Summary: The Ombudsman found no fault by the Council on Mr D’s complaint about the way it investigated his report of the bias and lack of objectivity of 2 councillors involved with a planning application given consent. The deputy monitoring officer assessed the evidence and decided it insufficient to warrant further investigation as it failed to show a breach of the Code of Conduct for members.

The complaint

1. Mr D complains the Council failed to properly investigate his claim that 2 councillors failed to consider a planning application objectively as they decided they would approve it before the planning committee meeting in breach of the members’ code of conduct; as a result, he believes this failure undermines public trust in the planning process.

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The Ombudsman’s role and powers

2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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The Council’s Local Code of Conduct for Members

4. A member must not use or attempt to use their position as a member improperly to confer on, or secure for themselves or any other person, an advantage or disadvantage. (paragraph 5 (1))
5. A member may not at any time discharge any function or participate in any Council business or discussions or vote on any issues that relate to or concern their disclosable pecuniary interests. They must not remain in the chamber or meeting room or in the public gallery when any matter that relates to their disclosable pecuniary interests is under discussion or debate unless they have requested and obtained a written dispensation from the monitoring officer in advance. (paragraph 7.2)
6. A member must declare any disclosable pecuniary interest or local non-pecuniary interest to a meeting where business is relevant to those interests. (paragraph 7.4)
7. Disclosable pecuniary interests include employment, office, trade, profession or vocation carried on for profit or gain. In addition, it includes a beneficial interest in any land in the Council’s area. (paragraph 1 and 5, Part 1)
8. Local non-pecuniary interests include: any body of which they are a member or in a position of general control or management and to which they are appointed or nominated by the Council; the interests of any person from whom they received a gift or hospitality with an estimated value of at least £25. (paragraph 1 and 3, Part 2)

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How I considered this complaint

9. I considered all the information Mr D provided, including the notes I made of our telephone conversation, along with the Council’s comments on my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr D and the Council.

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What I found

10. Mr D complains about the Council’s investigation of Councillor X and his wife Councillor Y on a planning application (application 1). The applicant wanted consent to expand a business on his site. Mr D claims the applicant had pre-application contact with the Council before making a planning application. Councillor X sat on the planning committee which granted consent.
11. He alleged the councillors met the applicant on a previous application for the site in 2017 (application 2). This was withdrawn. Mr D claimed the Council reviewed its decision on this application. He also complained about Councillor X and Councillor Y’s application to develop land next to their former home on the same road as the business site (application 3).
12. Mr D claims against the councillors included:

• They both previously lived on the same road as the application site. They sold their house at a time when, he claims, they knew the applicant would submit a planning application. The implication seems to be they did this to avoid any negative impact on their property from potential development;
• Although the applicant withdrew the planning application submitted, application 1 reduced the scale of the development;
• Councillor X sat on this committee. He also sat on the committee that gave consent to a related application that involved judicial review (application 2);
• Councillor X had already decided to grant consent for application 1 before the committee met. This was because of comments he allegedly said during a political party meeting Mr D did not attend. He is claimed to have said there was no way he would refuse it and it has ‘got to go through’. Councillor X is alleged to have said he met the manager for the site, had concerns if consent was not granted, and had an interest in the application; and
• Councillor Y, a district councillor, addressed the committee in support of this application.

13. The Council explained it received an initial complaint from Mr D a few days before the planning committee met to consider the application. Mr D raised claims of bias, pre-determination, and pecuniary interests against Councillor X. The monitoring officer contacted the Council’s planning solicitor, who was the legal advisor to the planning committee.
14. The officer contacted Councillor X and told him about the complaint. The officer was satisfied the councillor would approach it with an open mind and had no pecuniary interest that would prevent his involvement in the decision-making process. The Council failed to send evidence of this call.
15. The minutes for the committee meeting show Councillor X declared a non-pecuniary interest. This was because he had lived on the road for more than 10 years in the past. The minutes state he spoke to the deputy monitoring officer about it and would approach the application with ‘an open mind’. After the meeting, the deputy monitoring officer asked the planning solicitor about the advice he gave at the meeting and what was discussed. The solicitor replied several days later.
16. After receiving this information, the officer decided there was no breach of the Code of Conduct. He explained this to Mr D in a letter.
17. The Council noted there was no corroborating evidence for Mr D’s claim about what Councillor X had said at the private party meeting, which was not under the Council’s control. The Council spoke to the Councillor about this claim who denied it.
18. The Council also considered political meetings are likely to fall within the Chatham House Rule of confidentiality. This is a rule widely used by local government and commercial organisations. It is a 90-year-old rule whose purpose is to provide anonymity to speakers and encourage openness and information sharing. The rule states any comments made during a conference or meeting cannot be attributable to an individual, either directly or through implication. It is used in meetings to allow commercial or political information to be shared to promote free discussion.
19. The Council also referred to section 25 of the Localism Act 2011. Paragraph 2 states a ‘decision maker is not to be taken or to have had, or to have appeared to have had, a closed mind when making the decision just because:
1. the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and
2. the matter was relevant to the decision’.
20. Taking this into consideration, along with the Councillor’s comments about approaching it with an open mind, the Council decided to take no further action.
21. The Council confirmed Councillor Y was invited to the committee meeting as a neighbouring ward member. She had no vote on the committee.

Analysis

22. The Council’s website explained its monitoring officer can only deal with complaints about the behaviour of a councillor covered by its Code of Conduct. This involves the following stages:

• Stage 1: The officer makes an initial assessment to check it is about a councillor who must follow the Code, that he or she was in office at the time, and if proven true, would be a breach of it.
• Stage 2: A letter is sent to the councillor telling them about the complaint within 14 working days.
• Stage 3: The case is referred to an independent person after 14 days or upon receipt of the councillor’s response. With consultation of the independent person, the officer decides if no action is needed or if action is need, such as further investigation.
• Stage 4: This depends on the outcome of stage 3 but includes a referral to the political group leader, direct resolution (for example, an apology or training), or further investigation.

23. In finding no fault on this complaint, I took account of the following:
1. Upon receipt of Mr D’s complaint, the deputy monitoring officer contacted the planning solicitor who advises the planning committee. The Council failed to provide evidence of this contact;
2. The deputy monitoring officer also contacted Councillor X about the complaint. While it failed to provide evidence of this contact, on balance I am satisfied it took place. This is because the contact is noted in the minutes of the meeting in Councillor X’s declaration;
3. I am also satisfied there was contact between the deputy monitoring officer and the planning solicitor. This is because I have seen the solicitor’s response to the deputy monitoring officer. It referred to an assurance by Councillor X that the claim of pre-determination was not true. The email referred to an allegation concerning an unrelated earlier planning matter which he said was irrelevant to this case. The email also referred to the claim Councillor X previously owned a house on the same road, but he was not convinced of any proper concern on this claim; and
4. I also considered the evidence available to the deputy monitoring officer when reaching the decision to take no further action. This includes:

• Mr D’s claims about the councillors’ meeting the applicant on site. It is not unusual for planning committees and officers to carry out site visits before determining an application. Inevitably, the applicant and possibly their agent may be present. Indeed, I note this was referred to in paragraph 4.3 of the planning statement for application 2;
• Mr D’s claims about the councillors’ involvement in application 2 were unclear and lacked detail. He failed to show why Councillor X’s involvement in this application should have prevented him from involvement in application 1. I also note the applicant withdrew application 2;
• Councillor Y was not involved with the decision making on application 1. She made a presentation to the planning committee about it, which was within her role as ward councillor;
• Councillor X made a declaration at the start of the planning committee meeting which considered application 1 about where he had lived and his approach to the application; and
• There was no evidence of Councillor X pre-determining application 1. Mr D’s evidence was nothing more than hearsay from unattributable sources.

24. I am satisfied, therefore, that the deputy monitoring officer correctly assessed the allegation and found it did not justify further investigation as there was no evidence of a breach of the Code of Conduct for members.

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Final decision

25. The Ombudsman found no fault on Mr D’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman