Complaint no. LA/WL/506 concerning an alleged contravention of the Councillors' Code of Conduct by former Councillor Jim Sibbald of West Lothian Council

• Introduction
• Outline of the Complaint and the Response
• The Investigation
• Consideration of the Evidence
• Findings and Conclusion

Introduction

1.1 Complaint number LA/WL/506alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaint has been lodged by MrDavid Cowan ("the complainant"), who alleges a contravention of the Code by Councillor Jim Sibbald ("the respondent"). The respondent was an elected member of West Lothian Council ("the Council") until 3 May 2007, having decided not to seek re-election for office in the Local Government Elections of May 2007 on the grounds of his serious ill-health.

1.3 It is alleged that the respondent has during his period in office contravened the Councillors' Code of Conduct and, in particular, section 5 (Declarations of Interest):

The relevant paragraphs of section 5 of the Code state:

5.5 Interests which require to be declared may be financial or non-financial. They may or may not cover interests which are registerable in terms of this Code. Most of the interests to be declared will be your personal interests but, on occasion, you will have to consider whether the interests of other persons require you to make a declaration. The paragraphs which follow deal with (a) your financial interests, (b) your non-financial interests and (c) the interests, financial and non-financial, of other persons.

5.6 Any financial interest which is registerable under any of the categories prescribed in Section 4 of this Code must be declared."

5.7 The financial interests which you may have to declare are not confined to those which are registerable. You may, for example, in the course of employment or self-employment, be engaged in providing professional advice to a person whose interests are a component of a matter to be dealt with by a Council Committee.

5.12 The Code requires only your financial interests to be registered. You may, however, have to consider whether you should declare an interest in regard to the financial interests of your spouse or cohabitee which are known to you. You may have to give similar consideration to any known non-financial interest of a spouse or cohabitee. You have to ask yourself whether a member of the public acting reasonably would regard these interests as effectively the same as your interests in the sense of potential effect on your responsibilities as a councillor.

5.13 The interests known to you, both financial and non-financial, of relatives and close friends may have to be declared. This Code does not attempt the task of defining "relative" or "friend". Not only is such a task one fraught with difficulty but is also unlikely that such definitions would reflect the intention of this part of the Code. The key principle is the need for transparency in regard to any interest which might (regardless of the precise description of relationship) be objectively regarded by a member of the public, acting reasonably, as potentially affecting your responsibilities as a councillor.

5.14 You must consider at the earliest stage possible whether you have an interest to declare in relation to any matter which is to be considered. You should consider whether agendas for meetings raise any issue of declaration of interest. Your declaration of interest must be made as soon as practicable at a meeting where that interest arises. If you do identify the need for a declaration of interest only when a particular matter is being discussed you must declare the interest as soon as you realise it is necessary.

5.15 The oral statement of declaration of interest should identify the item or items of business to which it relates. The statement should begin with the words "I declare an interest". The statement must be sufficiently informative to enable those at the meeting to understand the nature of your interest but need not give a detailed description of the interest.

5.16 Declaring a financial interest has the effect of prohibiting any participation in discussion and voting. You should leave the meeting room until discussion of the item of business is concluded.

5.17 A declaration of a non-financial interest involves a further exercise of judgement on your part. You must consider the relationship between the interest which has been declared and the particular matter to be considered and relevant individual circumstances surrounding the particular matter.

5.18 In the final analysis the conclusive test is whether, in the particular circumstances of the item of business, and knowing all the relevant facts, a member of the public acting reasonably would consider that you might be influenced by the interest in your role as a councillor and that it would therefore be wrong to take part in any discussion or decision-making. If you are not confident about the application of this objective yardstick, you should play no part in discussion and should leave the meeting room until discussion of the particular item is concluded. If you, in conscience, believe that your continued presence would not fall foul of this objective test, then declaring an interest will not preclude your involvement in discussion or voting.

1.4 The respondent signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent undertook to meet the requirements of the Councillors' Code of Conduct during his period in office.

1.5 For the purpose of this investigation, I was assisted by Douglas Winchester, Investigating Officer.

1.6 This report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The report was submitted in draft form to the respondent for any representations.

Outline of the Complaints and Response

The Complaint

2.1 The complaint is set out in a letterfrom the complainant. Over a period of some years, the complainant has been an applicant for planning permission for a residential development on land that he owns at Inchcross, Bathgate. On four occasions planning consent has been refused. It is the complainant's view that the respondent has been instrumental in these decisions and should have declared an interest in them, and taken no part, due to a link with the principal objector, Mr J M Bryce, who it is alleged is a personal friend and land agent of the respondent. The complainant also queries the alleged conduct of the respondent in participating in the Council decision to adopt the Finalised West Lothian Local Plan in April 2005, ("the new Local Plan"), when land at Hardhill Farm, Bathgate of which the respondent is part-owner, was designated for future development use. The complainant has also referred to the planning re-designation in the new Local Plan of other farm land at Armadale which he believes is owned by the respondent's brother.

The Response

2.2 The response is set out in two initial communications from the respondent. The respondent confirms that he has always endeavoured to declare an interest on the Development Control Sub Committee when he felt such a declaration was necessary. If he has failed to do so, he indicates that this was not deliberate. He also acknowledges that he was approached by the principal objector in connection with the complainant's development proposals at Inchcross but confined himself to confirming his view on landscaping issues in relation to the site. He indicates that he is not responsible for any statements made by that objector to others. He also acknowledges that he owns a tenth share in Hardhill Farm which he declared in the West Lothian Council Register of Members' Interests. The respondent emphasises that he only has a small minority interest in Hardhill Farm and that all matters relating to it are managed by his brother. The principal objector had been engaged by the respondent's brother as a land agent in respect of the Farm.

The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council.

3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainant, the respondent and relevant witnesses. The interviews took place on 5 March, 7 March and 3 April 2007.

Consideration of the Evidence

4.1 Councillor Jim Sibbald was a Scottish National Party Councillor from 1977 to 2007, serving at district, regional and unitary authority levels during that period. He was Vice-Convener of West Lothian District Council from 1992-96 and held various senior committee appointments over the years with a particular focus on planning and economic development. Following the local government elections in May 2003, being the period involved in this complaint, the political composition of the Council comprised Labour Party (18 seats), Scottish National Party (11 seats), Independents (2 seats) and Conservative (1 seat).

4.2 In line with Standards Commission guidance, training of members on the Code of Conduct was given by Council Officers, which the respondent attended.

4.3 The following specific examples have been referred to by the complainant to illustrate the alleged course of conduct followed by the respondent. (It should be noted that there is a considerable history to the planning proposals for the Inchcross area which predates the introduction of the Code. It is however necessary to refer to some historical background to explain the position.) The examples are:

Land at Inchcross, Bathgate

The crux of the complaint is that since 1 May 2003 the complainant has been refused planning permission for a residential development on land that he owns at Inchcross, Bathgate on four occasions by the appropriate sub-committee of the Council. On two out of the four occasions the respondent has, in terms of the published Committee minutes, moved or seconded the motion to refuse consent. (On the other occasion the respondent was not present at the meeting, being on holiday). On each occasion, the officer recommendation has been to grant consent with appropriate conditions. After the first refusal of his application, the complainant exercised his statutory right to appeal the Council's decision to the Scottish Executive Inquiry Reporters Unit. The outcome of that planning appeal was to uphold the decision of the Council but with a clear indication being given that some form of lower density housing development was appropriate on part of the site. (The complainant adjusted the scale of his subsequent planning applications accordingly.) During the course of that appeal process the complainant also became concerned as to the connection between the principal objector to his development and the respondent. He was aware the principal objector was providing professional services in respect of Hardhill Farm in respect of possible development. He submitted a written complaint to the Council and as a result was invited to meet with Mr Stephen Field, Head of Regulatory and Development Services. The outcome of the meeting was that the complainant submitted a further application with no additional fee being incurred.

The complainant also raised with the Council the specific issue of an historic planning condition which had been specified in relation to a previous planning consent granted in the early 1990s in relation to an adjacent housing development at Inchcross. That condition had required appropriate landscaping to be undertaken. However, the area to be landscaped at that time was not in the same legal ownership as the development site and the Council subsequently lifted that condition on the basis it was unachievable and irrelevant. Notwithstanding, it was the view of the complainant that elected members, in subsequently considering his own applications were under the wrong impression that the complainant was at fault in relation to this point. On this aspect of his concerns, the Head of Regulatory and Development Services did agree that the situation had perhaps not been fully and correctly explained in subsequent planning reports to the Committee.

The third main aspect of the complainant's concerns about his site related to the adoption of the new Local Plan by the Council. The respondent participated in the decision to approve that Plan. One of the effects of adopting this new Local Plan was to change the land categorisation of the complainant's site from "Land with Planning permission" to "Land Protected for Open Space".

4.4 At interview, the Monitoring Officer confirmed that he had not been consulted about this matter and was unaware of the details of it until the complaint to me had been intimated. He considered the respondent to be a very experienced councillor. On the question of the approval of strategic policies like the new Local Plan it was his view that, generally, it was open to members to participate in formal decision making to approve same. He felt there was a clear distinction to be drawn between determining the high level planning policies for the whole of the West Lothian area and participation in decisions on individual planning applications which then subsequently arose where a member had a clear and direct interest in a specific case. He considered that the key issue in terms of the Code was whether or not the respondent had a significant non-financial interest in the Inchcross site arising from his relationship with the principal objector, as his land agent. He took the view that whilst it might have been prudent for the respondent to declare such an interest, this was a matter for his judgment in terms of paragraph 5.18 of the Code. He also confirmed that the current practice, introduced shortly after the Council Elections in 2003, was to have a Standing Item on each Agenda entitled "Declaration of Interests". The purpose of this was to assist members to remember the need for such consideration at each meeting. Subsequently to the introduction of this system a further development had been implemented in February 2005 namely, that when meeting papers were issued, a "blue slip" of paper was enclosed on which members were requested to complete to confirm details of any declarations so that the member of staff responsible for drafting the minute of the meeting would have a note of the point.

4.5 At interview, Councillor Alex Davidson, Chair of the Development Control Sub Committee responsible for taking decisions on planning applications, confirmed that the respondent was very experienced in planning matters. As Chair, he himself did not remember individual applicants but he remembered sites. He was well aware of the Inchcross situation which had a long history. He recollected that this was a site which had had a landscaping condition applied to it but which had not been implemented as councillors had intended. It was a matter for councillors to take decisions on the applications placed before them. Planning Officers made the recommendations but it was an elected member's task to take the decisions. As Chair, he was always very mindful of the need to deal with applications on an appropriate basis and, indeed, on one occasion in relation to the complainant's site, because he had been approached prior to a meeting by the complainant's land agent seeking to explain his client's position, he had taken the decision not to take part in the subsequent decision at Committee.

4.6 At interview the Development Control Manager, Mr Chris Norman, confirmed that it was the view of Development Control Officers within the Planning Department that some residential development on the complainant's site was appropriate and they had recommended accordingly. They were mindful of the decision of the Scottish Executive Inquiry Reporters Unit on the Planning Appeal. Ultimately, however, the decisions were ones for elected members to take at Committee. It was acknowledged that previous planning reports to Committee had not been accurate on the question of the historic landscaping condition but this had been corrected in the recent past. In relation to the re-designation of the complainant's site in the new Local Plan as "Land Protected for Open Space", his section of the Planning Department had not been involved in seeking such a re-designation.

4.7 At interview, the Planning Services Manager, Mr Craig McCorriston, whose section had overall responsibility for undertaking the work in preparing the details of the new Local Plan for approval by members, confirmed that he had taken over this responsibility from a previous manager who was no longer with the Council. The current situation was that there had now been a Public Inquiry in connection with the new Local Plan to deal with objections to it. A decision was expected from the Scottish Executive in early 2008. Objections at the Inquiry had included those from the complainant in respect of the re-designation of his site. He had no direct knowledge of how the proposed change in the re-designation of the complainant's site came about. In his view, however, it was still feasible for some residential development to take place despite this proposed designation. He confirmed that the respondent had never discussed this site with him at any time.

4.8 At interview, the Development Planning Manager, Mr Colin Miller, was questioned about the complainant's recollection that the principal objector had, at a site visit in connection with his Appeal against Planning Consent, made certain statements about his connection to the respondent. The Development Planning Manager confirmed that he had no recollection of any such statements made at the site visit he attended.

4.9 At interview, the respondent confirmed that he had consistently taken the view that the development of the complainant's site was inappropriate. He had advised the principal objector of this when he had approached him. He had nothing against the complainant but he had very clear views about this site being unsuitable for more housing development. He was not the local member and it was the case that the local member had also opposed the proposal. He had referred the principal objector to his local member. He was not responsible for any alleged remarks made by the principal objector and with his lengthy experience of planning matters he knew that such behaviour on his part, as alleged, would have been wholly inappropriate. He had not lobbied anyone for the re-designation of the Inchcross site in the new Local Plan. He could only presume that the proposal for re-designation simply reflected planning officers' recognition of the consistent stance of the Council in recent years that no more residential development at this location should take place. He had no involvement in the employment by his brother of the principal objector. He had seen him at a handful of social occasions over the last 8 years.

Land at Hardhill Farm, Bathgate

4.10 The Council's Register of Interests for the respondent confirms that on 29 May 2003 he declared a registerable interest as a part owner of Hardhill Farm, Bathgate. At interview, the respondent confirmed that the property in question had once been the family farm and he had inherited a tenth share of it. It was no longer a working farm, having reduced in size over the years due to the expansion of Bathgate and currently he had no real involvement in dealing with it. The ownership in question consisted of residual land. The family members involved left it entirely to his brother to look after. He did not receive any income from the farmland in question. He had not been involved in any business negotiations regarding use of part of the farmland for further housing development. He stated he did not know what the farmland in question would sell for if incorporated in the adjacent housing development. After deduction of tax and other associated costs, he speculated that he might receive a "few thousand pounds". He was aware of a planning application on the boundary of the farm for the redevelopment for housing involving the site of a former public house and function suite. In that connection, there had arisen a local proposal for a new drop-off point to the adjacent school to be included in the development to alleviate traffic congestion problems. It had then emerged in discussions between Council officers and the proposed developer that if that access facility was to be included within the original development site some further land forming part of the existing farmland needed to be included to make the project viable, so far as the developer was concerned. Ultimately, the new Local Plan presented to councillors for approval in April 2005 contained an adjustment to the town boundary at Hardhill Farm to include a portion of the farmland as now being designated for potential development use. The approval of the new Local Plan was considered at the meeting of the Enterprise and Development Committee of the Council on 19 April 2005 at which the respondent was present. The format of the meeting was that a presentation was given by a Senior Officer on the overall strategic issues involved in the proposed Plan rather than dealing with specific sites. (The Head of Regulatory Services expressed surprise that the decision to approve the Plan was taken in a relatively short space of time by the Committee.) (The Minute records that two councillors declared interests). The respondent did not do so and took part in the decision to approve the draft proposals, which as a result became the new overall policy of the Council in relation to the future strategic planning development of West Lothian. The agenda report confirms that members were provided with the Written Statement accompanied by a booklet of plans comparing the previous proposal plans with those in the Local Plan to show where the changes had occurred. The Local Plan document consisted of 210 pages with 63 pages of supporting Appendices and maps covering the Council area showing the proposals. Chapter 6, (10 pages), dealt with Housing and Appendices 6.1 and 6.1.1, (22 pages), listed the individual housing sites in sections by settlement area. The entry for the site in question was stated as "HBg47, Windyknowe, Glasgow Road. New Allocation 01.26 Hectares 74 units". Chapter 3 dealt with the Countryside of West Lothian and page 29 dealt with the policy on the Bathgate/Whitburn Belt. There are excerpts from the Local Plan document detailing the information published on the Housing Sites and Countryside Belt so far as relevant to this case.

4.11 The Monitoring Officer indicated his view of this matter was that a conflict of interest situation had not yet arisen in respect of the land at Hardhill Farm as the individual planning application for the proposed housing development was awaiting the outcome of the Public Inquiry into the new Local Plan. In addition, the matter of redeveloping this area would have to be referred to Scottish Ministers for separate consideration due to the Council's own direct interests in the proposed school dropping-off point.

Re-designation of Bathgate/Whitburn Countryside Belt

4.12 The complainant has also raised the matter of the re-designation of land near Armadale from the previous classification of "Bathgate/Whitburn Countryside Belt" to "Mixed Use" within the new Local Plan. He alleges that part of the area belongs to the respondent's brother and that a declaration of interest should have been made by the respondent. This change was also part of the formal decision making process of the Council on 19 April 2005 in which the respondent participated. (It should be noted that subject to a minor amendment on a matter not part of the complaint, the new Local Plan was unanimously approved.)

4.13 At interview, the Planning Services Manager confirmed that in the preparations of the proposed new Local Plan which he oversaw, he had had no direct contact nor received any representations from the respondent on the formulation or the content of the document. One of the Council's principal policy objectives was the re-establishment of the Airdrie to Bathgate Rail Link. He stated that, in planning terms, it was desirable for land all along the route to be re-evaluated for possible development purposes to facilitate the achievement of this objective. He also confirmed that, in connection with the new Local Plan, a register of all comments and representations received on the matter was kept as part of the process. The Register had been checked and there were no representations received from the respondent.

4.14 At interview, the respondent indicated that he had not been aware of any relevant re-designation of the land in the vicinity of the proposed rail link. In addition, when he received the Local Plan document, he had only been concerned with certain specific sites in his ward. He had not really absorbed the totality of all the proposals. It had not occurred to him to declare an interest in respect of this matter.

4.15 At interview, the respondent confirmed that he was not seeking re-election in May 2007

Findings and Conclusion

5.1 The complainant alleges that Councillor Jim Sibbald contravened the Councillors' Code of Conduct, as outlined in paragraphs 1.3 and 2.1 of this Report.

5.2 The first part of the complaint relates to the fact that over a period of some years, the complainant has been an applicant for planning permission for a residential development on land that he owns at Inchcross, Bathgate. On four occasions planning consent has been refused. (On another occasion, the complainant withdrew an application before it was determined.) It is the complainant's view that the respondent has been instrumental in these decisions and should have declared an interest in them, and taken no part, due to a link with the principal objector who it is alleged is a personal friend and land agent of the respondent. The complainant also raises the question of alleged conduct of the respondent in respect of the adoption by the Council of the new Local Plan in April 2005 when some land at Hardhill Farm, Bathgate of which the respondent is part-owner, was designated for future development use. The complainant has also referred to the re-designation in the same Local Plan, for Mixed Use, of other farm land at Armadale, which he believes is owned by the respondent's brother.

5.3 These allegations in respect of this complaint each have to be considered against the specific terms of the Code which are involved to assess the obligations the respondent has to meet in that regard.

5.4 The starting point for evaluating this complaint is the obligation on councillors set out in the Code to register, in a public register, maintained by their councils, any interest they have in Houses, Land or Buildings, (paragraphs 4.18 and 4.19 of the Code). Section 5 of the Code deals in detail with matters of subsequent Declarations of Interest by councillors in conducting Council decision-making. Paragraph 5.6 of the Code confirms that any financial interests of a councillor must be declared at Council meetings where related business is being considered and decided. Paragraph 5.16 specifies that the Declaration of a Financial Interest has the effect of prohibiting any participation in discussion and voting. Section 5 also deals with the issue of Non-financial Interests and sets down particular obligations on a councillor to consider this category of interest also before deciding whether or not it is appropriate to be involved in the decision making process at committee or full Council meetings, (paragraphs 5.17 and 5.18 of the Code). Paragraph 5.13 also deals with the interests of relatives and close friends.

5.5 The three aspects of this complaint fall to be considered, in turn, against the foregoing Code obligations as follows:

Land at Inchcross, Bathgate

5.6 It is not in dispute that there have been four refusals of planning consent in respect of the complainant's property at Inchcross since the introduction of the Code on 1 May 2003. It is also not in dispute, in terms of the recorded minutes of the relevant meetings, that the respondent and the then Chair of the Development Control Sub-Committee, Councillor Alex Davidson, have generally been instrumental in leading opposition to the proposals which officers have recommended for approval. The specific allegation is that there is a business and social link between the respondent and the principal objector. The respondent has conceded that he has known the complainant for some 30 years and the principal objector for some 8 years, the latter in the capacity as a land agent whom his brother has instructed to act in certain aspects relative to the family farm. He has also seen him at a few social events over these years. Some information was provided of alleged comments made by the principal objector in respect of his link to the respondent. The respondent has vigorously rebutted any suggestion that he has acted on behalf of, or favoured the principal objector, due to the connection. He has also been quite clear that he has never considered the complainant's site as suitable for housing development and feels he has been wholly consistent in his approach in dealing with the applications. He has referred to his extensive experience in dealing with planning matters and the need for due process. The complainant has provided no evidence of close friendship between the principal objector and the respondent.

5.7 One aspect arising from this investigation was the historic matter of a prior planning condition to undertake landscaping works at Inchcross which was never done, (and which was not part of the complainant's land holding). The complainant considered that previous planning reports on his applications had been inaccurate in imputing to him this obligation. Indeed, the specified Committee reason for refusal of his planning application in 2003 was given as the prior failure to landscape. The complainant raised this issue with planning officers and there was a recognition that the historic background had not been accurately reported to members and adjustments were made in the subsequent written reports to the Sub-Committee on the point.

5.8 However, it was clear at interview that the foregoing reporting adjustments in dealing with this landscaping obligation had not been wholly successful in placing the complainant's applications in the current correct context, certainly so far as the Chair of the Development Control Sub-Committee was concerned. (It should be noted that on one occasion an application by the complainant for his site had been refused on the casting vote of the Chair). I consider it is incumbent on the Council to take further steps to place the landscaping matter beyond doubt on any future occasion it may consider a planning application for this site and I am making a recommendation to the Council to that effect.

5.9 The Council has, on four occasions, refused planning consent for housing development by the applicant. This is despite clear officer recommendations to grant same and an indication by the Inquiry Reporters Unit when the complainant exercised his statutory right of appeal on one occasion that some housing development was considered appropriate. There is no doubt that the matter was, however, clearly within the domain of members to determine. There is no evidence before me that the respondent had any financial interest in this site. As regards the matter of non-financial interest, the respondent was entitled, in terms of the Code, to consider whether or not the business or social link with the principal objector was such that a non-financial interest arose. The test which should be applied is as set out in paragraph 5.18 of the Code. There was no evidence that the relationship between the respondent and the principal objector was one of close friendship, but only one of acquaintanceship. The fact that the respondent determined not to declare any interest was within the range of options open to him in the matter.

5.10 In respect of this issue I make the following conclusion:

As regards the allegation that there has been a failure to declare a non-financial interest in respect of the site at Inchcross, Councillor Jim Sibbald has not contravened the Code of Conduct.

Land at Hardhill Farm, Bathgate

5.11 The respondent provided confirmation in the West Lothian Council Register of Members' Interests for the relevant period that he has various interests in Land Property or Buildings, including Hardhill Farm, Bathgate. At interview, he confirmed that the land holding in question was the remainder of the former family farm in which he had a tenth ownership share. In making this register declaration, the respondent has complied fully with the Code requirements to do so (as set out at paragraphs 4.18 and 4.19).

5.12 Prior to the adoption of the new Local Plan, this land holding was designated as "Countryside Belt" adjacent to the town boundary of Bathgate. In view of that designation, this farm land would then have attracted a valuation based on agricultural-type usage. The new Local Plan envisaged the re-designation of part of the farm land for development use in connection with a redevelopment of an adjacent site for housing purposes. As a result, the value of the farmland would in all probability, be significantly higher. As a part owner, the respondent would be a direct financial beneficiary in any sale for housing development. It is also a matter of record that there is a current planning application lodged with the Council for a proposed housing development which includes the relevant part of the farm land. The applicant is a housing development company which has confirmed that it is the "purchaser under missives" from the Sibbald family. The respondent has not disputed that as the owner of a tenth part in the remaining farm land, if the plot of land is sold for housing, as envisaged by the Local Plan proposals, he will stand to gain a material financial benefit.

5.13 It is the position of the respondent that all matters to do with the farm were dealt with by his brother, including approaches from developers and the appointment of advisors. He had no involvement whatsoever. There is no formal decision making process within the family and the respondent's brother is trusted to deal with matters without reference to the other family members. It is a matter of record that the respondent was a participant in the formal decision of the Council to approve the new Local Plan. He considers it was in order for him to do so as no individual planning application had been submitted to Committee for determination in respect of the farmland.

5.14 The terms of paragraph 5.16 of the Code are clear and unequivocal in relation to the step which must be taken where a councillor has a declared register interest of a financial nature in relation to an item of council business. The councillor in question must take no part in the relevant decision which affects that interest. In his evidence the respondent did indicate that he recognised he would have had to declare an interest when the individual planning application for the housing development to be built on part of Hardhill Farm came up for determination by the Development Control Sub-Committee. In this instance whilst the land re-designation was part of an overall strategic document for the whole of the West Lothian area, the approval of the new Local Plan would have the effect of enabling housing development on land not previously designated for such use with the probable result of increasing the value of the farmland significantly, (subject to final approval of the Plan after any public inquiry). The respondent would in all probability be a direct and substantial financial beneficiary. Each individual site was identified in the relevant Housing Appendix. In addition the Appendix also referred to the site and confirmed a minor extension of the settlement boundary. The entry for the site in question was stated as "HBg47, Windyknowe, Glasgow Road. New Allocation 01.26 Hectares 74 units." (see also paragraph 4.10 above). The respondent took part in the formal approval of the new Local Plan. The Council had well-developed mechanisms for dealing with Declarations of Interest. Not only was there a standing agenda item, but also a specific Form issued with the Agenda for completion by members. (This system is to be commended as good practice.) I would also observe that, even allowing for any "arms length" family arrangements which the respondent felt existed, it is surprising that the respondent, with his years of experience in this sphere, should have misdirected himself on this matter in relation to his participating in the decision. The proper cause was for the respondent to declare his interest in respect of the relevant proposal in the Local Plan and withdraw from the meeting whilst that proposal was being discussed and approved.

5.15 In respect of this issue I make the following conclusions:

that former Councillor Jim Sibbald has contravened the Code of Conduct, (paragraphs 5.6 and 5.7 of the Code), by his failure to declare a financial interest of his part-ownership of Hardhill Farm, Bathgate and take no part in matters relating to that property during the approval of the finalised West Lothian Local Plan 2005 which included the re-designation of part of Hardhill Farm for housing purposes at the meeting of the Enterprise and Development Committee on 19 April 2005 and that for the reasons set out in paragraph 5.14 hereof;

Re-designation of Bathgate/Whitburn Countryside Belt

5.16 This issue relates to the re-designation of part of the Bathgate/Whitburn Countryside Belt which it is alleged has benefited the respondent's brother, who owned land elsewhere within the Countryside Belt. There is no evidence before me that the respondent had a financial interest in this matter, so no breach of the Code on that point arises. The necessity, or otherwise, for a declaration of a non-financial interest by the respondent needs to be considered. The terms of paragraphs 5.12 to 5.18 of the Code are of relevance. The respondent, in evidence confirmed that he confined his study of the Local Plan document, which was voluminous, to various sites of concern to him in his ward. The Planning Services Manager has provided a detailed explanation of the strategic formulation of the proposals in this location having regard to the Airdrie-Bathgate Rail Link proposal and confirmed that the desirability for land re-designation was considered at officer level along the length of the route. He also confirmed that no approach was made by the respondent regarding this matter in the Plan formulation process.

5.17 It was the position of the respondent that he did not declare an interest in this matter because he never even considered that it might exist. There may well be an argument for the view that a non-financial interest might be considered to be involved. It should be noted that paragraph 5.18 envisages and allows for the participation of a councillor in decision making in certain circumstances even where a non-financial interest exists. It sets out the test which should be considered by councillors in that connection. In this instance, it is not clear that the respondent applied his mind to the terms of this paragraph. I am however persuaded by the evidence of the Planning Services Manager that any re-designation was part of a comprehensive examination by officers covering many land holdings and the respondent had no input in that regard.

5.18 In respect of this issue I make the following conclusion:

that former Councillor Jim Sibbald has not contravened the Code of Conduct, (paragraphs 5.12 to 5.18), by his failure to declare a non-financial interest.

Summary of Conclusions and Recommendations

5.19 In relation to complaint number LA/WL/506, I have come to the conclusions that:

1. as regards the suggestion that there has been a failure to declare a non-financial interest in respect of the site at Inchross, former Councillor Jim Sibbald has not contravened the Code of Conduct (paragraphs 5.13, 5.17 and 5.18 of the Code) and that for the reasons set out in paragraphs 5.6 to 5.9 of this Report.
2. as regards the suggestion that there has been a failure to declare a financial interest in respect of his part ownership of Hardhill Farm and take no part in matters relating to same, former Councillor Jim Sibbald has contravened the Code of Conduct, (paragraphs 5.6 and 5.7 of the Code), and that for the reasons set out in paragraphs 5.11 to 5.15 of this Report.
3. As regards the suggestion that there has been a failure to declare a non-financial interest in respect of other land involved in the re-designation of the Whitburn/Bathgate Countryside Belt, former Councillor Jim Sibbald has not contravened the Code of Conduct (paragraphs 5.13, 5.17, 5.18 and that for the reasons set out in paragraphs 5.16 and 5.17 of this Report.

5.20 This complaint has also highlighted the need for further steps to be taken by the Council to ensure that members considering any further planning applications in respect of the Inchcross site are fully aware of the correct position in relation to the confusing historic issue of landscaping requirements in the area and I so recommend.

5.21 Paragraph 4.15 of this Report has explained that the respondent did not stand for re-election in May 2007. The Standards Commission is invited to have regard to this in considering its disposal of this case.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
08 August 2007