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Complaint no. LA/Mi/626 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Peter Boyes of Midlothian Council

1. Complaint number LA/Mi/626 alleged contraventions of the Councillors' Code of Conduct (“the Code”) by Councillor Peter Boyes (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, paragraph 5.13 relating to the Declaration of Interests; and 7.2 and 7.11 relating to Dealing with Planning Applications.

3. The person complaining (“the complainant”) alleged that he informed the respondent about an unauthorised development carried out by a neighbouring proprietor, and that the respondent agreed to address the matter. When the development came to be considered by the Planning Committee as a retrospective application, the respondent stated to the Committee that there had been no objection from neighbours and proposed that the application be granted.

4. The issue I was required to consider was whether the respondent, in supporting the planning application to which the complainant objected, acted in a manner which was fair to the parties and did not detract from the duty to ensure that the development decision was properly taken.

5. Although the precise dates on which the complainant spoke to the respondent at Easthouses Miners' Welfare Club had not been established, it was apparent from the context that these encounters took place prior to the submission of the planning application in May 2007. As such, and leaving aside the informal nature and the venue, the complainant's approach was one in which he was legitimately expressing a concern to his ward councillor and drawing the respondent's attention to a possible planning enforcement issue. An elected member in these circumstances might reasonably be cautious as to the extent to which he commented on an issue which could at a later date come before the Planning Committee for determination. In this case no application had been made when the complainant approached the respondent but no criticism can be made of the latter's response. There was a disparity between the complainant who recalls that the respondent said he would look into the matter, and the complainant's assertion that he declined to comment at all, but neither response would have breached the Code. Indeed a view might be taken that it would be entirely proper for a councillor alerted to a possible planning enforcement issue to request the appropriate Council officers to make enquiries.

6. In the event, there was no evidence that the respondent took any action on the complainant's information, and this was consistent with the respondent's assertion that he declined to discuss the matter at all. The Council reacted promptly to telephone calls and a letter from the complainant's wife, by informing the complainant's neighbour (the applicant) that an application for retrospective planning permission was required.

7. At that stage the respondent became involved again when he received a telephone call from the applicant seeking his advice as to the requirement for planning permission. The respondent's telephone call to the Planning Enforcement Officer sought clarification on behalf of the applicant, and the general tenor of the conversation gave an impression of representing the applicant, to the extent of requiring a written statement of reasons by the following day as to why planning permission was required. A more appropriate course of action, which would have clearly met the requirements of the Code in distancing the respondent from a planning issue, would have been to refer the applicant to the Director of Planning for clarification of the legal requirement for planning permission, or to have passed on the applicant's query without endorsement. I did not however consider that the respondent's actions could reasonably be taken to be so inappropriate as to amount to a breach of paragraph 7.10 of the Code, and I found accordingly.

8. The question arose as to whether the respondent's support for the planning application could be seen as prejudgement or predetermination. The enquiry made on behalf of the applicant as to the requirement for planning permission, coupled with the request for the application to go before the Committee, and his support for its approval, could certainly have given this impression. However, when balanced against the respondent's input to the debates at the meetings of the Planning Committee on 14 August and 11 September 2007 he appears to have simply stated his view of the facts as he perceived them without embellishment. I did not consider that the respondent's input to these meetings detracted from the fairness of the process as required by paragraph 7.2 of the Code, and I found accordingly.

9. At the meeting on 11 September 2007 the respondent referred to similar applications which had been decided under delegated powers and sought consistency of approach in relation to garage roof terraces. On this basis I could find no evidence that the respondent sought to sway the debate at either meeting by unfairly representing the facts, and indeed it was at his suggestion at the initial meeting that the Committee agreed to defer their decision for a site meeting.

10. I also considered whether the respondent's acquaintance with the complainant and the applicant could be regarded as creating a declarable interest which would have required his withdrawal from consideration of the application. The respondent acknowledged that he was acquainted with both the complainant and the applicant, and that he was on first name terms with both. He was clearly aware that the complainant had objected to that part of the application which related to the proposed roof terrace, and likewise that he had responded to contact from the applicant by clarifying the requirement for planning permission. I noted however that the complainant's objection was only to part of the overall application, and that there was no overt evidence to suggest that the respondent in his actions sought improperly to influence the Planning Committee prior to, or during the course of, their consideration of the application. I considered that in the particular circumstances the respondent's acquaintanceship with neither the complainant nor the applicant could reasonably be taken to be one of close friendship and his conduct, therefore, did not amount to a breach of paragraphs 5.13 or 7.11 of the Code, and I found accordingly.

11. When the application fell to be considered by the Planning Committee on 14 August 2007 the respondent spoke in favour of the application. He was entitled to take such a view. The complainant was justifiably concerned to read the press report which indicated that the respondent had said that no objection had been raised by the applicant's immediate neighbour, and this could reasonably have been taken as a denial of objection from the respondent. The respondent explained that he was referring to the occupiers of another near by property, and in fairness the complainant's objection had been fully articulated in the planning officer's report and was thus available to the Committee – whereas the position of the other neighbours, which could have been for or against the application, was not stated. The minute of the meeting did not assist in ascertaining what was said by individual members, but recourse to the clerk's original summary notes showed that the respondent did indeed refer to the fact that an objection, which can only have been the complainant's, had been received. Furthermore, the respondent was not even present at the Committee meeting which determined the application.

12. Having considered the information that arose from my investigation, I concluded that Councillor Peter Boyes had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

12 February 2008