Information on Investigations

Which Sector? > Local Authorities > Moray Council > LA/Mo/190

Note of Decision Web Version

Complaint number LA/Mo/190 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Eric McGillivray of Moray Council

1. Complaint number LA/Mo/190 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Eric McGillivray ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, the provisions relating to the consideration of planning applications.

3. The person complaining ("the complainant") alleged that the respondent organised support against his application for planning permission to build a house at Hopeman Harbour; influenced the Planning Officer to alter his reason for recommending refusal of the application; and wrongly stated that Hopeman Harbour was not zoned for residential use.

4. The complainant sought permission to build a house on a site that he owned at Hopeman Harbour. Prior to submitting his application the complainant wrote to the Council enquiring about the possibility of acquiring additional land at the adjacent boatyard. The Council's Transportation Section expressed concerns regarding road safety and the amenity of the proposed house, and were opposed to the sale of the boatyard which might have alternative recreational uses.

5. In October 2004 the complainant contacted the respondent as the councillor within whose ward the harbour is situated, and informed him that he intended to submit a planning application. The respondent made it clear to the complainant that he could not express a view or discuss the matter further.

6. On 26 October 2004 the complainant submitted an application for outline planning permission. The application was not registered until 17 December 2004 as a more detailed site plan was required, but to prevent further delay it was treated as a live application and comments were sought from other Council departments.

7. Section 7 of the Code gives specific guidance on Dealing with Planning Applications, the underlying principles being requirements for councillors to treat applicants fairly, consider applications on objective evidence, and demonstrate transparency in reaching their decisions. Where councillors have a conflict of interest, the provisions of section 5 dealing with the Declaration of Interests are applicable.

8. The complainant asserted firstly that the respondent adopted a stance on his application which could be seen as prejudging the issue. This allegation was based on the involvement of the respondent in the meeting of the Burghead and Hopeman Harbours Advisory Committee on 18 November 2004, when he informed the meeting that the Transportation and Estates Sections of Moray Council had already submitted objections. The respondent expressed concern about the application and after some discussion the Committee agreed that a letter should be sent indicating similar concerns to those raised by the Transportation and Estates Sections and objecting to the proposal.

9. Where councillors organise support or opposition, or act as an advocate to promote a particular recommendation on a planning application, they must declare an interest and withdraw from the discussion on the application. The terms of the letter sent by the Harbours Advisory Committee could only reasonably be interpreted as being opposed to the application. The respondent's agreement to this course of action could be seen as compromising his ability to exercise independent judgment of the application when it came before the Environmental Services Committee. There was nothing to indicate that the respondent distanced himself from the decision of the Harbours Advisory Committee during their meeting, and the respondent was inevitably associated with that decision by the terms of the letter of objection. Given the position of the Harbours Advisory Committee, the respondent would have been under an obligation to declare his interest in the application at any meeting of the Environmental Services Committee of the Council dealing with the application.

10. The complainant said that the respondent did not declare an interest in the application until challenged on his participation at the meeting of the Harbours Advisory Committee during a telephone conversation between them on 13 January 2005. At interview the respondent suggested that he informed Councillor Wilson, the Chairman of the Environmental Services Committee, verbally on the previous day and in an e-mail to Mr Hilton and copied to the Chairman dated 14 January 2005 he explained he was registering an interest in the application due to his chairmanship of the Harbours Advisory Committee. The respondent did make a declaration of interest at the meeting of the Environmental Services Committee on 18 May 2005 and withdrew from consideration of that agenda item.

11. The first opportunity which the respondent had to declare an interest was at the meeting of the Environmental Services Committee on 18 May 2005. He did so and he accordingly was not in breach of the Code of Conduct. The fact that he earlier registered an interest indicated his intention to adopt the proper course of action at the appropriate time.

12. The complainant also alleged that the respondent placed pressure on the planning officer to alter his grounds for objection. In fact the only contact that the respondent had with that officer was a telephone conversation on 14 January 2005 during which Councillor McGillivray notified his interest in the application as a result of his chairmanship of the Harbours Advisory Committee. It was this conversation that prompted the e-mail later on the same date to Mr Hilton and Councillor Wilson. There is no evidence of pressure or influence having been applied, and the justification for the refusal recommendation is clearly stated in the report prepared for the Environmental Services Committee which was prepared by the planning officer. The objections raised by the Estates Section, and the complainant's response, were summarised in the report and provided a balance of views.

13. The complainant also stated that during a telephone conversation Councillor McGillivray denied that the harbour area was designated as being suitable for housing. Whether the area is so zoned or not is a matter for interpretation of the Local Plan, and given the non-prescriptive wording I did not consider that the respondent's expression of doubt on this point was unreasonable or could in any way be taken to amount to a breach of the Code.

14. As a result of dealing with this case, I observed that the Council might have wished to consider issuing guidance to the Harbours Advisory Committee (and any other similar committees) on the extent they can consider and submit representations on applications for planning permission and, in the event of them so doing, on the position to be adopted by councillors on the Committee (or committees) who may be in a position later of deciding on these applications at the Environmental Services Committee to ensure that these councillors can properly take part in these decisions, or otherwise.

15. Having considered the information arising from my investigation, I concluded that, Councillor Eric McGillivray had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
21 July 2005