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Complaint no. LA/WL/105 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors Joseph Thomas, James Sibbald, William Dunn, Thomas Kerr, Duncan Maclean and Hugh Owens of West Lothian Council

1. Complaint number LA/WL/105 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Joseph Thomas, James Sibbald, William Dunn, Thomas Kerr, Duncan Maclean and Hugh Owens ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, the key principles set out in section 2 on Duty, Selflessness, Objectivity, Accountability and Stewardship and Openness.

3. The person complaining ("the complainant") alleged that as members of the West Lothian Council Development Control Sub-Committee who voted to grant a planning application in respect of a development at Bellsquarry the respondents failed to comply with the key principles of the Code. In particular she alleged that they failed to take proper account of planning policy and the objections to the application and that the reason put forward to justify the grant of planning permission was contrived and not supported by objective reasoning.

4. On 23 June 2004 an application for detailed planning permission was submitted in respect of a vacant site at Calder Road, Bellsquarry. The site had been derelict for many years and was regarded by the planning department as a brownfield site suitable for redevelopment.

5. Letters of objection were submitted by the Community Council and three local residents. In essence the objections related to the density of housing, the height and finish of the building, its visual impact, and parking provision.

6. The Director of Development and Building Control submitted his report to the Sub-Committee, echoing the concerns of the objectors, and concluded that the scale of the development, its massing and design would not relate well to the adjacent buildings 'and would therefore not protect or enhance the character of Bellsquarry Village'. He advised that the proposal conflicted with policies in the Local Plan, guidance in the Council's Residential Development Guide, and Scottish Executive design advice. He recommended that planning permission should be refused.

7. On 23 July 2004 the application came before the Development Control Sub-Committee. The Sub-Committee comprised nine members and was chaired by Councillor Alex Davidson. The application proceeded in accordance with normal procedure, the Director, objectors and applicant's agent being permitted to speak.

8. Having heard these representations the Sub-Committee then debated the application. The respondent Councillor Thomas expressed an opinion that building would inevitably take place on the site and that in his view the proposed design was 'not too far away' from being acceptable. Comments were also made about the present derelict state of the gap site.

9. On a vote being taken the motion to approve the application was agreed by six votes to three. Although the minute does not record the voting of individual members it has been established that the respondents voted in favour of granting the application. The reason for the decision was expressed as 'being to the benefit of the amenity and well-being of the village that this gap site be developed.'

10. The complainant expressed concerns as to the rationale underlying the decision and the meaning of the justifying reason as shown in the minute. She took the view that the reason appeared to be an expression of opinion rather than a statement based on objective reasoning.

11. It was clear that having granted the application no member of the Sub-Committee was prepared to voice a justifying reason, and it fell to the Director to suggest one. From the perspective of a third-party observer, whether or not interested in the outcome, this gave an unfortunate impression. While it may be acceptable in practical terms for an officer to suggest a form of words the impression of uncertainty in the minds of the Sub-Committee might have been dispelled had the justification been clearly stated prior to the vote by one of the Sub-Committee members.

12. The respondents however draw a distinction between the Director's report which related to the design and scale of the building, and their reason for grant which referred to the wider issue of a derelict gap-site being developed.

13. I was satisfied that the respondents acted in accordance with the law within a formal democratic process and that, while the outcome of their deliberations might not be accepted by all parties, their procedure was correct and the respective parties were dealt with fairly.

14. I noted no evidence to indicate that the respondents acted through self-interest in order to gain financial or other material benefit. There was no suggestion that they had a family or social relationship with the applicant, or an interest in his company. I therefore found that the principle of Selflessness was inapplicable.

15. I also considered that no extraneous considerations appeared to have been allowed to intrude and the objectors, including the complainant, had been afforded a full opportunity both in writing and by personal appearance to state their views. In considering planning issues councillors are not bound to accept the recommendations of their Planning Director or to follow development plan policy provided that there are other material planning considerations, and a wide degree of latitude is given in the factors which they may take into consideration. Given the acceptance by all parties that some form of residential development would be acceptable on the site, the issue was really one of scale alone and the respondents were of the view that the application in question was appropriate. That view was tested by a democratic vote and the decision to grant the application prevailed.

16. Finally it was self-evident that there was no reluctance to provide a reason for the decision. It was the expression of that reason and its validity that were at issue and I found that this was unclear and lacked specification. I did not however consider that this was a deliberate omission or that there was any intent to mislead or withhold information from the public.

17. Having considered the information arising from my investigation, I concluded that Councillors Joseph Thomas, James Sibbald, William Dunn, Thomas Kerr, Duncan Maclean and Hugh Owens had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
22 February 2005