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GUIDANCE FOR PLANNING AND DEVELOPMENT CONTROL 
COMMITTEE MEMBERS ON CIRCUMSTANCES REQUIRING A 
DECLARATION OF INTEREST - FIRST DRAFT 

For reasons best explained by lawyers, the planning process is increasingly fraught with legal 
challenges to decisions made - invariably in good faith - by planning authorities. As a broad 
generalisation, it can be said that the risk of challenge is greatest to decisions made when 
planning committee members are acting in quasi-judicial mode which, principally, is when 
they are determining planning applications. Anxiety about this aspect of the CNPA’s 
business is proving to be of particular concern to those members who are councillors or are 
members of other organisations whose activities intersect in some way with our planning 
role. It also threatens to be a disruption to the conduct of the Committee’s business by, at the 
simplest level, repeated interruptions and, more seriously, by making the proceedings 
inquorate. 

The opinions expressed below are offered, on an interim basis, to help the CNPA’s Planning 
and Development Control Committee (PDCC) to make judgements about the circumstances 
in which they need "to declare an interest" and absent themselves from discussions and 
voting on planning matters. I am putting them forward with the following caveats: 
1. These are my personal views (as a non- lawyer) although I have discussed them with 
the Chief Executive who, broadly, shares my conclusions. 

2. They are based on (a) my reading of the guidance contained in the documents listed in 
Appendix A of this report, (b) a degree of pragmatism based on my experience of the 
planning system and the bodies with which it interacts, and, (c) a belief that in a 
community as small as that from which the Park draws its members, democratic 
government would become almost impossible if those prepared to spend their time on 
public service could be disabled from making decisions on one body merely because 
they sit on a separate body with which it has dealings and from which it receives 
opinions on specialist subjects. 

3. I will, in the immediate future, be seeking a legal opinion, and the views of the 
Standards Commission for Scotland, on the reliability of my views. I suspect that any 
opinion I receive will be subject to a caution that they touch on many "grey" areas 
where only the courts can make a determination. 

4. Apart from Development Control, there are certainly other areas of planning - notably 
local planning and enforcement - where there is scope for legal challenges but these 
are less pressing and will be dealt with in future as the need arises. 


THE SOURCE OF THE PROBLEM 
It is clear from the meetings of the PDCC which have taken place so far that those members 
of the committee who are either councillors on one of the constituent local authorities or are 
board members of, for example, SNH, are taking the view that there might be a conflict of 
interest if they participate in discussions and/or voting on those aspects of the committee’s 
business related to (a) call-ins, (b) the determination of applications or (c) the making of 
comments to local authorities on applications not called in. For reasons which I will explain 
below, I think the risk does not exist in the case of (a) and is much less than has been 
assumed in the case of (b) or (c). 

Before doing so, however, I need to suggest that the underlying basis for any concern is that 
applicants, objectors and other interested parties are entitled to expect that each member of 
the committee, when making quasi-judicial decisions, comes to the meeting with (l) no preformed 
view on how he or she will vote, (2) that his or her decision will be based upon the 
advice given by their officers - or a reasoned departure from it, (3) as a consequence of (2), 
the decision will be made in accordance with approved policies - or a reasoned departure 
from them. The condition of having no pre-formed view is obviously impossible to satisfy if 
the member has already participated in a vote in another forum, or has publicly expressed an 
opinion on the issue, and might be difficult to satisfy (a court might conclude) where a 
member’s independence of action was compromised by the fact that he or she was a member 
of another body with a declared view on whether the proposal should be approved or rejected. 
As a variation to the latter case, it might be sufficiently compromising that the other body 
had a clear policy, formally approved in accordance with its constitution, on developments of 
the type under examination - or would derive a clear benefit from a particular outcome. 


DISCUSSION AND IMPLICATIONS FOR PDCC 
Call-In Decisions 
My views on the implications of the above analysis for the PDCC’s proceedings can only be 
expressed with different levels of confidence. I am most certain that, in relation to call-in/no 
call-in decisions, a member need only declare an interest where he or she has a financial 
interest or the applicant is a friend, relative or business associate -with the test in these cases 
being whether an informed, independent person, knowing the facts, would be likely to 
conclude that the connection is sufficiently close to perhaps affect the member’s impartiality. 
In all other circumstances, I do not think there will be a need to make a declaration. My 
reasoning for that conclusion is that call-in/no call-in decisions are only properly made if the 
decision is reached without any judgement about how the application deserves to be 
determined. In other words, these decisions are specifically NOT about the planning merits 
of the proposal which, as the convener regularly cautions, must be made on another occasion 
when all of the consultations have been carried out and an officer report and briefing has been 
given. The call-in activity happens only within the PDDC, and is based only on an 
interpretation of the approved Protocol. I do not see how participating in those decisions 
impinges on the decisions which might be taken in other places on planning or other aspects 
of the proposal. I am aware of - but do not agree with - the proposition that there is a 
connection between which body deals with an application (the CNPA or the relevant Council) 
and the ultimate decision on whether to approve or refuse. This has to be based on an 
assumed predisposition by one body or the other to a particular attitude to some types of 
development. Of greater importance than whether that is ever true, it may be that the 
applicant, objectors or other interested parties will believe that their viewpoint will be best 
served by the Council or the CNPA making the decision and, to that extent, the call-in will 
not be seen by some people as being as "value-free" as I have suggested. However, my guess 
is that any legal challenge arising from that point would be to the collective decision of the 
committee rather than to the role of individuals and would probably be on the grounds that 
the committee had misdirected itself in its interpretation of the Protocol. 

Determination of Applications 
In relation to the determination of applications which have been called-in or making 
comments on those which are not, I would make one general point which will influence 
several others: the Scottish Parliament has given the CNPA a constitution which provides for 
councillors and nominees of other organisations to be on the Board and related committees. 
It would, in my opinion, rather defeat Parliament’s intention if so many of these members 
were then prevented from active participation in core activities of the CNPA’s business by 
excessively cautious interpretations of codes of conduct. Against that background, I think the 
most certain guidance might be as follows: 

1. Always declare an interest if you have the "friends, relatives, financial interest or 
business association" connection referred to above or if proposed development has 
such a direct bearing on your home that it might be held to affect your impartiality. 

2. Always declare an interest if you have participated in an official (and perhaps nonofficial) 
discussion at which a conclusion, involving you, was reached on the matter at 
hand. 

3. Always declare an interest if your views on what the planning decision should be have 
been already been expressed - e.g. to the applicant, objectors, community councils, the 
Press or in any way which would lay you open to the criticism that you had come to 
the PDCC with a pre-conceived opinion. 

4. Always declare an interest if you intend, for example as a councillor, to participate in 
a debate on the proposal in a Council forum at a later date. The point of doing so in 
these circumstances is to prevent your impartiality being challenged subsequent to 
that event rather than in the PDCC. 

Beyond the above points, the issues are less clear and probably need to be assessed in the 
particular case. There has, for example, been concern that where a body, such as SNH, has 
expressed its view on a planning application as a result of an official consultation this may be 
held to require those members of PDCC who have an official connection with SNH to declare 
an interest and withdraw from the PDCC determination. This, I think, is an unnecessarily 
severe interpretation of official guidance unless the member concerned has taken part in 
formulating that view wherever it originated. In practice, most inputs of this type to planning 
consultations come from officers and unless one is prepared to argue that Board or PDCC 
members are inevitably bound to the views of their officials I do not think this need be a 
worry in the overwhelming majority of cases where the dilemma appears to occur. It is 
inherent in public governance in our democratic system that, broadly, officials give advice 
and committees of one sort or another take decisions based on that advice. Within our own 
short experience there have been a significant number of cases where officer 
recommendations have been rejected in favour of different outcomes and it is well known to 
anyone with experience of the planning system that committee members regularly disagree 
with the advice they have been given and vote accordingly. That is not to say that they are 
making bad decisions, or acting on whim - since they are under an obligation to make 
determinations in accordance with their declared policies unless there are material 
considerations which justify exceptions - but there is very often a degree of judgement 
required and the system is tolerant of committees taking a different view from their officers 
provided there is a clear and reasoned justification which makes sense on planning grounds. 
The same principles apply in related fields which are relevant to this report. The important 
point arising from these facts is that, for example, PDCC members who are also members of
other bodies are not mandated to turn up at the PDCC to reiterate the views of those bodies. 
It is quite possible that any PDCC member in this situation will not even know what the other 
body has said until he or she has read it in our committee papers and I think that, in those 
circumstances in particular, any challenge to that member’s participation could not be held to 
be tainted by a connection to the other body. I find it difficult to think of an exception to that 
point except, perhaps, where an issue is unusually controversial - e.g. comparable to the 
funicular railway issue -where it might be wise not to participate in the PDCC determination 
if you hold a position on another body. The exception in this case would be more to do with 
a different degree of public perception and a greater focus on the positions being taken by 
bodies which will influence the outcome. 

CONCLUSION 
The above advice is less equivocal than any I have been able to find in "official" sources all 
of which tend to set out very broad principles and leave it to the individual judgements of 
those who might be affected. That is partly due to the obvious fact that in many cases only 
the Courts can make definitive interpretations of the guidance but it is also the case that 
officials who draft guidance sometimes err heavily on the side of caution or vagueness to 
avoid being faulted in the light of subsequent experience. In my efforts to miss the latter trap 
I have perhaps expressed opinions with a greater degree of certainty than can be justified but, 
if that is the case, my motive has been to give guidance which will be useful and capable of 
consistent interpretation by the PDCC and its advisors. There is no doubt, however, that I 
will need to circulate these opinions to our legal advisors, and The Standards Commission, 
for more expert opinion and I, or my successor, will report back to a future meeting of the 
Committee on their responses. Members of the PDCC who have a role on other bodies are, 
of course perfectly free to show this report to appropriate officers in those bodies for their 
opinions which I would be interested to hear. 
DENIS MUNRO 
Interim Planning Manager 

APPENDIX A 
OFFICIAL GUIDANCE REFERRED TO 
Model Code of Conduct for Members 
Code of Conduct for Councillors 
"On Board" guide to Board Members 
Supplementary Guidance from the Standards Commission for Scotland