Planning & Environment

The Councillor’s Code of Conduct first came into effect on 1st May 2003. It plays an important role in setting out the standards of conduct which must be adhered to by councillors including when they are engaged in taking decisions on individual applications such as planning applications. Councillors believed to be in breach of the code may be referred to the Standards Commission for Scotland which has the authority to impose sanctions including suspension and disqualification.

The Commission’s Annual report for 2009/10 indicates that of the total number of complaints submitted in that time period (200), 34% related to misconduct on individual applications which in the main relates to planning. The overall number of planning related complaints was 84 or 41% of the total number of complaints lodged. This is not an insignificant number; however, the vast majority of complaints (140) result in no further action after investigation. Having said that, the numbers of complaints raised in connection with planning matters might reasonably be taken as an indication that from time to time the role of the elected member in the planning system continues to give rise to controversy. But the outcomes suggest that some of the controversy may be without much in the way of foundation.

Surprising perhaps, that the consultation paper on proposed amendments to the Code that was issued by the Scottish Government at the end of 2009 attracted very little in the way of interest. Out of a total of 39 responses, 24 were submitted by local authorities. Other than from ASDA, there was no developer or planning consultancy interest (although there were two unpublished responses so there might well be a consultancy hiding under a cloak of anonymity) and there was no more in the way of interest from planning lawyers.

Depending on the Parliamentary timetable the revised code will be adopted later in the year. Doubtless planning authorities will be providing refresher training for elected members. The rest of us would do well to read the Code, particularly if we are to be involved with controversial applications. Thinking we know what it says is not the same as really knowing what it says and being able to advise clients from the perspective of one who is properly informed.

Some of the changes reflect the introduction of LRBs and other attributes of the reformed planning system. In particular the draft amended guidance recognises that some planning decisions will be taken by full council as opposed to the planning committee. As currently drafted the guidance suggests that councillors will be entitled to take part in decisions to be made by full council notwithstanding they may have expressed an opinion on the application at a pre-determination hearing or at the planning committee. This contrasts with the guidance given in respect of other applications that are to be decided by committee in which case councillors continue to be advised not to indicate or imply their support or opposition for a proposal or declare a voting intention before the meeting.

Paragraph 7.8 of the draft amended guidance suggests that councillors may be asked to comment on a request for a provisional view as to whether the authority might be minded in principle to consider granting planning permission. From my reading of the guidance it would appear to refer only to major developments, although it’s not clear whether it is intended to apply to all major developments or just those that require to be decided by full council. A number of respondents have expressed concerns about a lack of clarity as to whether the guidance is intended to refer to all development. Interesting to see, also, that some council respondents welcome the addition of the guidance at Paragraph 7.8 whilst others stop only a little short of demanding that it is immediately excised, as it is, in their view, the role of officers, not councillors, to offer a preliminary view on planning applications.

The Scottish Government is working its way through the responses and will hopefully make sense of it all in due course. I know from personal experience, however, that some elected members do not talk to anyone other than officers about pending planning applications (“no’ even ma mammie” – to quote a favourite) and I doubt that any changes to the guidance that are intended to clarify acceptable practice will make the slightest dent in their approach, particularly when you factor into their thinking the number of complaints that are made to the Standards Commission with regard to planning matters.

Jackie McGuire

Partner at Brodies LLP
Jackie is a partner at Brodies and a specialist in the field of local government law. She has direct experience in the public sector and in major project management, ensuring a practical and pragmatic approach to problem solving.
Jackie McGuire