Public Law

A recent decision of the Public Standards Commissioner highlights that the involvement of councillors in the planning system, especially where they are perceived as having an interest, financial or otherwise, in planning matters, continues to give rise to heated debate.

The decision is concerned with the conduct of a number of Shetland councillors with varying degrees of interest in the Shetland Charitable Trust and its subsidiary, Viking Energy limited, against the back drop of a Scottish Government consultation in respect of a windfarm application, and a related planning application that fell to be determined by Shetland Island Council. In deciding that none of the councillors against whom allegations had been brought (14 in all) had breached the Code of Conduct for Councillors, the PSC underlined the distinction between financial interests and non financial interests and the behaviours that might reasonably be expected of councillors when such interests came into play.

In his decision notice the Commissioner comments “the key factor underlying the registration and declaration of interests is transparency. This in my view was observed by all concerned and had been promoted by the Monitoring Officer and Convener. While a perception might have arisen that councillors who were also trustees would inevitably seek to promote a venture in which the Trust and the Council had corporate interests, and which they had an obvious wish to succeed, this would be balanced by their demonstrable consideration of opposing views, account taken of advice from their professional officers and external consultants, and proper observance of the democratic process.”

In effect the PSC applied what is known as the objective test which is whether a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice the discussions or decision making of a person acting in the capacity of a councillor. In my experience the problem with the objective test (in the planning system) is that it is often applied with a degree of subjectivity. In the Shetland case the council’s Monitoring Officer had the foresight to issue advice at an early stage and the councillors were seen to act on it. This made a considerable impression on the PSC. The role of the Monitoring Officer is not always an easy one, but in this case, a the right approach appears to have paid dividends.

Government, Regulation and Competition Law
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