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Note of Decision - Case No. LA/WL/80

Concerning an alleged contravention of The Councillors' Code of Conduct by Councillors Joe Thomas and Willie Dunn of West Lothian Council

1. Complaint number LA/WL/80 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Joe Thomas and Willie Dunn ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular various parts of section 7 of the Code dealing with planning applications and in particular section 7.10.

3. The persons complaining ("the complainants") alleged that the respondents had pre-judged a planning application by the Scottish Prison Service to build a new prison near Addiewell in West Lothian. The respondent sat on the Development Control Sub-Committee which considered the outline application for planning and the notice of proposed development from the Scottish Prison Service for the Addiewell site. At the end of the Sub-Committee's deliberations it was agreed without division to approve the terms of the report of the Development and Building Control Manager recommending the grant of outline planning permission for the proposed prison works and that Scottish Prison Service be advised that the Council did not object to the proposals which constituted the notice of proposed development.

4. The complainant alleged that "Councillor Joe Thomas has been seen by residents bordering the development site to visit on several occasions accompanied by representatives of the developer. Our group organised a public meeting on Thursday 30 October 2003. At that meeting I presented our argument through a presentation. Councillor Thomas addressed the meeting and put counter arguments up against our presentation and stated that a prison would have a positive influence on the communities. I am sure that the vast majority of the attendees were in no doubt about his support for the proposed prison. We also note that Councillor Thomas has had dealings with the Scottish Prison Service through his work with the Prison Visitors Committee. This was not declared at the planning meeting on 5 May 2004".

5. The complainants also alleged "Councillor Dunn has been interviewed on the prison issue on numerous occasions between June 2003 and May 2004. These interviews have been published in local papers and broadcast on local radio. During these interviews he has consistently defended the prison development stating that the development has his full support and lauding its benefits to the county. Councillor Dunn has emailed us and put up arguments in favour of the prison. These emails are published on our website and portions of the interviews were published in the West Lothian Courier, the Herald and Post, the Edinburgh Evening Times and on www.westlothiannews.co.uk. Radio interviews were made with Radio FM. Councillor Dunn is not a member of the Development Control Special Sub-Committee but voted on the proposals regardless. I questioned him on his stated views at the meeting to which he replied that these were policy discussions. We feel that this is not valid under part 7.10 of the Code".

6. With regard to Councillor Thomas, the aspect of the complaint that he had been seen by residents bordering the development site to visit on several occasions accompanied by representatives of the developer was clearly incorrect as at the time of the investigation the identity of those who will be charged with developing the site was not yet known. Furthermore there was no evidence that remarks made by Councillor Thomas related to the planning applications rather than to general policy matters. As West Lothian Council sell a great deal of land he was well aware of the potential difficulties involved and would have been able to vote for the refusal of any subsequent planning application on its merits. Finally although it might be argued that it would have been prudent for him to declare his role with the Prison Visitors Committee at the Planning Meeting on 5 May it was not an interest which would have required him to play no part in discussion and to leave the meeting until discussion of the particular application had been concluded. The Prison Visitors Committee is a separate independent body from the Scottish Prison Service and Councillor Thomas was nominated by the Council and appointed to the Committee by Ministers.

7. With regard to Councillor Dunn, there was no evidence that any of his public remarks related to the planning application rather than general policy matters. Although Councillor Dunn was not a member of the Development Control Sub-Committee of the Enterprise and Development Committee he advised that he is frequently called upon to sit on that sub-committee as a substitute and is accordingly constantly mindful of the need for caution in any remarks made by him in relation to matters which might in due course come before the sub-committee in the form of planning applications. This was illustrated in a press release issued by the Council on 31 October 2003 which was in the following terms: "Councillor Willie Dunn, Convener of West Lothian Council's Enterprise and Development Committee, said today 'we expect a planning application for the proposed prison development at Addiewell to be submitted in the near future. Site investigations have been carried out and the results are being analysed by the Scottish Prison Service. We anticipate that the report will be submitted to the Council's Development Control Sub-Committee early in the new year. Full publicity will be given to the proposed development and the relevant Community Councils will be consulted. We are repeating our assurance that any planning application will be given detailed and careful consideration as is our normal practice. It will be discussed in public session and the views of all interested parties will be taken fully into account before any decision is taken.'"

8. It may be said that the aspects of this matter which created an area of difficulty were that some councillors were involved in both the decision-making process in relation to the sale of the land and in relation to the subsequent planning applications. This was of course because the land was owned by the Council which was also the relevant planning authority. Secondly, the land was sold subject to planning permission being granted which in turn led to advice from officials being sought, given and followed.

9. A distinction must be drawn between general policy decisions and specific planning decisions and in the latter case councillors must be careful to ensure that they deal with applications and are seen to deal with applications in a fair and impartial way. The evidence in this case demonstrated that the distinction had been maintained in an appropriate fashion and there was no evidence of breaches of the provision of section 7 of the Code.

10. Having considered the information arising from my investigation, I concluded that, Councillors Joe Thomas and Willie Dunn had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
05 October 2004