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Complaint no. LA/SA/540 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors Peter Convery, Ian Fitzsimmons, Margaret Toner, Hywel Davies and former Councillor Alistair Kerr of South Ayrshire Council

1. Complaint number LA/SA/540 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Peter Convery, Ian Fitzsimmons, Margaret Toner, Hywel Davies and former Councillor Alistair Kerr ("the respondents").

2. The person complaining (the complainant) had submitted applications for planning permission and listed building consent for development within the grounds of his existing house. The applications were refused by South Ayrshire Council's Planning Committee following a site visit. The complainant alleged a number of complaints against the respondents relating to their conduct in determining the planning application. He complained:

2.1 that there were breaches of key principles of Duty, Accountability and Honesty in regard to the conduct of the site meeting, and that the grounds on which the Committee decided to overturn the Director of Planning's recommendation to approve the application were flawed and caused the Council unnecessary use of resources to employ an external legal advocate and consultant planner.

2.2 that disrespect was shown to a Council employee and another Councillor;

2.3 of pre-judgement of the planning application by Councillor Convery and doubts about Committee members' impartiality;

2.4 of failure of the Committee to address the listed building application for alterations to a boundary wall;

2.5 of failure to address the proposal for demolition of a garage;

2.6 of failure of the Committee to address the planning proposal for the new house in a fair manner;

2.7 misjudgement of issues at the site;

2.8 of a request by the Committee for the site of the new house to be pegged out;

2.9 of failure of Councillor Convery as Convener to deal with an attempt to influence and intimidate the Special Meeting on 13 February 2006 by the use of helium balloons to indicate dimensions at the site, and lack of even-handedness by agreeing to a request by an objector to speak first because he had another appointment.

2.10 that the method used by the Committee at the site meeting to reach a conclusion was flawed;

2.11 that in other respects, the Committee failed to access available information.

3. Councillors Peter Convery, Ian Fitzsimmons, Margaret Toner, Hywel Davies and former Councillor Alistair Kerr were members of the planning Committee who determined the complainant's planning applications.

4. I did not uphold complaints that there were breaches of the key principles of Duty, Accountability and Stewardship and Honesty regarding the conduct of the site meeting. There is no requirement for a Planning Committee to conduct site visits and indeed the majority of planning applications are determined without such a visit taking place. While a Committee may decide to hold a site visit, there are no hard and fast rules for its conduct and it is for the Committee members to determine the nature and extent of their inspection. In the present case, they examined the application site which was to the south of the A listed building and was the most relevant location being the site of the proposed new building. Having already considered the plans, the Director's planning report and other responses and representations received, the Committee were entitled to decide for themselves what they regarded as adequate examination of the site. The complainant appealed against the Committee's decision and the Reporter referred to it as a limited inspection and expressed a critical opinion within the context of a claim for expenses. However, that was indeed merely a matter of opinion which did not, in itself, provide grounds for a breach of the Code of Conduct. I did not consider, nor indeed did the Reporter, that the respondents' actions caused unnecessary use of resources to employ external representatives. I did not consider that the Committee's actions, nor their inspection of the site, was so lacking as to amount to a breach of the key principles of Duty or Accountability and Stewardship. The complainant took issue with Councillor Convery's honesty in regard to his statement that the Committee viewed the entire application site. That was again a matter of interpretation, depending on what may be regarded as the application site. The application site was to the south of the listed building and the Committee approached that site via the north and east. In the circumstances of this case, I did not consider that Councillor Convery's honesty, or the honesty of any other members, could be called into question.

5. The complaints of alleged breaches of rules of General Conduct and related firstly to alleged disrespect having been shown to Council officers and other councillors. The complainant regarded comments made by Councillors Convery and Fitzsimmons in their pre-cognition for the planning appeal as severely criticising officers because no reference had been made in the planning report to the existence of a downstairs window in the listed building. However, in my view, councillors are entitled to express their views reached in good faith and mindful of all proper considerations. I did not regard comments of surprise and disappointment, or disagreement with the Director's report, or indeed Councillor Fitzsimmons' question whether the planning officer had been aware of the window, as amounting to severe criticism. The issues covered were reasonable and expressed in a straightforward manner. I did not consider that the actions complained of showed disrespect and no complaint was intimated by any Council officer. Neither was any complaint made by Councillor Moonie as to how Councillor Convery described her reason for declaring an interest. I did not consider there was any breach of paragraphs 3.1, 3.2, or 3.3, of the Code. The question was also raised by the complainant as to whether there may have been a breach of confidentiality by Committee members in informing a neighbouring proprietor of a site meeting which took place in July 2006 prior to the Public Inquiry. I did not see evidence that this occurred, and indeed the matter was explained by the Director who confirmed that such information is openly shared with other parties to the appeal. I did not consider there was any breach of paragraphs 3.15 and 3.16 of the Code.

6. I did not consider there was evidence of pre-judgement of the complainant's application on the part of Councillor Convery from the suggestion that he was 'ploughing through' national planning guidance. By looking at relevant background information and documents, Councillor Convery did what might reasonably be expected of him in regard to an application affecting an A listed building, and this need not suggest pre-judgement by him. Other complaints about the conduct or behaviour of members related to the administrative conduct of the Special Meeting. While the Committee's discussion may well have mainly centred on their discussion of the planning application, the listed building application was determined and the decision included in the minute, and the consent to demolish a garage was dealt with at the ensuing meeting.

7. Complaints were made of failings and misjudgements in the Committee's assessment of the application, in their consideration of the application site and in their failure to view the site from within the relevant properties. My opinion, as previously stated, was that the Committee were entitled to decide for themselves how far they required to examine the site to allow them to reach a decision on the application.

8. Regarding the complainant's allegation that the Committee's request for the site of the new house to be pegged out gave rise to suspicion and appearance of improper conduct under paragraph 7.3 of the Code, I did not consider this to be the case. Such a request is open to agreement, or not, by the person so requested; if the complainant felt there was anything untoward about this, there could have been no compulsion on him to agree to the request.

9. The complainant said that the presence of balloons on the day of the Special Meeting was an attempt to influence or intimidate. He considered that Councillor Convery failed to deal with it, leading to a suspicion of collusion under paragraph 7.8 of the Code. Whatever the reason for the balloons, or whoever was responsible for placing them there, this was not something which Councillor Convery as Convener had power to prevent, nor authority to take action on. Nor did I consider there was anything suspicious in the Convener's decision to agree to an objector's request to speak first. Such decisions are entirely within a Convener's and a Committee's discretion and may or may not be permitted, depending upon circumstances of the meeting. I did not consider these issues provided grounds for a breach under paragraph 7.8 of the Code.

10. The complainant considered the Special Meeting was flawed and in breach of paragraphs 7.3 and 7.10 as it was conducted virtually single handed by the Convener. He also stated that Councillor Fitzsimmons wrongly said in his appeal precognition that he had supported Councillor Convery's motion to refuse the two applications for planning permission and listed building consent, when in fact one was dealt with at a later date. It is in the nature of chairmanship that the Convener will be primarily responsible for its conduct. There is nothing unusual in this, nor is it unusual for the Convener to propose the motion. With regard to the determination of the applications for planning permission and listed building consent, as stated above, the Committee's discussions may well have concentrated on the former, but it is clear they were both determined at the Special Meeting, as stated in the minute.

11. The complainant's claim that the Committee failed to access all information related firstly to Councillor Toner and an allegation that she had not accessed a submission by the Architectural Heritage Society of Scotland, in breach of paragraphs 7.3 and 7.10 of the Code. It was also alleged that Councillor Convery and Councillor Fitzsimmons had questioned the omission by the planning department and Historic Scotland of any reference to a ground floor window in the listed building. In the complainant's view they should have continued the application to allow planning officers and Historic Scotland to clarify the position on this. The complainant considered the Committee paid inadequate regard to the advice of Historic Scotland and were in breach of paragraphs 7.3, 7.7 and 7.8 of the Code. It appeared to me that Councillor Toner had accessed the AHSS representation as she was able to refer to it. I did not consider the Committee were bound to have continued the application, either to take further advice on this or on Historic Scotland's position. The representations of other bodies are views which the Committee may take into account; but they are not bound to accept these views or indeed those of the planning officers. The Committee are the decision makers and, as such, were entitled to reach their own view having assessed all relevant considerations.

12. On other points the complainant felt the Committee failed to access available information. He said that, contrary to information available from the architect's family, the Committee believed that the architect who built the A listed building had not intended to build a further wing at the south elevation. Further, that at a second site meeting in July 2006, Councillor Convery had asked questions about the dimensions of the proposed building, causing the complainant to wonder if the Councillor had looked at the plans. In view of this, he felt Councillor Convery's statement that the Committee was aware of the structure, design and location of the proposed house was misleading and the reason for refusal not dealt with in a fair manner, contrary to paragraphs 7.2, 7.3 and 7.10 of the Code. I did not consider that these matters had an important bearing on the decision of the Committee to refuse the complainant's application. Although interesting perhaps to reflect on, the original architect's intentions when he built the house were not relevant or at least key to consideration of the application before the Committee. The fact that Councillor Convery asked about dimensions while on site in July 2006 does not, in my view, necessarily mean he was not conversant with the plans of the proposed house when considering the planning application. Regarding the matters raised by the complainant under the heading in section 7 of the Code on Taking Decisions on Individual Applications, I did not consider that the respondents had breached paragraphs 7.2, 7.3, 7.7, 7.8, 7.9 or 7.10 of the Code.

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