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Complaint no. LA/S/943 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor John Hendry of Stirling Council

1. Complaint number LA/S/943 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor John Hendry (“the respondent”).

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

3. The person complaining (“the complainant”), Councillor Alasdair MacPherson, alleged that despite having received a Neighbourhood Notification in respect of a planning application for a new College Campus on part of the Kildean Auction Mart, Stirling, the respondent had asked planning officers to refer it to the Council’s Planning Panel (Committee) which was held on 12 November 2009 and further, that the respondent also had attended that meeting and had participated and intervened in the debate, such that he had influenced the decision making process.

4. I found that the sections of the Code dealing with the Declaration and Registration of Interests were central to the whole ethical standards framework set up by Parliament. They were patently designed with the clear purpose of promoting, ensuring and maintaining confidence in the conduct of councillors when decisions were made.  Given the importance attached to the making of declarations by the Standards Commission for Scotland, it had also issued additional Guidance which had set out the responsibilities of an individual councillor and the considerations he/she must weigh up before reaching a personal decision on any Declaration. The Code’s specific advice to individual councillors in deciding to make a declaration was “to err on the side of caution”.

5. I found that this complaint had raised an important issue which highlighted the complications and tensions which could arise between strategic planning considerations and “site specific” applications.  The starting point was that it was in the public interest that the local spectrum of political representation should be enabled, as far as possible, to participate in debate on general strategy and policy determination and the Code did not seek to prohibit this, (with the exception of some individual interest declarations).

6. In assessing the complaint it was relevant to emphasise that the respondent was not a member of the Planning Panel charged with the responsibility of taking decisions on individual planning applications. When he had requested that the application for the new College Campus be referred to his councillor colleagues for determination and then appeared before the Panel, he was exercising rights which were afforded to all ward councillors under the Council’s existing approved planning procedures.

7. The complainant’s proposition was that the respondent, by virtue of having received a Neighbourhood Notification, was disbarred from referring the College Campus planning application to the Planning Panel and from speaking at the subsequent meeting. There was no such current prohibition within the Council’s procedure. As regards the terms of the Code, it was relevant to point out that the constraints imposed by paragraph 7.8 of the Code applied principally to councillors who had power to determine planning applications, which responsibility had not vested in the respondent as he was not a member of the Panel and had no such power.

8. As a councillor, the respondent had some 32 years of experience in the decision making processes of a local authority and it was quite clear that with this extensive knowledge, he had no difficulty in recognising that it was appropriate to seek officer advice on this matter.  The respondent had considered the advice given and had acted on it and declared an interest which he had also explained. The evidence before me confirmed that he had taken no issue with the individual planning application for the College Campus and understood quite clearly that it would have been be inappropriate for him to deal with that individual application by virtue of having received the Neighbourhood Notification. 

9. The issue the respondent had had (which prompted his Planning Panel activity and which he had properly sought to raise democratically) was that the Council had previously approved an overarching development plan for the whole Kildean Auction Mart Site (“the development area”) which had been rendered obsolete. Patently, the respondent had realised (as perhaps some of his less experienced councillor colleagues had not), that policy consideration should urgently be given a new overall plan to be approved by councillors in view of the importance of the development area to Stirling (which would, in effect, as matters stood have to deal with the remainder of the development area which was not to be taken up by the College Campus site). The outcome of the respondent’s attendance was that all the appointed Panel members present (including the complainant) had agreed with the respondent’s assessment that the strategic issues involved regarding the development area needed to be addressed and so the Panel instructed officers to prepare a new Masterplan. 

10. I made no criticism of the respondent’s conduct, and in fact, I found that he had acted appropriately throughout this matter in an open and transparent manner regarding his position and sought to air, publicly, proper planning strategy issues with councillor colleagues by means of the decision-making mechanism open to him at that point.  I found that he had not involved himself with the individual planning application before the Planning Panel. Accordingly, I found that the respondent’s conduct did not breach his conduct responsibilities as set out in the specified relevant paragraphs of sections 5 and 7 of the Code.

11. In reaching my determination that the respondent had not breached the Code, on the evidence before me, I considered the particular determining factors were that he had taken advice on this matter at an early stage, had declared publicly his interest, had taken no part in the legal determination of an individual planning application (which was in any event granted on the conditions already recommended by the Council’s officers) and had properly confined his intervention to the need for a new planning Masterplan to cover the reminder of the development area.

12. Having considered the information that arose from my investigation, I concluded that, Councillor John Hendry had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

44 Drumsheugh Gardens

Edinburgh

EH3 7SW

29 June 2010