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Complaint no. LA/Mo/437 concerning alleged contraventions of the Councillors' Code of Conduct by Councillor Andrina Taylor and Councillor Robert Wilson of Moray Council

1. Complaint number LA/Mo/437 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Andrina Taylor ("the first respondent") and Councillor Robert Wilson ("the second respondent").

2. It was alleged that the Code had been contravened by both respondents, in particular, the provisions relating to Declaration of Interests set out in section 5 of the Code

In relation to Dealing with Planning Applications section 7 gives (including paragraph 7.11) further direction on declaration of interests:

3. The persons complaining ("the complainants"), alleged that the first respondent -

a) as the local member required under delegated powers to consider a planning application submitted by the complainants, failed to declare an interest and endorsed refusal of the application; and

b) as a member of the Environmental Services Committee the first respondent had consistently voted against the approval of planning applications in Spey side, the refusal of which would benefit her family.

It was also alleged that the second respondent -

c) as Chair of the Environmental Services Committee, and knowing the personal circumstances of the first respondent, failed to ensure that the first respondent declared an interest when considering a planning application submitted by the complainants.

4. The First Complaint. The complainants founded this allegation on the grounds that the first respondent's former husband was a director of, and her daughters were shareholders, in a company that owned land adjoining the complainants' property. It was the complainants' contention that refusal of planning permission for their site could enhance the value of land owned by the first respondent's family, and that this potential created an interest which should have been recognised by the first respondent and debarred her from considering the determination of the planning application.

5. The directorship and shareholdings of her former husband's company were not disputed by the first respondent. Her lack of involvement in the management of the company during her marriage, and the absence of any continuing involvement in her former husband's business interests, led me to conclude that the first respondent had no financial interest in the outcome of the complainants' planning application.

6. The Code distinguishes between financial and non-financial interests, and these can extend to the interests of other persons. Paragraph 5.6 requires the declaration of any financial interest which is registerable under any of the categories listed in section 4. I was satisfied that the financial benefit alluded to by the complainants was purely speculative and that the advantage that might accrue to the owners of other potential development sites in the area were not dependant solely on the refusal of the complainants' application.

7. The Code advises that the councillors should consider whether the known interests of a spouse or cohabitee, relations or close friends should be declared. The key principle is the need for transparency in regard to any interest which might be objectively regarded by a member of the public, acting reasonably, as potentially affecting a councillor's responsibilities.

8. In this case the first respondent had been divorced from her former husband for 10 years. She derived no income from her former husband's business. The effect of the decision on the value of adjoining land was entirely speculative. I did not consider that it would be reasonable for a member of the public to regard the link to her former husband's company as creating a financial, non-financial or personal interest in an application to which that company was not itself a party, and I found accordingly.

9. I noted further that the land identified by the complainants as being owned by the company owned by the first respondent's former husband was in fact designated in the Local Plan as being suitable for development, while the complainants' site had no such designation and would require a divergence from policy to permit development.

10. Section 7 of the Code in essence requires fairness and impartiality in the consideration of planning applications. This relates primarily to decision-making within the context of a planning committee – the function undertaken by the Environmental Services Committee in Moray. I consider that fairness and impartiality should also apply where councillors have a role in endorsing applications determined by officers under delegated powers. The Scheme of Delegation within Moray actually devolves powers of grant or refusal to the Director of Environmental Services, who is however required to consult with the local member and Chair of the Environmental Services Committee in cases which fall within certain categories. The complainants' application was deemed by the Development Control Manager to be contrary to Development Plan policy and thus fell within the scope of his delegated powers. He passed the papers and his refusal recommendation to the first respondent as local member, and after consideration she supported his recommendation. It would at this stage have been open for the first respondent, had she identified an interest or disagreed with the recommendation, to refer the matter to the Environmental Services Committee. I was satisfied that no such interest existed, that the recommendation of the Development Control Manager was properly founded on Council planning policy, and that in supporting the recommendation the first respondent followed the appropriate procedure. I found accordingly.

11. The Second Complaint. The complainants alleged that the first respondent had consistently refused applications in Speyside, and that this refusal would have benefited her family by enhancing the value of development sites in which they had a financial interest.

12. This speculative allegation required to be considered against the actions of the first respondent in relation to applications coming before the Environmental Services Committee. A scrutiny of 114 applications considered at meetings of the Environmental Services Committee attended by the first respondent, did not support this allegation. Of the 15 Speyside applications considered by the Committee the majority were decided unanimously without a vote, and of the 3 occasions on which the first respondent was called upon to vote, she was in favour of approval of the applications.

13. In support of this allegation the complainants pointed to a statement made by the first respondent at a meeting of the Environmental Services Committee to the effect that she was opposed to any new development in Speyside. The first respondent recalled making a statement of this nature at the December 2004 meeting under explanation that it was a comment on the suitability of developments rather than an indication of bias which could be seen as predetermining her views on subsequent applications. The precise terms applied were dependant on memory and had not been recorded in the minutes scrutinised by the Investigating Officer. I did not consider that this remark, made at only the second meeting attended by an inexperienced councillor, could in itself be considered as a breach of the Code. I found accordingly.

14. The Third Complaint. I note finally that the complainants alleged that the second respondent, who is Chair of the Environmental Services Committee, breached the Code by virtue of his knowledge of the first respondent's personal circumstances and possible continuing interest in her former husband's business. Although my finding in relation to the first respondent negated this point it is appropriate to state that the Code places the onus on individual councillors to reach a judgement as to whether an interest exists. It is an entirely personal decision and the Code places no obligation on fellow-members to influence this judgement. Accordingly I found that there was no obligation on the second respondent to alert the first respondent to a possible interest.

15. Having considered the information that arose from my investigation, I concluded that, Councillor Andrina Taylor and Councillor Robert Wilson had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
15 September 2006