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Complaint no. LA/SB/592 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Kenneth Gunn of Scottish Borders Council

1. Complaint number LA/SB/592 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Kenneth Gunn ("the respondent").

2. It was alleged that the respondent had contravened the Code, in particular, section 5 on Declaration of Interests and section 7 on Taking Decisions on Individual Applications.

3. The person complaining ("the complainant") alleged that the respondent had breached paragraph 7.11 of the Code at the meeting of the Eildon Area Committee of the Council which had been held on 21 May 2007, and at which the respondent had moved that a planning application submitted by the complainant be refused. This action, the complainant alleged, had breached the Code, because on 9 April 2007, the respondent, who had been at that time the Chairman of the Selkirk and District Community Council, at the meeting of the Community Council held on that date, had been one of the Community Councillors who unanimously had recommended to Scottish Borders Council that the complainant's planning application should be approved. The application had been placed before the Community Council for consideration in the Community Council's capacity as a statutory consultee. The complainant alleged that the respondent had acquired a non-financial interest in his (the complainant's) planning application at the meeting of the Community Council at 9 April 2007, and that, as a consequence, he should have declared that interest and refrained from taking part in the consideration of the application at the meeting of the Eildon Area Committee which had been held on 21 May 2007.

4. The respondent denied that he had prejudged the planning application or had an interest in it which should have caused him to refrain from taking part in its consideration at the meeting of the Eildon Area Committee on 21 May 2007. He pointed out that he and the other members of the Committee had not received full details of the application, including the planning officer's report, until the application came to be considered at the meeting on 21 May 2007. He stated that he had an open mind when he dealt with the application and that he had made his decision based on its merits. He pointed out that, based on the information which had been available to him on 9 April 2007, as a member of the Community Council, he had voted to recommend the approval of the application, whereas, with the benefit of the fuller information which had been available to him on 21 May 2007, as a member of the Eildon Area Committee of Scottish Borders Council, he had taken the opposite view on the merits of the application. The respondent stated that in those circumstances, he did not consider that any question of a breach of the Code arose from his actions on 21 May 2007, and that he had not considered declaring an interest and refraining from taking part in the consideration of the application or seeking advice in relation to his position in respect of the application.

5. It was clear that the respondent was one of the Selkirk and District Community Councillors who, on 9 April 2007, approved the complainant's planning application. It was also clear that, as a member of the Eildon Area Committee, on 21 May 2007, the respondent had moved that the complainant's planning application be refused and that motion had been carried by 7 votes to 3. In order to decide whether the respondent had breached the Code, I had to decide whether he had acquired an interest in the complainant's planning application on 9 April 2007 which should have led to him declaring that interest on 21 May 2007 and refraining from taking part in the consideration of the planning application. The rules on declaration of interest are intended to produce transparency in regard to interests which might influence or be thought to influence the actions of a councillor. Paragraph 5.2 of the Code states: - "It is your responsibility to make decisions about whether you have to declare an interest or make a judgement as to whether a declared interest prevents you from taking part in any discussions or voting. You are in the best position to assess your personal circumstances and to judge how these circumstances affect your role as a councillor in regard to a particular matter. You can, of course, seek advice from appropriate Council officers or from other sources which may be available to you. In making decisions for which you are personally responsible you are advised to err on the side of caution."

The test is set out in paragraph 5.3 of the Code, which states: - "You may feel able to state truthfully that an interest would not influence your role as a councillor in discussion or decision-making. You must, however, keep in mind that the test is whether a member of the public, acting reasonably, would think that a particular interest could influence your role as a councillor."

The respondent stated that, despite having dealt with the complainant's planning application in his capacity as a Community Councillor, he had not prejudged the application in advance of the meeting of the Eildon Area Committee, but rather had considered the application properly and fairly at that meeting, when all the information required to take a decision had been available to him. Furthermore, the key paragraphs of section 7 of the Code are directed at councillors' conduct and, at time of the Community Council meeting, he had not been - as a matter of fact - a Scottish Borders Councillor.

6. I was satisfied that I could accept the respondent's position that, at the meeting on 21 May 2007, he had applied himself properly to the merits of the application having regard to relevant planning considerations and that he had not had a closed mind nor had he been biased. I was reinforced in that assessment by the fact that he had taken a favourable view of the application as a Community Councillor but had taken the opposite view - indeed had moved refusal of the application - as a Scottish Borders Councillor. There was no evidence that the respondent had been biased regarding the application.

7. Having considered the information that arose from my investigation, I concluded that, Councillor Kenneth Gunn had not contravened the Councillors' Code of Conduct.

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