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Wiltshire Council Whitewash
(September 17, 2014)WILTSHIRE COUNCIL WHITEWASH
DECISION NOTICE: No further action
Reference WC – 38/14
Subject Member
Councillor Magnus MacDonald – Wiltshire Council
Complainant
Councillor Steve Dancey
Deputy Monitoring Officer
Mr Frank Cain
Complaint
On 13 June 2014 the Monitoring Officer of Wiltshire Council received a complaint from Councillor Steve Dancey regarding the conduct of Councillor Magnus MacDonald, a member of Wiltshire Council.
The complaint alleged that at a meeting of the Wiltshire Council Western Area Planning Committee (the committee), held on 11 June 2014 (the meeting),
Councillor MacDonald breached the Code of Conduct by: -
• Failing to notify for inclusion in the Council’s register a disclosable pecuniary interest namely a directorship with Selwood Housing (Selwood) (paragraph 8 of the Code of Conduct).
• Failing to declare an interest at the meeting (paragraphs 6 & 10 of the code of conduct).
• Participating and voting on an item in which he had a pecuniary interest when no dispensation had been granted (paragraph 12 of the code of conduct).
• Failing to act solely in the public interest (paragraph 1 of the code of conduct).
• Improperly conferring an advantage or disadvantage on any person (paragraph 1 of the code of conduct).
• Acting to gain financial or other material benefits for himself (paragraph 1 of the code of conduct).
• Placing himself under a financial or other obligation to an outside organisation which might have sought to influence him in the performance of his duties (paragraph 2 of the code of conduct).
• Failing to make a decision on merit when carrying out his public duties (paragraph 5 of the Code of Conduct).
These allegations all arise out of a decision in which the subject member was involved which related to a developer seeking planning permission for a small scale housing development in Boreham Mill Meadow, Warminster (the application)
Decision
In accordance with the approved arrangements for resolving standards complaints adopted by Council on 26 June 2012, which came into effect on 1
July 2012 the Deputy Monitoring Officer has determined as follows: -
1. Failing to notify for inclusion in the Council’s register a disclosable pecuniary interest namely a directorship with Selwood (paragraph 8 of the Code of Conduct): no evidence of a breach and therefore no further action.
2. Failing to declare an interest at the meeting (paragraphs 6 & 10 of the code of conduct): no evidence of a breach and therefore no further action.
3. Participating and voting in respect of an item in which he had a pecuniary interest when no dispensation had been granted (paragraph
12 of the code of conduct) no evidence of a breach and therefore no further action.
4. Failing to act solely in the public interest (paragraph 1 of the code of conduct) no evidence of a breach and therefore no further action.
5. Improperly conferring an advantage or disadvantage on any person (paragraph 1 of the code of conduct) no evidence of a breach and therefore no further action.
6. Acting to gain financial or other material benefits for himself (paragraph 1 of the code of conduct) no evidence of a breach and therefore no further action.
7. Placing himself under a financial or other obligation to an outside organisation which might have sought to influence him in the performance of his duties (paragraph 2 of the code of conduct) no evidence of a breach and therefore no further action.
8. Failing to make a decision on merit when carrying out his public duties (paragraph 5 of the Code of Conduct): no evidence of a breach and therefore no further action.
Reasons for decision
There are several legal concepts that need to be considered before any decision can be made as to whether the facts, as presented, if proven would amount to a breach of the code of conduct. Therefore I propose in these reasons to present in a three stage process; firstly to identify relevant legal concepts and their definition, secondly to apply these legal concepts to the facts and lastly to look at each allegation and the facts and law to determine whether the facts, if proven, would amount to a breach of the code and next steps if any.
The Law
Disclosable pecuniary interests
A Disclosable pecuniary interest is defined in the schedule to the Relevant
Authorities (Disclosable Pecuniary Interests) Regulations 2012 and includes “Any employment, office, trade, profession or vocation carried on for profit or gain.”
Whilst a directorship is not employment, trade, profession or vocation it is an office held. Therefore should a member receive any payment for a directorship which is for profit or gain as opposed to re-imbursement for expenses incurred then it will be a disclosable pecuniary interest.
Requirements for notification and registration of disclosable pecuniary interests
A member is required to notify the monitoring officer within 28 days of becoming a member of any disclosable pecuniary interests that they hold at the time of notification (section 30 (1) of the Localism Act 2011 (the Act)).
If a member does not hold an interest at the time of notification then the legal requirements in respect of notification of subsequently obtained disclosable pecuniary interests are: -
• If present at a meeting in which a matter in which they have a disclosable pecuniary interest is being or is to be considered they must disclose it to that meeting (s31(1) of the Act) and
• Must notify the monitoring officer within 28 days of that disclosure (s31(3) of the Act).
Therefore there is a continuing obligation on members to notify new disclosable pecuniary interests that arise after becoming a member but that obligation only arises when that member attends a meeting in which a matter in which they have a disclosable pecuniary interest is to be or is being considered.
Once a notification occurs under sections 30 (1) or 31 (3) of the Act there is a statutory duty on the relevant authority’s Monitoring Officer to enter that interest on the register.
These requirements are mirrored in the Wiltshire Council Code of Conduct (Part 13 of the Wiltshire Council Constitution).
Requirements for notification of other interests
S 29 of the Act requires a relevant authority to maintain a register of interests which at the discretion of the relevant authority may contain interests wider than disclosable pecuniary interests. Paragraph 9 of the Wiltshire Council Code of Conduct mirrors this requirement.
Wiltshire Council has not imposed any other mandatory notifications/registrations of interests on members.
Matter in which a disclosable pecuniary interest is being or is to be considered
The requirements under the Act relating to disclosable pecuniary interest are relatively new and therefore there is little case law on these provisions.
However in R(on the application of Freud) v Oxford City Council (2013) EWHC 4613 (admin) the High Court had to consider amongst many other grounds a challenge by Mr Freud to a planning permission made by a university on the basis that the chairman (Mr Cook) and other members of the Committee were employed by the university. Mr Justice Ouseley held at paragraphs 41 & 42: -
41. …The complaint is as to his participation in the debate at all. But for him to have been obliged not to participate in the debate, it would have to be shown that he had a disclosable pecuniary interest in the subject matter of the discussion. He had no pecuniary interest in this subject matter. He was not in any part of the university which was promoting it. He had no contract to deal with it. He had nothing in that respect which could amount to a disclosable pecuniary interest in that matter.
42. Mr Freud says everybody who is employed by an employer has some pecuniary interest, however indirect in how that employer does but the law on that has changed. I have no doubt that the change was in part intended to stop indirect relationships of the sort Mr Cook enjoys here at Oxford University requiring him not to participate in debates about each and every planning application that might be made in Oxford by the university. I do not consider that Mr Cook acted unlawfully in participating in the debates because he had no disclosable pecuniary interests in the subject matter of the proceedings.
Therefore for a member to have a disclosable pecuniary interest which precludes them from participating and voting on the matter in question there
needs to be direct relationship between the pecuniary interest and the subject matter under consideration.
The Facts
The subject member is an elected member of Wiltshire Council. He was elected to Wiltshire Council in the May 2013 elections and became a member by at least 9 May 2013 and has remained a member since that time. The subject member was therefore a member of Wiltshire Council at the time of the committee meeting held on 11 June 2014.
The subject member was confirmed by Selwood as a Director on 24 July 2013.
Selwood’s Articles of Association provide for Directors of Selwood to be paid remuneration as well as re-imbursement of expenses (paragraph 19 of the Association’s Articles). It is therefore assumed that the subject member is paid a director’s fee.
The application
The matter which is the subject of this complaint is the meeting and in particular an application for outline Planning permission (the application) by HPH Ltd and Hab Housing Ltd (the applicants).
The Applicants are limited liability companies and are separate legal entities to Selwood.
The minutes of the meeting record that at the beginning of the meeting the subject member declared that he had a pecuniary interest in one matter to be considered at that meeting in which Selwood was the applicant, as a result of the subject member being a director. For that item Cllr MacDonald withdrew from the committee and did not participate in the debate or vote.
On 2 July 2014 and within 28 days of that declaration the subject member notified the Monitoring officer of his disclosable pecuniary interest and it was placed on the Council’s register.
The minutes of the meeting also records that during the course of debate of the application itself there was discussion on the position of Selwood, and Councillor Magnus Macdonald confirmed as he had done earlier that he was a member of the Selwood Board.
Further at the meeting Selwood confirmed in writing to the Committee that it was a prospective partner, not the applicant, and that there was no formal agreement in place between the applicant and Selwood. The subject member then confirmed that he would vote on the application.
Selwood is a social enterprise, registered charity and not for profit housing association based in Trowbridge and operating mainly within the County of Wiltshire.
The application for planning permission involved a proposal for 35 homes of which a percentage is to be social housing.
The application was for outline planning permission. The development could only proceed when full permission was sought and granted.
Any planning obligations relating to affordable housing arising from any permission granted would fall on the applicant.
Relationship between applicants and Selwood
Paragraph 9.8 of the planning Officer’s report included the following sentence: - The applicant has already identified Selwood Housing to deliver the affordable housing and they are keen to innovate an affordable housing custom build model. However this sentence has to be considered in the light of the factual circumstances that surround it.
The planning obligation will be on the Applicants to deliver the affordable housing. Neither the application nor any permission granted will create any legal obligations between Selwood and the applicants for delivery of that affordable housing.
Delivery of the affordable housing component would be by way of separate legal obligations between the applicant and a social provider of the applicant’s choice.
Within Wiltshire there are a number of registered social landlords (including Selwood) which could fulfil this role. Due to recent legislative changes Wiltshire Council, if it wished, could tender for delivery of affordable housing in this development.
Any legal relations between the applicant and a registered social Landlord would only be established after full details have been finalised and the applicants and chosen social Landlord have satisfied themselves as to terms.
The applicant, as part of the planning application, needed to address the planning requirements for provision of social housing imposed on housing developments. They had to confirm to the planning committee that their proposal was deliverable. Best practice would suggest that should involve discussions with a provider of social housing to test the proposal. However this does not in itself create any legal relationship.
Planning considerations
Within the Wiltshire Council constitution there is a Planning Code of Good Practice (protocol 4). Compliance with this code is a requirement imposed on all members who sit on a Wiltshire Council planning Committee.
It is a requirement that before a Member can sit on a planning committee they are required to go through comprehensive training whereby the Planning Code of Good Practice is emphasized.
The Code of Good Practice at paragraph 5.2 provides: -
The integrity of and public support for the planning process relies on members of planning committees making decisions that are open, transparent and above board. To participate in decision-making on planning matters, it is essential that you do not have a closed mind and that you make your final decision only when you have seen and heard all the evidence and arguments presented, including the Officer’s report and representations on both sides.
The minutes of the meeting show that the discussions at the meeting revolved around consideration of the planning merits of the application. Apart from the issue of the whether the subject member had a disclosable pecuniary interest there is no evidence, either in the minutes, which are the official record, or in the complaint(s) itself that the subject member based his decision on anything but planning merits.
Application of the facts to the allegations:
1. Failing to notify for inclusion in the Council’s register a disclosable pecuniary interest namely a directorship with Selwood (paragraph 8 of the Code of Conduct).
The subject member became a member of Wiltshire Council on or before 9 May 2013. He had 28 days in which to notify the Monitoring Officer of any disclosable pecuniary interests that he or certain immediate family members may hold.
The 28 day period would have expired at the latest by 7 June 2013. As the subject member did not become confirmed as a Director of Selwood until 24 July 2013 he did not have this interest to disclose within the 28 day period.
On 11 June 2014 a matter came up in which Selwood was the applicant and therefore the subject member did have a disclosable pecuniary interest in a matter before the Council. The subject member declared that interest at the meeting and has notified the Monitoring Officer (on 2 July 2014) of that interest and within 28 days of that declaration.
I have concluded that there is no evidence that the member has failed to notify a disclosable pecuniary interest in accordance with the legal requirements imposed on him.
2. Failed to declare an interest at the meeting (paragraphs 6 & 10 of the code of conduct).
Wiltshire Council has limited mandatory notifications imposed on subject members these are limited to disclosable pecuniary interests. The subject member declared that interest at the outset of the meeting in respect of the application in which there was a direct interest.
In respect of the particular application the ,subject member did not have a direct interest (see comments below) and for the reasons set out below I do not consider there is any evidence that the subject member failed to declare an interest in the meeting.
3. Participated and voted in respect of an item in which an organisation in which he has a pecuniary interest when no dispensation had been granted (paragraph 12 of the code of conduct).
Selwood is a separate legal entity to the applicants. Whilst they were prospective partners they had no direct relationship to the application.
Any relationship that Selwood had to the application was indirect as a potential provider of social housing. They were a consultee for the applicant’s preparation of its application but equally any social provider could have been selected as a consultee and it does not form any legal relationship whereby Selwood could be held to have a direct relationship to this application.
I have therefore concluded that the subject member did not have a disclosable pecuniary interest which precluded him from participating and voting on the application
4. Failed to act solely in the public interest (paragraph 1 of the code of conduct).
The subject member was trained before sitting on the planning committee. The Council has a Planning code of Good Practice which is contained within the Wiltshire Council Constitution.
All members of Wiltshire Council sitting on a Wiltshire Council planning Committee must abide the Planning Code of Good Practice. There is no evidence within the minutes or the complaint itself (apart from the allegations relating to disclosable pecuniary interests which I have addressed above) that suggest that the subject member’s decision was other than on the planning merits which is the public interest.
I have therefore concluded that there is no evidence that the subject member failed to act in the public interest.
5. Improperly conferred an advantage or disadvantage on any person (paragraph 1 of the code of conduct).
The subject member was trained before sitting on the planning committee. The Council has a Planning code of Good Practice which is contained within the Wiltshire Council Constitution.
All members of Wiltshire Council sitting on a Wiltshire Council planning Committee must abide the Planning Code of Good Practice. There is no evidence within the minutes or the complaint itself (apart from the allegations relating to disclosable pecuniary interests which I have addressed above) that suggest that the subject member’s decision was other than on the planning merits which is in the public interest.
I have therefore concluded that there is no evidence that the subject member improperly conferred an advantage or disadvantage on any person.
6. Acted to gain financial or other material benefits for himself (paragraph 1 of the code of conduct).
The subject member was trained before sitting on the planning committee. The Council has a Planning code of Good Practice which is contained within the Wiltshire Council Constitution.
All members of Wiltshire Council sitting on a Wiltshire Council planning Committee must abide the Planning Code of Good Practice. There is no evidence within the minutes that suggest that the subject member’s decision was other than on the planning merits which is in the public interest.
There is no direct relationship between the applicants and Selwood. There may be an indirect relationship because Selwood is a prospective social provider however this is no greater than any other social provider including possibly the Council itself.
I have therefore concluded that there is no evidence that the subject member acted to gain financial or other material benefits.
7. Placed himself under a financial or other obligation to an outside organisation which might have sought to influence him in the performance of his duties (paragraph 2 of the code of conduct).
There is no evidence that the member has placed himself under a financial obligation to an outside organisation which might have sought to influence him in the performance of his duties.
If a matter arises for consideration in which the subject member has a disclosable pecuniary interest he must not participate or vote on that item.
This is what he did in respect of the application by Selwood.
8. He failed to make a decision on merit when carrying out his public duties (paragraph 5 of the Code of Conduct).
The subject member was trained before sitting on the planning committee. The Council has a Planning code of Good Practice which is contained within the Wiltshire Council Constitution.
All members of Wiltshire Council sitting on a Wiltshire Council planning Committee must abide the Planning Code of Good Practice. There is no evidence within the minutes or the complaint itself (apart from the allegations relating to disclosable pecuniary interests which I have addressed above) that suggest that the subject member’s decision was other than on the planning merits which is the public interest.
I have therefore concluded that there is no evidence that the subject member failed to make a decision on merit when carrying out his public duties.
Right of appeal
Both the complainant and the subject member have the right to appeal against the Monitoring Officer’s decision to a sub-committee of Wiltshire Council’s Standards Committee.
If either party wishes to appeal they must do so in writing within 5 working days of receipt of this decision notice. They should write to the Monitoring Officer providing clear reasons of the basis for their appeal. The Monitoring Officer will then arrange for a sub-committee of the Standards Committee to meet and determine the appeal.
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