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NOTE OF DECISION WEB VERSION

Complaint no. LA/SB/878 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Neil Calvert of Scottish Borders Council

1. Complaint number LA/SB/878 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Neil Calvert (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, paragraphs 4.18, 4.19, 4.21 (Registration of Interests), 5.1 to 5.7, 5.9, 5.13 to 5.16, 5.18 (Declaration of Interests), 6.1 to 6.4 (Lobbying and Access to Councillors), 7.2, 7.3 and 7.11 (Taking Decisions on Individual Applications).

3. The persons complaining (“the complainants”) alleged that the respondent actively championed an application for planning permission for the erection of a dwelling house without declaring that he had a close friendship with the applicant. They also alleged that the respondent was playing an active role in consultations relating to West Linton’s proposed new primary school when the positioning of the building itself, and the access route to it, could have a significant detrimental effect on the value of his home.

Planning Application for the Erection of a Dwelling House

4. The complainants’ key allegation was that the respondent was a close friend of the applicant and, as such, he should have declared an interest and refrained from any activity relevant to the application. In support of their allegation they stated that they had been to house parties at which the applicant and the respondent had also been present. They also claimed that the applicant and the respondent attended local festival events together as well as other sporting and social events. They pointed out that the applicant is the head of department at the local school, that the respondent was responsible for Education and that they had been in contact through their roles in the local community for a number of years. They stated that they were widely perceived within the community as friends. The complainants alleged that the respondent had breached paragraphs 5.1 to 5.5, 5.13, 6.1 to 6.4, 7.2, 7.3 and 7.11 of the Code.

5. The respondent accepted that he had been to house parties at which the applicant had also been present but pointed out that he had no control over a host’s guest list. He stated that he had never been a guest at the applicant’s home socially nor had the applicant visited his home socially. He explained that the applicant organises football at the local school and that, in that capacity, he had invited him as a guest to a sponsored football event in Glasgow. He did not have a social friendship with the applicant and did not regard him as a close friend. He considered that his relationship with the applicant was on the same level as with many other people in West Linton.

6. It was not in dispute that the respondent knew the applicant before he submitted his planning application and that they had been in each others’ company. Some of their contact arose as a result of their respective positions (the applicant as a teacher and the respondent as a councillor responsible for Education). In addition, the respondent was in a prominent position as a local councillor. This would have brought him into contact with many people in the local community, including the applicant.  It is the case that in small communities, such as West Linton, the members thereof have a closer degree of contact and acquaintance than occurs in larger communities. I considered that this was a feature of the respondent’s contact with the applicant. However, I did not consider that this indicated that they had a close friendship but simply that their contact and association was on a level that is common in a small community. Accordingly, I found that the respondent did not have a close friendship with the applicant and that he did not require to declare an interest on these grounds when the applicant’s application was considered at the meeting of the Tweeddale Area Committee held on 25 May 2009. I also found that the respondent had not breached paragraphs 5.1 to 5.5, 5.13 or 7.11 of the Code.

7. The complainants pointed out that the respondent visited the site in the company of the applicant but did not accept an invitation from them and from other parties to a site visit. The respondent accepted that he visited the site in the company of the applicant on four occasions between 2005 and 2008.  The Principal Planning Officer was present at two of the visits and the Road User Manager was present at one visit.

8. The respondent stated that he used to undertake site visits with neighbours in respect of most planning applications but, due to the size of multi member wards, he was no longer able to carry out his duties in this way. He pointed out that there were occasions when neighbours and objectors who accompanied him on site visits found it frustrating when, due to the limitations imposed by the Code, he was unable to participate in any significant way in such visits.     

9. It is at the discretion of an individual councillor and the Planning Committee as to whether to undertake any site visit. There is no specific requirement under section 7 of the Code for a councillor, or a Planning Committee, to visit a site with neighbours or objectors to a planning application. The respondent stated that he considered the application in the context of the Council’s Local Plan and regarded the site as a suitable infill site. He was aware from the Principal Planning Officer’s report that there were 24 objections to the application. He was also aware of the nature of those objections and had access to them on the Council’s website. I did not consider that the fact that the respondent did not actually visit the site of the application in the company of neighbours or objectors led to any of the parties involved in the development process being dealt with unfairly. Neither did I consider that the respondent’s action gave rise to the suspicion or appearance of improper conduct. Accordingly, I found that the respondent had not breached paragraphs 7.2 or 7.3 of the Code.

10. The complainants also alleged that by visiting the site with the applicant but not with neighbours or objectors the respondent allowed one party to lobby him and did not afford the same opportunity to all parties, as a result of which he had breached paragraphs 6.1 to 6.3 of the Code. They also inferred that, because four councillors (including the respondent) rejected the advice of the Roads User Manager regarding the dangers to roads safety imposed by the application, the four councillors in question voted as a political group and, as a consequence, the respondent had breached paragraph 6.4 of the Code. It was relevant to point out that Transport Scotland had not advised refusal of the application but recommended that a condition requiring re-surfacing of the junction with the trunk road be attached to any permission granted. 

11. The general thrust of paragraphs 6.1 to 6.3 of the Code is that the Council and   councillors must be open to the views of, and arguments advanced by, a wide range of individuals and organisations in order to perform their duties effectively. In addition, paragraph 6.3 points out that particular considerations apply (under section 7 of the Code) when dealing with planning applications and other matters of a quasi-judicial nature.    

12. In considering the application the respondent was aware of the applicant’s views and, through the medium of the Principal Planning Officer’s report, the views of objectors to the application. He also had access to individual objections and would have been aware from local knowledge of the views of the local community generally on the application. I did not consider that the fact that he did not visit the site with neighbours or objectors was evidence that he was not open to the views of all parties with an interest in the application and I found that he had not breached paragraphs 6.1 to 6.3 of the Code.    

13. The four councillors (including the respondent) who voted to approve the application were not all from the same political party and as they could not, therefore, have voted as a single political group their action did not require to be considered or assessed as a breach of paragraph 6.4 of the Code.

Proposed New Primary School

14. The second part of the complaint alleged that the respondent was playing an active part in consultations relating to the proposed new primary school for West Linton when the positioning of the building itself and the access routes to it could have a significant detrimental effect on the value of his property. The complainants alleged that the respondent had breached paragraphs 4.18, 4.19, 4.21 (Registration of Interests), 5.1 to 5.7, 5.9, 5.13 to 5.16, 5.18 (Declaration of Interests), 6.1 (Lobbying and Access to Councillors) and 7.2, 7.3 and 7.11 (Taking Decisions on Individual Applications).

15. Paragraphs 4.18 and 4.19 of the Code require councillors to register any interest they have as an owner or tenant of houses, land or buildings. The respondent had registered his interest in his home in West Linton in the members’ Register of Interests. He had no interest either as the owner or tenant of the land on which it was proposed to build the new school and, therefore, had no interest which he required to register in relation to the proposed school. I found that the respondent had not breached paragraphs 4.18 or 4.19 of the Code.  Paragraph 4.21 requires registration of membership of public bodies and other organisations and was not relevant to the circumstances relating to the complaint.

16. The Council had taken three key decisions to date regarding the proposed school. At its meeting on 13 March 2007 the Education Executive agreed that a statutory consultation be undertaken on the proposal to build a new primary school in West Linton. Capital funding was approved for the new school at a special Council meeting on 12 February 2008 and the Education Executive approved the acquisition of the proposed site at its meeting on 28 April 2009. The respondent was present at all three meetings and all three decisions were approved without going to a vote.

17. Although the Council had approved the site of the new school no decision had yet been taken on the actual positioning of the school on the site. There were a number of potential access routes to the site (including the road on which the respondent resides) but the Council had not given formal consideration to the access route to the school or to a nearby site which was designated for housing development. The Principal Planning Officer was of the view that the road on which the respondent resides was not especially suitable for access and was unlikely to be the preferred route.

18. The respondent pointed out that there were no firm proposals for the siting of the new school on the proposed area of ground and that it was too early to say whether the value of his property would be affected. He explained that his endeavours to date had been to try to ensure that the proposal for a new school remained firmly in the Council’s Capital Plan. He accepted that as soon as the development became a more definitive planning proposal he would have to consider whether his financial interest as a joint owner of a property in the village created a conflict. He considered that, until an actual planning application was submitted which proposed an access which might create a conflict of interest, no infringement of the Code had occurred.

19. The respondent referred specifically to paragraph 51 of the Standards Commission’s Guidance and Dispensations to Councillors to support his position. This paragraph states that the provisions in section 7 of the Code are intended to deal with the handling of individual applications and should not be seen as limiting councillors from discussing or debating matters of policy or strategy notwithstanding that these may provide the framework within which individual applications will, in due course, be decided.

20. In considering this part of the complaint it was necessary to balance the respondent’s right as an elected representative to work to secure a new school for the village against his personal position with a potential interest due to the location of the school. Notwithstanding that a planning application has not yet been submitted and the provisions of section 7 of the Code did not therefore apply, the guidance contained in paragraph 51 of the Standards Commission’s Guidance and Dispensations indicates clearly that unreasonable limitations should not be placed on a councillor’s activities. I took account of the early stage at which the proposals for the new school presently are and, in particular, of the fact that the precise position of the school and access to it had not been determined. I also took account of the statement by the Principal Planning Officer that the respondent had not been involved in discussions about access to the site and, having regard to these matters, I considered that the respondent did not have an interest at present that required him to make a declaration and refrain from taking part in the discussions and decisions which had taken place to date. The respondent was entitled as a local elected representative to seek to secure a new school for the village and it would have been unduly restrictive to take the view that, at that stage, he had a level of interest which precluded him from doing so.

21. I found that the respondent had taken part in discussions and decisions regarding the proposed school, that he had not, to date, an interest which he should have declared and that he had not breached paragraphs 5.1 to 5.7, 5.9, 5.13 to 5.16 or 5.18 of the Code. I added, however, that the respondent requires to keep his personal position under review in order to determine whether, as the proposal is progressed, a declarable interest arises.

22. The complainants alleged that the respondent was in breach of paragraph 6.1 of the Code. This particular paragraph is directed at the Council, as a corporate body, rather than at individual councillors. It was not relevant to consider the respondent’s actions under this paragraph and the issue of a breach of the paragraph did not, therefore, arise.

23. The provisions of section 7 of the Code (including the terms of paragraph 7.8 which preclude a councillor from lobbying other councillors to promote a particular recommendation on an application) will only apply once a planning application has been submitted for the new school or for housing development. Until a planning application is lodged it is permissible for the respondent to lobby other councillors in an attempt to secure their support for a new school. At present, the respondent’s action did not fall to be assessed in terms of paragraphs 7.2, 7.3 or 7.11 of the Code

24. Having considered the information that arose from my investigation, I concluded that Councillor Neil Calvert had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

03 November 2009