Summary: Mr X complains about the Council’s decision not to uphold his complaint that a councillor failed to declare a non-pecuniary interest. The Ombudsman will not investigate this complaint. It is unlikely we will find fault in the way the Council considered his complaint. And we cannot achieve the outcome he is seeking.

The complaint

1. Mr X complains a councillor failed to declare a non-pecuniary interest before taking part in planning committee and using his casting vote to approve a planning application.
2. He wants the planning approval rescinded or suspended and the plans considered by a differently constituted committee.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault
• it is unlikely further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered the information provided by Mr X and discussed his complaint with him. I have also considered the Council’s arrangements for dealing with complaints about councillors.

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What I found

5. Two of the councillors on the planning committee are also members of the local fire authority.
6. The Council was due to consider a planning application for former fire station. Councillor A sought the opinion of the clerk to the fire authority. The clerk told her he considered her to have a personal and prejudicial interest in the application and advised her to take no part in the item. He also advised her to seek advice from the monitoring officer of the Council. But confirmed decisions regarding declarations of interest are matters for Councillors themselves.
7. Councillor A declared she was a member of the local fire authority and would not be taking part in the debate and decision making for the item.
8. Councillor B declared he was also a member of the local fire authority, but he considered this was a non-pecuniary interest and he would participate in the debate and decision making.
9. The item was debated, with several councillors speaking on the application. Councillor B – who was the chair of the committee – used his casting vote and the application was approved 5 votes to 4.
10. Mr X says the approved development will deprive him and his neighbours of about 80% of their daylight and cast their homes into shadow from October to March. He also says the development will cause severe noise nuisance. He wrote to the monitoring officer, concerned councillor B has a non-pecuniary interest in the application and should not have taken part. Had he not used his casting vote, the application would not have been approved.
11. The monitoring officer considered Mr X’s concerns. He says he discussed the matter with councillor B. He is satisfied the councillor did not have a disclosable pecuniary interest in the application. He also noted the councillor declared a non-pecuniary interest and decided to participate in the determination of the application. The monitoring officer decided that councillor B had considered whether he should participate or not.
12. The officer also confirmed to Mr X that personal interests are decisions for councillors to take. He confirmed the Council would not take any action on the matter.
13. Mr X then made a formal complaint to the Council that councillor B had breached the code of conduct by not declaring an interest and taking part in the debate and decision on the planning application.
14. The monitoring officer wrote to Mr X confirming he had not changed his position on the matter and the Council would not take any further action.

Assessment

15. The Ombudsman does not offer a right of appeal against a council’s decision on member conduct complaints, but we can consider if there was fault in the way the council considered the complaint. We will only investigate complaints if there is sufficient injustice to warrant our involvement.
16. The Council’s procedure for considering code of conduct complaints says:

After considering the information provided, the monitoring officer may make one of three decisions;

i) Decide that no action should be taken- with reasons for this decision OR

ii) Take other action OR

iii) May refer the matter for investigation

If the monitoring officer decides that no action should be taken, then reasons will be stated and the complainant informed.

17. In this case the monitoring officer considered Mr X’s concerns. He questioned councillor B and considered the minutes of the planning meeting. The officer confirmed to Mr X that he is satisfied the councillor did not have a disclosable pecuniary interest in the application. And he had considered his interest in the application and whether he should participate or not.

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Final decision

18. I will not investigate this complaint. This is because we are unlikely to find fault in the way the Council dealt with his complaint about a councillor.

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Investigator's decision on behalf of the Ombudsman