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Complaint no. LA/OI/138 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor James Foubister of Orkney Islands Council

1. Complaint number LA/OI/138 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor James Foubister ("the respondent"). Councillor Foubister has been an independent member of Orkney Islands Council for the past 11 years and has been a member of the Planning Committee for that period.

2. It was alleged that the respondent had contravened the Code, in particular, the provisions in section 7 of the Code which refer to Dealing with Planning Applications.

3. The persons complaining ("the complainants") alleged that, prior to the meeting of the Planning Committee at which their application for the erection of a guest house development came up for consideration, Councillor Foubister had openly stated that he was against the development and had lobbied other councillors; that he had a personal vendetta against the complainants and this constituted an interest which he should have declared when the application was discussed at the meeting, and that in his comments at the meeting he referred to matters that were not material to the application.

4. The complainants' application had been recommended for approval by the Principal Planning Officer, mainly because it satisfied the Council's Local Plan policy which states that there will be a presumption in favour of proposals for tourist related accommodation.

5. Councillor Foubister rejected all of the allegations made against him. He stated that, in addition to the four formal objections which had been lodged against the development, he had received over twenty representations, all of them against the development. In response to these representations he had opposed the application when it came before the Planning Committee, on the grounds that it did not satisfy the Council's planning policies because of its location and the adverse impact it would have had on the local landscape. There were twelve members present at the meeting of the Planning Committee none of which spoke in favour of the application which was refused without a vote.

6. In response to a request for evidence that Councillor Foubister had openly stated that he was against the development and had lobbied other councillors, the complainants stated that they had no evidence, just the fact that only four councillors (out of twelve) spoke when the application was discussed at the Planning Committee. I did not regard the fact that only four councillors spoke as constituting evidence that supported the complainants' allegations concerning Councillor Foubister's conduct prior to the meeting.

7. It was not in dispute that there had been differences of opinion between the complainants and councillor in the past in relation to personal and business matters, some of which dated back to 1999. The complainants acknowledged that some of these differences had been resolved and Councillor Foubister regarded them as being no longer of any significance. I concluded, in relation to this aspect of the complaint, that the past exchanges between the complainants and Councillor Foubister did not constitute a declarable interest in relation to his participation in the consideration of their planning application.

8. Councillor Foubister's comments on the complainants' planning application at the Planning Committee on 1 September were witnessed by the Assistant Chief Executive and the Administrative Officer. They confirmed that, while Councillor Foubister's remarks were wide-ranging, they were relevant to the type of application that was before the Committee. Accordingly, I concluded that Councillor Foubister had not made comments that were not material to the application.

9. In summary, having considered all of the available information that arose from my investigation, I concluded that Councillor James Foubister had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
03 March 2005