation of information to Committee on enforcement matters. In some instances individual names had been included in documentation submitted to Committee and in other cases a simple reference to a property address was the extent of the identification given.  (The general context of this matter was, of course, that the details of individual planning applications are a matter of public record.) Accordingly, I made a recommendation to the Council that it reviewed its reporting arrangements for such situations and considered what adjustments, if any, were required.  I considered a measure of consistency in such matters would assist members of the Committee.

11. Having considered the information that arose from my investigation, I concluded that Councillor Alex King 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