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CAIRNGORMS NATIONAL PARK AUTHORITY 
Planning Paper 2 27 February 2004 
CAIRNGORMS NATIONAL PARK AUTHORITY 
Title: CODE OF CONDUCT/CONFLICTS OF INTEREST 
Prepared by: JANE HOPE (Interim Chief Executive) 
DENIS MUNRO (Interim Planning Manager) 

Purpose 
To update and advise the Committee on the recent interpretation of the extant guidance from 
the Standards Commission (including its general dispensation to Councillors who are 
members of other public bodies), which results in Councillors on the CNPA Board being 
debarred from participating in the determination by their own Council of any planning 
application on which the CNPA has offered comments. 

Recommendations 
1. That the Committee agree to the proposed course of action for sorting out the current 
anomalies in the guidance for Councillors/CNPA board members in respect of planning 
discussions in the CNPA, and in particular: 
• Agree the proposed additions to the CNPA Members’ Code of Conduct; 
• Agree the proposal that the Dispensation to Councillors from the Standards 
Commission should be urgently amended (and that we offer the wording as set out, 
but recognise the Commission may propose an alternative); 

2. That until the current anomalies have been sorted out, the Committee does not offer 
comments on planning applications which it has not called-in. 

Executive Summary 
Councillors who are also members of other public bodies benefit from a general dispensation 
issued by the Standards Commission - this enables them to participate in discussions within 
their own Council which are connected with activities by other bodies, of which they are also 
a member. It has recently come to light that this general dispensation is deficient in that it 
results in Councillors who are also on the CNPA being debarred from participating in their 
council’s determination of a planning application if the CNPA has given comments on the 
application - as things stand, this applies even if the Councillor has withdrawn from the 
CNPA discussion on the comments. This paper sets out the proposals for rectifying the 
situation, to ensure that if Councillors do withdraw from such CNPA discussions, they may 
then take part in their Council’s discussions on the determination. 

Background 

1. Councillors who are on Boards of other public bodies are covered by two Codes of 
Conduct - that for Councillors and that for the other Public Body. The Code of 
Conduct for Councillors would, other things being equal, have resulted in Councillors 
being debarred from discussion in their Council on matters which in some way related 
to other body, on the basis that there would be a conflict of interest. However, 
recognising that many Councillors would also be members of other public bodies, the 
Standards Commission issued a general dispensation last April. 

2. However, a recent legal opinion revealed that the general dispensation does not extend 
to discussions on matters of "a quasi-judicial nature"....or where the body in question 
is making an objection or representation concerning such a consent or approval....." 
The conclusion is that if the CNPA makes comments to a Council on a planning 
application (which by definition the CNPA has not called-in), then those CNPA 
members who are also members of the relevant Council will be precluded from the 
Council’s determination of the application - whether or not they have been part of the 
CNPA’s discussion/decision on those comments. 

Analysis
 
3. This situation is clearly anomalous, and arises mainly because the unique planning 
powers of the CNPA had not been factored into the formulation of the Standards 
Commission guidance (done before the CNPA existed, and well before it had started 
exercising its planning function).
 
4. At a meeting on 18 February of officers, it was accepted by all parties (Standards 
Commission, CNPA, Scottish Executive, Highland Council and Aberdeenshire 
Council) that this anomalous situation needed to be rectified with some urgency . It 
was recognised that the position had been highlighted by the recent housing 
application at Carrbridge, made before the 1 September (and therefore one which the 
CNPA could not have called in). The CNPA had offered comments, in response to a 
request from Highland Council. Only subsequently when the anomaly was discovered 
did it become clear that the effect was to debar the majority of the members of the 
Highland Council local area planning committee from participating in the 
determination because they were members of the CNPA - the fact that they had 
expressly withdrawn from the CNPA discussion on the comments did not alter this 
position. 

5. This potential conflict of interest applies more widely - it applies in reverse when the 
CNPA calls in an application and a constituent Council makes comments; it also 
applies when the CNPA calls in an application, and another public body (some of 
whose members sit on the CNPA) makes comments. 

6. A full consideration of the issue of conflicts of interest for CNPA members who also 
sit on other bodies or local councils was set out in the recent guidance for Members 
from Denis Munro (attached at Annex A), which was sent to the Standards 
Commission in early February seeking their approval. In short, this guidance sets out a 
logical and defensible position on how Members should judge whether they have a 
conflict of interest on planning issues. It considers three situations: 

Decisions on Call-in: no particular conflicts for CNPA Members arising simply as a 
result of their being members of constituent Local Councils; 

Determinations: again no particular conflict (aside from the obvious conflicts arising 
from a direct personal interest), provided any CNPA member who was a Councillor 
had not played a part in deciding any comments issued by that Council to the CNPA; 

Comments: The fact of being a councillor should not of itself preclude a CNPA 
member from taking part in a discussion on comments being made to a Council on an 
application not called-in, but such a Member should withdraw from any CNPA 
discussion on comments if they wished to be free to take part in the Council’s 
subsequent determination of the application. 

7. The logic in all these situations is that an individual must go to any discussion to 
determine a planning application with an open mind, not having pre-judged the 
matter. It follows that a member could take part in a discussion on comments, but not 
in any subsequent discussion on the determination; similarly, they could withdraw 
from the discussion on comments and remain free to take part in the discussion on the 
determination. This applies both ways round - CNPA commenting to a local council, 
or vice versa. 

8. Consistent with this logic, if comments have been made only at official level, with no 
Member involvement, that Member has no conflict of interest and should be free 
(assuming no other conflicts of interest at a personal level) to participate in the 
determination. (Note: although there is some debate over whether or not the 
legislation allows for the CNPA to delegate comments to officers, even if this were 
clarified such that delegation were allowable, this would not completely resolve the 
current position, as there could still be cases where the CNPA Board would want/need 
to consider the nature of comments being made.) 

9. A two-pronged solution is proposed, as agreed at the meeting with the Standards 
Commission on 18 February):
 
10. First, an amendment is needed to the Standards Commission guidance/general 
dispensation to Councillors. We have proposed the following wording: " In relation 
to any matter of a quasi-judicial nature, a councillor who sits on more than one 
committee with responsibility for that function may express an opinion and 
participate in a vote on only one of those committees. It is a matter for the individual 
judgement of the councillor to decide where to exercise that right." 

11. Second, we propose adding a new paragraph (after the current paragraph 7.10) to the 
CNPA draft Code of Conduct, which encapsulates Denis Munro’s recent guidance, as 
follows: 
There are essentially three types of discussion which members of the CNPA Planning 
Committee will be involved in, and on which they need to consider potential conflicts 
of interest: 

a) Call-In Decisions: You need only declare an interest where you have a financial 
interest in the application, the proposal might affect your home environment, 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 your 
impartiality. In all other circumstance there should be no need to make a 
declaration. A decision to call-in or not should not bear on the merits of the case, 
and therefore a CNPA member who is also a Councillor does not automatically 
preclude his/her participation in a subsequent determination by their Council. 

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

- you have participated in an official (or non-official) discussion at which 
a conclusion, involving you, was reached on the matter at hand. 

- Your views on what the planning decision should be have 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 Planning Committee with a pre-conceived opinion. 

c) Comments: The CNPA may make comments on a planning application which it 
does not call-in. If you are a councillor, and intend to participate in the Council’s 
determination of the application, you should declare an interest to the CNPA 
Planning Committee which is considering comments, and take no part in that 
discussion. Alternatively, you may take part in the discussion on comments, but 
must then take no part in the Council’s determination. If you are a member of 
another body which offers comments to the CNPA on an application, provided you 
played no part in the formulation of those comments (e.g. because they were made 
by officials) then you need not declare an interest. 

Immediate Consequences 

12. These changes to both Code and Standards Commission guidance must be agreed by the 
Standards Commission, and even though we have made clear the urgency, may take a few 
weeks. In the meantime, until the situation is resolved, we advise that the CNPA should 
not offer any comments on cases which have not been called in. Further, until the 
situation is resolved, we should not offer comments on the case of the Braemar dry ski 
slope (being dealt with by Aberdeenshire because the application predates 1 September, 
but the Council have asked for our comments). 
Denis Munro/ Jane Hope 
20 February 2004