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Complaint no. LA/SB/653 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Nicholas Watson of Scottish Borders Council

1. Complaint number LA/SB/653 alleged a contravention of the Councillors' Code of Conduct (“the Code”) by Councillor Nicholas Watson (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, paragraph 4.21 (Registration of Non-Financial Interests), paragraphs 5.3, 5.9 and 5.19 (Declaration of Interests) and paragraphs 7.3, 7.10 and 7.11 (Taking Decisions on Individual Applications).

3. The persons complaining (“the complainants”) alleged that the respondent failed to register his interest in an organisation known as Save Scott's Countryside (“SSC”) as required, in their view, in terms of paragraph 4.21 of the Code and that, when considering a planning application from the complainants, in his capacity as a member of the Development and Building Control Committee (“the Development Committee”), for the erection of 37 houses at Darnick Green, Darnick he did not comply with the requirements of paragraphs 5.3 and 5.9 of the Code (Declaration of Interests). They also considered that by accepting membership of the Development Committee the respondent breached paragraph 5.19 (Frequent Declarations of Interest). More generally they considered that his conduct represented a breach of paragraphs 7.3, 7.10 and 7.11 (Taking Decisions on Individual Applications).

4. The first part of the complaint relating to the registration and declaration of interest turned on whether the respondent had, at the date he voted on the complainants' planning application, a registerable non-financial interest by virtue of being a member of SSC. It was the case that the respondent continued to be described as the Chair of SSC on that body's website, as recently as December 2007. However, the respondent was clear that he had resigned his membership of SSC as soon as he had been elected as a member of the Council in May 2007. He produced a copy of a letter which he claimed that he had sent to the Secretary of SSC intimating that he was giving up his membership and chairmanship of SSC because it was important for councillors to be seen to be impartial. In support of this he provided a copy of the minutes of a meeting of SSC held on 21 May 2007 which recorded his resignation from the organisation with effect from 8 May 2007.

5. The Monitoring Officer was clear in his recollection that the respondent had advised him by email, shortly after he was elected, that he had resigned from SSC, even though he was unable to locate the email in question. It was clear that the respondent appreciated that it would have been inappropriate for him to have continued as a member of SSC after he was elected to the Council and, notwithstanding that SSC appear to have failed to remove his name from its website, the preponderance of evidence indicated that he had resigned from that body as soon as had been elected to the Council. Accordingly, I found that the respondent did not have a non-financial interest relating to SSC which he required to register in the members' Register of Interests and that he had not breached paragraph 4.21 of the Code.

6. It followed that, as the respondent did not have a non-financial interest relating to SSC, he had no interest which he required to declare when he voted on the complainants' planning application. Accordingly, I found that the respondent had not breached paragraph 5.3 of the Code and, as he had no registerable interest in SSC, that he had not breached paragraph 5.9 of the Code.

7. It is undoubtedly the case that the respondent has a keen interest in development and, in particular, in promoting sustainable development in the Scottish Borders. It is neither unusual nor inappropriate for a member to have a special interest in a topic dealt with by a Committee of which he is a member (indeed a member may be appointed to a Committee because he has a particular interest in the functions of that Committee). The fact that a member has such an interest does not, of itself, give rise to the need to declare an interest each time the topic comes before the Committee for consideration. The respondent's interest is in the impact of development generally on the Scottish Borders rather than a personal interest in individual planning applications. The respondent's interest differs from, for example, the type of interest which a councillor would have if he himself was a building contractor. The former would not give rise to the need for frequent declarations of interest whereas the latter may well do. Accordingly, I found that, in relation to the respondent, the circumstances envisaged by paragraph 5.19 of the Code did not apply and that he had not breached that part of the Code.

8. The remainder of the complaint alleged breaches of several parts of section 7 of the Code relating to taking decisions on individual applications. In this context it was relevant to examine more closely the respondent's attitude to development. The respondent readily accepted that he is opposed to widespread development which is not sustainable. In particular, he regards development to support the construction of the Waverley rail link, which he believes would result in large numbers of persons commuting to work in Edinburgh , as being unsustainable. However, he was adamant that he does not have a closed mind to all development and that he is prepared to consider each planning application on its merits. The relevant minutes of the Development Committee showed, by way of example, that the respondent had not opposed planning applications for developments at Denholm, Jedburgh, St Boswells and Eyemouth, which indicated that his position is not one of blanket opposition to all development.

9. It was a relevant consideration that the respondent stood for election and was elected largely on the basis of his interest in, and his attitude to, development in the Borders. The views which he set out in his election leaflet on development were expressed in general terms and moderate language and included a reference to the need for sustainable and affordable housing. It was also a relevant consideration that his appointment to the Development Committee was approved by the Council in the full knowledge of his particular interest in, and his views on, development. There is, in any event, no reason why a councillor who has particular views on the type of development he or she perceives to be in the best interests of their area, should not serve on the Development Committee and especially so when those views have been endorsed by the electorate. Indeed it is highly desirable that the membership of the Development Committee reflects a broad spectrum of views on development.

10. I considered carefully the views which the respondent has expressed on development both in his previous capacity as chair of SSC and in his election leaflet for the local government elections in May 2007 and I regard them as legitimate views to hold. They are expressed in terms which are strategic rather than specific and are not prejudicial to individual planning applications. In considering the allegations made against the respondent I had regard to the fact that he stood for election largely on the basis of his views on development. I attached considerable importance to the fact that his views on development were a key factor in him being elected and that he was appointed to the Development Committee in the full knowledge of his attitude to development. I also had regard to the balanced way in which he expressed those views in his written response to my investigations and at interview. I concluded from this, and from the fact that he was able to cite examples of four planning applications which he had not opposed, that the respondent's attitude to development is not one of blanket opposition to all development and that he is prepared to consider individual planning applications on their merit. In summary, I found that while the respondent is not disposed to development which he considers to be detrimental to the Scottish Borders area he did not have or take a predetermined view of the complainants' application.

11. In relation to the complainants' application the respondent was entitled to move that it be refused. He did so, on the grounds that the application was contrary to several of the Council's planning policies, including the susceptibility of the site to flooding and the density of the proposed development. While the Senior Development Control Officer who dealt with the application was satisfied that these features could have been addressed in a way that would have met the Council's planning policies he stated, at interview, that the respondent was entitled to take the view which he did on the application. It was relevant to point out, in any event, that all 10 members of the Development Committee were minded to refuse the application differing only on their grounds for refusal. The respondent's motion to refuse was approved on the casting vote of the Chairman after an amendment (also to refuse) had also attracted five votes. In the circumstances the manner in which the respondent voted was not critical to the determination of the outcome of the application. It was also of interest to point out that after consideration of objections to the Council's Local Plan the Reporter recommended that the density of the development of the Darnick Green site be reduced to 15 units. This lended support to the concerns which the respondent had regarding the density of the proposed development.

12. The complainants alleged that the respondent had breached paragraph 7.3 of the Code. This paragraph requires members to avoid impropriety, grounds for suspicion and any appearance of improper conduct when dealing with planning applications. Having regard to the conclusion which I expressed in paragraph 10 above, I considered that the respondent was entitled to take part in the consideration and voting on the complainants' application and that there was nothing improper or untoward in the manner in which he did so. Accordingly, I found that the respondent had not breached paragraph 7.3 of the Code.

13. The complainants also alleged that the respondent had breached paragraph 7.10 of the Code. This paragraph states that if you propose to take part in the consideration of a planning application at a meeting of a committee of the Council, you must not give grounds to doubt your impartiality, that you must not make public statements about a pending application to ensure that you are not prejudging a decision which will be made at the meeting and that you must not indicate or imply your support or opposition to a proposal, or declare your voting intention, before the meeting.

14. There was no doubt that the respondent expresses his views on development in an open and public manner. However, the information arising from my investigation indicated that he confines those views to the broader aspects of development. I found no evidence that the respondent made any public statement, or declared his voting intention in relation to the complainants' application, prior to the Development Committee meeting on 10 September 2007. Indeed the minutes of the meeting held with the developer on 27 August 2007, to allow further consultation and negotiations with the local community on revised proposals, record that he offered no view on the proposals put forward so as not to fetter his ability to take part in the decision making process. In addition, as I indicated in paragraph 10 above, I found that the respondent did not take a predetermined view on the application. Having regard to these matters I found that the respondent had not breached paragraph 7.10 of the Code.

15. The final allegation was that the respondent had breached paragraph 7.11 of the Code. This paragraph states that if you have a financial, non-financial or personal interest in the outcome of a planning application you must declare that interest and refrain from taking part in the consideration of the application. There was no information to indicate that the respondent had either a financial interest or a personal interest in the complainant's application. As the respondent had terminated his membership of SSC when he was elected as a member of the Council he did not have a non-financial interest arising from that organisation and I did not consider that his attitude to development generally in the Scottish Borders constituted an interest that would preclude him from taking part in the consideration of the application. Accordingly, I found that the respondent had not breached paragraph 7.11 of the Code.

16. Having considered the information that arose from my investigation, I concluded that Councillor Nicholas Watson had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

15 February 2008