Generally speaking in Scotland while many are critical of Councillors and the decisions they make, we appear to be generally served by Councillors who conduct themselves most of the time in a proper manner. There are few instances of corruption and when Councillors appear in the press (other than in relation to specific decisions) it is generally because of intemperate exchanges with fellow members or officers! Those of course who are critical of Councillors are typically those would be the last to consider ever fulfilling the significant responsibilities and obligations that the post demands these days (particularly with no or modest remuneration for the role).

The role of Councillors in relation to the determination of planning applications is particularly critical at the current time. We have a different and difficult economic situation. Equally the "culture change" sought by the Scottish Government in relation to the planning system generally is still being developed.

There is case law that makes clear that in the absence of proper delegation a decision in relation to planning applications is a matter for the Council as planning authority or the appropriate Committee of the Council acting in effect as planning authority. While many applications are relatively straightforward and non-controversial, each year in Scotland as can be seen from the press, a number of significant and controversial decisions have to be decided by Councillors.

While there has always been provision for Councils to be able to delegate certain decisions to planning officers, as a result of the 2006 Planning Act brought into effect from 3 August 2009 there is now greater scope for delegation. However, with that delegation there is a different role for some Councillors who may be members of a Local Review Body.

In taking decisions Councillors have to act in the public interest. That role is not always understood particularly by their constituents and local residents who often expect Councillors to adopt their concerns (usually without qualification or limitation) and represent them. Such an approach by a Councillor may result in them being disqualified from the ultimate decision making process and such an event may have significant consequences. For example the original decision in relation to the Trump application in Aberdeenshire was decided on the casting vote of the Chairman of the Infrastructure Services Committee of the Council (in effect for that application the Planning Committee). Had one of the other members been disqualified for any reason then there may have been no scope for that casting vote to be used and the way in which the application would have been handled may therefore have been very different from that which has been rehearsed in detail in the press.

The position in Scotland in relation to the role of Councillors and planning applications has been complicated not only as a result of the changes brought in by the 2006 Act but equally by the fact that in many Councils the political balance is now much closer as a result of a voting system adopted at the Council elections back in 2007. This has meant that the balance on Committees has changed (though planning decisions should not be taken on political grounds). We also have multi member constituencies where the role that a particular Councillor can play may well depend upon whether or not that Councillor is a member of the Planning Committee (or its equivalent) or Local Review Body. This may result in tension if one Councillor as a result of such a membership is considered to be "less in touch make their view clear" with voters simply because they are unable to make their views clear – the risk being that if they do they are in effect disqualified from being part of the decision making process.

While elections are due this year, it seems unlikely the present position will change significantly, though the balance amongst the various parties may change.

Particular difficulties may result in situations where critical to the decision may be subjective issues (typically design issues). A developer may well spend a lot of time refining a design to meet comments from professional officers or outside bodies (such as Historic Scotland or Architecture & Design Scotland) only to find Councillors at the decision making stage do not like what is proposed. As a result of concerns about the consequences of discussing such issues with developers in a proactive way many Councillors simply will not meet with them and if they meet with them not express any view (even one that falls well short of a committed view). This approach may be generally in accordance with the Code referred to below but does not assist in addressing issues which may cause concern and ultimately refusal. That approach may be understandable. An unscrupulous developer may try and use such discussions to force a Councillor to stand down from a decision making process in circumstances where that Councillor is perceived to be negative in relation to the proposal.

Irrespective of whatever side of the development industry you are on it is fair to say that the balancing of these issues is far from easy.

There has been in Scotland for over 7 years a Code of Conduct that applies to Councillors. This was approved originally by the Scottish Parliament back in 2001 and became effective in May 2003. The Code was reissued in April 2007.A revised version came out in December 2010 (click here to view).

The Code makes clear that it is based upon 9 key principles which are:-

  1. Duty
  2. Selflessness
  3. Integrity
  4. Objectivity
  5. Accountability and Stewardship
  6. Openness
  7. Honesty
  8. Leadership
  9. Respect

The Code seeks to explain what these mean in practice.

While the Code deals with a number of areas Section 7 in particular is relevant to planning and other decisions of a quasi-judicial or regulatory nature (such as liquor and other licensing functions). Section 6 is also of relevance dealing with lobbying and access in general terms.

Paragraph 7.6 makes clear that the handling of individual applications should not limit a Councillor from discussing or debating matters of policy or strategy even although these may set out a framework in which specific decision may subsequently be made. That is a significant issue in itself and one which was an issue before the court in a recent case involving Perth & Kinross Council (click here to the read the commentary on Sainsbury case "Supermarket Wars").

The Code also confirms what a Councillor can and cannot do in respect of a specific planning decision. One issue addressed is a matter that creates difficulties, namely situations where a developer seeks a view in relation to an application prior to undertaking expensive preparatory work. In other words the developer may want to establish whether the principles of development will be acceptable to the Council.

Paragraph 7.11 is a key paragraph. It states:-

"If you propose to take part in the decision making process you must not give grounds to doubt your impartiality. You must not make public statements about a pending decision, to ensure that you are not seen to be pre-judging a decision which will be made at the meeting where all information required to take a decision will be available. You must not indicate or imply your support or opposition to the proposal, or declare your voting intention, before the meeting. Anyone who may be seeking to influence you must be advised that you will not formulate an opinion on a particular matter until all available information is to hand and has been duly considered at the relevant meeting."

As can be seen from this paragraph it is critical that a Councillor involved in the formal decision making process must not at any stage prior to the meeting at which the decision is made, indicate what their position will be in respect of an application and if they do so then it is inappropriate for them to be involved in taking that formal decision.

The Code goes on specifically to deal with representations and how Councillors should deal with these. It is made clear that where a Councillor will be involved in the formal decision making process they should not organise support for or opposition to a proposal or indeed lobby other Councillors in relation to it. That is so whether their involvement will be as a result of being on the Planning Committee or being a member of the Local Review Body. Should they do so then they cannot be involved in the decision making process. The Code does however make clear that that does not preclude Councillors from passing on concerns or raising issues providing the Councillor does not take an express position for or against the development. If a Councillor does wish to make representations then subject to the rules of the Council involved they may do so but that will preclude them from being part of the formal decision making process.

The Code addresses the position in relation to pre-determination hearings which are necessary in respect of some applications (either a national application or a major application which is significantly contrary to the Development Plan). The Code makes clear that expressing an opinion at a pre-determination hearing does not prevent a Councillor taking part in the actual decision making process at full Council. The Code also deals with the position where there are local area Planning Committees (common in Councils which cover a large geographical area). It is made clear that at such meetings provisional views may be made known but a Councillor should only make a final judgement at the Committee which ultimately takes a decision on behalf of the Council.

The Code covers in Section 6 (lobbying) the position in respect of developers who may want to discuss matters with Councillors. While there is nothing to preclude a Councillor from having discussions to obtain factual information, a Councillor should not form an opinion in relation to a particular development nor express such an opinion prior to the relevant meeting at which the decision will be made and should make that clear. Other than obtaining factual information the Code suggests that representations should be directed by the Councillor to the relevant department of the Council.

The Code does seek to deal with the changes consequent upon the new planning regime coming into effect. While that is to be welcomed the Code does not fully resolve the difficult issues which may often arise when parties involved in a planning application may want to engage with Councillors. A Councillor may have to make a judgement call which may be far from easy to make. Concern about where the boundaries of proper behaviour lie may in reality mean that issues of significance to the decision making process may only be addressed in a formal manner meaning the exchange of information and views which in some cases might assist in the decision making process may be limited. The risk is that such exchanges at an earlier stage may be considered inappropriate or unfair and this is the risk the Code seeks to guard against.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.