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Complaint no. LA/Mo/713 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor George McIntyre of Moray Council

1. Complaint number LA/Mo/713 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor George McIntyre (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Duty, Selflessness, Integrity, Accountability, Openness and Honesty in paragraph 2.1, together with paragraphs 3.15 (Confidentiality) and 5.3 (Declaration of Interests) and section 7 (Taking Decisions on Individual Applications).

3. The person complaining (“the complainant”) alleged that, in relation to a planning application for the erection of a house in respect of which the Director of Environmental Services recommended refusal, the respondent failed to provide him (the complainant) with an explanation of the material considerations on which he relied to support a departure from the Council’s approved planning policy and move approval of the application.  The complainant expressed concern that the respondent may have visited the site alone and that during the visit he may have met the applicant and discussed the proposal.  The complainant questioned how the applicant knew that he had contacted the respondent regarding the planning application and accused the respondent of having made others aware of his letters of grievance.  The complainant considered that, as a result of his conduct the respondent had breached the key principles of Duty, Selflessness, Integrity, Accountability, Openness and Honesty in paragraph 2.1 of the Code, together with paragraphs 3.15 (Confidentiality) and 5.3 (Declaration of Interests) and section 7 (Taking Decisions on Individual Applications).

4. The complainant’s allegations regarding a breach of confidentiality were based on the assumption that a neighbour who, apparently, was aware of the complainant’s letters to the respondent, could only have been so aware because the respondent or his office had released this information. The complainant’s allegations regarding the respondent’s failure to declare an interest were based on the fact that the respondent visited the site alone and may have met the developer and been influenced by him.

5. The respondent acknowledged that he visited the site alone and stated that he did not meet the applicant or anyone else during his visit. He also stated that he did not discuss the application with the applicant, or with anyone else, and that all the correspondence from the complainant had been filed at the Council headquarters in Elgin. He considered that he had no interest which he required to declare when the application was considered by the Environmental Services Committee.

6. The complainant’s allegations regarding a breach of confidentiality and a failure to declare an interest were speculative in nature. The respondent was entirely open about the fact that he had visited the site alone and provided an explanation as to why he had been unable to be present at the formal site visit. I had no reason to doubt the veracity of his explanations for this and for the other matters for which he provided explanations. Accordingly, I found that the respondent had not disclosed information about the complainant’s letters, that he had no interest which he required to declare and that he had not breached paragraphs 3.15 or 5.3 of the Code. It was relevant to point out that the respondent would have been perfectly entitled to speak to the applicant and that this would not have precluded him from taking part in the consideration and vote on the application provided that he had not expressed a view on the planning application or declared his voting intention prior to its consideration by the Environmental Services Committee.

7. The complainant alleged a breach of section 7 of the Code but did not identify the individual paragraphs within section 7 which he considered had been breached. His allegations were based on the fact that, due to his position as Convener, the respondent is very influential and that because other applications, which in his view gave rise to fewer contraventions of the Council’s planning policies, had been refused, this was indicative of a lack of impartiality, impropriety and a suspicion of improper conduct. The complainant did not produce any evidence to support these allegations and I regarded them as being speculative in nature.  I considered that the application had been dealt with in the proper procedural manner by the Environmental Services Committee. In addition, there was no evidence from my enquiries of any impropriety, improper conduct or failure by the respondent to treat parties to the application fairly and I found that the respondent had not breached section 7 of the Code.

8. The complainant also expressed concern that, because the applicant allegedly placed imaginary boundaries around the proposed site, approximately 4 metres in from any existing boundary, this obviated the need to issue neighbour notification and was the reason why there were no objections to the application. The respondent merely pointed out to the Environmental Services Committee, as a matter of fact, that there had been no objections to the application.  It is the responsibility of the Planning Department to ensure that an applicant complies with the procedures for seeking planning approval, including neighbour notification; it is not the responsibility of councillors. Accordingly, the respondent’s conduct did not fall to be considered in terms of the Code, in relation to this aspect of the complaint.

9. A key part of the complainant’s allegations was that the respondent did not provide him with material considerations of any substance or weight to justify a departure from the policies laid down in the Council’s structure plan and local plan, as required in terms of section 25 of the Town and Country Planning (Scotland) Act 1997.

10. The minutes of the Environmental Services Committee of 28 March 2007 recorded that, in moving approval of the application as an acceptable departure from policy, the respondent expressed the opinion that the proposed development would blend in with the countryside and would not necessarily change the character of the area. He also expressed satisfaction with the surface of the access track, visibility at the junction and access to and from the roads system. In response to my enquiries he confirmed that these were all factors which he took into account in supporting the application.

11. The policies laid down in Councils’ structure and local plans are not expressed in absolute terms but are open to a degree of interpretation. In considering any planning application, members are entitled to form a view as to whether it complies with the policies laid down in their particular Council’s structure and local plans or whether there are relevant and material considerations which, in their view, justify departing from the plans. I considered the matters referred to by the respondent as being relevant and material considerations which he, and the other members of the Committee, were entitled to take into account in considering and determining the planning application. In this context, it was relevant to point out that the respondent’s motion to approve the application received support from 15 other members of the Committee.

12. It was also relevant to point out that, in response to a written request from the complainant, the respondent wrote to him on 13 June 2007 setting out the reasons which he had put forward at the meeting of the Environmental Services Committee for departing from the Council’s approved policies and moving approval of the application. It was not the case, therefore, that the respondent had failed to provide the complainant with an explanation of the material considerations which, in the respondent’s assessment, justified approval of the application. Rather it was the case that the complainant considered that the material considerations put forward by the respondent were not of “any substance of weight” and disagreed with the Committee’s decision.

13. Having considered this aspect of the complaint I found that the factors taken into account by the respondent in moving approval of the application constituted relevant and material considerations. These factors were clearly set out in the minute of the meeting, which is a public document, and the respondent was not under any obligation to meet with the complainant or provide him with any further information to justify his support for the application. I also found that, in relation to this aspect of the complaint, and in relation to the complaint overall, the respondent had not breached the key principles of Duty, Selflessness, Integrity, Accountability, Openness and Honesty in paragraph 2.1 of the Code.

14. Having considered the information that arose from my investigation, I concluded that Councillor George McIntyre had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

20 May 2008