Councillors' code of conduct: consultation 2020

Section 7:  Taking decisions on quasi-judicial or regulatory applications

Explanatory Note: Section 7 has been substantially reworked in order to provide a more generic approach that can cover all types of applications and decisions, and not be so heavily focussed on Planning matters.  The detail of different planning scenarios provided previously within this section of the Code has been removed and can be provided for in associated Guidance.  The forthcoming changes within the new Planning Act in any event made parts of this Section obsolete eg "Full Council Decisions".

The core principles of fairness, equity and impartiality required when Councillors are performing a quasi-judicial, regulatory decision-making role are retained.  Repetition is a feature of the current Code that has been removed and condensed in this section.  All of the existing expectations largely remain but the format of "I Will" and "I will not" is intended to provide clarity and simplicity of presentation within the Code to promote better understanding and adherence to the provisions of the Code.  

Introduction

7.1 I need to be especially vigilant when I am making a decision on a quasi-judicial or regulatory applications.  For these applications, I need to ensure there is a proper and fair hearing of the application and I must avoid any impression of bias in the whole decision-making process.

7.2 I will deal with many types of quasi-judicial or regulatory applications.  Depending on the type of application that is made, there will be often be a formal, statutory decision-making process for its consideration and outcome.  There may also be formal legal routes to challenge decisions made on these applications and for this reason I must be aware that my own personal responsibility to ensure a proper and fair hearing has wider consequences for my Council's reputation and financial liabilities in the event of any successful challenge.

7.3 The types of decisions which involve quasi-judicial or regulatory decisions typically involve:-
a) Planning or other applications in terms of planning legislation;
b) Applications for alcohol licensing matters;
c) Applications for betting and gaming premises;
d) Applications for taxi licences and all other forms of civic licensing;
e) Actions where my Council is involved in any form of statutory enforcement procedure;
f) Any actions where my Council is an Employer and is involved in any disciplinary issues that I may have a remit to deal with;
g) Any procedures for statutory approval or consent involving my Council and where I have a remit to deal with the matter;
h) Any appeal procedure where my Council has a role and where I am expected to adjudicate on applications, e.g., Education Appeals Committee for school placements or for school exclusions.

The above list is provided to me only for guidance and is not exhaustive.  If I have any doubt as to whether or not my involvement involves a quasi-judicial or regulatory application I will seek the advice of my Council's Monitoring Officer.

7.4 In dealing with these applications I Will: 
a) throughout my involvement with the entire application process act fairly and be seen to act fairly;
b) declare interests where required in terms of Section 5 of this Code and leave the leave the room (if physically present) or meeting (if online) until the matter has been determined;
c) deal fairly and impartially with all parties involved in the application;
d) tell those who may be seeking to influence me out with the proper decision-making process that I will not formulate an opinion on any particular application until all information is available to all decision-makers and has been duly considered at the relevant meeting;
e) take into account professional advice from Council Officers that is given to me;
f) seek advice from the relevant Council Officer if I am in doubt as to any material or relevant considerations

7.5 In dealing with such applications I Will Not:
a) act improperly or do anything which could reasonably create a perception that I have acted improperly;
b) pre-judge or demonstrate bias or be seen to pre-judge or demonstrate bias;
c) indicate or imply support or opposition to an application nor to indicate my voting intention prior to the appropriate meeting where the application will be considered;
d) in advance of the decision-making meeting, attempt to influence Officers to adopt a particular position as that would imply that I am prejudiced in my decision-making;
e) lobby other Councillors who may be dealing with the application;
f) express any view on the application before the appropriate meeting where the application will be considered.  If I do so I will not participate in any aspect of the decision-making nor vote on the application;
g) formulate my conclusions on an application until all available information is to hand and has been duly considered by me at the meeting where the application will be considered; and,
h) express any indicative or provisional views in the course of my involvement in any aspect of the application.

Policy & Strategy

Explanatory Note: Previously this section related only to Planning Matters when clearly there are Policy & Strategic elements in all kinds of Quasi-Judicial and Regulatory applications that Councillors are called upon to decide.  

7.6 My role in policy and strategic issues may have a very wide relevance to my Council's area.  For example, I have a key role in establishing policies for the benefit of my Council's area and I am fully entitled to express my genuinely held views or to advocate proposals for the adoption of key guidance. It is entirely appropriate that I can express my views on matters of such general importance to my Council area.  

7.7 When I am being asked to develop a policy and set a strategy that forms the framework under which individual applications may subsequently be decided, I understand that I can discuss or debate these items of policy or strategy but I will only take into account material considerations affecting the policy or strategic issue and I will have regard to the evidence-base that is required to demonstrate the basis for the adoption of the policy or strategy.

7.8 For policy and strategic issues under which individual applications may subsequently be decided, I Will:
a) be able to express my views;
b) be able to advocate proposals that I consider to be of benefit to my Council area;
c) have regard to the evidence-base behind the formulation of the policy or strategy in question.

I Will Not:
a) do anything or be motivated to do anything that is connected or linked in any way with my personal involvement in a policy or strategic matter;
b) express any view that suggests I have a closed mind on the policy or strategic issue.

Representation

Explanatory Note: Clarity provided in the "I will " and "I will not" format has reduced a lengthier narrative into simplified wording to promote better understanding and adherence to the provisions of the Code.  Clarification is also offered of the position of a Cllr presenting a case on behalf of a constituent to enable them to remain for the whole duration of the application rather than artificially having to withdraw from the leave the room (if physically present) or meeting (if online) before the whole application had been decided.

7.9 If I intend to be involved in the decision-making for any quasi-judicial or regulatory application I Will Not:
a) Organise support for or opposition to the application in any way;
b) Represent or appear to represent individuals or groups who are seeking to make representations for or against an application; or
c) Compromise myself or the Council by creating a perception of a conflict of interest.

7.10    In circumstances where I am a member of a Committee etc as a decision-maker but have been involved in organising support for or opposition to an application, I Will 
a) declare an interest in the matter, and
b) withdraw from the room (if physically present) or meeting (if online)without participating in the consideration of the matter. 

7.11    In circumstances where I am a member of a Committee etc. as a decision-maker but wish to represent individuals or groups who are seeking to make representations for or against an application, I Will:
a) Follow procedures agreed by my Council which afford equal opportunity to any parties wishing to make representations to do so
b) Declare an interest in the matter; and
c) Only remain in the room (if physically present) or meeting (if online)for that item for the purposes of acting as the representative of the individual or group throughout the duration of their participation
d) I Will Not: 
a) participate or attempt to participate as a decision-maker in that application;
b) attempt to influence Officers to adopt any particular position relative to the matter;
c) lobby other Councillors who may be involved in the decision-making process; and

 Site Visits

Explanatory Note: Generalised to cover more than just Planning applications and expanded to reflect the formal nature of this activity in judicious decision-making.

7.12 In respect of any site visits that have been decided upon or agreed by the Committee as a stage in the consideration of the application I WILL:
a) follow the Council's procedures for such visits as set out by my Council and that with regard to any legislative requirements or notes of guidance or practice;
b) remember that such site visits are part of the decision-making process and as such are formal in nature and may have procedures as set out by my Council.

Enforcement

Explanatory Note: "Unauthorised developments", as this part is headed in the current Code has been changed to "Enforcement" which has a wider application than just planning matters and can be more easily understood.

In my role, I may become aware whether by complaint or by direct knowledge of the need for Council intervention by way of appropriate enforcement action.  In this event, I will refer the matter for investigation to the appropriate service of my Council.  I Will Also:
a) advise all subsequent enquirers to deal directly with the relevant Officer of the Council department;
b) be able to request factual information about the progress of the matter from the relevant Officer.

I Will Not

a) lobby for a particular outcome;
b) get involved in the operational detail of any enforcement actions which are subsequently taken by the Council.