Information on Investigations

Which Sector? > Local Authorities>Perth and Kinross> LA/PK/554

Note Of Decision Web Version

Complaint no. LA/PK/554 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Robert Lumsden and Councillor Dr John Hulbert of Perth and Kinross Council

1. Complaint number LA/PK/554 alleged contraventions of the Councillors' Code of Conduct ("the Code") by Councillor Robert Lumsden ("the first respondent") and Councillor Dr John Hulbert ("the second respondent").

2. It was alleged that the first respondent had contravened the provisions relating to Conduct in the Chamber or in Committee, Declaration of Interests, Decision Making and Dealing with Planning Applications. It was alleged that the second respondent had contravened the provisions relating to Declaration of Interests, Decision Making and Dealing with Planning Applications.
3. The person complaining ("the complainant") alleged that thefirst respondent: (1) in considering a planning application submitted by the complainant at a pre-agenda meeting which concluded that the application could be determined under delegated powers had predetermined the issue; (2) at the meeting of the Development Control Committee at which the application was subsequently refused, failed to demonstrate fairness by acting in an abrupt or hostile manner towards the complainant's agent; (3) held a professional role as a director of a building firm which gave rise to a conflict of interest with his position as convener of the Development Control Committee, required repeated declaration of interests, and did not meet the requirement to avoid occasion for suspicion or appearance of improper conduct.

4.It was alleged that thesecond respondent: (4) in considering the said planning application failed to draw attention to the support of the local community council; and (5) showed predisposition or predetermination of planning matters by making supportive comments in his ward newsletter.

5. It was alleged that both respondents: (6) in deciding the applicant's planning application, voted in accordance with a political group decision.

6. The complainant sought outline planning permission to erect a dwelling house and outbuilding on a rural site. The application was initially refused under delegated powers as being contrary to the Council's Policy on Housing in the Countryside. The application was later resubmitted in substantially similar form, although with some minor alterations to the design.
7. Planning applications within Perth and Kinross Council fall within the purview of the Development Control Committee, of which the first respondent was convener, and the second respondent a member, at the relevant period. Under the Council's Scheme of Delegation those applications that fell outwith policy could be determined by the Head of Development Standards without reference to the Development Control Committee. The Head of Development Standards applied discretion in opting to refer certain applications to the attention of the Committee or to discuss their determination in advance with the Convener and Vice-Convener. On 11 August 2006 the complainant's re-submitted application was raised at a pre-agenda meeting when it was agreed that it should be refused under delegated powers.

8. On 28 June 2006 the Council resolved to amend the extent of delegated powers in relation to development in the countryside. The effect of this was that all applications that potentially conflicted with the Council's Housing in the Countryside Policy would henceforth come before the Development Control Committee for determination. Through an oversight, the alteration to his delegated authority was not communicated to the Head of Development Standards. The refusal of the complainant's application was therefore outwith his powers and required to be recalled for consideration by the Committee on 17 January 2007, when it was again refused.

9. The First Allegation - First Respondent Only: The issue to be considered here was whether the agreement by the first respondent to the complainant's planning application being determined under delegated powers at the pre-agenda meeting fettered his further consideration of it at Committee and constituted a declarable interest.

10. The recollection of the Head of Development Standards was that the brief consideration of the application at the pre-agenda meeting on 11 August 2006 was confined to generalities and did not extend to the specific details or merits of the proposal. He presented it in relation to the applicant's agent having complained about the previous determination of the application under delegated powers, and the wish of the applicants that the resubmitted application should go before the Committee. The first respondent was not required at the pre-agenda meeting to consider the application in detail, and did not have the facts before him to enable him to do so. The decision to proceed under delegated powers was administrative in nature and I did not consider that this could be seen as indicating predetermination on the part of the first respondent.

11. The decision to allow the application to be determined under delegated powers which had been withdrawn appeared to have been a genuine oversight, compounded by the fact that the Head of Development Standards was unaware of the change.

12. When the error in procedure was identified, the complainant's application, together with others so affected, was recalled for consideration by the Committee. The recalled applications were not specifically identified as such to Committee members. No distinction however was made on the agenda or in the presentation of the recalled applications when they appeared before the Committee, and the procedure followed was indistinguishable from other applications. I did not consider that the participation of the first respondent in discussion at the pre-agenda meeting of the process by which the complainant's application should be determined was such as to constitute a predisposition to refuse the application, or sufficiently detailed to give rise to an interest which would have debarred him from its consideration at the subsequent Development Control Committee meeting. I found accordingly.

13. The Second Allegation - First Respondent Only: In dealing with planning applications members are required to demonstrate fairness and not give rise to suspicion of improper conduct. Brevity, particularly in a meeting with a full agenda, is not in itself unfair or improper, but members should be aware of the impression that can be conveyed by impatience, undue haste or hostility towards an applicant or their agent. In this case the agent was informed by letter, and verbally, that her presentation was limited to five minutes. She exceeded that period, albeit marginally, and it did appear that the first respondent reacted to this in a rather abrupt or peremptory manner.

14. I did not consider that it was incumbent on the first respondent, as Convener, to prompt questions or debate, and in the absence of any indication from members that they wished to contribute, there was no requirement to prolong consideration of the item. The prior indication of an adjournment may have given an impression of curtailing or dissuading discussions, however I considered it was no more than giving members some advance notice of the proposed break. The impression of abruptness would quite reasonably have been compounded in the view of an interested party by the manner in which the agenda item was concluded. While it may well have been the practice of the first respondent as Convener to assess the intention or lack of intention of members to enter into debate by simply observing the demeanour of his colleagues and then making a brief concluding remark, it should be borne in mind that applicants, often unfamiliar with the process, might reasonably conclude that an overly prompt determination has been made.

15. The absence of questions to the applicants' agent or subsequent debate was not unusual in itself, and examination of the minute for the meeting on 17 January 2007 showed that several other applications were agreed in similar manner without proceeding to a vote. I did not consider on the evidence available to me that there was anything inherently unfair in the first respondent's individual consideration of the complainant's application, and indeed it should be noted that he was only one member of the Development Control Committee any of whom could have indicated dissent. I therefore found that the first respondent had not breached the Code in this respect.

16. The Third Allegation - First Respondent Only: In raising concerns as to the first respondent's suitability to participate as a member of the Development Control Committee the complainant made reference to the rules on declaration of interest contained in section 5 of the Code. The intention of these provisions, as set out in paragraph 5.1, is to produce transparency in regard to interests which might influence, or be thought to influence, a member's actions as a councillor.

17. In this case the complainant drew attention to the first respondent's employment with a local building firm in which he held the position of Small Contracts Manager rather than a director as alleged by the complainant. In that role the first respondent had responsibility for minor works and repairs as a separate division of the company's main construction business. The first respondent had quite properly registered this employment as a financial interest.

18. It was self-evident that applications made by the first respondent's employers in regard to their own development projects would constitute a declarable interest on the part of the first respondent as a member of the Development Control Committee. It might also be argued that applications by third parties relating to, or having a bearing on, existing or prospective developments by the first respondent's employers would also give rise to a declarable interest, at least to the extent that the first respondent was aware of the link.

19. The first respondent showed an awareness of the need to exercise caution in respect of applications submitted by his employers and since 1 September 2004 had declared an interest and withdrawn from the consideration of 22 applications. However paragraph 5.19 of the Code refers to the need for local authorities to retain public confidence in the impartiality of decision-making, and specifically states that members should not accept appointments to a particular committee if this requires frequent declarations of interests.

20. The proportion of meetings at which the first respondent declared an interest as a result of applications by his employer was relatively small, and I found no evidence of impropriety on the part of the first respondent. In the present case no link was shown between the complainant's application and the first respondent's employment. I did not consider that - given the whole circumstances - the terms of section 5 had been contravened and I found accordingly.

21. The Fourth Allegation - Second Respondent Only: The complainant alleged that the second respondent's failure to refer to the supportive position of the community council to his application showed unfairness. There was no requirement on the second respondent to highlight this to the Development Control Committee, and the report before the Committee, while not specifically mentioning the position of the community council did summarise the fact that ten letters of support had been submitted as against one letter of objection. I did not consider that the absence of comment by the second respondent could be considered as demonstrating unfairness in deciding the application and found accordingly.

22. The Fifth Allegation - Second Respondent Only: In support of this aspect of the complaint reference was made to a copy of the second respondent's ward newsletter dated November 2005. This contained a short paragraph relating to an application for planning permission submitted by the proprietor of a milkbar within his ward. The complainant took the view that by employing the words 'when it comes to fruition' the second respondent had anticipated that the application would be granted, and therefore indicated a predisposition on his own part to support the application in his role as a member of the Development Control Committee.

23. The second respondent accepted that he was the author of the text of the newsletter and that he knew the applicant concerned. He explained at interview that the wording was intended to describe the applicant's intention to promote the local area and its products rather than taken literally as an indication of the second respondent's support for the application.

24. I considered other issues of the second applicant's newsletter and noted a practice of summarising the impact of prospective developments in his ward. Members of decision-making committees must be mindful of the impression that may be created by prior comment, however brief, and exercise caution to avoid any appearance of predetermination or unfairness when called upon subsequently to consider an application within the formal process. While the use of the predictive word 'when' might better have been replaced with the conditional 'if', I do not consider that this was in itself sufficient to breach the Code in this case, and I found accordingly.

25. The Sixth Allegation - Both Respondents: In regard to the complainant's planning application the members of the Development Control Committee agreed unanimously with the recommendation contained in the planning officer's report. Accordingly there was no requirement for a vote and no division took place.

26. At the relevant date the Development Control Committee comprised members from all political groups represented on the Council, the first and second respondents being members of the Scottish National Party. No evidence was adduced of voting on any application in accordance with political allegiance, and examination of minutes of meetings of the Development Control Committee did not provide a basis for that contention. I found that neither the first or second respondent had breached paragraph 6.4 of the Code.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
08 June 2007