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Note Of Decision Web Version

Complaint no. LA/PK/174 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Alan Livingstone of Perth and Kinross Council

1. Complaint number LA/PK/174 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Alan Livingstone (Liberal Democrat) ("the respondent").

2. It was alleged that the respondent had contravened section 7 of the Councillors' Code of Conduct relating to Taking Decisions on Individual Applications, and, in particular, with regard to Dealing with Planning Applications.

3. The person complaining ("the complainant") Councillor Alan Jack (Conservative), alleged:

• That the respondent acted unfairly by deciding not to agree to his request to withdraw the "Oudenarde" report, "Oudenarde" being a proposal for a major re-development in the Earn ward of Perth and Kinross;
• That the respondent's decision was improper as it curtailed the complainant's discussions and consultations as ward Councillor;
• That the moving and seconding of and voting on the item showed, when taken with press articles in which the respondent was reported as supporting the item, that the Committee decision was a political one; this being improper when considering planning applications.

The complainant further alleged in interview:

• That the Committee and therefore the respondent as Convener acted in procedural breach of planning law by not treating the paper as representing a "deemed dismissal" and requiring the planning matters to be considered from the beginning.

4. From the evidence I received I found that:

(i) The "Oudenarde "development has been under consideration for many years and had met with some difficulties and delays.

(ii) The Enterprise and Infrastructure Committee is a policy committee which may when acting properly within its terms of reference, make "political" decisions. The functions of the Committee, unlike the Development Control Committee, are not judicial or quasi-judicial. The Committee does not consider or decide planning applications or agreements or the development decisions or matters arising there from.

(iii) Late in 2004 officers decided to prepare and present a policy paper to the Enterprise and Infrastructure Committee in order to allow members to consider the up to date situation and determine policy.

(iv) Almost at the same time the complainant, who was naturally interested in the progress of the development as its impact on his constituency is likely to be significant, met the appropriate officers and discussed the paper in preparation. He took the view that the paper was incomplete or inadequate and would benefit from amendment. He thought therefore that the paper should be withdrawn from the meeting of 19 January 2005 to allow the further consultation and amendment he thought was required. None of the relevant parties ie officers or members agreed with him. The complainant made a formal request for the paper to be withdrawn but this was rejected by the respondent in his capacity as Convener of the Committee.

5. An "unfair" action would be one which was not equitable or honest or otherwise according to the rules including standing orders. Although the rejection was undoubtedly disappointing for the complainant I found no evidence to support it was inequitable, unfair or inappropriate. Given the policy functions of the Committee, it is undoubtedly led by the decisions or wishes of the Administration, but that is part of the democratic process. It appears that his request for withdrawal was simply refused as the respondent - supported by other members of the Committee - wished to approve the paper.

6. In the same way I found that, despite having the effect of curtailing the complainant's proposed further discussions and consultations involving him as the local councillor, the rejection of his proposal was not in any way improper.

7. With reference to the further matter of complaint raised by the complainant in interview relating to a "deemed refusal" this is a specific planning term used in relation to planning applications and had no relevance to the circumstances of this complaint.

8. Having considered the information that arose from my investigation, I concluded that Councillor Alan Livingstone had not contravened the Councillors' Code of Conduct.

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