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Complaint no. LA/Mo/29 Concerning an alleged contravention of The Councillors' Code of Practice by Councillor John Hogg of Moray Council

1. Complaint number LA/Mo/29 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

2. The persons complaining are Mr A and Mrs A ("the complainants") and they allege a contravention of the Code by Councillor John Hogg ("the respondent"). The Councillor is an elected member of Moray Council ("the Council").

3. The complainants allege that at a meeting of the Environmental Services Committee of Moray Council held on 21 May 2003 Councillor Hogg acted unfairly in relation to a planning application which they had submitted and in which they were seeking approval to convert a steading to 4 dwelling houses on their farm.

4. The complainants consider that Councillor Hogg may have breached section 3.3 of the Code which deals with a Councillor's relationship with Council employees and also sections 7.2, 7.3, 7.8, 7.9 and 7.10 of the Code all of which relate to dealing with planning applications.

5. For the purposes of this investigation, I carried out a number of interviews.

6. The Environmental Services Committee of Moray Council is comprised of the full Council. On 21 May 2003 the political composition of the Council was 5 Labour, 1 Liberal Democrat, 3 SNP, 1 Conservative (the respondent) and 16 Independent Councillors.

7. The application in relation to which the complainants have complained about the conduct of the respondent was one of a series of applications which they made in respect of the same site. It is necessary to make a brief examination of all of these applications in order to give proper consideration to the complaint and the response.

8. The first application which was made by Mr and Mrs A was submitted in December 2000 and sought planning permission to demolish the existing steading buildings and erect 4 new dwelling houses. There were a number of objections to this application which was refused on the basis that the proposal would be contrary to the local development plan policy. The application was dealt with in terms of the Council's Delegated Powers Scheme after consultation with the respondent as the local member and with the Chairman and the Vice-chairman of the Committee. At interview Mrs A stated that she has no quarrel with the outcome of this application.

9. In October 2001 a second application was made which took the form substantially of a resubmission of the first application which had been refused in March 2001. The second application was dealt with in the same way as the first and for the same reasons had the same result.

10. Thereafter an appeal was made to the Secretary of State under section 47 of the Town and Country Planning (Scotland) Act 1997. That appeal was unsuccessful and again at interview Mrs A stated that she now accepted the inevitability of the outcome of the second application and the subsequent appeal.

11. The third application was dealt with by the Environmental Services Committee on 21 May 2003 and was the application which led to the complainants making this complaint against the respondent. The important difference between this application and the earlier applications is that this application was to convert the steadings to 4 houses (not to demolish and rebuild). Because of the different nature of this application approval was recommended and the application was referred to the full committee and dealt with at the Committee Meeting on 21 May 2003. At that meeting the respondent spoke against the application and after voting the application was refused (see also paragraph 28).

12. In August 2003 a fourth application was submitted which was in similar terms to the third application and was to convert the steadings to 4 houses retaining existing walls. Once again officials recommended approval of this application. At the meeting Councillor Hogg spoke against the application which was refused by 12 votes to 11 with 1 abstention. It was after this decision that the complainants submitted their complaint which is, however, against Councillor Hogg's actings at the meeting on 21 May 2003. At interview Mrs A intimated that the Council's decision in respect of the fourth application will be the subject of another appeal.

13. At interview Mrs A stated that she is not seeking to identify individual incidents as breaches of the above sections of the Code but rather that she and her husband are of the view that by his actings on 21 May 2003 in relation to their planning application the respondent may have breached all or at least some of those sections.

14. However, Mrs A did state that in respect of any breach of section 3.3 of the Code she and her husband are of the view that the members of the Committee including the respondent should have followed the recommendation of the planning officials. Obviously elected members need not accept recommendations and I am, therefore, satisfied that there is no evidence of a breach of section 3.3 of the Code.

15. At interview Mrs A commented that remarks made by the respondent at the Committee meeting were similar in their content to the contents of the objections which had been lodged. Mrs A expressed concern about this and stated that she and her husband believed that the objectors and Councillor Hogg must be well known to each other. At interview the respondent denied that this was the case and I am satisfied that there is no evidence of any impropriety on his part in relation to the objectors.

16. Another matter which was raised by Mrs A is that she and her husband and their architect, while claiming that demolition of the existing steading and a rebuilding of new houses would be a better option than converting the existing steading into 4 new houses, at no time stated that conversion could not be achieved.

17. Mrs A also raised the important matter of two meetings which she had with Councillor Hogg. The first meeting which she stated probably took place in 2002 after the complainant's unsuccessful appeal to the Scottish Executive was by arrangement in that the complainants invited Councillor Hogg to their home to discuss the situation. Mrs A stated that Councillor Hogg attended at their home and had a discussion with her and her husband about their plans to develop the steadings. She stated that there was some detailed discussion of their plans and that she formed the view that Councillor Hogg had made up his mind that any application involving the construction of more that one house on the site would be inappropriate. The respondent has a slightly different recollection of the discussion which took place at this meeting which I deal with in paragraph 22. In broad terms however his position is that the discussion was less specific and dealt more with planning policy in general.

18. Mrs A also spoke of a second meeting with Councillor Hogg which took place in April 2003 when he attended at her home uninvited while canvassing in respect of the local authority elections which were to be held in May 2003. On this occasion Mrs A was accompanied by her mother-in-law. Mrs A's recollection of the discussion which took place at this meeting is similar to her recollection of what was said at the earlier meeting. Likewise the respondent's position is that only a general discussion on planning policy took place. In respect of this complaint, however, these discussions took place prior to 1 May 2003 when the Councillors' Code of Conduct came in to effect.

19. Before turning to deal with the specific responses of Councillor Hogg, there is one further matter which was raised by Mrs A. She stated that she and her husband believe that the respondent obtained support from other councillors by providing them with inaccurate information in relation to the complainant's third application. There is no evidence that this was the case and accordingly there is no question of there being any breach of section 7.8 of the Code.

20. The respondent confirmed that as he did not agree with the recommendation of the planning officials in respect of the complainant's third application, he arranged for the matter to be referred to the Committee. He also asked for a site visit to be arranged and attended this visit along with other councillors and at least one planning official. He added that it was clear from the visit that the steading was in poor condition and when asked about his expertise in such matters, he stated that he was not and never had been involved in the construction business but that in 1987 he had been elected to the Chartered Institute of Building for work which he had done in relation to the use of lime in buildings.

21. It should be noted that whereas Councillor Hogg at the Committee meeting on 21 May 2003 stated that the applicants in their appeal submissions referred to the existing buildings' poor state of repair and readiness for demolition and commented that the existing configuration was not well suited to conversion, the applicants' agent in fact stated that the buildings were not in good condition nor would the quality of life be the same due to the existing configuration of the steading buildings. He went on..."We understand from Moray Council's planning department that an application to redevelop the steading would be looked at favourably but the quality of the development would be poorer than the one proposed." At interview the respondent claimed that when speaking at the meeting on 21 May 2003 he had been "looking at probabilities in relation to what he said". It is clear however that he questioned the realism of retaining any of the buildings fabric as a basis for conversion and concluded that in light of all the evidence available to the Committee four new build dwellings configured on the plan of the original steading would be the likely end product.

22. At interview the respondent stated that he considers density to be at the heart of this matter and that so far as he is concerned, consistency of approach was important. In other words he has formed the view that the site is not suitable for development if that development involves the construction in any way of more than one or at most two houses.

23. In relation to meeting with the complainants in 2002 the respondent stated that he had attended at their home at their request and had explained the problem as he perceived it, namely that the number of houses was the issue and that perhaps one or two houses would be acceptable. When it was put to him that the complainants then began to discuss the possibility of conversion at the steading, he stated that in his view this discussion was merely hypothetical and that so far as he was concerned all the discussion was based on the local policy document which he had brought with him. He did concede however that as a consequence of the discussion which took place on that occasion, Mrs A may have formed the view that he had pre-judged their subsequent application. He stated "It is a thin line between being helpful and pretending not to be aware of matters." He did however indicate that he would attend such a meeting again in the future and would not consider it necessary to make any record of such a meeting.

24. On the other hand, in relation to the election time meeting in April 2003 - although this took place prior to the Councillors' Code of Conduct coming into effect - the respondent said that his first reaction when he arrived at the premises was that he should not be there in view of the pending planning application. The respondent did make a record of this visit and of another visit to another elector who also had a planning application pending at the time and at interview he stated that he now considers that in such circumstances he should avoid visiting any electors who have planning applications pending.

25. I am satisfied that the respondent attempted conscientiously to represent the interests of all the people he was elected to serve and to comply with his duty to consider issues on their merits. I do, however, doubt the wisdom of his attempt to rely to some extent upon the limited knowledge which he has of construction related matters and his comment at the meeting on 21 May 2003 that "In light of all evidence available to the committee four new build dwellings configured on the plan on the original steading would be the likely end product" could be seen as irrelevant. On this aspect the relevant issue related to the appropriateness or otherwise of the application to convert the steading to four houses as, if feasibility did become a future issue, a further application by the complainants would have been necessary before the demolition of the steading and the construction of four new build dwellings could have taken place. Having said all that Councillor Hogg - at the meeting on 21 May 2003 - advised the meeting that he had requested referral of the application to the Committee given that he did not agree with the recommendation and had requested a site visit to be undertaken in order that Members may see for themselves the proposal in context, on site and asses the impact of the proposed development and view the fabric of the existing building.

26. Thereafter Councillor Hogg referred to the history to the application relating to two refusals for four separate dwellings and a dismissed appeal. He referred to Policy L/ENV11 Countryside Around Towns (CAT) which presumes against development within the CAT unless it involves the rehabilitation, conversion, limited extension or change of use of existing buildings.

27. He also stated that whilst the proposal was to convert the steading, the applicants, in their appeal submission, referred to the existing building's poor state of repair and readiness for demolition, and commented that the existing configuration is not well suited to conversion. Considering these general references, and the structural defects clearly visible when councillors visited the site, Councillor Hogg questioned the realism of retaining any of the buildings fabric as a basis for conversion in the context of Policy L/ENV11 and concluded that in light of all the evidence available to the Committee four new-build dwellings configured on the plan of the original steading would be the likely end product.

28. For these reasons, Councillor Hogg, seconded by Councillor Aldridge, moved refusal of the application on the grounds that the development would be contrary to policies:

- S/ENV1 in that four new dwellings would have a material impact upon the environment in this location;
- S/ENV4A in that four new dwellings in this location would blur the distinction between the built up area and the countryside; and
- L/ENV11 in that on the evidence available this application would be likely to lead a very substantial element of inappropriate new-build.
As an amendment Councillor Burgess, seconded by Councillor Bisset, moved approval of the application as recommended.
On a division, there were 10 votes for the motion and 10 votes for the amendment, with 4 abstentions.

There being an equality of votes, the Chairman cast his casting vote in favour of the motion. Accordingly the application was refused on the ground that it did not comply with policies S/ENV1, S/ENV4A and L/ENV11 for the reasons detailed in the motion.

29. The grounds for Councillor Hogg moving refusal of the application are, on the face of it, adequate planning reasons and if the applicants had concern as to the validity or the appropriateness of that planning decision, then they had the right of appeal. They chose not to exercise that right in respect of that particular application (although they have subsequently appealed the decision to refuse permission for their fourth application).

30. I have, therefore concluded that, in participating as he did at the meeting on 21 May 2003 (including moving refusal of the application for the reasons as given in paragraph 27 above) Councillor Hogg did not contravene the Councillors' Code of Conduct.

31. In 2002 and in April 2003 Councillor Hogg entered into discussion with the applicants on their proposals for development. Whilst a local member can have an important role to play in the consideration of planning applications, councillors must be wary of entering in to discussions with applicants - or prospective applicants - as councillors may give an indication that they have reached or are reaching a view on the application before having the benefit of all the relevant factors which, in due course, will be set out in the planning officer's report and which will deal with the development plan and any material considerations. Councillor Hogg would be well advised to give careful consideration to entering into any such discussions in future cases to ensure that he complies fully with section 7 of the Councillors' Code of Conduct. In respect of this complaint, however, these discussions took place prior to 1 May 2003 when the Councillors' Code of Conduct came in to effect.

32. Accordingly, I have decided that Councillor Hogg has not contravened the Councillors' Code of Conduct in terms of this complaint and I find accordingly.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
25th August 2004