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Complaint no. LA/PK/815 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Kenneth Lyall of Perth and Kinross Council

1. Complaint number LA/PK/815 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Kenneth Lyall (“the respondent”).  The complainant alleged that Councillor Lyall did not act impartially towards his planning applications and wrongly attempted to intervene in regard to demolition operations being carried out under a building warrant.  He alleged that the respondent breached the Key Principles of Integrity, Openness and Honesty in section 2.1 and provisions in paragraphs 7.2, 7.3, 7.7, 7.8, 7.9 and 7.10 of section 7 of the Code relating to Taking Decisions on Individual Applications. 

2. The complainant was the owner of a property in Aberfeldy in respect of which he submitted various applications for planning consent; most of the applications were for conversion of the existing property and for new build development in the grounds.  The complainant said that although Councillor Lyall met with objectors and responded to lobbying by them, he nevertheless took part in consideration of the complainant's planning application which was determined at a Development Control Committee meeting on 13 December 2007.  The complainant said that Councillor Lyall's robust argument for refusal of the application mirrored the objections raised by the objectors.  The complainant felt that, rather than declaring an interest and not taking part in consideration of the application, the respondent had chosen to manipulate the position of Deputy Chair and moved for refusal of the application.

3. The complainant further alleged that at a Committee meeting on 22 October 2008 concerning a subsequent planning application, Councillor Lyall, as Chair, incorrectly allowed two objectors to speak for longer than the prescribed time; also that he misled the Committee by giving incorrect information about the age of the existing property and the height of his proposed development.  In regard to building warrant matters, it was alleged that Councillor Lyall entered the demolition site without consent; that he threatened to stop demolition operations and intervened by prompting a Council enforcement officer to investigate and take enforcement action.

Planning Application determined on 13 December 2007

4. Dealing firstly with complaints relating to the planning application which was determined on 13 December 2007, Councillor Lyall confirmed that he had previously met with objectors in a private house.  He said it was his practice to do so; he was aware of the terms of the Code of Conduct and during such meetings with objectors or applicants, he does not give an opinion on an application.  Rather, he listens to views and gives advice on the planning process.  Councillor Lyall said he was aware of the need to stand down at the Committee meeting if, indeed, he had expressed any opinion.  He stated this was not the case and I accepted his position. (However, I make further comment about this particular aspect of the complaint in paragraph 8 below.)  While the complainant had described comments made by objectors who claimed Councillor Lyall voiced support for their objections, I took the view that the respondent could not be held responsible for comments attributed to him by others.  The notes taken by the Clerk at the 13 December 2007 Committee meeting did not reveal any striking similarity between the points made by Councillor Lyall and the objectors at that meeting. Although the complainant had alleged that the respondent manipulated his position as Vice-Chair to move for refusal at the meeting, I was unable to see a basis for this claim.  Councillor Lyall, whether he was acting as Vice-Chair or as a local member, was entitled like any other member of the Committee, to move for refusal. Regarding the complaints made in connection with the planning application which was determined on 13 December 2007, I did not consider that a breach of the Code of Conduct had been established.

Planning application determined on 22 October 2008

5. In regard to the planning application which was before the Development Standards Committee on 22 October 2008, I examined the allegations made against the respondent.  Standing Order 59(f) permits deputations to be heard.  The decision as to who would be allowed to speak was taken before the start of the meeting, whereas Councillor Lyall only took over as chair at the last item, which was the complainant's planning application. The objectors' deputations appeared to have been conducted in accordance with Standing Order 59(f) and although there was no official timing of speeches which could be referred to, there did appear to be broad equality of treatment judging by the notes taken by the Clerk. While the complainant considered that Councillor Lyall gave the Committee incorrect information, it appeared to me that he explained why he regarded the property as being one of the oldest in Aberfeldy and why he felt concerns about the height and proximity of the proposed new build houses to other existing houses. As far as Councillor Lyall's actions in the handling of the Committee meeting were concerned, I did not consider that he had breached the Code of Conduct.

Matters relating to building warrant for demolition.

6. After his planning applications were refused, the complainant applied for a building warrant for demolition of the existing property.  This was granted and demolition work started just before the Aberfeldy Conservation Area was approved.   The complainant was understandably concerned when he became aware of questions being raised as to whether he required planning permission for the demolition after the Conservation Area came into force.  He had obtained the warrant and was properly in possession of the necessary permission to carry out the demolition work.  The investigation showed that although Councillor Lyall enquired about the position regarding the demolition operations, officers confirmed that he exerted no influence in regard to the building warrant or whether planning permission was now required.  The police looked into the circumstances in which Councillor Lyall was said to have come on to the site during demolition works.  They took no action, and I did not consider that it was appropriate to pursue that matter further.

7. Conclusion: Having considered the information that arose from my investigation, I concluded that Councillor Kenneth Lyall had not contravened the Councillors’ Code of Conduct.

8. Comment: In this case I considered and observed that there is a real likelihood that the position of a councillor who attends a private meeting, whether with objectors or with applicants for planning permission, may be misinterpreted.  Councillors can only avoid giving an impression of bias if their actions are open and accountable.  That inevitably means that procedures require to be put in place and adhered to, in order to avoid allegations of unfairness and bias.  I recommended that the introduction of a procedural document by the Monitoring Officer should be considered and adopted by the Council.  It should provide Councillors with a process which they can follow which will allow them to serve the interests of their constituents, but will also protect their own position while doing so.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

29 July 2009