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Complaint no. LA/SA/587 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Peter Convery, Hywel Davies, Ian Fitzsimmons, Helen Moonie and Margaret Toner and by former Councillors Paul Torrance, Robert Campbell, Alistair Kerr and Ian Stewart of South Ayrshire Council

1. Complaint number LA/SA/587 alleged contraventions of the Councillors' Code of Conduct ("the Code") by Councillors Peter Convery, Hywel Davies, Ian Fitzsimmons, Helen Moonie and Margaret Toner and former Councillors Paul Torrance, Robert Campbell, Alistair Kerr and Ian Stewart of South Ayrshire Council.

2. It was alleged that Councillors Peter Convery, Hywel Davies, Ian Fitzsimmons, Helen Moonie and Margaret Toner and former Councillors Paul Torrance, Robert Campbell, Alistair Kerr and Ian Stewart ("the first respondents") as members of the Planning Committee of South Ayrshire Council responsible for responding to a consultation received from the Scottish Executive's Energy Consents Unit, failed to observe the key principles of Duty, Objectivity, Accountability and Stewardship, Openness, Leadership and Respect all as set out in section 2 of the Code and the requirements of paragraphs 7.2 and 7.10 of section 7 - Taking Decisions on Individual Applications, and

in connection with his involvement with the activities of

(a) Barrhill Community Council and
(b) Carrick Communities Council Forum,

former Councillor Paul Torrance ('the second respondent') failed to observe the principles set out in paragraphs 1.1 and 1.5 of the Introduction to Code and the requirements of paragraph 7.3 - Taking Decisions on Individual Applications.

3. The person complaining ("the complainant") alleged the following failures on the part of the first respondents in formulating their response to the consultation issued in connection with the proposed Mark Hill developments:

- generally, to adopt the same standards of conduct as would have been applicable had they been responsible for the determination of the application, and in particular,

- to take account of material considerations;

- to hear, analyse, and take account of public objections;

- to ensure advertisement of an addendum by Historic Scotland to a previously submitted environmental statement.

4. The facts were not a matter of contention in this case and the issues on which the determination turned were rather the nature of the decision taken by the Planning Committee on 16 May 2006, the relevance of the Code to that decision, and in particular the applicability, or otherwise, of section 7 - Taking Decisions on Individual Applications.

5. It was quite clear that in their consideration of a Report by the Depute Chief Executive and Director of Development, Safety and Regulation on 16 May 2006 the Planning Committee were engaged in responding to a consultation issued on behalf of Scottish Ministers by the Scottish Executive Consents Unit. Paragraphs 1.1, 2.1, 2.3, 2.6, 4.1 and 9.1 amongst others in the Report, and the terms of the complainant's own submission confirm the position. The kind of decision under consideration is obviously important in determining the relevance of section 7 of the Code to the deliberations of the committee. Section 7 is entitled 'Taking Decisions on Individual Applications' and paragraphs 7.2, 7.3 and 7.9 refer generally to 'dealing with' planning applications. Paragraph 48 of the Guidance and Dispensations Note to Councillors and Local Authorities in Scotland issued by the Standards Commission for Scotland on 3 May 2007 (which Note is, for this purpose, in the same terms as the earlier Guidance Note dated 28 July 2004) makes reference to 'decisions which councillors have to make in relation to individual applications, particularly in relation to planning applications.' Given the generality of those provisions it might be argued that even in consultative (as opposed to adjudicatory) mode, the terms of section 7 applied.

On the other hand, not least since they have as a separate section of the Code dedicated to them, there must be a distinct quality to the kind of decision covered by section 7. Paragraph 7.1 requires consideration of different points of view when councillors 'have to decide on individual applications'. The introduction to paragraphs 48 to 62 of the Guidance and Dispensations Note is entitled 'Taking Decisions on Individual Applications'. Paragraph 49 provides that the principles set out in section 7 relating to the need to 'ensure a fair and proper hearing and for the avoidance of any impression of bias in relation to applications do not apply only in relation to planning applications but to a number of other applications of a quasi judicial or regulatory nature'... and paragraph 50 provides a range of applications 'where the issuing of a statutory approval or consent is involved'. The whole thrust of section 7 - as supplemented by paragraphs 48 to 62 of the Guidance Note - emphasises the need to observe the rules of natural justice suggesting that these provisions relate to the consideration and determination of applications for statutory consents. This approach contrasts with those occasions where a council is engaged in a policy decision such as the generation of a local or strategic planning policy or - as is the case here - required to formulate a necessarily subjective view on the merits of an application which falls to be determined by a third party. It would have been, in my view, a perverse interpretation of the Code to apply section 7 generally and in particular paragraphs 7.2 and 7.10 (on which the complainant relied) to the consideration by the Planning Committee of the Mark Hill application.

6. Beyond the specific requirements of section 7, the complainant also alleged contraventions by the first respondents of the key principles of the Code. It is important to remember that the key principlesprovide a context for and underpin the Codes of Conduct, and complaints of this nature should allege a substantive breach of the appropriate sections of the Code. The complaints relating to the key principles were broadly critical of the sufficiency of the approach taken by the first respondents when convened as the Planning Committee of South Ayrshire Council.

The Depute Chief Executive's Report of 20 April 2006 set out the legal and procedural framework, provided a comprehensive technical and factual background, informed the Committee of the outcome of an extensive internal and external consultative process, (including an analysis of public responses) referred to relevant national, strategic and local planning policies, extensively reviewed the potential environmental, ecological, cultural/built heritage, traffic/transportation, noise, aviation safety, 'shadow flicker', telecommunications and economic impacts of the development all to assist in the formulation of a view. In relation to the sufficiency of the material before the Planning Committee the decision in Wordie Property Co. Ltd v Secretary of State for Scotland 1984 S.L.T. 345 is helpful, although it must be borne in mind that the issue before the Planning Committee was not the determination of the application but the formulation of a response as a consultee. In formulating the classical test for administrative decision makers in the Wordie case, Lord President Emslie said - 'A decision ...will be ultra vires if it is based upon a material error of law going to the root of the question for determination'. It will be ultra vires also if the decision maker has taken into account 'irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it.'

In addition to considering the Report from the Depute Chief Executive, a site visit was undertaken and the Minutes of the Special Planning Committee meeting of 16 May 2006 record that Members raised issues relating to the section 36 process, Government guidance on renewable energy developments, roads matters, decommissioning, and replacement tree planting.

The complaint also narrated that the Planning Committee were referred, in terms of paragraph 4.5 of the Depute Chief Executive's Report, to an addendum to the environmental statement submitted by Historic Scotland which it was claimed was not made available to the public. This, it was alleged, constituted a departure from the key principle of Openness. The extent of the responsibility of South Ayrshire Council, however, was to compile a sufficient body of relevant information and from that generate a reasonable view of the material. In formulating their consultation response they were entirely justified in taking account of the addendum. Whether the Scottish Ministers - as the adjudicatory body - or their advisers felt that the addendum required to be advertised and a public response sought was, of course, a matter for them. That judgment was, however, clearly not the corporate responsibility for South Ayrshire Council or their individual members.

Even if alone a departure from the key principles could provide the basis for a breach, which as I have explained is unlikely without a demonstrable contravention of a relevant section of the substantive part of the Code, as a matter of fact, I was unable to identify such a departure in this case.

In all the circumstances I did not agree that by reference either to the range of the information to which the Planning Committee were referred, or to the procedure adopted, the circumstances suggested a departure from the requirements of good practice - far less a breach of the Code. I therefore did not find a breach of the Code to have been established in respect of the complaint against the first respondents.

7. The first complaint against the second respondent alone alleged that being aware of the potential interest of the Chairman of the Barrhill Community Council, as a director of a local company providing precast concrete and consequently a potential supplier to the developers, he should have proactively encouraged the Chairman to disclose his interest or reported what the complainant regarded as breaches of good practice to South Ayrshire Council.

The Councillors' Code of Conduct, however, does not extend to the activities of members of Community Councils and since in any event paragraphs 1.3 and 1.5 make it clear that compliance with the Code is a matter for the individual member themselves, I did not regard the second respondent as being culpable for not 'policing' potential breaches of good practice by others. It was also difficult to identify how a real conflict of interest arose in the context of the proposed Mark Hill windfarm development, since Barrhill Community Council are recorded in paragraph 4.13 of the Depute Chief Executive's Report as having objected to the proposed windfarm development 'on a number of grounds'. I therefore did not find a breach of the Code to have been established in this respect.

8. The complainant also took exception to the use of the phrase 'The members of the (Carrick Community Councils) Forum represent over 16,000 people living in Carrick' in the preamble to a document entitled 'Awards for All Application December '06', on the basis that the constitutional jurisdiction of each constituent community council is far more limited than the aggregation claimed. Leaving aside questions relating to the second respondent's personal responsibility for the statement, 'represent' in common parlance has a number of meanings beyond acting as the authorised delegate or agent in a strict electoral sense, including 'corresponding to'.

In response to this part of the complaint the respondent explained that the interests of the 16,000 inhabitants of the Carrick area correspond to those covered by the constituent community councils. It is also important to keep a sense of perspective in the interpretation of the phrase. It was used in the introductory paragraph of a document which was designed to highlight to the reader the dimensions of the area with which the umbrella organisation is associated by reference to its aggregate population. In that sense it was more of a brochure than a technical or legal document to be narrowly construed in the determination of competing legal rights and liabilities. In that context, the complainant's description of the use of the phrase as a 'potentially fraudulent activity' was inflammatory and, in my view, unwise. Again the reservations expressed earlier in this Note about reliance on the key principles alone applied to this part of the complaint and neither did I find this part of the complaint to be established.

9. Having considered the information that arose from my investigation, I concluded that, Councillors Peter Convery, Hywel Davies, Ian Fitzsimmons, Helen Moonie and Margaret Toner and by former Councillors Paul Torrance, Robert Campbell, Alistair Kerr and Ian Stewart had not contravened the Councillors' Code of Conduct.

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