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Complaint no. LA/SL/633 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors David Watson, Graham Simpson, Jim Wardhaugh and Sheena Wardhaugh of South Lanarkshire Council

1.0 Complaint number LA/SL/633 alleged contraventions of the Councillors' Code of Conduct (“the Code”) by by Councillors David Watson, Graham Simpson, Jim Wardhaugh and Sheena Wardhaugh (respectively, ‘the first, second, third and fourth respondents”). The respondents are all elected member of South Lanarkshire Council (“the Council”).

2.0 It was alleged that the respondents had contravened section 7 of the Councillors' Code of Conduct the Code which deals with Taking Decisions on Individual Applications.

The Complaints

3.0 The person complaining (“the complainant”) alleged that

3.1 The first respondent made up his mind on the planning application for an extension to the complainant's house in advance of a meeting of the East Kilbride Area Committee held on 29 August 2007. He also claimed that the first respondent had attempted to mislead the Committee by seeking to refer the application to a hearing in terms of the procedures for the determination of planning applications adopted by South Lanarkshire Council. The complainant asserted that the first respondent improperly took into account political rather than planning considerations in the determination of his application.

3.2 The second respondent brought a predetermined view of his application to the Area Committee meeting on 29 August 2007 and admitted as much in public at the meeting.

3.3 It was inappropriate for a husband and wife to be part of the same Committee charged with the consideration and determination of regulatory matters. It was also claimed that the third and fourth respondents visited the home of the principal objector to discuss the application, but by not making a similar visit to the applicant to seek his views, had formed a partial and flawed view of the merits of the application. It was also suggested that the third respondent had misled the Committee by inaccurately describing the proposed extension as ‘2 storey' when in fact the proposed elevation was only ‘1 1/2 storeys' '

The Responses

4.0 The first respondent denied taking a predetermined view and was keen to have a hearing to discuss the technical aspects of the application. He did not agree that he misled the Committee in seeking to refer the application to a hearing, pointing out that the Council's Planning Guidelines provide for such an eventuality:

(a) if the majority of Committee members present agree to hold a hearing;

(b) where, in the view of the Committee Chair, an applicant or objector wishes to present relevant new or additional information to Committee which has not been available previously to officers or members;

(c) where, in the view of the Committee Chair, an application has attracted a substantial body of objection and the officer's recommendation is to grant planning consent.

The first respondent also denied misrepresenting the level and distribution of objections by failing to highlight the multiplicity of complaints received from the applicant's immediate neighbour. In his response he explained that he said he had been presented with comments from 12 properties in Cairnryan (all separate properties and one from the immediate neighbour).

The complainant visited first respondent's surgery on 24 August 2007 to discuss the application and was advised that anything he said would be listened to and anything he presented would be looked at, but that the first respondent would not make any comments at that time on the merits of the application.

4.1 The second respondent explained that in advance of the meeting on 29 August 2007 he considered the application, the planning officer's report and the objections. He described the application as provoking strong reactions from neighbours, particularly from the complainant's immediate neighbours. As ward councillor he would have thought it ‘remiss and ludicrous' had he not fully considered and formed a preliminary view on the merits of such an application in advance of the meeting. From the information then available to him, the second respondent was of the opinion that in its present form the application should be refused. At the meeting he felt that no relevant information was added to that which had been already made available so as to persuade him to alter his provisional conclusion.

The second respondent asserted that at no stage in advance of the meeting did he publicise his view and indeed made it clear to both the applicant and his wife and to the principal objector when they attended his surgery that he ‘could not publicly come down on one side or the other ahead of the meeting'.

The second respondent confirmed that during the debate on the issue he stated that he had taken some time to decide how to vote, that it had not been easy but that he had reached a view the day before the Committee, but had not publicly disclosed that view.

4.2 In common with all other members of the East Kilbride Area Committee the third and fourth respondents received an email from the principal objector offering an opportunity to visit his property and assess the impact of the application. So as to better acquaint themselves generally with the location and inform their decisions on a number of technical assessments such as loss of light, proximity of development, and impact on neighbouring properties the third and fourth respondents confirm accepting that invitation.

The third and fourth respondents denied prejudging the application, and made reference to the information supplied by officers, the questions raised at the committee, the issues identified in the debate there, their site visit and wider ‘technical and subjective factors' as the bases for their decisions. They also denied making any public comment on the merits of the decision before the meeting on 29 August 2007.

They took the view that being husband and wife and at the same time members of the East Kilbride Area Committee should not by itself raise any constitutional or procedural inhibition as is asserted by the complainant.

Consideration of the Application

5.0 The Executive Director (Enterprise Services) prepared and submitted an extensive report to the committee summarising the issues arising from the application. There was consequently a substantial amount of relevant material before the Area Committee. In addition a number of the members – including the third and fourth respondents – had visited the adjoining property all of which informed the debate on 29 August 2007. The complainant alleged that the height of the proposed extension was mistakenly referred to as ‘2 storey', as opposed to ‘1 1/2 storeys'. It was clear, however, that the report accurately reflected the dimensions of the proposed extension and officers appeared to have corrected any misrepresentation made on the day of the meeting.

5.1 It was also alleged that by moving as an amendment a proposal that the matter be referred to a hearing, the first respondent ‘attempted to mislead the Committee in relation to a number of key elements of the procedures.' While it was clear that there was indeed room for disagreement on the merits of such an amendment, the Council's procedural framework, contemplating as it did the possibility of a hearing where there was the potential for new information or where an application has attracted a substantial body of objection, seemed to me to provide a legitimate basis for at least putting the amendment before the Committee. There were a number of officers, including the Area Manager, experienced in the Council's procedural arrangements who were available, had the need arisen, to advise on the competence of such a motion.

5.2 While it may have been that the second respondent's statement to the effect that he had made up his mind before he came to the meeting appeared on the face of it at least infelicitous, it was quite clear, not only from his own evidence but from that of the complainant, that, at that time, he had available to him the Executive Director's report on the application and that he held out the prospect of being influenced by any new and relevant information provided at the Area Committee on 29 August. It seems to me that there is nothing wrong with an approach by which a member of a regulatory committee assimilates information (particularly in a formal report as, in this case, by the Executive Director, which provided the material and relevant information) as an application progresses, forming a preliminary view as the matter develops, as long as an open mind is maintained until all relevant material has been made available and considered. The member must also not be seen to commit to a view prematurely. In this case I did not consider that the evidence supported the conclusion that the second respondent had transgressed the requirements of section 7 of the Code.

5.3 The marital status of the third and fourth respondents was alleged by the complainant to raise significant constitutional issues in the context of their membership of a regulatory committee. I am unable, however, to agree that in itself this presents an inherent impediment to the proper consideration and determination of an application. The Code does not prevent discussion by members of a regulatory committee of an application as long as the overarching requirements as set out in section 7 in relation to equity and the avoidance of predetermination, canvassing and lobbying are observed. In this case the third and fourth respondents clearly discussed the application – they visited the adjoining property – but again I was satisfied that such evidence there was of discursive exchanges between them did not amount to a contravention of the Code.

5.4 The complainant was also aggrieved that a while a number of the Committee visited the adjoining property of the principal objector, they did not visit his. That an equitable approach is observed in relation to regulatory matters is not necessarily achieved, however, by the adoption of a pattern of symmetrical behaviour towards the parties. The broad approach of the Area Committee was, in accordance with the procedural requirements of the Council, not adversarial, but inquisitorial in nature and in my view, as I have already said, there was more than sufficient relevant material to enable the members properly to consider and explore the relevant issues and properly to determine the application.

5.5 Although I discovered no evidence that the respondents were motivated other than by proper planning considerations, there was speculation that party political considerations influenced the decision making process in this case. It would be most unfortunate and no doubt harmful to public confidence in the integrity of the planning system if that perception was to gain ground.

6.0 Having considered the information that arose from my investigation, I concluded that Councillors David Watson, Graham Simpson, Jim Wardhaugh and Sheena Wardhaugh had not contravened the Councillors' Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

14 January 2008