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Complaint no. LA/Mo/59 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor John Hogg of Moray Council

1. Complaint number LA/Mo/59 was lodged by Mr and Mrs John Franklin ("the complainants") against Councillor John Hogg (Conservative) an elected member of Moray Council.

2. The complainants alleged that on occasions in 2002 and at a meeting of the Environmental Services Committee of Moray Council held on 18 June 2003 Councillor Hogg acted unfairly in relation to planning applications they had submitted regarding land they owned at "Whitehill", Burgie, Forres.

3. When their application for planning permission for a new house at Whitehill first came before the Environmental Services Committee on 2 October 2002, it was refused on the grounds recommended by the Planning Officer. At that meeting the respondent moved that an additional reason for refusal be added to the effect that the access might increase traffic movement and create noise detrimental to the amenity of the area particularly to the houses sharing the access. This motion was rejected by the Committee.

4. Prior to that meeting the respondent asked a Senior Traffic Engineer (STE) of the Council, to accompany him to look at locations which concerned the respondent. One of such locations was Whitehill. The STE subsequently wrote to the Development Control Manager (DCM) to the effect the proposed access was neither unsafe nor unacceptable, although a "safer" different route could be achieved. This was included in the Planning Officer's report to the Committee.

5. After the first application was refused the owner of the land around Whitehill and of the access road, working with the complainants, resolved the matters which formed the grounds of the refusal. However, he was approached by the respondent who wished to discuss the proposed access for the Whitehill development and in particular the proposal that a new different access be provided, notwithstanding that such an access had been the subject of an earlier planning refusal.

6. Whilst canvassing for the local elections on May 2003, the respondent met the complainants and he spoke to them about their proposed development at Whitehill. The complainants said the respondent said that he would not be participating in any discussion on a second application. The respondent denied this.

7. The complainants having resolved the grounds of the initial refusal submitted a second application. This was recommended for approval by the Planning Officer at the Committee meeting on 18 June 2003. At this meeting the respondent repeated his concerns over the access and moved that the application be deferred to afford the applicants the opportunity to submit an amended plan showing an alternative access and, if no such plan was submitted or if there were objections, the application should be referred back to the Committee for determination. The Committee so decided.

8. Subsequently the applicants confirmed that they wished their proposals to be determined as submitted on 18 June. At a meeting of the Committee on 6 August 2003 the respondent moved that the application be refused on the grounds that the proposed access route failed to comply with policies in terms of safety and amenity. Seconding the motion, Councillor Aldridge referred to the "safer and more appropriate" alternative access. Councillor Keith, seconded by Councillor Leslie, moved an amendment to approve the application as recommended, having particular regard to the consultation response from officers. On division there were 14 votes for the motion and 7 votes for the amendment; the motion was therefore carried and planning permission refused.

9. This refusal was the subject of an appeal and on 16 February 2004 the Reporter upheld the appeal finding that the proposed development was consistent with the local plan and that no exception to its provisions was justified by other material considerations. The Reporter said that, in the absence of any formal objection from officers, he could see no grounds for rejecting the appeal on the basis of road safety. He also said it seemed inconsistent of the Council to introduce safety and amenity issues for the second application, when these were not issues for the first application.

10. I considered that the decision by the Council to refuse the second application was inappropriate and was not sufficiently based on proper planning considerations. However the question at issue was whether the respondent's conduct in participating in the decision-making process on the application was in breach of the Councillors' Code of Conduct, which came into effect on 1 May 2003.

11. Prior to 1 May 2003, the respondent's involvement included taking a clear stance on the need for an alternative access route, encouraging the RTE to visit the site (this was inappropriate in the absence of the Planning officials), meeting the landowner of the access to discuss the access and to propose an alternative access to the west (this too was quite inappropriate) and discussing the proposed development with the complainants whilst the respondent was out canvassing.

12. Taking the respondent's cumulative conduct from the first application in 2002 to the refusal of the second application in August 2003, I considered there were serious question's about the extent it could be accepted that the respondent had acted - and could be seen to have acted - fairly and impartially and only on the basis of proper planning considerations in relation to the complainant's applications.

13. Having regard, however, to the fact that the Councillors' Code of Conduct only came into effect on 1 May 2003, I could not conclude that the respondent's conduct thereafter, by itself, which involved taking part in the Committee meetings on 18 June and 6 August 2003, amounted to a breach of the Code and found accordingly in terms of the complaint.

14. Having said that, I recorded my concerns about the respondent's inappropriate conduct in involving himself in detailed discussions, such as with the RTE and a local landowner, on the applications. I strongly advised the respondent to ensure that he rigorously applied the provisions in section 7 of the Code of Conduct dealing with individual applications in all future cases.

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