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Letter To Moray Council - Web Version

Complaint no. LA/Mo/94 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors of Moray Council

Dear

Ethical Standards in Public Life

I refer to my letter of 31 August last regarding the decision of Moray Council to refer a number of planning decisions, taken contrary to officer recommendations, for investigation.

Information supplied with referral

The information which the Council have supplied and which I have carefully considered includes:-

(i) your letter of 12 July 2004;

(ii) letter of 5 August 2004 from Mr Roderick Burns, Chief Legal Officer including -

(a) the Moray Development Plan: Monitoring Report 2003 together with the covering report to the Council's Environmental Services Committee on 23 June 2004
(b) the Moray Development Plan : Monitoring Report 2002;

(iii) letter from Mr Burns dated 18 August 2004 together with information list of the relevant planning applications and an analysis of voting pattern/Council decision in each case.

Matters referred to for investigation

The Council wish an investigation into the decisions which they have taken to grant a number of planning approvals where the planning officer's recommendations have been to refuse them; in the main these have been applications for new houses or house extensions.

The statutory position is that a planning authority, in deciding whether to grant or refuse planning permission, must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations (see section 37 of the Town and Country Planning (Scotland) Act 1997). Where, in making any such determination, regard is to be had to the development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise (see section 25 of the 1997 Act).
In terms of the Town and Country Planning (Development Contrary to Development Plans (Scotland) Direction 1996, as amended, a planning authority may grant planning permission for development that does not accord with the development plan provided they have publicly advertised details of the application and considered any representations made.

Under the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997, as amended, a planning authority must advise the Scottish Ministers of applications which mark a significant departure from an approved structure plan or an approved local plan. Guidance given by the Scottish Executive is to the effect that it is for the planning authority to judge in each case whether an application which conflicts with the development plan marks a significant departure, but in general such an application should only be notified if it is for development on a substantial scale or if it is likely to prejudice the implementation of the strategic objectives of that plan. In this context, it should be noted that, unless other criteria apply, e.g. conflict with an SSSI, planning applications for fewer than 10 houses need not be notified to Scottish Ministers.

Whilst, therefore planning applications for fewer than 10 houses would not normally be referred to Scottish Ministers, it may be appropriate in certain cases to do so if the granting of planning permission were to be likely to prejudice the strategic objectives of the development plan.

I do observe that of the 47 cases referred to me, 40 related to applications for a single dwelling house and 2 related to applications for four and six houses respectively. In your letter of 12 July, you indicate that the Council are allegedly responsible for 30% of the planning overturns by Scottish Councils last year and that this is based on an expected figure of 180 decisions each year across Scotland, which figure is set out in the Scottish Executive Consultation Paper: Rights of Appeal in Planning issued in April 2004 (paragraph 4.5.3 refers). I would however urge some caution in drawing any such conclusion based on the expected Scottish figure given that the Consultation Paper itself makes it clear that there are no collated national figures and the projection made was based on a small sample of planning authorities who provided information.

The Development Contrary to Development Plans Direction and the Notification of Applications Direction provide important checks in relation to applications which are being considered for approval contrary to the development plan and the Council may, therefore, wish to reflect on the extent to which they have applied the terms of the Directions in the cases referred.

Having said all that, the essential question for my purpose is whether any evidence has been put forward which might, on the face of it, indicate there may have been a breach of the Councillors' Code of Conduct on the part of any individual Member or collectively by a number of Members.

Based on the material offered up to me, I have found no such evidence.

Furthermore, there has been no specific complaint in respect of any individual application for planning permission and there has been no specific complaint libelled against any named elected Member.

I entirely appreciate that it is being suggested that all the cases should be investigated but I do not consider that it is right and proper for me to undertake such an exercise given that the reference is lacking in specification and speculative as to any misconduct to say the least. I am not persuaded that the public interest would be served by my embarking on such a roving commission.

Complaints appropriate for investigation

I should like to make it absolutely clear, however, that if I receive any complaint alleging misconduct on the part of any specific elected Members that they have, in relation to their actings regarding planning applications, been in breach of the Councillors' Code of Conduct then I shall investigate these complaints and shall do so in a fair and thorough manner.

I have in fact already received, investigated and reported on two such complaints in respect of an elected Member of Moray Council and I shall, of course, investigate any such complaints that might be received in the future.

Further guidance

I do appreciate that the Council might wish to seek further guidance on this matter generally and, whilst it is understood that Scottish Ministers have specific statutory responsibilities under the Planning Act in relation to their own involvement in planning applications, you might find it useful if, in the first instance at least, the appropriate officers of the Council were to discuss the matter with the Scottish Executive Development Department's Planning Division.

I should also commend to the Council the Scottish Executive's Guide to Training in Planning for Councillors and would suggest that the Council might also wish to commission a training programme based on the modules set out in the guide.

Conclusion

I regret that, for the reasons given, I am unable to undertake the general investigation requested by your Council but I do hope my comments and advice are of some assistance to your authority.

Yours sincerely

D Stuart Allan
Chief Investigating Officer